Snyder v. Snyder

GRIFFIN, J.

Plaintiff and defendant were married in May, 1947. A short time before their marriage defendant purchased, in his own name, certain real property which is the subject of this action for partition. At the time of their marriage plaintiff had certain money (approximately $1,700) in her name in a bank. The parties separated in November, 1947, and became reconciled about January, 1948. During the period of separation, efforts were made on the part of both to effect a reconciliation. Apparently there had been some argument between them as to the manner in which

[491]

they held title to their respective property. For the purpose of resolving their marital difficulties and to effect a reconciliation, it was agreed by the parties that defendant would transfer the real property standing in his name to plaintiff and himself, as joint tenants, and that plaintiff would in turn transfer her bank account to the joint names of the parties. This was done. They became reconciled and lived together as husband and wife until about June 16, when they separated. During this five months’ period, both parties wrote checks on the bank account. After the separation plaintiff filed an action for divorce and also this action in partition, which actions were consolidated for trial. Plaintiff was awarded a decree of divorce and at the same time the real property was ordered partitioned. It is from this judgment of partition that defendant appeals. Findings of fact and conclusions of law were waived. It is the rule that where findings of fact are waived it will be presumed on appeal that every fact essential to the support of the judgment was proved and found by the trial court.

(Bekins Van Lines, Inc.

v.

Johnson,

21 Cal.2d 135 [130 P.2d 421].) Defendant admits this rule but argues that the evidence does not support the judgment. He now claims on appeal that since the lot was defendant’s separate property, title to which was standing in his own name prior to the marriage, the law presumes it to be his separate property; that the evidence does not show a

gift

of it to the wife under section 1040 of the Civil Code; that all transactions between husband and wife by which one obtains an advantage over the other are presumed to be entered into by the latter without consideration, citing Civil Code, sections 158 and 2235, and