Ruddell v. Ruddell

BURKE, P. J. In an action for divorce defendant and cross-complainant wife was awarded an interlocutory decree in which it was adjudged that certain real property “. . . shall remain in joint tenancy, with the right of defendant and cross-complainant to reside therein; provided, however, that the defendant and cross-complainant shall have a lien in the amount of $3,500.00 upon the interest of the plaintiff and cross-defendant in■ said joint tenancy.” (Followed by a description of the property in question.) Plaintiff and cross-defendant husband has appealed from the judgment and demands a reversal on several grounds, one of which is that the court was without power to impress a lien in favor of defendant against plaintiff’s share of the separate property of the parties. In a matrimonial dispute resulting in a decree of divorce in favor of one of the parties, the court is without power to assign the separate property of one spouse to the other. (Fox v. Fox, 18 Cal.2d 645 [117 P.2d 325].) The power of a court to assign property upon the dissolution of a valid marriage does not extend to interests held in joint tenancy. (Turknette v. Turknette, 100 Cal.App.2d 271 [223 P.2d 495].)

If, after a divorce of spouses has been decreed, the termination of their joint tenancy title to a property is deemed necessary, either may commence an appropriate action to effect a partition.

Plaintiff husband also asserts that there was no corroboration of the acts of cruelty charged; however, upon a review of the transcript some corroboration is to be found in the testimony of plaintiff husband’s mother. Plaintiff’s own testimony lends further weight to the mother’s corroboration, and under the circumstances concerning the particular charges of cruelty, the corroboration is sufficient. (Keener v. Keener, 18 Cal.2d 445 [116 P.2d 1].)

Plaintiff husband also asserts that the trial court abused its discretion in awarding defendant $160 every two weeks [628]for child support and alimony in view of plaintiff’s earnings. In resisting the contention of plaintiff, defendant wife points out that plaintiff based his figures upon his net income, without regard to his gross earnings, asserting that plaintiff would be entitled to receive an income tax refund with the five tax exemptions to which he would be entitled. Defendant further contends that plaintiff was living with his mother and therefore had a minimum of expense, which fact the trial court noted in arriving at its conclusion.