Herrmann v. Herrmann

SHINN, P. J. We have for consideration an appeal of Lena Herrmann from a modified interlocutory decree awarding Ernest Herrmann a divorce upon the ground of cruelty and a cross-appeal by Ernest from the modified decree. Upon the appeal of Lena it is contended that there was insufficient evidence to warrant a finding that she had been guilty of conduct which caused Ernest mental or physical suffering and that she should have been awarded a divorce upon her cross-complaint which accused Ernest of cruelty. Upon his appeal Ernest contends that the court committed error in declaring that the home of the parties was owned in joint tenancy and in making findings contrary to those made originally with respect to money advanced by Lena. Neither appeal is meritorious.

The briefs of Lena do not contain an adequate statement of the evidence pertaining to the finding that she had been guilty of cruelty. This is not an unusual practice in the preparation of briefs. The apparent reason for the omission is that a full and fair statement of the evidence would have refuted the argument that it was insufficient to support the finding. The principal argument on Lena’s appeal is that if Ernest suffered mentally, lost weight, became nervous and ill, and so distraught that he found it impossible to live with her, it was due to his having lost a great deal of money which he had loaned his son and not to any conduct upon her part. At the same time she contends that if the court had accorded her evidence the same weight given to the evidence of Ernest, she would have been granted a divorce. A brief statement of the evidence will suffice to show that there was substantial evidence to prove that Lena’s wrongful conduct caused Ernest extreme mental suffering.

The parties were in their sixties when they intermarried in 1951, after a brief acquaintance. Each had a grown son as issue of a former marriage. Ernest was from Wisconsin, where he had done well in the manufacture of cheese. He had [232]an adequate income from securities and followed no occupation. Although conditions were tranquil for a time it was but a year and a half when Ernest left the nuptial bed. In another two years the parties were in court.

At the time of the marriage Ernest owned a fully furnished two bedroom house with living room, bathroom and kitchen; Lena insisted on having a larger house which Ernest bought for $21,500; title was placed in joint tenancy because Lena said that was necessary under California law. Ernest understood that the joint tenancy would “take effect” after his death. The furniture was purchased at a cost of between $6,000 and $7,000 of which Lena contributed a part.