Difloe v. Difloe

PETERS, P. J. The trial court granted Frank Difloe a divorce from Helen Difloe, finding that the wife was guilty of extreme cruelty in that “since on or about Christmas 1953 defendant [wife] has failed and refused to permit plaintiff to see or visit the minor child of the parties, . . . and has concealed the child’s whereabouts from the plaintiff, without any justification on defendant’s part or provocation on plaintiff’s part.” Helen Difloe appeals.

The plaintiff is a chief gunner’s mate in the United States Navy, on active duty. During the times here involved he was in San Francisco on relatively rare intervals, and but for short periods of time. The parties were married on March 3, 1945, and separated on January 11, 1952. There is one child of the marriage. In December of 1955, the husband filed the present action for divorce, alleging extreme cruelty. In 1953 the husband brought a prior action for divorce, which was denied by the trial court. In that action, without a cross-complaint by the wife, or without any claim for affirmative relief by her, the trial court granted the wife custody of the child, with reasonable visitation rights in the husband, and awarded the wife $200 per month alimony and support money. In the present action the cruelty charged is that the wife failed and refused to permit plaintiff to see or to visit the minor child of the parties and concealed that child from the plaintiff. As already pointed out, the trial court found that that charge was supported, awarded the custody of the child to the wife, granted the husband reasonable visitation rights, and awarded attorney’s fees to the wife. The wife appeals, her major contention being that the finding above quoted is unsupported.

The factual situation is somewhat unusual. The so-called separate maintenance decree awarding the wife custody of the child and granting the husband reasonable visitation rights was entered in August of 1953, after a trial in June of 1953. At that time the parties were living in a multiple dwelling project on Pali Street in San Francisco. The wife and child continued to live there after the separation of the parties. The husband went to sea. Early in December, 1953, the wife moved to Folsom Street. She did not inform her husband of her change of address, although, admittedly, she [49]knew how to communicate with him. On Christmas Eve o£ 1953 the husband arrived in San Francisco and proceeded to their former address on Pali Street to visit his child and to bring her some Christmas gifts. He discovered that his wife had moved and that the then tenant of the premises did not know her new address. He made no inquiry of other tenants in the apartment. He did look in the telephone directory, but his wife’s name was not listed. The parties did not have a telephone at the Pali Street address, but the wife did secure a telephone at the Folsom Street home, but it was not listed in the directory until that book came out in July of 1954. The husband had to leave on December 27th and did not return to San Francisco until March of 1954, when he again looked through the appropriate directories and could not find her address.