McGann v. McGann

BRAY, J. There are three points made on this appeal from a judgment awarding defendant upon his cross-complaint a divorce on the grounds of extreme cruelty: (1) lack of corroboration of defendant’s testimony; (2) refusal of the court to admit certain testimony; and (3) abuse of discretion by the court.

Corroboration

The parties were married in 1942, while defendant, a dentist by profession, was an officer in the United States Army. The next year a son was born to them, who, at the time of the trial, was approximately 3 years of age. The parties lived together until the defendant was sent overseas in October, 1943. On October 18, 1945, defendant returned, and. except for a short stay in Brookdale, the parties lived with plaintiff’s mother in San Francisco until their separation. On December 13, 1945, defendant left plaintiff and the child and went to live with his parents. Through the intercession of a minister, whose help plaintiff had sought, defendant returned to plaintiff for a period of 10 days, and then left finally.

Plaintiff, shortly thereafter, complained for divorce on the grounds of extreme cruelty and the defendant cross-complained on the same ground.

At the trial, plaintiff testified that on the day defendant left home he told her that his father had told him to leave her, and that he had to obey his father; that later, in a telephone conversation, defendant stated that he did not love her and never had. Defendant admitted telling her that he no longer loved her, but denied that he stated he never had loved her. Plaintiff’s mother testified defendant was quiet and would sit around the house moping with his head in his hands, and that on the day the parties separated she heard [385]defendant state that he had to obey his father. On this testimony the court denied plaintiff’s prayer for a divorce, stating that there was not sufficient evidence to justify a finding of extreme cruelty; that if anything, the evidence showed desertion, which, however, had not existed for the statutory period. Plaintiff does not complain of this ruling. In fact, at argument, plaintiff contended that neither party should have been granted a divorce.

Defendant, under his cross-complaint, testified that plaintiff was cold toward him, nagged him, wrote him whining letters while overseas, turned her back on him while in bed, attempted to regulate his life and refused to permit him to go bowling with his father, invited him to leave home, made it difficult for him to practice dentistry, and attempted to have him arrested. Plaintiff contends that these acts do not constitute cruelty, especially as plaintiff denied them and explained that the so-called whining letters were written at defendant’s request that she write him about everything that was going on at home, even the unpleasant things, and that the arrest incident was due to defendant taking the family automobile without her knowledge, and her reporting it to the police as having been stolen.