Titensor v. Titensor

YORK, P. J. Plaintiff husband filed the instant action for divorce on February 26, 1945, grounded on the desertion of defendant wife as of November 23, 1943. Among other things the complaint herein alleges that on November 30, 1943, de[207]fendant wife “wrongfully” commenced an action for divorce against said plaintiff on the ground of cruelty, being suit numbered D-249656 (hereinafter referred to as the first action) ; that on or about December 8, 1944, the trial court rendered its judgment in said first action denying a divorce to said wife, which judgment has never been appealed from, vacated, modified or set aside, and is now final; that in said first action the court found that the wife separated from the husband about November 23, 1943, and from then up to and including November 23, 1944, she remained so separated from said husband, against his will and without his consent.

In her answer filed herein, defendant denied that she “wrongfully” commenced the first action; admitted that it was commenced and tried, and alleged that all the facts were not placed before the court as to the alleged cruelty of said husband. Thereafter, having obtained leave therefor, defendant wife filed her cross-complaint herein, in which she alleged a course of cruel treatment inflicted upon her by plaintiff husband during the year 1943, as a result of which, coupled with his repeated threats against her life, she left the family home on November 23, 1943; that by such conduct, plaintiff deserted defendant, “still continues to desert and abandon her, and to live apart from her without just cause and without her consent. ’ ’ To his answer to said cross-complaint, plaintiff husband attached, as Exhibit A, a copy of the findings of fact and conclusions of law made in the first action, and pleaded the judgment rendered therein as res judicata to the matters alleged in the said cross-complaint.

The trial court found herein that “plaintiff and cross-defendant inflicted upon defendant and cross-complainant a course of cruelty; that he drank excessively; that when under the influence of alcohol he became abusive and made threats against her life, and further that he drank to such an extent that he was arrested for driving an automobile while under the influence of alcohol in the City of Glendale; that because of such course of conduct defendant' and cross-complainant was forced to leave the family home. ’ ’

From that portion of the judgment which was thereafter entered awarding an interlocutory decree of divorce to defendant and cross-complainant and denying a divorce to him, plaintiff prosecutes this appeal.