Section 2026. Habitual Intemperance Defined: Habitual intemperance is that degree of intemperance from the use of intoxicating drinks which disqualifies the person a great portion of the time from properly attending to business, or which would reasonably inflict a course of great mental anguish upon the innocent party. 1887 R. S. Sec. 2462. If there is a fixed habit of drinking to excess to such a degree as to disqualify a person from attending to his business during the principal portion of the time usually devoted to business, it is habitual intemperance, although the person may at intervals be in a condition to attend to his business af fairs.-Mahone v. Mahone, 19 Cal. 627. An allegation that defendant had been habitually intemperate to such a degree as to reasonably inflict and cause a great mental suffering upon the plaintiff is sufficient.-Forney v. Forney, 80 Cal. 528, 22 Pac. 294; Reading v. Reading, 96 Cal. 6, 30 Pac. 803. Section 2027. Desertion, Neglect, Intemperance, How Long to Continue: Willful desertion, willful neglect or habitual intemperance must continue for one year before either is a ground for divorce. 1887 R. S. Sec. 2463. If there is no finding that the offense continued for the statutory time, the judgment will be reversed on appeal.-Dunn v. Dunn, 62 Cal. 176. Section 2028. Permanent Insanity: No divorce shall be granted on the ground of permanent insanity, unless such insane person shall have been duly and regularly confined in the insane asylum of this State, for at least six years next preceding the commencement of the action for divorce; nor, unless it shall appear to the court that such insanity is permanent and incurable. And provided further, that no action shall be maintained under the provisions of this Chapter, unless the plaintiff shall be an actual resident of this State and shall have resided therein for six years next preceding the commencement of such action. Section 2030. Collusion Defined: Collusion is an agreement between husband and wife that one of them shall commit, or appear to have committed, or to be represented in court as having committed, acts constituting a cause of divorce for the purpose of enabling the other to obtain a divorce, and is a bar to an action for such is a showing by the defendant of any cause of divorce against the plaintiff, in bar of the plaintiff's cause for divorce. 1887 R. S. Sec. 2466. The doctrine of recrimination, and the several offenses which, by the statute, constitute grounds of divorce, are pleadable in bar to such suits, the one to the other. To be an absolute bar, conduct of the plaintiff must be such as to constitute a proper basis for judicial decree against her, had suit been instituted by the defandant. -Conant v. Conant, 10 Cal. 249. Section 2032. Condonation: Condonation of a cause of divorce shown in the answer as a recriminatory defense, is a bar to such defense when the condonee has fully performed the marital duties, and is without reproach since the condonation, or if two or more have elapsed after the condonation. 1887 R. S. Sec. 2467. If, pending action for divorce, the parties thereto admit condonation, and ask that the action be dismissed, the court should order a dismissal, and thereafter the husband cannot be compelled to pay counsel fees of the wife.Reynolds v. Reynolds, 67 Cal. 176, 7 Pac. 480. A wife who continues to live with her husband, after an act of personal violence, condones the offense.-Youngs v. Youngs, 130 Ill. 230, 6 L. R. A. 548, 22 N. E. 806. Where the cause of divorce consists of a course of offensive conduct, or arises in case of cruelty from successive acts of ill treatment which may, Section 2033. Limitation of Time for Commencing Action: A divorce must be denied: I. When the cause is adultery and the action is not cominenced within two years after the comntion of the act of adultery, or after its discovery by the injured party cr When the cause is conviction of felony, and the action is not commenced before the expiration of one year after a pardon or the termination of the period of sentence; 3. In all other cases where there is an unreasonable lapse of time before the commencement of the action. 1887 R. S. Sec. 2468. Section 2034. Residence of Plaintiff: A divorce must not be granted unless the plaintiff has been a resident of the state for six months next preceding the commencement of the action. 1887 R. S. Sec. 2469; Compiled Laws 1875, p. 639. Where the plaintiff has not resided within the state six months prior to the commencing of an action for di vorce, the court has no jurisdiction and a decree rendered therein is null and void.