Rozzi v. Rozzi

NOURSE, P. J. This is an appeal in a divorce action from that part of the judgment of the trial court awarding and disposing of the community property and from an order denying plaintiff’s motion for an order allowing her counsel fees on appeal.

Plaintiff, Gladys Rozzi, and defendant, Gildo Rozzi, were married in June, 1934, and separated October, 1944. On June 29, 1945, plaintiff filed her first amended complaint for divorce on the grounds of extreme cruelty. Defendant cross-complained, pleading specially their interests in community property including an interest in the Model Appliance and Furniture Store operated in partnership by defendant and his brother.

The interlocutory decree divided the community property as follows: To the plaintiff, the home and household furniture ; to the defendant the balance of the community property consisting of moneys in savings and commercial accounts; War Savings Bonds; moving picture camera with projector; an airplane; one 1940 Plymouth four-door sedan; a Dodge truck; insurance policies of no surrender value; and impliedly a two-thirds interest in the Model Appliance and Furniture Store.

The facts, as to the issue of community property, are: Plaintiff was awarded the home and furniture valued at $12,500 and also $125 a month alimony. Defendant was awarded what was intended to be a two-thirds interest in the partnership, a two-thirds interest in bonds belonging to the partnership, an airplane and cash in bank, all estimated to be worth about $12,538. The value of the home and furniture was undisputed. The value of the various interests awarded to defendant was speculative and uncertain. The plaintiff offered no proof regarding the value of any of the properties assigned to the defendant, and we cannot say on this state of the record that the trial court erred. Though it is the rule that the innocent wife is entitled to more than one-half of the community property, when the divorce rests on cruelty, the difference between true value and speculative value is well recognized. On appeal the reviewing court is not required to guess that one party really got more “value” through the award when there is no evidence to support it. To state the proposition differently—a reviewing court will not go out to search for error, and error will not be presumed from the fact that the appellant lost the ease on the trial of [538]