Burrows v. Burrows

WHITE, J., pro tem. This is an appeal by plaintiff from a judgment denying his prayer for a divorce and granting to defendant on her cross-complaint a decree of separate maintenance at the rate of $30 per month and further ordering payment by plaintiff to defendant of the sum of $150 attorney’s fees. The alleged ground of divorce was extreme cruelty of the defendant towards plaintiff, while the former in her cross-complaint urged the same ground, augmented later during the trial, through the medium of an amended cross-complaint, to include the additional grounds of desertion and failure to provide.

It is urged in support of the claim for reversal that certain findings are not supported by the evidence and that the court erred in certain rulings in the matter of the admission and exclusion of evidence. Appellant also asserts as further grounds for reversal that the court erred in awarding any maintenance to defendant under the facts of this case, and that the court was in error in permitting the defendant and cross-complainant to file an amended cross-complaint at the close of the evidence.

As to the question of the sufficiency of the evidence to sustain the findings, we are bound by the well-established rule that the decision of the trial court upon issues of fact is conclusive upon us in so far as there is any substantial evidence tending fairly to support such decision, even though we might think that a different conclusion should have been arrived at. It is suggested, however, that an analysis of the testimony offered by respondent, as shown by the record, makes it appear that some of such evidence, and particularly certain of respondent’s testimony and testimony given in corroboration of her evidence,, was false. If we assume this claim as to what the record shows to be well founded, it still remains that the rule relied on by appellant is one solely [278]for the guidance of the trial court and can have no pertinencyin an appellate court. The trial court was the exclusive judge of all questions of credibility of witnesses and weight of evidence, and must be assumed to have considered. all the evidence in the light of such rules as are laid down by the law for the guidance of court and jury in the determination of questions of fact. It should be borne in mind that the question whether acts and conduct constitute such cruelty as, under the circumstances shown, warrants the granting of a divorce to appellant or of separate maintenance to respondent on the same ground, or the further grounds of desertion and failure to provide, are of such a nature that the conclusion of the trial court is necessarily entitled to great weight; and it is only when it is clear that its decision is without any substantial support in the evidence that it will be disturbed on appeal. In the light of the foregoing it cannot be held that the material findings attacked herein are not sufficiently sustained by the evidence. We feel that no useful purpose would be subserved by a discussion of the evidence given upon the matters embraced in the findings that are attacked by counsel in his brief as being without support. Suffice it to say that we have read the record and that in our judgment the findings have sufficient legal support in the evidence.