Lindley v. Hinch

DOOLING, J. pro tem.

Plaintiff appeals from a judgment for defendant entered after sustaining a demurrer to plaintiff’s second amended complaint. The complaint alleges that Edward M. Hinch died in 1941 and respondent was appointed special administratrix of his estate; that plaintiff and decedent were married in 1893 and divorced in

1899;

that at the time of their divorce they were possessed of community property consisting of $30,000 in gold coin and that at all times after their divorce decedent exercised dominion and control over all of said property, invested and reinvested it and died leaving an estate valued at $200,000 derived from the original $30,000. The complaint is framed on the theory that because the decree of divorce made no disposition of the community property the parties became tenants in common of the $30,000, and that thereafter decedent became a trustee of one-half of such property and its subsequent earnings by repeated oral promises to plaintiff that he would hold and manage it for her benefit.

As to the decree of divorce the complaint alleges in paragraph VII:

“That said decree of divorce, a copy of which is hereto attached, marked Exhibit ‘A’ and made a part hereof, made no disposition of the community property of plaintiff and decedent, Edward M. Hinch, and that upon the granting of said divorce, plaintiff and the said decedent Edward M. Hinch, each became entitled to an equal share of said property. ’ ’

The copy of the divorce decree shows that plaintiff secured the divorce after default by decedent and makes no mention of community property. The complaint here is silent concerning the allegations of the complaint in the divorce action.

Appellant counts on the general rule that where a divorce decree makes no disposition of community property

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the spouses become tenants in common thereof. (3 Cal.Jur. 10-Yr.Supp. 673.) Respondent points out that there is a well-established qualification to this rule by which it only applies where the existence or amount of community property are not put in issue by the pleadings (3 Cal.Jur. 10-Yr.Supp. 674), and that the complaint in this action contains no allegation that the complaint in the action for divorce made no reference to the community property of the parties. Respondent’s point is well taken.