Cardew v. Cardew

• Decision Date: 25 May 1961
• Citation: 13 Cal.Rptr. 620,192 Cal.App.2d 502
• Court: California Court of Appeals Court of Appeals
• Parties: Helen Tanner CARDEW, Plaintiff and Appellant, v. George B. CARDEW, Defendant and Respondent. Civ. 19244.

Page 620

13 Cal.Rptr. 620

192 Cal.App.2d 502

Helen Tanner CARDEW, Plaintiff and Appellant, v. George B. CARDEW, Defendant and Respondent.

Civ. 19244.

District Court of Appeal, First District, Division 1, California.

May 25, 1961.

As Amended on Denial of Rehearing June 19, 1961.

Hearing Denied July 20, 1961.

Livingston & Borregard, San Francisco, Lawrence Livingston, Isabella H. Grant, San Francisco, Burnett, Burnett & Somers, San Jose, for appellant.

Edward M. Fellows, Lawrence T. Sutton, San Jose, for respondent.

DUNIWAY, Justice.

In an action for divorce, plaintiff appeals from the interlocutory judgment. The court decreed that each party was entitled to a divorce on the ground of extreme cruelty, ordered the property of the parties divided, and awarded plaintiff $400 per month alimony for one year. Although the appeal is from the whole of the judgment, appellant does not attack the portion of the decree granting her a divorce.

It is claimed (1) that appellant did not get a fair trial, (2) that the court erred in excluding certain proffered evidence, (3) that any cruelty on appellant's part before 1957 was condoned, (4) that the court erred in its findings as to the nature of the parties' interests in their home, (5) that the court did not properly divide the community property, and (6) that it was error to make a present disposition of property in the interlocutory judgment. We find error only as to points 5 and 6.

Where both parties seek a divorce, under the rule in De Burgh v. De Burgh, 39 Cal.2d 858, 250 P.2d 598, the usual rule as to the resolution of conflicts in the evidence by the trial judge applies. This is true whether he grants the divorce to only one of them (Garten v. Garten, 140 Cal.App.2d 489, 496, 295 P.2d 23; Noble v. Noble, 115 Cal.App.2d 786, 789, 252 P.2d 1001; Thompson v. Thompson, 136 Cal.App.2d 539, 540, 288 P.2d 932; Gilmore v. Gilmore, 45 Cal.2d 142, 287 P.2d 769), or to both (McClellan v. McClellan, 159 Cal.App.2d 225, 227, 323 P.2d 811; Benam v. Benam, 178 Cal.App.2d 837, 840, 3 Cal.Rptr. 410; Lawatch v. Lawatch, 161 Cal.App.2d 780, 785, 327 P.2d 603; Cohen v. Cohen, 156 Cal.App.2d 191, 193, 319 P.2d 66). 'There can be no precise formula for determining when a cause of divorce shown against a plaintiff is to be considered a bar to his suit for divorce, for the divorce court, as a court of equity [citation], is clothed with a broad discretion to advance the requirements of justice in each particular case.' De Burgh v. De Burgh, supra, 39 Cal.2d 858, 872, 250 P.2d 598, 606; Mueller v. Mueller, 44 Cal.2d 527, 530, 282 P.2d 869.

We examine the pertinent evidence under each point, having the foregoing rules in mind.

1. Appellant had a fair trial.

A very earnest argument is made in appellant's briefs, with citations of various remarks of the trial judge, to the effect that the judge treated her unfairly. We have read the transcript and considered the argument, but we cannot find the bias or unfairness that is claimed. We incline to agree with respondent's counsel, that appellant's counsel, who did not try the case, 'looks at the cold print * * * and then exercises his imagination,' in the sense that he, like us, not having been present, cannot accurately judge the effect of the court's comments from the cold record alone. Much depends upon matters that cannot be recorded; the expression and tone of the judge, the behavior of the attorney or witness or party addressed, and the general atmosphere of the trial.

The case against the judge is overstated, to put it mildly. For example, when appellant, who was the first witness, took the stand, the judge gave her a few brief suggestions about how to answer questions. Counsel refers to that as a 'lecture,' and suggests that it 'could do nothing but terrify an inexperienced woman.' We find nothing terrifying in it; on the contrary, it could be quite helpful to a witness. It is then stated that 'when * * * [respondent] started his testimony there was no lecture.' The statement is literally correct but is incomplete. Respondent's testimony covers 45 pages. After less than two pages of questions and answers, mostly preliminary, the judge gave respondent the identical 'lecture' that he gave appellant.

It would serve no useful purpose to belabor the matter. Appellant's counsel concede that they 'undertake a difficult task when * * * [they] attempt to establish that there was an unfair trial by a judge of high standing and reputation.' After reviewing the entire record, we are of the opinion that the attempt is not successful.

