Morris v. Morris

DORAN, J. In an action for divorce the wife appeals from an interlocutory judgment of divorce granted the husband as plaintiff and cross-defendant. The husband amended his complaint to conform to the proof offered at the trial, and the interlocutory decree was granted upon the cause of action thus added by amendment, namely, that the wife had deserted the husband through persistent refusal to have reasonable matrimonial intercourse, when health or physical condition did not make such refusal reasonably necessary. (Sec. 96, Civil Code) The wife’s cross complaint was for separate maintenance based upon separate counts of extreme cruelty, wilful desertion, habitual intemperance and adultery; and upon all of such counts the court found against the wife as cross-complainant and in favor of the husband, upon evidence which the record reveals to have been conflicting. The wife, as appellant, contends that the court erred in granting an interlocutory decree in favor of the husband because the testimony of the husband as to the wife’s refusal to have reasonable matrimonial intercourse was not corroborated; and further, that the evidence presented upon the causes of action set up in the cross-complaint supported the allegations thereof, and that the court erred in making findings contrary thereto.

Appellant in her testimony, given on behalf of respondent under section 2055, Code of Civil Procedure, admitted that she and respondent had not had matrimonial intercourse for a period of nearly two years prior to the filing of the complaint, giving as the reason therefor that respondent was in[712]different and was troubled with a nervous ailment or sciatica. The only evidence in the record which might be classed as corroborative of the state of the matrimonial relationship of appellant and respondent was given by a witness on behalf of respondent, as follows:

"Q. Did you notice whether her attitude was pleasant towards him, or was it otherwise ? A. It seemed very normal. Just the same as always. Q. How soon after that request was made did you leave ? A. I couldn’t tell you that. Q. Ever have any conversation with Mr. Morris about their relationship? A. No, sir. Q. Never spoke to him about it? Never made any comment on it ? A. No, sir. Q. Then from your observation and your opinion were the Morrises ideally suited for each other ? A. Well, that is a hard question to answer. I didn’t think so. Q. Have you any opinion on that, have you ever drawn any opinion concerning that? A. Yes, I have. Q. Is it your opinion that they are or that they are not? A. Are not what? Q. Suited for each other. A. No, I don’t think they are. Q. What prompts that opinion on your part ? A. The fact that I was asked to go to the home of Mrs. Morris the first of August and stay with her. Q. That was the first of August of last year or this year? A. 1939. It was my month of vacation and I stayed there off and on during the whole month and then I had to go back to school—stayed there off and on at her request, and Mr. Morris also told me he was very, very glad I came out there to stay, that she needed me. I could not figure out what he meant. Q. During that time you did not note any unpleasantness between them ? A. No. The Court : Did you ever notice any unpleasantness between them? A. I don’t know. Mrs. Morris has lots of reserve and she certainly did not raise any fuss, but there were lots of things happened that would have caused her to. Q. Never heard any fuss raised then ? A. He was not home enough. Q. What ? A. He wasn’t home enough to raise much. Q. Who was not home enough ? A. Mr. Morris. Q. Were you there continuously during that period of time? A. On the first of August I went up and then June decided she needed me to stay— wanted me to stay, and I went down and stored my goods from my apartment, and then I went back up and I stayed off and on until the first of September. Q. What I mean is, were you there daily during that period of time? A. We both were at school. I stayed there nights. Q. You lived there? A. Yes. Q. Did Mr. and Mrs. Morris go out together