295 P. 339 | Cal. | 1931
This is an action to have it declared that the marriage between the parties is void, for the custody and support of minor children and for a division of property acquired during the marriage relation.
The plaintiff is the niece of the defendant, the latter being a brother of the full blood of the plaintiff's father. The parties participated in a ceremony of intermarriage at Redwood City on July 22, 1919. To this union were born two children, a daughter aged seven years and a son aged five years at the time the present action was commenced in February, 1927.
The court found that neither party knew at the time of said purported marriage, nor at any time thereafter until their separation on July 3, 1926, that the marriage was incestuous or in conflict with the laws of the state; that the *356 plaintiff mother is a fit and proper person to have the custody and control of the children and that the parties, subsequent to said marriage, accumulated by their joint efforts, and while they were living together as husband and wife, certain real property situated in the city of Palo Alto. On conclusions of law from the facts found the court entered judgment declaring said marriage null and void, awarded the custody of the children to the plaintiff, divided said real property equally between the parties and reserved the question of the support and maintenance of the children for further consideration upon motion of either party.
[1] On this appeal from the judgment the defendant contends first, that the complaint fails to state a cause of action in this, that it purports to have been filed under section
[2] It is next contended that in an action under section
Finally, it is contended that the evidence does not support the findings. [3] It is asserted that on the record the custody of the children should have been awarded to the father instead of to the mother. This matter is so peculiarly the province of the trial court that its determination will not be disturbed except in the face of a clear abuse of discretion, which we do not find here. [4] It is also claimed that the evidence shows without conflict that the real property divided equally between the parties was acquired by the defendant from funds owned by him before the marriage ceremony took place. This contention is not supported by the record. At the trial the defendant attempted so to establish, but the evidence on the subject is not of that conclusive character as to require a reversal. Furthermore, it appears that on July 22, 1926, the defendant sued the plaintiff for a divorce in Santa Clara County. In his verified complaint he alleged that the real property, which was divided between the parties in the present action, was "acquired by him from his earnings since the marriage of said parties". This declaration, when considered with the other evidence on the subject, was sufficient to create a conflict to be resolved by the trial court.
The judgment is affirmed.
Richards, J., Seawell, J., Curtis, J., Preston, J., Langdon, J., and Waste, C.J., concurred. *358