Elms v. Elms

SEAWELL, J.

Howard R. Elms and Alberta E. Montagne, adult children of plaintiff Lola M. Elms and defendant Fred G. Elms, filed a complaint in intervention in this action for divorce. They alleged that they had an interest in certain real property standing in the names of their parents, which was claimed by the plaintiff wife to be community property, by reason of having contributed, respectively, $5,000 and $3,000 to the purchase of said property and to the discharge of liens thereon, under an agreement with their parents that the property should be held in trust for them to the extent of their contributions. The court sustained plaintiff’s demurrer to the complaint in intervention, and thereafter entered judgment that interveners take nothing. The question presented by this appeal is whether the interveners may litigate their rights in said property in the divorce action, or must resort to a separate suit.

Said real property consists of a dwelling house and an apartment house in the city of Berkeley, and the community personal property consists of household and apartment furniture and furnishings. Plaintiff alleged that said real and personal property was of the value of $9,000, and prayed that it all be set aside to her. As grounds for divorce she alleged

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acts of mental cruelty. The defendant husband in his answer to the divorce complaint alleged that said real property was held in trust for Howard Elms and Alberta E. Montagne to the extent of their payments and contributions. On the same day that it sustained the plaintiff’s demurrer to the complaint in intervention, the court ordered that the allegations with reference to the property being held in trust for Howard Elms and Alberta E. Montagne be stricken from defendant’s answer. The complaint in intervention had been filed with leave first obtained from one of the judges of the superior court, as provided by section 387 of the Code of Civil Procedure, but the motion to strike the allegations as to the existence of a trust from the answer, and the demurrer to the complaint in intervention came before a different judge of said court.

It is stated generally that the husband and wife are the only parties to an action for divorce. However, the right of the wife to name as a defendant a third person to whom the husband has conveyed community property or separate property in fraud of her rights has been recognized in several cases in this state.