Russ v. Russ

DRAPER, J. pro tem.* This appeal questions the award, by interlocutory decree of divorce, of real property not specifically found to be either community or separate. Decree was granted to plaintiff wife upon the ground of defendant’s extreme cruelty. The community property was not extensive. An automobile and a boat were awarded to the parties in equal shares. Furniture (community property) located in a residence admittedly the separate property of plaintiff was awarded to her. Furniture of a lesser value, located in another house, was awarded to defendant.

Real property in El Granada, San Mateo County, was awarded to defendant, and he was ordered to pay $2,600 to plaintiff. The transcript indicates that the value of the El Granada property was taken to be $5,000. Plaintiff’s notice of appeal is “from the whole of said judgment,” but her only attack is upon the award of the El Granada property.

Some three and one-half years after the marriage of the parties, appellant wife sold to the State of California property in Santa Clara County which was admittedly her separate property. From the proceeds of the sale she paid $600 to the attorney representing her, deposited $2,387.09 in a commercial account which contained $21.14 at the time, and deposited the remaining $3,000 in a savings account whose immediately preceding balance had been $1.00.

Both of these accounts were in the name of plaintiff alone. However, it seems to be conceded that they were, to the extent of the small balances at the time of the above deposits, community property. Throughout the marriage, defendant had no bank account or property in his own name because of a deficiency judgment against him. Substantially all earnings of both parties, throughout their marriage, were deposited in bank accounts in the name of the wife.

On the day she deposited the sale proceeds, plaintiff paid $500 from the same bank account as a deposit on purchase price of the El Granada property, and four days later paid, from the same account, $881.20 as the remainder of the purchase price. Title was taken in plaintiff’s name. The property was then unimproved, but thereafter the present house was added, with the costs thereof being paid from the bank account, and defendant doing some labor upon improvements. Plaintiff testified that the improvements cost $2,000, and that all this sum was paid from proceeds of the above sale. [726]However, she testified to other expenditures from these proceeds which would make it impossible for more than $914.80 to have come from this source for the improvements. The trial court was therefore entitled to find that at least a substantial part of the improvement cost came from earnings of the two parties deposited in the community account.