I dissent. Appellant, Mrs. Polakis, was granted a judgment for separate maintenance against her husband, Dr. Polakis, on March 2, 1964. The parties’ community property rights were adjudicated at that time. The parties then attempted a reconciliation from August 12, 1965, until February 4, 1966. Dr. Polakis filed his complaint for divorce one month later, on March 14, 1966. Thus, it is absolutely clear (and appellant practically concedes) that whether or not she was entitled to an additional share of the property accumulated by Dr. Polakis during the period of attempted reconciliation depends on whether the parties had effected an actual reconciliation.
In my judgment the trial judge clearly and unequivocally found that the parties had not reconciled. Since there is substantial evidence in the record to support this finding of fact, the trial judge’s determination is conclusive on appeal (Small v. Small, 123 Cal.App.2d 870 [268 P.2d 63]; Nemer v. Nemer, 117 Cal.App.2d 35 [254 P.2d 661]). In fact, it is quite obvious that when the trial court made the $1,000 adjustment in favor of Mrs. Polakis, referred to by the majority, he was under a misconception of the law; he probably. confused property rights arising during a period of putative marriage with property rights accumulated during a period of an attempted reconciliation. However, since the aggrieved party does not complain of the court’s misapplication of the law, the judgment should not be reversed on this ground.
In any event, it is admitted that appellant accepted the sum of $1,000 which the court awarded to her. Since appellant was entitled to share in the property accumulated by Dr. Polakis during the reconciliation period only if a reconciliation had been effected, she is now estopped to attack the judgment under the rule articulated in Schubert v. Reich, 36 Cal.2d 298 [223 P.2d 242]. In other words, while it is true that the rule of estoppel has no application where the benefits accepted by an appellant are such that appellant would be entitled to them no matter what the results of the appeal might be, this is not the case in this appeal. Appellant was either entitled to something or nothing.
I would affirm the judgment.