D'Alessio v. D'Alessio

California Court of Appeal Dec 15, 1942 No. Civ. 13873Published

Before: McCOMB

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Holding. The court held that on an appeal based on the judgment roll alone, the failure to make findings of fact is not grounds for reversal, and a court may divide community property even when denying a divorce. Additionally, an order denying a motion for a new trial is not appealable.

Issues

Can a judgment be sustained on the judgment roll alone if the trial court failed to make findings of fact or if such findings were not waived?
May a trial court dispose of community property when denying a judgment of divorce?
Is an order denying a motion for a new trial appealable in a civil case?

Disposition. Affirmed in part and dismissed in part.

Quotations verified verbatim against the opinion

“the omission of the trial court to make and file findings of fact upon issues raised by the pleadings is not a ground for reversal of the judgment on appeal”

“although a judgment of divorce is denied, the court may in an action for divorce make the same disposition of the community property as if a decree dissolving the marriage had been granted”

“An appeal does not lie from an order denying a motion for a new trial in a civil case”

McCOMB, J.

Plaintiff appeals from

(1) An order modifying a judgment for separate maintenance in lieu of granting her motion for a new trial, and (2) An order denying her motion for a new trial.

The appeal is upon the judgment roll alone.

These are the essential facts:

Plaintiff filed an action for separate maintenance against defendant, her husband. He in addition to answering the complaint for separate maintenance filed a cross-complaint for divorce from plaintiff. December 12, 1941, after trial before the court without a jury, findings of fact and conclusions of law were signed by the trial judge by which he found in favor of plaintiff on her complaint for separate maintenance and against defendant on his cross-complaint for divorce. On the same date a judgment was signed decreeing that plaintiff receive separate maintenance and denying defendant a divorce on his cross-complaint. Thereafter defendant made a motion for a new trial which was denied March 16, 1942, and as a part of the order denying the motion, the trial court

(1) Vacated the findings of fact which it had previously made on December 12, 1941;

(2) Modified the judgment of December 12, 1941, by denying plaintiff a judgment of separate maintenance; and

(3) Divided equally between plaintiff and defendant community property found to be of the value of $3,600.

March 19, 1942, through a

nunc pro tunc

order the trial judge modified its order of March 16, 1942, by denying defendant a judgment for divorce. The record fails to disclose any findings of fact other than the single finding in the order of March 16, 1942, to the effect that the value of the community property was $3,600.

It is necessary for us to determine two questions which will be stated and answered hereunder seriatim.

[120]

First: In view of the fact that the record fails to show that:

D'Alessio v. D'Alessio

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