Barber v. Barber

GIBSON, C. J.

Plaintiff and her husband, who were married in Oklahoma in 1942, separated in 1953, and she commenced this action in Los Angeles County on August 14, 1953, to obtain a decree of separate maintenance, a division of the community property, custody of their two minor children, and support for herself and the children. Defendant, appearing in propria persona, demurred and answered. Pursuant to a stipulation entered into by the parties, the trial court issued a temporary order directing defendant to pay $100 a month to plaintiff for support so long as she was unemployed. No provision was made in this order for the support or custody of the children.

The husband has been employed as a schoolteacher in Oklahoma since two years prior to the separation, and, before any further proceedings were had in this action, he obtained a decree of divorce in that state on the ground of extreme cruelty. The decree, entered on October 9, 1953, recites that the wife did not appear at the trial but had made a general appearance by filing an answer. The Oklahoma court found that the husband had been a resident of that state during the preceding year and that he was without fault. The decree was

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silent as to support rights. Under its provisions the husband was granted custody of the children, and real property located in Los Angeles was divided equally between the parties.

Subsequent to the Oklahoma decree the court in the present action made a minute order on October 27, 1953, containing provisions relating to the support of plaintiff and the custody and support of the children. Defendant then filed an amended answer setting forth the Oklahoma decree and praying that this action be dismissed as moot. At the same time he filed motions for summary judgment and for vacation of the minute order of October 27, 1953. These motions were denied.

At the trial of the present action the evidence established without dispute that plaintiff and defendant purchased the real property in 1946 and that the funds used as a down payment had been saved from their earnings and kept in a Los Angeles bank. Title to the property was taken in joint tenancy, and plaintiff understood this to mean that the property belonged to her and defendant as husband and wife.