In Re Marriage of Wall

Opinion

THOMPSON, J.

This is an appeal from a portion of an interlocutory judgment of dissolution of marriage- declaring that a winning Irish Sweepstakes ticket is the separate property of respondent, wife. We affirm the judgment.

Read as it must be in the light most favorable to the findings of the trial court, the record reveals the following. Appellant (husband) and re

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spondent (wife) were married in 1965. They originally separated in 1968. In December of that year, husband filed a complaint for divorce and wife filed a cross-complaint for the same relief. They reconciled but the action was not dismissed. In March 1971, husband and wife again separated. Wife moved from the family home. She lived for a brief period with her daughter by a prior marriage, and then in the home occupied by her first husband and their son.

Wife pursued the pending marital dissolution proceeding, prosecuting an order to show cause for temporary support. On April 29, the court awarded her support in the sum of $150 per month, payable on the first and fifteenth of each succeeding month. Husband made the May payments required by the order. Although his checks were dated May 1 and May 15, each was delivered several days after its date. Wife paid one-half of the rent on the home occupied by her son and first husband, and a portion of the grocery and utility bills. Her expenses exceeded $150' per month, and she supplemented her income by . baby-sitting fees of $40 to $45 in May. Her total expenses exceeded the support payments and her babysitting income. Wife had no funds on the date of separation. In the latter part of May 1971, wife purchased a ticket on the Irish Sweepstakes for $2.50, taking the ticket in the name of Violet Foster, her name when married to her first husband. On July 1, 1971, wife was notified that she had won $120,000 on her ticket.

The matter at bench reached trial on the issues of dissolution of marriage and disposition of community property on February 17, 1972. The proceeds of the sweepstakes ticket had not yet been paid. Husband claimed that the ticket was community property of the marriage in which he had a one-half interest. The trial court found to the contrary, and awarded the ticket to wife as her separate property. Husband perfected his appeal to this court, contending that the record establishes a community interest in the ticket as a matter of law because the ticket was acquired by wife with commingled separate and community funds. Analysis of applicable law dictates rejection of appellant’s contention.