Slavich v. Slavich

• Citation: 108 Cal.App.2d 451,239 P.2d 100
• Court: California Court of Appeals
• Decision Date: 28 December 1951
• Parties: SLAVICH v. SLAVICH. Civ. 14767.

Page 100

239 P.2d 100

108 Cal.App.2d 451

SLAVICH v. SLAVICH.

Civ. 14767.

District Court of Appeal, First District, Division 1, California.

Dec. 28, 1951.

Rehearing Denied Jan. 26, 1952.

Hearing Denied Feb. 25, 1952.

Edward A. Cunha, Dean Cunha, San Francisco, for appellant.

J. W. Ehrlich, Roy A. Sharff, San Francisco, for respondent.

FRED B. WOOD, Justice.

Plaintiff filed an action for divorce upon the ground of cruelty, and defendant cross-complained for separate maintenance, alleging cruelty and desertion. The trial court found in favor of plaintiff and against the defendant, and rendered its interlocutory decree, granting plaintiff a divorce, dividing the community property, and ordering plaintiff to pay defendant support and maintenance of $100 a month for three years.

The defendant has appealed from the decree, plaintiff has not.

Appellant predicates her appeal upon asserted insufficiency of the evidence to support the findings of facts, inconsistencies in the findings, and denial of a fair trial by certain acts and conduct of the trial judge.

(1) As to the sufficiency of the evidence, appellant questions four of six acts of cruelty which the court found she committed.

A finding that in the presence of one McGill appellant cursed respondent and used profane language toward him on numerous occasions, is supported by the testimony of the witness Francis McGill. He said he visited the home frequently between 1942 and 1948, at times when respondent's son was there; heard appellant swear at respondent, in words he would rather not repeat.

A finding that on one occasion appellant locked respondent out of their home despite the requests of his son, and refused to admit respondent, making it necessary for him to obtain lodging at a hotel that night, is supported by the testimony of respondent, corroborated by that of his son.

A finding that for a period of three years prior to their separation, appellant on various occasions nagged, criticized, cursed, and used profane language to respondent, and that she habitually engaged therein so that it constituted a continuous course of conduct toward respondent, is supported by respondent's testimony that she would swear at him and cursed and raised her voice at him all the time of their married life. That was corroborated by Vernon Williams, a neighbor, who said that on quite a few occasions between 1942 and 1948 he heard appellant call respondent vile and profane names; and by respondent's son, who testified she used profane language, which he would prefer not to repeat. McGill's testimony, above mentioned, is also corroborative.

Appellant denied having said or done any of these things. That produced a conflict in the testimony, which it was the function of the trial court to resolve.

The court also found that when respondent was appointed clerk of the municipal court, and many times thereafter, he requested appellant to quit her employment; that it was reasonable for her to do so but she refused, to the embarrassment of respondent. Respondent testified to that effect, adding that his salary having been increased he wanted her to stay home and take care of the home. Appellant said that he discussed the matter with her and it was decided that she would quit her employment when the house was put in condition, but the war intervened, help was in great demand, and one could not really quit a job; and that as late as 1948 it was agreed she would quit work when they were free from debt. Respondent's testimony on this subject was not corroborated by that of any other witness, but the law does not require that the testimony of a party to a divorce action be corroborated as to each and every item. Bastjan v. Bastjan, 215 Cal. 662, 664-665, 12 P.2d 627; Price v. Price, 71 Cal.App.2d 734, 736, 163 P.2d 501.

The findings which appellant does not question as to sufficiency of the evidence, are that on one occasion appellant called respondent a name of opprobrious connotation, in the presence of Vernon Williams, and that on another occasion in the presence of respondent's son she called respondent a 'North Beach Hoodlum,' told him to get out of the house, and said 'You do not have enough guts to get out' and 'I made you and I will break you.'

In support of her claim that the evidence was slight and trivial, appellant cites certain remarks made by the judge during the course of the trial, such as 'I have been waiting patiently for something specific,' early in the trial, and, later, 'I received the impression at the hearing yesterday that this case is made up almost exclusively of trivial incidents.' The answer to this contention is that a judgment is tested by the trial court's judicial action (not judicial comment), as recorded in the findings of fact and conclusions of law, viewed in the light of the evidence received. See authorities cited in 2 Cal.Jur. p. 808, § 476.

It is clear that the facts found show a course of conduct sufficient to sustain a judgment of divorce for respondent upon the ground of extreme cruelty, with or without consideration of the facts which were evidenced by respondent's uncorroborated testimony.

Concerning the allegations of the cross-complaint, the court found that respondent left home because of appellant's acts of cruelty and because she locked him out of the family home at that time; he did not voluntarily and wilfully separate from her with intent to desert her. That finds support in the evidence despite appellant's sole testimony to the contrary. The court also found that respondent at no time has been guilty of extreme cruelty toward appellant, and that the allegations of the cross-complaint in respect thereto are untrue. It is not necessary to review those allegations and her testimony in detail. She said, among other things, that her principal claim for anything like mental cruelty had to do with his leaving her; that she had no difficulties with him any more than would occur in any family; and that his gambling from time to time affected her. It was the function of the trial judge to appraise her testimony and weigh it with other facts in evidence, which he did.

(2) The asserted inconsistencies in the findings are not subject to challenge by appellant.

Appellant claims the judgment should be reversed because, while granting respondent a divorce upon the ground of extreme cruelty, the court awarded appellant maintenance and support and the greater part of the community property.

First, it is important to note that the asserted inconsistencies occur in the conclusions of law, not in the findings of fact. The court separately found: (1) Appellant committed certain acts of cruelty, (2) certain items of real and personal property belong to the community, (3) respondent is able to pay appellant $100 a month for her support for three years and has stipulated to do so. From these facts, the court drew these conclusions of law: (a) respondent is entitled to a divorce, (b) the community property should be divided in a certain manner, and (c) respondent should pay appellant $100 a month for three years. The interlocutory decree was entered in accordance with the conclusions of law.

Since that portion of the decree which grants plaintiff a divorce is valid and is separable from the award of support and the division of community property, it may and should be affirmed regardless of the validity of the other portions. Harwell v. Harwell, 26 Cal.App.2d 143, 144-145, 78 P.2d 1167.

But appellant is not in a position to challenge the support award and the division of the community property. At most, these awards gave her more than is her right. If anyone may complain, it is the respondent, as the party aggrieved. He is not complaining. He has not appealed. 'No judgment * * * shall be reversed or affected by reason of any error * * *, unless it shall appear from the record that such error * * * was prejudicial, and also that by reason of such error * * * the said party complaining or appealing sustained and suffered substantial injury * * *.' Code Civ.Proc. § 475. This principle is accorded judicial recognition. Estate of Funkenstein, 170 Cal. 594, 150 P. 987; Bostock v. Hulse, 54 Cal.App.2d 334, 338, 128 P.2d 912. Therefore, we do not undertake to determine the validity or invalidity of the award for...