Lichtenstein v. Superior Court

GOODELL, J. The petitioner seeks by prohibition to restrain the trial of the issues raised by a cross-complaint filed in a suit pending in the respondent court. That suit, brought by petitioner against his wife, Theresa Lichtenstein, and Marin Title Guaranty Company for declaratory relief, arose out of the following situation: a dispute developed respecting a savings account of $9,000 or thereabouts, standing in petitioner’s name, he claiming it as his separate property and his wife contending that it is community property. They were bound by a contract to sell their home in San Rafael but Mrs. Lichtenstein insisted that before the sale was consummated the question as to the character of the $9,000 account had to be settled or that an agreement should be drawn which would protect her out of the proceeds of the sale in the event the $9,000 fund should be held to be community property. Such an agreement was entered into on September 13, 1947, and pursuant thereto one-half of the net proceeds, or $11,002.74, was paid to Mrs. Lichtenstein as her separate property, $6,502.73 of the other half was paid to petitioner as his separate property and $4,500 of his half was impounded with the title company wherewith to settle the [488]wife’s community half of the $9,000 account should it be determined that the fund was of community character.

The petitioner then filed the suit for declaratory relief to have the question settled, and when his wife answered she filed a cross-complaint for separate maintenance on the ground of extreme cruelty. Petitioner demurred thereto on both general and jurisdictional grounds and moved to strike it from the files on the ground that it was not within the provisions of section 442, Code of Civil Procedure and was sham and irrelevant. The demurrer was overruled and the motion denied.

The petitioner contends that if the court proceeds to try the issues raised by the cross-complaint it will be acting in excess of its jurisdiction.

It is self-evident that if in the main case the $9,000 savings account is held to be community property the $4,500 now impounded for Mrs. Lichtenstein’s protection will be hers, but it is difficult to see how any fact within the range of the separate maintenance case can conceivably help her prove that the savings account is community property or disprove that it is separate property. The issues triable under that pleading relate to Mrs. Lichtenstein’s support in the future. The issues in the declaratory relief case relate to a savings fund long since accumulated in which her rights, if she has any, have been vested for a long time.