Fawcett v. Pinney

We must decide here whether a wife whose action for divorce is pending at the time of her husband’s death is entitled to a family allowance payable out of his estate. Initially we hold that her right to such allowance depends upon her right to support from him at the time of his death. As we shall explain, the mere fact that the parties were separated and divorce proceedings were pending when the husband died, does not of itself foreclose her claim. Additionally we hold that the order pendente lite in the divorce proceedings awarding her temporary support for a limited time but expiring before the husband’s death did not, under the facts before us, amount to an adjudication that she had no right to support from him at the time of his death so as to preclude her claim for an allowance out of his estate. We believe that the probate court should make its own determination as to whether at that time she was invested with her legal right to support or had lost it by her conduct and should similarly determine, upon finding favorably to the widow, what allowance, if any, is reasonably necessary for her maintenance. We have therefore concluded that the order denying the family allowance should be reversed.

Appellant and decedent were married on May 20, 1932, and separated on May 14, 1963. There were four children born issue of the marriage, all of whom were over the age of 21 years at the time of the order appealed from. On June 7, 1963, appellant commenced an action for divorce against decedent in the court below.^[1] Upon the hearing of an order to show cause issued therein, the court on June 24, 1963, made an order pendente lite^[2] ordering among other things

On the same day, January 2, 1964, which was the date set for the hearing, appellant filed a declaration^[3] and a memorandum of authorities in support of her petition. In her declaration she stated that at the time of decedent’s death, she and decedent had been married for more than 30 years; that in June 1963 she filed a complaint for divorce against decedent and “on September 10, 1963, my husband and I met and reconciled; we agreed that we did not want a divorce and on that day, or the following day, I informed my attorney in that matter that I wanted the divorce stopped; that my husband said he had to remain under a doctor’s care in San Mateo for the time being and he returned to my daughter’s home there; that on or about October 7, 1963, I visited my husband, we had a long talk and both agreed that we were sorry about the divorce proceeding; that I spent the last two nights of his life in the hospital with my husband.” Respondent-executor filed no counter-declaration.

At the hearing on January 2, 1964, the court heard arguments of counsel but, so far as the record before us discloses, took no testimony. At oral argument counsel for appellant stated to us, without contradiction by counsel for respondent, that appellant was present at the above hearing, took the witness stand but, for some reason not made clear to us either by the instant record or counsel for the parties, gave no testimony. Nor does the present record disclose any offer of

On January 24, 1964, the probate court filed its formal order denying the petition for family allowance. The court specifically found therein that no inventory had been filed; that decedent left surviving him his widow, petitioner, but no minor children; and “that at the time [of] decedent’s demise, the Petitioner and decedent were separated. Further that a divorce proceeding was pending and by order in said proceeding Petitioner was not entitled to further support and no duty was incumbent on decedent to support petitioner at the time of decedent’s demise. The Court further finds no change in circumstances of Petitioner from the time said order was made.’’ (Italics added.) Upon the foregoing findings, the court ordered that the petition be denied.

The positions of the parties before us are sharply divergent. Appellant contends that the finding that “at the time [of] decedent’s demise, the Petitioner and decedent were separated’’ is not supported by the evidence; that the finding that “by order in said [divorce] proceeding Petitioner was not entitled to further support and no duty was incumbent on decedent to support petitioner at the time of the decedent’s demise’’ is not supported by the evidence and is against the law; that the finding of “no change in circumstances of Petitioner from the time said order was made’’ is not supported by the evidence; and that under all the circumstances the denial of her petition was an abuse of discretion. Respondent-executor, on the other hand, contends that the order pendente lite made in the divorce proceedings precluded a family allowance; and that appellant waived her right to such allowance by her conduct.

