Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1885-07-04
YALENSIN vs.. vALENSIN.
PLAINTIFFS APPLICATION FOR A
DIVORCE DENIED.
The Child Awarded to the Custody
of Mrs. VaIensin-The Property
Remains as Before.


findings and decision in the case of Alice
N. Yalensin VS.. Giulio YalenSin, which has
occupied the attention of the Court for so
long time. We give the decision in full,
rs follows:
Having prepared findings, and ordered
Judgment in this Court, desire to state a
little more fully, by way of an opinion, the
views which | have taken of the case.
The ground of the action is extreme
cruelty" 1t is not alleged that defendant
has been guilty of any personal violence to
the plaintiff; but she claims that his con
duct has been such as to inhict on her
"grieyous mental suffering" within the
meaning of the Code.
do not agree with counsel for de endant
that the inhictiOn of mental suffering does
not amount to legal cruelty unless it causes
or threatens to cause-physical sickness
Or bodily harm Such was undoubtedly
the law until within recent period, and
is. perhaps, still the law in some Of the
American States Bishop declares it in
these words: " Cruelty is such con-
duct in one of the married par
ties as renders cohabitation dangerous
to the physical safety OF the other, or Gre
ates in the other such reasonable appre-
hension of bodily harm as naturally inter
feres with the discharge of marital duty"
Dish on Mar and Div, Sec. 454). And
the same doctrine was announced in this
State as late as the year 1868. in the case of
Powelson VS.. PCwelson 90 Cal, $3.50.
But down to that time the Legislature had
attempted no definition of the words " eX-
treme cruelty" The statute merely pro-
yided that extreme cruelty should be q
cause of divorce, leaving the legal meaning
of the words to be gathered from the de
Cisions of Courts and the opinions Of law
writers. These generally followed the old
ecclesiastical law, which had worn itself
into rut 50 deep that it could not see the
present aspect of the world. But in 1873
the Codes of this State were adopted and
the Legislature, evidently dissatisfied with
a doctrine which so much elevated the ami
NAL organization of man above his moral,
intellectual and spiritual nature, enacted as
follows:
Extreme cruelty is the infection of
grievous bodily injury or grievous mental
the marriage Civil Code, Sec "a
BY this enactment it was clearly intend
ed to make " bodily injury" and mental
suffering separate and distinct results Of
cruelty. The distinctive or" is used :
and the plain meaning is, that when the
" lntilctOns causes grievOus mental
suffering, there legal cruelty exists
whether or not the mental suffering acts
upon the animal machinery so as to pro-
duce " bodily injury" Any other constitute
ton would make cruelty depend not upon
the extent of the misconduct of the one
party, but upon the extent of the physical
endurance OF the other. Some people
both men and women-inherit from their
ancestors such splendid physical organiza-
tons that but few of the misfortunes and
ills of life Will seriously impair them. The
heart and The lungs and the digestive sys-
TEN will continue to perform their func-
lions normally, the muscles will retain
their strength, and the nerves their steadi-
ness though storms of passion, or anguish,
are raging in the mind. Could a husband
subject woman with such a physical
frame, though refined and sensitive, to a long
course OF insulting, humiliating and vulgar
treatment, causing her continuous shame
disgrace and grief, and yet Not be guilty. of
legal cruelty, because her physical health
stood mp against the mental strain. On
the other hand, if a vain, frivolous and ex-
acting wife, with a weak nervous system,
should 20 into Mysteries at some ordinary
expression Of disapproval by her husband,
would that be extreme cruelty? It seems
clear, therefore, that the health of the wife
night be affected by conduct of the hus-
band which would not bc cruel: and that
there may be legal cruelty though the sui,
terin5 Of the wife be only mental. The
mental or physical strength of the one is
often IN element 10 be considered but the
main standard by which to measure the
cruelty Is the misconduct of the other
And, as IN other matters for legal decision
the test OF rcaSOnahcnesS must be applied
10 the circumstances Of each individual
case | make these remarks because al
though plaintiff claims that the alleged
cruelty did impair her health, that fact is
denied by the defendant. In my Judgment
it IS immaterial whether or not her health
has been seriously impaired. provided de-
PENDANT has been guilty of extreme cruelty
within the meaning OF the law, and such
cruelty has caused plaintiff grieyous mental
suffering.
BUT while modern legislation is more
liberal with respect To the matter under
discussion than the ancient law, still the
essential characteristics Of the marriage re-
iatiOus are not destroyed-its foundations
axe not broken up. Marriage is sometimes
called "a civil contract; but that is mainly
TO distinguish it from a religious sacrament
to show that the law which governs it
has mo concern with the dogmas and man
dates OF churches and sectS. 1t has hut
few ot the elements of 4 contract. HuS-
band ana wife owe obligations to a COM
mUHity is well as TO each other. Except as
10 property, they cannot, either before or
after marriage, settle, or merge, or modify
their rights or obligations Neither can end
the relation by notice, and disregard OF
the marriage obligations by one does not
give q right OF action for damages for !
breach of contract to the other. Their !
rights and obligations come, not from any
contract between themselves, but from the
law. They are changed by q change
pf the law or by a change of re-
5ideuce to where the law is differ /
emit Marriage, therefore, differs in nearly
every respect from a contract 1t |
is not mere agreement by one person to
liz t. in certain relations 70 another so long
As The other shall make good husband or
wife. Marriage is a civil cOndition-a legal |
is permanent in its charac
Ter. 1t lasts for life" for better or for
worse The divorce laws which happen
10 exist at the time the relation is entered
njo do not form part Of the contract" III
lae Legislature should 1t It's next session !
repeal ali laws for granting divorces, such !
appeal would not affect the legal status of
married people IN the least. They may be |
said 20 enter the marriage condition by q |
noEtsact but after that the contract van
iShes
However, as the marriage relation comes !
from the law, of course the sovereign, or |
law-making power, may change or dis |
solve 1t. Formerly, both in England and .
10 this country, divorces were granted |
when at all, by direct legislative act Now
IN this State the Legislature is prohibited
by the Constitution from granting divorces,
but it may make general laws upon the |
subject, under which Courts may decree !
divorces after judicial investigation. Under |
this system ii is evident that Court has
no original sovereign power to grant
divorce according to its own will or Pile
IRE. 1t cannot free parties from the bon
Of matrimony because, in its opinion, one
or the other is not good husband or q
good wife. 1t can enter its decree of disso-
luton only for one of the causes for divorce
specified by the Legislature.
In this State there are six-and only six
causes for divorce prescribed by law.
The cause upon which this present action
is founded is, as before stated, extreme