Dooley v. Dooley

WOOD (Fred B.), J. Plaintiff has appealed from an interlocutory decree of divorce granted in her favor upon the ground of extreme cruelty. It awarded her over 70 per cent in value of the community property (including the family dwelling and a summer home, valued by her at $17,000 and $7,600, respectively); gave her custody of the minor children (aged 18, 15, 11 and 6 at the time of the trial), directing defendant to pay her for their support $80, $75, $50 and $45 per month, respectively; and awarded her no alimony but reserved jurisdiction to do so in the future.

Plaintiff appealed from the whole of the judgment but in her opening brief confined the appeal to the denial of alimony. The reservation of jurisdiction clause reads as follows: “That no alimony be awarded to plaintiff at this time and that plaintiff’s right of alimony be and the same is hereby reserved to plaintiff to be exercised in the event of a substantial improvement in the financial circumstances of the defendant, but said right shall not be exercised until and except there be such substantial improvement.”

[779](1) Plaintiff complains that she did not get a fair trial; i.e., that the trial court refused to hear all the evidence concerning the circumstances of the parties, rendered its decision before having all the evidence before it, and failed to hear all the evidence on extreme cruelty.

Our examination of the record does not bear out these contentions.

During the direct examination of plaintiff the trial judge indicated it was unnecessary to go into the detailed items of plaintiff’s support needs, adding “because I know with that income [$635 per month, gross; $538 or $539, net] it is just a question of trying to make it go around. You can’t stretch the pay check.” Plaintiff’s counsel thereupon indicated his concurrence and asked plaintiff the minimum amount needed for herself and the children. She said it would take from $350 to $360 per month. It does not appear that plaintiff was precluded from offering any evidence she had concerning her own needs.

Later, while court and counsel were discussing the division of the community property, plaintiff’s counsel said, “. . . could we keep the matter of the division open while we present further facts to your Honor?” Defendant’s counsel, responding, indicated a desire to submit the matter. Whatever plaintiff’s counsel meant by the words “further facts” he did not go ahead with their presentation except to ask defendant a few questions concerning assets and income, if any, that had not already been presented to the court. Here, again, we see no curtailment. It is apparent that both parties, when they submitted the cause, understood they were doing so upon the evidence theretofore introduced.