McClellan v. McClellan
| Decision Date | 08 April 1958 |
| Citation | 159 Cal.App.2d 225,323 P.2d 811 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Thelma G. McCLELLAN, Plaintiff and Appellant, v. Frank McCLELLAN, Defendant and Respondent. Civ. 22686. |
Norman Berris, Los Angeles, for appellant.
Culver Van Buren, Burbank, for respondent.
Plaintiff appeals from a judgment wherein a divorce was granted to both parties on grounds of extreme cruelty; respondent was ordered to pay to appellant wife as alimony the sum of $175 per month for a period of one year only; and custody of the 18-year-old son of the parties was awarded to appellant. No provision was made for the support and maintenance of the minor son, the trial judge having found that he was self-supporting. The court also found that certain real estate, consisting of the family home, was community property and ordered it sold, the proceeds of the sale to be divided equally between the parties.
The appellant herein contends that the trial court abused its discretion (1) in awarding alimony for a period of one year only; (2) in making no provision for the support and maintenance of the 18-year-old son; and (3) in finding that the quitclaim deed executed and handed over by respondent to appellant was inoperative and that the property was in fact community property.
It becomes apparent from appellant's brief that although she complains of an 'abuse of discretion' her contentions are actually based upon an alleged insufficiency of the evidence to support the findings and judgment.
The rule is well settled that where the record discloses substantial evidence in support of the findings and judgment a reviewing court will not re-evaluate the credibility of the witnesses, re-appraise the weight of the evidence adduced before the trial judge, or draw inferences contrary to those drawn by the trial court. This principle seems particularly applicable in a 'dual divorce' case involving comparative fault, in which the trial court has granted a divorce to each party. De Burgh v. De Burgh, 39 Cal.2d 858, 250 P.2d 598.
The parties herein were accorded full opportunity to present evidence bearing upon the issues involved. During the trial, which lasted four days, the judge was able to observe the witnesses, their appearance, demeanor and manner of testifying, and to evaluate their credibility. Considerable evidence was received by the trial court with respect to the acts of cruelty committed by both parties; the health and financial circumstances of husband and wife and their minor son; and the circumstances surrounding respondent's delivery of a quitclaim deed to appellant.
The parties were married in 1934, and, after a separation and subsequent reconciliation, finally separated in January, 1956. Appellant is a 45-year-old woman who, although unskilled and without a trade, has worked as a presser. She testified that for the past year she has been under the care of a doctor for endometriosis, which sometimes is painful and requires her to go to bed.
Respondent testified that at the time of the separation appellant appeared to be in very good condition, that she seemed to be able to go out as much as she desired and to do the things she wanted to do, and that she did not appear to be in any way hampered.
The record throughout discloses that appellant frequently went out in the evening, usually did not retire at night until a late hour, and engaged in numerous and various social activities, during both day and night. Although endometriosis is a disease causing bleeding of the tissues, the record is silent as to the extent to which it affects appellant; what if any disability it causes and whether it prevents her from seeking and taking employment; what treatment, if any, she is receiving for this condition; and when and how often she visits her doctor. No medical evidence was offered on behalf of appellant.
In connection with appellant's first contention concerning the award of alimony to her for a period of one year only, the rule is clear that the trial court is given a broad discretion in determining the amount of alimony to be paid and the period during which payment shall continue, which discretion ordinarily will not be interfered with on an appeal save for a manifest abuse thereof. That these matters are within the discretion of the trial court is made plain by Section 139 of the Civil Code which provides that such court may 'make such suitable allowance to the wife for her support, during her life, or for a shorter period, as the Court may deem just, having regard to the circumstances of the parties respectively'. (Italics added.)
Out California courts have consistently voiced approval of this principle. In Fillmore v. Fillmore, 74 Cal.App.2d 418, 421, 168 P.2d 725, 726, the reviewing court said: Similar expression is found in Newbauer v. Newbauer, 95 Cal.App.2d 36, at page 40, 212 P.2d 240, at page 243:
The principle mentioned is not limited to any specific set of facts; in any and all cases the...
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