Burlingham v. Burlingham

• Decision Date: 29 March 1963
• Docket Number: No. 6921,6921
• Citation: 384 P.2d 699,1963 NMSC 68,72 N.M. 433
• Parties: Hilda S. BURLINGHAM, Plaintiff-Appellant, v. Lloyd BURLINGHAM, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 699

384 P.2d 699

72 N.M. 433

Hilda S. BURLINGHAM, Plaintiff-Appellant, v. Lloyd BURLINGHAM, Defendant-Appellee.

No. 6921.

Supreme Court of New Mexico.

March 29, 1963.

Rehearing Denied Sept. 11, 1963.

Seth, Montgomery, Federici & Andrews, Santa Fe, for appellant.

Wm. Byron Darden, Las Cruces, for appellee.

CHAVEZ, Justice.

Appellant, Hilda S. Burlingham, brought suit for declaratory judgment against her estranged husband, Lloyd Burlingham, to determine whether certain land located in Dona Ana County, conveyed to Lloyd Burlingham by deed dated January 20, 1942, is the separate property of appellant. Appellee answered alleging that the property in question is community property and that he is entitled to a one-half community interest therein. The case was tried by the trial court without a jury and judgment was entered decreeing that appellant and appellee 'are joint owners, each owning an undivided one-half interest,' in and to the land involved. From this judgment, Hilda S. Burlingham appeals. The parties will be referred to as they appeared in the court below.

The trial court made the following findings: That plaintiff and defendant were married in El Paso, Texas, on February 8, 1936, at which time plaintiff was 38 years of age and defendant was 26 years of age; that following their marriage and at all times material they were residents of El Paso, Texas, but domiciled at El Paso, Texas, or Juarez, Mexico; that at the time of the marriage of the parties plaintiff owned as her separate property a bank account in the name of Hilda S. Coonse in the State National Bank of El Paso, Texas, and was the beneficiary, as her separate property and estate, of a trust income from her father, and later from the estate of her father; that on or about March 1, 1936, plaintiff and defendant opened a joint account in the State National Bank of El Paso, Texas, into which all monies received by either of them and from whatever source were deposited; that said account was in the name of Hilda S. Burlingham and Lloyd Burlingham, without either having supervision over the other in said account, and either party was authorized to and did draw checks on said account; that the funds in said account, regardless of the amount or the time, were always considered by the parties to be their joint property; that plaintiff and defendant have stated previously, and now state, that it was the intention of both parties to have, hold and own all that they had jointly and to share all that they had; that on January 20, 1942, the defendant purchased a tract of land located about eight miles northwest of El Paso, Texas, containing 515.53 acres, being a portion of the Santa Teresa Grant and described in warranty deed recorded in Dona Ana County, New Mexico; that the funds for said purchase were paid from the joint bank account of plaintiff and defendant in the State National Bank of El Paso; that it was the intent of both plaintiff and defendant that title to said 515.53 acres of land be taken in their names jointly, but the deed was made out with Lloyd Burlingham as the sole grantee and the title so remains; that defendant, on January 22, 1942, drew a check on the joint bank account of the parties in the State National Bank of El Paso for $4584.30 to consummate acquisition of said land, which said check was paid from said joint bank account on January 25, 1942; that prior to the payment of either of the foregoing checks, and as of December 15, 1941, there was a balance in the aforesaid joint bank account in the State National Bank of El Paso in the sum of $3.19; that between December 15, 1941, and January 25, 1942, all deposits in said joint account were the separate estate and trust income of plaintiff, except the sums of $39.71 and $200.00 dividend income of defendant.

The court concluded as a matter of law that plaintiff and defendant are each the owner of and are entitled to an undivided one-half interest in and to the 515.53 acres of land in controversy.

The evidence shows that plaintiff had been previously married and had two sons from that marriage. It is undisputed that on December 15, 1941, the balance in the joint bank account was $3.19; that between December 15, 1941, and January 25, 1942 plaintiff deposited her separate estate in the joint bank account in the total sum of $15,936.92; that the $200.00 deposit was a dividend check from five shares of stock in plaintiff's father's firm, Blanchard Machine Company, which stock plaintiff had given to defendant; and that the $39.71 deposit was from the Mexico magazine which the parties owned and published.

