Opinion
March 7, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
F. Nelson Pabst, Denver, for plaintiff-appellee.
Richeson & Bishop, David B. Richeson, Denver, for defendant-appellant.
COYTE, Judge.
Defendant appeals from a judgment dividing property of the parties subsequent to a divorce.
On June 2, 1970, the defendant (wife) was granted a divorce on her cross-claim. A hearing on permanent orders was held on August 25, 1970, wherein custody of the minor child of the parties was granted to the plaintiff and their property was divided. Affidavits were submitted by both parties. No court reporter was present; thus there is no transcript of the hearing in the record.
Defendant appeals on the ground that she was denied the opportunity to testify regarding the acquisition of the property to be divided at the hearing on permanent orders. We affirm.
C.R.C.P. 80(a) provides that unless the parties stipulate to the contrary the district court shall direct that evidence be taken stenographically and appoint a reporter for that purpose.
Schleiger v. Schleiger, 137 Colo. 279, 324 P.2d 370, in interpreting this rule stated:
'When both parties proceeded to trial without a court reporter, there was a waiver by them of the requirement of Rule 80(a) and neither party can now be heard to complain of lack of a transcript.'
Defendant's participation in the hearing was an effective waiver of the requirement that the hearing be transcribed.
As to the allegation that defendant was not permitted to testify, the parties agree that the husband testified, and disagree as to whether the wife offered to testify or was refused the right to testify.
Defendant states in her brief that it is not disputed that the findings of the trial court as to the division of property have support in the evidence. This evidence is not before us, nor is there any record before us as to whether defendant was denied the right to testify. Since there is no record in this court showing the contrary, we must presume that the trial court fully considered and correctly ruled upon this question. Schleiger v. Schleiger, Supra; Oman v. Morris, 28 Colo.App. 124, 471 P.2d 430.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.