Speer v. Speer
| Decision Date | 05 November 1962 |
| Court | California Court of Appeals Court of Appeals |
| Parties | James William SPEER, Plaintiff and Appellant, v. Margaret Lillian SPEER, Defendant and Respondent. Civ. 26268. |
Walter H. Young, Los Angeles, for appellant.
Bailie, Turner, Lake & Sprague, Los Angeles, for respondent.
Plaintiff husband appeals from a judgment denying him a divorce and granting defendant wife a decree of separate maintenance as prayed for in her cross-complaint. In addition to an award of permanent support, the decree also divided the property of the spouses between them and contained other provisions which are here challenged.
The parties were married in 1936 and separated in 1957. The present action was instituted in January of 1958, and the judgment appealed from was entered on April 17, 1961--the delay incident to the culmination of the trial is likewise made the subject of plaintiff's criticism. Differences arose rather early in the marriage. We mention a few which, according to the plaintiff, reveal such an unwholesome relationship that its perpetuation would be a mockery of marriage. (De Burgh v. De Burgh, 39 Cal.2d 858, 867, 250 P.2d 598.)
First, plaintiff complains that he was generally unable to have satisfactory marital relations for several stated reasons; however, it appears that plaintiff knew of these matters before the marriage and it further appears, at least by inference, that he was generally not too dissatisfied with the situation. In 1940 the parties moved to a small house on Twickingham Avenue, Los Angeles, where they continuously resided until their separation. With them moved defendant's mother at whose home the parties had theretofore lived. The mother did most of the cooking and ironing, and all of the mending. The house was so crowded that it became necessary to convert a stall shower into a storage closet. During this time the parties had dogs, of various breeds and five to eight in number, living with them. Two were males which fought with each other; certain rooms in the house had to be partitioned off to keep the dogs from fighting. All dogs slept in the house; whenever there was an unusual noise (and this happened almost nightly) they would bark--always in unison. On several occasions defendant threatened suicide when plaintiff complained about getting rid of the dogs. There were two beds in the bedroom. Defendant moved out of this room about 15 years prior to the separation; thereafter she slept in the den with the dogs. During the last year of their life together, she denied him intercourse. Plaintiff usually returned from work at 6:00 o'clock. He ate his meals on a chair with the plate on his lap; defendant ate her meals in the den. The mother usually prepared the meals; she ate off the breadboard. There was also testimony that defendant was not a good housekeeper in other respects. The overall picture presented, if believed by the trier of fact, would indeed suggest that, 'the purposes of family life [were] no longer served and divorce [should] be permitted.' (De Burgh v. De Burgh, supra, 39 Cal.2d 858, 864, 250 P.2d 598, 601.)
On the other hand, plaintiff expressly concedes that there was 'much disputed evidence' on the matters heretofore related; specifically, whether plaintiff complained about 'the foregoing items,' whether defendant actually refused him intercourse, whether defendant was or was not a good housekeeper--to mention a few. In this connection, it appears that plaintiff was not altogether unhappy about the fact or extent of the canine companionship with which he was daily (and nightly) confronted; in 1937 he bought defendant their first dog as a Christmas present, and another dog was purchased when the parties thereafter decided to raise puppies and sell them. The trier of fact was also entitled to infer that plaintiff ate his meals in the manner already described because, like many other normal persons, he was a devotee of television and watched these programs while seated in a special reclining chair.
In the last analysis, therefore, it seems that this particular phase of the appeal is controlled by the principle that 'considerable latitude is allowed to the [trial] court in determining whether such acts constituted extreme cruelty of the nature and kind as to make mandatory a severance of the marital bonds.' (Polk v. Polk, 50 Cal.App.2d 653, 123 P.2d 550, 551.) After stating that the trial court is aided by the opportunity of having the witnesses before it and observing their candor and truthfulness, the Polk case declares: 'Whether in a given case the conduct of one of the spouses was such as wrongfully to inflict upon the other party to the marriage the 'grievous bodily injury' or 'grievous mental suffering' referred to in the statute, is a pure question of fact, to be deduced from all the circumstances of each particular case, and as stated in Van Camp v. Van Camp, 53 Cal.App. 17, 199 P. 885, 887, 'no arbitrary rule of law as to what particular probative facts shall exist in order to justify a finding of the ultimate facts of its existence can be given.'' (p. 657, 123 P.2d p. 551.) Too, 'On appeal from a judgment in a divorce action, as in other actions, every intendment is in favor of the findings made by the trial court.' (Manzanares v. Manzanares, 190 Cal.App.2d 771, 778, 12 Cal.Rptr. 239, 242.) With one exception (to be presently noted) plaintiff's whole argument, extensively and vigorously pursued, simply 'splinters on the familiar rock that the trial court resolves such questions of fact and that the findings will not be disturbed if supported by substantial evidence.' (Clevenger v. Clevenger, 189 Cal.App.2d 658, 675, 11 Cal.Rptr. 707, 717.) Here the findings of plaintiff's cruelty and misconduct are sufficiently supported by the evidence.
There is this somewhat singular situation in the present case, as plaintiff points out Since De Burgh, supra, 39 Cal.2d 858, 250 P.2d 598, it has been both proper and common to grant a divorce to both parties when the circumstances warranted. One of the problems argued pro and con, from the trial's inception to its end, was the authority of the court to grant a divorce and separate maintenance in the same action. Plaintiff concedes that no case, directly in point, for the unprecedented step he asked the trial court to take has been found. However, at several sessions the trial judge indicated that 'there should be a complete divorce here, no matter what is done'; but always recognizing the problem 'whether or not divorce and separate maintenance can be granted at the same time.' Defendant persisted in her prayer for separate maintenance, she did not ask for a divorce; on the other hand, plaintiff prayed for a dovorce. Finally, after much colloquy, the trial judge said that 'a very substantial divorce cause was presented by the wife' and indicated he would grant her decree of separate maintenance. Plaintiff argues, however, that it was the lower court's doubt that the law would support the granting of a divorce and a separate maintenance in the same action, not the weakness of his case in chief that motivated the trial court's action in denying him a divorce. But this is not true for it is apparent from the evidence, the findings of the trial judge and the court's statement to the parties, that on the evidence plaintiff was not entitled to a divorce; thus the 'comparative guilt' of the parties mentioned in De Burgh v. De Burgh, 39 Cal.2d 858, 250 P.2d 598, has little bearing on the case at bar. It is important to note, that the De Burgh opinion does not compel an award to both parties in all cases of dual martial fault. See, for example, Mueller v. Mueller, 44 Cal.2d 527, 530, 282 P.2d 869, 870, where the court (citing De Burgh) declared that, 'The comparative guilt of the parties 'may have an important bearing upon whther or not either one or both should be granted * * *.'' Implicit in the comments of the court, just quoted and to follow, is the recognition of this factor of comparative guilt: '* * * it seems to the court that the case is a one-sided case from the standpoint of the defendant and cross-complainant and I would think regardless of this attempt of showing adultery, which I assume could have been gone into more thoroughly except that the court more or less restricted proof on that subject, the issue of cruelty is directly proved.' Continuing, Accordingly, Finding VI is to the effect that 'at various places since April of 1957, plaintiff has committed adultery with one (naming her) within the County of Los Angeles, State of California.'
In the exercise of sound discretion, therefore, the court could have granted a divorce to the wife, had sh...
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