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 duct of the other…