Goldring v. Goldring

• Decision Date: 16 November 1949
• Citation: 211 P.2d 342,94 Cal.App.2d 643
• Parties: GOLDRING v. GOLDRING. Civ. 16948.
• Court: California Court of Appeals Court of Appeals

Page 342

211 P.2d 342

94 Cal.App.2d 643

GOLDRING v. GOLDRING.

Civ. 16948.

District Court of Appeal, Second District, Division 3, California.

Nov. 16, 1949.

Saul J. Bernard, Los Angeles, for appellant.

McLaughlin, McGinley & Hanson, Los Angeles, for respondent.

SHINN, Presiding Justice.

Plaintiff obtained an interlocutory decree of divorce on October 8, 1947 on the ground of cruelty. The decree recites that by a stipulation entered into in open court 'plaintiff and defendant stipulated and agreed as to all matters embodied in this decree except the matter of whether or not plaintiff should obtained an interlocutory decree of divorce.' Custody of the two minor children of the marriage was awarded jointly to the parties, with the plaintiff to have physical custody and control at all times except on alternate week-ends and during two weeks of the summer vacation period. Plaintiff was awarded the home, subject to a trust deed in the sum of $6,630.00 which defendant was ordered to pay and discharge; most of the furnishings therein; certain other articles of furniture; a 1947 automobile; and an insurance policy on her life. It was decreed that, except for the foregoing specific properties awarded to her, in consideration of which plaintiff had released all claims to any other property, plaintiff had no right, title, or interest in any property or assets of defendant John E. Goldring, of Modernair Corporation, or of Modern Products, Ltd., a co-partnership. Defendant was ordered to pay 'to the plaintiff the sum of Two Hundred Forty-nine Dollars ($249.00) per month for the support and maintenance of the said two minor children * * * until further order of the court,' and in addition thereto the sum of $1.00 per month as alimony for a period of three years or until plaintiff's remarriage. No appeal was taken from the judgment.

On August 13, 1948, following a hearing which lasted two days, a different judge from the one who presided at the divorce trial denied defendant's motion to modify the award of support money. Defendant appeals from the order, contending that denial of his application was an abuse of discretion. Respondent contends to the contrary, but concedes that, although the provision for support of the children was part of a property settlement agreement, the court had jurisdiction to modify it upon a proper showing of changed circumstances. In view of this concession and our conclusion that the order must in any event be affirmed, we find it unnecessary to determine whether, or to what extent, the court may have had such jurisdiction. See Streeter v. Streeter, 67 Cal.App.2d 138, 142-144, 153 P.2d 441. Cf. Fields v. Fields, 94 Cal.App.2d 56, 209 P.2d 977.

Before passing to a consideration of the merits of the appeal we desire to issue a word of warning to attorneys. Unfortunately our remarks will probably miss the mark, since the practitioners we intend to reach are not those who make a practice of reading law.

It is incumbent upon the appellant to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings. The reports are replete with statements to the effect that the courts are not called upon to make an independent search of the record where the rule is ignored. We have such a situation here. The appellant's brief of 7 1/2 pages devotes 1 1/2 pages to a statement of the evidence. It refers to the evidence most favorable to appellant, with proper transcript citations, but goes no further. No attempt whatever has been made to point out evidence tending to prove that a material change in defendant's financial condition had taken place after the decree was rendered. The general statement of the evidence given at the hearing is inaccurate, incomplete and misleading. It was not incumbent upon plaintiff to supply the deficiencies and she has not done so. Nevertheless we have seen fit to make a thorough study of the transcript of the evidence instead of affirming the order summarily. This because we have not heretofore announced an intention to adhere to the rule above stated. But we do now give notice that henceforth it will be the practice of this court to disregard claims of insufficiency of the evidence even though that be the only ground of appeal, where the appellant has failed to make a satisfactory statement in the opening brief, or a supplement thereto, of the evidence claimed to be insufficient, with transcript references. Counsel who ignore the rule may expect affirmance of the judgment or order appealed from in proper cases.

The only evidence pertaining to the status of defendant's finances consists of his own testimony and that of his business associate, C. S. Vaughn, plus certain documentary exhibits. As disclosed by that evidence, assuming it worthy of full credibility, we think the following is a fair statement of his finances at the time of the decree. He was the principal stockholder and an officer of Modernair Corporation, and entitled to a salary of $200 per month. The salary was not paid to him consistently, however. He had some additional income from securities, most of which was required to pay the interest on loans for which, as hereafter appears, such securities were pledged as collateral. On October 6, 1947, his checking account showed a favorable balance of $525.25, and his savings account $30,37. By the decree, defendant was awarded the sole ownership of the assets of Modern Products, Ltd., a partnership formerly composed of him and his wife. Prior to the divorce trial, these entire assets had been sold to Modernair for a price of about $37,000, some $16,500 of which was paid in cash to liquidate all of Modern Products' debts except an indebtedness of $1,900 which was assumed by defendant. At the time of the stipulation, the balance of $20,496.93 due on the purchase price was still owing to Modern Products Ltd. (i. e. to defendant) from Modernair. Between October 1946 and September 1947, entirely apart from the Modern Products purchase, defendant had invested in Modernair Corporation about $74,000, much of which had been raised by secured loans: $16,500 had been borrowed from the Bank of America, $21,000 from the Canadian Bank of Commerce in San Francisco, and $10,000 from his sister, Mrs. Natcher. Defendant had been issued 950 1/2 out of a total of 1978 outstanding shares of Modernair stock of $50 par value, and a receipt for $26,875.00 authorizing the issuance to him of 537 1/2 additional shares as soon as a permit therefor was received from the Corporation Commissioner. The only other shareholders were C. S. Vaughn (597 1/2 shares) and defendant's mother (430 shares). Defendant, about the time of the divorce trial, borrowed $10,000 from Vaughn, upon the security of certain bonds, which sum he invested in stock of the Vaughn Manufacturing Co. on October 6, 1947, in order to pay attorney's fees, costs, and sums awarded by the decree, he borrowed $10,000 from the Canadian Bank of Commerce in Los Angeles, secured in part by stocks owned by him, and in part by certain securities which he borrowed from his mother, in return for which he later pledged with her his newly acquired Vaughn stock. As a term of the property settlement agreement, defendant assumed a $3,500 debt owing from plaintiff to defendant's mother, and as security therefor pledged some 413 shares of his Modernair stock. The rest of his issued Modernair stock had already been pledged as collateral for the loan from his sister. The only unencumbered securities which he then held were certain shares in Celanese Corporation of Canada worth about $1,250. As previously noted, he was...