DE BURGH v. DE BURGH

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

DE BURGH v. DE BURGH.*

Civ. 18581.

Decided: February 18, 1952

Max Fink, Jerry Rolston, Cyrus Levinthal and Leon E. Kent, all of Los Angeles, for plaintiff, cross-defendant and appellant. Donald Armstrong, Torrance, for defendant, cross-complaint and respondent.

Plaintiff appeals from the judgment denying her a divorce; also from the order which denied her motion for a new trial. The latter is nonappealable.

The parties came to California in 1944 and resided together at Manhattan Beach until they separated on February 13, 1949. They were married October 27, 1946.

The basis of appellant's action is cruelty. Her complaint alleged and at the trial she testified to nine separate acts. The nature of the cruelties is gathered from appellant's brief wherein she enumerates the several misdeeds, namely: defendant knocked her down, bruised her face and cut her back, slapped her, struck her while on the train, smote her twice at home and slapped and punched her in 1948 and struck her in 1949. She testified that on divers occasions defendant referred to plaintiff's former suitor; continually referred to his former girl friends in the presence of other people; grieved her by the manner in which he referred to plaintiff's daughter and son-inlaw. Finally, she accused respondent of homosexual tendencies.

Defendant filed a cross-complaint in which he accused plaintiff of extreme cruelties inflicted upon him. On such issues the case was tried. From the evidence, the court determined that respondent was guilty of extreme cruelty toward appellant by the conduct charged and that appellant was likewise guilty by reason of her accusatory letters sent to respondent's associates, and concluded that neither was entitled to a divorce.

Appellant contends that (1) notwithstanding such findings respondent had not complained of any act of cruelty until the very end of the marriage; (2) he attempted to effect a reconciliation; (3) the trial court emphasized primarily that the cruelties respondent committed caused her to write certain letters to respondent's business associates accusing him of homosexual acts; (4) respondent failed to plead recrimination as a defense; (5) the overwhelming mass of testimony shows such a convincing accumulation of cruelty as to justify her writing the letters; (6) the court refused to hear evidence as to respondent's financial condition.

Contentions ond and two require no discussion. As to three, it is elemental that the opinion or remarks of the trial judge are not competent to impeach his findings. As to five, the findings of the trial court are final so long as there is any substantial evidence to support them. The court heard and saw the litigants testify and is best qualified to determine whether the respondent's cruelties were sufficient to warrant appellant's accusatory letters.

It is argued that the defense of recrimination must be specially pleaded and that since it was not therefore it was not available to respondent because he had alleged no such affirmative defense. Such is not an accurate statement of the law. A judgment entered by a trial court on valid pleadings and upon substantial evidence submitted in open court cannot be upset upon such a claim. The court found that ‘each party has been guilty of acts of cruelty toward the other.’ The finding as to the acts of appellant are supported by the proof that she had made false charges of a serious nature against respondent. Mayo v. Mayo, 3 Cal.2d 51, 55, 43 P.2d 535.1 It is not an arbitrary or meaningless finding that a wife accused her husband of homosexuality in letters to his business associates. It is a determination that she had cruelly aspersed his character and had attempted to make him appear loathsome to those who would require decent behavior in their friends.

The contention that respondent's pleadings did not furnish a basis for such finding is not sufficient to upset the judgment. Where one spouse sues for divorce on the ground of cruelty and the other files a cross-complaint charging extreme cruelty, although the word recrimination appears in neither pleading, the court may deny relief to both when convinced that both parties were equally guilty of inequitable conduct. Brenot v. Brenot, 102 Cal. 294, 296, 36 P. 672. It has been held that even though condonation is a special defense and should be pleaded affirmatively, yet if the evidence shows condonation it is the duty of the court to find according to the proof. Hamburger v. Hamburger, 60 Cal.App.2d 530, 537, 141 P.2d 453.

Springman v. Springman, 97 Cal.App. 768, 276 P. 351, is cited by appellant in support of her contention that recrimination must be pleaded. This authority has no application to a case where both parties demand a divorce on the ground of extreme cruelty. It is not unusual that both spouses in divorce proceedings make claims of cruelty or other inequitable conduct. In such event, if both succeed, relief is denied both because they have come to court with unclean hands. Divorce is a remedy for the innocent against the guilty, whereas if both parties are equally at fault, a divorce will not be granted. To serve as ground for divorce, cruelty must be unmerited and unprovoked. Popescu v. Popescu, 46 Cal.App.2d 44, 49, 115 P.2d 208. A court of equity does not allow itself to become the handmaid of iniquity. Intervention is justified not for the sake of either party who might be thereby benefited but in order to uphold the integrity of the law. Richman v. Bank of Perris, 102 Cal.App. 71, 86, 282 P. 801. When a court discovers a fact that indicates the contract under investigation to be illegal, it will of its own motion pursue the inquiry, Kreamer v. Earl, 91 Cal. 112, 117, 27 P. 735, and make appropriate orders. Such judgments are appropriate in investigations by the chancellor of any contract or status. No party to a contract who is guilty of wrongful conduct should be permitted any advantate against his own wrongdoer.

Popescu v. Popescu, supra, does not support appellant for the reason that the husband did not seek a divorce but merely defended against the action brought by his wife on the ground of recrimination. The court having found that the husband had provoked the acts of cruelty committed by the wife properly denied the defense of recrimination. In the instant action both parties committed acts of cruelty toward each other; both sued, alleging such cruelties; thereby each placed himself in the position to be denied all relief. The court did not abuse its discretion herein where cruelties on both sides were proved.

Denial of maintenance and support was not error. Appellant contends that the denial of support and of the right of further inquiry into respondent's ability to pay was error. She contends at length that the court had no right in advance of hearing her proof as to respondent's financial condition to deny an order for support.

It is true that the major portion of the evidence received by the court was directed to the issue of cruelty, but the record discloses some outstanding features which reveal that the refusal to grant appellant support and maintenance was a fair and reasonable exercise of its discretion. Appellant appears to be a woman of advanced years—at least she was old enough to have a daughter married. She had ample opportunity to become familiar with the habits of respondent during the two years prior to the celebration of this marriage. The period of the marriage extended for only 27 months. Prior to their final separation appellant withdrew $4,700 from their joint bank account. At the hearing of the order to show cause the court awarded her $950 for costs and attorney's fees and $150 per month as alimony. At the time of the trial she had had the advantage of at least $4,800 out of the community gains. By denying further financial aid the court did not abuse its discretion. For a woman to live with a man 27 months does not necessarily entitle her to a life income. When such facts are before the court, and particularly when the plaintiff has been found guilty of cruelty, it cannot be said that the refusal to make an award constituted an abuse of discretion.

The appeal from the order denying the motion for a new trial is dismissed. Judgment affirmed.

FOOTNOTES

1.  Overruled as to another point in Stitt v. Stitt, 8 Cal.2d 450, 65 P.2d 1297.

MOORE, Presiding Justice.

McCOMB and FOX, JJ., concur.