Opinion
Hearing Granted May 2, 1962.
Opinion vacated 25 Cal.Rptr. 87, 375 P.2d 55.
Kane & Canelo, Thomas J. Kane, Jr., Merced, for appellant and cross-respondent.
Natalie J. Holly, San Rafael, for respondent and cross-appellant.
BROWN, Justice.
This is an action wherein both parties sued for divorce, both the wife's complaint and the husband's cross-complaint charging cruelty.
The trial court found, in part, that: The parties lived together as husband and wife for approximately 9 years; they have a daughter 9 years of age and a daughter 3 years of age at time of trial; defendant has been guilty of cruelty as charged; he owns as his separate property (a) 38 acres of land known as the Juniper-Atwater ranch valued at $106,400; (b) 2.422 acres across the street from the Juniper-Atwater ranch, valued at $7,266; (c) 39.842 acres of land known as the Jordan-Atwater ranch, valued at $13,945; (d) all farming equipment, trucks, tractors and cattle; (e) one 1959 Oldsmobile automobile and certain household furniture, of an aggregate value of $24,178.80; and (f) a savings account in the Bank of America, Atwater Branch, in the amount of $42,513.17; that the parties own, as joint tenants (1) funds on deposit in the Stanislaus-Merced Savings & Loan Association in the amount of $8,500; and (2) real property designated herein as the Herman Street property; and the parties own no community property.
By the interlocutory decree of divorce, plaintiff was granted a divorce, the property being awarded in accordance with the findings. Plaintiff was awarded (a) custody of the minor children, with visitation privileges granted to defendant; (b) $75 per month per child for their support and maintenance; (c) alimony of $7,200 payable in a lump sum; (d) the use of the 1959 Oldsmobile and the household furniture for a period of one year; (e) exclusive possession of the Herman Street property until further order of the court; (f) $3,000 attorneys' fees; and defendant was enjoined from molesting, annoying or striking the plaintiff.
Limited appeals were filed by both parties, which by stipulation, are herein treated as cross-appeals.
Issues common to both appeals are: (1) the amount of support and maintenance for the minor children; (2) determination of the character of real and personal property; (3) use in plaintiff of the automobile and furniture for one year; and (4) plaintiff's exclusive possession of the Herman Street property until further order of the court. In addition, plaintiff's appeal embraces the alimony award and defendant's appeal includes the award of attorneys' fees and the injunction.
For clarity, the points on appeal will be considered out of the above order.
Plaintiff's Use of Furniture and Autobile
The judgment was entered July 26, 1960. More than one year having elapsed, both parties have stated the matter is moot. We agree. No purpose would now be served by discussing the propriety of the order.
Award of Attorneys' Fees
Although presented on appeal, at oral argument defendant's counsel conceded the trial court did not abuse its discretion in making the award of attorneys' fees and voluntarily abandoned this issue. We agree that there was no abuse of discretion on the part of the court and deem this portion of the appeal abandoned.
The Injunction
Defendant contends that the words 'annoying' and 'molesting' are so vague and uncertain as to render the injunction void. The words 'annoy' and 'molest' have been defined in the case of People v. Pallares, 112 Cal.App.2d Supp. 895, 901, 246 P.2d 173, and quoted with approval in the case of People
"It seems equally clear that the meaning of the words 'to annoy or molest', as employed in the Code section, are sufficiently definite and certain to advise the public generally what acts and conduct are prohibited. Annoy means to disturb or irritate, especially by continued or repeated acts; [citations] 'to weary or trouble; to irk; to offend; to disturb or irritate, esp. by continued or repeated acts; to vex; to molest; * * * harm; injure.' (Webster's New International Dictionary second edition.)
"The same dictionary defines 'molest' as, 'to interfere with or meddle with unwarrantably so as to injure or disturb'. Molest is, in general, a synonym for annoy. The term 'molestation' always conveys the idea of some injustice or injury. Molest is also defined as meaning to trouble, disturb, annoy or vex."
