Opinion
Rehearing Denied April 29, 1964.
Brock & Shapero and Edwin S. Saul, Los Angeles, for appellant.
Snow & Snow and Hugh John Snow, Beverly Hills, for respondent.
LILLIE, Justice.
A dual divorce decree was granted in the present proceeding on the grounds of extreme cruelty. The wife has appealed from all portions of the judgment save and except those which awarded her a divorce and fees to her attorneys. She challenges the sufficiency of the evidence, and the sufficiency of its corroboration, to support the adverse finding of cruelty. She further contends that although the trial court determined that both parties were guilty of marital fault, it was nevertheless error for the court to draw the conclusion that she was not entitled to permanent alimony. A final assignment of error is the condition imposed upon the award of the family home to the wife, namely, 'subject to the right of the [parties'] minor child to the joint use and occupancy' thereof.
In effect, plaintiff is also objecting to the equal division by the court of the community property pursuant to the rule that where both parties are guilty of extreme cruelty such property must be disposed of in that manner. (Lyons v. Lyons, 190 Cal.App.2d 788, 791, 12 Cal.Rptr. 349.)
The parties intermarried in 1940. Their only child, Barbara, was born on March 31, 1943. Since the marriage, the husband has been an artist and painter by profession, except for a brief period of employment at an aircraft factory. Following World War II, and with the assistance of his wife who resumed working, he attended university and obtained a master's degree. In 1948 he joined the teaching faculty at University of California, Los Angeles, where in 1961 he was promoted to a full professorship.
The separation of the parties, according to the wife, occurred in June of the year last mentioned. The husband, on the other hand, contended that the legal separation actually took place in January of 1956, and the court so found; in this connection, the court further found that at or about that time 'the usual marital obligations and relationships between them ceased, although both parties continued to occupy the family home until September 1, 1961.'
There was evidence of much discord during a greater portion of the marriage, commencing as early as 1947. At various times, it appears, each party underwent psychiatric treatment. The husband testified that the wife would fly into reges and curse him, and then enter into periods of complete withdrawal from family life by remaining silent for days at a time. On many occasions, according to the husband, she would shut herself in the bedroom, become stuperous with sedatives and spend the weekend in that condition; on other occasions she would leave the family home, remaining away overnight and failing to account for her whereabouts. She was rude to her husband's friends and business associates. On one occasion she tried to commit suicide. The wife testified that her emotional outbursts and her unusual behavior otherwise were caused by the husband's constant criticism, sometimes in the presence of their daughter, including the charge that she was unstable emotionally.
On three different occasions, it appears, she was an inpatient at Menninger's Institution in Kansas.
There was a conflict over the wife's refusal of reasonable sexual relations. About 1948 the wife engaged in an adulterous association with a mutual friend of the parties. In 1950 the husband was likewise guilty of adultery. Later that year, while the parties were visiting in Porterville, the wife confessed her affair to the husband; he reacted by beating and choking her 'all night long.'
As indicated above, in 1956 the usual marital relationships and obligations were terminated. Thereafter each party would prepare and eat his and her breakfast separately; usually no evening meal would be prepared by the wife. Most of the time the wife avoided the husband's company. According to the wife, as further stated above, the emotional separation of the parties finally occurred. When she told the daughter of this fact in the course of which The trial court found that the wife, as cross-defendant, wrongfully inflicted grievous mental suffering upon the husband; she now contends that the evidence does not establish the factors necessary to sustain such finding. There is no merit to this claim. Although the wife asserts that 'no standardized rule of law can be formulated' in this regard, the applicable rule was recently restated in Lipka v. Lipka, 60 Cal.2d 472, 35 Cal.Rptr. 71, 73 386 P.2d 671, 673: 'The infliction of grievous mental suffering as a ground for divorce is a question of fact, to be deduced from the circumstances of the case in light of the intelligence, refinement, and delicacy of sentiment of the complaining party.' The wife points to the fact that the husband is an intelligent man who, as a professor, 'was undoubtedly experienced in dealing with emotional and personality problems'; also, she says, he is widely read in the field of psychiatry and admittedly has lectured on the relation of mental functions in works of art, and she asks us to conclude that it would have been difficult for his wife's behavior to have caused him any mental suffering if, as should have been done, he had viewed it with equanimity and in the light of her emotional difficulties. But he, too, had to undergo psychiatric treatment, and he also testified that his wife's conduct had a great and unfavorable impact on him to the extent that he was unable to perform his work properly or to continue his creative efforts. This and related testimony was believed by the trial judge who 'was in a position to observe the intelligence, refinement and delicacy of sentiment of the [cross-complainant] and to determine whether [cross-defendant's] conduct caused [him] grievous mental suffering.' (Keener v. Keener, 18 Cal.2d 445, 448, 116 P.2d 1, 2.) Finally, since each party sought a divorce, there is the further factor of 'comparative guilt' which 'may have an important bearing upon whether or not either one or both should be granted relief.' (De Burgh v. De Burgh, 39 Cal.2d 858, 873, 250 P.2d 598, 606.) There is this discussion of 'comparative guilt' in De Burgh: 'In many ways the guilt of the parties may be unequal--in the gravity of the misconduct involved, in the frequency of its occurrence, or in its effect upon children and others. Moreover, one spouse may demonstrate substantially greater repentance and reform.' (39 Cal.2d p. 873, 250 P.2d p. 606.) But, it is also pointed out in De Burgh, the trial court 'is clothed with a broad discretion to advance the requirements of justice in each particular case.' (39 Cal.2d p. 872, 250 P.2d p. 606.) After an examination of the entire record, we cannot say that there was an abuse of the broad discretion given to the court in the resolution of this problem.
