Mooney v. Mooney

MOORE, P. J.

Appellant takes exception to that portion of the interlocutory decree of divorce awarding plaintiff, as his share of the community property, an undivided one-half interest in (1) certain real property, (2) an undivided one-half interest in the furniture in the dwelling thereon, and (3) an undivided one-half interest in a malt shop and its fixtures.

From August, 1940, until July 8, 1944, appellant rented from the owners and conducted a boarding house in the dwelling situate on the real property. On the latter date and while yet a single woman, she executed an agreement to purchase the same realty. On October 7, 1944, she married respondent. Thereafter, a building known as “the malt shop” was constructed upon the realty, equipped and operated as a going business.

In September, 1946, respondent filed a complaint for divorce on the ground of mental cruelty and alleged:

“That there is community property of the parties hereto consisting of and inclusive of his separate property:

“(1) A seven-room dwelling house and Malt Shop business . . .

“(3) Furniture in dwelling house and fixtures in Malt Shop. . .”

Appellant’s answer denied the above quoted allegations and alleged “that all the property listed . . . is the separate property of defendant, she having acquired and owned same prior to the marriage. . .”

Appellant also filed her amended cross-complaint for divorce which alleged: ‘ ‘ That there is no community property belonging to the parties hereto. . . That all the property which cross complainant owns is her separate property having acquired same prior to her marriage. . .”

The answer to the cross-complaint alleged that the property mentioned in the complaint is community property.

[120]

After trial the court made nine findings of fact as to the veracity of the pleadings, and a tenth finding as follows:

“The Court further finds that the community property of the parties consists of the dwelling and Malt Shop