Section 680 of the Probate Code provides that a widow is

Respondent’s position is that appellant had no right to support at the time of decedent’s death. He argues that since a family allowance is merely the continuance of the decedent’s duty of support, the order pendente lite by providing support for a limited period of three months, which expired before decedent’s death, was a clear adjudication by the court in the divorce action that appellant was entitled to no additional support. Thus it is argued since the court below found no change in appellant’s circumstances at the time of death, appellant was then without right of support. Respondent rests this argument chiefly on the Estate of Brooks, supra, 28 Cal.2d 748 and the Estate of Fallon, supra, 49 Cal.2d 402 . We examine these cases more closely.

In Brooks the spouses had separated approximately four years before the husband’s death and had thereafter engaged in certain inconclusive divorce and other litigation. Approximately eight months before the husband’s death, the wife was awarded an interlocutory decree of divorce which made no provision for her support. Before the divorce became final, the husband died. The wife thereupon applied for and received a family allowance and probate homestead. After examining two irreconcilable lines of decisions, the court, as we have already pointed out, chose that line of decisions enunciating the rule that the wife’s right to a family allowance is conditioned upon her right to support at the time of her husband’s death. Observing that “It is settled in this state that a wife who obtains an interlocutory decree of divorce making no provision for her support is not entitled to support. (London G. & A. Co. v. Industrial Acc. Com,., 181 Cal. 460 , 465-466 [ 184 P. 864 ].)” ( 28 Cal.2d 748 , 755), the court reversed the order granting the family allowance and homestead.

London G. & A. Co., upon which the court in Brooks rested its reversal, held that while the interlocutory judgment of

In Estate of Fallon, supra, 49 Cal.2d 402 , the spouses had filed reciprocal divorce actions about ten years before the husband’s death. Both parties were denied divorces but the court awarded the wife support of $250 a month for one year only pursuant to section 136 of the Civil Code.^[6] This judgment was affirmed on appeal. The husband thereupon made the support payments for the year as directed and then stopped. He died seven years later. During this seven-year period the parties lived separate and apart and the wife received no further support from him. The Supreme Court, in reversing an order granting the wife a family allowance out of the husband’s estate, considered the decree made in the divorce action denying a divorce to both parties but awarding the wife support for a limited time as analogous to a decree of separate maintenance. Relying on its decision in Monroe v. Superior Court (1946) 28 Cal.2d 427 [ 170 P.2d. 47 -3]^[7] the court held that the wife, while not receiving support payments

To establish her claim of reconciliation at the date of decedent’s death, appellant attacks the court’s finding that “the Petitioner and decedent were separated” as being unsupported by the evidence. We do not agree. While appellant stated in her declaration in support of her petition that the parties met and reconciled on September 10, 1963, and, while respondent filed no declaration controverting such statement,^[8] there is evidence supportive of the finding in the divorce proceedings of which the trial court took judicial notice. The county clerk’s file which is a part of the instant record (see fn. 1, ante) discloses that on September 17, 1963, one week after the claimed reconciliation, appellant through her then counsel^[9] obtained ex parte an order modifying the order pendente lite dated June 24, 1963. Such order provided “that commencing on the 17th day of September, 1963, plaintiff is allowed to occupy the parties marital residence commonly known as 399 Ellington Avenue, San Francisco, California. That said occupancy shall not be exclusive and may be equally enjoyed by defendant.” At oral argument, appellant contended that the securing of such order was not inconsistent with a reconciliation between the parties and that it was necessary for appellant to formally terminate her exclusion from the family residence. The securing of the ex parte order, without further explanation, seems to us to be susceptible of different inferences—one that appellant, having become reconciled, desired formal court approval of her reoceupation of the premises and the other that appellant obtained authority to reoccupy the house in the course of continuing the divorce proceedings. The latter inference is fortified by the following circumstances in the divorce record: On September 24,1963, two weeks after the claimed reconciliation, decedent’s counsel filed a memorandum to set the

