Breedlove v. Breedlove

FOURT, J. This is an appeal from that portion of a judgment which awarded the plaintiff $150 as her interest in the community property of the parties.

The plaintiff and defendant were married in June, 1948, and separated January 25, 1950. On June 29, 1955, the defendant and one described in the deed as Lennie M. Breed-love acquired an interest in certain real property as joint tenants. Subsequently, defendant obtained what purported to be a decree of divorce from plaintiff in Mexico on January 25, 1956, and on February 22, 1956, the defendant went through a marriage ceremony with Lennie Saunders. On March 6, 1957, the plaintiff filed her action in divorce, charging the defendant with wilful desertion. In this complaint she alleged that there was no community property of the parties. Defendant filed his answer to the complaint on March 14,1957, in which he admitted the marriage and denied that he had deserted the plaintiff; further, he set forth that he had secured a Mexican divorce from plaintiff on January 25, 1956. On the same date, defendant filed a cross-complaint for an annulment, or in the alternative, a cause of action for divorce wherein he charged her with desertion. He alleged that there was no community property.

At the time of the trial it was stipulated that the husband’s cause of action with reference to the annulment could be, and was stricken, and further that the wife could file an amended complaint in which it was alleged that there was some community property consisting of a 1954 Plymouth automobile and the real property situated at 119 West 113th Street, Los An[714]geles, California. The amended complaint contained a notation, written below the verification, “Amendment consented to Paid C. Hill,” and “Amendment need not be answered H. L. Richardson. ’ ’ The prayer of the amended complaint requested (1) a divorce, (2) payment of the wife’s attorney’s fees, - (3) her share of the community property and (4) costs of suit. No alimony was sought.

The court, according to the reporter’s transcript, stated at the conclusion of the hearing :

“The Court: An interlocutory judgment of divorce will be granted to the Plaintiff in the action. There will be a judgment for the cross-defendant on the cross-complaint and the answer to the cross-complaint without costs. It will be found that the community property consists of equity in one 1954 Plymouth automobile, which is awarded to the defendant as his sole and separate property, and by way of further property division herein, and in lieu of all alimony the defendant is ordered to pay to the plaintiff $150, payable $15.00 a month, the first payment to be made on November 1, 1957.