200 P. 730 | Cal. Ct. App. | 1921
In this action the plaintiff sought a divorce. The defendant answered and filed a cross-complaint for separate maintenance. The cross-complaint alleged habitual intemperance and adultery on the part of plaintiff. The case was tried and the court gave judgment against the plaintiff and in favor of the defendant. The court found both the allegations of adultery and habitual intemperance to be true. The grounds of the appeal are that the evidence does not support certain findings.
Finding VI is as follows: "That plaintiff, at divers times, did commit adultery with one Rose L. Geist Lee, formerly Rose L. Geist, at the city of Norfolk, Nebraska, and elsewhere; that each and all of said acts of adultery were committed without the consent, connivance, procurement, or previous knowledge of defendant, and that defendant has not lived or cohabited with plaintiff since she became cognizant of the commission by plaintiff of the said several acts of adultery."
In the case of Goldsmith v. Goldsmith,
[2] With reference to the degree of proof required to establish adultery, we may quote the language of the court inHartshorn v. Hartshorn (Okl.),
In the case at bar, the principal evidence to support finding VI is a letter written by Koenigstein to Rose L. Geist Lee. It refers to a telegram sent by her and which Mrs. Koenigstein had opened. The letter is a long one and it would serve no useful purpose to quote it here in full, but throughout it contains a strong inferential admission that the defendant and "Dearest Rose," to whom it is addressed, had occupied so close a relationship as to permit a reasonable and just man, viewing the matter with guarded discretion, to be satisfied that both opportunity and the desire to commit adultery had existed between them.
From the letter it appears that the defendant had visited "Rose" on different occasions in Omaha; the writer asserts that he had been square with her; had sent her ten dollars a week since she had left; that he "had no one else all the time I have been with you"; that somebody had "spilled the whole thing" of defendant going to see her.
The trial court, no doubt, also considered the fact that this letter was written by a married man to one not his wife and the entire circumstances, involving guilty conduct of the defendant, such as his immediate departure from his home as soon as he knew that his wife had the information he mentioned in his letter to "Rose."
[3] Where there is substantial evidence to support the decision of the trial court, it is a familiar rule that its finding will not be disturbed. (Clopton v. Clopton,
The judgment is affirmed.
Finlayson, P. J., and Works, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 22, 1921.
All the Justices concurred, except Shaw, J., who was absent.