Ballard v. Ballard

KAUFMAN, P. J. This is an appeal from an interlocutory decree of divorce. By plaintiff’s complaint, the court was requested to grant her a decree of separate maintenance. After denial of the defendant-husband’s motion for a change of venue, he filed his verified answer and cross-complaint for divorce on the ground of mental cruelty. The court denied plaintiff relief on her complaint for separate maintenance and granted the defendant a divorce on his cross-complaint and [81]made certain findings concerning the property of the parties. This appeal by the plaintiff-wife is confined to the divorce only. She argues that: 1) the evidence is insufficient to sustain the finding that the respondent was a resident of San Mateo County; 2) the evidence is insufficient to sustain the finding of extreme cruelty; and 3) she was denied a fair trial because of the trial court’s aversion to actions for separate maintenance. There is no merit in any of these contentions.

Appellant first argues that the court erred in granting a divorce to the respondent husband because there was no independent corroboration of the jurisdictional requirement of residence. This contention is based on respondent’s motion for a change of venue which was supported by his affidavit stating that he was an actual and bona fide resident of the City and County of San Francisco. At the hearing, the respondent testified that because of his work as a traveling salesman, he had spent a great deal of time living in various motels in San Francisco but that he had in fact maintained his residence in San Mateo County and had all of his mail directed to a post office box there. His testimony was corroborated by that of the witness Hardy. The trial court went into the question of residence and indicated that it was a matter of intent. The court found that the respondent was a resident of San Mateo County. We can only conclude that this finding is supported by the evidence and adequately corroborated. as required by section 128 of the Civil Code. We also note that, according to the pretrial order, the parties stipulated to the jurisdictional facts (cf. Muther v. Muther, 212 Cal.App.2d 778 [28 Cal.Rptr. 200], holding circumstantial evidence of residence as sufficient corroboration where the answer admitted the jurisdictional requirements).

As to appellant’s second contention relating to the sufficiency of the evidence to sustain the finding of extreme cruelty against her and the corroboration thereof, it is not the function of this court to reweigh conflicting evidence and to redetermine the matter at hand. Where a divorce is sought upon the ground of extreme cruelty, the infliction of grievous mental suffering is a question of fact to be determined from the circumstances of the ease and the decision reached by the trial court will not be disturbed unless the evidence is so slight as to indicate an abuse of discretion (Visini v. Visini, 212 Cal.App.2d 183 [27 Cal.Rptr. 782]).