Miller v. Miller

Defendant-appellant husband appeals from an interlocutory decree of divorce. The notice of appeal indicates that it is intended to be from all provisions of the interlocutory decree, but the briefs of the parties are addressed to those portions of the decree which involve property rights and support payments.

The wife is 44 years of age and the husband is 46. They were married in Chicago, Illinois on June 27, 1943, and, after 18 years of marriage, separated in San Diego on November 1, 1961. They have two children who are about 14 and 13 years old at the present time. The wife is employed as a teacher in the San Diego school system and her gross income is $6,895 per year. The husband is employed as a psychologist by San Diego County and his gross income is $7,700

The husband contends that because of the payments which he must make on various debts, he does not have enough money to live on, and that the award of child support and the debt payment provisions in the decree are unreasonable. He complains about the division of the community property, which was apparently valued at about $5,300. He was awarded approximately $1,900 of this amount in order to pay community debts of about $1,100. In addition, he will receive one-half of the value of the parties’ real estate holdings and two promissory notes after paying the wife the initial $10,000.

There is evidence from which the court could have concluded that the husband was guilty of cruel treatment and therefore the sufficiency of the evidence supporting the finding of fault by the husband is not in doubt. The husband’s attorney tries to make a contention that some of the cruel treatment occurred after the parties separated and that the wife did not know of the husband’s visits to another woman until the time of trial, and that therefore this could not have constituted cruel treatment. However, there was evidence of statements made to the wife by the husband during the marriage which amply justify the court’s finding of cruelty on the part of the husband.

Hall v. Hall, 42 Cal.2d 435 [ 267 P.2d 249 ], is cited, to the effect that where the husband is unable to meet his living expenses, and where the wife was awarded an unusual amount, the award of alimony should be set aside on appeal because it is clearly an abuse of discretion.

Counsel for the wife points out that after basic living expenses of $139 per month for himself, and child support of $180 per month, the husband will have a margin of $173 per month left from the amount of his net earnings at the time of trial; that the award of alimony of $10,000 to the wife was

The main question involved here is whether the trial court did attempt to assign separate property belonging to the husband to the wife. There was no finding that the payment of alimony was in satisfaction of property rights which the wife had. The rule in Fox v. Fox, 18 Cal.2d 645 [ 117 P.2d 325 ], is cited. This case holds that in a divorce action, a court may not assign the separate property of one of the spouses to the other, nor require one to pay to the other any amount in lieu of an assignment or division of the property. It may not therefore require the husband to pay from his separate property any amount to the wife in satisfaction of her property rights when the divorce is granted by reason of her fault. It was there stated that the amount awarded to the wife was to be in satisfaction of her property rights and not for her support; that in an action for divorce, only the community property and the homestead may be awarded; that the court is not authorized to assign the separate property of one of the spouses to the other. The decree in that case was held to violate this rule and was “modified by striking therefrom the provisions relating to the payment of $840.” In Machado v. Machado, 58 Cal.2d 501 , 507 [ 25 Cal.Rptr. 87 , 375 P.2d 55 ], it was held: “In a divorce action the court does not have the authority to award any of the separate property of one spouse to the other. ... Neither can it award the wife exclusive possession of real property owned by the spouses as joint tenants [Citing cases] except as provided in Civil Code section 157. That section provides that in divorce proceedings 'the court may make orders for temporary exclusion of either party from the family dwelling or from the dwelling of the other, until the final determination of the action.’ ” (See Code Civ. Proc., § 949a.) It held that the trial court had erred in awarding the wife not simply the exclusive right to occupy the dwelling, but also the exclusive right to use it in any way she might see fit; that its order was not limited in time to the final determination of the action; and that therefore, it was unenforceable.

The order in the instant case, giving the wife exclusive

In Carter v. Carter, 148 Cal.App.2d 845 [ 307 P.2d 630 ], the trial court awarded to the wife the home “ ‘during such period of time as the said minor children of the parties are with defendant and living on the said premises, or until further order of court.’ ” The judgment of the trial court in this respect was reversed and remanded to the lower court for further proceedings. See also Barba v. Barba, 103 Cal.App.2d 395 , 396 [ 229 P.2d 465 ], where it was held that: “By virtue of the nature of the title by which the property is held by the parties, each is the owner of an undivided one-half interest therein in his separate right. In a matrimonial controversy 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.” In Jenkins v. Jenkins, 110 Cal.App.2d 663 , 665 [ 243 P.2d 79 ], it was held that: “In granting a divorce the court may award support money to the prevailing party and an allowance for the support, maintenance and education of children during their minority. (Civ. Code, § 139.) This section does not give the court authority to award to either party any of the separate property of the other, nor to require the payment of any sum in lieu of an assignment or division of it. (Tremper v. Tremper, 39 Cal.App. 62 [ 177 P. 868 ], . . .)

