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47 Cal. 62

Eslinger v. Eslinger

California Supreme Court

Decided July 1, 1873

California Supreme Court · decided 1873-07-01

<p>Appeal from the District Court of the Tenth Judicial District, Sutter County.</p> <p>The plaintiff brought this action to obtain a divorce from from her husband, and asked to be restored to the possession of certain lands which she claimed as her separate' property. At the trial it was stipulated that the plaintiff and defendant intermarried in November, 1865; that at that time the plaintiff “owned” and “lived upon a possessory claim” of 160 acres of land, valued at $300; that after the marriage, the plaintiff and defendant lived together upon the land until 1869; that in the meantime the defendant filed a declaration of pre-emption upon it in his own name, was allowed to enter and purchase it, and, in September, 1869, the plaintiff and defendant by their joint deed sold the land for $1,600, paid the Government with $200 of the money, and, on the same day, with the remaining $1,400, the defendant purchased, in his own name, the eighty-eight acres of land in controversy. The Court found that the eighty-eight acres last mentioned were acquired during coverture, and was community property. A decree was entered divorcing the parties, and directing the land to be equally divided between them. The plaintiff appealed.</p> <p>The other facts are stated in the opinion.</p>

Good law ✅— No negative treatment on recordhow we know

Decided 1873-07-01

How this case has been cited

Cited by 21 later decisions — most recently January 1972

21 state decisions

3018731880189019001910192019301940195019601970decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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By the Court:

¶1On the facts disclosed by the record, we are of opinion that the tract of land containing eighty-eight acres is community property, and was properly so treated by the Court below. But the divorce was granted on the ground of extreme cruelty, alleged in the complaint to have been perpetrated by the husband on the wife. The acts of cruelty specified were frequent beatings; audit is alleged that on one occasion he kicked, choked and bit her, and stripped and flogged her on her naked person with a switch or rod four feet long, whereby she was bruised all over her body, *64and the blood made to flow freely from the wounds thus made.” On this point the Court finds “that the allegations of extreme cruelty áre true.” The evidence is not before us, but enough' appears from the findings to show that the cruelty was of an aggravated character. Section 147 of the Civil Code provides that when a divorce is granted on this ground, the party in fault shall be entitled only to such portion of the community property as the Court in its discretion may deem just under the facts of the case. The next section provides that the order of distribution of the community property “is subject to revision on appeal in all respects, including the exercise of discretion by the Court below.” In this case the Court below awarded to the plaintiff one half of the community property remaining after the payment of the community debts. But we are of opinion that, under all the circumstances, she ought to have been awarded a larger share. Section 146 of the Civil Code requires that the community property shall be equally divided between the parties; but the next section makes an •exception to the general rule by providing that if the divorce be granted on the ground of adultery or extreme cruelty, the guilty party shall receive only such portion as the Court shall deem just under the facts of the case. The inference is that in the excepted cases the injured party is to receive, as a general rule, more than one half of the property, and as much more as the Court shall deem just. Under the circumstances of this case, we think the Court ought to have awarded to the wife three fourths of the community property after the payment of the community debts.

¶2Judgment reserved and cause remanded with an order to the Court below to modify its judgment in accordance with this opinion.

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