Bruce v. Bruce

Decision Date03 December 1953
Citation263 P.2d 895,121 Cal.App.2d 661
CourtCalifornia Court of Appeals Court of Appeals
PartiesBRUCE v. BRUCE. Civ. 19657.

Grainger, Carver & Grainger, Kyle Z. Grainger, Jr., Los Angeles, for appellant.

Ralph W. Miller, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by defendant from an interlocutory judgment adjudging that plaintiff is entitled to a divorce. The court found that on September 23, 1946, defendant willfully and without cause deserted plaintiff, and that the desertion continued more than one year.

The specifications of error are: 1. The findings are not supported by evidence. 2. The place of living chosen by plaintiff was not reasonable. 3. The court should have permitted the answer to be amended. 4. Plaintiff failed to prove and corroborate jurisdictional grounds. 5. 'Attorney's Fess.'

The parties were married in 1918. They have two boys. From 1938 to the trial, plaintiff was employed in San Francisquito canyon in Los Angeles county. In 1938, the parties with their boys resided a few miles away. Their youngest boy was then seventeen years of age; the other, twenty. In December 1938 defendant and the boys moved to Los Angeles for better educational facilities. On his days off, plaintiff visited them. In 1942, a house at plaintiff's place of employment in San Francisquito canyon was made available to him and the family. It consisted of five rooms and a bath; was electrically equipped; and partly furnished. Plaintiff moved in, described the house and surroundings to defendant and asked her to go from Los Angeles to San Francisquito canyon and live with him there. He repeated the request a number of times until September, 1946. Defendant refused to go on each occasion. One of the boys married in 1943; the other, in 1944. The parties did not live together after September 24, 1946. The foregoing evidence is sufficient to support the finding of willful desertion. Civ.Code, secs. 95, 96, 100, 103; Brown v. Brown, 92 Cal.App. 276, 268 P. 401; Hardenbergh v. Hardenbergh, 14 Cal. 654; Goucher v. Goucher, 82 Cal.App. 449, 255 P. 892; Mohn v. Summer, 48 Cal.App. 314, 191 P. 991.

Whether the plaintiff selected a reasonable place of living was a question of fact. The home selected was a five room house, with two bedrooms, a kitchen, a large living room, and a den. It had an electric stove, electric heaters, and was partly furnished. The parties owned other furniture which the defendant was using in Los Angeles. The house was surrounded by trees and flowers. There was evidence that the house was superior to that occupied by defendant in Los Angeles. The evidence was sufficient to warrant the conclusion that plaintiff selected a reasonable place of living.

The complaint was filed April 19, 1950. The answer was filed May 1, 1950. The cause came on for trial on September 5, 1952. At the opening of the trial, defendant asked leave to file an amended answer 'setting up the defense of incrimination, cruelty and desertion, and asking for attorney's fees and asking for relief in case the divorce is denied.' The request was denied. No excuse was offered for the long delay--about two years and four months--in requesting leave to file an amended answer. The proposed amended answer is not part of the record and we cannot determine its sufficiency and, hence, cannot determine whether the trial court should have permitted it to be filed, or whether its refusal to do so was error. There was no showing that if the proposed amendment was allowed it could have been sustained by evidence. Whether such an amendment should be allowed is a matter is the discretion of the trial court, and its ruling will not be disturbed on review unless that discretion has been abused. Davidson v. National, etc., Inc., 122 Cal.App. 720, 10 P.2d 491; Roger Brothers Co. v. Beck, 43 Cal.App. 110, 112, 184 P. 515; Betzer v. Olney, 14 Cal.App.2d 53, 60, 57 P.2d 1376. No abuse of discretion is shown.

Defendant claims there was no proof that plaintiff had been a resident of the state one year and of the county of Los Angeles three months next preceding the commencement of the action. Civ.Code, sec. 128. The point cannot be sustained. In 1938, plaintiff went to work for the city of Los Angeles at its power plant in San Francisquito canyon, Saugus, California. He worked there continuously to the time of trial. From 1942 to the time of trial, he lived in the house we have described, on the plant property. A corroborating witness testified he lived at the power plant for six years ending in March 1951 and that plaintiff was living there during that time. The trial court and this court take judicial notice that San Francisquito canyon and Saugus, California, are in Los Angeles county. Code Civ.Proc. sec. 1875, subd. 8; Kautz v. Zurich Gen. A. & L. Ins. Co., 212 Cal. 576, 582, 300 P. 34; Rogers v. Cady, 104 Cal. 288, 290, 38 P. 81; Cole v. Segraves 88 Cal. 103, 105, 25 P. 1109; Wahrenbrock v. Los Angeles Transit Lines, 84 Cal.App.2d 236, 239, 190 P.2d 272; Sayles v. County of Los Angeles, 59 Cal.App.2d 295, 302, 138 P.2d 768. The jurisdictional facts were established.

Under the heading 'Attorney's Fees,' defendant merely says her attorney has received nothing in the way of attorney's fees for representing defendant in the action, and requests that she be allowed a reasonable attorney's fee from plaintiff. No...

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5 cases
  • Knox v. Knox (In re Knox)
    • United States
    • California Court of Appeals Court of Appeals
    • 9 Septiembre 2022
    ...Cal.Rptr. 918 [motion for attorney fees in dissolution action is addressed to the sound discretion of the court]; Bruce v. Bruce (1953) 121 Cal.App.2d 661, 664, 263 P.2d 895 [attorney fees during pendency of the dissolution action are "in the sound discretion of the trial court"].) For inst......
  • In re Marriage of Knox
    • United States
    • California Court of Appeals Court of Appeals
    • 9 Septiembre 2022
    ..."left to the sound discretion of the trial court" (In re Marriage of Sullivan, supra, 37 Cal.3d at p. 768), which is reiterated in Cueva, Bruce and the encyclopedia, has been superseded by statute. (See In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1049 ["it is no longer accurate to ......
  • Robison v. Hanley
    • United States
    • California Court of Appeals Court of Appeals
    • 9 Noviembre 1955
    ...of any matter in the record must be supported by an appropriate reference to the record is well established. See Bruce v. Bruce, 121 Cal.App.2d 661, 664, 263 P.2d 895; Johnson v. Klein, 127 Cal.App.2d 577, 578, 274 P.2d 209. This court could, and probably should, have required plaintiff to ......
  • People v. Ford
    • United States
    • California Court of Appeals Court of Appeals
    • 20 Junio 1955
    ...tried, and sentenced. The courts take judicial notice that Bell, California, is in the County of Los Angeles. Bruce v. Bruce, 121 Cal.App.2d 661, 663-664, 263 P.2d 895. Defendants argue that the failure of the court to instruct the jury that Bell is in the County of Los Angeles precludes a ......
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