Dracovich v. Dracovich
Dracovich v. Dracovich
Opinion of the Court
This is an action for divorce brought by the wife against the husband upon the grounds of willful desertion, willful neglect, and extreme cruelty. The court entered an interlocutory decree in favor of the plaintiff, from which the defendant appeals.
In his answer, defendant denies the material averments of the complaint respecting the several alleged grounds for a divorce; and in a cross-complaint charging plaintiff with willful desertion, he prays that he be granted the divorce. The court adjudged that plaintiff is entitled to the divorce, and that on the expiration of a year from the entry of the interlocutory decree a final judgment be entered dissolving the bonds of matrimony. The court further ■ adjudged that plaintiff have the custody of the minor children; that defendant pay plaintiff for the support and maintenance of *363 the children ten dollars per week; and that he pay her seventy-five dollars as attorney’s fees and likewise her costs.
The judgment makes no disposition of the community property, nor does it require the husband to pay any alimony. He, therefore, has no ground for complaint respecting either of those matters. His cross-complaint does not pray for a division of the community property, all of which is in his possession, and therefore he is not injured even if the decree does ignore his wife’s prayer for such relief.
The findings, which are incorporated in the same document with the interlocutory decree, are as follows: “The court finds that all of the allegations contained in the complaint are true, and that a divorce ought to be granted as prayed for in said complaint, and that all of the allegations contained in the defendant’s answer and cross-complaint, except those alleged in the complaint, are false.”
Appellant contends: (1) That the court has not found upon all of the issues raised by the pleadings; (2) that the finding that “all of the allegations contained in the complaint are true” is not justified by the evidence, in that (a) there was no evidence offered in support of the charge of extreme cruelty, (b) defendant had a sufficient excuse for leaving plaintiff, (c) he did not neglect, for a whole year, to provide his wife with the common necessaries of life; and (3) that the judgment for attorney’s fees and costs was procured by fraud.
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The evidence sufficiently establishes plaintiff’s charge of desertion. Plaintiff’s testimony shows the following: Defendant left his family and the home in which they were residing more than a year before the commencement of the action. When leaving, he said that he was going away, that he and his wife could not get along together, and that it was useless to try to live together. For three months thereafter plaintiff remained in the family residence. During that time the neighbors supplied her with food and wood; she sold, from time to time, parts of the furniture, thereby helping to eke out a bare existence on the proceeds. At the end of the three months she was compelled to go to her mother’s home, where she and the children received shelter and some support. Defendant never sent for his wife nor did he ever offer to return and live with her. There was evidence of other witnesses in corroboration of these facts. Defendant sought to show that he. did not leave with the intent, to desert his wife, and that his conduct was justified. But upon these matters there was a sharp conflict in the testimony, and we, therefore, cannot say that the evidence is not sufficient to support the charge of willful desertion.
In denying defendant’s motion, the court thereby gave credence to the affidavit of plaintiff’s counsel. And well it might; for the shameless effrontery of the affiants who, in aid of defendant’s motion, confessed their participation in an alleged fraudulent scheme to impose upon the court and permit the procurement of a divorce by collusion and chicanery,' was alone sufficient to discredit their sworn statements, however solemnly made. The affidavits that were filed in support of the motion being contradicted, it is beyond our power to disturb the ruling of the court below. “In the consideration of an appeal from an order made upon affidavits, involving the decision of a question of fact, this court is bound by the same rule that controls it where oral testimony is presented for review. If there is any conflict in the affidavits, those in favor of the prevailing party must be taken as true, and the facts stated therein must be considered as established.” (Doak v. Bruson, 152 Cal. 19, [91 Pac. 1001].)
Moreover, not only does the record before us fail to show what, if any, action was had on defendant’s motion, but there is no appeal from any order denying the motion. Since the motion was made after the entry of the interlocutory decree, there is a question whether an order denying such a motion—a special order made after the entry of judgment—can be reviewed on an appeal from the interlocutory decree. If an interlocutory decree in a divorce action is to be deemed a “final judgment,” within the meaning of the provision of subdivision 2 of section 963 of the Code of Civil Procedure, 'declaring that an appeal may be taken “from any special order made after final judgment,” then it would seem that an order denying defendant’s motion would be reviewable only on a direct appeal therefrom, and not on an appeal from the interlocutory decree., (See Dooly v. Norton, 41 Cal. 439; Empire Co. v. Bonanza Co., 67 Cal. 410, [7 Pac. 810]; Yorba v. Dobner, *367 90 Cal. 337, [27 Pac. 185].) However, it is not necessary to decide this question of jurisdiction, and we refrain from doing so.
Finding no prejudicial error in the record, the judgment appealed from is affirmed.
Works, J., and Craig, J., concurred.
Reference
- Full Case Name
- GUSSIE DRACOVICH, Respondent, v. VINCENT DRACOVICH, Appellant
- Cited By
- 5 cases
- Status
- Published