Gordon v. Gordon

• Court: California Court of Appeals
• Writing for the Court: MUSSELL
• Citation: Gordon v. Gordon, 153 Cal.App.2d 373, 314 P.2d 511 (Cal. App. 1957)
• Decision Date: 20 August 1957
• Parties: Pearl GORDON, Plaintiff, Cross-Defendant and Respondent, v. Frank GORDON, Defendant, Cross-Complainant and Appellant. Civ. 5494.

Page 511

314 P.2d 511

153 Cal.App.2d 373

Pearl GORDON, Plaintiff, Cross-Defendant and Respondent, v. Frank GORDON, Defendant, Cross-Complainant and Appellant.

Civ. 5494.

District Court of Appeal, Fourth District, California.

Aug. 20, 1957.

Willard Whittinghill, Crittenden & Gibbs and Harry W. Heid, San Diego, for appellant.

Ratelle & Forest, San Diego, for respondent.

MUSSELL, Justice.

In this action for divorce, commenced on February 16, 1956, plaintiff alleged mental cruelty on the part of defendant and that there was no community property. The defendant in his cross-complaint sought a divorce on the same grounds and alleged that the parties owned as community property certain personal property and also a house and lot in San Diego. The trial court granted a divorce to plaintiff and awarded the real estate to her as her separate property. The defendant appeals from the judgment.

Plaintiff and defendant were married in Yuma, Arizona, on June 9, 1940 and separated February 9, 1956. At the time of the marriage the only property possessed by the parties was an automobile, on which they secured a loan to operate a small cleaning business in San Diego. Plaintiff testified that defendant did not work at the business half of the time; that 'he was drinking pretty heavy then and sometimes he would leave me at 2:00 o'clock in the afternoon and probably wouldn't get back until 4:00 or 5:00 the next morning'; that she had to make excuses to the customers to keep the business going and had to do most of the work; that this business was sold, and in 1945 she bought the house and lot and made the $10,000 down payment herself; that in 1952, the defendant wanted her to make a loan on the house in order that he could go to Alaska and dredge for gold; that she did not want him to go 'but he tormented me until I gave in'; that she signed the loan papers on her home and obtained $1,500, which she gave to the defendant; that on September 30, 1952, the defendant deeded the real property involved to her as her sole and separate property; that in 1954, defendant came back from a trip to Alaska and had lost everything he had; that in 1954, he asked her to take out another loan on the home property for $5,600 and stated that was what he wanted as his part of the porperty, and that if she would give him that much, he would leave her alone and would not bother her any more; that she secured the loan and gave the defendant the sum of $5,600; that defendant then took everything out of the house that belonged to him 'and other things that didn't'; that defendant got into trouble in Alaska and filed a divorce action against her because she would not 'put up' her home to get him out of jail; that defendant wrote to her from the federal penitentiary, wanting her to get him out so that he could come and live with her again.

The record shows that defendant went to Alaska on at least two trips to dredge for gold; that he borrowed money to make the trips and to return, and when in Alaska, he wrote a check for $5,000, for which he was convicted and sent to federal prison.

Appellant first argues that the trial court erred when it denied his motion for a continuance to allow him to be present at the trial. The record shows in this connection that the complaint was filed on February 16, 1956, an answer and cross-complaint was filed on June 29, 1956, and the trial was set for October 3, 1956. The reporter's transcript indicates that the case then went 'off calendar' for several months but it does not appear therefrom whether the postponement was at the request of plaintiff or defendant. The case was thereafter set for trial on January 22, 1957, and on that date defendant's counsel made an oral motion to continue the trial on the ground the defendant was unable to attend because he was then confined in federal prison. The motion was not supported by affidavits and it was denied by the trial court on...