Farmer v. Farmer

MARKS, J. This is an appeal from an interlocutory degree entitling plaintiff to a divorce from defendant after the lapse of the proper period of time.

Plaintiff filed his complaint seeking a divorce on the ground of extreme cruelty. Defendant answered denying the cruelty and filed a cross-complaint seeking separate maintenance on the ground of plaintiff’s cruel treatment of her, but not for a divorce.

The evidence introduced by the respective parties is conflicting and irreconcilable.

The parties were married in 1921 and finally separated in 1945. Their married life, especially the last years of it, was a stormy one. The evidence produced by plaintiff shows that defendant had a quick and ungoverned temper; that she continually nagged him and frequently quarreled with him calling him vile names; that she threatened to ruin him financially, to “bury him” and to kill him and members of his family. It is also shown that defendant often drank whiskey, wine and beer to excess and became intoxicated; that during such periods of intoxication she was very abusive of plaintiff and her actions were so immodest as to cause plaintiff great humiliation; that her treatment of him caused him mental anguish and suffering.

Defendant’s evidence indicates that she did drink, very occasionally to excess, but that the liquor was furnished to her [537]by plaintiff; that plaintiff himself drank to excess and on occasions became very drunk; that plaintiff strpek her with his fist and slapped her with his open hand and otherwise was cruel to her so that her life with him, at least during the five years preceding their last separation, was unendurable.

It is obvious that the evidence would have supported a judgment in favor of plaintiff on his complaint, qr of defendant on her cross-complaint, whichever evidence the trial court accepted as true. The trial judge found in favor of plaintiff and against defendant and entered judgment accordingly. Thus we have here the familiar situation of sharply conflicting evidence, which conflicts the trial judge has resolved in favor of plaintiff and against defendant. This is a duty imposed upon a trial judge, and not upon an appellate court. (Keener v. Keener, 18 Cal.2d 445 [116 P.2d 1] ; Tomaier v. Tomaier, 50 Cal.App.2d 516 [123 P.2d 548] ; McFall v. McFall, 58 Cal.App.2d 208 [136 P.2d 580].)

In the face of this firmly established rule that conflicts in the evidence are finally settled in the trial court, eounsel for defendant advance the argument that it is not controlling here. They state that defendant did not use intoxicating liquor before her marriage, but that plaintiff did and continued to use during their entire married life; that he kept liquor on hand, gave it to defendant and offered no objection to her drinking; that plaintiff knew defendant became irritable and cross when drinking and that he did not object to her consuming intoxicants; that all the difficulties between them arose when they were drinking together and that his drinking with her and furnishing her liquor was the cause of their difficulties; that this amounted to the defense of recrimination which should have defeated plaintiff’s action for divorce.