Bulpitt v. Bulpitt

HANSON, J. pro tem.

Appellant who was the defendant below appeals from a decree which granted a divorce to his wife on the ground of extreme cruelty, awarded a part of the property involved to the wife and a part thereof to the husband, ordered the husband to pay a specified amount of money to the wife for the support of their minor children and that he pay the premiums on policies of insurance. The appeal is based primarily on the contention that the evidence is insufficient to sustain the decree.

We are faced at the outset with the question whether we can review the ease on the merits in view of the fact that two DC-3 airplanes—a part of the community property— were not only awarded to appellant but shortly after the judgment was entered were sold and the proceeds thereof taken by appellant. In that connection it should be stated that the parties to the cause filed a written stipulation therein about two weeks after the judgment was entered wherein they agreed that the court might authorize and direct a receiver to sell the planes and disburse the funds according to the terms of the judgment except as modified by the terms of the stipulation.

On the merits, the argument in the brief of appellant covers a wide range, but the initial issue before us is a narrow one and if decided adversely to appellant forecloses our consideration of the merits of the case. We think we are here thus foreclosed.

In her complaint the wife set forth a long list of properties all of which she averred were community property. In his answer the defendant husband admitted that the property as listed was community property except as to certain properties which he contended were not a part of the community but instead were held in joint tenancy.

The defendant did not personally, attend the trial of the action, but was represented by counsel who participated in it without cross-examining the witnesses for the plaintiff or offering any evidence for the defense. The wife’s testimony was to the effect that the property involved was community property. This testimony accordingly stands uncontradicted and was found by the court to be true.

If, as here, the court found that all the property of

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the parties was community property and, as here, granted the divorce to the wife on the ground of extreme cruelty, it was vested with a discretion to assign the properties to the respective parties in such proportions as the court, from all the facts of the case,' and the condition of the parties, might deem just (Civ. Code, § 146), provided that the plaintiff was awarded more than 50 per cent of the community property.