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District Court of Appeal, Third District, California.


Civ. 7885.

Decided: November 06, 1951

Angell, Hearn & Adams, San Francisco, for appellant. T. L. Chamberlain, F. L. Sinclair Auburn, for respondent.

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:


‘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 which consisted of 10 or 12 acres fronting on Lake Tahoe, with hotel, cabins and a store, the store being kept open all the year around. This property had been acquired and developed during a prior marriage of the parties. Appellant and respondent were first married in Mexico in 1934 and were married again in Oakland, California, a year later, to overcome some possible question about the legality of their first marriage. On February 26, 1945, appellant secured an interlocutory decree of divorce on the grounds of cruelty. A property settlement agreement had been entered into and was approved by the court. By this agreement the Sandy Beach Resort became vested in the respondent and he executed to the appellant a promissory note for $15,000, payable at the rate of $125 a month and a deed of trust on the Resort property to secure the payment of the note. The final decree was filed March 6, 1946, but before and after that date the parties met and discussed remarriage and the cancellation of the property settlement agreement. They were remarried on May 22, 1946. On the next day respondent wrote the following agreement and handed it to appellant:

‘May 23, 1946

‘We, the undersigned, having remarried on May 22, 1946, hereby cancel a property agreement entered into Feb. 26, 1945, and hereby agree that all of our holdings of any kind shall remain and become community property.’

The agreement was signed by respondent at that time and either then or later it was signed by appellant. A year later appellant acknowledged it and had it recorded. She did not return the promissory note or release the lien of the deed of trust. She testified that respondent told her to keep the note and deed of trust; he testified that he did not. They lived in the resort and managed it jointly until after this suit was brought; then she was enjoined by the court from living there or interfering in the management and was given an allowance of $350 a month for her support pending the trial.

After the taking of the testimony on the issue of the divorce the action was continued for several weeks to enable counsel to prepare for the trial of the issues raised in respect to the property of the parties. The trial was resumed for this purpose on July 26, 1949. Counsel for appellant had nothing to offer in the way of proof of the actual value of the Sandy Beach Resort, though appraisals had been discussed at the previous hearing. He had made an attempt to find an appraiser and explained that there had been a death in his family which had prevented him from giving his attention to the matter. He stated that he was trying to find an appraiser who had had experience with vacation resorts. Counsel for respondent presented appraisements in letter form, in which the value of the resort was stated to be approximately $65,000. Counsel for appellant moved to strike out the appraisals for the reason that the appraisers were not present for cross-examination. The trial judge granted his motion, returned the appraisals, said that he knew no more about the property than he had before, refused to receive further appraisals and submitted the case, saying that if the parties reached an agreement while the case was under submission he would consider it. The case remained under submission until October 4, 1949, when the findings and judgment were filed. There is nothing in the record to indicate that appellant made any attempt to reopen the case in order to prove the values of the properties.

Though he intended to deny a divorce to both parties, the trial court had jurisdiction to divide the properties between the parties. Mason v. Mason, 219 Cal. 111, 25 P.2d 461; Lorraine v. Lorraine, 8 Cal.App.2d 687, 48 P.2d 48; D'Alessio v. D'Alessio, 56 Cal.App.2d 118, 132 P.2d 271. On the other hand, denying appellant a divorce, he was not required to determine the issues raised by her in respect to the community property. West v. West, 206 Cal. 706, 276 P. 100.

In her briefs appellant makes extravagant statements about the value of the properties: That it is worth $150,000; that respondent had refused an offer of $125,000 for the Sandy Beach Resort; that the trial judge had remarked during the trial that the resort was worth $100,000 net; that respondent had admitted that it was worth $100,000; that the gross income one year was $50,000. She does not say that respondent explained that the offer of $125,000 was not a bona fide offer—the man had no money—and that he did not say that $100,000 was the fair value of the property, but said that it was the top price at which it might be sold. What the trial judge said was merely the expression of a tentative opinion, and the gross income is of little interest. One income tax return showed a net income of $4,500, though appellant and respondent were operating the resort. The evidence before the court at the time of the last hearing was wholly insufficient to enable the court to make a fair division of the property.

Appellant further contends that the court erred in allowing her only $150 a month for her support pending the appeal and asks this court to find that she was entitled to a larger amount, payable retroactively. The allowance was made upon conflicting affidavits and the finding of the trial court cannot be disturbed. Furthermore, it does not appear from the record that an appeal was taken from that order.

The judgment is affirmed.

DEIRUP, Justice pro tem.

ADAMS, P. J., and VAN DYKE, J., concur.

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