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District Court of Appeal, Second District, Division 2, California.


Civ. 16043.

Decided: December 19, 1947

Marshall Stimson, Noel Edwards and Charles Murstein, all of Los Angeles, for appellant. Stanley M. Evens and J. J. Hughes, both of Los Angeles, for respondent.

Plaintiff appeals from a judgment awarding her an interlocutory decree of divorce ‘and from those portions of the interlocutory judgment’ which denied her attorney's fees and support and maintenance. Evidently she has abandoned the appeal from that portion of the judgment which awarded her a divorce and custody of her 17 year old son and one half of the community property, which is of nominal value, and urges her appeal solely with reference to the specified portions of the decree. Reversal is demanded on the grounds that (1) the court abused its discretion in refusing to include in its judgment an order for her support by defendant and for the payment of additional attorney's fees; (2) the findings are not supported by the evidence; (3) certain conduct of the trial court constituted prejudicial error.

Plaintiff and defendant had been married about 36 years prior to the date of their separation on February 5, 1946. At the time of the trial in February, 1947, she was 53 years of age. There are eight children, all of whom have attained their majority except the one son.

The evidence shows: appellant has no property or any source of income whatever; while her health is fairly good her eyes are ‘apparently weak’ and she needs eyeglasses; she has cavities in her teeth and suffers pain by reason thereof; she has no trade or profession whereby to earn a livelihood; she has not worked during the 37 years since her marriage to defendant except at a kindergarten two hours a day, where she earned a total of $5, and at house work for which she received $5 for two days' work. Appellant maintains there is no testimony that she can earn $7 per day as contended by respondent, and that inasmuch as the latter earns take-home pay in the sum of $40 to $47 per week he should be required to support her.

From the foregoing résumé of the proof on the issue of support it is to be observed that the defendant while an ablebodied man is not a success as a money maker, and that if any order is made for him to provide for plaintiff it would necessarily come from wages which reasonably should not exceed the amount which plaintiff could readily earn by working 20 days per month. The court below correctly observed that it is common knowledge that house work done by capable women earns not less than $7 per day for seven or eight hours work. Inasmuch as appellant is in reasonably good health no valid reason is suggested why the court should require the husband to pay for her support when her income may reasonably be as much as his own. Upon such issue the determination as to whether an order for support should be made against the husband is one which rests largely in the sound discretion of the trial court, and in the absence of a showing of abuse of such discretion the judgment thereon will not be disturbed. Lamborn v. Lamborn, 80 Cal.App. 494, 501, 251 P. 943. Because another judge might have taken a view of the matter different from that of the judge who tried that case is not a criterion whereby to determine that substantial justice was not done by the trial court in denying the award now claimed to be due her by plaintiff. If either of two inferences may reasonably and fairly be drawn from the facts the judgment cannot be reversed on the ground that it is not sustained by the evidence. Mah See v. North American Accident Insurance Company, 190 Cal. 421, 426, 213 P. 42, 26 A.L.R. 123. The court found ‘that defendant has no ability to earn more than sufficient for his own support and maintenance, has no property of any kind or character and no money except said $50 postal savings, and has no ability to pay further for the support and maintenance of plaintiff or for her attorney's fees or costs herein.’

On an appeal from a judgment denying an award for support and maintenance the prevailing party is entitled to the benefit of every inference to be drawn from the evidence and of every favorable intendment inherent in such inference. Crawford v. Southern Pacific Company, 3 Cal.2d 427, 429, 45 P.2d 183; Drabkin v. Bigelow, 59 Cal.App.2d 68, 74, 138 P.2d 750. Plaintiff has argued the applicability or nonapplicability of numerous decisions in support of her contention that the findings are contrary to the evidence. Arnold v. Arnold, 76 Cal.App.2d 877, 174 P.2d 674; Del Ruth v. Del Ruth, 75 Cal.App.2d 638, 171 P.2d 34; Bowman v. Bowman, 29 Cal.2d 808, 178 P.2d 751; Mohun v. Timm, 20 Cal.App.2d 136, 139, 66 P.2d 701; Hill v. Donnelly, 43 Cal.App.2d 47, 52, 110 P.2d 135; Rosenfield v. Vosper, 45 Cal.App.2d 365, 371, 114 P.2d 29; Pratt v. Pratt, 141 Cal. 247, 252, 74 P. 742; Parmann v. Parmann, 56 Cal.App.2d 67, 69, 132 P. 851. In none of the cited authorities is there to be found a parallel factual situation such as to require a reversal of the instant judgment on account of the trial court's abuse of discretion in not making an award to appellant for her support. The only limitation upon the exercise of discretionary judicial power is that it must not be abused; in other words, it must not plainly appear to effect injustice. Fine v. Fine, 76 Cal.App.2d 490, 495, 173 P.2d 355.

