Gilmore v. Gilmore

• Court: United States State Supreme Court (California)
• Writing for the Court: TRAYNOR; GIBSON
• Citation: 45 Cal.2d 142,287 P.2d 769
• Parties: Dixie GILMORE, an incompetent person by and through Walter Russell, Guardian of her person and estate, Plaintiff, Cross-Defendant, and Appellant, v. Don GILMORE, Defendant, Cross-Complainant, and Respondent. S. F. 18996.
• Decision Date: 23 September 1955

Page 769

287 P.2d 769 45 Cal.2d 142 Dixie GILMORE, an incompetent person by and through Walter Russell, Guardian of her person and estate, Plaintiff, Cross-Defendant, and Appellant,
v.
Don GILMORE, Defendant, Cross-Complainant, and Respondent. S. F. 18996. Supreme Court of California, In Bank. Sept. 23, 1955.

Page 770

[45 Cal.2d 144] James Martin MacInnis and Nicholas Alaga, San Francisco, for appellant.

Michael L. Haun, San Francisco, Myers & Meehan and Wallace S. Myers, San Anselmo, for respondent.

[45 Cal.2d 145] TRAYNOR, Justice.

Plaintiff and defendant were married in 1946 and lived together for approximately six years before this action for divorce was filed in 1952. There were no children of the marriage. In her amended and supplemental complaint plaintiff alleged that defendant was guilty of extreme cruelty, desertion, and adultery. Defendant answered and cross-complained alleging extreme cruelty. The trial court awarded defendant an interlocutory decree of divorce based on findings of extreme cruelty. It also found that defendant had not been guilty of cruelty or desertion, that there was no community property, that specified real and personal property belonged to the parties as joint tenants, and that the remainder

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of the property claimed to be community was the separate property of defendant or a corporation owned by him. With respect to plaintiff's allegations of defendant's adultery, the court found that the allegations thereof were untrue, 'save and except that it is true that during the period between the first day of June, 1952 and the 20th day of June, 1952, the defendant herein indulged in at least six acts of sexual intercourse with women not his wife, in the City and County of San Francisco, State of California; that none of said acts of sexual intercourse constituted extreme cruelty toward plaintiff; that none of said acts of sexual intercourse caused plaintiff herein any mental pain or suffering, and each and all of said acts were committed subsequent to the filing of the * * * action.' Plaintiff appeals.

Plaintiff contends that defendant's own testimony establishes that her conduct could not have constituted extreme cruelty toward him. She bases this contention on the fact that defendant was not disturbed by alleged sexual irregularities involving himself, plaintiff, and another woman, and on his testimony with respect to his attitude toward drinking that 'Well, when you are tight, I don't think you have any moral responsibility.' There is substantial evidence, however, to support the finding of the trial court that 'for the period of more than four years last past next immediately preceding the commencement of the above-entitled action, plaintiff has wilfully and wrongfully treated defendant in a cruel and inhuman manner, and in utter disregard and in violation of her marital duties and obligations toward defendant, and has caused defendant great and grievous mental pain and suffering without cause or provocation therefor; that on numerous occasions in the presence of defendant and other persons, plaintiff has wrongfully called defendant vile and opprobrious [45 Cal.2d 146] names, causing defendant shame and humiliation thereby; that for more than four years last past the plaintiff has wilfully and without good cause failed to exhibit any love or affection toward defendant, that during the period of the last four years the said plaintiff has drunk intoxicating liquor to excess; and on numerous occasions, while under the influence of liquor, has quarreled and nagged at defendant and called him vile names, in the presence of other persons, without justification or cause, that for more than three years last past the plaintiff has wilfully, wrongfully and without good cause refused the defendant reasonable, or any, matrimonial sexual intercourse; (and) that said plaintiff has, on numerous occasions during the marriage, without cause, wrongfully and violently struck said defendant, causing him shame, humiliation, embarrassment and grievous and great mental pain and suffering.'

We do not believe that defendant's admitted indifference to accepted standards of normal sexual behavior and his opinion that intoxicated persons have no moral responsibility were sufficient as a matter of law to compel the trial court to conclude that plaintiff's continuous course of misconduct did not constitute extreme cruelty toward him. Thus, that defendant might in the privacy of his own home engage in or observe abnormal sexual activities without moral qualms, ¹ or consider intoxication a release from moral responsibility, does not necessarily establish that he was insensitive to public humiliation, physical attacks, and the denial of marital rights. Moreover, the evidence and finding that defendant was not guilty of cruelty toward plaintiff refute plaintiff's

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contention that he was so depraved as to be incapable of suffering from his wife's conduct. On the whole defendant was kind and considerate of plaintiff. Although on two occasions he slapped her and on others called her names, these incidents were trivial in comparison to similar conduct of plaintiff's and were probably provoked by her. For many years defendant was patient with plaintiff's excessive drinking,[45 Cal.2d 147] and he came home from his business early in the afternoons and stayed with her almost every evening because she did not like to be left alone. He bought her many expensive gifts, took her on extended trips, and purchased two expensive homes in an effort to save the marriage.

Plaintiff contends, however, that the evidence demonstrates that defendant condoned all of her alleged offenses except those that occurred in the last several months that the parties lived together. There is no merit in this...