Brown v. Meredith

SALSMAN, J.

Appellant brought this suit against respondents for the partition of personal property, and appeals from the trial court’s judgment denying him any relief. Since the dispute here is between appellant and Bess E. Meredith, we shall refer to the latter as respondent, and make specific reference to respondent Jill Shipstad by name where necessary.

Throughout appellant’s brief there is a continuing challenge to the sufficiency of the evidence to support the findings and judgment, and it becomes necessary therefore to state briefly the facts which appear in the record.

Appellant and respondent were married in December 1954. They were divorced in 1958. In June 1955 the parties purchased a cabin located on government land, and at the same time obtained a use permit for the land upon which the cabin was located. The cabin is the subject of appellant’s action for partition. During marriage appellant and respondent maintained a common bank account. Respondent had separate income which amounted to $400 per month which she deposited in the common bank account. Appellant had community income from wages of $80 per week, most of which was also deposited in the bank account. When the cabin was

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purchased, respondent drew a check on the bank account for $500, and made the down payment. Later, respondent sold $6,000 of her separate securities and with the proceeds paid the full balance due on the purchase price. Title was taken in the names of appellant and Jill Shipstad. At trial there was testimony that appellant had purchased a car on which payments of $49 per month were due. These payments were made from the bank account. Living expenses of the parties were also paid in part from community funds, but when extra money was needed it came from the separate income of respondent. Although title to the cabin was taken in the names of appellant and Jill Shipstad, respondent testified that she did not intend to make a gift to appellant.

Appellant contends that community income and respondent’s separate income were commingled in the common bank account and hence the entire amount became community property. Appellant further reasons that since the down payment on the cabin was made from the bank account, the cabin too is community property. This contention is not valid when considered in light of the entire record. It is the rule that when separate and community funds are commingled the property remains unchanged in character as long as it can definitely be traced and ascertained.