Awarding or denying support money is a function for the exercise of the trial court's discretion. Baldwin v. Baldwin, 28 Cal.2d 406, 413, 170 P.2d 670. The wife who is divorced on account of the husband's cruelties, in the absence of community property and of the husband's separate assets, can demand only such support as he is reasonably able to furnish from his earnings. Merritt v. Merritt, 220 Cal. 85, 88, 29 P.2d 190. While the award from the earnings of the divorced husband may under certain circumstances be determined according to his ability to earn (see Ostertag v. Bethlehem, 65 Cal.App.2d 795, 807, 151 P.2d 647), yet where his earnings are by his daily labor no such allowance should be made as would encourage idleness on the part of his ex-wife. Lamborn v. Lamborn, supra, p. 498 of 80 Cal.App., 251 P. 943. In view of the authorities and the proof in the instant action it cannot be said that the trial court abused its discretion.

In the early stages of the pendency of the action, on March 21, 1946, an order directed defendant to pay $90 a month for the support of plaintiff and the minor child. After July the boy became partially self-supporting. The payments aggregated $900. But during those ten months plaintiff made no attempt to be employed. Whether she acted in good faith in not accepting available domestic employment during that period and whether her failure to gain industrial employment at gainful wages were matters which in view of defendant's age and comparative poverty the trial court may properly have considered in the exercise of its discretion in denying plaintiff any further award. That plaintiff was the prevailing party is not in itself sufficient justification for disregarding equitable considerations suggested by the evidence as favorable to defendant. A finding of cruel acts on the part of either party to a marriage which have caused no serious detriment to the prevailing party does not warrant unjust awards against the losing party. Lamborn v. Lamborn, supra, page 500 of 80 Cal.App., 251 P. 943. Where an able-bodied woman is capable of earning her own support and her divorced spouse is a man of limited earning power it cannot be said as a matter of law that an allowance of $90 monthly for ten months is not a fair compliance with the statutory requirement that such suitable support be allowed the wife as the court may deem just ‘having regard to the circumstances of the parties respectively.’ Civil Code, sec. 139, See Murray v. Murray, 26 Wash.2d 370, 378, 174 P.2d 296, 300. The record indicates that the court observed the quoted portion of the cited section.

Nor was error committed by the court in refusing to award plaintiff further sums as attorney's fees. Her counsel had been paid $115 for fees and costs. For a man of defendant's financial status such sum was not an unreasonably small fee to be paid for the counsel fees of his wife in addition to the alimony she had enjoyed prior to the trial. The cross-complaint was abandoned and all the witnesses called were on behalf of plaintiff.

The findings are supported by the evidence upon all issues including the fact of plaintiff's ‘good health.’ She testified that the acts of which she complained made her unhappy, nervous, weak and ill, yet that her ‘health is fairly good.’ While she was ‘in need of eyeglasses and my eyes are apparently weak,’ she produced no proof of a pathology of her eyes. She had ‘a great deal of pain’ with her teeth and ‘there are cavities' in them, but she offered no proof of the probable cost of necessary dental surgery. She presented only her own opinion that she should have $25 per month for medical and dental care. Such ills as these beset a large percentage of society without complaints of ill-health or without abandoning life's struggle. The finding that plaintiff is strong and ablebodied and can earn her own support is not contrary to inferences fairly deducible from plaintiff's own testimony, to say nothing of the inferences the court may fairly have drawn from her presence as a witness. In this connection plaintiff contends that the judgment should be reversed because of the fact that the finding that by reason of defendant's acts she was made ill and nervous and endured mental anguish is inconsistent with the finding that the impairment of her health was slight and that she did not suffer a severe nervous disorder. Such findings are not inconsistent but indicate an attempt to present with accuracy the conditions found.

Finally, appellant deems herself to have been aggrieved by the court's conduct in making statements assigned to have been ‘grossly improper.’ Plaintiff commenced the presentation of her case by calling defendant for cross-examination. Code Civ.Proc. sec. 2055. By him it was proved that the community property consisted of $50 of postal savings bonds, that his only means of support was his labor and that he had been laid off for about three weeks. After plaintiff had proved the cruelties of her husband and the meager receipts from her own industry, defendant's attorney offered to ‘withdraw the cross-complaint if they waive alimony.’ Thereupon the following ensued:

‘The Court: They do not need to waive alimony. The Court will waive it for them.

‘Mr. Murstein: What it that, your Honor?

‘The Court: Isay they do not have to waive it; the Court will waive it himself.

‘Mr. Murstein: This woman has been married for 37 years. I think she is entitled to be supported.

‘The Court: Go ahead and wash your dirty linen. I won't stop you.’

A short time later in declaring adjournment for the day the court stated: ‘Yes, I will instruct all witnesses in this case to return tomorrow at 10:30, and I think after that I will exclude the witnesses. There is no necessity of having them listen to the washing of the dirty linen.’

