Karageris v. Karageris

VAN DYKE, P. J.

Hariklea and William Karageris were husband and wife. They married February 1, 1945. In November of 1952 she sued William for divorce. He answered and cross-complained. Each alleged as to the other the infliction of extreme cruelty, and the trial court found the allegations of both in this respect to be true and granted a divorce to each. Both have appealed, but neither challenges the propriety of the interlocutory decree of divorce. Each challenges, however, that part of the judgment which declares certain property described in the decree to be the separate property of one or the other and declares what property constituted community. The trial court found certain described property to be community and divided it between them equally through the device of a cash award to Hariklea of one-half the net value.

[557]

William Karageris had been for years employed in a men’s clothing store in Oroville owned by his brother Peter. Since 1926 William had operated the store for Peter under a power of attorney. Peter had returned to Greece, his native land, where he remained. William drew a salary of $100 per month from the store. From time to time William sent funds to Peter derived from the profits of the business. But from 1939 through 1944, because of currency restrictions due to war, no money was sent. After 1944 William resumed sending money to Peter. As of January 1, 1951, William bought the store from Peter for the sum of $15,000. The court found the purchase was made with community funds and that the store business, consisting of stock on hand, furniture and fixtures, good will and store income accumulated after the purchase, was the sole community property owned by the parties. The court fixed the total value of this property at $49,364.09. From the total valuation the court deducted certain living expenses and litigation costs of the parties, thus reducing the net value to $34,211.88, and then directed that William pay one-half of that sum to Hariklea, whereupon the full title to the community property would be in him. There was evidence that from 1926, when Peter went to Greece, until 1939 the store was run by William with the assistance of a brother-in-law under an arrangement whereby, in addition to a salary, William and the brother-in-law were entitled each to one-third of the profits, the balance of the profits belonging to Peter. This arrangement ended in 1939, and William thereafter ran the store alone. When he resumed remittances to Peter in 1945, from 1945 through 1950 he sent various sums totaling approximately $21,000. The total accumulations of store profit, however, exceeded that sum, although the proof was not certain as to just what profits came into the hands of William during the years 1939 to 1944, inclusive. The account books covering that period were lost. It was shown, however, that William had not fully accounted for and paid over to Peter the profits of the store which came into his hands. The trial court made a finding that from 1939 through 1950 William retained the net income from the store and held the same for the account of Peter, save and except the sum of $21,000 paid by William to Peter from January 1, 1945, to December 31, 1950; that the balance of the store income approximated $27,810.55; that it was no longer owed by William to Peter, and that William acquired title to this balance of store income on January 1, 1951, at the same time