Bause v. Bause

FOURT, J. This is an appeal from an interlocutory decree of divorce.

On January 23, 1964, Odessa R. Bause (hereinafter referred to as wife) filed a complaint in divorce against Lawrence John Bause (hereinafter referred to as husband). The husband answered the complaint on February 3, 1964, and filed a cross-complaint for divorce. An answer to the cross-complaint was filed February 25, 1964. No demurrers were filed. None of the pleadings nor any of the pretrial papers contain any reference to or claim of condonation by either party. Trial was had commencing November 29, 1965, and continuing on following days. Findings of fact and conclusions of law and judgment were signed and filed on December 9, 1965. The judgment provided, in effect, that the husband be .•awarded a divorce from the wife, that the community property be divided as stated and set forth in the decree, that the husband pay a specified sum for attorney’s fees for the wife, that the husband pay to the wife the sum of $3,600 and an additional sum of $480.

Some of the facts are as follows: The wife was a weight lifter and had worked on occasions in a taxi dance hall. She frequently went to dances and had breakfast with her friends from 4 to 6 a.m. after the dances. The husband related many acts of cruelty committed upon him by the wife, including, but not limited to, her striking him with thrown [466]objects, throwing liquor into his face, kicking his body with force, swearing at him violently, slapping him and getting drunk. His testimony with reference to many of the acts recited as cruelty were corroborated by the testimony of the wife’s sister and a half-sister. Furthermore, the wife admitted that she had struck and slapped her husband at a party.

The wife, of course, testified that the husband had been very cruel to her. However, her credibility was seriously questioned for she, in effect, admitted that she had stated untruths in the order to show cause proceedings and at other times and occasions. In fact her own attorney, in argument after all of the evidence was in, stated to the judge, “. . . it is clear that in many facts Mrs. Bause in the past has not stated the truth, . . .” The husband contradicted in large part what the wife stated with reference to any acts of cruelty. It was for the trial court to pass upon the credibility of the witnesses. (Polk v. Polk, 50 Cal.App.2d 653, 657 [123 P.2d 550] ; Church of Merciful Saviour v. Volunteers of America, 184 Cal.App.2d 851, 856-857 [8 Cal.Rptr. 48].)