Mueller v. Mueller

• Decision Date: 29 April 1955
• Court: California Supreme Court
• Parties: Gertrude Elsbeth MUELLER, Plaintiff and Respondent, v. Kurt Hans MUELLER, Defendant and Appellant. L. A. 23320.

Page 869

282 P.2d 869

44 Cal.2d 527

Gertrude Elsbeth MUELLER, Plaintiff and Respondent, v. Kurt Hans MUELLER, Defendant and Appellant.

L. A. 23320.

Supreme Court of California, In Bank.

April 29, 1955.

Krag & Sweet and William L. Mock, Alhambra, for appellant.

Dockweiler & Dockweiler and Frederick C. Dockweiler, Los Angeles, for respondent.

TRAYNOR, Justice.

On September 30, 1952, plaintiff Gertrude Mueller filed this action for divorce against defendant Kurt Mueller alleging extreme cruelty. Defendant cross-complained for divorce alleging extreme cruelty and adultery. The parties were married in 1936 and have three children who were 15, 12, and 9 years of age at the time of the trial. Plaintiff testified that it had been a bad marriage and that she had wanted a divorce when she was first pregnant. Defendant frequently cursed plaintiff and broke dishes and on one occasion he brandished a poker over her and one of the children and then dashed it into the fireplace. He threw a radio out of the house when plaintiff's playing it disturbed him, and on at least two occasions he beat her. She was afraid of him, and her mental health has been seriously impaired. On one occasion when she left the house in fear, he threatened to break everything in the place if she did not return at once, and when she returned she found that he had taken pills and was unconscious on the floor. She admitted committing adultery with two men in August, September, and October of 1950 and testified that she had told her husband about these incidents and that they had continued regular sexual relations thereafter. Defendant denied much of the foregoing testimony, but he admitted that he had beaten plaintiff on one occasion. He also testified that she made unfounded accusations of infidelity against him. Both parties made attempts to reconcile their difficulties but to no avail. On the basis of the foregoing evidence and other evidence, much of which was corroborated by other witnesses, the trial court found that each of the parties had treated the other with extreme cruelty and that plaintiff had committed adultery. It also found that both of the parties were fit and proper persons to have custody of the children and that it was for their best interests that their custody be awarded to plaintiff. Judgment was entered granting each of the parties an interlocutory decree of divorce against the other, awarding custody of the children to plaintiff, dividing the community property, and awarding plaintiff $200 per month alimony and $210 per month for the support of the children. Defendant appeals from the entire judgment except that part thereof granting him an interlocutory decree of divorce from plaintiff.

Defendant contends that the trial court erred in failing to find that his cause of action for divorce was in bar of plaintiff's cause of action (see, Civil Code, § 122), and in awarding alimony to a wife found guilty of adultery. We cannot agree with these contentions.

The trial court was justified in concluding that the legitimate objects of the marriage had been destroyed, that its continuation was seriously impairing plaintiff's health and threatening defendant's health, and that it involved an atmosphere of bitterness and hatred in the home that was clearly deleterious to the interests of the children. Accordingly, it did nor err in determining that the marriage should be terminated. De Burgh v. De Burgh, 39 Cal.2d 858, 872-873, 250 P.2d 598; Phillips v. Phillips, 41 Cal.2d 869, 876-877, 264 P.2d 926. It remains to be determined, however, whether it erred in granting a divorce to both of the parties and awarding alimony to plaintiff.

When each of the parties has given the other grounds for divorce, the court may grant a divorce to both, and it 'is clothed with a broad discretion to advance the requirements of justice in each particular case.' The comparative guilt of the parties 'may have an important bearing upon whether or not either one or both should be granted relief', and when 'a divorce is granted to both, alimony may be awarded to either, for the basis of liability for alimony is the granting of a divorce against the person required to pay it. See Civil Code, § 139.' De Burgh v. De Burgh, supra, 39 Cal.2d 858, 872-874, 250 P.2d 598, 606; Phillips v. Phillips, supra, 41 Cal.2d 869, 877, 264 P.2d 926; Hendricks v. Hendricks, 125 Cal.App.2d 239, 242, 270 P.2d 80. Although there is authority to the contrary, see, Phelps v. Phelps, 176 Ky. 456, 195 S.W. 779, 780; Knight v. Knight, 209 Ga. 131, 70 S.E.2d 770, 771; 9 A.L.R.2d 1026, in the absence of statutory provisions expressly prohibiting an award of alimony to a wife guilty of adultery, see Borden v. Borden, 156 Fla. 770, 23 So.2d 529, 34 A.L.R.2d 313, 349, it has frequently been held in other jurisdictions that the wife's adultery does not necessarily cause her to forfeit her right to alimony. Pauly v Pauly, 14 Okl. 1, 76 P. 148; Cross v. Cross, 63 N.H. 444, 446; Jaffe v. Jaffe, 74 App.D.C. 394, 124 F.2d 233, 234; Buerfening v. Buerfening, 23 Minn. 563, 564; Graves v. Graves, 108 Mass. 314, 318; Lunsford v. Lunsford, 232 Ala. 368, 168 So. 188, 190; Ashcroft v. Ashcroft (1902) Prob. 270, 277, C.A; Edwards v. Edwards (1894) Prob. 33, 38; see also, Alldredge v. Alldredge, 119 Utah 504, 229 P.2d 681, 685, 34 A.L.R. 2d 305; MacDonald v. MacDonald, Utah, 236 P.2d 1066, 1069; Patrick v. Patrick, 43 Wash.2d 139, 260 P.2d 878, 881; Burch v. Burch, 3 Cir., 195 F.2d 799, 812; Larson v. Larson, 2 Ill.2d 451, 118 N.E.2d 433, 434; Edwards v. Edwards, 222 Ark. 626, 262 S.W.2d 130, 133. Although many of these cases arose in jurisdictions that permit an award of alimony to a guilty wife even if her husband is blameless, the principle they enunciate is even more applicable in a state such as California in which the guilty wife may receive alimony only if she is granted a divorce against a husband who is also guilty of marital fault. They recognize that comparative guilt is only one factor in determining whether alimony should be awarded and that the needs of the wife and the ability of the husband to provide for her are also important, and they protect the interest of society in not having a wife left destitute. They counsel the wisdom of caution before adopting any arbitrary rule that would fetter discretion and require the trial court to deny alimony merely because the wife has been guilty of adultery. As pointed our by the Supreme Court of Utah in dealing with a similar problem, 'Great caution is necessary to prevent the contentions and strife which frequently exist in contested divorce cases from distorting the judgment by placing extraordinary emphasis on particular instances of blameworthy conduct or some unusual sacrifice or contribution in some one phase of the over-all picture.' MacDonald v. MacDonald, supra, 236 P.2d 1066, 1069. 'It certainly does not comport with good conscience to turn such an unfortunate individual out to fend for herself after...