Lyons v. Lyons

California Court of Appeal Apr 4, 1961 No. Civ. 18735Published

Before: Draper

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Holding. The court held that the trial court did not abuse its discretion in denying the husband's motion to reopen the case for additional evidence, and that the property division and alimony awards were consistent with the law.

Issues

Whether the trial court abused its discretion in denying the husband's motion to reopen the case to amend his cross-complaint and introduce new evidence.
Whether the trial court's division of community property and award of alimony were proper under the law where both parties were granted a divorce for cruelty.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Whether to reopen a case for further evidence is largely a matter of judicial discretion”

“it has long been recognized that this code section does not invalidate an oral stipulation made in open court”

“the rule is clear that alimony may be awarded to either party when divorce is granted to each”

[790]

DRAPER, J.

It is understatement to describe the events leading to this divorce as tempestuous. Plaintiff wife shot defendant husband and was serving a term in women’s prison for this breach of marital etiquette when the case was tried. There was testimony that defendant husband had on several occasions pursued his wife with knife or razor, although he had failed to wound her. The court granted each party an interlocutory decree on the ground of the other’s cruelty. Husband appeals but, understandably, expressly excludes therefrom the portions of the decree granting divorce.

After memorandum decision in this case, husband moved to reopen to permit him to amend his cross-complaint to allege the wife’s conviction of a felony, and also to offer evidence as to community debts, valuations of two automobiles owned by the community, and possession of 25 government bonds awarded to defendant. His motions were denied. We find no merit in appellant’s claim of error in these rulings.

The attempted amendment would serve no purpose. The court already had granted husband a divorce on the ground of cruelty. Division of the property is the only grievance asserted by him. The property award would not be affected by adding other grounds for the same divorce.

Trial counsel for defendant (not his attorney on this appeal) had stipulated at trial to the value of the two automobiles and the trial court had adopted this stipulation. [2] Defendant argues that the stipulation was invalid because neither filed with the clerk nor entered upon the minutes (Code Civ. Proe., § 283). But it has long been recognized that this code section does not invalidate an oral stipulation made in open court

(Continental Bldg. etc. Assn.

Woolf,

12 Cal. App. 725, 730 [108 P. 729]). Although the court may set aside a stipulation on motion (46 Cal.Jur.2d, Stipulations, § 18, p. 43), it has broad discretion, and an appellate court will interfere only on showing of abuse

(Moffitt

Lyons v. Lyons

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DRAPER, J.

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