There was testimony that defendant followed plaintiff about the town; locked her out of the house at night to the extent that on one occasion it was necessary for for her to enlist the aid of a policeman to gain entry; and that he telephoned her frequently without good reason. On two occasions defendant parked his pickup in front of property adjacent to the family home; a strange man emerged therefrom, came to plaintiff's door, and asked her if there was a 'sporting girl' there. This testimony amply supports the conclusion that defendant was pursuing a course of conduct designed to irk, offend, disturb, irritate or vex the plaintiff within the clear meaning of the words 'annoying or molesting,' and the injunction couched in those words sufficiently apprised defendant of the type of acts he must refrain from doing. The injunctive order is not void for uncertainty.
It is next claimed that the inclusion of the word 'striking' in the injunction constituted error. We agree. There is not one scintilla of evidence that defendant struck, or threatened to strike, the plaintiff. It was therefore erroneous to include the word 'striking' in the order and it must be deleted.
Support and Maintenance of Minor Children
Plaintiff's appeal from this portion of the judgment is predicated upon the contention that an allowance of $75 per month for each child is inadequate on the basis of defendant's net worth. Reviewing courts have stated and restated with rhythmic regularity the appellate principle that the amount of support and maintenance for minor children of divorced parents rests in the sound discretion of the trial court, and its award will not be disturbed, abuse of discretion absent. (Karlslyst v. Frazier, 213 Cal. 377, 381, 2 P.2d 362; Bowman v. Bowman, 149 Cal.App.2d 773, 778, 308 P.2d 906.) Plaintiff failed to adduce evidence as to the basic needs of the children. She merely testified that she had no funds save those received from defendant. She has therefore shown no abuse of judicial discretion.
Turning to defendant's appeal on this point, he contends the award constituted an abuse of discretion. In support of his contention, he argues his inability to pay; claims that during the years of the marriage his average net income as shown by copies of income tax returns introduced in evidence was approximately $150 per month and that the entire family lived on that amount. He admits that after separation and prior to trial, he gave to his sister $42,000 from funds which were admittedly his separate property, thus diminishing his assets. The record discloses that defendant owns property of a value in excess of $100,000. A trial court, in awarding child support, is not foreclosed by figures contained in tax returns when there is direct testimonial evidence that during the marriage defendant supported his family; expended approximately $15,000 in real The Award of Alimony
Plaintiff contends that the award of $7,200 in a lump sum as and for her support and maintenance constitutes an abuse of discretion on the part of the trial court. The argument in support of her contention is novel, but is not supported by case authority. She views the award of alimony from an investment concept and states that if invested at 5 per cent, the return would be $30 per month; if invested at 6 per cent, the return would be approximately $35.16 per month; and points out that either sum is inadequate to permit her to maintain decent standards of living and devote her full time and attention to the minor children. A trial court derives power from section 139 of the Civil Code to compel a guilty defendant '* * * to make such suitable allowance for support and maintenance of the other party for his or her life, or for such shorter period as the court may deem just, having regard for the circumstances of the respective parties, * * *.' It cannot be said that the words 'suitable allowance' contemplate such a sum as would, if wisely invested, provide a return sufficient to maintain a decent standard of living, leaving the principal sum unimpaired. Rather, it is such sum as the court deems just, 'having regard for the circumstances of the respective parties.' The testimony in the case at bar showed that prior to marriage, plaintiff was employed as a bookkeeper. True, she did not work during marriage but there is nothing in the record to indicate that she is now incapable of being gainfully employed. She is not in ill health. At time of trial she was 35 years of age. Neither health nor age should be a bar to employment. The lump sum award provides a financial cushion through the period of adjustment following a divorce and gives plaintiff an adequate opportunity to be reestablished in a gainful occupation. It is well established that an award of alimony is within the discretion of the trial court, and its award will not be disturbed on appeal, unless it clearly appears upon the face of the entire record that such discretion has been abused (Baldwin v. Baldwin, 28 Cal.2d 406, 413, 170 P.2d 670); and the trial court may award a gross sum (Newbauer v. Newbauer, 95 Cal.App.2d 36, 39, 212 P.2d 240). No abuse of discretion having been shown and the record disclosing none, this portion of the judgment must be affirmed.
