Noble v. Noble
| Decision Date | 05 February 1953 |
| Citation | 115 Cal.App.2d 786,252 P.2d 1001 |
| Parties | NOBLE v. NOBLE. Civ. 19195. |
| Court | California Court of Appeals Court of Appeals |
Robert Wanamaker, Pasadena, for appellant.
Poole & Mardian, Pasadena, for respondent.
Plaintiff appeals from an interlocutory judgment of divorce granted to the defendant husband upon his cross-complaint.
The parties were married in 1932 and separated in 1944. There are two children of the marriage, both boys, born respectively in 1933 and 1938. By her complaint for separate maintenance plaintiff charged that during the year 1943 defendant treated her cruelly, causing her to become physically and mentally sick and requiring her to be placed in a sanitarium and in a state hospital; that upon her recovery in 1948 she attempted to return to the family home, but defendant refused to admit her and failed to provide for her support. In his cross-complaint defendant alleged that since the marriage of the parties the plaintiff had treated him with extreme cruelty by striking him about the head and face on many occasions; that in 1941 she left the home of defendant with the children and remained away for a year; that upon her return she continued her course of slapping and physically abusing the defendant, ridiculing him, and quarrelling without provocation; that when plaintiff refused to undergo medical treatment she was in February, 1944, adjudged incompetent and confined in Mission Lodge Sanitarium and subsequently in Camarillo State Hospital; that she was released from Camarillo in 1947 on a probationary status; that following her release defendant refused to allow plaintiff the custody of the children because of the advice of plaintiff's physician that she might harm them; that following her release, 'on occasions too numerous to mention, plaintiff quarrelled violently with defendant, insisting upon the custody of said children although said minor children did not and do not now desire to reside with her.'
The trial court made findings in accordance with the allegations of the husband's cross-complaint, and further found that the defendant had not treated plaintiff cruelly and had not deserted her, but that plaintiff had continually inflicted bodily harm on defendant from 1932 to 1944, and after her release from the state hospital, she visited the home of the parties 'and upon such occasions did abuse the defendant and cross-complainant by shouting at him and quarreling with him in the presence of the children although the children had expressed their desire to and did desire to reside with defendant and cross-complainant.'
Appellant urges, first, that the trial court erred prejudicially 'in refusing to consider the evidence of the husband's adultery under the general allegations of cruelty' contained in the wife's complaint for separate maintenance. Testimony concerning the alleged adultery was admitted without objection, although it had not been mentioned in the plaintiff's complaint. Examination of the reporter's transcript discloses, however, that while the trial court did decline to permit an amendment to the complaint 'to...
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