97 Cal. 189 | Cal. | 1893
Action for a divorce on the ground of extreme cruelty. A divorce was granted on that ground, and one half of the community property (undivided) was awarded to the plaintiff, and the other half to the defendant. The plaintiff brings this appeal from that part of the decree awarding one half of the property to the defendant.
The appeal comes here upon the judgment roll, from which it appears that the parties were married in Germany, February, 1873, and have one child, a daughter, aged fifteen years at the time the action was commenced (September, 1889), the custody and care of whom was given to the plaintiff; that the community property consisted of a lot 57 x 105 feet at corner of Twenty-first and Sanchez streets, San Francisco, and a dwelling-house thereon, the value of the lot and house being about two thousand dollars, and the household and kitchen furniture in the dwelling-house, the value of which does not appear; that the defendant is a shoemaker, whose average earnings are alleged in the complaint to be sixty dollars per month, but denied in the answer to exceed forty dollars per month, and no finding upon this issue. The finding as to the alleged extreme cruelty is in the following language: “The defendant has treated her with extreme cruelty, has been guilty of extreme cruelty to her, has beaten her and called her vile names within the year past.” The defendant was adjudged to pay plaintiff’s costs, taxed at $66.90, and $50 for her attorney’s fees, both to be paid “to Benjamin Healy, plaintiff’s counsel herein, at his office,” for whom the present attorney for appellant was afterwards substituted.
Section 148 provides that “ the disposition of the community property, .... as above provided, is subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court.”
By this section the legislature must have intended to subject the exercise of the discretion of the trial court, in dividing the community property, to revision on appeal for any apparent degree of error, though not amounting to an abuse of discretion; otherwise the section effected no change in nor added anything to the theretofore well-settled rule that the appellate court will not undertake to revise the exercise of discretionary power, except it appear that such power has been abused. And this construction of the section has been practically, if not expressly, adopted by this court.
The case of Eslinger v. Eslinger, 47 Cal. 62, was very similar to this case. In that case a divorce was granted
In Brown v. Brown, 60 Cal. 579, a divorce was granted the wife on the ground of extreme cruelty. The trial court awarded her one half of the community property. On appeal, this court modified the judgment in this respect by awarding her three fourths. Here, again, this court expressly based its power to revise the judgment upon section 148 of the Civil Code.
An act of 1857 relating to husband and wife provided that when a “ decree of divorce is rendered on the ground of adultery or extreme cruelty, the party found guilty thereof shall only be entitled to such portion of the common property as the court granting the decree may, in its discretion, from the facts of the case, deem just and allow, and such allowance shall be subject to revision on appeal in all respects, including the exercise of discretion by the court below.” (Stats. 1857, p. 199.)
Under this statute the case of Eidenmuller v. Eidenmuller, 37 Cal. 364, was decided. The plaintiff (wife) was granted a divorce on the ground of extreme cruelty, though it was said the conduct of the plaintiff wa,s not free from fault. The custody of the three younger children was given to the wife, and the two elder to the husband. The defendant, being a physician, had an income of about eighteen hundred dollars per annum. The common property consisted of a house, lot, and household furniture worth about $4,500, and a horse and buggy worth $450. The lower court awarded to the plaintiff all the property, except the horse and buggy, which was given to defendant, and ordered the
The case of Bovo v. Bovo, 63 Cal. 77, is not in point for the respondent. The reporter’s head-note is misleading.
I think the cause should be reversed, with directions to the lower court to modify that part of the judgment relating to the division of the community property, by awarding to the plaintiff all the community property, real and personal, described in plaintiff’s complaint.
For the reasons given in the foregoing opinion, the t@ause is remanded, with instructions to the court below ■to modify that part of the judgment relating to the division of the community property by awarding to the plaintiff all the community property, real and personal, •described in the plaintiff’s complaint, and as so modified the judgment will stand affirmed.
Paterson, J., Garoutte, J., Harrison, J.