Dunasky v. Dunasky

McMURRAY, J. pro tem.* On November 5, 1951, plaintiff sued defendant for divorce, on the ground of extreme cruelty. [819]On October 9, 1953, a judgment awarding him the divorce was filed. Between these dates, the court held numerous hearings and a referee’s hearing was conducted relative to the character of certain property.

The parties hereto had been married for a little less than 10 months when the action was filed. By prenuptial agreement, appellant’s earnings were to be her separate property, and throughout the somewhat short matrimonial adventure, the record shows that there was a complete segregation of the parties’ property. Certain differences arose and there is ample testimony which would support the granting of a divorce on the ground of extreme cruelty to either party.

On this appeal appellant urges: First, that the trial court committed prejudicial error in ordering the sale of the separate property of the appellant over her objections; second, that the court committed prejudicial error in failing to make an express finding of fact on the isue of extreme cruelty; third, that it was prejudicial error to fail to make a finding of fact on the issue, reserved by the referee to the court, as to whether or not respondent should reimburse appellant for expenditures from her separate property which appellant claims were made; fourth, that the findings made by the referee went beyond the scope of the order of reference and were therefore void, and that the trial court committed prejudicial error in adopting these findings as its own, there being no evidence in the record before the trial court on these issues; and, fifth, that, when findings of fact are inconsistent and contradictory, the judgment rendered must be set aside, must be reversed upon the appeal, and a new trial must be granted.

The trial court found certain real property which was being purchased by the parties by having made a down payment comprised of equal amounts of money from each of the parties’ separate funds and other payments out of community property was not community property, but was purchased with separate funds of the plaintiff and defendant, each contributing one-half of the down payment, and that other contributions thereto were made from community property and ordered that this real property, the family residence, should be sold and the proceeds be equally divided between the parties. This, the court had no power to do. From the record before us, it appears that this was in fact joint tenancy property, and it is established that in a divorce proceeding the court is without power to grant one spouse separate property of another; and unless it is found by competent