I concur.
The appellant relies on the rule often repeated in the decisions that when a divorce is granted on the ground of adultery *540or extreme cruelty the innocent spouse is entitled to more than one-half of the community property. (Arnold v. Arnold, 76 Cal.App.2d 877 [174 P.2d 674] and cases cited at p. 884.)
The appellant was awarded the home and furniture, valued at $12,500. The respondent was awarded the balance of the community property described in the decree in the following language:
“Moneys in savings and commercial accounts; War Savings Bonds; Moving picture camera with projector; an airplane; one 1940 Plymouth four-door Sedan automobile; a Dodge truck; insurance policies of no surrender value; and the Model Appliance and Furniture Store at South San Francisco, California.”
The moving picture camera with projector may be disregarded since the record shows a stipulation that it is the separate property of respondent. The only evidence of the value of the community property was given by the respondent. I cannot agree that it was speculative. It was explicit and must be taken as true against him on this appeal. His testimony was that the bank accounts aggregate $4,959; that the business has a value of $2,800; that the airplane’s value is $1,500; and that war savings bonds of the value of $9,000 had been converted to cash. He further testified that by an arrangement with his brother the brother had acquired a one-third interest in the business and its proceeds, which included the bank accounts and the proceeds of the bonds. He also testified that the value of the home and furniture was $12,500.
The trial court found that one-third of the bank accounts was the property of the brother but failed to make a like finding with regard to the business and the bonds or their proceeds. Taking the findings literally the community property awarded to respondent consisted of two-thirds of the bank accounts amounting to $3,306; the business (assuming the automobile and truck to be included in its value), $2,800; the airplane, $1,500; and the proceeds of the war savings bonds (described in the findings and decree as “War Savings Bonds”), $9,000. This totals $16,606 as against $12,500 awarded to appellant.
It is obvious however that in its findings the trial court ignored the only evidence on the subject in failing to find that only two-thirds of the business and two-thirds of the war bonds belonged to the community. If the findings are amended to conform to the proof in this regard the total value of the community property awarded to respondent amounts to *541$12,672. This amount is so close to the $12,500 awarded to appellant that we may properly treat the division of the community property as having been in an equal amount to each party.
In addition to awarding the house and furniture to appellant the court awarded her $125 per month for her support and the support of the two minor children of the parties. In Marshall v. Marshall, 196 Cal. 761 at page 765 [239 P. 36] it is stated that the court may “award alimony in lieu of a division of the property.” It is also said in Arnold v. Arnold, supra, 76 Cal.App.2d 877 at page 881: “The rule drawn from the eases hereinafter cited is that the greater the offense the larger the proportion of the community property that must be awarded to the innocent spouse;—where the acts of cruelty are of a flagrant character and have extended over a long period of time the portion of the community property awarded to the nonoffending party should be greater than if the acts were more trivial yet sufficient to warrant the granting of a divorce.”
The acts of cruelty proved in this case were not of a flagrant character, consisting almost entirely of the respondent’s absenting himself from their home without appellant’s consent. Since no appeal was taken by respondent we must assume their sufficiency to support the decree of divorce but they are little more than barely sufficient for that purpose.
The court was doubtless bound to make an award of support money for the children but it could have denied any alimony to appellant and I am satisfied to concur in the conclusion of this court on the ground that no abuse of discretion is shown, in view of the relatively innocuous acts of cruelty proved, in dividing the community property equally and mating, in lieu of a greater award, an order for the payment of alimony to the wife.
The evidence shows that the respondent entered into an agreement with his brother by which a one-third interest in the business and its proceeds was transferred to the brother in consideration of services rendered by the brother to the business. There is no showing that this arrangement was not made in good faith or that it was unfair to the community.
A petition for a rehearing was denied July 31, 1948, and appellant’s petition for a hearing by the Supreme Court was denied August 26,1948.