Finnegan v. Finnegan

WOOD (W. J.), J.

Plaintiff commenced this action to obtain a judgment for separate maintenance for herself and for her minor child, alleging extreme cruelty on the part of defendant. At plaintiff’s request a receiver was appointed to take charge of the property of the parties. At the trial plaintiff was awarded all the community property of the parties and the custody of the minor child and defendant was 'ordered to pay to plaintiff $100 per month for the support of

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the child. Defendant has appealed from the judgment and from an order denying his motion made after judgment to set aside the judgment and findings and to enter a different judgment. There are also purported appeals from the order denying defendant’s motion for a nonsuit and from the order denying his motion for a new trial.

Defendant contends that the evidence is insufficient to sustain the findings that the patents standing in defendant’s name and the $6,000 deposited by the parties in escrow for the purchase of a home in joint tenancy were community property. Also, he attacks the finding that the parties had not become reconciled at the time of the filing of the complaint. In attempting to uphold the questioned findings he points out that the only record before the court is the agreed statement. In order to obtain a reversal of the judgment it is incumbent upon the appealing party to furnish the reviewing court a record showing affirmatively that the trial court ruled erroneously to his prejudice, Inasmuch as the agreed statement now before us does not purport to contain all the evidence received by the trial court it will be presumed that the evidence received was ample to support the findings.

In its judgment the court ordered that plaintiff “is authorized to live separate and apart from defendant.” This language is followed by the award to plaintiff of the community property and the custody of the child and the order for the monthly payment for the support of the child. Defendant now argues that plaintiff was not given a judgment for permanent support and for this reason is not entitled to an award of the community property. In her complaint plaintiff set forth the various acts on the part of defendant constituting extreme cruelty and the court in its findings found these allegations to be true and in its conclusions of law stated that the “defendant has wrongfully inflicted upon plaintiff grievous mental sufferings, which amount to extreme cruelty, and that plaintiff is entitled to a decree and judgment of separate maintenance, authorizing plaintiff to live separate and apart from defendant. ’ ’ The cause of action being for extreme cruelty the court was, in its discretion, authorized to award all the community property to plaintiff. (Civ. Code, §137;