However the foregoing finding on the separation of the parties is not, nor can it reasonably be construed as, a finding that such separation resulted either from appellant’s unjustified abandonment of decedent or from a mutual agreement of the parties so as to abrogate appellant’s right to support.^[10] (Civ. Code, § 175 ; Estate of Bose, supra, 158 Cal. 428 , 429; Volkmar v. Volkmar, supra, 147 Cal. 175 , 177.) Nor would either of such findings be justified by the evidence. There is no evidence in this record that appellant abandoned decedent without justification. Nor is there any evidence that the spouses separated by agreement. Pendency of a divorce action does not of itself establish separation by mutual consent. Upon the principle that a judgment is a contract, an interlocutory decree of divorce may have the effect of an agreement to live separate and apart (London G. & A. Co. v. Industrial Acc. Com., supra, 181 Cal. 460 , 466-467) but it does not logically follow that the commencement of an action for divorce constitutes such an agreement. In summary, the court merely found that the parties were separated. Such a finding does not of itself establish appellant’s abandonment of her husband or her loss of her right to support from him (Estate of Fallon, supra, 49 Cal.2d 402 , 404; Estate of Coons, supra, 107 Cal.App.2d 531 , 536; Estate of Cooper, supra, 97 Cal.App.2d 186 , 193) and is not therefore sufficient by itself to support an order denying her a family allowance.

Clearly the pendente lite order was not an adjudication such as that made by the judgments in Brooks and Fallon. As distinguished from those cases, it was not an order made after or in conjunction with the determination of the divorce action on its merits. (See Wilson v. Superior Court, supra, 31 Cal.2d 458 , 461.) Indeed its purpose was not to determine the merits at all but solely to preserve the family and the wife’s separate property intact until the court eventually determined the ease on the merits. (Spreckels v. Spreckels (1952) 111 Cal.App.2d 529 , 534 [ 244 P.2d 917 ].) The order pendente lite was therefore essentially different from the judgments entered after a determination of the merits in Brooks and Fallon which, as we have pointed out, were tantamount to an agreement to live separate and apart (London G. & A. Co. v. Industrial Acc. Com., supra, 181 Cal. 460 , 466-467) without provision therein for the wife’s support (Estate of Brooks, supra, 28 Cal.2d 748 , 750 ; London G. & A. Co. v. Industrial Acc. Corn., supra) or with a provision for the wife’s support for a limited time only. (Fallon v. Fallon, supra, 83 Cal.App.2d 798 , 806.)

This essential difference becomes manifest upon a consideration of the character of the order here under discussion. The authority for such an order is found in section 137.2 of the Civil Code.^[11] Pendente lite allowances and permanent allowances differ fundamentally in nature (Wilson v. Superior Court, supra, 31 Cal.2d 458 , 462-463) and function

Furthermore, as already noted, on September 17, 1963, and before the expiration of the three-month period, the same judge who rendered the order pendente lite issued an ex parte order modifying it so as to allow appellant to occupy and enjoy the marital residence equally with decedent. The record shows that pursuant to such order appellant moved back into the family dwelling and was occupying it at the time of the hearing on the petition for family allowance.^[12] Presumably, although the record is silent on the point, appellant’s husband at all times paid for the upkeep and maintenance of such residence—the taxes, insurance, utilities, and other items of maintenance. The sparse record^[13] and briefs before us do not precisely state whether the family dwelling was community property or the husband’s separate property. In view of the order of exclusion made in the divorce proceedings, it is a reasonable conclusion that it was not appellant’s separate property.^[14]

The family dwelling was then either community property or the separate property of the husband. If community property, he had the management and control of it subject to statutory restrictions (Civ. Code, §§ 161a, 172a) and was not deprived of such management and control by the pendency of the divorce proceedings against him. (Harrold v. Harrold (1954) 43 Cal.2d 77 , 81 [ 271 P.2d 489 ] ; Lord v. Hough (1872) 43 Cal. 581 , 585; Croxsonsr. Croxson (1954) 130 Cal.App.2d 50 , 52 [ 277 P.2d 864 ]; Chance v. Kobsted (1924) 66 Cal.App. 434 , 437 [ 226 P. 632 ].) If separate property, it is a reasonable assumption that he was paying for its upkeep and maintenance. In either event, therefore, it appears that