Summary
In Farrand v. Farrand, 77 Cal.App.2d 840 [ 176 P.2d 773], there was corroboration but the reviewing court concluded that the acts proven were not acts of cruelty which caused grievous mental suffering.
Summary of this case from Hellman v. HellmanOpinion
Docket No. 15575.
January 29, 1947.
APPEAL from a judgment of the Superior Court of Los Angeles County. Ruben S. Schmidt, Judge. Reversed.
Harold D. Kraft for Appellant.
Ben M. Kochman for Respondent.
From an interlocutory decree of divorce in favor of plaintiff predicated upon the ground of extreme cruelty, defendant appeals.
Plaintiff filed a complaint for divorce in which she alleged that since the marriage of the parties defendant had treated her in a cruel manner and had inflicted upon her grievous mental suffering and anguish. No specific acts of cruelty were alleged.
[1] The only question necessary for us to determine is:
Was there substantial evidence to support plaintiff's allegation that defendant had treated her in a cruel manner and inflicted on her grevious mental suffering and anguish?
This question must be answered in the negative. The only evidence material to this issue was offered by plaintiff and her brother, Vinson A. Soderberg. The pertinent portion of plaintiff's testimony is as follows:
"Q. You charge that your husband was cruel to you. Of what particular matters are you complaining? A. That he drank too much, for one thing.
"Q. During the last year you lived together, how often was he actually drunk, an average of once a week or what? A. Oh, more than that, twice.
"Q. What effect did that line of conduct have on you, keep you nervous and upset? A. Yes."
Mr. Soderberg's testimony bearing on the same subject was as follows:
"Q. Do you know her husband, Roderick Farrand? A. I do.
"Q. During the year from July of 1942 to July of 1943, about how often did you see him? A. Oh, one to three times a week.
"Q. Did you ever see him drunk? A. Yes.
"Q. About how often, an average of at least once a week? A. At least."
It is the rule that mere drunkenness on the part of one spouse is not such cruelty as to entitle the other to a divorce on the ground of cruelty. To constitute extreme cruelty sufficient to support a decree of divorce when no bodily injury is involved, there must be a showing that the offending spouse's conduct has caused the plaintiff grievous mental suffering. (See Truax v. Truax, 62 Cal.App.2d 441, 443 et seq. [ 145 P.2d 88]; Stanton v. Stanton, 113 Cal.App. 462, 464 [ 298 P. 524]; Bennett v. Bennett, 55 Cal.App. 268, 269 [ 203 P. 162]; 17 Am.Jur. [1938] 180, § 58.)
It is apparent that the only evidence in the instant case bearing upon cruelty falls far short of meeting the requirements of the foregoing rules. The evidence fails to show that defendant's intoxication caused plaintiff grievous mental suffering. It would merely support a finding that plaintiff was "nervous and upset," which as held in Truax v. Traux, supra 444, does not constitute grievous mental suffering sufficient to sustain an interlocutory decree of divorce predicated upon the ground of extreme cruelty.
For the foregoing reasons the judgment is reversed.
Moore, P.J., and Wilson, J., concurred.