Karas v. Karas

• Decision Date: 25 October 1951
• Citation: 107 Cal.App.2d 135,236 P.2d 415
• Court: California Court of Appeals Court of Appeals
• Parties: KARAS v. KARAS et al. Civ. 4180.

Page 415

236 P.2d 415

107 Cal.App.2d 135

KARAS v. KARAS et al.

Civ. 4180.

District Court of Appeal, Fourth District, California.

Oct. 25, 1951.

Taylor F. Peterson, San Bernardino, for appellant.

Henry F. Rager, Fontana, for respondents.

GRIFFIN, Justice.

Plaintiff and respondent brought this action for divorce against defendant and appellant, based on the charge of extreme cruelty. She sought the custody of the minor child, Roldan Scott Karas, aged two years, distribution of the community property to her, and general relief. Defendant answered and by way of cross-complaint sought a divorce from plaintiff on the ground of adultery with the named corespondent, and upon the ground of extreme cruelty, and sought the same relief for which plaintiff prayed. The trial before the court resulted in a finding and judgment in favor of plaintiff. Defendant challenges the sufficiency of the evidence to support the finding and judgment.

Plaintiff and defendant were married in 1945. According to plaintiff's testimony, they separated on December 13, 1949. This fact is disputed by defendant. Plaintiff testified that defendant drank to excess; that he drank 'wine by the glassful', 'over a quart a day', and that 'you would never see him without a whiskey glass' with liquor in it, even though the bills were not paid; that he was very mean and at night when she came home from work he continually used swear words toward her; that he would threaten to kill her and that she would cry; that he would break dishes and throw dishes through the window panes; that most of their trouble was over sex problems; that defendant suggested plaintiff sleep with other men; and that defendant told her on one occasion he was worried about their minor son because he, defendant, had epilepsy and that it was hereditary. Defendant was being treated at the Veteran's Hospital after he quit work in April, 1948.

Apparently plaintiff and defendant were living with plaintiff's parents who cared for the child. They were living upon a small chicken ranch owned by the parties to this action. Plaintiff's mother and sister corroborated plaintiff's story in many respects.

Defendant produced testimony that indicated that the parties did not separate on the date alleged; and that defendant did not drink to excess. He produced two private investigators who testified that they were employed by defendant to watch plaintiff over a period of time from February 11th to the latter part of March, 1950; that they observed plaintiff going to the apartment of the named co-respondent on several evenings; that the lights were turned off for several hours and that plaintiff would thereafter leave the apartment and return to her home. Plaintiff admitted that she did visit the co-respondent on several occasions but claimed she was listening to phonograph records and that she enjoyed them so much more in the dark; and that her husband knew this latter fact. She denied having any sexual relations with the co-respondent and stated that her attorney told her she could go with anyone she wanted to after she had seen her attorney about the divorce. The complaint in this action was filed on February 28, 1950.

Defendant denied drinking to excess, admitted breaking windows but denied generally the other accusations of plaintiff and testified he was possessed of semi-conscious spells, periods of amnesia and would get lost; that he went to the Veteran's Hospital in June, 1948, received treatment, and was in the hospital for about two months; that he went back periodically and was still receiving treatments. The evidence further shows that shortly before this action for divorce was filed defendant went to New York to be with his relatives and that when this action was filed he returned to California. Defendant's physician diagnosed his condition as 'psychomotor epilepsy' or 'psychoneurotic condition', and as to the latter diagnosis he arrived at this conclusion after seeing defendant in one of these 'attacks'. This is a resume of the evidence upon which the case was submitted to the trial court for decision, at which time the parties agreed that the court might consult with the plaintiff and defendant in chambers respecting the future welfare and well-being of the minor child. Thereafter the court found generally in favor of plaintiff and against the defendant on his cross-complaint, and accordingly awarded an interlocutory decree of divorce to plaintiff. It specifically found that plaintiff was a fit and proper person to have the care and custody of the child, and gave the right of reasonable visitation to defendant, ordered the community property sold, and, after payment of debts, the balance of the property was to be divided equally between the parties. Defendant was required to pay $30 per month toward the support of the child. He appealed from the whole of the judgment.

Most of the evidence produced by the parties was in conflict and the trial court had a right to believe or disbelieve the testimony of any witness. While the question of the sufficiency of the evidence, as a matter of law, to support a finding may be presented to the appellate court for review, that court's duty stops when it has determined that there is some substantial evidence to support it. It will not weigh the evidence, pass upon the credibility of the witnesses, nor substitute its judgment thereon for that of the trial court. 2 Cal.Jur. p. 912, sec. 539. Under this rule the finding that plaintiff...