Hill v. Hill

VAN DYKE, P. J.

This is an appeal from an interlocutory decree of divorce granted for extreme cruelty. Appellant herein contends the apportionment of community property made by the trial court is unjust and asks this court to modify the judgment in that respect, and to instruct the trial court to enter judgment as so modified.

There can be no doubt that this court, as a reviewing court, is by statute given the power on appeal, and is charged with the duty on appeal, of changing the trial court’s disposition of community property if, from a review of the record, this court feels that the apportionment made is unjust. It is equally well settled that in exercising this jurisdiction on appeal, reviewing courts do not approach the task from the standpoint of whether or not the trial court has been guilty of an abuse of discretion. Section 148 of the Civil Code provides:

“The disposition of the community property, and of the homestead, as above provided, is subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court.”

[36]

The section has been in the code since 1872 and is in substantially the same language as a preceding section of the Practice Act enacted in 1857. The power has been exercised even on appeals based upon judgment rolls, as in

Strozynski

v.

Strozynski,

97 Cal. 189 [31 P. 1130]. There, the findings upon the subject of cruelty were that “the defendant has treated her with extreme cruelty, has been guilty of extreme cruelty to her, has beaten her and called her vile names within the year past. ’ ’ Said the court, at page 191:

“By this section the legislature must have intended to subject the exercise of the discretion of the trial court, in dividing the community property, to revision on appeal from any apparent degree of error, though not amounting to an abuse of discretion; otherwise the section effected no change in nor added anything to the theretofore well-settled rule that the appellate court will not undertake to revise the exercise of discretionary power, except it appear that such power has been abused. And this construction of the section has been practically, if not expressly, adopted by this court.” (Citing