In Re Marriage of Davies

Marie T. Davies (Wife) appeals from that portion of the interlocutory judgment of dissolution of marriage dealing with the bifurcated issues of spousal support and valuation and division of community assets which states as follows: “The court shall not retain jurisdiction over the issue of capital gains [tax] liability for the sale of the [family] residence.”

Morris A. Davies (Husband) has not filed a respondent’s brief in this matter and thus rule 17(b) of the California Rules of Court is applicable to this appeal. It provides in pertinent part: “. . . the court may accept as true the statement of facts in the appellant’s opening brief and, unless the appellant requests oral argument, may submit the case for decision on the record and on the appellant’s opening brief. ” Courts, however, have differed in the application of this rule. One line of cases hold that respondent’s failure to file a brief may be construed as a consent to a reversal (Doran v. White (1961) 196 Cal.App.2d 676, 677 [ 16 Cal.Rptr. 841 ]); it has also been held to be an abandonment of the trial court decision. (Roth v. Keene (1967) 256 Cal.App.2d 725, 727 [ 64 Cal.Rptr. 399 ]; Freitas v. City of…