Stevens v. Stevens

California Court of Appeal

Stevens v. Stevens

276 P.2d 139, 129 Cal. App. 2d 19, 1954 Cal. App. LEXIS 1556

CourtCalifornia Court of Appeal

DecidedNovember 19, 1954

DocketCiv. 20187

StatusPublished

Cited by19 cases

This text of 276 P.2d 139 (Stevens v. Stevens) is published on Counsel Stack Legal Research, covering California Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Stevens v. Stevens, 276 P.2d 139, 129 Cal. App. 2d 19, 1954 Cal. App. LEXIS 1556 (Cal. Ct. App. 1954).

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Opinion

McCOMB, J.

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 f

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 etc. Assn. 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].

Affirmed.

Moore, P. J., and Fox, J., concurred.

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McCOMB, J.

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 f

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 etc. Assn. 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].

Affirmed.

Moore, P. J., and Fox, J., concurred.

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276 P.2d 139, 129 Cal. App. 2d 19, 1954 Cal. App. LEXIS 1556, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-v-stevens-calctapp-1954.

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