Phillips v. Phillips

• Decision Date: 06 November 1951
• Court: California Court of Appeals Court of Appeals
• Parties: PHILLIPS v. PHILLIPS. Civ. 7885. Sac. 6130.

Page 816

236 P.2d 816

PHILLIPS v. PHILLIPS.

Civ. 7885.

Sac. 6130.

District Court of Appeal, Third District, California.

Nov. 6, 1951.

Rehearing Denied Nov. 30, 1951.

Hearing Granted Jan. 3, 1952. ^*

Angell, Hearn & Adams, San Francisco, for appellant.

T. L. Chamberlain, F. L. Sinclair Auburn, for respondent.

DEIRUP, Justice pro tem.

Appellant brought this action for divorce and for a division of the community property. Respondent cross-complained for annulment of the marriage or for divorce. The trial court found both of the parties guilty of extreme cruelty and denied each of them a divorce and made no disposition of the community property. This appeal was taken 'from that certain part of the judgment in said action rendered on the 4th day of October, 1949, whereby the plaintiff is denied a divorce from the defendant.'

The findings and judgment read as follows:

'Memorandum

'The Court finds from the evidence introduced in this case;--1. That the defendant and cross-complainant has wrongfully inflicted upon the plaintiff and cross-defendant grievous mental suffering.

'2. That the plaintiff and cross-defendant has wrongfully inflicted upon the defendant and cross-complainant grievous mental suffering.

'It therefore follows that neither party is entitled to a divorce from the other.

'It is ordered that each party to this action be, and they are hereby denied a divorce from the other.'

The judgment was filed on October 4, 1949. A motion for a new trial on the ground of insufficiency of the evidence was denied. The notice of appeal and demand for a transcript were filed on December 22, 1949. On January 5, 1950, appellant filed a motion for an allowance of $400 a month for alimony, $1,200 for costs on appeal, $3,000 for attorneys' fees and $150 for traveling expenses. On February 1, 1950, the court entered an order allowing $150 a month for alimony, $500 for costs on appeal and $750 for attorneys' fees. It does not appear from the record that an appeal was taken from that order.

Appellant contends that the trial court erred in denying her a divorce; in not making specific findings on the acts of cruelty alleged; in applying the rule of recrimination; in not determining that the property referred to in her complaint was community property and dividing it between the parties; and in making an inadequate allowance for her support pending the appeal.

The evidence adduced at the trial is discussed extensively in the briefs, but we have found it necessary to peruse the entire record in order to determine what actually transpired. The conflicts in the testimony cannot be resolved. A finding that either party was or was not guilty of extreme cruelty would have ample support in the record, depending upon the weight which the trial judge gave to the testimony of the witnesses. For this reason we cannot disturb the finding of the trial court that both of the parties were guilty of extreme cruelty.

It is true that the court did not make special findings on the acts of cruelty alleged. Inasmuch as specific acts were alleged this case is dissimilar from LaMar v. LaMar, 30 Cal.2d 898, 186 P.2d 678, in which it is held that a finding of extreme cruelty is a finding of an ultimate fact and is sufficient if cruelty is alleged in general terms. Nor is it like the case of La Vigne v. La Vigne, 96 Cal.App.2d 531, 216 P.2d 75, in which it is suggested that a general finding of extreme cruelty is probably insufficient where specific acts are alleged in the pleading but that the right to specific findings is waived by the failure to object to the proposed findings which had been served pursuant to Section 634 of the Code of Civil Procedure. Notwithstanding the provisions of that section proposed findings need not be served. Treat v. Superior Court, 7 Cal.2d 636, 62 P.2d 147; Estate of Rosland, 76 Cal.App.2d 709, 173 P.2d 830; Noland v. Noland, 44 Cal.App.2d 780, 113 P.2d 11. And since here the proposed findings were not served, the parties were not given an opportunity to object to them before they were filed and the judgment thereon entered. However since 1939 the trial court has had the power, in ruling upon a motion for a new trial, not only to grant a new trial but also to 'change or add to the findings.' Code Civ.Proc. Sec. 662. Upon the principle that a litigant should give the trial court an opportunity to correct its errors, it would seem that the appellant, having made a motion for a new trial, should have called to the attention of the trial court the defect in the findings if it mattered. Cappelmann v. Young, 73 Cal.App.2d 49, 56, 165 P.2d 950.

In denying the divorce to both parties the trial court applied the principle of recrimination. 'Divorces must be denied upon showing: * * * 4. Recrimination * * *.' Civ.Code Sec. 111. 'Recrimination is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause of divorce.' Civ.Code Sec. 122.

'Since a divorce cannot be granted if the parties are equally at fault, it follows, and statutes sometimes expressly so provide, that if complainant has been guilty of the same offense as defendant, there can be no divorce. Thus, if complainant has committed adultery, no divorce can be obtained on the ground of defendant's adultery. If complainant has been guilty of cruelty, a divorce cannot be obtained because of defendant's cruelty; and assuming that both parties can be guilty of desertion or abandonment, the doctrine of recrimination applies and neither is entitled to a divorce.' 27 C.J.S., Divorce, § 67, p. 626.

The rule rests upon the principle that one who comes into court for relief must do so with clean hands. Brazell v. Brazell, 54 Cal.App.2d 458, 129 P.2d 117. In other jurisdictions there has been a tendency towards the adoption of a principle of comparative guilt, but the general rule is in accord with our statute--that if the parties are equally at fault a divorce cannot be granted to either of them. Blankenship v. Blankenship, 51 Nev. 356, 276 P. 9, 63 A.L.R. 1127 and note; note 170 A.L.R. 1076.

In California cases it has been said that recrimination must be pleaded as a defense, Klemmer v. Klemmer, 42 Cal.App. 618, 187 P. 85; De Haley v. Haley, 74 Cal. 489, 16 P. 248; Avery v. Avery, 148 Cal. 239, 82 P. 967; Brazell v. Brazell, supra and in the other cases in which the principle has been discussed the defense was pleaded. White v. White, 82 Cal. 427, 23 P. 276, 7 L.R.A. 799; Cassidy v. Cassidy, 63 Cal. 352; Smith v. Smith, 119 Cal. 183, 48 P. 730, 51 P. 183. In the present case there was no affirmative defense of recrimination set up to either the complaint or the cross-complaint. We have therefore the question whether it is essential that recrimination be pleaded in bar to enable the trial court to deny both parties a divorce because they are equally guilty.

To make the application of the rule dependent upon affirmative pleas in the answers of the parties would be to defeat its purpose. By failing to enter such pleas parties could compel the court to apply the rule of comparative fault in all cases. In Phillips v. Phillips, 48 Ohio App. 322, 193 N.E. 657, and Veler v. Veler, 57 Ohio App. 155, 12 N.E.2d 783, in which there were petitions and cross-petitions for divorce, it was held that the question of comparative guilt could not be considered by the court. It is the duty of the court to deny a divorce if the parties are equally at fault. That fact may be brought to the attention of the court by a pleading of recrimination as a defense, if the defendant does not desire a divorce. Or it may come to the attention of the court by virtue of a cross-complaint for divorce.

In her complaint appellant alleged that there was community property consisting of the Sandy Beach Resort and its equipment, moneys in bank, life insurance policies, an automobile and other credits. The most important item is the Sandy Beach Resort...