Fitzgerald v. Fitzgerald

BARNARD, P. J.

This is an action for divorce on the ground of cruelty. The complaint listed three parcels of real property as being the community property of the parties and, among other things, prayed for one-half of that property and for such other and further relief as the court might deem proper. The defendant filed an answer and cross-complaint in which he denied the existence of any community property, and alleged that all of the property in question was his separate property. The court found, among other things, that all property standing in the names of the parties as joint tenants is in fact joint tenancy property, and that the property standing in the names of the parties separately is in fact their separate property. An interlocutory decree was entered providing that the plaintiff is entitled to a divorce, awarding her the custody of a minor child, and disposing of the property in accordance with the findings. The defendant has appealed, attacking only the portions of the findings and judgment which have the effect of holding that certain of the properties were held in joint tenancy.

These parties were married in Wisconsin in 1944. They moved to this state in 1946, and purchased three parcels of real property in Long Beach. The first was an old apartment house, which later burned. A part of the purchase price was paid in cash and a trust deed given for the balance, title being taken in the names of both parties as joint tenants. Another parcel was purchased, partly for cash and with the balance payable in monthly installments, the title to which was also taken in both names as joint tenants. This property was later sold at a profit. The appellant then purchased a home in Long Beach, paying cash and title being taken in his name alone.

In 1948, a mountain resort property with cabins in San Bernardino County was purchased, part of the purchase price being paid in cash and title being taken in the names of both parties as joint tenants. In 1949 another near-by cabin

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property was purchased, part of the purchase price being paid in cash and title taken in the names of both parties as joint tenants. After coming to San Bernardino County a joint bank account was maintained, on which checks were drawn by both parties.

The appellant testified that the money used in purchasing all these properties was brought by him from Wisconsin and was acquired by him prior to the marriage. Strange as it may seem, it appears from his testimony that while he was able to earn and save $30,000 in the two years before the marriage, and while he continued to conduct the same business for two years after the marriage, he was able to earn nothing during the six years of this marriage except a part of their living expenses, although his wife worked part of the time. He further testified that he did not at any time intend to give any portion of his separate property to the respondent; that when he acquired the properties in Long Beach he was told by some escrow company that it was necessary to take the titles in joint tenancy with his wife unless he paid all cash, but if he paid all cash he would not have to do so; that when he acquired the parcels in San Bernardino County he was still laboring under that assumption; and that when he bought those properties he was told the same thing by the Pioneer Title Company. However, when asked “What was your understanding when the property was placed in joint tenancy” he replied: “Well, if my wife was living with me at the time of my death, she would get the property, but if she was not living with me I wanted full say of my own property. ’ ’