30 Cal. 2d 898 | Cal. | 1947
Lead Opinion
Plaintiff brought this action for divorce against her husband on the grounds of adultery and extreme cruelty. The cause of action on the ground of extreme cruelty was stated in general terms as follows: “Willfully disregarding the solemnity of his marriage vows, defendant has treated
Defendant contends that the general finding as to his alleged cruelty was insufficient to support the judgment in the absence of a waiver of specific findings, that there was no such waiver since he objected to the proposed general findings, and that therefore the trial court committed prejudicial error in failing to make specific findings as to defendant’s cruelty.
A trial court’s duty to make findings of facts in a divorce case is predicated upon Civil Code, section 131, which provides: “In actions for divorce the trial court must file its decision and conclusions of law as in other cases. . . .” That duty, which is the same in divorce cases as in other cases (Waldecker v. Waldecker, 178 Cal. 566, 567 [174 P. 36] ; see Ungemach v. Ungemach, 61 Cal.App.2d 29, 39-40 [142 P.2d 99]) is to find ultimate rather than probative or evidentiary facts. Findings of ultimate facts are controlling unless drawn as conclusions from findings of probative facts that do not support them. (Fitzpatrick v. Underwood, 17 Cal.2d 722, 727 [112 P.2d 3] ; Quinn v. Rosenfeld, 15 Cal.2d 486, 492 [102 P.2d 317] ; Hammond Lumber Co., v. Barth Inv. Corp., 202 Cal. 606, 609 [262 P. 31]; see 24 Cal.Jur. 968.) Defendant, relying on Smith v. Smith, 62 Cal. 466, 468, contends, however, that a general finding that one spouse by cruel treat-
Defendant contends, however, that a general finding of the infliction of grievous bodily injury or grievous mental suffering by one spouse upon the other is too uncertain to support a divorce decree and that therefore specific findings of acts constituting the cruelty are necessary, when the losing party has not waived specific findings by his failure to object to proposed general findings. Defendant relies on Franklin v. Franklin, 140 Cal. 607, 609 [74 P. 155] ; Turner v. Turner, 187 Cal. 632, 635 [203 P. 109]; Perkins v. Perkins, 29 Cal. App. 68 [154 P. 483] ; Nelson v. Nelson, 18 Cal.App. 602 [123 P. 1099]; Cargnani v. Cargnani, 16 Cal.App. 96 [116 P. 306];
Defendant relies, however, on Bilger v. Bilger, 54 Cal.App.2d 739 [129 P.2d 752]; Del Ruth v. Del Ruth, 75 Cal.App.2d 638 [171 P.2d 34]; and Lucich v. Lucich, 75 Cal.App.2d 890 [172 P.2d 73], which were decided after the 1939 amendment to the Code of Civil Procedure. In the Bilger case the court was concerned with a finding “that it is not true that the defendant . . . was, is or has been guilty of extreme cruelty to the plaintiff.” It was held that this finding was too uncertain to support the judgment. A finding that a party has not been guilty of extreme cruelty is as much a finding of an ultimate fact as one that a party has been guilty of extreme cruelty, and, when cruelty has
In Del Ruth v. Del Ruth, 75 Cal.App.2d 638, 644 [171 P.2d 34], it was held that the general findings of the trial court were sufficient to support the judgment in the absence of any objection to them. The statement in that opinion that the findings would have been insufficient, had they encountered objection, was unnecessary to the decision.
In Lucich v. Lucich, 75 Cal.App.2d 890 [172 P.2d 73], the complaint set forth several specific allegations of cruelty as well as a general allegation. The trial court found that all the allegations in the complaint as to cruelty were true. The trial court also found, however, that “said acts of wrongdoing herein are such in the judgment of the Court as not to constitute or amount to extreme cruelty.” It was held by the District Court of Appeal that the findings as to the allegations of the complaint established the ultimate fact that defendant wrongfully inflicted grievous bodily injury or grievous mental suffering upon plaintiff, and that the finding that defendant’s conduct did not constitute extreme cruelty was not a finding of fact but a conclusion of law governed by an erroneous conception of extreme cruelty. The statement in the opinion that standing alone a finding of cruelty in general terms would not have been sufficient was unnecessary to the decision. Any language in Del Ruth v. Del Ruth, 75 Cal.App.2d 638 [171 P.2d 34], or Lucich v. Lucich, 75 Cal.App.2d 890 [172 P.2d 73], contrary to the holding in the present case is disapproved.
Defendant contends that the trial court erred in finding that the ranch was community property. He relies on the fact that it was conveyed to the parties by a deed designating them as joint tenants. It is settled, however, that evidence is admissible to show that a husband and wife who took property as joint tenants actually intended it to be community property. (Tomaier v. Tomaier, 23 Cal.2d 754, 757 [146 P.2d 905], and cases there cited.) There was evidence that when the parties acquired the ranch, they agreed it should be community property. Defendant contends, however, that even if it be assumed that the ranch was community property, it ceased to be such and became property owned by the parties as tenants in common by virtue of a property settlement agreement dated August 17, 1945, which provided among other things: “(4) That both parties own
The judgment is affirmed.
Gibson, C. J., Edmonds, J., Carter, J., Schauer, J., and Spence, J., concurred.
Concurrence Opinion
I concur in the judgment and in the opinion insofar as it holds that the defendant is now foreclosed from his insistence on findings of specific acts of cruelty. This is so because of his failure to demur for uncertainty to the general allegations of the complaint. (See Code Civ. Proc., § 426b.) But this is as far as the court need or should go in the determination of the appeal. The question of the effect of the failure of a plaintiff to avail himself of the right to object to general findings against him on such an issue is not involved in this case, and I dissent from the portion of the opinion which assumes to decide that question. I see no reason or justification for reaching out beyond the issues in this case to disapprove directly or otherwise such well-reasoned cases as Bilger v. Bilger, 54 Cal.App.2d 739 [129 P.2d 752, and Del Ruth v. Del Ruth, 75 Cal.App.2d 638 [171 P.2d 34],
Appellant’s petition for a rehearing was denied December 18, 1947.
