Vercelli v. Vercelli

SHOEMAKER, J. Defendant wife appeals from the interlocutory judgment of divorce awarded plaintiff husband, and from the order denying her motion made under Code of Civil Procedure, sections 663 and 663a, to set aside the judgment and enter a different judgment. The interlocutory judgment was granted on the ground of extreme cruelty and also gave physical custody of the 5-year-old daughter to the husband. All relief sought by defendant on her cross-complaint was denied.

Appellant first contends that the evidence was insufficient to support the finding that respondent was entitled to a divorce upon the ground of extreme cruelty. This contention is without merit.

It would serve no purpose to recount the evidence herein. We have read the record and find the evidence as to the cruelty of each party to the other is in conflict. We find ample evidence to support the allegations of the plaintiff as to his wife’s cruelty, and the pain and suffering it caused him. His testimony is strongly corroborated and the court’s ultimate finding that plaintiff was entitled to a divorce on the ground [104]of defendant’s extreme cruelty is abundantly supported by the evidence adduced. (See Waltz v. Waltz (1957) 150 Cal.App.2d 731 [310 P.2d 695].)

Appellant next asserts that the evidence of respondent’s extreme cruelty was uncontradicted and that the court was therefore compelled to award her a divorce. She relies upon the rule set forth in Polk v. Polk (1942) 50 Cal.App.2d 653, 656 [123 P.2d 550], and Lucich v. Lucich (1946) 75 Cal.App.2d 890, 896 [172 P.2d 73], that the court is not authorized to deny a divorce where the evidence of a party, adequately corroborated, establishes a cause of action for divorce.

Appellant's testimony was to the effect that respondent had cruelly treated her and caused her pain and suffering; however, such statements were in large measure contradicted by her own statements made both prior to the separation and after the commmencement of the action. She also asserts that respondent, in the original divorce complaint filed by him, recommended that the custody of the parties’ minor child, Lisa, be awarded to appellant. She asserts that his act of subsequently amending the complaint to seek custody in himself constituted extreme cruelty.

In reference to his decision to seek custody of Lisa, respondent testified that appellant had agreed, shortly after moving from the family home, to allow Lisa to stay with respondent’s parents until she could obtain a suitable babysitter. This arrangement eventually became a permanent one, and Lisa was still staying with respondent's parents at the time of trial. Respondent testified that appellant made few telephone calls or visits to see the child during this period, and that on one occasion when the child was sick, appellant refused to go and see her. Respondent testified that his decision to amend his complaint and seek custody of the child was motivated by his feeling that appellant had shown no interest in the child and that she would receive better care and supervision if he retained her custody.