Arruda v. Arruda

• Decision Date: 18 July 1963
• Citation: 32 Cal.Rptr. 257,218 Cal.App.2d 410
• Court: California Court of Appeals Court of Appeals
• Parties: Mamie ARRUDA, Plaintiff and Appellant, v. Francis L. ARRUDA, Defendant and Respondent. Civ. 10568.

Page 257

32 Cal.Rptr. 257

218 Cal.App.2d 410

Mamie ARRUDA, Plaintiff and Appellant, v. Francis L. ARRUDA, Defendant and Respondent.

Civ. 10568.

District Court of Appeal, Third District, California.

July 18, 1963.

Robert A. Zarick, Sacramento, for appellant.

Malone, Dennis, Schottky & Pearl, Sacramento, for respondent.

JANES, Justice pro tem.

Plaintiff Mamie and defendant Francis were married in California in 1929. They separated in 1961 and Mamie thereupon filed this action for divorce, charging extreme cruelty. Francis filed an answer denying the allegations of cruelty and a cross-complaint seeking like relief. The case came to trial in due course and was tried without a court reporter. At the close of the evidence, counsel submitted their arguments to the trial court by written memoranda. After considering the memoranda, the court filed a written opinion, made and filed findings of fact and conclusions of law, and entered an interlocutory decree which awarded each spouse a divorce upon the ground of extreme cruelty, denied plaintiff's request for alimony and counsel fees and divided the community property of the parties.

Upon granting both parties a divorce, since neither spouse was found to be innocent, the court was required to divide the community property equally between them. (De Burgh v. De Burgh, 39 Cal.2d 858, 874, 250 P.2d 598.) It is clear from the record before us that the court attempted to make an equal division of the community property, except for certain furniture and furnishings of the family home. As to those items, the court made no determination as to values, but made a division thereof by distributing to plaintiff the articles which she had taken when she left the family home, and the remainder to defendant.

Plaintiff appeals from the interlocutory decree, except that portion finding that each party is entitled to a divorce from the other. Her principal attack, however, is upon that part of the decree which divides the community property, and her primary contention is that the trial court, in violation of the De Burgh rule, divided the community property unequally in favor of defendant.

The record on appeal is a partial record, presented under Rule 5(d), California Rules of Court, and consists of a clerk's transcript (including the judgment roll), the memorandum opinion of the trial court and certain exhibits received in evidence. It an attempt, however, to enlarge the record and the scope of appellate review by bringing before this court the arguments upon the factual contentions in the trial court, plaintiff has attached as exhibits to her opening brief on appeal the trial memoranda lodged with the trial court. ¹

California Rules of Court provide an appellant with a choice of several types of records upon which to take an appeal where, as here, there can be no reporter's transcript of the oral proceeding in the trial court. The choices are: a settled statement (Rule 7); an agreed statement (Rule 6); a clerk's transcript, which may or may not be restricted to the judgment roll (Rule 5(d), (f)). The last is the method selected by plaintiff. Whichever method is chosen, it is the duty of an appellant to present a record which affirmatively shows on its face that error has occurred. (Utz v. Aureguy, 109 Cal.App.2d 803, 806, 241 P.2d 639.)

Plaintiff has not taken advantage of either Rule 6 or Rule 7 to bring before this court the oral proceedings, or any part thereof, in the trial court. Her appeal must be disposed of, therefore, as an appeal on the judgment roll and only those facts appearing in the findings may be considered by us. (In re Estate of Larson, 92 Cal.App.2d 267, 269, 206 P.2d 852.) On such an appeal the question of the sufficiency of the evidence to support the findings is not open; we must conclusively presume that the evidence is sufficient to support the findings, since no record of the oral proceedings is before this court. (Kompf v. Morrison, 73 Cal.App.2d 284, 286, 166 P.2d 350.) Unless reversible error appears on the face of the record, we are confined, therefore, to a determination as to whether the complaint states a cause of action, whether the findings are within the issues, and whether the judgment is supported by the findings. (Estate of Larson, supra, 92 Cal.App.2d p. 268, 206 P.2d p. 853.) And plaintiff '* * * cannot, by designating for inclusion in the clerk's transcript documents not properly a part of the judgment roll, or by requesting that the exhibits received in evidence by transmitted to the appellate court, enlarge the scope of the appellate court's review.' (Hunt v. Plavsa, 103 Cal.App.2d 222, 224, 229 P.2d 482, 483.)

