Lawatch v. Lawatch

• Decision Date: 02 July 1958
• Court: California Court of Appeals Court of Appeals
• Parties: Rudolf LAWATCH, Plaintiff and Appellant, v. Gertrude J. LAWATCH, Defendant and Respondent. Civ. 23026.

Page 603

327 P.2d 603

161 Cal.App.2d 780

Rudolf LAWATCH, Plaintiff and Appellant, v. Gertrude J. LAWATCH, Defendant and Respondent.

Civ. 23026.

District Court of Appeal, Second District, Division 2, California.

July 2, 1958.

Rehearing Denied July 28, 1958.

Hearing Denied Aug. 28, 1958.

Bodkin, Breslin & Luddy, Henry G. Bodkin, Los Angeles, for appellant.

C. E. Spencer, Gray, Binkley & Pfaelzer, William P. Gray and Orville A. Armstrong, Jr., Los Angeles, for respondent.

FOX, Presiding Justice.

This is the second chapter in the litigation involving the marital difficulties and property rights of Mr. and Mrs. Lawatch.

The first chapter was initiated by Mrs. Lawatch's filing a complaint for separate maintenance which, however, was amended to state a cause of action for divorce. The husband countered with a cross-complaint also seeking a divorce. This first suit resulted in an amended decree on February 18, 1952, denying each party a divorce. The court found that each of the parties was guilty of extreme cruelty but denied either a decree on the ground of recrimination. ¹ However, the court did decree that the wife was entitled to live separate and apart from her husband, and to have the custody of the six minor children; the court ordered the husband to provide for the support and maintenance of the wife and the children, and ordered him to vacate the family home. The court found that all the property of the parties was community property, and that it was to the best interests of the parties not to divide the property at that time. There was no appeal from this decree.

The present action for divorce was commenced by the husband in 1956. The wife filed a cross-complaint also seeking a divorce. The court found that each party was guilty of extreme cruelty, and granted a decree of divorce to each. It held that all the property was community property and divided it equally between the parties. To effectuate this result, the court awarded the wife a lien for approximately $33,000 on the business known as 'Lawatch, Ltd.' The court awarded the wife $400 per month alimony, custody of the six children, and $100 per month support for each of them.

The husband appeals from those portions of the interlocutory decree which provide:

1. That the wife is entitled to a divorce;

2. That the custody of the minor children is awarded to the wife;

3. That the home is awarded to the wife; ²

4. That the wife should have a lien for $33,335.47 on the property, business and goodwill of Lawatch, Ltd.;

5. That the wife is awarded 250 shares of the stock of Lawatch Display Fixtures, Inc.; ² and

6. That the wife shall receive $400 a month alimony and $100 a month for support of each of the six children.

The husband's first contention is that the evidence does not sustain the court's finding that he was guilty of extreme cruelty toward his wife.

We need do no more here than adumbrate the husband's misbehavior since the February 1952 decree: In defiance of the court's order, he remained in the family home for some 14 months after the entry of the decree. He repeatedly told his wife that she was crazy, often in the presence of the children. He told the children many times that they did not have to mind their mother. At times, when the wife had company, he would loiter around outside or underneath the house in an effort to overhear the conversation. Upon occasion the husband was intoxicated in the presence of the wife and children. His failure to pay federal income taxes caused a lien to be filed against the home, thereby greatly disturbing his wife. Although he was not supposed to be living in the house and the custody of the children had been awarded to the wife, on more than one occasion he administered physical punishment to one of the children. The husband's remaining in the home created a difficult situation and caused the wife and children to live under a great deal of tension.

The wife's testimony indicated that the husband's conduct directly and detrimentally affected her health; that her physical condition improved after he finally moved out of the home, pursuant to a subsequent court order.

