Opinion
Rehearing Denied May 3, 1963.
For Opinion on Hearing, see 35 Cal.Rptr. 71, 386 P.2d 671.
Mantalica, Barclay & Teegarden and Lewis C. Teegarden, Los Angeles, for defendant and appellant.
Edward M. Raskin and Emmet G. Lavery, Jr., Los Angeles, for plaintiff and respondent.
BURKE, Presiding Justice.
This is an appeal by defendant, LaVern H. Lipka, from an interlocutory decree of divorce awarding a divorce to plaintiff, dividing the community property of the parties, providing for periodic payments to plaintiff in lieu of a further division of community property, providing a lien as security therefor, and for additional attorney's fees.
Plaintiff, Marguerite B. Lipka, filed an action for Divorce against defendant LaVern H. Lipka on the ground of extreme cruelty. The parties had been married for approximately 24 years and had two children who at the time of trial were both adults. Defendant answered and cross-complained, also on the ground of extreme cruelty.
Defendant's principal contention on appeal is that the evidence was insufficient to justify a divorce on the ground stated.
As was said in the case of Keener v. Keener, 18 Cal.2d 445, 447, 116 P.2d 1, 2, 'In each case the infliction of 'grievous mental suffering' is a question of fact to be deduced from the circumstances of the case, in the light of the intelligence, refinement and delicacy of sentiment of the complaining party. [Citations.] A correct decision must depend upon the sound sense and judgment of the trial court. [Citations.] Its conclusion will not be disturbed unless the evidence is so slight as to indicate an abuse of discretion. [Citations.]'
As in Keener v. Keener, supra, 18 Cal.2d 445, 116 P.2d 1, the husband in the case at bench did not see fit to cross-examine his wife or to offer any evidence on his own behalf. In this case not only did the trial judge have the opportunity of seeing and hearing the parties on the witness stand but by stipulation of their counsel had the further opportunity of observing them and conferring with them in chambers out of the presence of their attorneys. Thus the court had every opportunity to arrive at its own conclusion as to whether the conduct of defendant complained of by plaintiff constituted extreme cruelty and caused her grievous mental suffering.
The role of the reviewing court is not to pass upon the credibility of witnesses nor to reweigh their testimony. Its function begins and ends with a determination as to whether there was substantial evidence to support the finding (implied in this case) of the trial court.
A review of the transcript of the proceedings had in open court indicates that the testimony seeking to establish plaintiff's charge of cruelty was extremely meager as was the corroboration. The testimony was elicited from the witnesses by leading questions calling for 'yes' or 'no' answers and the answers given were often equivocal. It is not necessary, however, for us to determine whether the evidence adduced was sufficient to constitute 'substantial evidence' to support the decree of divorce. The cause must be reversed and remanded for retrial by reason of error pertaining to the division of property and the provisions with respect to alimony.
The decree awarded to the plaintiff the equity and furnishings in their Pasadena home and place at Big Bear, along with some other items, and then the defendant was 'ordered to pay to plaintiff for her support and maintenance and as full satisfaction of his marital obligation and as a further division of community property the sum of Seventy-Eight Thousand Six Hundred Fifty and no/100 ($78,650.00) Dollars payable at the rate of Six Hundred Fifty and no/100 ($650.00) Dollars per month for a period of one hundred twenty-one (121) months * * * Said payments are to be non-modifiable as to amount, or as to duration, and said payments shall not terminate upon the death of either of the parties, nor on the remarriage of either party, and in the even of the death of plaintiff, said payments shall be made to her estate, and in the event of the death of defendant, said payments The defendant's contention that the provision, that this monthly payment for ten years is not to be terminated by defendant's death of plaintiff's remarriage, is expressly contrary to section 139 of the Civil Code, is undoubtedly sound, insofar as a part of the payment is for support and maintenance. In its next to concluding paragraph the section says: 'Except as otherwise agreed by the parties in writing, the obligation of any party in any decree, judgment or order for the support and maintenance of the other party shall terminate upon the death of the obligor or upon the remarriage of the other party.'
No one even suggests that the parties in this case had 'agreed in writing' that the provision for a monthly payment for plaintiff's support and maintenance should not terminate. The position taken by the plaintiff, in answer to defendant's contention, is two-fold. His first argument is, in effect, this: the words 'for her support and maintenance' in the decree, must not be interpreted literally because of the added provisions that the payments do not terminate upon the marriage or death of either party. It is true that the use of the words 'support and maintenance,' under some circumstances, do not make an ordered payment alimony where it is clear that it is, in fact, just a means of dividing the community property. See, for example, Puckett v. Puckett, (1943) 21 Cal.2d 833, 840, 136 P.2d 1, 5. In the case under review, however, it is not clear that all of the monthly payments decreed were intended to be a division of the community property. In the case last cited, the Supreme Court deplored the uncertainty created by saying that a payment, set forth in a property settlement agreement was 'for the support and maintenance' of the wife. A like ambiguity was noted in Fields v. Fields, (1949) 94 Cal.App.2d 56, 60, 209 P.2d 977, 980, causing the appellate court to say: 'Counsel should insist, and the trial court in divorce actions should see to it, that clear and concise findings are made as to the character of periodical payments of money awarded to the wife, whether or not a property settlement agreement is approved.'
