De La Luz Tovar Cozzi v. Cozzi

KINCAID, J. pro tem.

Plaintiff appeals from an interlocutory judgment of divorce granted in her favor following a contested trial on the issues presented by her complaint and defendant’s cross-complaint.

The parties were married March 5, 1939, and there is one child the issue of the marriage, aged four years at the time of the filing of the complaint on September 18, 1944. Plaintiff claimed therein that certain personal and real property, together with the improvements thereon, which was owned by and stood in the name of defendant at the time of the marriage and at all times subsequent thereto, was community property. Defendant in his pleadings claimed, and the court found the same at all times to have been his separate property, that it was acquired by him prior to his marriage to the plaintiff, and that it has a value of approximately $60,000.

[231]

The trial court further found that defendant, throughout his marriage, has had no income save and except that which came to him as rentals from his separate property, aggregating about $850 per month; that defendant was compelled to and did pay on account of the mortgage and trust deed notes on said real property, federal and state income taxes, real property taxes, utilities costs upon said property, fire insurance, miscellaneous supplies and repairs for and upon said property, about the sum of $680.50 per month; that in addition thereto defendant pays the sum of about $23 per month on a policy of life insurance of which the minor child of the parties is the beneficiary, leaving approximately $146.50 per month with which to support himself, plaintiff and their child.

The court further found that there is no community property owned or acquired by the parties hereto, that defendant did treat plaintiff in a cruel and inhuman manner granting her the interlocutory judgment on that ground, awarding her the custody of the minor child and the sum of $100 per month for its support, further awarding her the use of certain residential property, referred to in the judgment as a “homestead,” owned by defendant as his separate property and from which he had been receiving rentals in the sum of $45 per month, to be held and occupied by plaintiff and the child without rent until the further order of the court, but in no event beyond the time that plaintiff remarries.

Plaintiff claims as grounds for her appeal that the trial court erred, (1) in finding that the parties were not possessed of any community property interests in which plaintiff was entitled to share, and (2) in failing to grant to plaintiff an allowance for the support of herself in addition to that which was made for the support of the minor child.