Prout v. Prout

California Court of Appeal Mar 28, 1946 No. Civ. 3504Published

Before: Barnard

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Holding. The court held that the trial court had the authority to divide community property and award the use of the home in a divorce decree, but modified the decree to clarify that the property division becomes effective upon the entry of the final decree.

Issues

Whether the award of an undivided one-half interest in community property combined with exclusive use by one spouse is legally inconsistent.
Whether the court had jurisdiction to award the use of the home in lieu of child support.
Whether the court exceeded its jurisdiction by making an immediate and final division of community property in an interlocutory decree.

Disposition. Modified and affirmed

Quotations verified verbatim against the opinion

“The divorce was granted on the ground of extreme cruelty and the court was authorized to make such a division of the community property.”

“It seems clear that the real intent of this clause was to provide that this award of the use of the home was in lieu of an allowance for support and maintenance of the child”

“the court does not lack jurisdiction to make such an order; if made, it may be attacked on appeal”

[716]

BARNARD, P. J.

This is an appeal from an interlocutory decree of divorce. Each of the parties had been previously married and each had some separate property. All of this property had been placed in joint tenancy, and some two years before this action was started it was divided by agreement, the defendant receiving some property which had been the separate property of the plaintiff. At least some of the property she received was rental property.

The parties also had a residence which was community property. The court entered an interlocutory decree in favor of the defendant on her cross-complaint, gave her the custody of a minor child, and divided the residence property by giving a one-half interest therein to the plaintiff, subject to the exclusive use and occupation thereof by the defendant until the further order of court, and giving the other half interest to the defendant, with the exclusive use and occupation of the entire property, and the rents, issues and profits therefrom, until further order of the court. From this decree the plaintiff has appealed.

The appellant contends that the judgment should be reversed because the award of an undivided one-half interest in the community residence property to each of the parties as tenants in common is inconsistent with the further award to the respondent of the exclusive use and occupation thereof. It is argued that a tenancy in common implies the right of each cotenant to equally occupy and use the property and that the award, as made, is inconsistent with such a tenancy in common. The decree does not purport to create a tenancy in common and whether or not the situation thus created technically constitutes such a tenancy is immaterial. The court awarded one-half of this property to the appellant, subject to this right of occupation, and awarded one-half, together with such an exclusive right of occupation, to the respondent. The divorce was granted on the ground of extreme cruelty and the court was authorized to make such a division of the community property.

(Price

Price,

71 Cal. App.2d 734 [163 P.2d 501].) No error appears in this regard.

Prout v. Prout

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BARNARD, P. J.

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