Diamond v. Diamond

SHINN, P. J.

Defendant Jack H. Diamond prosecutes two appeals, one from that part of a judgment in an action for divorce which divides the community property of the parties and the other from an order in the same action awarding plaintiff $200 on account of attorney’s fees and $250 on account of court costs on the appeal first mentioned. Plaintiff sued for divorce on the ground of cruelty. Defendant cross-complained for divorce on the same ground. The court found each of the parties to have been guilty of cruelty and awarded each of them a divorce. The judgment also awarded plaintiff a share of the community property of a value largely in excess of one-half thereof. The point on the appeal from parts of the judgment is that since each of the parties was awarded a divorce the court was required to make an equal division of the community property.

The pleadings admitted and the court found that at the time of trial the parties owned community property consisting of real property, money in escrow, the proceeds of sale of real property, a second trust deed, two automobiles, household furniture and Israeli bonds in the sum of $300, although it was found that of the household furniture some of it was the separate property of the plaintiff.

The court found there was a balance of $2,700 unpaid on the trust deed and $2,990.19 held in an escrow as proceeds of the sale of real property. The court made no findings as to the value of the other community property. By

[790]

its decree the court divided the community property. Appellant in his brief does not state the total value of the property awarded to respondent except to say that the court awarded her “virtually all of the community property.” Respondent in her brief says she received in value $8,365 and that appellant received $2,006.77. In his reply brief appellant does not question these figures. The decree awarded the wife something more than 80 per cent of the community property. She was not awarded any support or costs of trial.

In

De Burgh

v.

De Burgh,

39 Cal.2d 858, 874 [250 P.2d 598], the Supreme Court held that when a divorce is granted to both parties the community property must be equally divided. In view of this decision we must hold that the trial court was required to make an equal division of the community property.