Vides v. Vides

DRAPER, J.

Each party to this divorce action was granted interlocutory decree on the ground of the other’s extreme cruelty. During their two-year marriage, the parties purchased a home in San Francisco. Each paid half the downpayment from separate property. They jointly executed two installment notes secured by deeds of trust, for the purchase price balance. Payments of $110 and $24.50 per month were required. The deed ran to them as joint tenants, but each pleaded, and the court found, that the home was community property. Upon their separation the husband left the home. During the 18 months from separation to interlocutory decree, his earnings concededly were community property, and are agreed to have been the only such property available to pay the installments. He refused to make any payments on the first deed of trust, and some six months after separation refused to make further payments on the second deed of trust. The wife paid from her own earnings the' installments which husband refused to pay.

In effecting equal division of the community property, as required under the decrees of divorce here

(De Burgh

v.

De Burgh,

39 Cal.2d 858, 874 [250 P.2d 598]), the interlocutory decree directed that the home, which was the principal item of community property, be sold, and the net proceeds divided equally between the spouses. Neither questions the authority of the court to order sale, and both joined in completing sale at some unspecified date after the interlocutory decree. The decree, however, refused to permit wife to recoup from the net sales price the sums she had paid on account of the deeds of trust. The propriety of this determination is the sole issue on appeal.

The wife’s earnings after separation were her separate property (Civ. Code, § 169), and were found by the court fo be

[603]

so. Thus the effect of the decree is to award her separate property to the husband to the extent of half the payments by which she enhanced the community asset.

It is apparent that the trial court considered itself bound to this result by two rules. One states that if a spouse pays community debts from separate property when community funds have been exhausted, he is entitled to reimbursement by the community when its funds are replenished