“The assignment of the use of the joint tenancy property here was in addition to the monetary awards, and not as security for payment. ’ ’

As to the order pertaining to the homestead, it will be noted that the wife’s amended complaint merely alleges that she intends to declare a homestead on the San Diego property. The court made no finding on the question of whether such a homestead was declared. Our examination of the transcript discovered no evidence of such a declaration having been made. The interlocutory decree merely provided that the wife would be awarded possession of the San Diego premises as the homestead for herself and the minor children until further order of the court. There is no evidence or finding that the wife ever conformed to Civil Code, section 1262 et seq. If there was a homestead declared, that fact should be set forth in the pleadings, with the allegation as to whether it was selected from community property or separate property.

The next serious question involves the validity of the award of a lump-sum alimony in the sum of $10,000 and ordering it and other obligations imposed on the husband to be secured by a lien upon his interest in all real property which was found to be the separate property of both husband and wife and the claim that the amount allowed was excessive. The husband cites Hall v. Hall, 42 Cal.2d 435 [ 267 P.2d 249 ]; Hill v. Hill, 150 Cal.App.2d 34 [ 309 P.2d 44 ]; Fox v. Fox, supra, 18 Cal.2d 645 ; and Civil Code section 146.

A lump-sum alimony allowance is authorized, under proper showing. (Scheibe v. Scheibe, 57 Cal.App.2d 336 , 343 [ 134 P.2d 835 ]; Honey v. Honey, 60 Cal.App. 759 [ 214 P. 250 ]; Haldeman v. Haldeman, 202 Cal.App.2d 498 [ 21 Cal.Rptr. 75 ].) In Fox, supra, 18 Cal.2d 645 , 646, it was held that in an action for divorce the court is without jurisdiction to assign the separate property of one of the spouses to the other, nor to require one to pay to the other any amount of money in lieu of an assignment or a division of it. (See also Civ. Code, § 146.)

The question arises as to whether the order creating the lien and ordering the security mentioned did, in effect, compel the husband to pay to the wife any money in lieu of an assignment or division of his property. (See De Soto v. De Soto, 133 Cal.App.2d 250 [ 283 P.2d 1052 ]; Bixby v. Bixby, 120 Cal. App.2d 495 [ 261 P.2d 286 ].) In Carter v. Carter, supra, 148 Cal.App.2d 845 , it was held that the most a divorce court can do with respect to joint tenancy property is to divide it equally, or perhaps declare a lien on the husband’s moiety as security for an alimony or support award. See also Loomis v. Loomis, 181 Cal.App.2d 345 [ 5 Cal.Rptr. 550 ], and Gonzalez v. Gonzalez, 152 Cal.App.2d 103 [ 312 P.2d 333 ].

It is to be noted that in the findings, the court found that: “Support and maintenance for plaintiff in the sum of $10,000.00 is a reasonable and necessary sum for her support, and in order to do equity between the parties on the basis of

It would appear from the findings and interlocutory decree that the order made in reference to the husband’s being compelled to execute security instruments in the form of a mortgage and trust deeds on his interest in the real properties to satisfy the lien imposed went beyond the jurisdiction of the court. It should, at most, be limited to the creation of a lien. (Honey v. Honey, supra, 60 Cal.App. 759 ; Maywood v. Maywood, 115 Cal.App.2d 339 [ 251 P.2d 1006 ]; Sanguinetti v. Sanguinetti, 9 Cal.2d 95 , 102 [ 69 P.2d 845 , 111 A.L.R. 342 ].)

It affirmatively appears that the trial judge would have awarded all of the husband’s title in and to the joint tenancy property to the wife if possible, but under the circumstances, being unable to do so, he resorted to the device of giving a judgment for $10,000 as claimed alimony, which would cover the value of the husband’s separate interest therein. This would, in effect, circumvent the strict provisions of the statute as held in Fox v. Fox, supra, 18 Cal.2d 645 , 646, where it was said: “... the court is not authorized to assign the separate property of one of the spouses to the other, nor to require one to pay to the other any amount in lieu of an assignment or division of it.” (Italics ours.)

It is apparent that the husband neither owns nor was awarded community property sufficient to pay a lump-sum alimony judgment within the year. He was awarded an account in Home Federal Savings and Loan Association of $800 and a tax refund check for $334.91, on condition he apply it to debts owed by the parties totaling about $2,200. He was also awarded a 1955 automobile, certain tools and furniture valued at $250, and a retirement fund valued at $100.

In connection with the cause heard on its merits, the wife has moved this court to dismiss the appeal on the grounds that the husband has accepted the benefits of the judgment appealed from, in that he was awarded $800 from the savings account and a $334.91 tax refund check, and that he has