Beck v. Beck

• Decision Date: 24 May 1966
• Citation: 242 Cal.App.2d 396,51 Cal.Rptr. 491
• Court: California Court of Appeals Court of Appeals
• Parties: Herman J. BECK, Plaintiff, Cross-Defendant and Respondent, v. Mary Margretta BECK, aka Minnie Beck, Defendant, Cross-Complainant and Appellant. Civ. 22542.

Page 491

51 Cal.Rptr. 491

242 Cal.App.2d 396

Herman J. BECK, Plaintiff, Cross-Defendant and Respondent, v. Mary Margretta BECK, aka Minnie Beck, Defendant, Cross-Complainant and Appellant.

Civ. 22542.

District Court of Appeal, First District,

Division 1, California.

May 24, 1966.

Lally & Martin, Thomas W. Martin, Sacramento, for appellant.

Smith & Burstein, Jack B. Burstein, Vallejo, for respondent.

SIMS, Justice.

Defendant and cross-complainant wife, who was awarded an interlocutory decree of divorce from plaintiff and cross-defendant husband, and $100 per month alimony, has appealed from that part of the decree which awards to the husband, as a portion of the community property, one-half of the funds on deposit in a certain savings account which stands in her name alone. She expressly attacks the portion of the findings of fact and conclusions of law upon which that provision of the decree is predicated as unsupported by the evidence, and contends that the record compels a finding that the entire sum on deposit is her separate property.

More specifically, the wife asserts that the sum on deposit represents her one-half share of the proceeds of the sale of certain real property which was given to the couple as, and held by them as, joint tenants. The husband contends (1) that although the conveyance was couched in terms of joint tenancy, the real property was received by the couple and held by them as community property; (2) that, regardless of the status of the real property, the proceeds were received and held by them as community property; and (3) that in any event, the decree properly awards him one-half the sum on deposit, because if each party was a true joint tenant in the property at the time of its sale, that status attached to all of the proceeds of the sale and could not be defeated by the unilateral act of one joint tenant in appropriating a portion of the proceeds to her individual account without the consent of the other. The wife counters this last contention by asserting that the evidence conclusively shows that the husband agreed to and acquiesced in a division of the proceeds, and recognized her right to hold the portion now represented by the savings account as her separate property.

It is concluded, for the reasons hereinafter set forth, that the sum in dispute never attained the character of community property, and that the case should be reversed and remanded for a determination of whether that fund retained its status as property held in joint tenancy, or represents the wife's share of the proceeds as her separate property.

The facts in dispute and the conflicting inferences which may be drawn from all of the evidence may be reviewed more appropriately in connection with the applicable law. The unimpeached elements of the framework and background on which this picture of marital discord is delineated are as follows: The parties married August 2, 1929 and have one child, an adult daughter. After a stormy marriage they separated for the last time September 30, 1962. Their first connection with the property, which ultimately produced the fund which is the vortex of this controversy, was in 1948 or sometime before, when, at the request or the suggestion of the husband's father, they came to Fair-field to settle on a 19-acre plot owned by him. This property subsequently was improved with a three-room apartment and a three bedroom home and some outbuildings by the efforts of the husband as applied with materials and other labor purchased originally with funds supplied by the father and subsequently augmented by a small loan after the couple acquired title. By deed recorded December 28, 1953 which recites, 'Hans Beck grants to Herman J. Beck and Mary M. Beck, husband and wife, as joint tenants, * * *' the father conveyed the property to the couple.

Thereafter the husband engaged in business as a grading and paving contractor, and 'made a living off of it * * * for a number of years' until he met with reversals around 1960 and 1961. He accumulated machinery, equipment and tools which were fully paid for by 1958 either from the proceeds of the business, money given him by his father for the house, or money inherited after his father's death in September 1954. In November 1963 he estimated the value of this personal property at $10,000, subject to encumbrances of $1,500. He admitted it could not be replaced for that sum, and that it might cost $20,000 to $30,000 to do so. A construction company manager in June 1964 appraised the older equipment at $14,400 and new additions at $12,500. The extent of the unpaid balances on the latter was not determined. All money he received was deposited in the joint commercial account of husband and wife. She kept the books up through the first quarter of 1961. She would draw checks for most of the bills but he would write 'pocket checks' and advise her. No balance was kept in the checkbook and the account was drawn on indiscriminately for both business and living expenses.

