Palmer v. Palmer

MUSSELL, J.

The complaint in plaintiff’s action for divorce included a count in which it was alleged in substance that the defendant Hazel M. Palmer, prior to the filing of the action, in an attempt to defraud plaintiff, sold and conveyed the home and household furnishings of the spouses to defendants Weatherly for an inadequate consideration; that the Weatherlys were not bona fide purchasers of the property and had constructive knowledge of plaintiff’s com

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munity interest therein. The summons was published as to the defendant wife and she defaulted in the action. The trial court gave judgment to plaintiff in the divorce action and found in favor of the Weatherlys as to the included count in the complaint. Separate judgments were entered, following which plaintiff appealed from the whole of the judgment entered in favor of the Weatherlys and from that part of the judgment of divorce which related to the disposition of funds received by the wife from the sale of the property to her codefendants.

It is stated in plaintiff’s opening brief that the principal purpose of the appeal from the judgment in favor of plaintiff is “to preserve jurisdiction and to distribute community property of the parties equitably in the event the finding of the trial court that the home was the separate property of the defendant wife is held to be without evidentiary support and the adjudication that respondents Weatherly were bona fide purchasers is reversed.”

The primary question for our determination is whether the evidence is sufficient to support the findings and judgment as to the defendants J. D. and Margaret Weatherly.

Plaintiff and Hazel M. Palmer were married in 1938. At that time, and at all times since, plaintiff was and has been on active duty in the Navy and necessarily did not reside with his wife most of the time. In 1943, while plaintiff was on duty in the Aleutian zone, the defendant Hazel M. Palmer entered into a contract to purchase the real property situated in Banning, California, which was later sold by her to the Weatherlys. The contract of purchase contained a recital that the purchaser was a married woman and was purchasing the premises as her sole and separate property. The deed which was executed to Hazel M. Palmer on October 10, 1943, and recorded at about the same date, also recited that the property was conveyed to her as her “sole property.” The property involved consisted of approximately one acre of ground improved by two rental units with furnishings, equipment and tools. Plaintiff assisted in the construction of improvements on the premises at various times after 1943 and when away on duty, sent his wife approximately $300 per month.