2. The court did not commit prejudicial error in excluding evidence.

(a) As to adulterous conduct:

Appellant correctly urges that evidence of adulterous conduct, falling short of actual adultery, is admissible in support of a charge of cruelty. San Chez v. Superior Court, 153 Cal.App.2d 162, 164, 165, 314 P.2d 135, and cases there cited; 16 Cal.Jur.2d 323. The pretrial order states that the 'wife contends there is adulterous conduct on the part of the husband.' Nevertheless, when such evidence was offered, the court erroneously excluded it. The exclusion, however, was not prejudicial, for three reasons:

First, the only evidence offered was the receipt at the parties' home of some letters from another woman, addressed to the husband, one of which was 'opened by mistake.' The letters were returned by appellant, presumably to the sender. Just before the wife so testified, the court said, 'Make your offer of proof.' None was made, except the testimony just mentioned. There is no suggestion that counsel had other evidence to offer. The fact that the letters were received is in evidence; their contents would be hearsay. No attempt was made to cross-examine respondent on the subject. We cannot believe that the result would probably have been different if if the evidence had been received.

Second, the court awarded appellant a divorce on the ground of cruelty. This was what the evidence was offered to show.

Third, the evidence would not have been relevant to the issue of how much alimony appellant should receive, as appellant claims it would. It is true that ever since the decision of the Supreme Court in De Burgh v. De Burgh, supra, 39 Cal.2d 858, 250 P.2d 598, the court may, when it grants a divorce to both parties, award alimony to either, 'for the basis of liability for alimony is the granting of a divorce against the person required to pay it. See Civil Code, § 139.' 39 Cal.2d at page 874, 250 P.2d at page 607; see also Gilmore v. Gilmore, 45 Cal.2d 142, 148, 287 P.2d 769. It is also true that in deciding which party shall receive alimony, the court considers the comparative fault of the two. Mueller v. Mueller, supra, 44 Cal.2d 527, 531, 532, 282 P.2d 869. This the court did, and it awarded alimony to the appellant.

We think that at that point comparison of the fault of the parties had fulfilled its function. In determining the amount and duration of alimony to be awarded under Civil Code, §§ 139 and 142, the court was required to consider 'the circumstances of the respective parties' (Civ.Code, § 139) and it could also consider the facts that the parties had been married for only six years and had only lived together about 300 days when they separated, that there were no children, that before the marriage appellant had been self-supporting, that it was her third marriage, and that she was to receive, from the sale of community property, several thousand dollars. Cf. Civ.Code, § 142. The court's remarks on motion for new trial indicate that it did consider such matters, and desired that appellant be provided for during the period of one year, while she was seeking employment.

'In theory, alimony is considered to be compensation to the injured spouse for the loss resulting from the other's breach of the obligations of the marital relationship [citation]. But the right to receive it depends not alone upon the granting of a divorce for the fault of the opposing party, but also upon a showing that the circumstances of the parties justify the award made.' Hall v. Superior Court, 45 Cal.2d 377, 384, 289 P.2d 431, 435.

'An allowance for support must be made 'having regard for the circumstances of the respective parties.' Civil Code, § 139. * * * 'Circumstances' includes 'practically everything which has a legitimate bearing upon the present and prospective matters relating to the lives of both parties.' [Citation.] '[I]t refers to the needs of the parties and the abilities of the parties to meet such needs; and in measuring such circumstances, consideration should be given to property owned and obligations to be met as well as to ability to earn and actual earnings.' [Citation].' Hall v. Hall, 42 Cal.2d 435, 442, 267 P.2d 249, 253.

In Whitney v. Whitney, 164 Cal.App.2d 577, 330 P.2d 947, this court was presented with the claim of an appellant wife that the alimony awarded to her should have been greater. She was awarded $300 per month for four years. Speaking through Mr. Justice Wood, we said in 164 Cal.App.2d at page 580, 330 P.2d at page 949:

'Appellant's argument starts with the premise that 'one aspect of alimony is that it is a penalty.' She contends that here the penalty is not in due proportion to the degree of cruelty which, she asserts, respondent committed.

'A mere reading of the applicable statute demonstrates the fallacy of her premise.'

After quoting Civil Code, § 139 the opinion continues: 'This does not speak of punishment of the guilty party measured by the degree of guilt. It speaks only of legal consequences which flow from conduct which causes dissolution of the marriage. In such a case the law imposes a duty to compensate the opposite party. This compensation does not take the form of exemplary or punitive damages.' The opinion then quotes from Hall v. Hall, supra, and the judgment was affirmed.

Under Civil Code, § 139 the trial court has a broad discretion in determining the...