In March 1958 the wife opened a savings account in her sole name, and deposited therein, in addition to the sums to which reference is hereinafter made, sums received by her as an administratrix fee, from an inheritance, from income on family property, and from her daughter for the care of the latter's child.

In October 1958 approximately 16 acres of the property received in 1953 was sold for $3,500 per acre. On October 10, 1958, $22,393.68 was deposited in the joint commercial account representing the down payment on the property; and on November 7, 1958, $11,762.32 was deposited in the wife's savings account of which sum $11,128.10 was acknowledged by her to represent one-half of the net down payment. On January 22, 1959, $17,584.51 was received and deposited in the joint commercial account as the second payment on the land. The wife noted the receipt of this sum in the checkbook, along with deductions for moneys paid the real estate agent and an attorney, and drew a check for $8,241.27, representing one-half the balance, to her own order and deposited it in her savings account on January 23, 1959. On August 12, 1959, $8,000 was withdrawn from the savings account and a deposit in the same sum was credited to the joint account on August 21st. On September 18, 1959 a final payment was included in $18,345.59 deposited in the joint account on that day. Thereafter on November 10, 1959, $15,000 was deposited in the wife's savings account, which sum, according to her represented repayment of an $8,000 advance, and $7,000 representing one-half the final payment less credit for income taxes and miscellaneous expense. This account was closed by a withdrawal of $25,218.79 on October 16, 1962, six days after the husband filed his complaint for divorce. It is conceded that the sum so represented was deposited in another account and is subject to disposition in accordance with the final judgment of the court.

Meanwhile by deeds recorded on July 28, 1959, August 24, 1959, and September 23, 1959, and bearing revenue stamps representing considerations of $2,500, $3,000 and $2,500, respectively, three parcels of real property, each improved with a residence, were conveyed to 'Mary M. Beck, a married woman.' These units were concededly purchased with funds from the joint commercial account. A 'ten plan' account was opened later in the wife's name alone in a separate bank to keep the rentals separate, and expenses which had previously been paid from the joint account, were then paid from that account. As of November 1963 there was $24,028.73 still owing on these units, and an insignificant balance in the rental account. According to the wife she only receives $75 per month after making payments on the outstanding loans. The 1961 income tax return reflects net income of $1,413.93 after payment of interest but before taking $1,403.61 for depreciation. From the former sum she still had to pay the principal portion of the loan payments. The husband valued these units at $3,500 each in November 1963. According to him, the wife just went ahead and bought these units and he had no objection to their going in her name because he wanted to keep the rentals separate from the construction business. He testified 'it wasn't for the simple reason I was going to take my money and she was going to take hers. Still going to work together,' and 'I still figured it was community property.' He was impeached by contradictory testimony in his deposition where he had denied that he ever took the position that the rental units belonged to him and acknowledged that he considered them her separate property. The wife testified that the units were purchased with her husband's consent and encouragement in order to save some of the proceeds of the sale of their property.

Sometime thereafter, but before the husband conveyed the residence and remaining property to his wife, a right-of-way, or right of access, was sold for $3,600 or $3,640. This money was placed in the joint commercial account.

By deed dated August 3, 1961 and recorded November 20, 1961, the remaining two and one-half acres including the improvements were conveyed by husband and wife to 'Mary Beck, as her sole and separate property.' There is some conflict in the testimony as to whether the husband was motivated in making this conveyance in an attempt to effect a reconciliation with his wife or pursuant to an agreement whereby she would release to him the certificates of ownership for the machinery and equipment used in his business; or whether, according to the wife, he gave it to her 'out of a clear sky' because it was not worth anything because of the highway realignment. He testified that it was worth $45,000 at the time of the 1963 hearings, and was free and clear of any encumbrances.

The record reflects that in addition to the foregoing property the parties accumulated household furniture, furnishings, fixtures and appliances, a 1948 Chevrolet...