Opinion
Department Two
Appeal from a judgment of the Superior Court of Lassen County. G. G. Clough, Judge.
COUNSEL:
The plaintiff having sufficient separate property of her own, cannot obtain a divorce for failure to provide. (Civ. Code, secs. 92, 155; Washburn v. Washburn , 9 Cal. 475; Stewart on Marriage and Divorce, sec. 281; Rycraft v. Rycraft , 42 Cal. 444.) The court erred in failing to find upon the special issue as to the willingness and offers of plaintiff to provide. (Civ. Code, sec. 102.)
Shinn & Shinn, for Appellant.
Goodwin & Goodwin, for Respondent.
The affirmative allegations in defendant's answer were in effect a denial, and the issues are fully met by the findings. (Thompson v. Thompson , 52 Cal. 157; Swasey v. Adair , 88 Cal. 182.) It is the duty of the husband to support the wife, and his failure to provide for her, having the ability to do so, is ground for divorce. (Civ. Code, secs. 92, 105, 155, 174- 76.) There being a sufficient cause of action for divorce for desertion, the question of failure to provide is immaterial, because not affecting any substantial right. (Code Civ. Proc., sec. 475.)
JUDGES: Haynes, C. Britt, C., and Belcher, C., concurred. McFarland, J., Henshaw, J., Temple, J.
OPINION
HAYNES, Judge
Action for divorce. The plaintiff had judgment, and defendant appeals therefrom upon the judgment-roll, containing a bill of exceptions. The complaint stated three causes of action: 1. For willful desertion; 2. Failure to provide the common necessaries of life because of defendant's idleness, profligacy, and dissipation; and 3. That defendant, having the ability to provide plaintiff with the common necessaries of life, has, for more than one year last past, failed to do so. The defendant denied all the material allegations of the several causes of action, and for separate defenses alleged that the plaintiff deserted and abandoned the defendant without cause and against his will, and that defendant has at all times been willing, and has repeatedly offered, and is now willing, to take plaintiff and the minor children and provide for them the necessaries of life, and to perform and fulfill all the obligations of a husband and father.
The court found that on or about the nineteenth day of October, 1890, the defendant willfully and without cause deserted and abandoned the plaintiff, and that he ever since has and still continues willfully and without cause to desert and abandon the plaintiff, and to live separate and apart from her without any sufficient cause or any reason, and against her will, and without her consent; that the defendant has the ability to provide plaintiff with the common necessaries of life, but for more than one year last past he has failed to do so, but that such failure was not caused by his idleness, profligacy, or dissipation.
The court further found that there were two children, issue of said marriage, both girls, one aged five years and the other three years; and the custody of them was given to the plaintiff until the further order of the court, she having sufficient separate property to care for and educate them.
Appellant specifies as error for which the judgment should be reversed, that the court failed to find upon the issue raised by the fourth count of defendant's answer, viz.: Whether defendant has at all times been willing and has repeatedly offered to take plaintiff and her minor children and provide for them the necessaries of life, and perform and fulfill toward the plaintiff all the obligations of a husband.
The fourth defense pleaded by plaintiff consisted of affirmative allegations inconsistent with the averments in the complaint charging desertion and failure to provide, and, as these allegations of the complaint were specifically denied in the first and second paragraphs of the answer, all the facts alleged in the fourth defense could have been given in evidence under said denials, and no new or additional issue was raised thereby. The findings upon the issues of desertion and failure to provide fully covered and included all facts alleged in said fourth defense. The remaining specifications are to the rulings of the court upon the admission and exclusion of testimony.
The objections to the questions put to plaintiff's witness, E. Kingsbury, upon cross-examination, touching plaintiff's separate property, objected to by plaintiff as not proper cross-examination, were properly sustained. The defendant, however, was not prevented thereby from calling the same witness or other witnesses to the facts sought to be shown upon the cross-examination of this witness. The object of counsel in said cross-examination of the witness Kingsbury was stated by appellant's counsel to be that "if she had any support from the proceeds of her own property she is not entitled to a divorce"; and this point is strongly insisted upon in his brief.
[42 P. 138] The same question is made upon demurrer to the second and third counts of the complaint, each of which were based upon the failure of defendant to provide for the plaintiff. It is not necessary, however, to consider or decide whether the fact that plaintiff has sufficient means for the support of herself and children would constitute a defense to an action for divorce based upon the husband's failure to provide for either the plaintiff or her children, since a cause of action was stated upon the ground of desertion, and the court made a finding supporting that count of the complaint, and if there is one good count of the complaint sustained by the findings, the judgment cannot be reversed because of the insufficient statement of other causes of action. Neither the wealth nor the poverty of either of the parties can affect the question of willful desertion.
The judgment appealed from should be affirmed.
For the reasons given in the foregoing opinion the judgment appealed from is affirmed.