CHILDERS v. CHILDERS (1946)

From a judgment in favor of plaintiff after trial before the court without a jury in an action for a divorce defendant appeals.

The essential facts are these:

After trial of the issues raised by plaintiff's complaint for divorce on the ground of cruelty, and the issues raised by defendant's cross-complaint for divorce on the same ground, findings of fact and conclusions of law were waived by the respective parties and an interlocutory decree of divorce awarded to plaintiff and denied to defendant. In addition to certain community property and attorney's fees, plaintiff was awarded $100 per month for the support of herself and minor child.

Defendant urges reversal of the judgment on this proposition:

That there is not any substantial evidence to sustain the implied findings upon which the judgment is predicated.

This proposition is untenable for the law is now established in California, in spite of language in certain earlier decisions to the contrary, that where findings of fact and conclusions of law are waived by the parties, on an appeal from the judgment an appellate court will presume that every fact essential to the support of the judgment was (1) proved and (2) found by the court.

In Gordon v. Mount, 1932, 125 Cal.App. 701, at page 708, 13 P.2d 932, at page 935, Mr. Justice Plummer speaking for the District Court of Appeal says:

‘Where findings are waived, it is presumed that every fact essential to the support of the judgment was proved and found by the court. Gray v. Gray, 185 Cal. 598, 197 P. 945; 24 Cal.Jur., p. 956, and the cases there cited.

‘In support of the judgment, there being no findings in this case, we must hold that the court, notwithstanding the record shows want of probable cause and lack of reliance upon advice of counsel, that the testimony introduced in the cause did not justify the charge of malice, and the existence of malice being a question of fact, we are bound by the judgment of the trial court.’

In Bekins Van Lines, Inc., v. Johnson, 21 Cal.2d 135, 130 P.2d 421, 422, Gordon v. Mount, supra, is cited with approval, the Supreme Court saying in 21 Cal.2d, at page 136 et seq., 130 P.2d at page 422: ‘After the trial judge had ordered the judgment, findings of fact and conclusions of law were waived by written stipulation of counsel. On this state of the record every intendment is in favor of the judgment, and it is presumed that every fact essential to the support of the judgment was proved and found by the court. Gray v. Gray, 185 Cal. 598, 197 P. 945; Miller v. Pacific Freight Lines, 40 Cal.App.2d 451, 104 P.2d 1069; Gordon v. Mount, 125 Cal.App. 701, 13 P.2d 932; 24 Cal.Jur. p. 956, and cases there cited. The applicable rule requires the assumption that the proof showed and that the court found and concluded that the services out of which the disputed tax arose were so much a part of the business of the plaintiff, were so customarily rendered in that connection, and so directly contributed to the transportation which was the plaintiff's principal business, that money derived therefrom must be regarded as part of the ‘gross receipts from operations of said operator’ and taxable as such.' (Italics added.)

Applying the foregoing rule to the facts in the instant case it is evident that since the parties waived findings of fact and conclusions of law, defendant may not urge before this court that the evidence is insufficient to support the judgment.

For the foregoing reasons the judgment is affirmed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.