Hendricks v. Hendricks
| Decision Date | 17 May 1954 |
| Citation | 125 Cal.App.2d 239,270 P.2d 80 |
| Court | California Court of Appeals Court of Appeals |
| Parties | HENDRICKS v. HENDRICKS. Civ. 20036. |
Lauren M. Handley, Los Angeles, for appellant.
Gladys Towles Root, Joseph M. Rosen, Los Angeles, for respondent.
The judgment from which plaintiff appeals, dated November 7, 1952, and entered November 10, 1952, recites that 'The above matter came on regularly for trial on the 14th to 17th and 22nd to 31st days of October, 1952', that both parties were represented by attorneys, and 'the Court having found that by the evidence produced both parties were entitled to a decree of divorce on the grounds of extreme cruelty, and the Court in applying the doctrine of recrimination under the law is required to deny relief to both parties; and findings having been expressly waived in open court; it is ordered, adjudged and decreed that a divorce be denied to each party and that each party bear his own costs'.
Appellant's brief states the grounds of this appeal as follows:
'From an examination of the language contained in the Judgment * * * it would appear that the Trial Court apparently believed it was required to apply blindly the Doctrine of Recrimination under a set of fact such as this and was required to deny relief to both parties. * * *
'It was, however, decided in DeBurgh v. DeBurgh, 39 Cal.2d 858, at page 871, , that no such mechanical application of the Doctrine of Recrimination is proper and the Court therein expressly disapproved cases which appeared to have supported such a mechanical application * * *'.
The DeBurgh opinion, just cited, was decided on November 25, 1952, approximately two weeks after the entry of the trial court's decision in the instant litigation. Holding that a trial court is not 'required' to deny a divorce because of recrimination, the reviewing court in 39 Cal.2d at page 871, 250 P.2d at page 605, 'concluded that section 122 of the Civil Code [the recrimination statute] imposes upon the trial judge the duty to determine whether or not the fault of the plaintiff in a divorce action is to be regarded 'in bar' of the plaintiff's cause of divorce based upon the fault of the defendant.'
Further elucidating the rule to be applied in this matter, the DeBurgh case says, , namely (1) the prospect of reconciliation; (2) the effect of the marital conflict upon the parties; (3) the effect of the marital conflict upon third parties; and (4) comparative guilt. 'We have concluded', said the reviewing court, 'that in light of the foregoing discussion the findings and conclusions in the present case are not sufficient to support the determination that recrimination was established'.
The appellant's brief avers that, from the pleadings and affidavits on file, it appears in the present case (1), 'That prospects of reconciliation appear totally absent (Clerk's Transcript, p. 40); (2) That continued litigation and marital conflict appear likely to ruin the health and finances of both the parties (Clk.Tr., p. 41); (3) That the effect of this discord on the children of the marriage, both of whom have now almost obtained their majority, appears degrading and bestial (Clk.Tr., pp. 9-11, 20, 21); (4) It would appear from the Court's findings that they are both guilty of cruelty'. Appellant also calls attention to the fact 'that recrimination was not, apparently, pleaded by either of the parties'.
Answering the foregoing contentions, respondent's brief states that since this is an appeal on the judgment roll alone, and there is no transcript of the evidence, and findings were waived, 'The evidence is presumed to support the judgment in the absence of findings'. Respondent further claims that there is no evidence 'that the trial judge blindly adopted the doctrine of recrimination', and that 'There are no facts before this court to show that the conduct of the parties was not such as to bar a decree of divorce to each of them'. The DeBurgh case supra, 'did not hold', respondent says, 'that recrimination could not bar a divorce but that the question of whether or not it existed in bar of divorce is one of fact...
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