Tonnesen v. Tonnesen

DORAN, J. The appellant instituted the present action for divorce against the respondent husband, and also against the husband’s parents on the theory that a conspiracy existed in reference to the holding of certain property and alleged concealment and disposal of community property. The trial court found in favor of the appellant wife in reference to the divorce issue, and found “That none of the allegations in paragraph IV of the complaint is true except that the 1950 Buick automobile and certain furniture and furnishings in possession of the defendants as hereinafter set forth are community property.” Paragraph IV of the complaint continued the conspiracy, allegations hereinbefore referred to in reference to the ownership of an apartment house claimed to be community property.

An interlocutory divorce, granted to the wife, gave to the respondent husband the Buick automobile, and to the wife certain designated items of household furnishings. Cus[134]tody of the two minor children was awarded to the parties jointly, physical possession of the children being given to the wife subject to the husband’s right to have said children on alternate weekends and during one-half of vacation periods. The husband was ordered to pay $120 per month for support of the children, $1.00 per month alimony, and attorney’s fees.

Appellant complains “That the plaintiff did not receive a fair and impartial trial, and justice did not prevail.” Among other points appellant contends that “There is an incomplete judgment,” in that although the action was brought against the husband’s father and mother, Victor B. and Ruth K. Tonnesen, no judgment was rendered for or against these parties.

Answering this contention respondents’ brief points out that, as hereinbefore mentioned, the trial court found that paragraph IV of the complaint related to these defendants was not true. Moreover, as appears from the clerk’s transcript, the interlocutory judgment of divorce from which plaintiff now appeals, was prepared by appellant’s attorneys. As respondents state, “It would therefore be a very odd rule that would permit counsel for an appealing party to prepare a judgment and leave out some phase, submit the same to the Court without an approval as to form, and then base an appeal upon the fact that counsel left out a portion thereof.” It is a well established rule that an interpretation upholding the validity of a judgment is favored, and that to clarify any uncertainty, “resort may be had to the findings of fact.” (Goldworthy v. Dobbins, 110 Cal.App.2d 802, 810 [243 P.2d 883].) In the present case, the findings of fact make it clear that plaintiff’s allegations concerning a conspiracy involving the husband’s father and mother, were not true, and that the only judgment intended was that which was rendered, namely an interlocutory judgment of divorce. Appellant has suffered no prejudice in the instant situation.