Austin v. Austin

SHINN, P. J.

Phyllis C. Austin brought suit against Jerome Ralph Austin for divorce alleging extreme cruelty. Defendant answered and also filed a cross-complaint by which he sought annulment of his marriage to plaintiff upon the ground that at the time the same was entered into he was still the husband of a former wife, his second, notwithstanding a decree rendered in Mexico which purported to award him a divorce from his then wife. The complaint of plaintiff described property of the parties, which was alleged to be community property, which plaintiff sought to have divided in an equitable manner. By his answer defendant denied the allegations of the ownership of community property, although his answer stated 1

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defendant admits that plaintiff and defendant have acquired certain property, by their joint efforts, while living together as man and wife.”

Findings were generally in favor of plaintiff upon her complaint and against defendant upon his answer and cross-complaint. Judgment was entered awarding plaintiff a divorce, the custody of three minor children, support money,

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determining all the property of the parties except the family home to be community property and making a division of the same. Defendant has appealed only from the part of the judgment respecting the ownership and the division of community property.

Admittedly the property consisted of a family residence in Arcadia, household furniture and furnishings, 298 shares of the capital stock of J. R. Austin Company, a corporation, and defendant’s interest in the company, insurance policies, stocks, bonds, bank accounts and savings accounts. Defendant contends that it was established without conflict in the evidence that all said property was his separate property with the exception of the home of the parties which was in joint tenancy. The court found that the home property was owned in joint tenancy, and that finding is not questioned.

The parties intermarried at Stockton, California, March 1, 1945. At that time both were in the employ of a shipyard company, plaintiff as a clerical worker, defendant as a superintendent. They continued their employment for eight months following their marriage and combined their earnings in an amount that was not disclosed by the evidence. Plaintiff had savings bonds of the value of about $200. Defendant had assets which he stated to plaintiff to be worth $8,000 and which he testified were of the value of about $11,000. In November 1945, defendant purchased a half interest in a partnership in a welding business in Pasadena for an amount which he stated at the time was $1,800 but which he testified was $2,700. The funds which the parties had accumulated after their marriage and placed in a bank in Stockton were transferred to a bank in Burbank, and from this account defendant withdrew the amount paid for the interest in the business. Both parties devoted their attention and efforts to the operation of the business for about nine months, until plaintiff gave birth to her first child. After about a year defendant’s partner, Ava Beard, sold his interest to one Lugenbeil and in the following year defendant’s father acquired Lugenbeil’s interest. The business was incorporated in 1948; defendant owns 298 shares of the capital stock; his father owns 123 shares but was not shown to have been active in the business.