Smith v. Smith

COUGHLIN, J. This is an appeal from a judgment in an action for divorce. The controversy respects a division of the community property. The issues on appeal concern the sufficiency of the evidence to sustain a finding of the value of a community asset, alleged prejudice of the trial judge, and claimed error in an order denying the plaintiff’s motion for a new trial. The plaintiff in the action, who is the appellant herein, was the wife of the defendant, who is the respondent herein. Under appropriate pleadings, the court entered judgment granting a divorce to both parties; dividing the community property equally between them; and awarding the plaintiff alimony for two years.

During the marriage, the defendant husband was the San Diego County general agent of a life insurance company. Prior to marriage, the plaintiff had been a licensed insurance saleswoman actively engaged as such for the same company. The contract between the defendant and his company, which bears date of June 1, 1949, provided for the payment to him of a commission upon the issuance of a policy of insurance through his agency and upon the annual renewal thereof to and including the 10th year; fixed the commissions so payable at different rates for the first year, second year, and third to tenth years; required the company to pay the defendant’s general office expenses; and was terminable by either party upon 30 days’ notice. The contract contained the following provision: “No assignment or transfer of rights or interests under this contract shall be valid as against the Company unless authorized in advance in writing by the Company.”

The plaintiff and defendant were married on April 25, 1952, [710]and separated on April 29, 1959. The trial of the action took place on January 26, 1960. The findings of fact set forth a description and the value of the community property, among which was an item described as “renewals on insurance commissions, ’ ’ which the court found to be of the value of $30,000. The judgment ordered an equal division of community assets remaining after payment of designated community debts; to effect such division awarded the plaintiff certain specific items of property, which did not include the right to commissions on renewed policies; awarded all of the remaining property to the defendant, including the right to renewal commissions; ordered the defendant to pay the plaintiff the sum of $8,434 as the balance of her one-half share of the community assets; and placed a lien on the renewal commissions to secure payment of the aforesaid amount.