Meyer v. Meyer
195 P. 387
Cal.
1921
Check Treatment
LAWLOR, J.

The plaintiff and defendant were wife and husband respectively. The plaintiff obtained an interloсutory decree of divorce on the ground of the defendant’s adultery. ‍​‌‌‌​​​​​​‌‌​​‌​‌‌‌​​​​‌​‌​‌‌​​​‌‌​​​​​‌​‌​​​​​​‍As an incident of the divorсe, the decree awarded the plaintiff eighteen thousand dollars as her share of the сommunity property. The defendant appeals.

The defendant’s first contention is that the evidence is not sufficient to sustain the finding of adultery. It is- unnecessary to detail the evidence. Suffice it to say that its character was such as amply to sustain the finding. The ‍​‌‌‌​​​​​​‌‌​​‌​‌‌‌​​​​‌​‌​‌‌​​​‌‌​​​​​‌​‌​​​​​​‍defendant himself admitted conduct on his part of a very questionable character at best, and there was other evidence which, if believed, as it evidently was by the trial court, could hardly leave any doubt as to what took place.

[1] The defendant’s second contention is that the plaintiff brought the defendant and alleged ‍​‌‌‌​​​​​​‌‌​​‌​‌‌‌​​​​‌​‌​‌‌​​​‌‌​​​​​‌​‌​​​​​​‍co-respondent together for the purpose of having the latter induce the defеndant to *689 commit adultery with her. The court found to the contrary and the evidence at most showеd only facts from which a possible inference might be drawn that the plaintiff planned to bring about- ‍​‌‌‌​​​​​​‌‌​​‌​‌‌‌​​​​‌​‌​‌‌​​​‌‌​​​​​‌​‌​​​​​​‍the adultery. The evidence was not such as to require such inference to be drawn, and this being the situation, the determination of the trial court as to the effect of the evidence is final.

[2] The third рoint is concerned with the division of the community property. Section 146 of the Civil Code authorizes the court which grants a divorce for adultery to divide the community property between the рarties in such proportions as it may deem just, even to the extent of assigning it all to the innocеnt party. In this case it appeared that there was community property in the state of Wаshington consisting of real estate of the value of twenty-five thousand dollars. This real estate was not divided in kind by the decree, nor was its sale and a division of the proceeds directed, but the defendant was directed to pay the plaintiff eighteen thousand dollars, and its payment ‍​‌‌‌​​​​​​‌‌​​‌​‌‌‌​​​​‌​‌​‌‌​​​‌‌​​​​​‌​‌​​​​​​‍was made a charge upon the property by requiring the defendant to give a mortgage upon it for that amount. The authority of the court so to charge a lien upon the property is questionеd. The language of section 146 mentioned is that upon divorce the community property shall be “assigned” to the respective parties in such proportions as the court deems just. It is evidеnt that under this language the court could have assigned to the plaintiff an interest in the community property to the extent of eighteen thousand dollars. This, in effect, is all that it did do by the decree in quеstion. The point furthermore is settled contrary to defendant’s contention by the authority of Gaston v. Gaston, 114 Cal. 542, [55 Am. St. Rep. 86, 46 Pac. 609]; Mayberry v. Whittier, 144 Cal. 322, [78 Pac. 16], citеd in his behalf, was concerned with a very different state of facts and is not in point.

[3] It is also contended by the defendant that the assignment of eighteen thousand dollars to the plaintiff was excessive. The statute contemplates that in cases of adultery or extreme cruelty more than one-half of the community property shall be assigned to the innocent party, the exact аmount even up to all of such property being left to the discretion of the court. We cаnnot interfere with the exercise of this discretion unless it has been abused, and we see *690 no reason for concluding that it was abused in this case. For one thing, the seven minor children of the marriage, the custody of whom was given to the plaintiff, would by themselves come pretty close to justifying an award of all the community property to the plaintiff if the court had seen fit to make it.

[4] The last contention of the defendant is that the.decree is erroneous in allowing the plaintiff five hundred dollars for attorneys’ fees, the point being that no allowance was necessary in order thаt the plaintiff might further prosecute her case, since the case had practically come to an end. The fee in fact was apparently allowed not for future legal serviсes but for services already rendered. The answer to the point is that the allowance was made in response to an application made before trial and continued by consent until the trial. It is not questioned but that the making of an allowance would have been proper when the application was made. This being true, when the application is continued by consent, it is fairly to be taken that it is continued upon the basis of the court making an allowance, if any, as of the time of the making of* the application. Furthermore, no objection whatever to the allowance was made in the trial court by the defendant. If he had objection, he should have made it.

Decree affirmed.

Shaw, J., and OIney, X, concurred.

Hearing in Bank denied.

All the Justices concurred.