Opinion
L.A. No. 2134.
February 13, 1908.
APPEAL from a judgment of the Superior Court of Los Angeles County. Charles Monroe, Judge.
The facts are stated in the opinion of the court.
Gardner Fairall, and Cyril H. Bretherton, Amicus Curiæ. for Appellant.
William E. Locke, for Respondent.
This is an action by the wife against the husband for a divorce upon the ground of willful neglect. The court made findings and rendered judgment denying the divorce. From this judgment plaintiff appeals.
It is averred in the complaint "that the defendant for more than one year last past has failed to provide the plaintiff the common necessaries of life because of his idleness, profligacy, and dissipation." The court found "that the defendant for more than one year last past has failed to provide the plaintiff the common necessaries of life, because of his idleness and dissipation; that he was an able-bodied man able to earn good wages and to have the means and ability to furnish plaintiff the common necessaries of life but has wholly failed to furnish her with the common necessaries of life." The court further finds that the plaintiff and defendant intermarried in the city of Denver, in the state of Colorado, on the eighth day of September, 1897. It further finds "that shortly after the marriage of plaintiff and defendant they went from Colorado to Texas, and during their stay in Texas plaintiff was compelled to and did support herself; that thereafter the defendant left the plaintiff in Texas without any means of support, going to Denver, where the plaintiff afterwards joined him; that the defendant failed to make any provision at all for the plaintiff, who, with money furnished by her relatives, started a hair-dressing parlor, where, in connected rooms, plaintiff and defendant resided during about three years prior to the plaintiff coming to California. During all this time plaintiff was compelled to and did support herself by her own earnings and the defendant contributed nothing toward her support, but on the contrary was furnished by her with money from her earnings, and pawned some of her personal effects and used the money." From these facts the court found as conclusions of law "that the plaintiff was supported by her own earnings for eight years prior to the commencement of this suit and that said earnings were the community property of plaintiff and defendant," and further that "there was an unreasonable lapse of time before the commencement of this action, even before the plaintiff came to California. The divorce must be denied." But the court further found "that plaintiff by reason of ill health brought on by overwork gave up her business in Colorado and came to California in October, 1905, that during the time since leaving Colorado she has been unable to support herself, but has been assisted by friends to the extent of being furnished board and lodging free by them." We are of the opinion that upon the findings the court should have given judgment for plaintiff, and erred in denying it. "Willful neglect" is enumerated in section 92 of the Civil Code as a cause of divorce, and is defined in section 105 as "the neglect of the husband to provide for his wife the common necessaries of life, he having the ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation"; and by section 107 it must continue for one year. If it be law, as intimated by the court below (which question we do not here consider or determine), that a wife cannot obtain a divorce for willful neglect if she supports herself by her own work because her earnings are community property and therefore, in legal contemplation, contributed by the husband, still that harsh rule would not defeat the action in the case at bar; because for more than a year before the commencement of the action plaintiff could not and did not support herself, and therefore, according to this theory, she had no cause of action until she ceased her self-support. There was, therefore, willful neglect for more than the full statutory period immediately before the commencement of the suit, entirely free of any consideration of former self-support of the wife; and this constituted, in itself, a perfect and independent cause of action not affected by the previous conduct of the parties. We do not think that the provisions of sections 124 and 125, Civil Code, relating to "unreasonable lapse of time before the commencement of the action," affect the case at bar. It would be attributing to the legislature a very unjust and unreasonable purpose to hold the meaning of the code to be that when a husband is guilty of willful neglect to provide for his wife she must immediately, or within any particular time, commence an action for divorce and must not endeavor to support herself and avoid what may be to her the very disagreeable event of a divorce, or she must forfeit forever the right to procure a divorce for willful neglect, either past or future; and to compel that purpose to be attributed to the legislature would require language to that effect much more direct and clear than that found in the code. It is not the policy of the law to encourage divorces and to urge wives to bring suit to obtain them. We do not think that in the case at bar the plaintiff is estopped by laches from maintaining the present action merely because under the facts developed in the record she refrained from bringing other suits for previous willful neglects by defendant. (See Thompson v. Thompson, 121 Cal. 11, [53 P. 403].)
The judgment is reversed and the cause remanded with directions to the superior court upon the findings as they stand, to render an interlocutory judgment of divorce in favor of plaintiff as prayed for in the complaint.
Sloss, J., Angellotti, J., Lorigan, J., and Henshaw, J., concurred.
I concur in the judgment. During the time the plaintiff supported herself she had no cause of action for divorce on the ground of non-support. (Washburn v. Washburn, 9. Cal. 476; Rycraft v. Rycraft, 42 Cal. 445.) The delay during that time to begin the action could not affect the case, for she then had no right of action. The cause of action she had was for non-support during the year ending in October, 1906. She began the action therefor on November 8, 1906.