Advance Report Citation 60 A.C. 449, 452.
Complaint is made that the corroboration of the husband's testimony does not meet the requirements of the governing statute (Civ.Code, § 130). This contention is likewise not sustainable. As pointed out in the Lipka case, the sufficiency of the corroborative evidence lies within the sound discretion of the trial court. Too, since this was a contested action, the court was justified in granting the decree 'upon evidence which is only slightly corroborated if otherwise the court is satisfied that the prevailing party is entitled to a decree.' (Serns v. Serns, 70 Cal.App.2d 527, 529, 161 P.2d 417, 418); nor need the requirement of corroboration extend to all of the acts of cruelty charged by the complaining party. (Serns v. Serns, supra.) The parties' daughter testified that frequently her mother Belmont v. Belmont,
Next, the wife asserts that there was no showing of any 'wrongful' infliction of grievous mental suffering within the meaning of section 94 of the Civil Code. Reference is made to her mental problems and the treatment she underwent therefor; she argues, therefore, that any acts of mental cruelty were a product of her condition and not within her power to control. She cites Ohligschlager v. Ohligschlager, 125 Cal.App.2d 458, 270 P.2d 577, in support of the above claim. But that decision is not helpful; to the contrary, it holds that 'The findings of cruelty, wrongfully inflicted, means only that it was within defendant's power to change his ways, which were the principal cause of dissension, and that his failure to so do was wrongful.' (125 Cal.App.2d p. 461, 270 P.2d p. 579.) The reviewing court further declared that it was not permitted to place itself in the position of the trial judge in reaching a determination in this regard. In the present case, the lower court impliedly found that it was within the wife's power to change her ways. It was warranted in so concluding: first, because of its opportunity 'to observe the demeanor of the parties, to weigh their motives and judge of their characters.' (Ohligschlager v. Ohligschlager, supra): second, the record is devoid of any evidence (medical or otherwise) that the wife lacked the power to make the necessary reforms in her marital behavior, and her failure to produce such proof is highly significant. There is still another consideration which supports the court's determination in this regard. In Hayes v. Hayes, 181 Cal.App.2d 634, 640-641, 5 Cal.Rptr. 509, 514, it is pointed out that, 'The modern trend of the decisions in granting divorces relies less upon technical fault than upon the social interest in the functioning marriage.' Quoted is the following from De Burgh v. De Burgh, supra, 39 Cal.2d 858, 867-869, 250 P.2d 598, 603: 'The rising divorce rate in the United States has compelled a growing recognition of marriage failure as a social problem and correspondingly less preoccupation with technical marital fault. * * * Marriage failure, rather than the fault of the parties, is the basis upon which such divorces are granted.' The Hayes decision then goes on to declare (and we borrow certain of its pronouncements herein applicable): 'Neither this record nor the factors discussed above would justify a technical construction of the term wrongful infliction to bar as a ground of divorce acts of misconduct, which, here, may have been caused by [emotional problems], but which destroy the marriage as a functioning relationship. Emotional difficulties may have produced the misconduct * * *. But the misconduct does not dissolve in the emotional * * * ingredients which induced it. Neither legislative mandate nor our knowledge of psychiatry direct or enable us to disentangle the emotional background which here caused, or could, in other marital situations, cause, the wrongful conduct.' (181 Cal.App.2d p. 641, 5 Cal.Rptr. p. 514.)
The denial of permanent alimony to the wife is the next assignment of error. It is now settled that where dual divorce decrees are awarded, the trial court also has the duty to consider the comparative guilt of the parties in deciding whether alimony should be granted (Mueller v. Mueller, 44 Cal.2d 527, 282 P.2d 869); the same case
At the trial the wife testified that she was not at that time able to work, but she hoped to do some work in the future. Although she has a history of severe emotional disturbances, it did not totally incapacitate her from accepting employment--even when she was an out patient at Menninger's, she worked with a firm of certified public accountants for three months. Of course, the absolute denial by the court of alimony here will, if it becomes final, preclude any award hereafter; the wife's future predicament in that regard and the consequent possibility that she might become a public charge were doubtless taken into consideration by the trial court. On the other hand, as stated earlier, the court found that since 1956 the parties had been emotionally separated, thereafter the wife stopped cooking certain of the meals, the parties slept in separate bedrooms a large part of the time, they maintained separate bank accounts and spent their separate earnings as each saw fit. The court could well have inferred from the conduct of the wife in thus living that she had chosen to lead her own life and earn her own livelihood and that she was capable of doing so in the future. The fact that she had been a chaste wife since the termination of the illicit association many years previously does not make her less guilty in the light of the parties' comparative rectitude; section 92 of the Civil Code, listing both cruelty and adultery as grounds for divorce, makes no distinction as to whether one act or the other is more culpable. While the treatment accorded the wife may seem harsh, we must remain obedient to the following rules governing appellate review: an appellate court will not interfere with the trial court's action unless, as a matter of law, an abuse of discretion is shown; any conflicts in the evidence or in reasonable inferences to be drawn from the facts will be resolved in support of the decision of the trial court. Applying these rules to the case at bar, and measured by the governing principles in such matters, there is substantial support in the evidence for the court's action in denying permanent alimony to the wife.
The wife's last contention on appeal relates to the condition attached to the award to her of the family home, namely, that the parties' minor daughter have the right to its joint use and occupancy. Since there is no provision under the governing statute (Civ.Code, § 143) for the imposition The portions of the judgment appealed from are affirmed; in the interests of justice, neither party will recover costs on appeal.
WOOD, P.J., and FOURT, J., concur.