140 Cal. 112, S. F. 2533, Mcmullin v. Mcmullin

Docket Nº:S. F. 2533
Citation:140 Cal. 112, 73 P. 808
Opinion Judge:ANGELLOTTI, Judge
Party Name:THURLOW McMULLIN, Respondent, v. VIRGINIA McMULLIN, Appellant
Attorney:Denson & Schlesinger, and S.C. Denson, for Appellant. Charles S. Wheeler, Guy C. Earl, and J. F. Bowie, for Respondent.
Judge Panel:JUDGES: In Bank. Angellotti, J. Shaw, J., Henshaw, J., and McFarland, J., concurred. Van Dyke, J., Beatty, C. J., dissenting. VAN DYKE; BEATTY
Case Date:September 03, 1903
Court:Supreme Court of California

Page 112

140 Cal. 112

73 P. 808

THURLOW McMULLIN, Respondent,

v.

VIRGINIA McMULLIN, Appellant

S. F. No. 2533

Supreme Court of California

September 3, 1903

Page 113

Rehearing Denied.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. George H. Bahrs, Judge.

COUNSEL:

Denson & Schlesinger, and S.C. Denson, for Appellant.

The law will permit a divorce only at suit of an innocent party, and will never favor a guilty one. Recrimination and a cross-complaint for a divorce are not convertible terms. (Civ. Code, secs. 111, 122; Hall v. Hall, 4 Allen, 35; Clapp v. Clapp , 97 Mass. 531; Wilson v. Wilson, 40 Iowa 230; Pierce v. Pierce, 3 Pick. 299; 1 Dupont v. Dupont, 10 Iowa 112; 2 Jenkins v. Jenkins , 104 Ill. 134; Prather v. Prather, 26 Kan. 273; 9 Am. & Eng. Ency. of Law, p. 773 (new edition); Bishop on Marriage and Divorce, sec. 786; McVickar v. McVickar , 46 N. J. Eq. 490. 3)

Charles S. Wheeler, Guy C. Earl, and J. F. Bowie, for Respondent.

A recriminatory defense must be a cause of action for a divorce. Such a cause of action cannot subsist after an unreasonable lapse of time. (Civ. Code, secs. 122, 125; Smith v. Smith , 119 Cal. 189.) The finding as to consent to the separation was sustained by the circumstances proved. (1 Nelson on Divorce and Separation, secs. 67, 91, pp. 106, 107, 143; Hankinson v. Hankinson , 33 N. J. Eq., 71; Porritt v. Porritt , 18 Mich. 424; Rose v. Rose , 50 Mich. 92; Civ. Code, sec. 125; Thomson v. Thomson , 121 Cal. 12.) A desertion is shown by refusal of the proffered reconciliation. (Civ. Code, secs. 96, 101; Sargent v. Sargent , 106 Cal. 544; McMullin v. McMullin , 123 Cal. 653, 655.) The object of corroboration is to prevent collusion, and a sufficient corroboration of plaintiff's evidence was shown. (Andrews v. Andrews , 120 Cal. 184; Smith v. Smith , 119 Cal. 191; Evans v. Evans , 41 Cal. 108; Baker v. Baker , 13 Cal. 87; Venzke v. Venzke , 94 Cal. 225; Cooper v. Cooper , 88 Cal. 45; Wolff v. Wolff , 102 Cal. 433.)

JUDGES: In Bank. Angellotti, J. Shaw, J., Henshaw, J., and McFarland, J., concurred. Van Dyke, J., Beatty, C. J., dissenting.

OPINION

ANGELLOTTI, Judge

Page 114

This is an action for divorce on the ground of desertion. Plaintiff had judgment, and defendant appeals from the judgment and an order denying her motion for a new trial.

The parties intermarried in the year 1871, but have not lived together as husband and wife since the year 1877. Plaintiff, in his complaint filed April 9, 1898, alleged a desertion by defendant on April 10, 1896, the theory of his case, as shown by the evidence, being that the separation of the parties from 1877 to some time in April, 1895, was by consent, and that in April, 1895, he, in good faith, sought a reconciliation and restoration, and defendant refused, and has ever since continued to refuse, the same, thus rendering herself guilty of desertion. The defendant, in her answer, denied that she had ever deserted plaintiff, and alleged that in the year 1877 the plaintiff voluntarily separated himself from defendant, with the intent then and there to desert her, and has ever since continued such desertion. She also alleged failure to provide and adultery on plaintiff's part, but there was no evidence to sustain these allegations.

The findings of the court were entirely in accord with plaintiff's contention, and against defendant's allegation that plaintiff had deserted her. The court, after finding that the defendant deserted plaintiff on April 10, 1895, and has ever since continued such desertion, and that the separation in 1877 was not against the wish or will of said defendant, but was fully acquiesced in and consented to by the said defendant, further found as follows: --

" V.. .. The separation of plaintiff from defendant in the year 1877, was, and thereafter until the tenth day of April, 1895, continued to be, with the full acquiescence and consent of defendant.. . .

Page 115

" VII. That, on the 10th day of April, 1895, while the plaintiff and defendant were living separate and apart by mutual acquiescence, the plaintiff offered, in good faith, to return to and live with the defendant, and sought a reconciliation and restoration; that the defendant then and there refused it, and ever since has refused to accept the said offer."

It cannot be doubted that if these findings are sustained by evidence the defendant's refusal constituted a desertion on her part, for our statute expressly provides that separation by consent is not desertion, and that consent to a separation is a revocable act, and if one of the parties afterwards, in good faith, seeks a reconciliation and restoration, but the other refuses, such refusal is desertion. (Civ. Code, secs. 99, 101.)

The contention of the appellant is, that the findings of the court in this regard are not sustained by the evidence. It may be conceded for the purposes of this appeal that the evidence was such that it would have supported contrary findings, or even that the judges of this court upon a review of the evidence contained in the record might come to a different conclusion as to the facts from that reached by the trial court.

But it is a well-established rule that the trial court is the exclusive judge of questions of credibility of witnesses and weight of evidence, and that the determination of the trial court upon questions of fact is conclusive upon this court where there is any evidence fairly tending to support that determination. Looking at the evidence, it cannot be said that there is not evidence sufficient to support these findings. The character of the separation -- i. e. as to whether or not it was by consent -- is not to be determined solely by what occurred at the moment that the parties separated. There is [73 P. 809] nothing in our law that requires any written agreement of separation, or that requires the consent to be expressed in words. As stated in Nelson on Divorce and Separation (sec. 67): "It may be implied from the failure of the parties to make overtures after a quarrel; from acquiescence in the separation;. .. or from other circumstances which show the plaintiff's consent or that the separation was not against her will. The consent need not be express. It may be tacit, as where the plaintiff is willing and has made no objection." It is for the court trying the case to determine from all the facts and circumstances

Page 116

appearing in the case whether or not there was an absence of that consent to living separate and apart which is essential to constitute a desertion, and the acts, statements, and admissions of the parties subsequent to the cessation of cohabitation are clearly competent and material evidence in the determination of that question. In this case it appears that the parties had lived most unhappily together, and that finally plaintiff left the family home. In the light of subsequent events, it cannot be said that there was no foundation for the conclusion of the trial judge that this departure was not against defendant's will. The circumstances attending plaintiff's departure were...

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