Determination of Character of Real and Personal Property
It is conceded that defendant brought to the marriage certain real and personal property. That separate property is no concern of ours and shall not be mentioned herein except insofar as it affects the contentions of plaintiff and defendant relating to acquisitions after marriage.
Plaintiff contends that all acquisitions and all payments made after marriage on executory contracts entered into by defendant prior to marriage constitute community property. It is defendant's contention, and the trial court so determined, there is no community property. Prior to the 1950 marriage defendant owned the 40-acre Jordan-Atwater ranch and a 2.422-acre parcel of land. He leased from his father an additional 40 acres. In 1949 he agreed to purchase from his father the 38-acre Juniper-Atwater The trial court found the sum of $8,500 on deposit in the Stanislaus-Merced Savings & Loan Association was joint tenancy property and that plaintiff was entitled to one-half thereof, or $4,250; the Herman Street property was joint tenancy property; and all other property was the separate property of defendant. The trial court's finding that property is either separate, community or joint in character is binding and conclusive on a reviewing court if it finds sufficient support in the evidence. (Mears v. Mears, 180 Cal.App.2d 484, 500, 4 Cal.Rptr. 618.) The question, then, is whether the trial court's findings find substantial support in the evidence briefly outlined above.
In seeking the answer we are bound by certain well-established applicable rules, as follows: All property owned by a husband or a wife before marriage, and that acquired afterwards by gift, devise, or descent, with the rents, issues and profits thereof, is his or her separate property. (Civ.Code, §§ 162, 163.) All other property acquired after marriage by either husband or wife, or both, is community property (Civ.Code, § 164) and the burden of proof is on the spouse seeking to establish that such property is in fact, separate. (Falk v. Falk, 48 Cal.App.2d 762, 767, 120 P.2d 714; Kenney v. Kenney, 128 Cal.App.2d 128, 134, 274 P.2d 951.) If the property in issue, or the source of funds with which it is acquired, may be traced, a change in form or identity during marriage will not alter its character as separate property (Mears v. Mears, supra, 180 Cal.App.2d 484, 500, 4 Cal.Rptr. 618). Separate property may become community property by the process of commingling in such a manner as to make segregation impossible, thus requiring the application of the presumption that it is community property. (Grolemund v. Cafferata, 17 Cal.2d 679, 683, 111 P.2d 641; Kenney v. Kenney, supra; Falk v. Falk, supra.) If separate funds and community funds are ascertainable or allocable, the property is not so commingled that all of the property becomes community in character. (Tassi v. Tassi, 160 Cal.App.2d 680, 689, 325 P.2d 872; Huber v. Huber, 27 Cal.2d 784, 792-793, 167 P.2d 708.)
At the time of marriage defendant owned 42.422 acres of land; he had agreed to purchase 38 acres of land; and he owned a leasehold interest in an additional 40 acres, as his separate property. All income during marriage, except interest on his separate bank account, was derived from his separate realty. Plaintiff contends that income derived from farming operations conducted on the leasehold was community property, and that derived from the property agreed to be purchased should be apportioned between separate and community. But the annual rental on the leasehold and the balance paid after marriage on the Juniper-Atwater property flowed Plaintiff further contends that since the skill, industry and energy of a spouse belong to the community, it follows that the fruits of defendant's labor are community property. The Supreme Court of this state answered her contention more than 50 years ago in the case of Estate of Pepper, 158 Cal. 619, 112 P. 62. In that case, Pepper owned as his separate property, land on which he conducted a nursery business, devoting to its conduct his entire time, skill and energy. It was held that the rents, issues and profits of this business were the separate property of Pepper. At pages 623-624, 112 P. at page 64, the court said:
'Earnings, acquired by the exercise of the industry or skill of either husband or wife, are to be credited to the community. On the other hand, the products of land, separately owned by either spouse, and cultivated by either or both, become the separate property of the one owning the land. The appellant does not dispute the proposition that, if Pepper had, year after year, sown his land to grain, the resulting crops would have formed a part of his separate estate. But it is argued that, in the case of the nursery, the principal element in the success of the venture was the industry, skill, and attention of Pepper, and that the use of the land was merely incidental to what was, in effect, a commercial enterprise. We are unable to see that this argument furnishes a sufficient ground of distinction. In any agricultural enterprise, the labor and skill of man are essential to success. An orchard or a grain field must be cultivated and cared for. The resultant product is in part due to the processes of nature operating upon the land, and in part to the intelligent application of manual labor to the soil. It is, in the nature of things, impossible to apportion the crop so as to determine what share of it has come from the soil and what share from the exertions of man. The product must be treated as a whole, and, if it is the growth of land separately owned, it is the separate property of the owner of the land. [Citation.] The case of the nursery differs from that of the orchard or the grain field, if at all, only in the fact that the enterprise may require the application of personal skill, labor and attention in a greater degree. But the occupation is, none the less, one conducted upon land, and the product sold is the growth of that land.'
