Geller v. Geller

WHITE, P. J.

Defendant husband appeals from an interlocutory judgment of divorce granted to the plaintiff wife, asserting as grounds for reversal that the court erred (1) in finding the home of the parties to be community property and awarding it to the wife; (2) in awarding attorney’s fees in excess of the amount prayed for in the complaint; and (3) in ordering excessive monthly payments of alimony and attorney's fees.

The findings of extreme cruelty by the husband toward the wife are not attacked, are amply supported by the evidence, and justified the court in awarding the property in dispute to the wife, if the property was properly found to be community. (Civ. Code, § 146, subd. 1;

Barham

v.

Barham,

33 Cal.2d 416, 431 [202 P.2d 289], and cases cited.)

The parties were married in New York City in 1920 and separated in Los Angeles in 1951. They had three children, two of whom at the time of trial had reached majority, the third child then being 18 years of age. Custody of the minor child was awarded to the mother, with visitation rights in the father.

It appears that in September 1943, the parties purchased a home in Los Angeles for $4,750, making a down payment of $1,500, the balance of the purchase price being represented by a note and deed of trust. (The fact that title was not taken in the names of the parties, but was held for their benefit by one Blankenship is of no importance in determining the issues presented by this appeal.) Of the $1,500 down payment, the wife contributed $750, her separate property acquired from the estate of her father, and the husband furnished $750 from accumulated earnings. The monthly payments on the deed of trust were $36.07, and these payments were made regularly from September, 1943, until the time of trial in October, 1951. The monthly payments were on account of principal and interest only and did not cover insurance or taxes. At the time of trial there still remained a principal balance on the trust deed of $2,430, indicating that there had been a reborrowing or refinancing of the loan, although the record does not disclose the facts in this regard.

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