Zar v. Zar

California Court of Appeal Oct 24, 1957 No. Civ. 17597Published

Before: Draper

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Holding. The court held that an appellant cannot challenge the lack of evidence regarding property value on appeal when they affirmatively stipulated to the submission of the case for decision based on the existing record.

Issues

Whether the trial court erred in dividing community property without evidence of the value of the items.
Whether the appellant waived the right to challenge the lack of evidence by stipulating to the submission of the case.

Disposition. affirmed

Quotations verified verbatim against the opinion

“An appellant cannot assert as error a procedure to which he assented at trial.”

“It shows inescapably an affirmative agreement for decision upon the record as it then stood.”

“To permit appellant to repudiate her actions and agreements at trial would be contrary to established rules.”

[683]

DRAPER, J.

This divorce action was commenced by plaintiff husband, who alleged extreme cruelty. His complaint set out a detailed description of the community property, and sought award of all of it to him. The wife’s answer admitted that the property itemized in the complaint was “substantially all” the community property, but alleged upon information and belief that there was “other miscellaneous community property,” the exact nature and value of which was unknown to her. Her cross-complaint describes the community property in similar terms. Following trial, interlocutory decree was awarded to the husband and the property divided between the parties. Defendant wife appealed from the judgment as a whole, but directs her argument solely to the provisions for distribution of the property. She contends that there is no evidence of value of the items of property, and thus no adequate basis for the distribution made by the court. Appellant’s present attorney is not the one who represented her at trial.

The wife offered no evidence upon her cross-complaint, but did seek to controvert some of the evidence as to her conduct. At the conclusion of her testimony on these subjects, the following occurred:

“Mr. McCarthy [attorney for defendant] : . . , I understand we are reserving the matter of how the community property was acquired until later, is that correct?

“The Court: I was expecting to discuss it with you this afternoon, and you will be guided as the result of our discussions.

“Mr. McCarthy : Well, maybe I had better ask a few questions along that line, your Honor, if you don’t mind?

11 The Court : All right. ’ ’

The wife then testified that the parties had no property when married, reviewed her husband’s employment history, and described some of the property in general terms. After rebuttal testimony, both sides rested and the court asked:

“It is stipulated the taking of testimony and evidence is closed on both sides of the case except as to matters relating to property?”

Upon affirmative answer, the court orally reviewed the evidence on grounds for divorce, stated that the evidence established “grave indiscretion,” although not adultery, on the part of the wife, and concluded that “insofar as his cause

Zar v. Zar

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DRAPER, J.

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