Grant v. Grant

WORKS, J.

This is an action for divorce in which the defendant cross-complained for separate maintenance. Judgent passed against plaintiff under his complaint and in favor of defendant under her cross-complaint. Plaintiff appeals.

The appeal is prosecuted under what is known as the alternative method, but neither of the counsel for the respective parties has complied with the provision of section 953c of the Code of Civil Procedure to the effect that in the conduct of appeals pursuant to that method “the parties must . . . print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court. ’ ’ Fugitive portions of the record, indeed, are printed in each of the briefs, but they present no intelligible basis upon which to consider the points upon which it is contended that the judgment should be reversed. There are references by page to the typewritten transcript of the evidence, but even these instances of avoidance of the provision of the code, when followed up, do not exhibit an adequate view of the litigation for the purposes of the appeal. As the cause is of grave importance to the parties and as the transcript of the evidence consists of but 150 pages, we have concluded to waive in this instance the requirement of the code, to the end that the parties may not be penalized because of the neglect of their counsel, and have read the transcript in full. We have also found it necessary to peruse the clerk’s transcript of the pleadings, findings of fact, and judgment. We cannot forbear to mention these circumstances in what we fear, after all, may be a vain attempt to induce the profession to observe more narrowly the rule we have mentioned. Violations of it are so frequent that they increase the labors and therefore impede the work of the courts of review of the state. We indulge the fond but perhaps delusive hope that these remarks may immerse the profession in a wave of reform.

Appellant and respondent separated in Chicago on December 26, 1909, in which city they had theretofore resided as husband and wife. Appellant then withdrew from the family home and his wife remained in it. The husband resided at another place in Chicago for sixteen months after the separation, at the end of which period he removed to California, where he has ever since remained. Some time after he arrived in this state he wrote to the wife a letter in which he invited her to come to him in order that they might take up again their marital duties and obligations, but she ignored the request. During the years intervening between the date of that letter and the commencement of this cause appellant wrote to his wife frequent missives of the same character. She continued, not actually to refuse his requests, but to ignore them, and this action was the result. The complaint consists of two counts. The first of these alleges acts of cruelty occurring at and before the time of the separation of December 26, 1909, while the second avers a desertion on or about January 1, 1912, which was at the time of the first letter in which the husband invited the wife to return to him. The trial court found against the allegation of cruelty. The nature of its finding as to the second count will immediately be stated.

Upon the issue of desertion, tendered by the complaint, the court found that the husband had in good faith endeavored to effect a reconciliation with the wife, that he had endeavored to invite her to resume the marital relation, and that he had provided for her a suitable home in California. To this matter we shall hereafter refer as the first portion of the court’s finding. It was further found, however, that the husband’s letters of invitation “were so ambiguous and contained so many expressed conditions that the defendant acting in good faith did not understand or believe said letters contained bona fide and good faith invitations” to become reconciled with him. Other facts which we need not mention were also covered by the finding. Appellant’s first point is that he was entitled to a decree pursuant to the first portion of the finding, citing McMullin v. McMullin, 123 Cal. 653 [56 Pac. 554], notwithstanding the other facts found. Another point made is that “plaintiff was entitled to a decree of divorce upon the evidence and there is no foundation in fact for the court’s findings that defendant had any ground whatever in rejecting the offer of reconciliation.” The third and last point presented is that, under Volkmar v. Volkmar, 147 Cal. 175 [81 Pac. 413], the trial court erred in awarding the wife separate maintenance on the ground that such an award cannot be made “when the wife refuses to live with her husband, unless she is justified by reason of his fault.” We are not called upon to decide any of these three questions, although we shall at the close of the opinion consider two points closely related to the third, but a statement of them all is a necessary preface to the determination of a question which we shall now discuss.

As a basis for her cause of action for separate maintenance the wife alleged a desertion by her husband on December 26, 1909. The trial court found upon conflicting evidence that this allegation was true, but the finding is neither quoted nor mentioned in the brief of either party. Under the finding the wife had a ripened and complete cause of action for divorce on December 26, 1910 (Civ. Code, sec. 107). It is provided by section 102 of the Civil Code: “If one party 'deserts the other, and before the expiration of the statutory period required to make the desertion a cause of divorce, returns and offers- in good faith to fulfill the marriage contract, and solicits condonation, the. desertion is cured.” Under this statute the courts have naturally determined that an offer of reconciliation tendered by the deserting party is too late if made after the deserted party’s cause of action for divorce has ripened, in that it does not affect the right to sue- upon such cause of action, nor give to the deserting party a cause of action for desertion because of a refusal of the offer. (See 9 Cal. Jur., tit. “Divorce and Separation, ’’ sec. 43.) It is apparent from the mere statement of this rule, in connection with the finding that appellant was guilty of desertion on December 26, 1909, that respondent did not desert him on January 1, 1912, that, obviously, his first and second points disappear, and that, equally obviously, his cause of action based on a desertion falls to the ground. The point arising thus under section 102 of the code is argued by neither of the parties, but our attention is nevertheless startlingly attracted to it by expressions in the briefs. It is plainly brought into the case by appellant’s statement of all three of his points, as we have set them forth above, and the first sentence of respondent’s brief is: “The appellant and respondent were married in Chicago, Illinois, on February 8, 1890, and lived together as husband and wife until December 26, 1909, when the appellant deserted his wife.” Under these circumstances we are unable to avoid a decision of the question.