In the light of the foregoing rules, which we have noted because of plaintiff's attempts to enlarge the record and the scope of our review and thereupon to argue the sufficiency of the evidence, we turn to plaintiff's several assignments of error.

In support of her contention that the trial court made an unequal division of the community property, plaintiff argues (1) that the trial court erroneously assigned 'cash values' to certain lodge and group insurance policies having no cash value, and charged their values so found to her share of the community property; (2) that the court failed to take into account the present value of a life insurance policy upon the life of defendant and a credit union savings balance withdrawn by defendant; and (3) that the household furniture and furnishings of the parties were not valued and equally divided.

It would be a sufficient answer to each of plaintiff's contentions to reiterate the elementary and fundamental rule that where, as here, the appeal is taken upon a clerk's transcript, with no record whatever of the oral proceedings below, the appellate court must conclusively presume that the evidence is ample to support the findings made by the trial court. (Kompf v. Morrison, supra, 73 Cal.App.2d p. 286, 166 P.2d p. 352.) This is the position taken by defendant, who makes no attempt to answer plaintiff's separate claims of unequal division of the property, but contents himself with pointing to the inadequacy of the record as a basis for considering plaintiff's contentions and rests upon the presumption accorded the findings upon such record and appeal. We have reviewed the record in the light of each of plaintiff's contentions, however, and shall discuss them individually.

Plaintiff's Insurance Policies

Plaintiff asserts that the trial court assigned to three lodge and group insurance policies, in plaintiff's name, values of $600.00, $500.00 and $1,000.00, and included the total thereof, the sum of $2,100.00, in plaintiff's one-half share of the community property, although the policies have, in fact, no cash value. ² Whatever speculation might be indulged in the matter falls before the presumption that the evidence is ample to support the findings of the trial court. Moreover, the presumption is fortified, in this instance, by plaintiff's Exhibit No. 2 at trial, which she has attached to her opening brief on appeal as Exhibit 'C' thereto and urges us to consider. Under the heading, 'INSURANCES, STOCKS, CASH, BONDS,' the exhibit contains descriptions of the three policies in question and, opposite each policy description, the exact value (without designation of such values as either 'face' or 'cash' values) accepted and fixed by the court and of which plaintiff complains. ³ Upon the basis of this evidence alone the court was entitled to infer and to conclude, as it did, that the insurance policies are of the values assigned to them.

Defendant's Life Insurance Policy and Credit Union Savings Deposit

Plaintiff's next contention is that the trial court failed to take into account a California Western Life Insurance policy on the life of defendant, in the face amount of $2,500.00, which it is conceded defendant 'cashed' for the sum of $1,900.00, and a Federal Credit Union savings account, also in defendant's name, in the amount of $1,000.00, which it is claimed defendant withdrew and used. The existence of the former was admitted by the pleadings; the latter first appears in plaintiff's answer to defendant's cross-complaint, in which plaintiff alleges, for the first time, additional community property in the form of the $1,000.00 deposit with a credit union affiliated with defendant's employer. The latter allegation is deemed to have been denied. (Code Civ.Proc. § 462.)

The court made no finding with respect to either the life insurance policy or the credit union balance, and plaintiff contends that the court erred in omitting to find as to these items of property. The contention is without merit. '[W]here * * * an appeal is based upon the judgment roll alone, the omission of the trial court to make and file findings of fact upon issues raised by the pleadings is not a ground for reversal of the judgment on appeal. [Citations]' (D'Alessio v. D'Alessio, 56 Cal.App.2d 118, 120, 132 P.2d 271, 272; Garwick v. Gordon, 121 Cal.App.2d 247, 250, 256 P.2d 125.) Plaintiff's position is not aided by the fact that the pleadings contain an admission as to the existence of the insurance policy. In the absence of a record of the oral proceedings, and in the light of the presumption that the evidence received by the trial court sustains its findings, it is immaterial whether the documents which are a part of the record contained admissions of defendant against his interest. (White v. Jones, 136 Cal.App.2d 567, 571, 288 P.2d 913.)

The court impliedly found that these items of community property did not exist, and this conclusion, too, finds...