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


Civ. 15525.

Decided: May 10, 1954

L. L. James and Carl E. Day, San Francisco, for appellant. Theodore M. Monell and John H. Smissaert, San Francisco, for respondent.

This is an appeal by plaintiff and cross-defendant from a judgment of the trial court denying her any relief and granting to defendant and cross-complaint a divorce on the grounds of desertion and extreme cruelty.

The marital life of the parties, as will be seen from the following recital, followed a strange and unusual pattern. Plaintiff Helen M. Ruggles and defendant William G. Ruggles were married in Austin, Texas on February 6, 1926. They lived in San Antonio, Texas until May 1927 when plaintiff at her husband's suggestion went to New York to oversee the reconditioning of an ‘orientator’ which he had invented. The Navy purchased this apparatus and plaintiff returned to Texas. Mr. and Mrs. Ruggles went back to New York in order to raise money to finance production of the orientator on a large scale. They were unsuccessful in this endeavor and therefore in 1931 Mrs. Ruggles returned to Wisconsin where she stayed with Mr. Ruggles' parents for two years on their farm, while Mr. Ruggles remained in New York. Upon his father's death in 1934 Mr. Ruggles returned to the family farm in Wisconsin where they both lived until May of 1942.

Support was derived during this time from income off the farm and the serving of meals prepared by Mrs. Ruggles. When Mr. Ruggles' mother died his interest in the farm went to his sister because of debts owed by him to her and her family. After amiable discussion of their problem it was decided that Mrs. Ruggles should go to California to stay with relatives and Mr. Ruggles would join her at the earliest opportunity. Mr. Ruggles testified that as Mrs. Ruggles was boarding the train she said to him: ‘I am sorry I ever knew anyone named Ruggles, and that includes you.’ (This, as will appear, is the main evidence relied upon to prove desertion.)

Mrs. Ruggles arrived in San Francisco in June 1942 and the two corresponded with each other. After March 1943 Mrs. Ruggles no longer heard from her husband until August of the same year when she received a gift from a department store in Oakland which was addressed in her husband's handwriting. She wrote to friends in Wisconsin asking the whereabouts of her husband and was informed he was living in Berkeley. She called at the house in Berkeley whose number had been sent to her as the residence of her husband. She was informed that her husband had moved to another house located in San Francisco, and that he was working in Richmond. She went to see him and asked him to come to visit her but not at that time nor at any time thereafter did he ever ask her to live with him. After she got in touch with him Mr. Ruggles began calling on her and on these visits he would bring over groceries or give her money. During this period the amount of money that he turned over to her averaged around $60 to $80 per month. From July 1, 1951 to the time of trial her income from this source dwindled to practically nothing.

After Mr. Ruggles moved from Berkeley, he had a room in San Francisco in the flat occupied by a Miss Hamilton whom he had known for over 40 years. Miss Hamilton died on March 7, 1951 at the age of 80 and left a legacy of $52,164 to defendant. (After taxes it would amount to approximately $32,000 or $33,000.) At the time of trial the parties were each about 70 years of age.

Mrs. Ruggles filed a complaint for separate maintenance on June 15, 1951 alleging wilful neglect, desertion and extreme cruelty. A temporary restraining order was issued ordering defendant not to transfer or otherwise dispose of his property and a copy was served on the bank which was executor of Miss Hamilton's will. Mr. Ruggles filed a cross-complaint for divorce alleging as grounds extreme cruelty and desertion. The court granted a divorce to the cross-complainant and denied relief to plaintiff upon her complaint for separate maintenance.

Appellant argues that the findings of extreme cruelty and desertion upon which the divorce was granted are not supported by the evidence and are not sufficiently corroborated. We are satisfied from an examination of the record that these contentions must be sustained.

The only evidence of cruelty relied upon by respondent is the filing and prosecution of the action for separate maintenance. Respondent testified:

‘Q. You stated in your direct examination that your health was impaired. When did you notice the commencement of ill health or the impairment of your health? A. Within a few seconds after the trust officer at the bank showed me the signature of Mrs. Ruggles on the attachment.

‘Q. What attachment was that? A. On the bank, on the trust officer's trusteeship, or whatever it is I might inherit from this estate.

‘Q. But you did not suffer any impairment of health, as far as you knew, previous to that time—— A. (Interrupting) No, I had been working right along.’

Respondent relies upon those cases which hold that an untruthful charge of sexual misconduct in a complaint for divorce may constitute extreme cruelty justifying a divorce if it causes grievous mental suffering. (9 Cal.Jur., Divorce and Separation, § 32, pp. 658–659.) On respondent's own testimony it was the mere prosecution of the wife's action which caused the claimed suffering in this case and the courts have never extended this rule so far as to cover the mere bringing of an action for separate maintenance by a wife against her husband. In Schlecht v. Schlecht, 99 Cal.App. 163, 277 P. 1065 a husband charged as cruelty the fact that his wife had brought an action against him for separate maintenance. In that case this court said at page 168 of 99 Cal.App. at page 1067 of 277 P.: ‘The mere bringing of the action in an attempt to settle their respective rights could not be construed as extreme cruelty, and while the court have held that charges of adultery or gross immorality falsely made in a complaint may constitute extreme cruelty, no case can be found where allegations of the sort herein made by respondent have been held sufficient to do so.’

The claim of desertion is grounded solely on the statement of appellant when she was leaving for California above quoted from respondent's testimony and the fact that the parties never thereafter lived together. It is undisputed that before appellant left for California the parties had agreed that respondent should join her in California when he could, and that after appellant arrived in California she opened a correspondence by letter with respondent, that she went to some trouble to locate respondent after she learned that he had come to California and that thereafter he visited her frequently and furnished groceries and $60 to $80 per month for her support. Respondent testified that he never thereafter asked appellant to come back to live with him or made any effort to establish a home for her. His only explanation was that he could tell from her manner that it would be useless to do so. There was no corroboration of respondent's testimony, if it be so construed, that appellant refused to live with him. The only corroborating evidence was that the two were not living together. While in a contested action slight corroboration is all that is required (La Vigne v. La Vigne, 96 Cal.App.2d 531, 534, 216 P.2d 75) nevertheless ‘(t)here must be evidence in support of the cause of action upon which the divorce is granted, in addition to the evidence of either or both of the parties to the action’. 9 Cal.Jur., Divorce and Separation, § 95, p. 738. The evidence that the parties were not living together, standing alone, is not under the facts of this case sufficient to meet this requirement. It is equally consistent with such evidence that respondent refused to live with appellant, as she claims, or that the parties were living separate and apart by agreement as is strongly indicated by their course of conduct. While there may be cases where the fact of desertion is otherwise so clear that evidence that the parties were living separate and apart might be sufficient corroboration, this is not such a case. Such evidence was held not to constitute sufficient corroboration in Fallon v. Fallon, 83 Cal.App.2d 798, 803, 189 P.2d 766 and Sweet v. Sweet, 64 Cal.App. 786, 222 P. 634 and where the conduct of the parties themselves has been so equivocal the necessity for explicit and unequivocal corroboration seems obvious.

Judgment reversed.

DOOLING, Justice.

NOURSE, P. J., and KAUFMAN, J., concur.

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