Perry v. Perry

ROTH, P. J. Respondent wife, in a divorce action, initiated by appellant husband after a 20-year marriage, obtained a decree on grounds of extreme cruelty and pursuant to an “equitable division” of community property itemized in the findings and in the interlocutory decree, was, according to appellant’s assertion, improperly awarded $115 per week alimony and assets in an amount, which equal more than one half of the community property.

Custody of the minor daughter, pursuant to her expressed nomination, was awarded to appellant.

Appellant asserts the division of the community property to be error because of the above improper awards and asserted omission in the findings relative thereto and complains also that the minute order made by the court at the conclusion of the trial was changed.

The original minute order, among other things, provided for the sale of the marital residence within a nine-month period, and an equal division of the sum realized from the community equity therein; an equal division of the .proceeds of a certain promissory note and $50 per week alimony and maintenance costs of the residence during the nine-month period. By amendment on the following day it was changed and supplemented to award the proceeds of the promissory [771]note mentioned and of the residence equity, in their entirety to the respondent wife, and to provide that, when the residence was sold, appellant pay wife $115 per week alimony until the further order of the court.

Findings were ordered. They were prepared by respondent, served and filed as required by law and albeit general in their terms, set up with particularity, all of the provisions of the original and amended minute order. No objection was made thereto by appellant, nor were any other proposed findings filed. The signed findings followed the minute order as originally made and amended.

This appeal is from the judgment and the order denying motion for new trial.1

A minute order is not the decision of the court when findings are required. The written findings and conclusions constitute “the decision which is the final, deliberate expression of the court.” (Breedlove v. Breedlove, 161 Cal.App.2d 712, 716 [327 P.2d 170]; Colver v. Scarborough Co., 73 Cal.App. 441, 454 [238 P. 1104]; 28 Cal.Jur.2d, 683.)

Findings of the trial court will not be disturbed on appeal unless there is no substantial evidence to sustain them or there is a clear abuse of discretion. (Irish v. Irish, 246 Cal.App.2d 705, 708 [55 Cal.Rptr. 55].) There is ample evidence in the record to sustain all of the findings made and we find no abuse of discretion.