Anderson v. Anderson

WOOD, J. This is an action to partition certain real property (a house and lot) which had been conveyed to the plaintiff and defendant, husband and wife, as joint tenants, and which had been involved in a divorce action between them. Prior to the commencement of this action the defendant herein had commenced an action for divorce, wherein she had alleged that the property was community property, and wherein the plaintiff herein (as defendant therein) had denied that allegation. This action and the divorce action came on for trial at the same time. The divorce action was tried first, and then the present action was placed off calendar.

[330]In the divorce ease, the court awarded plaintiff therein (defendant herein) an interlocutory decree of divorce and the real property involved herein. That decree stated that it is ordered that the real property “be held in joint tenancy”; that the value of the equity of the parties in said property is $3,000; that said real property is awarded to plaintiff (therein) subject to the payment by her to the defendant (therein) of $1,500 payable $150 per month; and that defendant (therein) pay to plaintiff (therein) $1,500 alimony payable $150 per month. The defendant therein did not file a notice of intention to move for a new trial until 10 months after the entry of the judgment, and did not appeal until more than a year after the entry of the judgment. (That appeal, not having been taken within the time allowed by law, was dismissed as shown by an opinion of this court filed this day, ante, p. 327 [197 P.2d 65].) Findings therein were waived. The evidence therein was sufficient to support a finding that the property was purchased with community funds, and with the separate funds of plaintiff therein. Also the evidence therein would have supported a finding that defendant therein was guilty of extreme cruelty to an extent which would have justified the court in awarding all the community property to plaintiff therein. The trial judge in that case stated at the time of his oral decision that the court had “a right to strip him [defendant therein] of everything under this ldnd of conduct, and he is lucky to get the Ford”; that as far as the court was concerned the real property “is never going to be divided up in such a way that he [defendant therein] will get it”; that “I am going to make an award of alimony herein which will take care of it in such a way that Mrs. Anderson is going to get all the property; she is entitled to it.” The trial judge also said at that time that he would award the automobile to defendant (therein) “because, in the first place, he needs it, and, in the second place, it is not worth anything. ’ ’