De Boer v. De Boer

• Decision Date: 04 June 1952
• Citation: 244 P.2d 953,111 Cal.App.2d 500
• Court: California Court of Appeals Court of Appeals
• Parties: DE BOER v. DE BOER. Civ. 18892.

Page 953

244 P.2d 953

111 Cal.App.2d 500

DE BOER v. DE BOER.

Civ. 18892.

District Court of Appeal, Second District, Division 3, California.

June 4, 1952.

Floyd H. Norris and Clayton B. Thomas, Los Angeles, for appellant.

C. E. Clough, Visalia, and Richard M. Durall, Bellflower, for respondent.

VALLEE, Justice.

Plaintiff-husband brought this action for divorce. He alleged that a parcel of realty, to the value of $11,000, located in El Monte, is his separate property and that defendant-wife has a small community interest therein. In her answer and cross-complaint defendant alleged that the parcel is her separate property. Defendant was granted a divorce. The court found that the parcel of realty is community property and awarded a half interest to each of the parties. Defendant-wife appealed from that part of the judgment adjudging that the parcel is community property, asserting that the evidence is insufficient to support the finding that it is community property.

The parties were married on April 11, 1939. At that time plaintiff-husband owned and operated a dairy in Hynes, now Paramount, with eighty head of cows, and had about $2,000 in a bank account. Plaintiff operated the dairy for a year after the marriage, and then sold the cows for $11,800 and paid off a mortgage of $4,000 on the herd.

About the time the dairy was sold defendant told plaintiff he was being sued, that someone was attempting to serve a paper on him, and suggested that his bank account be transferred to her name. Defendant testified that someone came to the house attempting to serve some papers on plaintiff, that she told him about it, and that his bank account was then transferred to her name to shield him from possible litigation.

Of the money remaining from the sale of the cows $2,250 was used to buy a house and two acres of land in Artesia and about $1,000 was used in improvements on the house. Title was taken in joint tenancy. At the same time, a ten-acre parcel was also acquired from funds provided by plaintiff from the sale of the cows and title taken in joint tenancy.

Before taking title to the parcels in joint tenancy plaintiff consulted an attorney. He asked the attorney if he would be jeopardizing his interest in the property if he placed it in joint tenancy. The attorney told him that it would be for his own protection and that he would not be jeopardizing his interest. The attorney did not explain to him the legal effect of holding property in joint tenancy or tell him that he would be making a gift to defendant, or say anything about a gift tax or the result in case either party died. He did not know at that time the legal effect of holding property in joint tenancy.

Plaintiff testified defendant insisted that title to the two-and ten-acre parcels be taken in joint tenancy and on the strength of the advice of the attorney and the insistence of his wife he placed the titles in joint tenancy.

In April, 1941, the two-acre parcel was sold. The El Monte parcel, equipment of a dairy thereon, and thirty-five cows, were then purchased. Title to the realty was taken in the name of defendant as her sole and separate property. The purchase price was about $11,000 made up of $2,366.26, the net proceeds from the sale of the two acres, $5,131 additional cash, and the assumption of a mortgage for the balance. When the El Monte property was purchased the ten-acre parcel was conveyed to the defendant-wife alone.

At the time the parties married plaintiff was a member of a milk sales agency which gave him 'shipping rights' to sell his milk to a particular creamery. When he sold the dairy he also sold the 'shipping rights.' The bylaws of the agency apparently provided that upon sale of 'shipping rights' a member could not go into the dairy business for a period of five years unless he bought cows with such rights. The El Monte property was operated as a dairy without 'shipping rights.' Before purchasing the El Monte property, which was two years after the sale of the eighty cows, plaintiff again consulted the same attorney with respect to purchasing the property in question in his own name. Defendant was present. The attorney advised him 'that there was a liability that the association would sue me, because I would not be buying out another association member, which is required according to the by-laws.' Plaintiff testified that the attorney suggested he put the property in defendant's name and 'I didn't like the idea, but since he was my attorney, why, I took his advice.' The attorney represented defendant-wife 'at the escrow' and in this suit until substituted out immediately prior to the trial. Plaintiff testified that the reason he transferred his bank account to defendant and consented that title to the properties be taken in her name was because of defendant's insistence and because the attorney advised him to do so, and that he 'considered it [the bank account and real property] belonged to both of us.'

Plaintiff operated the dairy on the El Monte property and a retail mile route therefrom for one year, replaced cows constantly, and deposited the income in a bank account in the name of defendant. Expenses and payments on the mortgage were paid from this account. The parties lived on the property. At the end of one year it was leased. In 1947 plaintiff made improvements on the property costing about $5,000 with money he had earned during the war while employed in a manufacturing plant.

During the time plaintiff operated the Hynes and El Monte dairies defendant helped sell the milk, took care of some of the cash-and-carry trade, kept the books, made the deposits, wrote the checks, did the housework and some work in connection with the operation of the dairy. Plaintiff gave defendant the information that she used in making entries in the books.

Defendant testified she had no recollection of the conversations had with plaintiff at the time of the purchase of the two-and ten-acre parcels or of the El Monte property.

Defendant told a Mrs. Triplett on one occasion that as soon as she got plaintiff's property in her name she guessed she would get rid of him; on another occasion, that it was taking longer to get his property in her name than she had expected, and that as soon as she succeeded she would probably get rid of him and go back to the matrimonial bureau and get another sucker, and that defendant told her that she (defendant) was 'getting somewhere at last. I am getting things into my own name that I told you in the beginning I would do. But it takes longer than I thought it would.' Defendant had met plaintiff at a matrimonial bureau.

When title is in the wife alone the presumption is that the property is her separate property. Civ.Code, § 164. Except as against a bona fide purchaser for value, the presumption is disputable. Attebury v. Wayland, 73 Cal.App.2d 1, 5, 165 P.2d 524. Whether the evidence against the presumption is sufficient to overthrow it, is a question of fact. Steward v. Paige, 90 Cal.App.2d 820, 824, 203 P.2d 858. Evidence tending to establish any facts overcoming the presumption and showing that the property is community property, is admissible in evidence. Huber v. Huber, 27 Cal.2d 784, 788, 167 P.2d 708; Killian v. Killian, 10 Cal.App. 312, 317-318, 101 P. 806. The court may consider the motive for the conveyance of property by a husband to his wife and the situation of the parties at the time. Williamson v. Kinney, 52 Cal.App.2d 98, 102, 125 P.2d 920. A determination by a trial court that the presumption has been rebutted is conclusive on a reviewing court unless it is manifestly without support in the evidence. In re Estate of Baer, 81 Cal.App.2d 830, 833, 185 P.2d 412.

Real property may be shown to be community property even though it is granted to one spouse alone as his or her property in fee simple. Tomaier v. Tomaier, 23 Cal.2d 754, 757, 146 P.2d 905. In determining whether property is...