English v. English

MARKS, J.

Respondent instituted her action for divorce alleging cruelty and failure to provide. Appellant filed his answer denying the allegations of cruelty and failure to provide and filed a cross-complaint seeking divorce on the ground of extreme cruelty. The trial court found against the issues of cruelty and that appellant had failed to provide respondent with the common necessities of life, granted her an interlocutory decree of divorce and divided the community property. This decree is before us for review.

Appellant presents but a single ground upon which he urges a reversal of the judgment, namely, that there was ample uncontradicted evidence to establish extreme cruelty on the part of the respondent against appellant, and no evidence of wilful neglect and failure to provide on the part of appellant. His brief is entirely inadequate to present the question of the insufficiency of the evidence to support the findings. It has no supplement containing any evidence offered in the court below on the questions presented here. The body of the brief contains detached and isolated excerpts from the evidence which are not in sufficient narrative form to give a connected idea of the testimony. Respondent’s brief does not contain any of the evidence or quotations or reference to the reporter’s transcript. We have, however, carefully reviewed the entire record and have reached the conclusion that while the evidence is conflicting there is substantial and material evidence to sustain the findings of the trial court. No good purpose could be served by detailing the evidence here.

It is fundamental that where there is substantial evidence in the record to sustain findings and judgment of the trial court, a reversal will not be had because of a conflict in the evidence.

[410]

The trial judge is a trier of fact. He must weigh the evidence, determine its weight and sufficiency and judge the credibility of the witnesses appearing before him. When there is material and competent evidence to sustain his findings and judgment they cannot be disturbed on appeal.

Judgment affirmed.

Barnard, P. J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on September 19-1933.