Ahr v. Ahr

MOORE, P. J. The parties hereto were divorced by interlocutory decree March 19, 1955. The complaint for partition of real property was filed January, 1956, by Edward Ahr and an interlocutory judgment of partition was entered August 17, 1956. Prior to the divorce, the parties occupied the premises and pending the divorce trial the property was conveyed to the parties by Marie G. Nimmo, record owner of the property. It is a part of Lots 29 and 30, Block 8, Tract 4515, and also easement over Lot 29.

Respondent contends that ever since the separation, March 1954, appellant had sole and exclusive possession of the realty and has refused to render an accounting to respondent of her collections of rents earned by the real and personal property; that they do not agree upon the proper management and appellant refuses to discuss the matter; that prior to the filing of this action, appellant was disposing of the property to respondent’s damage.

After trial, the court found that the conveyance to the parties by Marie G. Nimmo was made pursuant to the stipulation of the parties in open court March 11, 1955, and was incorporated into the interlocutory and final decrees of divorce. As a result, Edward and Bernice became tenants in common of the premises, furniture and furnishings, each owning an undivided one-half interest.

The court found also that despite the decree of divorce, appellant has denied plaintiff’s title to one-half interest; that respondent was ousted from his mutual right of possession to said premises March 19, 1956; that its reasonable rental value has been $75 per month; that the parties are unable to agree upon the proper management or disposition of the property and that it cannot be physically partitioned without inequity.

From such findings the court concluded that respondent is entitled to an interlocutory judgment for partition and for counsel fees and damages.

[3]On appeal, Mrs. Ahr contends that the giving of the deed by Mrs. Nimmo with the lifetime right of possession to the property was the consideration for the waiver of alimony by Mrs. Ahr; that Mrs. Nimmo was married; that her husband failed to execute a deed; that Mr. Nimmo had some sort of interest in the property; that her attempt to explore this was precluded; that the failure of the court to allow evidence as to title or to possible liens was in derogation of section 753, Code of Civil Procedure, which provides that the interest of all persons in the property must be set forth in the complaint; that even if the original interest of Mr. Nimmo was not set forth in the complaint, appellant should have been afforded the opportunity of presenting the evidence to establish the direct ownership.