Binning v. Binning

ASHBUBN, J.—

Defendant husband appeals from an interlocutory judgment of divorce granted to the wife upon the

[694]

ground of extreme cruelty. Appellant’s counsel raises four points, viz., (1) that the property settlement agreement, was infected with fraud and undue influence and should have been disapproved by the court, (2) that the court erroneously added to: the terms of the property agreement, (3) insufficiency of the evidence to sustain the finding of extreme cruelty on defendant’s part and untruth of his charge that plaintiff had been guilty of adultery, and (4) error in refusing to grant to appellant the divorce upon his cross-complaint.

Points 1, 3 arid 4, as presented in appellant’s brief, are attacks upon adverse findings and seem to proceed upon an assumption that á court of review should follow counsel's lead in' reweighing the evidence. The cardinal rules for presentation of such claims upon appeal have been ignored in this instance.

Rosenthal

v.

Rosenthal,

197 Cal.App.2d 289, 294 [17 Cal.Rptr. 186]: “We reiterate certain principles that we stated in

Davis

v.

Lucas,

180 Cal.App.2d 407, 409 [4 Cal.Rptr. 479] ; ‘The appellate court starts with the presumption that the evidence sustains each finding of ■' fact [citations], and the burden rests upon appellant “to- demonstrate that there' is no substantial evidence to support the challenged -findings.” [Citations.] To this - end appellant must set forth in his brief all material evidence upon the point, not merely his own proofs [citations]; if this is not done the point is deemed waived. , . “[A] claim of insufficiency of the evidence to justify findings, consisting of mere assertion without a fair statement of the evidence, is entitled to no consideration, when it is apparent, as it is here, that a substantial amount of evidence was received on behalf of the respondents.” [Citation.] In the circumstances we are entitled to accept the statements of respondent’s brief as to the evidence " upon the subject. . . .We do not make an independent search of the record to uncover error.’ ”