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District Court of Appeal, Second District, Division 2, California.

Peg STEVENS, Plaintiff and Appellant, v. Leith STEVENS, Defendant and Respondent.

Civ. 20187.

Decided: November 19, 1954

Lyman A. Garber, Beverly Hills, for appellant. N. E. Youngblood, Beverly Hills, for respondent.

Plaintiff appeals from (1) a minute order entered September 18, 1953, (2) an order made September 22, 1953, and (3) an order made October 1, 1953. The orders appealed from (a) directed defendant to pay plaintiff for her support $250 a month, commencing September 20, 1953, and to pay her attorney $50 court costs and $500 attorney's fees at the rate of $50 a month, the first payment to commence October 1, 1953, and (b) awarded plaintiff the exclusive use and occupancy of the family home, with the exception of a studio attached thereto. The studio was awarded to defendant who is a musical composer and uses it in the pursuit of his profession.

This is the sole question necessary for us to determine:

Was there substantial evidence to sustain the orders of the trial court and the findings of fact in support thereof?

Yes. The present appeal is upon the clerk's transcript solely, without any record of the evidence presented at the hearing. Therefore it cannot be held on such a record that there was insufficient evidence to sustain the orders of the trial court and the findings in support thereof. The rule is established that in the absence of a record of the evidence received at the hearing it will be presumed that the trial court acted duly and regularly and received substantial evidence to support its findings. (Colbert v. Colbert, 28 Cal.2d 276, 281[7], 169 P.2d 633; Locke Paddon v. Locke Paddon, 194 Cal. 73, 81[7], 227 P. 715; Kellogg v. Kellogg, 170 Cal. 84, 85, 148 P. 518; California Home Extension Ass'n v. Hilborn, 115 Cal.App.2d 634, 638 [6], 252 P.2d 368.)

In view of the foregoing rule we must presume that evidence was introduced at the hearing which would justify the implied finding of the trial court to meet the requirements of Smith v. Smith, 49 Cal.App.2d 716, 122 P.2d 346, and Luitwieler v. Luitwieler, 57 Cal.App. 751, 207 P. 931.


McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.