Ducray v. Ducray

California Court of Appeal Dec 26, 1967 No. Civ. 865Published

Before: Stone

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Holding. The court affirmed the judgment, holding that in a judgment roll appeal, the appellate court cannot review the sufficiency of the evidence and that the trial court did not abuse its discretion in denying motions to reopen the case or amend pleadings.

Issues

Whether the appellate court can review the sufficiency of the evidence in a judgment roll appeal where the record was not settled by the trial judge.
Whether the trial court abused its discretion in denying the appellant's motions to reopen the case, amend the cross-complaint, and grant a new trial.

Disposition. affirmed

Quotations verified verbatim against the opinion

“On this judgment roll appeal the sufficiency of the evidence to support the findings is not open to question.”

“It is settled that after a case has been submitted discretion is vested in the trial court to determine whether it should be reopened to permit the taking of further evidence or the amendment of pleadings.”

“We find no abuse of discretion here.”

STONE, J.

—Respondent filed an action for divorce, and appellant wife filed a cross-complaint for separate maintenance. The court granted respondent husband a divorce on the ground of cruelty, awarded the custody of three of the children to appellant, and ordered respondent to pay $65 per month per child for their support and, further, to pay $50 per month toward house payments on the family home which was awarded to appellant so long as appellant and any of the minor children reside therein. The decree provided for a division of the community property, and respondent was ordered to pay community indebtednesses and also attorney’s fees for appellant.

The complaint for divorce originally filed by respondent alleged cruelty in general terms. Appellant’s cross-complaint for separate maintenance likewise alleged cruelty in general terms. Respondent later amended his complaint to seek separate maintenance rather than divorce. Apparently the parties

[482]

attempted to reconcile and when they failed, respondent moved for leave to file an amended complaint for divorce.

In chambers, prior to trial, counsel for both parties stipulated that the matter would proceed on the original pleadings, that is, the husband seeking a divorce under the terms of his original complaint and the wife seeking a decree of separate maintenance on her cross-complaint. Trial was had to the court without a jury. Thereafter, the court filed a minute order, entitled “Court’s Decision,” setting forth in detail the terms of the divorce, including child support, the division of community property and payment of community indebtedness. Counsel for respondent was ordered to prepare findings of fact and conclusions of law.

Appellant, upon being notified of the memorandum opinion, changed attorneys and substituted her present counsel in place of trial counsel. Her new counsel then filed motions on her behalf to reopen the ease for the purpose of taking additional testimony and for leave to amend her cross-complaint to obtain a divorce rather than separate maintenance. She also filed objections to the findings of fact and conclusions of law proposed by respondent.

The motion to reopen was denied, as were the objections to the findings of fact and conclusions of law. Thereafter the trial court settled findings of fact and conclusions of law and entered an interlocutory decree of divorce in accordance with the prior minute order entitled "Court’s Decision. ’ ’

Ducray v. Ducray

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STONE, J.

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