-Strode v. Strode (Idaho), 52 Pac. 161. Section 2035. Proof of Actual Residence Necessary: In actions for divorce the presumption of law that the domicile of the husband is the domicile of the wife, does not apply. After separation, each may have a separate domicile, depending for proof upon actual residence, and not upon legal presumptions, 1887 R. S. Sec. 2470. the wife to her own domicile.-Moffatt Section 2036. Proof Necessary in Divorce Proceedings: No divorce can be granted upon the default of the defendant, or upon the uncorroborated statement, admission or testimony of the parties, or upon any statement or finding of fact made by a referee; but the court must, in addition to any statement or finding of the referee, require proof of the facts alleged, and such proof, if not taken before the court, must be upon written questions and answers. 1887 R. S. Sec. 2471; Compiled Laws 1875, p. 640. Section cited in Strode V. Strode (Idaho), 52 Pac. 161. Where in an action for divorce, the cross complaint of the defendant fails to set up a ground of divorce, a decree in favor of defendant upon such cross complaint will be set aside.-Stover v. Stover (Idaho), 56 Pac. 263. The main purpose of this section is to prevent collusion.-Andrews v. Andrews, 120 Cal. 1886, 52 Pac. 298, citing Smith v. Smith, 119 Cal. 183, 48 Pac. 730, 51 Pac. 183; Evans v. Evans, 41 Cal. 103; Baker v. Baker, 13 Cal. 88. It is the policy of the law to discourage divorces; hence, where the plaintiff in a divorce suit asks to dismiss. and no counter cause of action is set up in a cross-complaint or counterclaim, the refusal of the court to make the order dismissing the action is reversible error. Stover V. Stover (Idaho), 61 Pac. 462. Section 2037. Alimony Pending Suit: While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action. 1887 R. S. Sec. 2472. Although a husband and wife cannot lawfully enter into an agreement for divorce, they may agree as to the amount and terms of payment of alimony, and the court will embody such agreement in its decree.-Storey V. Storey, 125 Ill. 608, 1 L. R. A. 320, 18 N. E. 329. Temporary alimony may be granted pendente lite, but the title of the real estate of the defendant remains intact, and cannot be affected during the pendency of the proceeding, but only when the proceeding for the divorce has terminated, and a decree rendered that the marriage is dissolved, and then only by force of the statute.Houston v. Timmerman (Or.), 4 L. R. A. 716, 21 Pac. 1037. Section 2038. Custody of Children: In an action for divorce the court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may be seen necessary or proper, and may at any time vacate or modify the same. 1887 R. S. Sec. 2473; 1875 Compiled Laws, p. 640. Section cited in In re Miller (Idaho), 43 Pac. 870. If, after a decree of divorce has been granted, and the wife has been awarded the custody of a child, she petitions the court for an order requiring her former husband to make provision for the support of the child, the court may make allowances for the past as well as the future support of the child. And a stipulation of the parties made at the time, that the wife shall receive a certain sum as her part of the common property and shall have the custody of the infant child, and that such sum shall be in full for her allowance for the support of the child, such stipulation does not deprive the court from afterwards, on her petition, making her an allowance for the support of such child.-Wilson v. Wilson, 45 Cal. 399. A wife by her fault in the matters involved in an action for divorce may forfeit her own claim to be supported by her husband, but she cannot forfeit the claims of their children to such support. Ex parte Gordon, 95 Cal. 374. 30 Pac. 561. The refusal of the husband to pay money for the support of a minor child which the court, in an action for divorce, has ordered to be paid, to the one who has the custody of the child, is a contempt of court, punishable by imprisonment until the money is paid, if the husband is found to have the ability to do so.-Ex parte Gordon, 95 Cal. 374, 30 Pac. 561. Section 2039. Husband to Support Wife and Children when: Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects. 1887 R. S. Sec. 2474. An order that the father pay for the support of minor children awarded to the custody of the mother without any provisions for their maintenance by decree of divorce, may be obtained by petition in that case long after the decree has become final and the mother has remarried.-McKay V. Superior Court, 120 Cal. 143, 40 L. R. A. 585, 52 A divorced wife can maintain an action against her former husband for the maintenance of a minor child when the father is found unfit to have the custody of the child and this has been awarded to her.