Barker v. Barker

• Decision Date: 15 February 1956
• Citation: 139 Cal.App.2d 206,293 P.2d 85
• Court: California Court of Appeals Court of Appeals
• Parties: Edythe Marrenner BARKER, Plaintiff, Respondent and Appellant v. Jesse T. BARKER, Defendant, Appellant and Respondent. Civ. 20929, 21096.

Page 85

293 P.2d 85

139 Cal.App.2d 206

Edythe Marrenner BARKER, Plaintiff, Respondent and Appellant v. Jesse T. BARKER, Defendant, Appellant and Respondent.

Civ. 20929, 21096.

District Court of Appeal, Second District, Division 1, California.

Feb. 15, 1956.

Rehearing Denied March 12, 1956.

Hearing Denied April 11, 1956.

Hahn, Ross & Saunders, Los Angeles, for defendant-respondent.

Gang, Kopp & Tyre, Los Angeles, for appellant-appellant.

PER CURIAM.

Defendant appeals from a judgment decreeing that plaintiff is entitled to a divorce, and further decreeing that certain property is her separate property and not property of the community.

Plaintiff appeals from that part of an order made in the court below directing plaintiff to pay to defendant as attorney's fees on this appeal the sum of $7,500.

Responsive to issues tendered by the complaint and answer, the trial court made findings of fact which, insofar as pertinent to this appeal may be summarized as follows:

Plaintiff and defendant were married on July 23, 1944, and separated on July 17, 1953; that there were two children born of the marriage; that the defendant was guilty of extreme cruelty and had caused plaintiff grievous mental and physical suffering without fault on her part. The court made detailed findings as to these acts of cruelty. Included in these acts were instances of physical attack upon, and resultant injury to the plaintiff, these instances occurring both before and after their separation. The court further found that it was not true that the plaintiff had treated the defendant in a cruel and inhuman manner or caused him grievous mental or physical suffering; that the plaintiff was a fit and proper person to have custody of the minor children and that they should be awarded to her with the right of reasonable visitation in the defendant, the extent of these rights being set forth in detail; that immediately prior to the marriage plaintiff and defendant entered into a written ante-nuptial agreement; that it is not true that plaintiff procured defendant's execution of said ante-nuptial agreement by duress, undue due influence or fraud, and it was not true that said agreement had been cancelled or abrogated; that it is true that said agreement had remained in full force and effect during the marriage of plaintiff and defendant; that certain real and personal property, which is specifically described, was the separate property of the plaintiff and that certain personal property, specifically described, was the separate property of the defendant; that all property, real or personal, standing in the name of plaintiff or under the possession or control of plaintiff, including the items of property real and personal which were specifically described as heretofore mentioned, were the separate property of plaintiff, and that all personal property standing in the name of defendant, or in his possession or under his control, including but not limited to that specifically described, was the separate property of the defendant; that the household furniture and furnishings located in the residence of plaintiff and the Ford Station Wagon registered in the name of the defendant were community property, and that the household furniture and furnishings should be awarded to the plaintiff and the station wagon to the defendant; that all of the property of the plaintiff had been acquired from her earnings prior to or subsequent to marriage, and that the defendant had relinquished control to plaintiff of her earnings during the marriage, and that all of her earnings were her separate property; that for the calendar years 1945 to 1952 inclusive, income tax returns were prepared on behalf of plaintiff and defendant, and that said tax returns included the earnings of plaintiff and the earnings of defendant, and that such earnings were reported in joint income tax returns; that plaintiff paid all taxes payable under said income tax returns, except such portion of said tax as had been withheld from the earnings of defendant by his employer, and that such payments were made by plaintiff out of her earnings; that in filing such income tax returns and in making payment of said taxes, the plaintiff did not intend to transmute her separate property into community property, and that the making of said returns and the payment of said taxes did not transmute the separate property of plaintiff into community property; that said income tax returns were prepared by plaintiff's business manager without direction from plaintiff and without any knowledge on the part of plaintiff as to any significance between filing joint income tax returns and filing separate income tax returns.

