104 Cal. 293 | Cal. | 1894
The plaintiff by this action seeks a divorce from her husband, upon the grounds of desertion, neglect, and cruelty. Each of these grounds is alleged in the complaint as a separate count or cause of action. In the first count plaintiff alleges that the defendant deserted her June 8, 1881, and has, without cause and against her will, continued his desertion since that date. In the second count she alleges that since the eighth day of June, 1881, the defendant has willfully neglected to provide for her the common necessaries of life, although he has had the ability so to do. Upon the allegations of cruelty the court found in favor of the defendant, and this finding is not challenged by either party. The complaint is unverified, and the defendant pleaded a general denial; and as affirmative defenses that at the commencement of the action there was another suit pending between the parties upon the same cause of action; and also that in another action between them for the same cause of action a judgment had been rendered in favor of the defendant prior to the commencement of the present action. The court found that the defendant deserted and abandoned the plaintiff on the first day of June, 1889, and that since that date he had continued his desertion and abandonment, and also that since said date the defendant had willfully neglected to provide for the plaintiff the common necessaries of life, although he had had the ability so to do.
These findings are amply sustained by the evidence. Upon the issue of neglect the plaintiff testified as follows: “ Defendant has done nothing towards my support in the last two years. I have not seen him except
Upon the special defenses set up in the answer the court found that there was no action pending between the parties at the commencement of the present action; that the judgment relied upon by the defendant as a bar was rendered in an action commenced on the first day of June, 1889, for causes of action existing at that time; and that said judgment was a bar to all of the acts mentioned in the complaint herein occurring before the commencement of that action, but was not a bar as against any subsequent desertion and neglect.
The facts constituting these special defenses are the following: In 1887 the plaintiff commenced an action for divorce against the defendant, in the county of Yolo, upon the grounds of desertion and neglect, in which she alleged that during all the time since their marriage he had willfully neglected and refused to provide her with the common necessaries of life, although he had the ability so to do; and that on the eighth day of June,
The Civil Code, section 105, makes the willful neglect of the husband to provide for his wife the common necessaries of life, when he has the ability so to do, a ground for divorce, if such neglect continues for one year. A judgment in favor of the husband, in an action ■by the wife for a divorce upon this ground, could not in the nature of things be a bar to her right to assert as a ground of divorce his continued neglect to support her for a year, occurring after the entry of such judgment. The support of his wife is a continuing obligation on the part of the husband, and his failure to meet this obligation is a continuing cause for a divorce, unless it appears to the court that there has been an unreasonable lapse of time before the action is commenced (Civ. Code, sec. 124); and the husband is not released from this obligation by a judgment in his favor in an action for a divorce upon this ground. If, after such judgment, he continues to disregard this obligation for the period required by the statute as a ground for a divorce, the former judgment cannot avail him as a defense. The law does not fix the amount of income which the husband must receive in order to impose upon him the obligation of supporting his wife, nor does it attempt' to
Hardy v. Hardy, 97 Cal. 125, has no application to the present case. That was an action brought by the wife under section 137 of the Civil Code to recover permanent support from her husband. Her right to maintain the action depended upon the fact of his desertion, without any regard to the time of its continuance. It was held that a former judgment in his favor, in an action for permanent support based upon a specific act of desertion, was a bar to a second action based upon the same act of desertion.
Certain rulings of the court upon the admissibility of evidence are assigned as errors, but, as these rulings were with reference to evidence upon the issue of cruelty, they need not be considered. The testimony of Parish related to the defendant’s neglect prior to the commencement of the former action. As the court found that this neglect was barred by the judgment in that case, it could have had no weight in determining its decision.
As the order of the court must be affirmed upon the foregoing grounds, it is unnecessary to determine whether the former judgments in favor of the defendant are a bar to the plaintiff’s right to a divorce upon the ground of his desertion.
The order is affirmed.