137 P. 27 | Cal. | 1913
This is an action for divorce on the ground of desertion. Judgment was given decreeing that plaintiff is not entitled to a divorce. We have an appeal *470 here by plaintiff from an order denying her motion for a new trial.
Though defendant filed an answer denying the allegation of desertion, he in no way opposed the claim of plaintiff to a divorce on that ground on the trial, and the findings of the judge of the trial court show that he was of the opinion that there was a sufficient showing of both connivance and collusion to warrant him in denying a divorce. (Civ. Code, secs. 111, 112, and 114.) It is not necessary to go into the question whether the learned judge was correct in this conclusion, for we are satisfied that the order denying a new trial must be affirmed for another reason.
This action was commenced June 16, 1911. The allegations as to desertion were contained in paragraph II of the complaint and were "that during the month of July, 1909, and without any cause or provocation whatsoever, . . ., the defendant willfully deserted and abandoned the plaintiff herein, and for more than one year last past has continued to willfully and without cause desert and abandon the said plaintiff." The trial court found "that each and all of the allegations contained in paragraph II of the complaint are untrue." If this finding has sufficient support in the record, it precludes a reversal, regardless of all questions of connivance and collusion.
The parties, who have been husband and wife ever since December 5, 1893, separated on July 29, 1909, and have never lived together since the last named date. On June 8, 1909, they had entered into a most carefully prepared written agreement, to "operate as and be a complete adjustment and settlement and division of all property rights of the parties." By this agreement certain real and personal property of apparently considerable value was set apart to plaintiff, and defendant agreed to pay to plaintiff during her life, or until, in the event of a divorce, she remarried, five hundred dollars per month for her support and maintenance, and the further sum of one hundred and fifty dollars per month for the support, maintenance, and education of their minor daughter, so long as such daughter elected to live with the mother and until she became of age. It was expressly declared that the agreement was not intended as an agreement for separation or for divorce, and was to be binding whether the parties lived *471
together or apart. On July 29, 1909, defendant left the family home, telling plaintiff that he thought it would be better that they separate entirely. The evidence shows that the parties had not been living happily together for many years prior to this separation. Plaintiff in response to a question by the court as to how they came to separate at that time said "because we could not get along together." She at no time claimed to have objected in any way to the proposed separation. A review of the record satisfies us that there is ample support for a conclusion that the separation in July, 1909, was by mutual consent of the parties. It is not necessary that such a consent should be expressed in writing, or even expressed in words. It may be implied from circumstances which tend to show the plaintiff's consent, or that the separation was not against her will. (SeeMcMullin v. McMullin,
The only thing capable of changing the character of the separation that is suggested by the evidence is a possible effort on the part of plaintiff for reconciliation and restoration. Section 101 of the Civil Code provides that "consent to a separation is a revocable act, and if one of the parties afterward, in good faith, seeks a reconciliation and restoration, but the other refuses it, such refusal is desertion." It may be conceded that plaintiff was entitled to show such an effort for reconciliation and restoration notwithstanding the absence of specific allegation in that behalf in the complaint, the ultimate *472
fact of desertion being alleged. (Howard v. Howard,
The order denying a new trial is affirmed.
Sloss, J., and Shaw, J., concurred.