Strozynski v. Strozynski

Citations

• 97 Cal. 189
• 31 P. 1130
• 1893 Cal. LEXIS 508

Syllabus

<p>Appeal—Review of Discretion — Divorce—Judgment Dividing Community Property—Error not Amounting to Abuse of Discretion. — Although, ordinarily, the exercise of the discretionary power of the trial court will not be revised by the appellate court except upon the ground that such power has been abused, yet upon an appeal from a judgment dividing community property, in an action for a divorce upon the ground of adultery or extreme cruelty, section 148 of the Civil Code provides a different rule, and subjects the exercise of the discretion of the trial court in dividing the community property to revision upon appeal for any apparent degree of error, though not amounting to an abuse of discretion.</p> <p>Id. — Extreme Cruelty — Award of Community Property to Wife, — In an action by a wife against her husband for a divorce upon the ground of extreme cruelty, a judgment -granting a divorce to the wife, and dividing the community property equally between the spouses, should be modified upon appeal by awarding all the community property to the wife, where it appears that the husband is earning from forty to sixty dollars a month, while the wife and a minor daughter awarded to her are left to earn their own support, and the entire community property consists of a house and lot, worth but about two thousand dollars, together with the household and kitchen furniture.</p> <p>Id.—Presumption upon Appeal — Separate Property — Findings.— Where the record is silent as to separate property, it cannot be presumed upon appeal that either party has any separate property, and it must be presumed that the court found all the material facts not admitted by the pleadings.</p>