Conard v. Conard

California Court of Appeal Mar 4, 1935 No. Civ. 1566Published

Before: Allyn

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Holding. The court held that the trial court erred in classifying the parties' real property and building and loan accounts as community property, as they were separate property, and reversed the portion of the judgment assigning such property to the wife. The court affirmed the trial court's finding that the husband's prior Nevada divorce decree was invalid due to simulated residence.

Issues

Whether the trial court erred in finding that certain real property and building and loan accounts were community property.
Whether the trial court abused its discretion in assigning all property deemed community to the wife.
Whether the trial court erred in disregarding a prior Nevada divorce decree.

Disposition. reversed and remanded in part; affirmed in part

Quotations verified verbatim against the opinion

“The findings of the trial court that these items of property belonged to the community finds no support in the record, and that part of the judgment assigning them to the plaintiff must be reversed.”

“The interest of the spouses in property held in joint tenancy must be classed as their separate but joint estates.”

“That part of the judgment setting aside the real property and the building and loan association accounts to respondent as community property is reversed and the cause remanded for such proceedings as are not inconsistent with this opinion.”

ALLYN, J., pro tem.

Appeal from a judgment granting to plaintiff wife a decree of divorce and setting aside to her certain property found by the trial court to be community property. Three grounds of reversal are urged: First, that the finding that the property was community is not supported by the evidence; second, that it was an abuse of discretion to set aside to the wife all of the property found to be community; and third, that it was error to disregard a prior decree of divorce granted by a district court of the state of Nevada upon substituted service of summons.

At the time of their marriage each party had some property. The defendant, in addition to certain equities in real estate not involved in this action, owned two building and loan association accounts. After the marriage he caused new passbooks to be issued in the joint names of himself and wife. These accounts are referred to in the record as “joint

[93]

accounts” although it does not appear that any such deposit agreement was signed or that plaintiff’s signature was filed with either of the associations. At any rate, defendant retained possession of the passbooks until they were taken surreptitiously by the plaintiff. The real property was purchased after marriage from funds of the separate estate of each spouse and was conveyed to them’ as joint tenants.

The defendant was employed during most of the time that elapsed from the date of marriage to the date of separation but there is no evidence that his earnings did more than support the family. He was entitled to so apply his earnings and keep his separate estate intact.

(Estate of Cudworth,

133 Cal. 462 [65 Pac. 1041];

Seligman

Seligman,

85 Cal. App. 683 [259 Pac. 984].) Further, there is no evidence of any contribution by the wife to the community so there is no question involved of the commingling of separate and community funds.

All property of a spouse owned before marriage and that acquired afterwards by gift, bequest, devise or descent, with the rents, issues and profits thereof, is the separate property of such spouse. All other property acquired after marriage is community. (Civ. Code, secs. 162, 163, 164.) The power of a court to assign property upon dissolution of marriage is limited to the community property and the homestead. (Civ. Code, sec. 146;

Conard v. Conard

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