Hansen v. Hansen

• Decision Date: 14 April 1965
• Citation: 43 Cal.Rptr. 729,233 Cal.App.2d 575
• Court: California Court of Appeals Court of Appeals
• Parties: Margaret M. HANSEN, Plaintiff and Appellant, v. William M. HANSEN, Defendant and Respondent. Civ. 21848.

Page 729

43 Cal.Rptr. 729

233 Cal.App.2d 575

Margaret M. HANSEN, Plaintiff and Appellant, v. William M. HANSEN, Defendant and Respondent.

Civ. 21848.

District Court of Appeal, First District, Division 1, California.

April 14, 1965.

John R. Miilu, Robert A. Kaiser, Oakland, for appellant.

King & Richards, Oakland, for respondent.

SIMS, Justice.

Plaintiff has appealed from the whole of a judgment which granted her an interlocutory decree of divorce on the grounds of the defendant's extreme cruelty, provided for the custody and support of the minor daughter of the parties, declared certain items of property joint tenancy property, disposed specifically of certain insurance policies and other items of community property, awarded plaintiff a fixed sum payable in monthly installments as part of the distribution of community assets, denied her alimony, and granted her attorney's fees. Her purported appeal from the denial of her motion for new trial must be dismissed as it is not an appealable order, although its propriety may be reviewed on the appeal from the judgment. (People ex rel. Dept. of Public Works v. Donovan (1962) 57 Cal.2d 346, 351, 19 Cal.Rptr. 473, 369 P.2d 1; Neyens v. Sellnow (1962) 202 Cal.App.2d 745, 746, 21 Cal.Rptr. 151; Di Grandi v. Di Grandi (1951) 102 Cal.App.2d 442, 443, 227 P.2d 841; Code Civ.Proc. § 963.)

Her attack on the judgment before this court, however, is limited to those portions thereof which denied her alimony and which declared that certain items of property were held by the parties in joint tenancy. In support of this attack she alleges that the trial judge manifested such prejudice that it was impossible for her to receive a fair and impartial trial on the merits.

Motion to Dismiss

Respondent has moved to dismiss the appeal by motion, which after due notice was presented, argued, and submitted in connection with the hearing of the appeal. It is contended that by levies of a writ of execution appellant has accepted the fruits of her judgment and thereby is precluded from further prosecuting the appeal. (See Wilson v. Wilson (1958) 159 Cal.App.2d 330, 334, 323 P.2d 1017; and 3 Witkin, Cal.Procedure, Appeal, § 41, p. 2189.) In the cited case the appeal was dismissed bacause it appeared that the defendant failed to appeal from, and in effect accepted, the portions of the judgment which awarded him an automobile and which provided that the plaintiff should discharge and hold him harmless from a $20,000 obligation. (See also Preluzsky v. Pacific Co-operative Cafeteria Co. (1925) 195 Cal. 290, 293, 232 P. 970; Weil v. Superior Court (1950) 97 Cal.App.2d 373, 375, 217 P.2d 975; Weil v. Weil (1950) 97 Cal.App.2d 378, 379, 217 P.2d 979; and Swallers v. Swallers (1948) 89 Cal.App.2d 458, 462, 201 P.2d 23.) The same policy dictates that where there is an attempted appeal from a portion of a judgment which contains provisions which are interdependent, an appellate court cannot properly reverse the judgment as to the part complained of and permit the remainder to stand. (Wilson v. Wilson, supra, 159 Cal.App.2d p. 333, 323 P.2d 1017; Blache v. Blache (1951) 37 Cal.2d 531, 538, 233 P.2d 547; and see American Enterprise, Inc. v. Van Winkle (1952) 39 Cal.2d 210, 216-219, 246 P.2d 935.)

On the other hand, it is recognized in the Wilson case, supra, on which respondent relies, that the rule first stated is qualified and depends on the provisions of the judgment and the nature of the appeal. It is generally stated 'that the right of appeal is not forfeited unless the acts of an appellant which are relied upon are such as to clearly and unmistakably show acquiescence and that such acquiescence must be unconditional, voluntary and absolute. (Gudelj v. Gudelj, 41 Cal.2d 202, 214, 215, 259 P.2d 656).' (Wilson v. Wilson, supra, 159 Cal.App.2d p. 333, 323 P.2d p. 1019; and see in addition to the case cited, Mears v. Mears (1960) 180 Cal.App.2d 484, 509, 4 Cal.Rptr. 618; and Steele v. Steele (1954) 129 Cal.App.2d 389, 390, 277 P.2d 56.)

