190 Cal. App. 2d 771 | Cal. Ct. App. | 1961
This is an appeal from a judgment denying a default divorce decree.
The complaint herein alleges two causes of action for divorce; one on the ground of extreme cruelty and the other on the ground of wilful desertion. The complaint alleges that the 2-year-old son of the parties was in the custody of his mother, the defendant, who was a fit and proper person to have his custody, and prayed that she be awarded custody subject to the plaintiff’s right of reasonable visitation. The default of the defendant was entered. Thereupon the plaintiff presented evidence in support of the allegations of his complaint ; testified preliminarily that his son was living with the defendant and it was his desire that she continue to have custody; then, as proof of extreme cruelty, testified that it had come to his attention that the defendant was living with another man and the child was living in the same household with them. This disclosure and the plaintiff’s expressed desire that his child should remain with an adulterous mother
After presentation of the foregoing testimony the court reiterated his intention to require the defendant to appear before him in order that she might have an opportunity to be heard on the child custody issue; stated that there was enough prima facie proof to grant a divorce decree; continued the hearing; and advised the plaintiff that he did not have to return for the purpose of obtaining a decree.
At a subsequent date the defendant appeared, accompanied by the plaintiff’s attorney, and testified that since her marriage she never had lived with any man other than her husband ; that the man her husband spoke of was a friend of hers; that she had kissed this man; that he never had been in her house; that she attended dances with her husband’s aunt while he was away; and that she danced with a lot of boys at these dances. During the course of this hearing the plaintiff’s attorney admitted that the evidence did not prove adultery ; that the plaintiff’s testimony raised only a suspicion of adultery. The court observed that under the then state of the evidence the plaintiff’s testimony did not prove extreme cruelty. Thereupon plaintiff’s attorney reminded the trial judge of the latter’s previous declaration that the plaintiff’s testimony established a prima facie case for divorce. In reply the trial judge indicated that the state of the record had changed. The plaintiff’s testimony respecting what he had heard about his wife’s conduct, which his attorney admitted established no more than a suspicion of adultery, was wholly
The plaintiff claims that he was entitled as a matter of law to a judgment of divorce on the evidence presented. In support of his position he relies upon the general rule that the uncontradicted and unimpeached testimony of a witness tending to establish an issuable fact may not be arbitrarily disregarded by the trial court (Hayward v. Rogers, 62 Cal. 348, 372; Shepard v. Shepard, 65 Cal.App, 310, 314 [223 P. 1012]), and contends that the plaintiff’s testimony establishes extreme cruelty and wilful desertion. However, there was evidence before the trial court which contradicted and impeached the plaintiff’s testimony. The defendant testified that she and the plaintiff had not been separated for two years ; that they had lived together for two weeks during the previous year; and thus contradicted the plaintiff’s testimony. Under established principles the court was entitled to conclude that the plaintiff had wilfully testified falsely and reject the
To establish a cause of action for desertion it must be proven that the defendant voluntarily separated from the plaintiff with intent to desert, and that such separation continued for a period of one year. (Civ. Code, §§ 95, 107; Fallon v. Fallon, 83 Cal.App.2d 798, 803 [189 P.2d 766].) The evidence on this issue did not satisfactorily establish whether the defendant deserted plaintiff or the plaintiff deserted the defendant. There is no evidence as to when the act of separation took place. Testimony that the parties lived apart for two years does not require the conclusion that the defendant’s refusal to live with the plaintiff “as a wife would” occurred at the beginning or at the end of this period. Furthermore, the evidence supported the inference that the separation of the parties was due to the overseas assignment of the plaintiff and not to any willful act of desertion on the part of defendant. When one of two conflicting inferences reasonably may be drawn from the evidence and the sufficiency of a finding based thereon is attacked on appeal, the inference in support of the questioned finding must be accepted as true. (Primm v. Primm, 46 Cal.2d 690, 694 [299 P.2d 231].) In addition, there is no explanation of the plaintiff’s testimony that the defendant refused to live with him “as a wife would.” His concept of the manner in which a wife should live with her husband and the law’s concept thereof might very well differ. Her refusal to conform or submit to a standard not required by law would not constitute a desertion. (Hutton v. Hutton, 109 Cal.App.2d 567, 568 [241 P.2d 53]; Gray v. Gray, 125 Cal.App. 203, 205 [13 P.2d 862].) The elements of voluntary separation, intent to desert and the period of desertion are not satisfactorily established by the evidence in this case.
The alleged acts of cruelty by the defendant of which the plaintiff complained and which he testified disturbed him mentally were her living with another man and her statement that she was in love with this person and wanted a divorce. The plaintiff’s testimony with respect to the alleged adultery was mere hearsay. His attorney, when confronted
In the ease at bar the trial judge also made it clear that the corroborative evidence was insufficient. This was an additional reason for denying the divorce.
“No divorce can be granted upon . . . the uncorroborated statement, admission, or testimony of the parties. ...” (Civ. Code, § 130.)
The testimony of a defendant in a default divorce proceeding may not be taken as corroborative of testimony given by the plaintiff. (Howard v. Howard, 105 Cal.App.2d 126, 128 [232 P.2d 530] ; Dean v. Dean, 97 Cal.App.2d 455, 456 [218 P.2d 54] ; Truax v. Truax, 62 Cal.App.2d 441, 444 [145 P.2d 88] ; Ritter v. Ritter, 103 Cal.App. 583, 590 [284 P. 950].) As a consequence, the testimony of the defendant in the case at bar is not acceptable corroboration of the plaintiff’s testimony that his wife told him she loved another man and wanted a divorce.
Where a husband in his complaint charges his wife with extreme cruelty, but alleges that she is a fit and proper person to have custody of his minor child, and prays that custody of his child be given to her; obtains his wife’s default on the basis of these allegations; and in the course of the subsequent hearing, upon examination by the judge, testifies that the basis for his charge of cruelty is the reported adultery of his wife and that she continues to live in adultery but he is
The trial judge on several occasions during the course of the hearing, after advising counsel for the plaintiff that the
The court should not be “a mere instrument of convenience in the dissolution of marriages.” (Julson v. Julson, 110 Cal.App.2d 797, 800 [243 P.2d 558].)
“The law is at all times very solicitous to preserve the integrity of the marriage relation. That relation is the basis of the family, the foundation of society. It cannot be destroyed by the mere consent, whim, or caprice of the parties to the marriage, nor can it be stipulated away in judicial proceedings. The relation can be dissolved only by consent of the state, and upon statutory grounds, presented in good faith to a court of competent jurisdiction. An action for divorce concerns not only the parties immediately interested, but also the state. The attorneys in the ease represent the respective parties—the court in a sense represents the state. It is the duty of the court, representing the state, in accordance with the letter and policy of the law, to guard strictly against fraud, collusion, or imposition when the husband or wife seeks to dissolve the bonds that bind them together.” (Rehfuss v. Rehfuss, 169 Cal. 86, 92 [145 P. 1020].)
The circumstances in the instant case imposed upon the court a three-fold duty, i.e., to give primary consideration to the protection and best interests of the minor child in making an appropriate custody order; to represent the state; and to afford the parties every right to which they were entitled under the law. The record before us attests the conscientious awareness and faithful discharge of these obligations by the trial judge who conducted the hearing in this matter.
The judgment is affirmed.
Griffin, P. J., and Shepard, J., concurred.