Nunes v. Nunes

• Decision Date: 06 November 1964
• Citation: 62 Cal.2d 33,396 P.2d 37,41 Cal.Rptr. 5
• Court: California Supreme Court
• Parties: , 396 P.2d 37 Helen NUNES, Plaintiff and Appellant, v. Gordon M. NUNES, Defendant and Respondent. L.A. 27360.

Page 5

41 Cal.Rptr. 5

62 Cal.2d 33, 396 P.2d 37

Helen NUNES, Plaintiff and Appellant, v. Gordon M. NUNES, Defendant and Respondent.

L.A. 27360.

Supreme Court of California, In Bank.

Nov. 6, 1964.

Brock & Shapero, Brock & Fleishman, Edwin S. Saul and Robert L. Brock, Hollywood, for plaintiff and appellant.

Snow & Snow and Hugh John Snow, Beverly Hills, for defendant and respondent.

MOSK, Justice.

The trial court granted interlocutory decrees of divorce to both plaintiff Helen Nunes and defendant and cross-complainant Gordon Nunes, finding that each had wrongfully inflicted grievous mental suffering upon the other, and that defendant had inflicted grievous bodily injury upon the plaintiff. On this appeal, plaintiff claims that the evidence does not support the finding that she inflicted mental suffering upon defendant, that the court erred in denying her alimony and in making its award of the family home to her as her separate property 'subject to the joint right' of the parties' minor child to the use and occupancy of the home.

Plaintiff and defendant were married in 1940, and their only child, Barbara, was born on March 31, 1943. At the time of the marriage, defendant worked as a cartoonist. During World War II he was employed at an aircraft factory, and after the war he returned to college. In 1948 defendant obtained a teaching position at the University of California at Los Angeles where in 1961 he was appointed to a full professorship in the art department at a salary of $1,033.33 per month.

Plaintiff returned to work after the war when her husband resumed his college education, and she continued to work full time until 1950, after which she has been employed, on various occasions, on a parttime basis. About seven months before the divorce trial, she was ill and quit her job as a supervisor in a nursery school, where she had received $210 per month for a 'half time job.'

Recitation of the melancholy events contributing to the ultimate disintegration of this marriage serves no salutary purpose. A synopsis becomes necessary, however, in view of plaintiff's challenge to the sufficiency of the evidence reflecting upon her conduct.

There was evidence of marital discord commencing as early as 1947. Defendant testified that plaintiff would become enraged and curse him, that on a number of occasions she would withdraw from family life by remaining silent for days at a time, that she would confine herself to her bedroom, become stuporous with sedatives for as long as an entire weekend, and that on other occasions she would absent herself from the family home overnight and fail to account for her whereabouts. According to defendant, plaintiff was rude to his friends and business associates.

Defendant also testified that the normal marital relationships and obligations were terminated in 1956, although the parties continued to reside in the family home until 1961, that no divorce was sought because it was believed that a divorce would be detrimental to the welfare of their daughter, that after their separation the parties would prepare and eat their breakfasts separately, that ordinarily the wife did not prepare dinner, that she avoided his company, that usually no conversation took place between them, and that they maintained separate bank accounts for their personal earnings. There is also evidence that a number of years ago each of the parties committed adultery.

The daughter of the parties testified that on a number of occasions plaintiff refused to speak to anyone for two or three days and that frequently plaintiff would scream and become hysterical. A relative also corroborated parts of defendant's testimony.

Plaintiff maintained that her emotional outbursts and curious behavior were a reaction dictated by her husband's constant criticism, including the charge that she was emotionally unstable. There is also substantial evidence of misconduct on the part of defendant, including testimony that on two occasions he resorted to violence.

At various times each of the parties underwent psychiatric treatment. Plaintiff was a patient at the Menninger Clinic in Kansas on three occasions, and both parties were undergoing psychiatric treatment at the time of this trial.

Determination of whether there has been an infliction of grievous mental suffering justifying the award of a divorce is ordinarily one of fact and is to be determined from the circumstances in light of the intelligence, refinement, and delicacy of sentiment of the complaining party. (Lipka v. Lipka (1963) 60 Cal.2d 472, 475, 35 Cal.Rptr. 71, 386 P.2d 671; Kirsch v. Kirsch (1953), 119 Cal.App.2d 271, 275, 259 [62 Cal.2d 37] P.2d 444.) There is substantial evidence of conduct on the part of plaintiff likely to inflict grievous mental suffering, and much of the evidence is corroborated. The sufficiency of the corroborative testimony in a divorce action lies within the sound discretion of the trial court. (Lipka v. Lipka, supra.) Where the cruelty consists of successive acts of ill-treatment, it is not necessary that there be direct testimony of other witnesses to every objectionable act. (Keener v. Keener (1941) 18 Cal.2d 445, 449, 116 P.2d 1.) Although, as contended by plaintiff, defendant is an intelligent and educated man who, as a professor, has had experience in dealing with emotional and personality problems, he also had to undergo psychiatric care, and he contended that his wife's conduct interfered with the proper performance of his work.

Plaintiff insists that her infliction upon defendant of grievous mental suffering was not 'wrongful' within the meaning of section 94 of the Civil Code because assertedly the record establishes that the acts of which defendant complained were a product of her mental condition and not within her power to control. However, the record reveals no expert testimony to the effect that she was unable to contain her offensive conduct, and the court was not required to so find.

If we assume arguendo that plaintiff's conduct was basically attributable to her emotional difficulties and that she was unable to discipline herself, it does not follow that defendant must be denied a divorce. De Burgh v. De Burgh (1952) 39 Cal.2d 858, 867-868, 250 P.2d 598, recognized marriage failure as a social problem and indicated correspondingly less preoccupation with establishing technical marital fault. This is suggested also by the designation in section 92 of the Civil Code of incurable insanity as a ground of divorce; when a union is affected by insanity of one spouse, fulfillment of the normal purposes of marriage is frustrated. Similarly, fulfillment of the normal purposes of marriage may be frustrated if conduct of one spouse, although the product of emotional problems not amounting to the malady defined in law as incurable insanity, inflicts grievous mental suffering upon the other. As long ago as 1909, this court...