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District Court of Appeal, Second District, Division 1, California.

Alice F. ROZAN, Plaintiff and Respondent, v. Maxwell M. ROZAN, Defendant and Appellant.*

Civ. 21662.

Decided: April 22, 1957

Maxwell M. Rozan, in pro. per. Gustave L. Goldstein, Los Angeles, for respondent.

The present appeal is from an interlocutory judgment of divorce in favor of the respondent wife, granting plaintiff the custody of the minor child and ordering the appellant husband to pay the sum of $75 for child support, $250 to the wife, and attorney fees of $12,500. The court adjudged that the parties had established residence and domicile in California in May—July, 1948, and that all property acquired thereafter was community property. The divorce was granted on the grounds of extreme cruelty and the trial court awarded the wife more than fifty per cent of the community property.

‘Appellant herein does not challenge the lower Court for granting the divorce * * * to respondent (wife) * * * Altho, appellant contends there was no evidence, and certainly not sufficient evidence, to sustain that appellant was guilty of cruelty towards respondent, and make the property award the Court did make, awarding more than 50%, because of the cruelty finding’, quoting from appellant's brief.

It is appellant's contention that certain oil properties outside of California, were not community property but the husband's separate property; that the trial court erred in holding that there was no consideration for the transfer by appellant of certain property, and that certain transfers had been made for the purpose of depriving the wife of any interest therein; that it was erroneously found that appellant was a resident of California in May—July, 1948. Appellant likewise complains of the award of attorney fees of $12,500 and of the alimony and support orders which the court made.

Much of the appellant's brief is taken up with a general challenge of the weight and sufficiency of the evidence and the contention that from such evidence the trial court should have arrived at conclusions favorable to the appellant. As noted by the respondent, the trial continued for several days and many exhibits were introduced, resulting in a reporter's transcript of 886 pages. As is generally the case, the record contains conflicting evidence in respect to all of the matters questioned by the appellant. It is fundamental that in such cases an appellate court will not attempt an appraisal or revaluation of the evidence introduced at the trial. Questions of weight and credibility are for the trial court rather than falling within the purview of a reviewing court. So long as the record discloses substantial evidence in support of the findings and judgment, the trial court's determination on questions of fact must be deemed final. That the record herein does disclose such supporting evidence cannot be doubted. The fact that there is other and conflicting evidence does not interfere with the application of this rule.

For example, there was the appellant's deposition stating, ‘I moved out here (California) when Mrs. Rozan came out here to give birth to our son’; that appellant had voted in California ‘By absentee ballot, at the last presidential election’, and had ‘considered this your residence since ‘48’. This evidence was entirely consistent with the wife's testimony as to renting and later buying a home in California and that Mr. Rozan lived there when he was in town. As an oil man, appellant was required to travel extensively. The trial court was amply justified in believing the above testimony rather than accepting appellant's denials of California residence.

The trial court found that when the parties left Colorado and came to California in 1948, there was very little property; that thereafter, through various oil and brokerage activities, and appellant acquired certain very valuable property interests deemed community property. Some of these interests appellant manipulated, assigned and transferred to other persons ‘without consideration * * * for the purpose of depriving plaintiff of her interest’ therein, and for the purpose of ‘hindering, delaying, defeating and defrauding plaintiff’, as found by the court. At the end of the trial the judge stated: ‘I will say, so far as the defendant is concerned, the fraud is so flagrant that it is without argument’.

‘As an illustration:’, to quote from respondent's brief, ‘the Kvam property * * * at the time Appellant acquired same, consisted of 160 acres for which he paid only $2500.00. 40 of said acres were sold for $61,931.80 to one Louis Egan. The other 120 acres adjoining said 40 acres, on the basis of the Egan transaction, we urge are worth over $180,000.00. At the time of the trial, they were all in oil production, yielding a monthly income of $450.00 or thereabouts * * *. Thus, taking into account the Kvam 120 acres plus other holdings and properties of the parties, exceeding $200,000.00 in value, the amounts allowed Respondent for alimony, child support and attorney's fees were reasonable and proper’.

Much evidence, pro and con, was introduced by the respective parties in reference to the questions of fact. The law in respect to these matters is open to no serious question. As respondent says, ‘the Reporter's Transcript could never convey to any reader thereof how Appellant and his witnesses appeared and acted in court’. In this, the trial court was in a more advantageous position than any reviewing court which must depend exclusively upon the printed record. In the language of Maslow v. Maslow, 117 Cal.App.2d 237, 243, 255 P.2d 65, 69, ‘The cold record cannot give the look or manner of the witnesses; their hesitations, their doubts, their variations of language, their precipitancy, their calmness or consideration’. In the instant case, however, even with the printed record, it cannot be doubted that the conclusions reached are amply supported.

It is of no particular advantage to go into a detailed survey of the evidence. The fact remains that the appellant was accorded a fair trial of the issues involved. A tremendous mass of evidence, testimonial and documentary, was duly presented to the trial court and given due consideration. The record discloses substantial evidence from which the trial court could reasonably conclude that the respondent wife was entitled to a divorce on the ground of extreme cruelty. Such being the situation, the division of community property was a matter resting within the sound discretion of the trial court, and it will be presumed that such discretion was properly exercised.

Section 146 of the Civil Code provides that ‘If the decree is rendered on the ground of * * * extreme cruelty, the community property shall be assigned to the respective parties in such proportions as the court, from all the facts of the case, and the condition of the parties may deem just’. In this case appellant is complaining because the wife was awarded 65% of the North Dakota property, but it was actually within the discretion of the trial court to award all of the community property to respondent. Warren v. Warren, 120 Cal.App.2d 396, 261 P.2d 309, 312. As stated in the Warren opinion, ‘It is elementary that such an order will not be reversed in the absence of a clear showing of an abuse of discretion by the trial court’. There is no such showing in the instant case. The findings are adequate, and no reversible error is apparent.

The judgment is affirmed. Application to produce additional evidence denied.

DORAN, Justice.

WHITE, P. J., and FOURT, J., concur.

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