Hersom v. Hersom

WORKS, J.

This is an action for divorce. The appeal is taken by defendant from an interlocutory decree rendered

[384]

in favor of plaintiff, and the only points made by appellant relate to the disposition of certain alleged community property of the parties. In addition to various denials contained in her answer, appellant averred affirmatively that respondent and his mother had fraudulently deprived appellant of her interest in the alleged community property. It was averred that the fraud was consummated 'by respondent’s mother purchasing certain mortgages which were outstanding against the property, respondent then fraudulently refraining from making certain payments falling due on the obligations and thus enabling his mother to foreclose the mortgages for the benefit, as it was alleged, of herself and him.

[1]

Appellant contends for a reversal of the judgment on the ground that the trial court failed to find on the issue of fraud tendered by the answer. Passing by other arguments which respondent opposes to this contention, it is enough to say that the evidence on the question of fraud, reproduced in full in appellant’s brief, was utterly insufficient to support a finding in her favor. The finding, therefore, must have been adverse to her, if one had been made. Under such circumstances a failure to find is not reversible error

(Cross

v.

Thiele,

51 Cal. App. 780 [197 Pac. 974]).

[2]

The point is made that the findings and judgment are so indefinite and uncertain “that it is impossible to determine what community property existed or what rights appellant had therein.” The complaint alleges that “the community property which the parties one time owned has been foreclosed upon and taken away from them by law,” but no attempt is made in the pleadings to describe the property. The answer specifically admits the truth of the allegation that the community property had been “taken away” by foreclosure, and follows the admission with the allegations of fraud to which we have referred. Moreover, the answer supplies the omission made in the complaint, for in the former pleading a description of the property is set forth. The description follows the admission as to the foreclosure and the allegations of fraud, and the described property is inferred to as the “said property above mentioned.” The finding of the trial court which gives rise to the indefiniteness and uncertainty inveighed against by appellant is that “there is some community property interest belonging to the parties herein, but that said interest consists only of an equity