'When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact. [Citations.]' Primm v. Primm, 46 Cal.2d 690, 693, 299 P.2d 231, 233. In Keener v. Keener, 18 Cal.2d 445, 116 P.2d 1, the wife alleged that during the last three years of her married life plaintiff on numerous occasions lost his temper and found fault with her in the presence of friends and acted in a peculiar manner; that he remarked in the presence of friends that she was not a good or proper wife; that he told her she should get out and support herself, and that he requested her to apply for work. She alleged that these acts caused her grievous mental anguish. At the trial the wife testified regarding the acts of her husband substantially in accord with the allegations of her pleading. She was granted a divorce. On appeal the Supreme Court rejected the husband's contention that the evidence was insufficient to sustain the decree. In the course of the opinion the court stated (18 Cal.2d at pages 447-448, 116 P.2d at page 2): 'In each case the infliction of 'grievous mental suffering' is a question of fact to be deduced from the circumstances of the case, in the light of the intelligence, refinement and delicacy of sentiment of the complaining party. [Citations.] A correct decision must depend upon the sound sense and judgment of the trial court. [Citations.] Its conclusion will not be disturbed unless the evidence is so slight as to indicate an abuse of discretion. [Citations.]

'A course of conduct by which one party to the marriage continually indicates dissatisfaction with the other and makes such dissatisfaction known to friends of the parties may well cause humiliation, embarrassment and mental anguish to a degree constituting extreme cruelty. In the instant case plaintiff [the husband] was a teacher in the public schools and his loss of temper and repeated criticisms of defendant [the wife] in the presence of their friends and his statements, after more than twenty-five years of marriage, that she should support herself were sufficient to constitute extreme cruelty if they prove to have caused her grievous mental suffering. The trial judge was in a position to observe the intelligence, refinement and delicacy of sentiment of the defendant and to determine whether plaintiff's conduct caused her grievous mental suffering. In the absence of an abuse of discretion, his conclusion cannot be disturbed.'

In Bixby v. Bixby, 120 Cal.App.2d 495, 498, 261 P.2d 286, 287, the court stated: 'Proof of extreme cruelty may be made by testimony of cruel remarks made by one spouse to the other.' See, also, Maloof v. Maloof, 175 Cal. 571, 573, 166 P. 330; Stevens v. Stevens, 92 Cal.App.2d 85, 87, 206 P.2d 418.

Applying these principles it cannot be said as a matter of law that the trial court abused its discretion in determining that the conduct of the husband constituted extreme cruelty toward his wife.

The findings in the first action between these parties fortify our conclusion herein. In the first action the court found that the husband was guilty of extreme cruelty. Although he remained in the home some 14 months after the entry of that decree, the evidence clearly shows that they lived separate and apart and that there was no condonation of his misconduct. Under such circumstances the finding of the trial court in the first action lends support to the findings and judgment in the wife's favor in the instant case. Jenkins v. Jenkins, 125 Cal.App.2d 109, 115, 269 P.2d 908; Quagelli v. Quagelli, 99 Cal.App. 172, 175, 277 P. 1089. In the Jenkins case the wife had previously secured a decree of separate maintenance based upon the husband's extreme cruelty. Thereafter, in a suit for divorce, the wife pleaded the decree of separate maintenance, the finding that the husband was guilty of extreme cruelty, that the decree had become final and that since its entry she had lived separate and apart from him and had not cohabited with him or forgiven him any of the offenses on which the finding of cruelty was based. The husband did not disprove the judgment of separate maintenance nor the other facts alleged. The trial court found on the issue of extreme cruelty in accordance with the decree in the maintenance action. The appellate court held that the the trial court could properly base its finding of extreme cruelty on the facts proved in the prior action for separate maintenance. Quagelli v. Quagelli, supra, also supports this principle.

The husband also argues that the wife's testimony on the issue of extreme cruelty is not sufficiently corroborated. 'The extent of the corroboration necessary for the granting of a decree of divorce is not defined in any of our statutes. It is not necessary to corroborate all of the acts of cruelty charged by the party to whom the decree is granted. Where a number of charges of cruelty have been made, corroboration of a single act of cruelty may be sufficient. [Citations.] Moreover, the rule requiring corroboration is not so strictly applied in hotly contested divorce actions as it is in actions where a decree is demanded upon the default of the opposing party. 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. [Citations.]' Serns v. Serns, 70 Cal.App.2d 527, 529, 161 P.2d 417, 418; see, also, Bixby v....