Phillips v. Phillips

WARNE, J. pro tem.* This is an appeal from an interlocutory decree of divorce and an order denying alimony pendente lite.

In 1945 the appellant wife obtained an interlocutory decree [584]of divorce from respondent on the ground of extreme cruelty. At that time the parties entered into a property settlement agreement, under the terms of which appellant conveyed to respondent as his separate property her interest in a resort at Lake Tahoe which the parties owned and operated, and respondent executed and delivered to appellant a promissory note in the amount of $15,000 secured by a deed of trust on the resort property. On March 6, 1946, a final decree of divorce was entered. On May 22, 1946, the parties remarried and agreed in writing to cancel the property settlement agreement and hold all their property as community property. However, appellant did not thereafter cancel the note or cause a reconveyance to be made under the deed of trust but on July 19, 1948, filed this action for divorce on the ground of extreme cruelty. Respondent, by way of cross-complaint, sought an annulment or a divorce. After trial, the court found each to be guilty of extreme cruelty of substantially the same degree but held that neither was entitled to a divorce on the ground of recrimination. The Supreme Court held that the doctrine did not apply (Phillips v. Phillips, 41 Cal.2d 869, 877 [264 P.2d 926]), and reversed the judgment, the court declaring that “On retrial, the court may determine whether one or both parties shall receive the divorce,” and that the issues as to the validity of the property settlement agreement and the status of the property of the parties would “be decided on the retrial of the cause.”

The parties disagree as to the effect of the reversal as to the issues to be retried. Appellant contends that the retrial was to be limited to those issues not determined at the first trial, that is, the property rights of the parties. On the retrial it was stipulated that all of the testimony introduced at the first trial of the action as set forth in the reporter’s transcript would be received in evidence, and that either of the parties might offer such additional evidence as they desired. No additional evidence was offered by appellant as to the conduct of the parties. The respondent offered evidence of statements made by appellant during the first, as distinguished from the second, marriage of the parties. The statements were in effect that the appellant had only married respondent as a means of support for herself and daughter. The only other additional evidence presented was in respect to the property rights and the value thereof. The court found that the appellant was guilty of extreme cruelty and granted a divorce on that ground. It further found that it would be impossible to divide the community property in kind and therefore awarded it to