Ballas v. Ballas

California Court of Appeal Mar 3, 1960 No. Civ. 23888Published

Before: Vallee

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Holding. The appellate court modified the divorce decree to award the Pekingese dog to the plaintiff, finding it immaterial whether the dog was community or separate property, while affirming the trial court's finding that the Volkswagen was the defendant's separate property.

Issues

Whether the trial court erred in its finding that a Pekingese dog was community property and awarding it to the defendant.
Whether the evidence was sufficient to support the trial court's finding that a Volkswagen was the defendant's separate property.

Disposition. Reversed in part and remanded with directions; appeal from order denying new trial dismissed.

Quotations verified verbatim against the opinion

“After a review of the entire record, we have concluded that the part of the decree appealed from should be modified and that the Pekingese dog should be awarded to plaintiff.”

“Section 148 of the Civil Code, however, confers authority on a court of review to revise the award of distribution of community property, regardless of the discretion vested in the trial court”

VALLÉE, J.

Plaintiff wife appealed from that part of the interlocutory decree of divorce which awarded the property set out in the margin to defendant husband[1] 11and that part directing each party to deliver property to the other. Plaintiff was granted the divorce on the ground of cruelty. The single complaint she makes in her brief is that the court

[572]

erred in awarding a Pekingese dog and a Volkswagen to defendant.

The court found that the Pekingese was community property. It is first asserted there was insufficient evidence to sustain the finding. The parties were married June 3, 1956, and separated May 9, 1957. Plaintiff testified she acquired the dog in December 1956 with her own personal funds, that it was then registered in her name, that at the time of trial it was still so registered and in her possession, which was more than a year after the parties separated. This evidence was not contradicted. The only evidence presented by defendant was an exhibit which under the heading ‘

Community property” listed fourteen items among which, as item 14, was “Dog.” From an examination of the exhibit, it appears probable that the item “Dog” was inserted as an afterthought. Defendant offered no other evidence with respect to the dog. Further, in his answer, in which he listed “the property relating to this marriage,” some of which he alleged was his separate property and some community property, he did not mention the dog. In a cross-complaint which he filed he made the same allegations as he made in his answer without mentioning the dog; and he did not mention the dog at the pretrial hearing. Defendant made no showing that the dog was community property, and plaintiff’s testimony that she purchased the animal with her personal funds was without substantial conflict in the evidence. The court found the dog was community property.

Civil Code, section 148, provides: “The disposition of the community property, and of the homestead, as above provided, is subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court.”

Ballas v. Ballas

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