Imperial v. Imperial

SHINN, P. J. In a contested action plaintiff was awarded a divorce and community property consisting of a restaurant business and the real property in San Fernando on which the business was operated. Defendant appeals.

The complaint accused defendant of extreme cruelty. Defendant filed a cross-complaint which alleged that plaintiff had been guilty of cruelty and that "cross-defendant has committed acts of adultery with a person other than cross-complainant. ’ ’ The evidence was confined to the respective allegations of cruelty.

The principal contention is that the evidence was [310]insufficient to support the finding that defendant had been guilty of cruelty. The parties were married in Las Vegas in 1940. Soon thereafter they purchased three city lots in San Fernando and constructed a building in which they opened a restaurant. For this purpose they borrowed $7,000 on the property. From that time on plaintiff managed the restaurant, did the cooking, with help from time to time, and handled the finances. In 1949 the loan on the property was increased to $12,000. Defendant went to Lower California with a truck and engaged in buying shrimp and selling it in the states. The business did not prosper and defendant opened a restaurant in Mexicali and operated it for two or three months. The evidence with respect to defendant’s activities between 1949 and the separation in 1957 was sharply conflicting. Plaintiff testified that defendant spent almost all the time in Mexico; he seldom spent more than a week at a time at home—never as much as a month; defendant continually contracted debts which necessitated their borrowing more money which plaintiff had to pay; she had sent money to defendant at Mexicali and had never received any money from him; she continually asked defendant to remain at home and help her in the business and he refused. Plaintiff devoted all her time to the restaurant business, often working until 2 o’clock in the morning. The net returns from the business amount to $170 per month but the money is used to buy things and is not saved. She has reduced the debt on the property to $8,000; the property is worth some $35,000.

Plaintiff introduced in evidence over objection a letter from Miala Ruiz, dated Mexicali, October 11, 1956, addressed to defendant at the San Fernando address. The letter mentioned former correspondence with defendant and letters to defendant sent to Calexico. Miala sought immediate word from defendant and a meeting with him; she stated that she had obtained passports "and we can pass over to Calexico, mostly sure.” The letter read “Say hello to Alrita, the baby. Send you many kisses, and me and myself, I am sending you many, many kisses who never forget you.” The present action was filed in June, 1957.