The evidence also shows that the Mexico magazine lost more than $300.00 from December 15, 1941, to January 25, 1942; that from the date of the marriage and over a period of six years the deposits from the Mexico magazine were negligible and that it lost more than $6000.00.

The evidence further shows that the earnest money check in the amount of $500.00 was drawn from the joint account by defendant and paid by the bank on December 31, 1941, and the balance of the purchase price was paid by check on the joint account drawn by defendant in the sum of $4584.30 and paid on January 25, 1942.

The evidence also shows that prior to the marriage defendant was working for his mother who had a tourist office and published a pamphlet entitled 'Tours in Mexico' for which he received no compensation. After the marriage, defendant engaged only in publishing the Mexico magazine which was supported by plaintiff's funds. Plaintiff's income was from her mother's estate, from monies sent to her by her father until his death, and thereafter from a trust created by her father. Defendant had no other source of income and plaintiff and defendant were engaged in no other employment or business during the period here involved. Defendant had no separate property except the five shares of Blanchard Machine Company stock given to him by plaintiff. The publication of the Mexico magazine produced no net income, but was carried on by plaintiff and defendant until 1944, at which time defendant went East and obtained employment with Rueters, the British News Service.

Concerning the trust and confidence plaintiff had in defendant, and in explanation of why plaintiff allowed defendant to handle her money, property and affairs, she testified:

'Q. Now, after your marriage, Mrs. Burlingham, just tell the Court what you did with respect to allowing or permitting Mr. Burlingham to handle your money and your property and your affairs and why did you do it?

'A. Well, I did it because it was more convenient for one--for a man of the household to be able to pay bills, he was managing the affairs, I thought it would be humiliating to him if I had to make out all of the checks. I don't know any other reasons.'

Defendant bases his claim of ownership of a one-half interest on the basis of the land being community property. Defendant's contention is that all monies placed in the joint bank account were a general mutual fund for all needs of the family, or of any individual member thereof who particularly needed it, and that it became community property. Defendant testified:

'Q. * * * The use or disposition made of any such income, and by whom, and what amount, if any, was contributed to the purchase of Santa Teresa?

'A. * * * The use and disposition of such income was that it was put into the joint checking account which was our general, mutual, fund for all needs of the family. The use or disposition was made by the family in general or any individual who particularly needed it. I don't know the figures or the amount that was contributed to the purchase of the Santa Teresa property. It would be impossible to determine since all money was put into a general fund. It would be like pouring a pail of water into a tub partially full of water and then dipping some out of it. It would be impossible to determine how much of that pail was in the part dipped out. In any case, the amounts or proportion of contribution has nothing to do with the concept of community property, at least our concept of it as lay people.'

On cross-examination plaintiff testified:

'A. Yes, but that has to be restricted in that I had given him everything. I meant I had given him everything necessary for our common good marriage, his education, his support, what he could not supply. It was not that I was giving any property away, taking away from my children.'

As to plaintiff's use of the term 'joint property,' on cross-examination, she testified:

'A. By joint, I was not using the legal term. I don't know law. I meant things together for our married life.

* * *

* * *

'A. My use of 'community property' has nothing to do with law. It is something we should use together, in my marriage to him.'

To questions propounded by the court as to her use of such terms, plaintiff answered:

'BY THE COURT: In other words, you intended to give him half interest?

'A. No, I never gave anything other than Blanchard Machine [stock].

'BY THE COURT: If you didn't give him any interest in those places, they would be your separate property?

'A. I believe they are and I maintain they are.'

Plaintiff's first point upon which she relies for reversal is:

'I. With husband and wife, the status of title to property as being community, separate or otherwise, is determined as of the time of acquisition, and where property is acquired during marriage through the sale or exchange of property, such acquired property is held in the same status to which it is traceable.'

In answer to plaintiff's point I, defendant's first contention is that plaintiff has not complied with Supreme Court Rule 15, (Sec. 21-2-1(15), N.M.S.A., 1953 Comp.). We cannot agree. Defendant cites Swallows v. Sierra, 68 N.M. 338, 362 P.2d 391, and many of our cases which hold that where no direct attack is made on the trial court's findings of fact, or where the question of the sufficiency of the evidence...