Lu Hong v. Sing Choon Hong

• Decision Date: 27 September 1965
• Citation: 237 Cal.App.2d 239,46 Cal.Rptr. 710
• Court: California Court of Appeals Court of Appeals
• Parties: LU HONG, Plaintiff, Cross-Defendant, and Appellant, v. SING CHOON HONG, Defendant, Cross-Complainant, and Respondent. Civ. 22250.

Page 710

46 Cal.Rptr. 710

237 Cal.App.2d 239

LU HONG, Plaintiff, Cross-Defendant, and Appellant, v. SING CHOON HONG, Defendant, Cross-Complainant, and Respondent.

Civ. 22250.

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

Sept. 27, 1965.

Charles F. Wong, Orville C. Pratt, San Francisco, for appellant.

Richard J. Swan, Benicia, for respondent.

SIMS, Justice.

Appellant wife, as plaintiff and cross-defendant in two cross-actions for divorce which were consolidated for trial, has appealed from an interlocutory judgment of divorce which granted each party the right to a divorce from the other, and provided for the custody and support of the minor children of the parties, for the support of the wife, for the payment of certain outstanding medical bills, for division of the community property and for the payment of attorneys' fees and costs.

Her contention on appeal is limited to the question of the disposition of the community property by the trial court. She asserts that the court failed to divide the community property equally as required under controlling decisions, and that it was prevented from doing so because of the lack of sufficient evidentiary data.

The parties agree that the applicable rule for division of the community property is that set forth in DeBurgh v. DeBurgh (1952) 39 Cal.2d 858, 874, 250 P.2d 598, 607, as follows: 'Section 146 of the Civil Code provides that if the divorce is granted for extreme cruelty, the court may apportion community property as it deems just, but that statute has been interpreted to permit an award of more than half of the community property only to an innocent spouse. [Citation.] When a divorce is granted to both parties, neither is innocent within the meaning of this rule, and the community property must be equally divided.' (See also Dickson v. Dickson (1964) 225 Cal.App.2d 752, 756, 37 Cal.Rptr. 718; Arruda v. Arruda (1963) 218 Cal.App.2d 410, 413, 32 Cal.Rptr. 257; Harris v. Harris (1962) 210 Cal.App.2d 559, 564, 26 Cal.Rptr. 882; LeVanseler v. LeVanseler (1962) 206 Cal.App.2d 611, 613, 24 Cal.Rptr. 206; Schulze v. Schulze (1962) 206 Cal.App.2d 330, 335, 23 Cal.Rptr. 693; Bordin v. Bordin (1961) 193 Cal.App.2d 132, 134, 13 Cal.Rptr. 837; Cardew v. Cardew (1961) 192 Cal.App.2d 502, 517, 13 Cal.Rptr. 620; Lyons v. Lyons (1961) 190 Cal.App.2d 788, 791, 12 Cal.Rptr. 349; Mears v. Mears (1960) 180 Cal.App.2d 484, 497, 4 Cal.Rptr. 618; Gilb v. Gilb (1959) 170 Cal.App.2d 379, 384, 399 P.2d 176; Diamond v. Diamond (1957) 149 Cal.App.2d 788, 790, 308 P.2d 909; Williams v. Williams (1956) 146 Cal.App.2d 307, 309, 303 P.2d 586.)

The record reflects that the court found that the community property consisted of (1) real property in the City of Benicia, together with '(2) * * * improvements situate on said property including furnishings and equippage [sic] for living quarters and the laundry business maintained therein'; (3) a 1960 Volkswagen panel truck; (4) shares of Pacific Gas and Electric Company stock standing in the name of plaintiff; (5) a note and claim in bankruptcy against the Pickman Trust Deed Corporation; and (6) a National Service Life Insurance Policy insuring the life of respondent. No finding was made in respect of the value of any or all of the foregoing items of property.

In its conclusions of law and interlocutory judgment the court awarded items (1), (2), (3) and (6) to respondent, and items (4) and (5) to appellant, and further provided that respondent should pay appellant for the latter's interest in community property which was awarded to the respondent, the sum of $7,000 in monthly installments of $150 or more per month with interest on the unpaid balance at the rate of seven per cent per annum from March 1, 1964. ¹

Where the court is required to make an equal division of the community property it should not attempt such a distribution without first ascertaining the value of the respective items to be divided. (Cardew v. Cardew, supra, 192 Cal.App.2d 502, 517, 13 Cal.Rptr. 620; Mears v. Mears, supra, 180 Cal.App.2d 484, 505, 4 Cal.Rptr. 618; and see Visini v. Visini (1963) 212 Cal.App.2d 183, 189, 27 Cal.Rptr. 782.) Similarly the court cannot provide a specific payment in lieu of one spouse's community interest in property without ascertaining the value of that property. (Villafuerte v. Villafuerte (1954) 125 Cal.App.2d 466, 469, 270 P.2d 526; Forbes v. Forbes (1953) 118 Cal.App.2d 324, 326, 257 P.2d 721; and Bailey v. Bailey (1943) 60 Cal.App.2d 291, 296, 140 P.2d 693.)

