Schell v. Schell

GRIFFIN, J.

Plaintiff wife originally filed an action for separate maintenance against defendant husband. In an amended complaint she asked for a divorce on the ground of extreme cruelty, or in the alternative for support for herself and four minor children.

Defendant answered, and by way of cross-complaint sought a divorce on the same ground and the custody of the children. The parties were living separate and apart at the time of the filing of the action.

After issue joined, the trial court found the allegations of each party to be untrue, denied each a divorce and awarded the custody of the two daughters to plaintiff and the two sons to defendant, with reciprocal rights of visitation. It found that defendant had an average monthly income in excess of $650; that the parties owned, as joint tenants, a home in Coronado; and that plaintiff “should be permitted to continue to live . . . there . . . rent free,” and that said minor daughters should live with her; that defendant pay $150 per month for maintenance of plaintiff and two daughters in addition to their right to occupy the home “together with its furniture and furnishings, without expense for the occupancy of said home” and defendant “shall pay the necessary expense of preserving said home. ...” Payments were to continue so long as plaintiff continued to occupy it. A judgment to this effect was entered on October 20, 1944.

On March 19, 1945, a complaint or petition for accounting was filed by defendant, alleging the proceedings and judgment above mentioned and that defendant had complied with its terms. It is then alleged that about September 1, 1944, plaintiff changed the form of the “ ‘family home’ in that she converted the same into a partial rooming house or apartment house on a business basis, by the terms of which she is and has been, since said time, receiving rentals, the exact amount being unknown to defendant. That one-half of said rentals, less a proportion of the expenses in managing said business

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venture is the property of the defendant, a claim for which he has made to the plaintiff who refused and still refuses to account to Defendant or to in any way account to him for any of the proceeds derived from said venture.” He prayed for an accounting “as to the use of said jointly owned property,” and that plaintiff pay to him such sum as may be found due.