By the interlocutory decree entered, the court decreed that the plaintiff was entitled to a divorce; that the defendant was enjoined from entering plaintiff's residence except pursuant to his rights of visitation upon the minor children, as granted by the decree. The custody of the minor children was awarded to the plaintiff, with rights of visitation in the defendant, which were fixed in detail. It was further decreed that all real and personal property standing in the name of or in the possession or in the control of plaintiff, including but not limited to certain property specifically described in the decree, was the sole and separate property of the plaintiff, and that all personal property standing in the name of or in the possession of or under the control of the defendant, including but not limited to said property therein described, was the separate property of the defendant. The decree awarded the household furniture and furnishings to plaintiff, and the Ford automobile to the defendant. It decreed that the ante-nuptial agreement was a fair and equitable agreement and was a valid and existing agreement between plaintiff and defendant and not void as against public policy. It was further decreed that the plaintiff was entitled to retain, as her sole and separate property, refunds, if any, of income taxes paid by plaintiff for the calendar years 1945 to 1952, both inclusive, and defendant was directed, at the request of plaintiff, to 'transfer to plaintiff as her sole and separate property, all his interest in claims for refunds of such income taxes, and to take such further action, execute and file all documents and other instruments which may be necessary, proper or expedient to evidence said transfer and to make such claim or claims for refund of such income taxes.' Plaintiff was ordered to pay any assessment of additional taxes with respect to the income of plaintiff and defendant for said years, except such portion thereof as might be due to the failure of defendant to report income for those years.

We have carefully examined the record in this matter and find that all of the findings, with the exception of one hereinafter mentioned, are fully supported by the evidence.

Defendant makes nine assignments of error. Seven of them are without merit, and the remaining two do not demonstrate any prejudicial error.

Appellant asserts that the trial court was without jurisdiction to order the defendant to sign and file claims for refund of income taxes, which refunds the court had found were plaintiff's separate property.

In a divorce proceeding the trial court does not have jurisdiction to award the separate property of one party to the other. Allen v. Allen, 159 Cal. 197, 113 P. 160; Fox v. Fox, 18 Cal.2d 645, 117 P.2d 325; Conard v. Conard, 5 Cal.App.2d 91, 41 P.2d 968.

In a divorce proceeding, however, the court must, if the issue is tendered by the pleadings, try the issue of title to property between the parties, that is, decide whether certain property is the separate property of one of the parties or the joint or common property of the parties or community property. Here the complaint alleged that there was no community property and that all property, both real and personal, in plaintiff's possession was her sole and separate property. The answer denied this allegation and affirmatively alleged that certain specified property in the possession of the plaintiff was community property and that other additional community property in plaintiff's possession, the nature and extent of which was unknown to the defendant, was community property. The parties thus tendered to the court the issue of the title to the property in question and the court had jurisdiction, and it was its duty, to determine that issue and to quiet the title of the parties accordingly. Huber v. Huber, 27 Cal.2d 784, 793, 167 P.2d 708; Hopkins v. Detrick, 97 Cal.App.2d 50, 217 P.2d 78; Citizens Nat. Trust & Savings Bank of Los Angeles v. Hawkins, 87 Cal.App.2d 535, 541, 197 P.2d 385; Mergenthaler v. Mergenthaler, 69 Cal.App.2d 525, 528, 160 P.2d 121.

When the pleadings in an action for divorce tender the issue as to whether certain property is the separate property of one of the parties, or community property, they present to the court a cause of action to quiet title, Huber v. Huber, supra, 27 Cal.2d 793, 167 P.2d 708, and thus invoke the equity powers of the court. A court of equity will, when its powers are invoked, dispose of all issues with respect to the property as to which they are invoked, and make such orders as are necessary to make its decree effective. Mergenthaler v. Mergenthaler, 69 Cal.App.2d supra, 528, 160 P.2d 121 ¹; Rolapp v. Federal Building & Loan Ass'n, 11 Cal.App.2d 337, 342, 53 P.2d 974.

In the case at bar the court had held that the taxes on account of which refunds might be made had been paid by the plaintiff out of her separate property and that such refunds were her separate property. Certainly a court of equity should not leave the plaintiff to some other proceeding to enforce her rights to these refunds. It having been adjudged that the plaintiff was the owner of the refunds, defendant is not injured by being compelled to sign and cause to be filed claims for refund...