Carew v. Carew

DRAPER, J.

Interlocutory decree of divorce was granted to plaintiff wife. She was awarded the community property, the principal item of which was the family home. Defendant was ordered to pay $200 per month alimony and $100 for child support. Defendant husband had borrowed money from his mother for the down payment on the house. Four years after the loan was made, 10 months after this divorce action was filed, and only one month before trial, the husband gave his mother a note for $5,000 and a second deed of trust on the home securing payment of the note. The interlocutory degree orders defendant to pay this note and to hold plaintiff harmless from claims thereon. Defendant appeals from the decree.

He first contends that the decree errs in reciting that findings had been waived. This contention is correct. However, when this error and the claimed failure to serve proposed findings on appellant were called to the court’s attention, appellant was granted time to propose counterfindings and action on his motion for new trial was deferred until his proposed findings had been presented, considered and rejected by the court. Thus no possible prejudice appears.

Appellant also claims that the home was held in joint tenancy, that there is no evidence to show its community character, and that the court therefore erred in finding it to be community property. But the answer failed to deny the allegation of the complaint that the family home was community property. When a fact alleged in the complaint is not denied, it is deemed admitted and no evidence need be offered to prove the existence of that fact.

(Rembold

v.

City & County of San

Francisco, 113 Cal.App.2d 795, 796 [249 P.2d 58];

[708]

Fuentes

v.

Tucker,

31 Cal.2d 1, 4-5 [187 P.2d

752]; Johnston

v.