Brown v. Barham

• Decision Date: 06 June 1966
• Citation: 51 Cal.Rptr. 718,242 Cal.App.2d 696
• Court: California Court of Appeals Court of Appeals
• Parties: Viola BROWN, Executrix of the Estate of Laura R. Barham, Plaintiff and Appellant, v. Paul G. BARHAM, Defendant and Respondent. Civ. 599.

Page 718

51 Cal.Rptr. 718

242 Cal.App.2d 696

Viola BROWN, Executrix of the Estate of Laura R. Barham, Plaintiff and Appellant, v. Paul G. BARHAM, Defendant and Respondent.

Civ. 599.

District Court of Appeal, Fifth District California.

June 6, 1966.

Siemon & Patterson and R. D. Patterson, Jr., Bakersfield, for appellant.

DiGiorgio, Davis & Nairn, and John M. Nairn, Bakersfield, for respondent.

CONLEY, Presiding Justice.

By the suit, brought during her lifetime, Laura R. Barham asked the court to determine that the sum of $45,377.66, won by her husband, Paul G. Barham, at the Agua Caliente Race Track, was the community property of the parties, and to order 'that the whole of said community fund or such part thereof as may be found to be just be awarded to plaintiff.' A motion for summary judgment was made by Mr. Barham; his declaration as to the facts was uncontradicted; the motion was granted on the ground that questions of law alone were presented and that the plaintiff had no right to any of the money won at the track. Since the filing of the appeal, Mrs. Barham died and Viola Brown, as executrix of her estate, was substituted as appellant.

The Barhams were married on May 31, 1938. Each of them having filed a suit for divorce, a hearing of the consolidated cases was held on December 16, 1964; at a preliminary conference of counsel in the judge's chambers, a mutually satisfactory disposition of issues legitimately subject to agreement was worked out; immediately thereafter, in open court, it was stipulated that Mr. Barham's complaint would be dismissed and the case heard on Mrs. Barham's complaint; that the community property then owned by the married pair should be divided in a specific way; and that findings of fact and conclusions of law would be waived. At the conclusion of the trial on the same day, the judge ordered that a divorce be granted to Mrs. Barham and that the property settlement as stipulated to in open court should be approved and adopted. Following one of the facets of the stipulation, Mr. Barham was awarded the community savings account of approximately $800, subject, however, to a payment to Mrs. Barham of $700. The division of this sum was actually made on December 18 by the defendant, Mrs. Barham receiving the $700 and Mr. Barham retaining the balance of $100.

On the following day, December 19th, the defendant went to the Agua Caliente Race Track in Baja California, and using the $100 won $45,377.66.

There is nothing in the record to show positively when the result of this gambling adventure became actually known by Mrs. Barham or her divorce attorney who was in active practice in Bakersfield. However, it is difficult to conceive how a startling news story of this kind could have escaped either of them during the interval between the winning of this fantastic sum and the actual signing and filing of the formal decree of divorce; that document was prepared by the attorney of record for Mrs. Barham; it was approved as to form by the attorney for Mr. Barham, signed and filed by the trial judge on December 29, 1964, and entered on December 30, 1964. All of the property mentioned in the formal decree itself was divided between the parties in accordance with the previous stipulation and the order for judgment. Neither the stipulation itself, which preceded the winning of the money, nor the decree, which followed the successful betting spree of the defendant, mentioned the winnings. No motion for a new trial was made by either party, and the interlocutory decree of divorce became final.

Thereafter, Mrs. Barham brought this action through new attorneys.

In the instant case, the defendant stated in his answer that the money won was his separate property; he denied that Mrs. Barham had any interest in the winnings or that any part thereof was community property. As a first affirmative defense, he alleged that on December 16, 1964, the Barhams agreed to a disposition of their property in open court, that this oral contract was approved by the court, and that by virtue of the stipulation followed by the interlocutory decree of divorce, the defendant was awarded all savings and bank accounts. Defendant prayed that the complaint be dismissed and that he be allowed his costs of suit.

Mr. Barham's declaration in support of his motion for a summary judgment stated the contents of the oral agreement and stipulation concerning the division of the property made in open court on the 16th day of December, 1964, and continued:

'Thereafter, the Court heard the testimony of the plaintiff and the corroborating witness and the disposition as appears in the minutes is as follows:

"DISPOSITION: Interlocutory Decree of Divorce granted plaintiff on the ground of Extreme Cruelty. The above stipulations as set forth and stated into the record are hereby approved and granted.'