In the case at bar, defendant planted his land to alfalfa, grain, sweet potatoes and watermelons. His dairy operation did not include processing or bottling, which are purely commercial aspects of the dairy business. Defendant's production was sold to a creamery. The keeping of cows, raising of calves, and planting to crops engaged in by defendant on his separate property brings this case within the ambit of Pepper. We think that in California the rule has been too long declared to leave the matter open. There was no error in the trial court's determination that all acquisitions after marriage were acquired from separate property sources.
Plaintiff's contention that separate funds were commingled with community funds in the commercial account in such a manner as to make segregation impossible and hence, the whole is community property, has been answered by our conclusion that all funds which formed the deposits in the commercial account stemmed from the separate property of defendant. There can be no commingling of separate and community property, where there is no community property.
Plaintiff's further argument that the property found by the trial court to be joint tenancy property was, in fact, community in character, has likewise been answered. We turn to defendant's contention that the property found to be joint tenancy property was, in fact, his separate property. It is claimed that the purchase price of the Herman Street property and the deposits made in the savings and loan account flowed from rents, issues and profits of the separate property of the defendant. So far, we are in accord. But it does not necessarily follow that such properties are separate in character.
The law with reference to property held by husband and wife in joint tenancy was reviewed in the case of Schindler v. Schindler, 126 Cal.App.2d 597, 272 P.2d 566. At page 601, 272 P.2d at page 568, the court said:
'The statutory presumption that property acquired after marriage except by gift, bequest, devise, or descent is community property, Civil Code, §§ 162, 163, 164, is successfully rebutted by evidence that the property was taken in joint tenancy. [Citation.] The fact that a deed was taken in joint tenancy establishes a prima facie case that the property is in fact held in joint tenancy. [Citation.] There is actually a presumption that the property is as described in the deed and the burden is on the party who seeks to rebut the presumption. [Citation.] The form of the deed cannot be lightly disregarded. Even with evidence of contrary intent, the deed alone creates a conflict of fact. [Citation.] As stated in In re Rauer's Collection Co., 87 Cal.App.2d 248, 257, 196 P.2d 803, 809, 'The form of the conveyance is itself some evidence of the intent to change it from community property, and creates a rebuttable presumption to that effect.''
In the present case, the Herman Street property was purchased in 1952 and completely paid for in 1957. Title was taken in the names of plaintiff and defendant as joint tenants. The form of the deed then created a rebuttable presumption that the parties intended their ownership to be as joint tenants. The parties agree, however, that the Bank of America, which handled the purchase transaction, was not instructed by either to so frame the deed. The defendant, in support of his contention that this realty is separate property, testified that he did not know the property was held in joint tenancy, and that at the time of the purchase, he did not intend to make a gift of a joint tenancy interest to plaintiff. There is no evidence that he so advised her at any time prior to trial. Such testimony at time of trial of a divorce action is not unusual. The unrevealed intention of one party, alone, for property placed in joint tenancy to remain community (or separate) is ineffectual to rebut the presumption raised by the form of the deed (Socol v. King, 36 Cal.2d 342, 345, 223 P.2d 627); nor may the prima facie presumption created by the form of the deed be rebutted solely by evidence as to the source of the purchase price of the property (Schindler v. Schindler, supra, 126 Cal.App.2d 597, 601, 272 P.2d 566). The property was purchased shortly after the marriage for use, and was used, as the family home. Defendant instructed plaintiff to go to the bank and sign 'papers' in connection with the purchase. It follows that he must have intended that she have some interest in the property. The form of the deed, on the one hand, and the testimonial evidence, on the other, created a conflict in the evidence which was resolved by the trial court in favor of plaintiff. (De Puy v. Sullivan, 168 Cal.App.2d 292, 293, 335 P.2d 750; Cox v. Cox, 82 Cal.App.2d 867, 871, 187 P.2d 23.)
