Winkler v. Winkler

GRIFFIN, J. Respondent commenced this action against his wife for divorce based upon the ground of desertion. Appellant wife answered, denied the allegations of respondent’s complaint and by way of cross-complaint alleged: (1) extreme cruelty; (2) habitual intemperance; and (3) wilful neglect on the part of respondent. After hearing the evidence produced, the trial court refused to grant a divorce to respondent or cross-complainant and appellant and denied her a judgment for support and maintenance. Cross-complainant appealed from that portion of the judgment denying her a divorce or any relief by way of maintenance or support.

Appellant and respondent were married in 1908. They have four children, all of the age of majority. The parties hereto accumulated some property in the State of Oregon, where they resided. About January 1st, 1939, appellant [400]came to San Diego County and lived at the homes of her several children. Later respondent came here and now resides at Sunnyside, San Diego County, where he maintains a filling station. The property in Oregon consisted of a home and a filling station. By agreement that property was mutually divided between them.

In support of her allegation of cruelty, appellant produced evidence, consisting mainly of her own testimony, of a quarrel between appellant and respondent which occurred in Oregon shortly before their separation and at the time when the mutual deeds to the property above mentioned were exchanged.

Appellant testified that on December 28, 1938, at about 5:30 p. m., Mr. Winkler came home from his work; that their boy Winifred was present with a friend of his on that occasion; that the family were in the habit of eating their evening meal at 6 p. m.; that on respondent’s arrival home he immediately demanded his supper; that he grabbed a frying pan; that appellant told him that dinner was not ready but it would be at 6 o’clock; that as the outgrowth of this argument Mr. Winkler set the frying pan down, grabbed appellant by the arm and shook her; that she screamed and her son came in from the front room; and that respondent was threatening her and using bad language. She then testified that “until he got so rough that I kept saying a little louder every time he would shake me —squeeze my arm and shake me—until I spoke so loud that my son came in, and he had his fist drawed back on me and my son said, ‘Don’t hit her,’ or ‘Don’t strike her,’ I don’t know which words he used. Then he yelled to him and he ordered him out of the house and my son says, ‘Do you mean it, Dad? If you do, I will go.’ . . . they kept arguing backward and forth and they had their fists drawed on each other and finally he said, ‘I will put you out of here,’ said, ‘I got something I can put you out of here,’ and he run for his gun. He stepped inside his bedroom door and picked up the gun and made the remark, says, ‘I am ready for you.’ And I said ‘Winnie, don’t do that.’ I says, ‘Please go outside; don’t let this happen to me.’ I said, ‘Don’t let this happen to me,’ and he stepped outside. His father came in with the gun and just hunted for him like he was a dog, with the gun in his hand ready to shoot, and he looked all around in that room and I said, ‘He is not in here.’ He