Walsh v. Walsh, 14745

• Decision Date: 08 January 1952
• Docket Number: No. 14745,14745
• Citation: 239 P.2d 472,108 Cal.App.2d 575
• Court: California Court of Appeals Court of Appeals
• Parties: WALSH v. WALSH.

Page 472

239 P.2d 472

108 Cal.App.2d 575

WALSH v. WALSH.

No. 14745.

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

Jan. 8, 1952.

Phil F. Garvey, San Francisco, (James A Himmel, San Francisco, of counsel), for appellant.

James A. Toner, San Francisco, for respondent.

FRED B. WOOD, Justice.

Plaintiff appeals from an order denying her application for alimony, counsel fees, and costs, pending her action for divorce.

The question is whether or not the trial court abused its discretion in denying the application. Our review of the evidence convinces us it did not.

In her complaint, filed January 24, 1950, appellant stated that the parties were married February 9, 1948, and separated November 24, 1949, and that there was no community property. She did not therein ask for alimony, counsel fees, or costs pending the action. August 2, 1950, she filed an amended complaint in which she stated that the parties separated July 22, 1950; that there was community property of a nature and value unknown to her; that she was without sufficient means to maintain the action; that respondent received an income of $300 a month, and was able to pay her $350 for her attorney's fees, $50 a month for her support, and $50 for costs of suit, which she alleged were reasonable sums therefor.

It appears from the reporter's transcript that upon the hearing of an order to show cause why respondent should not be required to pay appellant costs, counsel fees and support pending the action, respondent's counsel produced a document which he described as a property settlement agreement executed by the parties in January, 1950, and offered it to the judge for his consideration. Counsel for appellant stated he would show that the purported agreement was executed by appellant without independent legal advice and that the cohabitation of the parties subsequent to the filing of the original complaint had vacated the agreement. In furtherance of those purposes, he then asked appellant a series of questions concerning the circumstances under which she signed the agreement and concerning the asserted subsequent cohabitation. Questions along both lines were asked upon cross and redirect examination. Upon cross-examination she testified that she read the agreement before she signed it, and received the $404 (which the agreement provided that she was to receive). At the conclusion of the hearing, these questions were asked by the court and answers given by appellant:

'Q. Did you read this before you signed it? A. I didn't know I was signing everything away.

'Q. Is that your signature (indicating)? A. Yes.'

The reporter's transcript does not include a copy of the agreement, nor does it indicate that the agreement was formally offered in evidence or marked as an exhibit.

In their briefs upon this appeal, the parties discussed the agreement and its legal effect, and whether or not it was abrogated by a reconciliation. Appellant in her opening brief said, 'The trial court asked the appellant if she read the agreement'; and that 'the trial court erred in basing its order on the alleged property settlement agreement,' for the asserted reason, among others, that the agreement 'was not properly in evidence.' In her closing brief, she said, 'The appellant has a right to assume that the trial Court erred in basing its order of [on] the non-existent property settlement agreement, and the record justified this reason; true, it is meager, but it is the sole evidence that the trial judge erred upon * * *.' Respondent then moved this court for augmentation of the record. Upon the hearing of that motion, respondent produced a property settlement agreement dated January 16, 1950, between Melba Walsh and John D. Walsh, husband and wife, bearing penned signatures, 'Melba Walsh' and 'John D. Walsh,' and certified by the judge who presided at the hearing of the order to show cause, as the property settlement agreement which he read, referred to and considered as a part of said hearing. Respondent's counsel was sworn as a witness and testified that during the hearing below he presented a property settlement agreement for the consideration of the trial court and that the agreement just described is the document which he so presented, though he did not offer it in evidence. That document was introduced in evidence herein and the motion to augment granted, this court declaring that the document will be considered by the court upon this appeal.

It clearly appears that the property settlement agreement was considered by the court below. This brings it within the scope of rule 12 of the Rules on Appeal. Subdivision (a) of rule 12 declares that 'the reviewing court * * * may order that the original * * * of a paper * * * used on the * * * hearing below and on file in or lodged with the superior court be transmitted to it * * * and when so transmitted * * * shall be deemed part of the record on appeal.' Subdivision (c) of rule 12 authorizes the reviewing court to 'submit to the superior court for settlement any differences of the parties with respect to alleged omissions or errors in the record, and the superior court shall make the record conform to the truth.' The purpose of augmentation is emphasized by the concluding recital in rule 5(f), 'whenever it is necessary to prevent a miscarriage of justice', and by the presumption declared in rule 52 that, in the absence of proceedings for augmentation, the record 'included all matters material to a determination of the points on appeal.' It is the duty of the reviewing court, 'when it desires further knowledge upon any point, to augment the record before proceeding with its decision.' Kuhn v. Ferry & Hensler, 87 Cal.App.2d 812, 815, 197 P.2d 792, 794. The power to correct a transcript and make it 'speak the truth still rests in the trial court even though an appeal from the judgment is pending. [Citations.]' Stevenson v. Fleming, 43 Cal.App.2d 641, 643, 111 P.2d 420, 421. The document in question is properly before us for consideration upon this appeal.

Appellant objects to its consideration because it was not formally introduced in evidence and marked as an exhibit; i. e., that it was not 'evidence' available for the consideration of the trial court. This point is without merit. Respondent produced the document and handed it to the trial judge for his consideration at the hearing. Counsel for appellant interrogated his client concerning the circumstances of its execution and the subsequent conduct of the parties as bearing upon its implied cancellation. The court did consider it. Thus, it is clear that the offering party and the court understood it was in evidence, and that appellant treated it as if it were in evidence. Under such circumstances, the fact that the offer was not made in words expressly characterizing the offer as a formal tender of evidence does not deprive the document of its true character as evidence. The objection comes too late upon appeal. See Mann v. Mann, 76 Cal.App.2d 32, 41-42, 172 P.2d 369, and authorities cited.

The property settlement agreement, now a part of the record upon this appeal, declares that the parties thereto, the appellant and the respondent herein, 'do hereby finally settle, adjust and determine their property rights of every nature and description and all the rights of said Melba Walsh, party of the first part [appellant], to alimony and support,' and that 'Party of the first part agrees to and does hereby accept the sum of $404.50 as settlement in full of any claim she has, has had or may have against party of the second part [respondent] for alimony or support and as settlement in full for her...