Hellman v. Hellman

• Decision Date: 09 January 1952
• Citation: 108 Cal.App.2d 588,239 P.2d 458
• Court: California Court of Appeals
• Parties: HELLMAN v. HELLMAN. Civ. 14724.

Page 458

239 P.2d 458

108 Cal.App.2d 588

HELLMAN v.HELLMAN.

Civ. 14724.

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

Jan. 9, 1952.

Norman S. Menifee, Redwood City, for appellant.

Francis N. Foley, San Mateo, for respondent.

FRED B. WOOD, Justice.

Defendant appeals from an interlocutory decree which granted plaintiff a divorce on the ground of extreme cruelty, divided the community property, and awarded plaintiff alimony and counsel fees.

Appellant bases his appeal upon asserted (1) lack of corroboration of respondent's testimony concerning the alleged acts of cruelty; (2) erroneous award of support and maintenance to respondent; (3) erroneous award of all the community property to respondent; and (4) award of counsel fees for services already rendered.

(1) As to proof of acts of cruelty, respondent testified that for about five years prior to the separation appellant's attitude was extremely critical; he seemed to be unreasonable; he could not be pleased; he criticized everything she did and made her life at home unbearable in every way; he objected to her knitting; he did not make friends easily and did not seem to like anyone with whom respondent associated, and made things uncomfortable in the home for anyone who came there.This attitude and these expressions on his part were constant during those five years.At various times he talked about someone else he was interested in; he told respondent on several occasions that if she was not satisfied with the way he was, there was some woman who would be.Asked about the effect of this course of conduct on her health, she said there was tension in the home all the time and she found it better if she spent as much time as possible away from home.She joined a couple of garden clubs.She could not get appellant interested in any outside interests, although he did attend a couple of Christmas parties.He never offered to take her any place.There was an entire lack of cordiality and feeling on his part toward her.As to the separation, respondent testified: One morning appellant came into her room and told her he was leaving and taking the car; that this was a separation--he would not be back; that he had seen a lawyer in San Francisco; that he was leaving so she could get a divorce.She asked him for some money, because he had not given her any for a week before that, and he told her there was $10 on the dresser and the telephone number of his attorney in San Francisco and for her to get in touch with the attorney.That is all the money he left her.He took the automobile with him.

The corroborating witness lived next door to the parties for two years prior to the separation.She testified that she was often in their home; that she always felt that they were very ill-suited to each other; that they did not have much in common at all.Asked if appellant was morose and quiet, she said, 'Yes, he always seemed quiet.'She never knew of appellant ever taking respondent to places of amusement or places of that nature.She did not think they cared very much for the same thing.She had noticed that situation existing for about a year.Asked if she observed any effect on respondent with regard to that treatment, she said, 'I think they were unhappy,' and that it made respondent nervous and tense.Here, there is corroboration of some of the material facts related by the respondent.We cannot say as a matter of law that it is insufficient.'The principal object of the corroboration rule is to prevent collusion between the parties, and where it is clear from the evidence in a contested action that there is no collusion the court is justified in granting the decree upon evidence which is only slightly corroborated if otherwise the court is satisfied that the prevailing party is entitled to a decree.'Tompkins v. Tompkins, 83 Cal.App.2d 71, 76, 187 P.2d 840, 843, corroboration of one of a series of acts, in a contested case;see, also, Keener v. Keener, 18 Cal.2d 445, 449, 116 P.2d 1;Krull v. Krull, Cal.App., 233 P.2d 13;La Vigne v. La Vigne, 96 Cal.App.2d 531, 534, 216 P.2d 75;Cairo v. Cairo, 87 Cal.App.2d 558, 561 562, 197 P.2d 208;McGann v. McGann, 82 Cal.App.2d 382, 386-387, 186 P.2d 424;Serns v. Serns, 70 Cal.App.2d 527, 529, 161 P.2d 417;Ungemach v. Ungemach, 61 Cal.App.2d 29, 34, 36-39, 142 P.2d 99.Unlike Truax v. Truax, 62 Cal.App.2d 441, 145 P.2d 88, upon which appellant relies, this corroborating testimony does relate to conduct narrated by the respondent.We have examined the other cases which appellant invokes but find them inapplicable.In Farrand v. Farrand, 77 Cal.App.2d 840, 176 P.2d 773, there was corroboration but the reviewing court concluded that the acts proven were not acts of cruelty which caused grievous mental suffering.In Dean v. Dean, 97 Cal.App.2d 455, 218 P.2d 54, there was no corroboration at all by a third party, as we read the decision.Gleason v. Gleason, 13 Cal.App.2d 231, 56 P.2d 973, was decided upon the basis of corroboration of inconsequential points only.In Del Ruth v. Del Ruth, 75 Cal.App.2d 638, 171 P.2d 34, there was corroboration which the reviewing court deemed sufficient to support the judgment.The cause was remanded for a new trial because the losing party had been arbitrarily and unreasonably limited in the presentation of her case.In Negley v. Negley, 82 Cal.App.2d 355, 186 P.2d 151, the judgment was reversed for insufficient evidence of grievous mental suffering, not for insufficient corroboration of the respondent's testimony even though the reviewing court described the corroboration as meager.

Appellant stresses the following testimony of the corroborating witness, given upon cross-examination: 'Mr. Menifee [attorney for appellant]: All you observed, they did not seem to be happy, is that right?A.Yes.

'Q.Youdon't know any reason for it, do you?A.No, it did seem like two people were living together who should not be together.

'Q.Youdid not blame any particular one?A.That would be difficult to do'; and the following, upon redirect examination:

'Mr. Foley [attorney for respondent]: Q.Did you notice any conduct by Mr. Hellman towards Mrs. Hellman that you felt was not proper or could be objected to?A.No.

'Mr. Menifee: Q.Or vice versa?A.No.'

Insofar as this pertained to probative facts, it tended to produce inconsistencies and uncertainties in the testimony of the witness, which it was the function of the trial court to resolve.Most of it pertained to ultimate facts which it was the function of the court, not the witness, to determine.Such opinions and conclusions of the witness, even though admitted in evidence, could not bind or control the court in making its findings.See cases cited in 10 Cal.Jur. 948, § 211.

(2) The award of alimony, $125 per month, appellant claims is unreasonable because it will consume nearly half of his earnings and because respondent worked prior to the marriage and was working part of the time during the marriage.He also urges that the award of the home and furnishings to respondent lends emphasis to the asserted unreasonableness of the alimony award.

This claim overlooks the evidence that respondent is unable to do any heavy or arduous labor because of a hernia which needs attention; she had been previously employed, despite the hernia, because that work was mostly 'mental'; the work she has been able to find she would be unable to carry on unless the hernia is repaired; she has inquired of two doctors and finds the operation for hernia, and the convalescing, would be quite expensive, about $500; she has not done anything about it because of the expense; she would try secretarial work but has not done any for many years and her typing is very slow and not correct; since the separation, she has had dental work done, and medical care for a growth on her eyes, and has not been able to pay for it.The family home, awarded to her, does not produce an income.She rented some space in it for a time.The last people moved out five months before the trial and she has been unable to get anybody since.The home is encumbered for approximately $5,000, payable at the rate of $60 a month.As an incident of the award of the home to her, it will be her obligation, as between her and appellant, to make those payments.The facts support the award.'The allowance of alimony...