Martin v. Martin

PEEK, J.

The present controversy arises out of an action for divorce instituted by the appellant husband. His charges of extreme cruelty were denied by the respondent wife, who by her cross-complaint likewise alleged and prayed for a decree upon the same ground. At the conclusion of the hearing upon the issues so joined, the trial court entered its order decreeing that the wife was entitled to an interlocutory decree of divorce. Additionally the court awarded her certain community property and a monthly allowance as alimony.

Four issues are raised by appellant: (1) That statements made by the trial judge during the course of the trial and prior to the time the cause was submitted evidenced a prejudgment thereof, thereby preventing a fair hearing; (2) that the findings relative to the community property of the parties are not supported by the

evidence;

(3) that findings of fact; conclusions of law, and the granting of an interlocutory decree to the wife are not supported by the evidence, and (4) that the award of certain community property and alimony to the defendant wife was an abuse of discretion.

It is true, as appellant contends, that when a trial judge sits as a trier of the facts he takes the place of a jury, and his conduct is subject to the same rules, one of which is that before the case is submitted to him he should “not form or express an opinion thereon. ...” (Code Civ. Proc., § 611.) But that is not to say that during the course of a trial he is a mere functionary whose sole purpose is to preserve order and lend ceremonial dignity to the proceedings. Of necessity in a case such as the present, the court was compelled to assign

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the property of the parties “in such proportions as the court from all of the facts of the case, and the condition of the parties, may deem just.” (Civ. Code, § 146 [1].) Obviously, therefore, a trial judge in order to carry out the admonition of said section would be compelled to inquire as to the community property of the parties. Likewise, under the provisions of Civil Code sections 137 and 139 it also becomes necessary for the trial judge, in order to properly grant or deny a request for alimony, to thoroughly understand the general financial condition of the parties, the earnings of the husband and comparable matters, including agreements, if any, and the intent of the parties concerning such questions. Our examination of the record shows nothing more than this to have been the substance of the first comment of the trial judge, which is attacked by appellant.