Not only are appellant’s first and second points answered by the finding that he deserted his wife in 1909, but his third point meets the same fate, as that point is stated, especially as the question he presents is based upon Volkmar v. Volkmar, supra, which was a divorce case. We must, however, state another point for the benefit of appellant, even if it must come to naught. Although section 102 of the Civil Code has the effect which we have ascribed to it upon questions of divorce, it was once decided that the rule is different as to the wife’s suit for separate maintenance. In a suit of the latter character the supreme court said: “Willful desertion must continue for one year before it is a ground for divorce (Civ. Code, sec. 107); and it is provided in section 102 preceding that if, prior to the expiration of such time, the party deserting returns and offers in good faith to fulfill the marriage contract, and solicits con-donation, the desertion is cured; and in Benkert v. Benkert, 32 Cal. 467, it was held that an offer to return, made after expiration of the time necessary to give the ground for divorce, will not, if refused, defeat the action of the injured party for divorce. Plaintiff contends, in support of her appeal, that a rule like that in Benkert v. Benkert should obtain in this case, and that the defendant’s offer to return came too late. The cases, however, differ materially. (See Hardy v. Hardy, 97 Cal. 125, 130 [31 Pac. 906].) In Benkert v. Benkert, dissolution of the marriage bond was sought; here the plaintiff, as she testified at the trial, and as her suit shows, desires no divorce, but insists that the marriage relation shall continue. Manifestly, to enforce the duty of support against defendant when, as the court finds, he seeks in good faith to fulfill -his obligations, and at the same time to exonerate plaintiff from the correlative duty of living with defendant at some reasonable place of abode (Civ. Code, sec. 156), would be granting of a limited divorce, for which our law makes no provision. (Hagle v. Hagle, 74 Cal. 608, 612 [16 Pac. 518] ; Peyre v. Peyre, 79 Cal. 336 [21 Pac. 838].) The cases touching this subject quite uniformly hold or imply that although the husband may have deserted the wife, yet the door for repentance is open for him, and is not necessarily closed by the fact of suit brought for maintenance; so, not because of any tenderness of the law for delinquent husbands, but because of its aversion to separation of the spouses” (McMullin v. McMullin, 123 Cal. 653 [56 Pac. 554]). If the opinion from which this quotation is taken is still the law, appellant’s attempted offer for reconciliation was not too late, as affecting the wife’s cause of action for maintenance. The question whether McMullin v. McMullin is yet authority upon the point covered by the quotation is inspired by a comparison of the language of section 137 of the Civil Code as it has been since 1905 with its text as it stood when that case was decided in 1899 and had stood without material change for more than twenty years. In 1899 the section read, in part: “When the husband willfully deserts the wife she may, without applying for a divorce, maintain ... an action against him for permanent support and maintenance,’’ etc. This language was supplanted in the amended section of 1905 (Stats. 1915, p. 205) by the following: “When the wife has any cause of action for divorce as provided by section ninety-two of this code she may, without applying for a divorce, maintain ... an action against him for permanent support and maintenance,” etc. There seems little room for argument in considering the effect of this amendment upon the doctrine of McMullin v. McMullin. It is to us obvious that the language imported into the statute in 1905 gave to a wife the right to prosecute successfully her action for separate maintenance whenever an act of desertion upon the part of her spouse had ripened into a cause for divorce, and that his right to seek a reconciliation was cut off in so far as it could affect in any manner the prosecution to a successful issue of such a suit against him after the ripening of the cause of action. Strange to say, this question has never yet been passed on and can be resolved upon reason alone. By an amendment to section 137 adopted in 1907 (Stats. 1907, p. 82), the legislature inserted a passage which was in part similar in form to the language which was eliminated by the amendment of 1905. It was, “When the husband willfully deserts the wife or when the husband willfully fails to provide for the wife or,” and'it was inserted in such a manner as to make the sentence which is of interest here read as follows: “When the husband willfully deserts the wife or when the husband willfully fails to provide for the wife or when the wife has any cause of action for divorce as provided in section ninety-two of this code, she may,” etc. The effect of the amendment of 1907, as ingrafted upon the language “when the wife has any cause of action for divorce,” etc., can be nothing more than to create a right in the wife to prosecute her suit for maintenance upon a “desertion” less than a year old. That she may now maintain such a suit appears to have been conceded by the opinion in Gray v. Gray, 185 Cal. 598 [197 Pac. 945]. It appears to us that the amendment of 1907 had no effect upon the amendment of 1905 as we have determined the latter to operate upon the question before us here and upon the doctrine of McMullin v. McMullin, supra. In short, and in response to a suggestion made in the opinion rendered in that case, it appears that section 137 of the Civil Code, as amended in 1905, provides, in effect, for the granting of a limited divorce.

In addition to what we have said as to the effect of section 137 as it has stood since 1905, we now come to a consideration of the finding of the trial court which we have mentioned in connection with the statement of appellant’s first point. It will be observed that the court found, substantially, that appellant endeavored in good faith to effect a reconciliation with his wife, but that because of the ambiguous character of his letters and the conditions stated in them she did not understand the nature of the offer. We are satisfied that this latter portion of the finding controls the portion touching upon appellant’s good faith in making the offer. It is not too much to say that an offer of reconciliation, whatever the spirit in which it is made, is not really a completed offer unless it is so couched that the offeree may comprehend its meaning. Suppose such an offer were transmitted to one in a language which he did not understand. Suppose it were spoken to one stone deaf. Under such circumstances could the offer bind the receiver to accept it or suffer the consequences of a refusal? Surely not, and we think the answer must be the same here. We think that, under the finding of the court, irrespective of the effect of section 137, the right of respondent to press her cause of action for maintenance was not affected by the attempted offer. It remains only to remark that the portion of the finding dealing with the ambiguous character of the offer and with respondent’s inability to understand it was made upon conflicting evidence. It must therefore stand.

Judgment affirmed.

Finlayson, P. J., and Craig, J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on July 28, 1924, and the following opinion then rendered thereon: