Davis v. Davis

FOX, J.

Plaintiff and defendant were married in April, 1940. In October, 1951, plaintiff sued for divorce upon the grounds of extreme cruelty and desertion, seeking also the custody of their two children then 4 and 6 years of age, an order for their support, and an award to her of all the community property. Defendant filed an answer in propria persona in which he denied all of plaintiff’s allegations except that he was an able-bodied man regularly employed, that the parties had two minor children, and that plaintiff was a fit and proper person to have their custody. This answer was prepared by counsel for plaintiff in accordance with defendant’s directions as an accommodation to him since he, desired to represent himself but did not know how to draw an answer. At the trial defendant acted as his own attorney, examining and cross-examining witnesses. He also testified. While he did not seriously contest the divorce, he did discuss with the court the property, its acquisition and character, encumbrance and income; also, his own and his wife’s earnings, being respectively approximately $425 and $235 per month, and the amount to be paid for the support of the children. The testimony disclosed that all the property of the parties ■had been acquired since their marriage as a result of their earnings. In response to inquiries from the court, defendant stated he understood what community property is. He conceded the 1947 Plymouth car he drove and the six unit apartment house, which he valued at $32,500 and on which they owed $6,778, was community property. Plaintiff occupies one of these units. One other unit is furnished. The income of $360 per month is required to operate the property, pay taxes and upkeep, and make the monthly payments. Defendant claimed, however, as his separate property, two savings accounts totaling $2,140 and a cashier’s check for $1,259.94. He contends these sums represented his share of certain funds which he and his wife had previously divided. He asserted she had spent her share. Plaintiff countered with the claim that

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the funds were required for her and the children to live on and to replace furniture defendant had disposed of. Defendant also had a television and some workshop tools and equipment. Plaintiff had a television, and a 1950 Chrysler which, however, was not fully paid for.

The court granted plaintiff an interlocutory decree of divorce on the ground of extreme cruelty, awarded custody of the children to her with right of reasonable visitation on the part of defendant, ordered him to pay $50 a month for the care and maintenance of each child, and found all the above mentioned property to be community. In disposing of the property the decree provides that the apartment house, subject to the indebtedness, the furniture, the Chrysler and the television in plaintiff’s possession shall go to her, while the savings accounts, the cashier’s check, the Plymouth, workshop tools and equipment, and the television in defendant’s possession shall go to him.