Lopes v. Bruns

California Court of Appeal Jun 22, 1928 No. Docket No. 6297.Published

Before: Nourse

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Holding. The court held that an interlocutory divorce decree serves as a final adjudication of property rights, rendering a subsequent conveyance of that property by one spouse ineffectual against the interest awarded to the other spouse. Furthermore, the court affirmed the judgment because the appellant failed to properly challenge the pleadings or evidence on appeal and the record supported the finding of fraud.

Issues

Whether a cross-complaint can be challenged for the first time on appeal when the parties proceeded to trial on the merits.
Whether an interlocutory decree of divorce constitutes a final adjudication of property rights.
Whether a conveyance of property by a husband after an interlocutory decree is effective against the interest awarded to the wife.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“In so far as the decree determined the respective rights of the parties to the community property it was a final judgment subject to attack only by appeal or other method authorized by statute.”

“The deed of the husband to the appellant was executed just ten days after the entry of the interlocutory decree of divorce and was ineffectual to convey any title to the interest in the property which had been awarded to the wife.”

NOURSE, J.

Plaintiff sued to quiet title to real property situated in Alameda County. Defendant Bruns filed an answer and cross-complaint charging that defendant Frank Lopes conveyed the property to plaintiff for the purpose of defrauding defendant Bruns who was a creditor of the two defendants, Frank and Marie Lopes. The last-named defendant filed an answer alleging that she was granted an interlocutory decree of divorce from her co-defendant, Frank Lopes, prior to this transfer to plaintiff, and that by the terms of this decree she was awarded an undivided two-thirds interest in the property in suit, and that the husband was awarded an undivided one-third interest therein. Trial was had before the court sitting without a jury and resulted in findings and a decree awarding plaintiff an undivided one-third of the real property in suit, awarding defendant Marie Lopes an undivided two-thirds thereof, and adjudging that the respective interests of both of these parties were subject to a judgment lien of the defendant Bruns

[693]

in the sum of $976.15. Prom this judgment the-plaintiff has appealed on a typewritten transcript.

The appellant advances three grounds for a reversal of the judgment which we will consider in order. It is argued that the cross-complaint of respondent Bruns does not plead facts sufficient to constitute a cause of action. It does not appear that the point was raised in the trial court. No demurrer to the cross-complaint was interposed and we are not directed to any portion of the typewritten record showing that any objection to the pleading was made during the course of the trial. If it is true (and nothing is said to the contrary) that the parties went to trial of the issues on the assumption that they were properly raised in the pleadings the objection is of little force where raised for the first time on appeal.

(Etienne

Kendall,

202 Cal. 251 [259 Pac. 752].)

It is argued that no title vested in respondent Marie Lopes by virtue of the interlocutory decree of divorce. It is of no importance whether title vested or not. The interlocutory decree became a contract between the parties in the divorce action

Lopes v. Bruns

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NOURSE, J.

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