Weil v. Weil

• Decision Date: 11 October 1951
• Citation: 37 Cal.2d 770,236 P.2d 159
• Court: California Supreme Court
• Parties: WEIL v. WEIL. L. A. 21160.

Page 159

236 P.2d 159

37 Cal.2d 770

WEIL v. WEIL.

L. A. 21160.

Supreme Court of California, in Bank.

Oct. 11, 1951.

Norman Newmark and George I. Devor, all of Los Angeles, for appellant.

Francis C. Whelan, Los Angeles, in pro. per.

Pacht, Warne, Ross & Bernhard, Isaac Pacht, Clore Warne, Rudolph Pacht, Shirley Adelson Siegel and Maxwell E. Greenberg, all of Beverly Hills, for respondent.

TRAYNOR, Justice.

Plaintiff, Felix J. Weil, brought this action for divorce against defendant, Helen K. Weil, alleging extreme cruelty. Defendant answered, denying cruelty, and cross-complained for separate maintenance, alleging desertion and forty-three specific acts of cruelty. By stipulation the allegations of the cross-complaint were deemed denied. At the conclusion of the trial defendant amended her cross-complaint to pray for a divorce. It was agreed that all findings might be waived, except the finding that plaintiff was guilty of one of the specific charges of cruelty. A divorce was granted to defendant, she was awarded thirty months alimony at $300 a month, certain contested furs and jewels were decreed to be her separate property, and plaintiff was ordered to pay specified sums to her attorneys. The family home was adjudged to be the separate property of plaintiff. Defendant and her then attorney consented to the judgment and agreed to accept it as 'final.'

Shortly after the decree was entered, defendant announced her refusal to comply with its provisions. She discharged her attorney, moved for a new trial, and then engaged her present counsel. The motion for new trial was denied. Requests for orders requiring plaintiff to pay fees for defendant's counsel and costs in connection with the new trial motion and for similar fees and costs on appeal were also denied. Defendant has appealed from the judgment and from the orders denying fees and costs. Plaintiff has not appealed.

Defendant's principal contention is that the trial judge was guilty of misconduct in coercing her into amending her prayer and consenting to the judgment. In support of this contention she has filed an affidavit describing the circumstances under which the alleged coercion took place and has also presented an affidavit of her trial attorney, Francis C. Whelan. Counter-affidavits have been filed by plaintiff and by his attorneys, Isaac Pacht and Rudolph Pacht. Certain statements made by the trial judge on the last day of the trial and during the argument on defendant's request for counsel fees in connection with the motion for new trial are also pertinent.

The question presented is one of fact. In deciding this question, we have carefully examined not only the foregoing affidavits but also the entire trial transcript and the numerous exhibits. The judicial conduct claimed to be improper consisted of comments by the judge to counsel at the bench and in chanbers; of necessity, therefore, we have relied principally upon the affidavits of the attorneys who were present on those occasions. We have given less weight to the self-serving statements of defendant's affidavit, not only because she proved at the trial to be an unreliable witness, but also because her version of the judge's remarks is hearsay and goes beyond that of her trial attorney, from whom she obtained her information.

The trial lasted fifteen days. The transcript discloses that on the twelfth day of testimony the trial judge interrupted cross-examination of defendant to call counsel to the bench. The affidavit of Francis C. Whelan, defendant's attorney, recites that the judge 'stated in substance, among other things, that he felt it was needless to prolong the trial and that in the event defendant and cross-complainant amended her cross-complaint to ask for a divorce he, the said Judge, was disposed to grant her a divorce and alimony for a short period, but that he, the said trial Judge, didn't believe in separate maintenance for short marriages and that unless there was additional evidence that he hadn't heard he didn't consider that separate maintenance should be granted in this case * * *.' Plaintiff's attorney's version of this conference (the Isaac Pacht affidavit) is that the judge 'stated that in view of the admissions and contradictions already elicited under cross-examination, he could see no useful purpose being served in my continuing the cross-examination with other material which might prove embarrassing to Helen K. Weil * * *. In the course of the discussion at the bench, which was of very short duration, the Judge stated that on the evidence which he had heard thus far, it did not appear to him that this was a case for separate maintenance, although his mind had not been made up and would be kept open until all the evidence had been introduced and the case submitted to him for decision * * *. Mr. Whelan and I suggested that a recess be taken until the following day to give counsel an opportunity to discuss a possible settlement of the case. Judge Baird agreed to this.'

