Opinion
Page __
__ Cal.App.2d __ 319 P.2d 108 Doris WILSON, Plaintiff and Respondent, v. James Gordon WILSON, Jean Butkus, Anna E. Wilson, and Doris Seligman (appearing herein as Doe One), Defendants. James Gordon Wilson, Appellant. Civ. 22646. California Court of Appeals, Second District, First Division Dec. 18, 1957Rehearing Granted Jan. 13, 1958.
[319 P.2d 109] Smith, Van Dyke & Hildreth, Jack E. Hildreth, Los Angeles, for appellant.
Belcher, Kearney & Fargo, Frank B. Belcher, Los Angeles, for respondent (petitioner).
DRAPEAU, Justice pro tem.
Motion to dismiss appeal.
In 1955 the superior court granted an interlocutory decree of divorce to Doris Wilson from her husband, James Gordon Wilson, upon the ground of grievous mental cruelty. The interlocutory decree provided that division of certain community property would be deferred until the final judgment. Part of this property consisted of two business concerns, TriColor Laboratories, and TriColor Multiprint and Color Prints, Inc.
(The businesses will hereafter be referred to as 'business.')
Mr. Wilson was given management and control of the business during the interlocutory year.
He appealed from the interlocutory decree; but it was affirmed by this court. Wilson v. Wilson, 143 Cal.App.2d 53, 299 P.2d 318.
In 1956 the superior court granted a final judgment of divorce. This judgment awarded, among other things, the business to Mrs. Wilson. It also provided: (a) That Mr. Wilson should have a Mercury automobile belonging to the business. (b) [319 P.2d 110] That he should have a lien of $25,000 upon the business, to be paid in installments by Mrs. Wilson. And (c) that Mrs. Wilson should assume certain obligations of the business.
Mr. Wilson appeals from the final judgment, and has filed his opening brief.
Mrs. Wilson moves to dismiss the appeal, upon the following grounds:
1. That the appeal has become moot, appellant having accepted the benefits of the judgment appealed from.
2. That appellant is estopped from prosecuting the appeal, having accepted the benefits of the judgment appealed from.
3. That appellant is in contempt of the judgment appealed from.
4. That the appeal is frivolous.
5. That appellant failed to pursue the appeal and to file an opening brief within the time fixed by the rules on appeal.
Mrs. Wilson argues that the trial court could have awarded her all of the community property, upon the grounds of cruelty found to be true, and that Mr. Wilson waived the right to appeal when he accepted portions of the final judgment favorable to him, all of them being interdependent, and not severable. The parts accepted by Mr. Wilson are: The automobile, and that part of the judgment ordering Mrs. Wilson to pay him $25,000 from the business.
Mrs. Wilson also argues that Mr. Wilson was in contempt of court when he refused to assume and pay off the balance due on the Mercury automobile, or to pay income taxes due on the business, ordered paid by the interlocutory and the final judgments; also that he made personal withdrawals from the business in excess of limits fixed by the interlocutory decree; also that he failed to furnish monthly statements and information requested; and also that he made excessive disbursements from the business, and unauthorized payments to one of his children.
Most of these grounds alleged for dismissal of the appeal are matters that the superior court should determine and enforce, e. g., non-payment of income taxes, payment of purported obligations of the business, refusal to make statements or to furnish information, excessive and improper disbursements from the business. This court is not inclined to attempt to resolve conflicts in averments in affidavits, many of them conclusions of affiants. And were these alleged contemptuous acts wilful? See In re McCausland, 130 Cal.App.2d 708, 279 P.2d 820.
Without further enumerating grounds alleged for dismissing the appeal, this court is of the opinion that there are left for determination but one or two questions:
Should the appeal be dismissed because Mr. Wilson accepted certain benefits from the final judgment? Is the appeal frivolous? And did Mr. Wilson fail to pursue his appeal within the time fixed by the rules?
The rule that answers the first question is concisely stated by our Supreme Court in Gudelj v. Gudelj, 41 Cal.2d 202, at pages 214-215, 259 P.2d 656, at page 663:
"It is the settled rule that the voluntary acceptance of the benefit of a judgment or order is a bar to the prosecution of an appeal therefrom.' Schubert v. Reich, 36 Cal.2d 298, 299, 223 P.2d 242, 243. However, 'in order to bar the right of appeal on the ground of acquiescence, 'the acts relied upon must be such as to clearly and unmistakably show acquiescence, and it must be unconditional, voluntary, and absolute''. Duncan v. Duncan, 175 Cal. 693, 695, 167 P. 141, 142. 'It is only in cases where an appellant is shown to have received and accepted advantages from a judgment to which such appellant would not be entitled in the event of a reversal of the judgment that her acceptance thereof has been held to operate to defeat the appeal.' Browning v. Browning, 208 Cal. 518, 525, 282 P. 503, 505. Otherwise stated, '(w)here the different portions of a judgment are severable, a party by voluntarily accepting the fruits of one portion thereof does not necessarily estop himself to attack other and severable [319 P.2d 111] portions thereof upon appeal'. Preluzsky v. Pacific Coop. Cafeteria Co., 195 Cal. 290, 293, 232 P. 970, 971; People v. Roath, 62 Cal.App.2d 241, 246, 144 P.2d 648. As to severability, '(t)he test of whether a portion of a judgment appealed from is so interwoven with its other provisions as to preclude an independent examination of the part challenged by the appellant is whether the matters or issues embraced therein are the same as, or inter-dependent upon, the matters or issues which have not been attacked'. American Enterprise, Inc. v. Van Winkle, 39 Cal.2d 210, 217, 246 P.2d 935, 938.'
In view of the allotment to Mrs. Wilson of all of Mr. Wilson's right, title, and interest in and to the business, it is our opinion that his conduct did not necessarily establish that he unconditionally, voluntarily and absolutely acquiesced in that part of the judgment from which he appeals. Nor did he accept advantages that would operate to defeat the appeal.
Parenthetically we should say, of course, that this observation does not reflect any opinion as to the propriety or legality of the exercise of the trial judge's discretion in making this division of the community property. That is a matter for consideration on the merits of the appeal.
To go into the question as to whether or not the appeal is frivolous would require an examination of the record on its merits. In such circumstances a motion to dismiss an appeal will generally be denied. In re Estate of Wunderle, 30 Cal.2d 274, 279, 181 P.2d 874; Pacific States Sav. & Loan Co. v. Mortimer, 70 Cal.App.2d 811, 813, 161 P.2d 684.
Examination of this court's clerk's register shows that appellant filed his opening brief on time.
The foregoing conclusions are influenced by the settled policy of the law of this state that courts of review should be reluctant to dismiss appeals without allowing appellants an oppotunity to be heard upon the merits--to have their day in court. (See 4 Cal.Jur.2d 346.)
The motion is denied.
WHITE, P. J., and FOURT, J., concur.