Lo Vasco v. Lo Vasco

BARNARD, P. J.

This is an appeal from an interlocutory judgment of divorce.

The complaint alleged a cause of action based upoij extreme cruelty, including a specific reference to a number of particulars and circumstances. It was also alleged that certain property, consisting of a home, household furniture, some barber shop equipment and a balance due on a promissory note, was.community property. The defendant’s answer denied that there was any community property belonging to the parties and alleged that all of the property mentioned in the complaint was his separate property. He also filed a cross-complaint seeking a divorce on the ground of cruelty.

The court found in favor of the plaintiff, finding, among other things, that all of the property mentioned in the complaint was community property; that an undivided one-half interest in the home and in the household furniture should be awarded to each of the parties; that the balance due on the promissory note amounting to $425.56 should be awarded to the plaintiff; and that the barber shop equipment should be awarded to the defendant. An interlocutory decree was accordingly entered and the defendant has appealed.

The appellant first contends that the court’s findings with respect to the allegations of cruelty are not sustained by the evidence and that it follows that the decree is without lawful support. Some half dozen specific acts of cruelty are found by the court to have been committed by the appellant, any one of which would be sufficient to support the judgment. It would serve no useful purpose to set forth the evidence in this connection, which takes up nearly 100 pages of the transcript and to a review of which the appellant devotes some 40 pages of his opening brief. The effect of the argument now made is that other portions of the evidence were more worthy of belief than those accepted by the trial court and that other inferences should have been drawn from certain of the evidence. While the evidence is conflicting, there is no possible question that the material findings in this regard are supported by the evidence and the familiar rule applies.

[244]

It is further argued that the court erred in admitting the testimony of two witnesses since they testified with respect to conversations which took place after this action was filed. A part of this testimony related to admissions made by the appellant, and while portions thereof may have been subject to this objection it appears that the trial court had this definitely in mind, and in view of the ample evidence which was properly before the court it cannot be held that the result was affected by such evidence, or that any possible error in this connection had any prejudicial effect.