169 P. 253 | Cal. Ct. App. | 1917
Plaintiff was granted a divorce without alimony from defendant on the ground of extreme cruelty. The judgment divides the community property, consisting of a homestead valued at about one thousand five hundred dollars, but mortgaged for five hundred dollars, the house and tools, furniture, and one cow, equally between the parties, and awarded the custody of Samuel Oliver Nave, aged three, to defendant, and Rose May Nave, aged one, to plaintiff. The plaintiff appeals from that part of the judgment refusing alimony and awarding half of the community property and the custody of the boy to defendant.
The law regarding the disposition of community property on divorce is that: "If the decree be rendered on the ground of adultery, or extreme cruelty, the community property shall be assigned to the respective parties in such proportions as the court, from all the facts of the case, and the condition of the parties, may deem just." But "if the decree be rendered on any other ground than that of adultery or extreme cruelty, the community property shall be equally divided between the parties." (Civ. Code, sec. 146) And in section 148 it is *28 declared that the disposition is subject to revision on appeal in all particulars, "including those which are stated to be in the discretion of the court."
"Where the divorce is granted on the ground of adultery or extreme cruelty, section 146 of the Civil Code leaves the disposition of the community property, in the first instance, to the discretion of the trial court, with, perhaps, the qualification inferred from the reading of the entire section, that, as a general rule, more than one-half of such property must be decreed to the innocent spouse in such a case." (Gorman v. Gorman,
It thus appears that unless there be some very good reason to the contrary, the general rule is to be followed. It does not appear in the Eslinger or Brown case that the party to whom the larger share was awarded had to provide for any children; nevertheless, the award was made. But in Strozynski v.Strozynski,
With respect to the custody of the children, the code has not provided us with such explicit rules in regard to discretion as in the case of community property. As a result the rule in *29
respect to the children has been declared as follows: "It is manifest that the legislature, by the foregoing enactment (Civ. Code, sec. 138) intended to confide to the trial courts, in the disposition of the minor children of the parties to divorce actions, a very extensive discretion, with a view to the conservation of the highest and best interests of such minors, and the conclusion arrived at by such courts in such cases will not be set aside unless the record discloses a clear abuse of that discretion. (Simmons v. Simmons,
As to the question of alimony, the case is not without difficulty. The plaintiff having been granted a divorce on the ground of cruelty and accorded the custody of a minor child would naturally and ordinarily be entitled to some allowance for her support and that of the child. This would, of course, be affected by the consideration of the financial condition of the respective parties and their earning capacity. As to the present case, considering what is revealed by the record concerning each party, we should have no hesitation in saying that the defendant should be required to pay at least a sufficient sum to support the younger child, unless the wife has *30 considerable separate property. However, as to this there is no finding by the court. Plaintiff alleged in the complaint that she was in indigent circumstances, but this was denied in the answer, and it seems to have been overlooked by the trial judge. The evidence does, however, show that she had a little separate property, apparently of trifling value. As to the homestead herein set apart to her, the situation is similar to that in Strozynski v. Strozynski, wherein it is said: "The house and lot constitute but an humble home for the plaintiff and her minor daughter, and it cannot be presumed that the household furniture was more than was necessary for their use. Allowing them all these, they are still left, so far as appears, to earn their support." Under such circumstances we think a reasonable amount should be required of defendant monthly, at least to aid the plaintiff in meeting the responsibility cast upon her by the custody, care, and education of the child.
We therefore think that the portion of the judgment awarding plaintiff one-half of the community property should be reversed, with direction to the court below to award to her the whole thereof, that the portion of the judgment decreeing that she is entitled to no alimony be reversed, with direction to the court to retry the issue as to the financial condition of the parties and their earning capacity, and that the judgment in other respects be affirmed, appellant to recover her costs on appeal.
It is so ordered.
Chipman, P. J., and Hart, J., concurred. *31