Lyons v. Lyons

DORAN, J. This is an appeal from an interlocutory judgment of divorce granted to the plaintiff on the ground of extreme cruelty, and dividing certain real and personal property. found by. the trial court to be community property. The judgment assigned to plaintiff a one-half interest in community homestead, furnishings and automobiles; but assigned to plaintiff absolutely, restaurant property known as the “Toby Jug,” life insurance, and stocks and bonds.

It is appellant’s contention that the judgment should be •reversed because, (I) “The divorce should have been denied by reason of recriminatory acts committed by the respondent”; (II) “The trial court erred in finding that” the “Toby Jug,” held in joint tenancy, was community property; (III) “The trial court grossly abused its discretion in the division of the community property,” and (IV) “The trial court committed prejudicial error by the admission of evidence over the objection of counsel.”

The trial court found that “especially during the last several months preceding the filing of this action,” the de[182]fendant wife had entered the Toby Jug restaurant conducted by the plaintiff husband, and “on numerous occasions drank to excess, and . . . created disturbances by shouting, both at the plaintiff and at the patrons of the restaurant, by using threats and profanity.” The wife was also found to have “frequently and without cause or provocation, accused plaintiff (husband) of association with other women and of infidelity.” These acts were found to have “caused plaintiff great harm and injury mentally and physically and caused plaintiff to suffer irreparable financial loss in the conduct of his business, and caused plaintiff to lose considerable patronage.” The court found that the allegations of cruelty on the part of the plaintiff husband were untrue.

Appellant’s contention that “The divorce should have been denied by reason of recriminatory acts committed by the respondent,” is in effect nothing more than an attack on the sufficiency of the evidence. Certain items of evidence are set forth in appellant’s brief in support of this point. However, as said in respondent’s brief, the trial court “chose to believe the respondent’s witnesses and after weighing the weight and sufficiency of the evidence rendered a just decision in accordance with its discretionary powers.”

The trial judge might conceivably have found that the plaintiff was entitled to a divorce; that the defendant cross-complainant was entitled to a divorce; or that neither party was entitled to such relief. And, under the well established rule, an appellate tribunal would be obliged to sustain such a finding where the record disclosed substantial evidence in support thereof. In the instant ease, as in most litigation of this type, there, was a direct conflict in the evidence. Each party made serious accusations against the other and offered evidence to sustain such allegations. There can be no doubt that the present record reveals substantial evidence in support of the trial court’s finding that the husband was entitled to a divorce.