GAETA v. GAETA (1951)

Defendant was granted an interlocutory decree of divorce on her cross-complaint on the ground of cruelty. The community property of the parties was divided and awarded as follows: to defendant property which the court found to be of the value of $11,500, and to plaintiff a parcel valued at $20,000. Attorneys' fees of both parties and court costs were ordered to be paid out of the remaining portion of the community property and the reisduum divided equally between the parties. Defendant has appealed from those portions of the interlocutory judgment (1) awarding specific property to plaintiff, (2) directing the equal division between the parties of the community property remaining after the above stated division.

By the judgment not only did the wife contribute out of the community funds toward the payment of her own and her husband's attorneys' fees and costs but she received far less than one half of what remained. When a divorce is granted on the ground of extreme cruelty the innocent party must be awarded more than one half of the community property and the failure of the court so to divide it is an abuse of discretion requiring a reversal. Arnold v. Arnold, 76 Cal.App.2d 877, 883–885, 174 P.2d 674; Falk v. Falk, 48 Cal.App.2d 762, 770, 120 P.2d 714.

That portion of the judgment appealed from is reversed with directions to award defendant an amount in excess of one half of the community property, and in so doing to make allowance to her of the amount contributed by her out of her community interest toward the payment of attorneys' fees for both parties.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur. Hearing denied; CARTER and SCHAUER, JJ., dissenting.