The same well-settled principles are applicable to bank accounts held by husband and wife as joint tenants (Cash v. Cash, 110 Cal.App.2d 534, 538, 243 P.2d 115). It is for the trial court to determine whether or not a presumption has been overcome and its determination will not be disturbed on appeal unless an abuse of discretion is clearly shown. In the present case, the trial court could fairly conclude that defendant failed to overcome the presumption that the joint account and the Herman Defendant complains that the court erred in its finding relating to the joint account. The gravamen of his complaint is that at the time the decree was made, such an account was not in existence. The evidence supports his statement. He withdrew the account immediately after the separation. There is no testimony that it was necessary to do so in order to provide for his family. No testimony was adduced as to the disposition of the funds. At oral argument his counsel argued that the money was gone--gone as though he had gone to Las Vegas and gambled it away. The argument does not impress this court. The account was in existence when defendant voluntarily left the family home on March 29, 1959, the date alleged to be the date of separation. He is accountable to plaintiff for one-half of the funds then on deposit, which one-half the court found to be $4,250.
Plaintiff's Exclusive Possession of the Herman Street Property
Defendant lastly contends that the court erred in granting to plaintiff the exclusive possession of the Herman Street home until the further order of the court. At oral argument plaintiff's counsel conceded error. Although concessions of counsel or parties as to error relating to a question of law are not binding on this court, since the point has been conceded, we do not deem a full discussion necessary. Suffice it to say that the court, in a divorce action, may not award the wife exclusive possession of joint tenancy property. (Barba v. Barba, 103 Cal.App.2d 395, 396, 229 P.2d 465; Jenkins v. Jenkins, 110 Cal.App.2d 663, 665, 243 P.2d 79.) The rule is one of jurisdiction, rather than discretion. (Carter v. Carter, 148 Cal.App.2d 845, 849, 307 P.2d 630; Reid v. Reid, 112 Cal. 274, 277, 44 P. 564.) The provision of the interlocutory decree under consideration which grants to plaintiff the exclusive use of the joint tenancy property is in excess of jurisdiction and must be reversed.
The matters which we have herein stated must be reversed do not render the entire judgment reversible. The judgment is modified and the trial court is instructed to reframe the findings of fact and conclusions of law and the judgment in the following respects: (1) by deleting the word 'striking' from the injunction; and (2) by striking the order granting plaintiff the exclusive possession of the joint tenancy real property.
As so modified, the judgment is affirmed. Each party shall bear his or her own costs.
CONLEY, P.J., concurs.
STONE, Justice.
I concur. In doing so, I should like to point out that I concur in that portion of the opinion entitled 'Determination of Character of Real and Personal Property' only because Estate of Pepper, 158 Cal. 619, 112 P. 62, cited in the majority opinion, has never been overruled. It seems to me that in determining community and separate property interests, the Pepper case makes a discriminatory distinction between agricultural and business enterprises. Agriculture in California is, for the most part, highly commercialized and it is becoming more and more specialized. In many instances agricultural enterprises are big and valuable businesses. To arbitrarily apply the rule of Pepper in all cases concerned with agricultural interests could result in gross inequities. It would appear reasonable to apply the same general principle in determining community and separate property interests whether it be in an agricultural or in a commercial enterprise. There is some support for this position in Jenkins v. Jenkins, 110 Cal.App.2d 663, 666, 243 P.2d 79.