Sullivan v. Sullivan

[278]

SHEPARD, J.

This is an appeal by defendant from an interlocutory judgment of divorce. While the appeal is taken from the judgment

in ioto,

the sole point of appeal directed to this court relates to the provisions of the decree providing for the division of the community property. We will address ourselves solely to that point.

Facts

The decree is on the ground of extreme cruelty. It is not contended that the court’s adjudication in that respect was erroneous, nor that the evidence was insufficient therefor. Findings were waived by stipulation of the parties. The evidence of value came to the court from three primary sources, viz., the testimony of (1) appellant, (2) respondent, and (3) an expert appraiser called on behalf of respondent.

Under the testimony of appellant, the bulk of the community property, which consisted principally of business and residential real estate, fixtures, furniture, automobiles, bank accounts, and balance payable on contract of sale of realty, had a net value after deducting outstanding encumbrances of about $12,800, of slightly less than $80,000. The evidence of appellant indicates additional current business indebtedness of $3,500 to $5,500. The record is not entirely clear whether this was taken into account in appraising the value of the business. However, assuming the maximum debt figures contended for by appellant, the total net value of the community property would approximate $74,500.

The net value according to respondent’s testimony, is slightly less than $102,000. If we accept the testimony of the appraiser as to those matters on which the appraiser testified, coupled with the testimony of respondent on those items on which the appraiser did not testify, the value is slightly over $101,000. A variation of less than $1,000 would result if the appraiser’s values are in like manner joined with those given by appellant.

Thus, whether we use respondent’s testimony alone, or respondent’s testimony coupled with the appraiser’s testimony on those items on which the appraiser testified, or in the same way the appellant’s testimony coupled with the appraiser’s testimony, we arrive at a net total value of the community property in the neighborhood of $100,000, one-half of this being $50,000. Coupling the testimony of respondent and respondent’s appraiser, or appellant and the appraiser in the same three ways, we arrive at a value of between $32,000 and