Respondent would escape the effect of the foregoing rules by resort to general principles such as: 'Findings must be liberally construed to support the judgment. [Citations.] Uncertainties in the findings should be resolved in such manner as to uphold, rather than defeat, the judgment. [Citation.] A judgment will not be reversed for a failure to find on some of the issues if the omitted finding is implicit in the express findings. [Citations.] A finding of facts, from which a conclusion of the existence of the fact in issue follows, is equivalent to a finding of such fact. [Citation.]' (Pry Corp. of America v. Leach (1960) 177 Cal.App.2d 632, 636, 2 Cal.Rptr. 425, 428; and see Hicks v. Hicks (1962) 211 Cal.App.2d 144, 149, 27 Cal.Rptr. 307; and McKinley v. Buchanan (1959) 176 Cal.App.2d 608, 612, 1 Cal.Rptr. 573; and cf. Code Civ.Proc. § 634, as amended 1959); and 'A party may not complain of the failure of the court to make a finding that would necessarily have been adverse to him.' (Idem. p. 637, 2 Cal.Rptr. p. 428; and see Maloof v. Maloof (1917) 175 Cal. 571, 573, 166 p. 330; and Winslow v. Gohransen (1891) 88 Cal. 450, 452, 26 P. 504.) There is nothing in the express findings to which reference has been made that can supply a finding of value, unless it be a conclusion that the total value of the property distributed to respondent exceeded that distributed to the wife by $14,000. The second principle would come into play if the evidence in fact is sufficient to sustain a finding that appellant received property equal to or greater in value than that received by respondent. (See Hicks v. Hicks, supra, 211 Cal.App.2d 144, 162, 27 Cal.Rptr. 307; Harris v. Harris, supra, 210 Cal.App.2d 559, 567, 26 Cal.Rptr. 882; Cardew v. Cardew, supra, 192 Cal.App.2d 502, 516, 13 Cal.Rptr. 620.) This is not a case where the findings and judgment must be sustained because the record on appeal does not include the oral proceedings (cf. Arruda v. Arruda, supra, 218 Cal.App.2d 410, 414-415 and 418, 32 Cal.Rptr. 257). Insofar as the judgment is dependent upon implied findings to demonstrate that the appellant received thereunder property and cash of a value not less than half the total value of the community property, the situation is similar to that presented in Mears v. Mears, supra, 180 Cal.App.2d 484, 4 Cal.Rptr. 618, wherein findings of fact and conclusions of law had been waived. The opinion of this court recites: '[W]here findings of fact and conclusions of law are waived, every intendment is in favor of the judgment, that the assumption will be made that the trial court found every fact essential to support the judgment, and that findings will be implied in favor of the successful litigant upon all of the issues raised by the pleadings. [Citations.] The latter rule is subject to the qualification, however, that where the transcript is before the reviewing court (as it is here), the court is not required to indulge in an assumption as to the sufficiency of the evidence to support the implied findings. The sufficiency of the evidence will be determined from an examination of the evidence itself. [Citation.] Where the transcript of the evidence is before the reviewing court it will not weigh the evidence to determine what is true and what is not true, but it will search the record for the purpose only of determining whether there is substantial evidence supporting the judgment and will resolve all doubts in favor of the judgment. [Citations.]' (Pp. 497-498, 4 Cal.Rptr. pp. 626, 627.)

So here it is necessary to turn to the evidence to determine whether it is sufficient to sustain an implied finding that the community property was divided without prejudice to appellant's right to an equal share.

The testimony concerning the real property, improvements and business embraced in items (1) and (2) is as follows: Respondent testified that within ten or eleven years prior to the trial (September 1963), he built a concrete block building with living quarters upstairs at a cost of $27,000 or $28,000 and that a loan on the premises was all paid off. The court also had before it respondent's 1962 income tax return which reflected over-all total gross business receipts of $19,657.50, net income of $5,901.82, and the depreciation claimed by respondent in his business. It was returned to respondent pursuant to stipulation and has not been made part of the record on appeal.

At the conclusion of the taking of testimony on September 6, 1963, counsel for respondent addressed the court as follows: 'The other item which probably should be held in suspense, Your Honor, is the evaluation of the real property located in Benicia. In the interest of economy and other problems, we haven't had it appraised. Should the Court feel this property should be divided, the Court could so instruct [appellant's attorney at the trial] and I, and we could work out a satisfactory situation, I am sure, of buying and selling, of course. So since there are several other matters that are going to hold this matter open a little bit, we feel we could accomplish that without great inconvenience to anybody or great delay.' The court replied, 'Very well.' No comment was made by appellant's attorney. The case was continued to September 16th and subsequently to September 23rd for submission. On October 29th the court filed an opinion dated October 21st in which...