The italicized statements do not comport with the orthodox and prevalent concept of judicial behavior. Nothing is more disconcerting to a litigant or to his advocate than for a judge to give expression to sentiments which indicate that he is prejudiced against the cause, a party or his counsel. The layman usually enters the court room with the confident belief that the judge has a superior knowledge and that he speaks with inspired finality upon the issues presented. By reason of such ubiquitous ideal a judge's declaration at the commencement of a trial which is tantamount to a decision upon a primary issue freezes the cerebral flow, implants a feeling of frustration and inspires the disgust of the injured party and his sympathizers. Such behavior is calculated to weaken the patriotic zeal and to diminish the fervent respect for the courts which all good citizens have cherished since early schooldays. Such respect for judicial authority is a force for maintaining a universal adherence to the ideal of submitting justiciable controversies to judicial arbitrament and should not be discouraged.

At the time of the judge's announcement that he would waive alimony on behalf of plaintiff he had heard only the defendant's testimony upon the issue of his ability to pay. Plaintiff had merely recited the acts of cruelty on which she based her cause for divorce. Unless he possessed powers of divination far beyond the talents of mundane jurists he could not have known the number and character of witnesses to be called or the substance of their own or of the plaintiff's testimony upon her needs and her health or of property that might have been shown to belong to defendant. A court should not only be fair but should appear to be fair, and its failure to do so may constitute cause for a reversal. Pratt v. Pratt, 141 Cal. 247, 252, 74 P. 742; Rosenfield v. Vosper, 45 Cal.App.2d 365, 372, 114 P.2d 29.

But whether such conduct on the part of the judge has prevented a fair trial must be determined according to the facts of each appeal. In the Pratt case the judge definitely indicated the course to be pursued should the defendant defy the court's voluntarily prescribed course, and ‘did in a very irregular way control the conduct of the case on the side of defendant.’ [141 Cal. 247, 74 P. 743.] In the Rosenfield case this court set aside the judgment because of what appeared to be a protracted effort over the several weeks of trial by the judge to force a compromise of $7,500 in favor of the plaintiff despite certain proof that he had agreed to accept $1,000 in full for his claim. In Del Ruth v. Del Ruth, 75 Cal.App.2d 638, 171 P.2d 34, 38, cited by plaintiff, the judgment was reversed because the trial judge expressed and maintained throughout the trial an aversion to specified pertinent evidence offered; refused to hear available evidence of events that had occurred prior to a designated date; rejected pertinent proofs of certain vices ‘in the interest of good morals.’ And after the trial had proceeded for two or three days the judge by letter transmitted to the plaintiff at her home stated that he desired to discuss the case with her privately in chambers; held the conference and advised her that he did not look with favor upon separate maintenance and advised her to ask for a divorce. These authorities do not require a reversal of the instant judgment. Despite the court's apparent prejudgment on the issue of support for plaintiff the evidence shows that its legal discretion was not ultimately abused.

The court's order to plaintiff's counsel to ‘go ahead and wash your dirty linen’ was likewise unbecoming. It could have had no effect upon plaintiff other than to depress her and to cause her to feel like a pariah; to be without hope of a sympathetic tribunal that would hear, consider and determine her cause upon its merits. There was no ‘dirty linen’ washed at the trial. That phrase as ordinarily used implies that vices and immoralities have been charged; that mean accusations and vile recriminations have been spoken. See the Oxford English Dictionary; Webster's New International Dictionary, 2d Ed. Nothing of the sort had passed the lips of either. Prior to the judge's command plaintiff in clean and simple words had recounted the years of her life with defendant, the number of their children, the years of her residence in the county, and defendant's acts of cruelty. The latter consisted of a drab narrative of her husband's remaining away on week-ends and of his absence from home in the afternoon when he worked at night, and of his remaining out late in the morning when he worked in the day time; of his orders to ‘go to hell’ when she reproved him for his neglect, of his refusals to take her to places of amusement or to visit their friends; and of his declarations that he did not love her; that she was worthless and not fit to be a mother.

Such testimony does not merit the anathema implied by the popular metaphor used by the trial judge. But had the good woman related a series of outrages suffered at the hands of a brutal husband garnished with his unflattering words of censure it would have been merely testimony of a witness fulfilling her sworn duty to tell the truth. When the parties to an action have rested a trial court often finds it to the public interest to assume magesterial character and to pronounce in piquant terms the scorn with which the law regards the conduct of one or both of the litigants. But while the trial is in progress the interests of justice demand that neither party be subjected to disparaging remarks by the court unless they are essential to an orderly procedure of the trial. The completely successful presentation of a cause is often-times assured only by an atmosphere of kindness and patience on the part of the judge, and such method is universally successful when his honor keeps his own counsel while unoffending witnesses and courteous counsel endeavor to perform their respective duties.

However, the assignments with reference to the language of the judge do not justify a reversal. Neither plaintiff nor her attorney was silenced. She testified with apparent freedom for more than an hour after the criticized remarks, and her attorney boldly led her through every phase of the case and presented the testimony of five other witnesses. An examination of the record discloses that no material prejudice resulted from the assigned remarks but that the decree awards substantial justice.

The judgment is affirmed.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.

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