Wilcox v. Wilcox

Opinion

COUGHLIN, J.

*

Plaintiff appeals from a judgment of dismissal following an order sustaining defendant’s demurrer without leave to amend.

Plaintiff’s complaint alleges he and defendant are husband and wife; defendant has taken, is in exclusive possession of, and has secreted $30,000 of community funds; demand has been made upon her for this money; and she refuses to pay the same to plaintiff.

Defendant’s demurrer to the complaint was upon the ground: “This Court does not have jurisdiction over the subject matter of this action, in that there is no statutory authority which allows a spouse to sue the other for mismanagement of community funds.”

The court sustained the demurrer without leave to amend.

The cause of action alleged in plaintiff’s complaint is not premised upon defendant’s mismanagement of community funds, as stated in her demurrer, but upon defendant’s violation of plaintiff’s right to manage, control and dispose of community funds.

By statute a husband “has the management and control of the

[459]

community personal property, with like absolute power of disposition, other than testamentary, as he has of his separate estate,” subject to certain exceptions not material to the case at bench. (Civ. Code, § 5125.) The right of the husband thus conferred to manage, control and dispose of community personal property is invaded by his wife when she deprives him thereof by taking, secreting and exercising exclusive control over community funds. A husband has a cause of action against his wife for such an invasion and violation of his right in the premises with attendant appropriate remedies. These conclusions are dictated by the principles stated and applied in

Harris

v.

Harris,

57 Cal.2d 367, 370 [19 Cal.Rptr. 793, 369 P.2d 481],