-Gibson v. Gibson, 18 Wash. 489, 40 L. R. Ą. 587, 51 Pac. 1041. Section 2040. Husband may be Required to Give Security: The court may require the husband to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable tɔ the case. 1887 R. S. Sec. 2475. Section 2041. Property Liable to Costs and Support: In executing the four preceding sections the court must resort: I. To the community property; then 2. To the separate property of the husband. 1887 R. S. Sec. 2476. Section 2042. Separate Property of Husband not Liable when: When the wife has a sufficient separate estate, or there is community property sufficient to give her alimony or proper support, the court must withhold any allowance to her out of the separate property of the husband. 1887 R. S. Sec. 2477. In an action for divorce, where the complaint states the existence of common property, the court, in addition to granting the divorce, may order a division of the common property and that a homestead be set apart for the plaintiff.-Gimmy v. Gimmy, 22 Cal. 633. A partition of the common property is one of the direct results of a decree for divorce and is a part and parcel of the decree to be rendered and one of the proper subjects of the action.-Kashaw v. Kashaw, 3 Cal. 312. Section 2043. Property Liable for Education of Children: The community property and the separate property may be subjected to the support and education of the children in such proportions as the court deems just. 1887 R. S. Sec. 2478. Section 2044. Adultery of Wife, Legitimacy of Children: When a divorce is granted for the adultery of the wife the legitimacy of children begotten of her before the commission of the adultery is not affected; but the legitimacy of other children of the wife may be determined by the court upon the evidence in the case. 1887 R. S. Sec. 2479; Compiled Laws 1875, p. 640. Section 2045. Community Property, how Disposed of: In case of the dissolution of the marriage by the decree of a court of competent jurisdiction, the community property and the homestead must be assigned as follows: I. If the decree be rendered on the ground of adultery or extreme cruelty, the community property must be assigned to the respective parties in such proportions as the court, from all the facts of the case, and the condition of the parties deems just; 2. If the decree be rendered on any other ground than that of adultery, or extreme cruelty, the community property must be equally divided between the parties; 3. If a homestead has been selected from the community property, it may be assigned to the innocent party, either absolutely or for a limited period, subject in the latter case to the future disposition of the court; or it may be divided or be sold and the proceeds divided; 4. If a homestead has been selected from the separate property of either, it must be assigned to the former owner of such property, subject to the power of the court to assign it for a limited period to the innocent party. 1887 R. S. Sec. 2480; Compiled Laws 1875. p. 636, Sec. 12. The husband has the absolute power to dispose of the common property of himself and wife, to the same extent and in the same manner as he has of his separate property, until a legal separation has been effected by a court of competent jurisdiction, and a division made under the direction of such court.-Ray v. Ray, 1 Idaho, 566. Section 2046. Order of Court; Sale or Partition of Property: The court, in rendering a decree of divorce, must make such order for the disposition of the community property, and of the homestead as in this chapter provided, and, whenever necessary for that purpose, may order a partition or sale of the property and a division of other disposition of the proceeds. 1887 R. S. Sec. 2481. In a decree granting a divorce, court has no power to order a partition of community real estate, which is in the lawful possession of a mortgagee under a mortgage covering the whole thereof, until the lien of the mortgage has been satisfied or redeemed.-Cummings v. Cummings, 75 Cal. 434, 17 Pac. 442. Section 2047. Order Subject to Revision on Appeal: The disposition of the community property, and of the homestead, as above provided, is subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court. 1887 R. S. Sec. 2482. The fact that a divorce court has power to modify its orders concerning distribution of property between the parties does not affect the right of free distribution of property not expressly bound by such orders.-Whitmore v. Hardin (Utah), 1 Pac. 465. Section 2048. District Court has Exclusive Original Jurisdiction: Exclusive original jurisdiction of all actions and proceedings under this chapter is in the District Court, and the Judge thereof at chambers may make all necessary orders for temporary alimony and support, and the expenses of the action and the |