'A copy of the minute order of the Court is attached hereto as Exhibit 'B' and made a part hereof for all purposes.

'Declarant states that he can competently testify to all the facts set forth above if called.

'3. That thereafter, on the 18th day of December, 1964, declarant paid to Laura R. Barham the sum of $700.00 in compliance with the order of the Court.

'4. That on December 19, 1964, declarant went to Agua Caliente racetrack and won the sum of $45,377.66. That all of said sum is the separate property of the defendant and declarant.

'Declarant has fully complied with all of the orders of the Court and has paid to the plaintiff herein all of the sums awarded to her by the Court, including the sum of $700.00, as her share of the savings account as set forth in Exhibit 'B'.

'Defendant can competently testify to all of the facts set forth above.'

Attached to the declaration is a copy of the minutes of the court made at the time the divorce was granted which in part read as follows:

'It is further stipulated that the defendant in action 90486 pay to plaintiff the sum of $700.00 cash as her share of the savings account.

'It is further stipulated that the defendant pay to plaintiff $70.00 per month alimony until further order of Court.

'It is further stipulated that the household furniture and furnishings be awarded to the plaintiff and the balance of the community property be awarded to defendant.

'Exclusive occupancy of the family residence to the plaintiff with the said residence to remain as joint tenancy. The defendant is to make the house payment of $57.00 per month plus all of the unkeep and payment of the taxes.'

As another exhibit attached to Mr. Barham's declaration is a stenographic report of the proceedings at the hearing of the two divorce cases.

The first point urged by appellant is that the declaration of Mr. Barham was insufficient to authorize the summary judgment. This contention is without merit. Towne Development Co. v. Lee, 63 Cal.2d 147, holds that a summary judgment is proper if (1) the affidavits in support of the moving party, when strictly construed, are sufficient to sustain a judgment in his favor, and (2) the affidavits, if any, filed by the opposing party, when liberally construed, do not show facts sufficient to present a triable issue.

Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 398 P.2d 785, 788, states that the 'aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.'

Appellant argues that there were two issues of fact, which required a trial: (1) as to whether the trial court in the divorce case wished to make an effective division of the community property at the hearing, and (2) whether the parties by filing a joint income tax return for monies earned by them during the year 1964, thereby made an implied agreement that the gambling winnings were community property.

With respect to the first point, the trial judge was bound by the law as it existed, and if there was any secret intention on his part relative to the applicability of the objective proceedings, it would not serve to change the law applicable to the situation. It is also clear that at the time the 1964 joint federal income tax return was made, it was permissible for parties as to whom an interlocutory decree of divorce had been granted during the taxable year to make a joint return without thereby committing either party as to the community or separate nature of the income mentioned in the return. (See Estate of Neilson, 57 Cal.2d 733, 744, fn. 2, 22 Cal.Rptr. 1, 371 P.2d 745; Revenue Act of 1948, §§ 301, 303; 26 U.S.C.A. §§ 2, 6013; Hofferbert v. Marshall, 4 Cir., 200 F.2d 648, 650--651.)

'* * * No triable issue having been presented and the sole remaining question being one of law the same was appropriately determined on motion for summary judgment. (Citing authorities.)' (Michelman v. Frye, 238 A.C.A. 813, 818, 48 Cal.Rptr. 142, 145.)

Appellant next argues that section 169.2 of the Civil Code, adopted by the Legislature in 1959, does not support the respondent's position.

The appellant contends that '* * * the rendition of an interlocutory judgment of divorce' means the 'entry' of such a judgment. There can be no question that the formal written decree was not signed and filed until December 29, 1964, and that it was not entered until December 30, 1964. The minute order for judgment made December 16th was not formally a judgment. (Prothero v. Superior Court, 196 Cal. 439, 238 P. 357.) Phillips v. Phillips, 41 Cal.2d 869, 874, 264 P.2d 926, 929, correctly held that a memorandum of judgment filed with the clerk does not constitute a judgment. As was said by the Supreme Court:

'It does not follow, however, that the memorandum is the judgment. Until a judgment is entered, it is not effectual for any purpose, Code Civ.Proc., § 664, and at any time before it is entered the court may change its conclusions of law and enter a judgment different from that first announced. (Citations.) ...