37 Cal. 364 | Cal. | 1869
The evidence was, in our opinion, sufficient to authorize the Court to grant a divorce on the ground of extreme cruelty. The conduct of the plaintiff was not free from fault, but it was not of such a character as to excuse the defendant’s acts of personal violence.
The common property consisted of a house and lot, worth aboút three thousand five hundred dollars; household furniture, worth about one thousand dollars, and a horse and buggy, worth about four hundred and fifty dollars.- The defendant is a practicing physician, having an income of about one thousand eight hundred dollars per annum. The Court awarded to the plaintiff the house and lot and the household furniture, and ordered the defendant to pay her monthly the sum of seventy-five dollars, and counsel fees. The custody of the three younger children was given to the plaintiff, and the two older children were left in the custody of the defendant. The Act in relation to husband and wife provides, that when a “decree of divorce is rendered on the ground of adultery or extreme cruelty, the party found guilty thereof shall only be entitled to such portion of the common property as the Court granting the decree may, in its discretion, from the facts of the case, deem just and allow, and such allowance shall be subject to revision on appeal, in all respects, including the exercise of discretion by the Court below.” (Stats. 1857, p. 199.) Looking at the decree in the light of surrounding circumstances, and having due regard to the welfare of the children, we cannot say that there was any abuse, or even improper exercise, of discretion in the disposition of the common property. The lot was too small to be divided without material injury;, .and a sale, in order that the proceeds might be divided, would deprive the younger children of a home. The welfare of the children is a matter of paramount importance in settling the terms of the decree in respect to the division of the common property and the payment of alimony. There was no evidence in
Cause remanded, with directions to the Court below to modify the judgment by reducing the monthly pay to fifty dollars, and remittitur ordered to issue forthwith.
Mr. Justice Crockett, having been of counsel, did not sit in the cause.
Mr. Justice Sprague dissented