Donlon v. Donlon

MOORE, P. J. The sole question for decision herein is whether the award to respondent of five parcels of realty as her separate property although they stood in joint tenancy is supported by substantial evidence.

Respondent and appellant James were married at Los Angeles August 18, 1948, and thereafter resided in California. Having separated on December 15, 1954, respondent commenced an action for divorce eight days later, to which appellant duly filed his answer and cross-complaint. Following a trial, an interlocutory decree of divorce was filed March 14, 1955, and the motion for a new trial was denied May 4, 1955. The appeal is from the judgment and from the order denying motion for new trial. The only portion of the judgment appealed from is that awarding the five parcels to respondent.

It was proved and found that at the time of the marriage respondent owned in her separate right real property valued at $43,000 besides cash, stocks, bonds and a joint tenancy interest with her mother in another parcel of real estate, the total aggregating approximately $68,000. At the same time, appellant owned no real property. His total assets did not exceed $1,000, and he was earning a meager living by repairing automobiles. Subsequently, respondent successfully assisted her husband in getting a position of responsibility as a service [430]salesman with a car agency for which he worked for two years. About the same time, respondent announced that she was “to start buying, selling and trading real estate” by using her separate property. She was of the opinion, and so stated to appellant, that the best way for her to accomplish a quick turnover of her property was to place it in joint tenancy and whenever she made a sale to have appellant join her in the conveyance.

Appellant’s basic contention is that because the property was in joint tenancy and had been acquired during the marriage, it should have been divided as community property. He contends (1) that there was no substantial evidence to support the finding that the five parcels of real property held in joint tenancy were at all times the separate property of the respondent; (2) that respondent was a real estate broker and, this being her business, her earnings would be community property, and (3) that because respondent stated that the property would be appellant’s if she died, this constituted a gift in praesenti of the real property.

The trial court summed up the problem in a few words when it stated that the question is simply one of resolving the conflict of the testimony of respondent with that of the appellant. In that situation, the rule is that the trier of fact is the sole judge of the weight of the evidence and credibility of witnesses; and also, a judge sitting without a jury may accept or reject any part of the competent evidence. (Kilstrom v. Bronnenberg, 110 Cal.App.2d 62, 64 [242 P.2d 65].) A trial judge is not required to believe a witness merely because there is no positive contradiction of his testimony. (Travis Glass Co. v. Ibbetson, 186 Cal. 724, 727 [200 P. 595].) Such is not the situation at hand. The appellate court has no power to disturb a judgment when the conclusion reached by the trial court is supported by findings which in turn are derived from substantial evidence, contradicted or uncontradicted, or when from reasonable inferences from such evidence the findings are made. (Estate of Bristol, 23 Cal.2d 221, 223 [143 P.2d 689].) Because an inference contrary to that deduced by the trial court might be fairly drawn by another reasonable mind, a reversal is not thereby justified. (Redmond v. City of Burbank, 43 Cal.App.2d 711, 713 [111 P.2d 375].)