Fairchild v. Fairchild

California Court of Appeal Aug 6, 1948 No. Civ. 16407Published

Before: Moore

AI Brief

AI-generated · verify before citing

Holding. The court held that the trial court retained jurisdiction to modify the interlocutory divorce decree regarding the occupancy of the parties' joint tenancy property because the decree expressly reserved the power to partition and the occupancy right was a temporary privilege rather than a vested property right.

Issues

Whether the trial court had jurisdiction to modify an interlocutory divorce decree regarding the occupancy of real property.
Whether the modification of the decree regarding occupancy rights constituted an impermissible change to vested property rights.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Such express reservation by the court conferred upon it continuing jurisdiction over the ultimate disposition of the home.”

“The right of occupancy was a mere temporary privilege granted for the “convenience” of appellant and her daughter”

“But such a provision cannot be tortured into a vested property right which would defeat the entire purpose of the agreement of the parties and the judgment of the court.”

MOORE, P. J.

The two appeals herein are effectually from the same order: one from the minute entry of the court’s

decision;

the other from the documentary order modifying the interlocutory judgment of divorce which had been previously entered. Pursuant to a stipulation made then in open court the movable properties and money of the parties were apportioned by the decree. That document provided: “It is further ordered . . . that the following described real property . . . shall hereby be held in joint tenancy by the parties hereto

subject to partition by further order of the court herein; the of the parties hereto

. . .

to occupy said home until cross-complainant shall desire to and shall find it convenient to vacate the same at which time the said property shall be sold at a price agreed upon by the parties hereto or in the event no such agreement proves possible, the said property shall be subject to partition by further order of the court herein-, the proceeds of the sale

to” be equally shared by the parties.

Upon respondent’s application the court modified the interlocutory decree by striking from the above quoted passage the italicized words. The sole question presented on this appeal is whether the order of modification affects the property rights of the parties as at first adjudicated.

While it is conceded that the home was community property, it is earnestly contended that the unmodified interlocutory decree fixed the property rights of the parties, and that since the court did not reserve jurisdiction to alter its decision with respect to such realty it was without jurisdiction to make the order of modification. But such contention flies in the face of the very words of the unmodified decree: “in the event no such agreement proves possible, said property shall be subject to partition by further order of the court herein.” Such express reservation by the court conferred upon it continuing jurisdiction over the ultimate disposition of the home.

(Hogarty

Hogarty,

188 Cal. 625, 628 [206 P. 79].)

The deletion of the italicized passage changed the rights of the parties only if it altered some substantive right

Fairchild v. Fairchild

AI Brief

MOORE, P. J.

More from California Court of Appeal

Related research

AI Brief