More particularly where different portions of the judgment are severable a party, by accepting one portion, is not estopped to attack other and severable portions thereof on appeal. (Wilson v. Wilson, supra, 159 Cal.App.2d p. 333, 323 P.2d 1017; 3 Witkin, Cal.Procedure, Appeal, § 43, &. 2191; Gudelj v. Gudelj (1953) 41 Cal.2d 202, 214, 259 P.2d 656; Mears v. Mears, supra, 180 Cal.App.2d p. 509, 4 Cal.Rptr. 618; Cohen v. Cohen (1951) 102 Cal.App.2d 624, 625, 228 P.2d 54; Di Grandi v. Di Grandi, supra, 102 Cal.App.2d 442, 444-448, 227 P.2d 841; Harrold v. Harrold (1950) 100 Cal.App.2d 601, 604, 224 P.2d 66.) If the appeal is only from a portion of a judgment in which the issues are severable, the portions from which no appeal is taken may become final and beyond the scope of review of the appellate court (Blum v. City & County of San Francisco (1962) 200 Cal.App.2d 639, 19 Cal.Rptr. 574; and see concurring opinion of Traynor, J., Harrold v. Harrold, supra, 43 Cal.2d 77, at pp. 88-90, 271 P.2d 489); and so where the judgment clearly establishes the appellant's right to recover but the amount is less than he demands, he may accept it and nevertheless appeal, claiming the larger recovery. (3 Witkin, Cal.Procedure, Appeal, § 42, p. 2190; Blum v. City & County of San Francisco, supra, 200 Cal.App.2d p. 650, 19 Cal.Rptr. 574, distinguishing Wilson, supra; Mears v. Mears, supra, 180 Cal.App.2d at p. 509, 4 Cal.Rptr. 618; Di Grandi v. Di Grandi, supra, 102 Cal.App.2d p. 444, 227 P.2d 841.)

'That test of whether a portion of a judgment appealed from is so interwoven with its other provisions as to preclude an independent examination of the part challenged by the appellant is whether the matters or issues embraced therein are the same as, or inter-dependent upon, the matters or issues which have not been attacked. [Citations.]' (American Enterprise, Inc. v. Van Winkle, supra, 39 Cal.2d 210, 217, 246 P.2d 935, 938; Gudelj v. Gudelj, supra, 41 Cal.2d 202, 214-215, 259 P.2d 656; Blum v. City & County of San Francisco, supra, 200 Cal.App.2d 639, 648, 19 Cal.Rptr. 574; Mears v. Mears, supra, 180 Cal.App.2d 484, 509, 4 Cal.Rptr. 618.)

As noted, in this case the notice of appeal was from the whole of the judgment. Although, on the one hand, the notice of appeal may limit the points the appellant can present (Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 92, 17 P.2d 703), the appellant nevertheless may abandon an appeal from portions of a severable judgment by failing to assign error in respect of or otherwise discuss such portions. (See Haldeman v. Haldeman (1962) 202 Cal.App.2d 498, 501, 509, 21 Cal.Rptr. 75, and same case at 206 Cal.App.2d 307, 23 Cal.Rptr. 895, recognizing right to final decree of divorce on remand; ¹ Whitney v. Whitney (1958) 164 Cal.App.2d 577, 580, 330 P.2d 947; and Di Grandi v. Di Grandi, supra, 102 Cal.App.2d 442, 445, 227 P.2d 841.) The case last cited preserved and perpetuated portions of an intermediate and superseded opinion in the matter of the litigious Weils, which is pertinent to the issues herein. ² The Di Grandi opinion, on its own and by the foregoing reference reviewed the earlier cases, ³ and concluded that the acceptance of attorneys' fees awarded for services in the lower court would not bar the appeal from other portions of the judgment. (102 Cal.App.2d at pp. 444-448, 227 P.2d 841.) In Di Grandi affidavits were filed waiving the right to appeal from the portions of the judgment awarding attorneys' fees. Since the case recognizes the doctrine of abandonment which is referred to above, and which was applied in the superseded Weil opinion, there would appear to be no necessity for such procedural maneuvers. The appeal herein should be treated as limited to an attack on those portions of the judgment in respect of which error has been assigned; to-wit, the determination that the property held in joint tenancy was such and not community property, and the failure to grant appellant any alimony.

The benefits which appellant has sought and received are reflected by her declaration for issuance of a writ of execution. Therein it is alleged that $850, with interest, was owing on an allowance of $950 for attorney's fees; that $886.43 was owing on monthly payments of $150 each on account of the principal sum of $2,600 (which was awarded in lieu of her interest in certain community property); and that $1,050 was owing for seven months' child support at $150 per month. A writ of execution issued for a total sum of $2,847.93, including interest, and as a result of two livies $1,211.53 was collected from respondent.

The authorities referred to above indicate that the collection of attorney's fees and child support, which are concededly due, will not bar the appeal from other portions of the judgment. The fact that appellant seeks to have the property in joint tenancy declared to be community property and reapportioned among the parties would appear to be inconsistent however with her demand for and acceptance of payments on the sum which she has been awarded in lieu of her community interest in other property. These payments could only be received and retained on the premise that she accepted the division of the community property made by the court. (See Wilson v. Wilson, supra; Swallers v. Swallers, supra, 89 Cal.App.2d 458, 201 P.2d 23.) If, however, she would be entitled to the sums received in any event, her acceptance will not bar her attempts to secure more. (Gudelj v. Gudelj, supra, 41 Cal.2d 202, 215, 259 P.2d 656; Mears v. Mears, supra, 180 Cal.App.2d 484, 509, 4 Cal.Rptr. 618; Cohen v. Cohen, supra, 102 Cal.App.2d 624, 625, 228 P.2d 54; Harrold v. Harrold, supra, 100 Cal.App.2d 601, 605, 224 P.2d 66.) As the party securing the divorce on the grounds of extreme cruelty, she must be awarded more than one-half the community property. (Cohen v. Cohen, supra, 102 Cal.App.2d at p. 625, 228 P.2d 54; Harrold v. Harrold, supr...