Smith v. Smith

62 Cal. 466, 1882 Cal. LEXIS 762

• Court: California Supreme Court
• Decided: December 28, 1882
• Docket: No. 8,319
• Status: Published

Opinion

The Court:

Plaintiff sued defendant for a divorce on the ground of extreme cruelty, alleging in his complaint various acts claimed to constitute cruelty, all of which are denied in the defendant’s answer. A decree of divorce was entered in the Court below, and one of the errors assigned on this appeal is that the findings are insufficient to support the judgment. The following are the findings on the question of extreme cruelty;

“ 5. That the conduct of the defendant toward the plaintiff, and her treatment of her children during the last several years, has, upon repeated occasions, been extremely cruel, and that in the month of June, 1880, without the consent or knowledge of the plaintiff, she deserted her husband and children, and went to Dusseldorf, in Germany, for the purpose, as she now claims, of perfecting herself in the art of painting, and remained absent from her said husband and children until the seventeenth day of September thence next ensuing, upon which day she returned to Los Angeles City.

" 6. That the repeated acts of cruelty, as established by the evidence, upon the part of said defendant toward her said husband and children during the last several years, have inflicted upon the plaintiff grievous mental suffering.”

It will be observed that the only fact of alleged cruelty expressly found is that the defendant deserted her husband and children and went to Dusseldorf, in Germany, for the purpose of perfecting herself in the art of painting, and was abroad from June until September, 1880. This act did not of itself constitute such cruelty as entitled the plaintiff to a divorce. (1 Bish. on Marriage and Divorce, § 738.) The sixth finding is but a conclusion of law, and does not find any fact in issue in the case. (Polhemus v. Carpenter, 42 Cal. 386.)

Judgment reversed and cause remanded.