Donlan v. Donlan

California Court of Appeal Apr 2, 1956 No. 21391Published

Before: Moore

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Holding. The court held that the trial court's finding that real property held in joint tenancy was the wife's separate property was supported by substantial evidence, as the evidence showed the property was acquired with her separate funds and placed in joint tenancy only for convenience, not as a gift.

Issues

Whether there was substantial evidence to support the finding that five parcels of real property held in joint tenancy were the separate property of the respondent.
Whether the respondent's statement that the property would be the appellant's if she died constituted a gift in praesenti.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The appellate court has no power to disturb a judgment when the conclusion reached by the trial court is supported by findings which in turn are derived from substantial evidence”

“Where a wife has conveyed property to her husband, her intention at the time of the conveyance is the controlling question.”

“property conveyed to husband and wife as joint tenants under certain circumstances, upon the introduction of extrinsic evidence of an intent to the contrary, may be declared to be the separate property of one of the twain.”

140 Cal.App.2d 428 (1956) 295 P.2d 51 EVELYN WRAY DONLON, Respondent,

JAMES W. DONLON, Appellant.

Docket No. 21391. Court of Appeals of California, Second District, Division Two.

April 2, 1956. [429] James J. McCarthy for Appellant.

James A. Starritt for Respondent.

MOORE, P.J.

The sole question for decision herein is whether the award to respondent of five parcels of realty as her separate property although they stood in joint tenancy is supported by substantial evidence.

Respondent and appellant James were married at Los Angeles August 18, 1948, and thereafter resided in California. Having separated on December 15, 1954, respondent commenced an action for divorce eight days later, to which appellant duly filed his answer and cross-complaint. Following a trial, an interlocutory decree of divorce was filed March 14, 1955, and the motion for a new trial was denied May 4, 1955. The appeal is from the judgment and from the order denying motion for new trial. The only portion of the judgment appealed from is that awarding the five parcels to respondent.

It was proved and found that at the time of the marriage respondent owned in her separate right real property valued at $43,000 besides cash, stocks, bonds and a joint tenancy interest with her mother in another parcel of real estate, the total aggregating approximately $68,000. At the same time, appellant owned no real property. His total assets did not exceed $1,000, and he was earning a meager living by repairing automobiles. Subsequently, respondent successfully assisted her husband in getting a position of responsibility as a service [430] salesman with a car agency for which he worked for two years. About the same time, respondent announced that she was "to start buying, selling and trading real estate" by using her separate property. She was of the opinion, and so stated to appellant, that the best way for her to accomplish a quick turnover of her property was to place it in joint tenancy and whenever she made a sale to have appellant join her in the conveyance.

Donlan v. Donlan

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MOORE, P.J.

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