Lawrie v. Lawrie

• Citation: 242 P.2d 920,110 Cal.App.2d 380
• Court: California Court of Appeals
• Decision Date: 16 April 1952
• Parties: LAWRIE v. LAWRIE. Civ. 18649.

Page 920

242 P.2d 920

110 Cal.App.2d 380

LAWRIE v. LAWRIE.

Civ. 18649.

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

April 16, 1952.

Block & Dunbar, Compton, for appellant.

George Arnold Wilde, Compton, for respondent.

DRAPEAU, Justice.

On June 28, 1949, plaintiff filed her action for divorce against defendant on the ground of extreme cruelty. The complaint alleged that the community property included two parcels of realty. The answer denied the cruelty and also the community character of the realty, alleging that it was held in joint tenancy. Defendant filed a cross-complaint for divorce on the ground of extreme cruelty which was denied by plaintiff's answer.

After a lengthy trial, the court found that both parcels of real estate were community property; that defendant had wrongfully inflicted upon plaintiff great and grievous physical and mental suffering and that the allegations of defendant's answer and cross-complaint were untrue.

The interlocutory judgment awarded plaintiff a divorce from defendant and divided the property between them, awarding the home to plaintiff and the other parcel of realty to defendant.

Defendant appeals.

The parties hereto have been married over thirty years; have two married daughters and a minor son. Both husband and wife work; both are highstrung and nervous. Husband is a veteran of World War I and suffers from pernicious anemia. His mother lives in the home.

Plaintiff testified that she and her husband had quarreled all during their married life; that husband was habitually intemperate although he worked steadily; that he drank after working hours 'almost continuously every night * * * he drinks beer in the house and has a bottle of wine in the garage.' Also, that on one occasion he knocked her down and threatened to choke her; called her names and swore at her, embarrassed and humiliated her before other people, causing her to become nervous and ill.

With respect to specific acts of cruelty, plaintiff testified that on June 12, 1949, defendant came into her room at 7:30 A.M. 'he got in bed with me and his breath smelled of liquor and I asked him if he had been drinking and he said 'No.' * * * I said 'Your breath smells terrible.' * * * And he started to get up out of bed and he pulled me back and I made it out and then he threw me on the floor and put his knee in my neck and held me there for a few minutes and then he let me go and then I screamed for my son, and when I did that he put his knee in my chest and said, 'God damn you, I'll choke you to death.' * * * by that time I was very nervous, so I got up and left the room. * * * I took a bath and I didn't have my dress on and I had washed some stockings the day before and left them in the wash room and I went out there to get the stockings to put on to go to work. He was in the kitchen starting to prepare breakfast * * * when I started to come back into the room he would get on one side to keep me from getting in and I (went) back to the garage * * * And I called my son (to) * * * come stay in the room until I got dressed and went to work. * * * Then when I turned around * * * my husband was coming out of the door and he had my son's kodak * * * he said 'Damn you, I am going to take your picture to show to your friends and your children how you went outside and the way it looked * * *' And there was a hose right there and I picked up this hose with the intention of knocking the kodak out of his hand, and I knocked the kodak out of his hand and also hit him on the hand when I did it.'

On June 15, 1949, when plaintiff returned home from work at 9:00 in the evening, she found her husband in an intoxicated condition with red face and glassy eyes, which 'frightened me so terribly' that she went to a friend's house where she stayed all night.

On Sunday, June 5th, plaintiff stayed all night with her daughter and went directly to her work on Monday morning without stopping at her home; that when she arrived her employer asked 'Mrs. Lawrie, how is your son?' She replied 'What do you mean? * * * and he says 'Your husband was down to the store and says your son was very ill and might have to have an operation.'' That her employer took her home and she went into the house and found that her 'son was lying on the davenport'. Before she spoke to him 'He started to laugh and said 'Mother, why don't you go on back to work? There isn't anything the matter with me.' By that time the Mister had heard me talking to Junior and he came out then and he was so mad he didn't know what to do and he says, 'What in the hell are you doing here? You go back to work where you belong.''

On one occasion when she attended a theatre with her husband's knowledge, she found the doors to the house locked when she returned home. On another, when a salesman was demonstrating a vacuum cleaner for plaintiff, her husband came into the room and said, 'What in hell is going on here. * * * I want you to know that I will not pay any bills that my wife incurs.'

During this period, plaintiff was expecting her sister to visit her and she asked defendant to have the house redecorated because it was greatly in need of it. He refused saying, 'We like it just like this and we can just continue on living in it like this, and I would like to have your sister come out here and see what a dirty housekeeper you are.' Plaintiff and one of her daughters did some painting themselves which defendant said 'was a lousy job and I should be ashamed to have anyone see it.' Defendant also stated to plaintiff 'I am telling you one thing, your sister comes out here, and I'm going to show her just how mean I can get, and I am going to drink and do everything else.' The sister did visit plaintiff and during that time defendant did drink a lot.

One of their sons-in-law contracted polio, and defendant said to plaintiff, 'Well, it was probably you that carried polio to Bill.' Plaintiff testified she took this remark seriously, thought her husband meant it and still thinks so.

The two daughters took the stand and corroborated plaintiff's testimony with respect to defendant's drinking, name-calling, and his attitude in general toward their mother which resulted in the latter becoming very nervous and upset. One daughter testified that in May of 1949, her father asked her to try to persuade plaintiff to sign a note because 'all he wanted was $10,000.00 and his mother and he didn't care about his family.'

Defendant either denied or explained away each incident brought out by testimony on behalf of plaintiff.

It is here urged that the judgment was not justified because respondent's evidence showed that she was equally responsible for the family discord, and that the alleged acts of cruelty on the part of appellant did not cause her grievous mental suffering.

In Keener v. Keener. 18 Cal.2d 445, 447, 116 P.2d 1, 2, our Supreme Court held: 'Section 94 of the Civil Code defines extreme cruelty as 'the wrongful infliction of grievous bodily injury, or grievous mental suffering, upon the other by one party to the marriage'. In each case the infliction of 'grievious 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. Barnes v. Barnes, 95 Cal. 171, 30 P. 298, 16...