Scholz v. Scholz

WOOD (Parker), J. Defendant appeals from an interlocutory judgment of divorce. He asserts in his brief that he appeals only from the part of the decree which states that certain improved real property is the separate property of plaintiff.

The complaint, filed on July 10, 1951, alleged extreme cruelty as the ground for divorce; and it alleged that the parties owned certain community personal property. The answer alleged that the community property included improved real property at 2319 and 2319% Bari Street of the approximate value of $13,000. Defendant appeared at the trial in propria persona and contested only the allegations of the complaint pertaining to the property.

The court found that the parties were owners of the following community property: Hollywood Hair Dryer Company, and the machines and equipment used in the operation thereof which are encumbered by a mortgage in the amount of $2,464.28; certain household furniture and equipment; and two Ford automobiles. It found further that the improved real property at 2319 and 2319% Bari Street (house and lot) in Los Angeles is the separate property of plaintiff, having been acquired by her on November 22, 1944, prior to her marriage to the defendant; and that on February 10, 1947, defendant executed a declaration of homestead' thereon for the joint benefit of herself and defendant. The court awarded to the plaintiff the household furniture and equipment at the Earl Street addresses, the 1935 Ford automobile, and one-half the proceeds from the sale of the assets of the hair dryer company over and above the chattel mortgage. It assigned the homestead to plaintiff, free and clear of any 'interest the defendant may have thereunder. It awarded to the defendant the 1948 Ford automobile and one-half the proceeds from the sale of the assets of the hair dryer company.

Appellant contends that the evidence was not sufficient to support the finding that said real property is the separate property of plaintiff.

Plaintiff testified that in 1943 (prior to their marriage) she and defendant took up residence together; defendant told [227]her that if she would marry him he would buy a home for her; in 1944 they went to see the property on Earl Street, and decided that it was the home they wanted; she told defendant she did not have any money for the down payment, and he replied that he could borrow it; he borrowed $3,000 and gave plaintiff $500; she put the $500 in her checking account and wrote a check for that amount to “bind the deal”; escrow was opened in plaintiff’s name, and defendant paid $2,500 into escrow as additional down payment on the house; the deed was executed in the name of “Mabel Iris Thompson,” which was her name before she married defendant ; she purchased the furniture which was in the house for $500 and signed a note for that amount; the house had five rooms, and there was an apartment of three rooms adjoining the house; at the time they purchased the property the house was rented for $85 a month and the apartment was rented for $50 a month; at that time defendant told her it would be her home—he would give it to her—and that the income from the property would pay for it; she made the payments on the house and on the furniture from said income; in 1944 she also purchased about $1,200 worth of furniture and paid for it with money which was her life savings; about six months after they had purchased the property they moved into the apartment; about a year later they moved into the house and rented the apartment for $50 a month; later they raised the rent to $75 a month; she and defendant were married December 21, 1946; at the time of their marriage the furniture in the house had been paid for; in February, 1947, defendant was working for Murphy Appliance Company, in which company he owned an interest; said company went into bankruptcy and defendant told her that his creditors would ‘ attach the house ’ ’ and for her to homestead it; she did not homestead it with any idea of giving defendant a half-interest in it; she never agreed that in case of divorce that the property should be shared and shared alike; in 1949 defendant forced her to sign a note for $3,495.30 and she also signed a mortgage covering said property, as security for the note, but she did not receive any of those funds; on August 1, 1950, she and defendant separated.