Rose v. Rose

California Court of Appeal Mar 12, 1942 No. Civ. 11993Published

Before: McWILLIAMS

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Holding. The court held that a trial court must make findings on all material issues regarding alimony and that it lacks the authority to cancel a spouse's separate property promissory note in a divorce decree.

Issues

Whether the trial court abused its discretion in denying alimony without making findings on the wife's health and financial dependence.
Whether the trial court has the authority to order the cancellation of a promissory note representing the wife's separate property.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The law is settled in this state that the power of a court to apportion property upon decreeing a divorce is limited to community property and the homestead of the parties.”

“when a husband borrows money from his wife and gives her a promissory note to evidence the indebtedness, a court has no power in a divorce decree to order the cancellation of the note.”

[433]

McWILLIAMS, J. pro tem.

The plaintiff in this action brought suit against his wife for divorce on the ground of cruelty. The defendant answered and also cross-complained asking for separate maintenance but afterwards amended the prayer of her cross-complaint and asked for a divorce. The lower court granted a divorce to cross-complainant on the ground of cruelty. She has appealed from the portion of the interlocutory decree that denied her alimony and also from the portion of the decree which ordered the cancellation of a $500 promissory note that respondent had given to appellant for a loan made to him out of separate funds of appellant.

On the trial of the case much testimony was introduced by the parties in support of the charges of cruelty made by each respectively against the other. The testimony offered by each party was ample if believed by the lower court to justify that court in granting a decree of divorce to either. The action of the trial court in granting a divorce to appellant has effectively disposed of the question of her right to such divorce. It will therefore not be necessary to review the evidence on the issue of cruelty.

In its decree the lower court adjudged that the parties owned community property of an aggregate value of $5,900. It awarded to respondent a $1,600 equity in a small shop that was operated by the parties and which they had contracted to purchase for the sum of $3,800. Of the sum paid on the purchase price $500, represented by the promissory note of respondent referred to above which the court ordered cancelled, had been loaned to respondent by appellant. The court also awarded to respondent an automobile of the value of $400.

To appellant the court awarded a $1,000 life insurance policy on which the parties had borrowed the sum of $500. It also awarded to appellant jewelry of the value of $400. It also gave to appellant the household furniture valued at $2,000 and a $1,000 equity in the home of the parties located at San Marino, California. The court found that this latter real property had a value of $7,500, and also found that the unpaid balance on the purchase price was payable in installments of $50 per month. To summarize, the appellant was awarded community property of the value of $3,900 and to respondent was awarded the remaining community property of the value of $2,000. The court awarded the custody of

Rose v. Rose

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