Moody v. Moody

WARNE, J. pro tem.* This is an appeal from an interlocutory decree in an action for partition.

At the time of filing this action the record shows that the parties were husband and wife. However in March, 1956, the wife (appellant) commenced an action for divorce, and the husband (respondent herein) answered and also cross-complained for divorce. After a contested trial, the court entered its interlocutory decree awarding a divorce to the husband and settling the separate and community property rights of the parties.

In her amended and supplemental complaint in the divorce action the appellant, among other things, alleged that in the purchase of the real property involved herein she contributed the sum of $14,134.29 of her own separate funds which were in her possession at the time of her marriage to respondent; and “which said funds were her sole and separate property and not community property.” In the prayer of her complaint she prayed: “For a decree awarding plaintiff as her separate property the sum of $14,134.29 as her contribution to the acquisition of the community property and for such other division of the community real and personal property as the court may seem [sic] just and equitable.”

The answer and cross-complaint of respondent contro[146]verted the allegations of the wife’s complaint, and thus the question of whether appellant had contributed $14,134.29 of her separate funds towards the purchase of the property became an issue in the divorce action.

The trial court found that all of the real property of the parties was owned by them as joint tenants as their separate property and that appellant had not contributed any sums whatever of separate property to the acquisition of any of the properties owned by the parties. The interlocutory decree of divorce decreed, among other things, that all of the property described in the complaint “is the separate property of the parties and is owned and held by them as joint tenants.” It further provided “that defendant and cross-complainant [respondent] pay to plaintiff and cross-defendant [appellant] the sum of $3,850.00 cash.” However the finding that appellant had not contributed $14,134.29 of her separate funds towards the purchase price of the property was not carried into the interlocutory decree.

Thereafter respondent brought the instant action to partition the three parcels of real property decreed in the divorce action to be separate property owned by respondent and appellant as joint tenants. Appellant’s answer to the complaint in partition admits that the parties owned the parcels of land involved as joint tenants but denied that their interest in the Lincoln Ranch in Placer County, one of said parcels of land, was equal and by way of cross-complaint alleged that there was used to purchase the Lincoln Ranch property approximately $14,000 of her separate funds. She prayed that she be granted a decree establishing that the respondent holds said property in trust for her to the extent of $14,000. The allegations of the cross-complaint were denied by respondent and as an affirmative defense respondent pleaded the findings and decree in the divorce action by way of a bar and estoppel. Over objection, the trial court admitted into evidence the entire file in the divorce action including the findings and interlocutory decree. Also over objection of the respondent, the court refused to receive any testimonjr relative to appellant’s claimed contribution of her separate funds towards the purchase of the Lincoln Ranch upon the ground that the issue of appellant’s alleged contribution of $14,000 had already been determined in the divorce action and that the same could not be again litigated in the partition suit. The interlocutory decree in partition found against appellant’s claimed contribution towards the