Engasser v. Engasser

California Court of Appeal Jun 21, 1946 No. Civ. 7280Published

Before: Thompson

AI Brief

AI-generated · verify before citing

Holding. The court dismissed the appeal because the appellant failed to provide a duly authenticated transcript of evidence or bill of exceptions, leaving the court with only the judgment roll to review.

Issues

Whether an appeal should be dismissed when the appellant fails to file a transcript of evidence or bill of exceptions certified by the trial judge.
Whether an appellate court can consider affidavits not certified by the trial judge as having been used or considered in the motion to modify a divorce decree.

Disposition. Dismissed

Quotations verified verbatim against the opinion

“The motion to dismiss the appeal should be granted.”

“It has been frequently held that the judge of the trial court is the only one who is authorized to authenticate documents used and considered by him upon a hearing.”

“The motion is granted and the appeal is dismissed.”

[81]

THOMPSON, J.

The defendant has appealed from an order modifying a final decree of divorce by awarding the custody of Gary Roger Engasser, a 4-year-old boy, the issue of the marriage, to the mother with the privilege of removing the child from the State of California. Subsequent to the rendering of the final decree of divorce, plaintiff married M. V. Lamb, serving in the United States Army Air Force, whose home is in the State of Ohio. The plaintiff moved this court to dismiss the appeal on the ground that appellant failed to procure or file in this court a transcript or bill of exceptions of the proceedings on motion for a modification of the decree of divorce with respect to the custody of the minor child, within the time allowed by law, or at all, that the trial judge has not certified to the record on appeal, or any part thereof, and that the clerk of the trial court has merely certified to the accuracy of the documents contained in the judgment roll.

The interlocutory decree of divorce, which was rendered September 30, 1944, determined that both spouses are fit and proper persons to assume custody of the minor child, and awarded the custody of the child to each spouse for a period of six months each year. The final decree, which was rendered and entered October 15, 1945, approved the preceding award of custody. Plaintiff subsequently moved to modify the decree of divorce so as to award to her the sole custody of said minor child, and to permit her to take the child with her to her home “outside of the State of California.’’ Both parties were represented by counsel at that hearing. Affidavits were filed in behalf of the respective parties, and the order of the court recites that evidence was presented. The affidavits are included in the record on appeal, but they are not endorsed as presented or read upon that hearing. This court has no means of determining what evidence was adduced at that hearing. The court subsequently filed its written order January 14, 1946, modifying the decree of divorce and awarding the custody of the child to plaintiff with the “right to take said minor child outside of the State of California, ’ ’ but granting the defendant the privilege of visiting the child at ‘ ‘ all reasonable times and places. ’ ’

From the foregoing order the defendant gave notice of appeal, January 17, 1946. No transcript of evidence has been prepared or filed. No bill of exceptions has been settled. Upon notice duly served and filed, the plaintiff moved this court on June 5, 1946, to dismiss the appeal as previously

Engasser v. Engasser

AI Brief

THOMPSON, J.

More from California Court of Appeal

Related research

AI Brief