The statement in the Whelan affidavit that the judge remarked that it was 'needless to prolong the trial' is not inconsistent with Pacht's statement that the judge said he could see 'no useful purpose' in continuing the cross-examination 'in view of the admissions and contradictions already elicited.' Moreover, the record supports Pacht's more specific explanation of the judge's action. Defendant had been examined about a day and a half when counsel were called to the bench. In several material matters she had been forced to concede misstatements in her earlier testimony. ¹ One of her charges of cruelty against plaintiff was that he had offended and shocked her by discussing indiscreet conduct of certain persons of his acquaintance, that he had persisted in associating with such persons in spite of her disapproval, and that he had accused her of being 'prudish.' On cross-examination, therefore, defendant was called upon to explain her own relationship with plaintiff before their marriage and while plaintiff was still married to a former wife. The judge's interruption of the cross-examination immediately followed the introduction into evidence of a communication from a third party indicating that on a trip to Mexico before their marriage plaintiff and defendant had posed as man and wife. Defendant admitted intimate relations with plaintiff for over a year preceding plaintiff's divorce from his former wife, and certain letters written by defendant describing this relationship were introduced. The judge himself later stated that it was to avoid further embarrassment, particularly to defendant, that he urged a cessation of such evidence and a settlement of the case.

The judge's statement that he did not believe in separate maintenance for short marriages does not, in our opinion, evidence an unwillingness to try defendant's case according to law. A judge is not required to approve every statute or precedent by which his decision is governed. Like other citizens he is bound, not to believe in a particular law, but to obey it. Thus, he may doubt the wisdom of particular economic legislation but it is nevertheless his duty to enforce it in a proper case. The judge who disagrees with the policy of a statute is not necessarily disqualified from hearing a case in which that statute must be applied. In the present case, there has been no showing that the judge's opposition to separate maintenance for short marriages was anything more than a personal opinion concerning the wisdom of the legislation involved. According to the Pacht affidavit, the judge stated that on this issue 'his mind had not been made up and would be kept open.' Whelan's affidavit also shows that the judge's observation was qualified, for it quotes him as saying that he did not believe separate maintenance should be granted in this case 'unless there was additional evidence that he hadn't heard.' Had he regarded length of marriage as a controlling circumstance, 'additional evidence' would have made no difference to him.

The judge was guilty of no misconduct in thus expressing to the parties what he believed the law should be. The Legislature itself has not infrequently heeded judicial comment suggesting modification of statutes. A judge may properly indicate to litigants the hardship that may result from a rigid insistence upon technical rights. Such suggestions are peculiarly appropriate in a court of equity, and all the more so when the task before the court involves the difficult social and legal adjustments that attend the tragedy of an unsuccessful marriage. Defendant had divorced her first husband before she met plaintiff, and she knew that plaintiff also had been divorced. Even after this suit was begun, settlement negotiations were had between the parties predicated upon the assumption that a divorce would be granted. It is apparent, therefore, that defendant's prayer for separate maintenance was not based upon conscientious or religious objections to divorce. In view of this fact, and in view of the seriousness and finality of the marital rupture, as disclosed by the evidence, it was not error for the judge to urge divorce as the more appropriate solution to their problems. '(P)ublic policy does not discourage divorce where the relations between husband and wife are such that the legitimate objects of matrimony have been utterly destroyed.' Hill v. Hill, 23 Cal.2d 82, 93, 142 P.2d 417, 422.

It is clear from the record that the trial judge was anxious to spare the parties the spectacle of further embarrassing testimony; that he was tentatively persuaded that defendant's charges were exaggerated and her testimony unreliable and that plaintiff should be given a divorce; that, owing to defendant's possible need of an early operation, together with plaintiff's relatively favorable financial position and the absence of community property, he felt the desirability of temporary payments by plaintiff to enable defendant to...