Nelson v. Nelson

This is an appeal by plaintiff from an interlocutory judgment of divorce awarded defendant upon her cross-complaint. Appellant declares that “Whether the cross-complaint herein states a cause of action, or whether the findings made upon it support the judgment for the defendant, are the two principal points made by appellant on this appeal.” The alleged insufficiency of said cross-complaint is predicated of the failure to aver that the acts of cruelty set out wrongfully inflicted upon defendant grievous mental suffering, and the findings are assailed for a similar omission.

Of these, in the order presented by appellant in his brief. Section 94 of the Civil Code defines “extreme cruelty” as being the “wrongful infliction of grievous bodily injury, or grievous mental suffering, upon the other by one party to the marriage.” Appellant is, therefore, right in his contention that the element of wrongfulness must appear in the complaint. It would, of course, be unreasonable to hold that every infliction of grievous bodily injury or mental suffering should be a sufficient ground for divorce. Such injury or suffering might result from the inadvertent or justifiable con

The criticism of the pleading as to the other point, we think, is equally destitute of merit. In paragraph 9 it is alleged, “That for five years last past the said plaintiff has by a uniform course of conduct been cruel to defendant and has inflicted upon her-through his harsh and ungentlemanly conduct great mental cruelty.” The contention is that great is not equivalent to grievous. We may pass this, however, as, in paragraph 12, we have the following allegation: “That by reason of said acts and conduct on the part of said plaintiff, said defendant has suffered and still does suffer great and grievous physical and mental suffering.” Appellant seeks to limit the application of this to a portion of the asserted acts of cruelty but no such arbitrary construction is admissible. “Said acts and conduct” grammatically comprehends the complete picture of plaintiff’s dereliction that appears in the cross-complaint.

Summarizing, then, on this branch of the case, we have, in the said pleading, a general allegation that plaintiff has treated defendant “with extreme cruelty,” followed by a specification of acts that| necessarily imply unlawfulness, cruelty and brutality, and culminating with the positive averment that by reason of t^hese acts “defendant has suffered and still does suffer great and grievous physical and mental suffering.” If this does not present a ease of “the wrongful infliction of grievous bodily injury or grievous mental suffering,” we have totally misconceived the language employed. The cases cited by appellant are in harmony with what we have said. For instance, in Smith v. Smith, 124 Cal. 651 , [ 57 Pac. 573 ], it is held that “A complaint which merely alleges that defendant has treated the plaintiff in a cruel and inhuman manner, that he has applied coarse epithets to her which are described, and has accused her of a want of chastity without alleging either grievous bodily injury or grievous mental suffering as the result of the cruelty alleged does not state a cause of action.” It is grounded upon the position that “grievous bodily injury or grievous mental suffering is the ultimate fact and should be alleged.” No such omission, as we have seen, is found here.

It is no doubt well settled, as a general rule, that facts averred in the complaint and not denied in the answer are not required to be found by the court. (Fox v. Fox, 25 Cal. 587 ; Grossini v. Perazzo, 66 Cal. 545 , [ 6 Pac. 450 ]; Walker v. Brem, 67 Cal. 599 , [ 8 Pac. 320 ]; Johnson v. Vance, 86 Cal. 110 , [ 24 Pac. 862 ].) But the reason is that there is no fact in issue and therefore no fact to be proved. Wherever a fact is to be established by evidence, however, the rule is different. This is indicated clearly enough by section 632 of the Code of Civil Procedure. It provides that “Upon the trial of a question of fact by the court, its decision must be given in writing and filed with the clerk within thirty days after the cause is submitted for decision.” Ordinarily, there would be no “trial of a question of fact” where the fact is admitted by the failure to deny it, but where the asserted fact is the ground upon which a party relies for divorce, it must be established as though denied, since “no divorce can be granted upon the default of the defendant, or upon the -uncorroborated statement, admission or testimony of the parties,” etc. (Civ. Code, sec. 130.) This must be taken into account in connection with section 131 et seq., providing that “In actions for divorce, the court must file its decision and conclusions of law as in other cases,” etc.

It is true that the Pox case, supra, was an action for divorce, but the allegation therein, not denied, related to the fact of marriage, and it was held that no proof was required of this, since “the marriage is in no sense a ground for the divorce,” and that proof was required by the statute only ‘ ‘ of the facts alleged as the grounds for a divorce.” The court, therefore, through Mr. Justice Rhodes, said: “The fact of the marriage is fully established by the defendant’s failure to deny it in her answer, and that is equivalent to the most direct proof.” It was accordingly determined .that there was no necessity for a finding ,of the. fact of marriage, the court saying: “That

In Bennett v. Bennett, 28 Cal. 600 , a question of finding was not involved, but it was claimed that it was not necessary to prove the fact of residence, since it was not denied, and the Pox ease was cited as authority for the contention. The supreme court held, though, that there is a marked distinction between the fact of marriage and of residence, stating that “residence, though it does not enter into the statute causes of divorce, does enter into the ‘grounds’ of divorce, or constitutes, rather, the sole ground upon which a decree dissolving the marriage relation in any given instance can be regarded otherwise than as a piece of judicial usurpation. But over and beyond this, residence is palpably within the mischiefs against which it was the object of the statute to guard, and therefore it must be proved.”

We conclude that, since it was incumbent upon defendant to prove the alleged facts upon which she relied for a divorce, they should be embraced within the decision of the court. As to this the following is the only attempted finding of fact: “That for more than ten years last past the said plaintiff has treated the defendant with extreme cruelty and in a cruel manner, and has often applied to her opprobrious epithets and has made false accusations against the morality and virtue of said defendant; and the said plaintiff for more than five years last past has by a uniform course of conduct been cruel to defendant, and has inflicted upon her through his harsh and ungentlemanly conduct toward her great mental suffering and cruelty.” It is to be observed that not a single specific fact alleged in the cross-complaint is found to be true. The finding is most general in its character, and might with equal propriety be based upon evidence of facts entirely different from those alleged. We may suspect and surmise that the court intended to find that the cruel conduct of plaintiff was “as alleged in the cross-complaint,” but it is not so declared. Again, the said finding is almost entirely a conclusion of law, and is objectionable in that respect. It is obviously not sufficient to find that “the plaintiff treated the defendant with extreme cruelty,” as that is a legal conclusion for the court to reach from certain facts. But another vice is the failure to find that any act of brutality inflicted upon defendant

It is stated by the supreme court, in Franklin v. Franklin, 140 Cal. 609 , [ 74 Pac. 155 ], that “We recognize that it is the province of the trial court to find the fact as to whether or not grievous bodily injury or grievous mental suffering results from the acts of the defendant in a case such as this. (Barnes v. Barnes, 95 Cal. 171 , [ 16 L. R. A. 660 , 30 Pac. 298 ]; Fleming v. Fleming, 95 Cal. 430 , [ 29 Am. St. Rep. 124 , 30 Pac. 566 ] ; Andrews v. Andrews, 120 Cal. 184 , [ 52 Pac. 298 ]; Curl v. Curl, 130 Cal. 638 , [ 63 Pac. 65 ].) ” In brief, to satisfy the requirement of the law, there should be found at least some of the acts of cruelty embraced within the evidence, and that these acts wrongfully inflicted upon defendant grievous bodily injury or grievous mental suffering, or both. It is apparent, as already seen, that the findings here fall far short of this requirement.

It may be added that there is a mistake in the decree in the description of the real property which is set apart to defendant. Of course, this will be corrected in the event of a new trial and a similar decree in behalf of defendant.

The judgment is reversed.

Hart, J., and Chipman, P. J., concurred.