MacHado v. MacHado

This action was begun in 1913. Plaintiff had judgment for divorce on the ground of cruelty, and included in the judgment also was a settlement of property rights, to which she objected, and she appealed from the latter part of the judgment and was granted a new trial of the issues regarding property. The superior court retried those issues and again adjusted the property rights of the parties. In this latter judgment it determined that what is known as the Guth ranch was separate property of the defendant, and what is known as the Alviso ranch was partly separate and partly community property, and awarded to the defendant as his separate property 40/63 of the Alviso ranch, and, determining that 23/63 thereof was community property, gave the defendant an even half of that. The court also added a provision to the judgment that the defendant should pay fifty dollars a month to the plaintiff for the period of six months, and set aside all previous orders regarding alimony and support for plaintiff. It also decreed to be void a homestead which the plaintiff claimed on the Alviso ranch.

The plaintiff appealed from this judgment on the fifteenth day of November, 1915. Thereafter, upon the hearing of a motion for a new trial, and on the tenth day of December, 1915, the court made an order modifying this judgment so as to award to the plaintiff 149/338 of the Alviso ranch instead of the 23/126 thereof, that is to say, one-half of 24/63 thereof, awarded her in the judgment. The condition of the refusal to grant a new trial to the plaintiff on the property issues was that the defendant should accept this latter division of the Alviso ranch, which he did. The plaintiff again appealed from this latter judgment as to property rights and from this order.

Her first contention is that the order holding her homestead void and refusing to set it apart is unsupported by the evidence. *Page 648

The burden of showing not only the declaration of the homestead and the recording of the declaration, but also of showing that she was a resident upon the property at the time the declaration was made and recorded, rested upon the plaintiff. (Apprate v. Faure, 121 Cal. 466, [53 P. 917].) Her testimony is the only evidence upon this point, and it is conflicting and very uncertain, — indeed difficult to understand; and, therefore, the trial court was justified in finding that that portion of her testimony which showed that she was not residing upon the property at the time of the declaration, but had abandoned it, was true. This being so, that finding is supported by the evidence.

The plaintiff's next contention is that that part of the judgment at the second trial providing that all orders theretofore made for the payment of alimony and for the support of the plaintiff should be vacated, was outside the issues of the case in that, as it is claimed, no issue had been raised on this matter and no evidence introduced by either party relevant thereto. But evidence was introduced on the question of the value and character of the property of the parties, the very purpose of this evidence being to secure a just apportionment thereof between the parties. This justified the court in setting aside its former orders and in making a new judgment upon this subject. Indeed, it is impossible for us to see what other purpose the appeal of the plaintiff upon the subject of property rights subserved except this.