In Re Marriage of Hendle

56 Cal. App. 3d 814, 128 Cal. Rptr. 854, 1976 Cal. App. LEXIS 1405

• Court: California Court of Appeal
• Decided: March 30, 1976
• Docket: Civ. 46394
• Status: Published

Opinions

Opinion

KINGSLEY, Acting P. J.

The husband appeals from an interlocutory judgment of dissolution.¹ Although the notice of appeal purports to appeal from the entire judgment, only the portion thereof involving disposition of community property is argued in the brief on appeal. We treat the case as involving only the portion of the judgment so attacked.

The parties were married for a little over two years. The record indicates that it had not been a happy association, involving periods of separation. The trial was devoted primarily to the issue of community property. The evidence, to say the best for it, was confusing, partly because some of the property involved was located in Mexico and the documents concerning that property were in Spanish which no one could translate with any accuracy. What the record does disclose is that, at most, the community property consisted of the following items:

(1) A parcel of land, in Mexico, identified as No. 6735, on which a house in bad repair was located;

(2) Another parcel of land, in Mexico, identified as No. 6739, on which several rental units were located; .

(3) A house in Los Angeles County; and,

(4) The furniture in the Los Angeles house.

Although the parties were not very clear as to the values involved, the record supports the trial court’s statement, made at the close of the trial, that the community liabilities exceeded the value of the community property. The decree herein attacked gave to the wife parcel No. 6735 in Mexico and one-half of the household furnishings; it gave to the husband parcel No. 6739 in Mexico, the house in Los Angeles and one-half of the household furniture. The husband was ordered to pay all community obligations and the cost of transporting the wife’s share of the furniture to her new abode. No spousal support was ordered but the judgment granted custody of three children² to the wife, with provision for support payments by, and visitation rights in, the husband. As we have said, no objection is here made to the child custody or support provisions, nor to the. dissolution of the marriage.

The record shows that, after a conference in chambers, the trial court announced its determination concerning child custody and support. The court then announced its further decision as follows:

“The Court makes no order for spousal support in view of the fact that the assets of the parties are less than the obligations and the nature of the assets make it impossible for the Court to make any division other than the Court is about to order.

“The parties have agreed that their property shall be divided and distributed to them as follows:” followed by the division hereinabove set forth. Admittedly, the husband was then in court; admittedly the court’s order was clearly and slowly announced; admittedly the husband voiced no objection to the order.

On his present appeal the husband contends:

(1) That the trial court erred in dividing the community property without making and entering express findings regarding the values of the assets and liabilities involved;

(2) That the division made by the court was not one that divided the assets equally; and,

(3) That the stipulation relied on by the court is not binding on the husband because he did not expressly agree to it in open court.

I

It is clear from the record that, even accepting the husband’s valuations of assets and liabilities, the division made resulted in giving to him at least half of the net community property.

II

Section 4800 of the Civil Code does not require either findings of value or an equal division if the judgment is based on a stipulation made in open court.³

III

While an attorney may not bind his client to a stipulation regarding the division of community property without the client’s knowledge and assent, a litigant cannot sit idly by, in open court, while a stipulation is read and approved by the court, and later deny the authority of his trial counsel to enter into the stipulátion thus announced. While it may be better practice for the trial court to inquire into the litigant’s assent to the stipulation, we know of no rule that makes such an omission fatal where, as here, the litigant, by his silence, gave every appearance of assent.

The judgment is affirmed.

Dunn, J., concurred.

1 The notice of appeal also purports to appeal from an order denying a motion for a new trial. That is not an appealable order. (Code Civ. Proc., § 904.1)

2 There was some evidence as to the obligation of the husband for support of another child of the mother. The effect of the judgment was to relieve the husband from any duty toward that child. The wife has not attacked the judgment in that particular, or at all.

3 In his brief, the husband argues that the court’s division was based on the fact that, as stated in the portion of its remarks above quoted, “the assets of the parties are less than the obligations and the.nature of the assets make it impossible for the court to make any division other than the Court is about to order.” That is a misreading of the language. The quoted language does no more than to explain why the court was not giving spousal support (a ruling which the wife has not here attacked) and why it was approving the stipulated division of the community property. The division was based on the stipulation and on the stipulation only.