Nelson v. Nelson

DOOLING, J.

Appeal by defendant husband from an interlocutory decree of divorce in which it was ordered that upon the entry of a final decree of divorce the family home be awarded to plaintiff wife.

Plaintiff sued her husband for divorce on the ground of extreme cruelty. Defendant answered and cross-complained for divorce. An interlocutory decree of divorce was awarded plaintiff. She was also awarded custody of the adopted child of the couple and $100 per month support for herself and the child. The property found to be community property was awarded as follows: the house and lot and a bedroom set to plaintiff, and a life insurance policy on the life of defendant and an automobile to defendant.

The family home awarded to plaintiff represented the bulk of the community property. It is the award of this house to plaintiff that defendant objects to in this appeal.

Defendant assails the judgment below on two grounds: (1) that the finding that the house and lot of the parties was community property was against the evidence, and (2) that assuming it was community property, the judgment assigning it all to the wife was unjust and unreasonable. We shall consider these objections in order.

The deed to the house and lot in question was made out to the parties in joint tenancy. The trial court found as a fact that this house and lot was community property. Defendant’s objection to this finding is, in brief, that the evidence was not sufficient “to upset the joint tenancy deed.”

[350]

It is well established that real property acquired by husband and wife by a joint tenancy deed may be shown to be actually community property.

(Tomaier

v.

Tomaier,

23 Cal.2d 754, 757 [146 P.2d 905];

Hulse

v.

Lawson,

212 Cal. 614, 620 [299 P. 525];