Silverstein v. Silverstein

NOURSE, P. J. This is an action for divorce terminating in an interlocutory decree in favor of the wife, plaintiff, and the husband appeals.

The complaint is in two counts, the first on the ground of wilful neglect, the second on the ground of extreme cruelty stated in general terms. The answer denies the material allegations of both counts to which is added a cross-complaint for divorce on the ground of extreme cruelty stated in general terms. Both the complaint and cross-complaint contain allegations that there is community property of the parties among which is specifically mentioned in both pleadings: “Home at 1669 Silver Avenue, San Francisco, California.” Both parties pray for an equitable division of the community property.

The court did not make separate findings of fact and conclusions of law, but included the following words in its Interlocutory Decree of Divorce and Award of Community Property : “. . . the court finds that all the allegations contained in the ‘Second Cause of Action’ of plaintiff’s complaint are true, and that the allegations contained in paragraph VI of defendant’s cross-complaint heretofore filed in these proceedings are not true, and that plaintiff is entitled to an interlocutory decree of divorce against the defendant upon the ground of defendant’s extreme cruelty and to an award of a portion [874]of the community property of the parties as hereinafter specified, and that plaintiff is likewise entitled to alimony in the amount and upon the conditions hereinafter set out. ’'

Of the community property the home at 1669 Silver Avenue was awarded to the wife, her alimony of $40 a month to cease if she should dispose of that home or cease to make her permanent residence therein. The custody of the two minor children was awarded to plaintiff.

Appellant’s first point is that the evidence is insufficient to prove his extreme cruelty. The evidence is conflicting. The wife testified, fully corroborated by both children of the parties, the daughter over nineteen and the son nearly eighteen, that for many years she had great difficulty in getting money from her husband especially for her personal needs and that he humiliated her continually in the presence of the children, calling her dumb and ignorant, telling her to go away and get a divorce, reviling her and threatening her with violence. This evidence is too clear and express to require literal quotation. Appellant, as only witness in his own behalf, denied these charges and ascribed the arguments with his wife to her wish for expenditures beyond his income and to her desire to live in Los Angeles near her family. Appellant argues that his limited salary and financial reverses were the crux of the question, and that even undue penuriousness of a husband towards his wife does not constitute extreme cruelty, citing Parnay v. Parnay, 55 Cal.App.2d 703 [131 P.2d 562]. The case is not in point. There the divorce had been denied by the trial court and the District Court of Appeal affirmed, holding that undue penuriousness of the husband did not constitute extreme cruelty as a matter of law. Here the evidence showed other improper conduct of the husband towards the wife over and above his lack of liberality towards her, and the trial court found that his conduct was a ground for divorce.