Correia v. Correia

CONLEY, P. J. Clara A. Correia sued her husband for separate maintenance. lie in turn filed a cross-complaint for [370]divorce. After trial the court determined that the plaintiff was entitled to judgment against defendant for separate maintenance on the ground of extreme cruelty but did not award a divorce to appellant on his cross-complaint.

The defendant and cross-complainant appeals, contending that the complaint is fatally defective, that the evidence does not justify the court’s amended finding that he was guilty of extreme cruelty which caused grievous mental suffering and that such finding is void because it is outside the issues.

Section 137 of the Civil Code sets forth the requirements for a separate maintenance action as follows.

1 ‘ When the husband or wife has any cause of action for divorce as provided in this code, or the husband or wife wilfully deserts the wife or husband, or when the husband or wife wilfully fails to provide for the wife or husband, he or she, as the case may be, may, without applying for a divorce, maintain in the superior court an action against her or him, as the case may be, for the permanent support and maintenance of herself or himself, and may include therein at her or his discretion an action for support, maintenance and education of the children of said marriage during their minority. Such action shall be known as an action for separate maintenance.”

Thus, a wife may sue for separate maintenance if the husband wilfully deserts her, or wilfully fails to provide her with the necessaries of life, or if she has a cause of action for divorce. One of such causes of action for divorce is, of course, extreme cruelty (Civ. Code, § 94), and if physical suffering by bodily injury is not involved, the essence of this charge is “grievous mental suffering.” (Negley v. Negley, 82 Cal.App.2d 355 [186 P.2d 151] ; Farrand v. Farrand, 77 Cal.App.2d 840 [176 P.2d 773]; Burt v. Burt, 187 Cal.App.2d 36 [9 Cal.Rptr. 440]; Nason v. Nason, 48 Cal.App.2d 500 [120 P.2d 37] ; Sallee v. Sallee, 63 Cal.App. 54 [218 P. 69] ; Zartarian v. Zartarian, 47 Cal.App. 90 [190 P. 196].)

The complaint in this ease, without separately stating such contentions, is obviously based on two theories, failure to provide, and extreme cruelty. In this connection it is alleged:

“That during all the married life of said parties herein, Defendant has been cold and indifferent toward Plaintiff: That all of said time Defendant has neglected, failed and refused to provide Plaintiff with the Common necessities of life; That on many and numerous occasions Defendant has