Wltaschek v. Wltaschek

GOULD, J. pro tem. Defendant appeals from a judgment granting to his wife an interlocutory decree of divorce and awarding to her certain property, permanent alimony, attorney’s fees and costs.

As to the divorce itself it is obvious after examining the pleadings, the testimony placed before the trial court and the findings and judgment based thereon, that an appellate tribunal will not substitute its judgment for that of the trier of facts. Divorce was asked by each of the parties, the wife in her complaint, the husband in a cross-complaint. Each charged the other with extreme cruelty such as to cause great and grievous mental and physical suffering and anguish. Each elaborated the general charge of cruelty by page after page of particularized allegations, and the testimony protracted the recital of complaints to such a length that several hundred typewritten pages were required to contain the story of the marital infelicities of the parties. Out of this welter of opposing charges and counter-charges the trial court decided that plaintiff and her corroborating witnesses'were entitled to credence, and that defendant’s cross-complaint was not established by credible testimony. Findings of fact were drawn accordingly and a decree in plaintiff’s favor was based thereon. In this situation of conflicting testimony, and with ample credible evidence to support the court’s findings and judgment, it follows that this court will not interfere with the lower tribunal’s resolution of the conflict.

Appellant urges, however, that even if respondent produced sufficient evidence to entitle her to a decree, nevertheless divorce must be denied her on account of the showing of recrimination made by appellant. (§§111, 122, Civ. Code.) This contention is concerned principally with charges that respondent became infatuated with one Evans, that she under an assumed name received endearing letters from him, visited him in jail, gave him money and presents, procured an at-

[279]torney for him, took automobile rides with him, went to cafes and places of amusement in his company, and finally climaxed her display of infatuation for him by visiting the marriage license bureau in Los Angeles in 1938 and there with Evans filing a notice of intention to wed.

Mrs. Witaschek’s explanation of this affair casts a different light upon it. As revealed by the testimony, she had filed a divorce action prior to the one here involved. An interlocutory decree was entered in her favor in the year 1931, and she made a property settlement agreement with her husband. But thereafter, in the year 1932, she and her husband became reconciled and lived together as man and wife, with the understanding, she contended, that the old divorce decree and property settlement were thereby terminated and set aside. Unknown to her, she testified, her husband, in contravention of his representations to her that the former divorce proceedings were terminated by their reconciliation, caused a final decree of divorce to be entered in 1936. When she learned of it in May, 1938, in her frenzy and grief and meeting Evans by accident, she acceded to his importunities, and believing that her marriage to Witaschek was at an end, proceeded to the marriage license bureau with Evans and there with him made application for a marriage license. Returning to her home the same day, and with time and opportunity to view the matter more reasonably, so she testified, she decided to go no further with the Evans affair, called him by telephone and so informed him. Instead she engaged the services of an attorney and filed an action against Witaschek to set aside the interlocutory and final decrees of divorce, a suit in which she was successful, thus restoring the validity of her marriage. At no time, she protested, had she been infatuated with Evans and never had she misconducted herself with him or any other man.