Just before the words we have just quoted, the appellate court, in the Fields case, pointed out that in Bailey v. Bailey, (1943) 60 Cal.App.2d 291, 296, 140 P.2d 693, 696, the reviewing court had reversed, '* * * as an abuse of discretion a decree awarding $100 per month without indicating what proportions were for community property and alimony respectively * * *.' In our case, as in the Bailey case, there were no findings. The plaintiff had put a price tag, in her complaint, upon many items of community property that she listed. In spite of the circumstances that plaintiff's allegation as to the value of the business, ultimately awarded to defendant, was not denied by defendant in his answer, and that his answer's denial of the other values was, at best, a negative pregnant , the parties treated the matter of values as an issue at this trial, and it was agreed, at the pretrial proceeding, that it remained an issue. The evidence introduced on the subject at the trial, however, was both conflictive and quite skimpy, so that we are left with no basis whatever, in the record, from which we can say that the $650 a month for over ten years represents only a cash division of this community property, or includes, in addition, a monthly sum for the support and maintenance of the plaintiff.
'The plaintiff and her counsel have grossly and wilfully exaggerated the value of certain items of community property * * *'.
To defendant's contention that the decree is erroneous in providing that the monthly payment shall continue in spite of remarriages and deaths, plaintiff offers a further reply. She insists, in essence, that defendant may not be heard, now, to complain of this provision in the decree because of his actions and reactions during the conferences held between the judge and counsel, The judgment is reversed.
JEFFERSON, J., concurs.
Assigned by Chairman of the Judicial Council.
I concur in the judgment and in all of the opinion other than its reluctance to state, as a basis for the reversal ordered, that the evidence was insufficient to warrant the granting of the divorce.
If the interest of the appealing defendant were the only matter of concern in this case, I would not note my inability to concur fully, for the defendant is in no position to complain, in view of the consent that his silence at the trial gave to its outcome. But a divorce is not to be granted just because the parties to the action want a divorce. It has been stated repeatedly, in varying words, that the state has a stake in every marriage, and that while it is not an actual party it is nevertheless a virtual party to every divorce action. (Dribin v. Superior Court (1951), 37 Cal.2d 345, 351, 231 P.2d 809, 813, 24 A.L.R.2d 864; Rehfuss v. Rehfuss (1915), 169 Cal. 86, 92, 145 P. 1020, 1022; Manzanares v. Manzanares (1961), 190 Cal.App.2d 771, 780, 12 Cal.Rptr. 239, 244; Garcia v. Garcia (1951), 105 Cal.App.2d 289, 290, 233 P.2d 23, 24; Ex parte Lazar (1940), 37 Cal.App.2d 327, 330, 99 P.2d 342, 343.) It follows, as stated in Rehfuss v. Rehfuss, supra (169 Cal. at p. 92, 145 P. at p. 1022): '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.'
The function of this court, I agree, is that of a reviewing court. Reviewing courts do, however, even in divorce cases, look to see whether the evidence supports the judgment, and if they find it not to be sufficient they reverse the judgment. (See, for example, Belmont v. Belmont (1961), 188 Cal.App.2d 33, 10 Cal.Rptr. 227; Julson v. Julson (1952), 110 Cal.App.2d 979, 243 P.2d 558; Negley v. Negley (1947), 82 Cal.App.2d 355, 186 P.2d 151; Farrand v. Farrand (1947), 77 Cal.App.2d 840, 176 P.2d 773; Truax v. Truax (1944), 62 Cal.App.2d 441, 145 P.2d 88.)
As tested by the cases just cited, the evidence in this case, in my opinion, fell short of proving that which the law recognizes as a ground for divorce, extreme cruelty (Civ. Code, § 92) defined as being 'the wrongful infliction of grievous bodily injury, or grievous mental suffering, upon the other by one party to the marriage.' (Civ.Code, § 94.) No doubt the plaintiff was embarrassed, and, as she alleged, made unhappy, by the periods when her husband did not speak to her or her guests. The circumstances under which he was silent were not brought out, either on direct or by the nonexistent cross-examination, or by any questions from the court. There was no proof that defendant's silent moods, or his failure to complete the repair jobs he undertook 'inflicted' 'grievous mental suffering' upon the plaintiff, and there was not suggestion that he inflicted any bodily injury Manzanares v. Manzanares,
Julson v. Julson,I am agreed; the judgment should be reversed.