Cooper v. Cooper

• Citation: 335 P.2d 983,168 Cal.App.2d 326
• Court: California Court of Appeals
• Decision Date: 03 March 1959
• Parties: Catherine G. COOPER, Plaintiff, v. Lawrence J. COOPER, aka Laurence J. Cooper, aka Lawrence John Cooper, Darle M. Cooper, aka Darle Manford Cooper, John F. Phillips, the Spouse of John F. Phillips, John F. Phillips dba Angeles Bond Adjusters, Affiliated Merchants, a corporation, G. F. Stoneman and the Spouse of G. F. Stoneman, Defendants. Catherine G. COOPER, Plaintiff and Cross-Defendants, and Lawrence J. Cooper, Defendant and Cross-Defendant, Appellants, v. George F. STONEMAN and Vivian A. Stoneman, Cross-Complainants and Defendants, Darle M. Cooper, Defendant and Cross-Defendant, and John F. Phillips and Mrs. John F. Phillips, Defendants, Respondents. Civ. 23213.

Page 983

335 P.2d 983

168 Cal.App.2d 326

Catherine G. COOPER, Plaintiff, v. Lawrence J. COOPER, aka Laurence J. Cooper, aka Lawrence John Cooper, Darle M. Cooper, aka Darle Manford Cooper, John F. Phillips, the Spouse of John F. Phillips, John F. Phillips dba Angeles Bond Adjusters, Affiliated Merchants, a corporation, G. F. Stoneman and the Spouse of G. F. Stoneman, Defendants.

Catherine G. COOPER, Plaintiff and Cross-Defendants, and Lawrence J. Cooper, Defendant and Cross-Defendant, Appellants, v. George F. STONEMAN and Vivian A. Stoneman, Cross-Complainants and Defendants, Darle M. Cooper, Defendant and Cross-Defendant, and John F. Phillips and Mrs. John F. Phillips, Defendants, Respondents.

Civ. 23213.

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

March 3, 1959.

Rehearing Denied April 2, 1959.

Hearing Denied April 29, 1959.

A. W. Brunton, Los Angeles, and Harry V. Goza, Jr., Norwalk, for appellants.

Title & Tannenbaum and Julius M. Title, Beverly Hills, for respondents George F. Stoneman and Vivian A. Stoneman.

No appearance for respondents Darle M. Cooper, John F. Phillips, and Mrs. John F. Phillips.

VALLEE, Justice.

Plaintiff, Catherine G. Cooper, brought this suit to quiet title to an improved parcel of realty, called the Margate Street property. She named as defendants Lawrence J. Cooper, and George F. Stoneman and his wife, Vivian A. Stoneman, among others. Lawrence J. Cooper did not answer the complaint. The Stonemans answered and cross-complained, alleging that: about March 30, 1951 Lawrence J. Cooper became the owner of the property; with intent to hinder, delay, and defraud his creditors, he caused the title to be placed in the name of Catherine G. Cooper; on information and belief, that while Catherine G. Cooper and Lawrence J. Cooper held themselves out as husband and wife, they have never married; on information and belief, the considerations paid for the property were the sole and separate funds of Lawrence J. Cooper; on information and belief, by the purchase of the property Lawrence J. Cooper was rendered insolvent; at the time of the purchase Catherine G. Cooper knew the property was being placed in her name for the purpose of hindering, delaying, and defrauding the creditors of Lawrence J. Cooper.

The cross-complaint further alleged: about September 8, 1954 a judgment was rendered in an action in the superior court of the County of Los Angeles in which John F. Phillips was plaintiff and Lawrence, defendant; on October 11, 1955 the property was sold under execution issued in that action to the Stonemans, and they are the owners. The cross-complaint also alleged that since October 11, 1955 the property has been occupied by lessees of Catherine and Lawrence and they have received $85 a month rent.

In her answer to the cross-complaint Catherine denied all its allegations except she admitted she and defendant have never married and are not husband and wife, and that she had received the rents from the property. In his answer to the cross-complaint Lawrence denied any claim of ownership in the property and alleged it was purchased by Catherine with her separate funds; and that he was not then and is not now insolvent.

The trial court found: Lawrence was the sole purchaser and became the sole owner of the property; all of the funds paid toward the purchase were funds belonging to Lawrence in which Catherine had no right, title, or interest; no funds whatsoever belonging to Catherine have been invested in the property at any time; Catherine did not at any time acquire any interest therein; Catherine and Lawrence received all the rents; they were domiciled in Iowa and have never been domiciled in California; the property was purchased in Catherine's name for the purpose of concealing Lawrence's ownership in the property from his former wife, to whom he was indebted for child support, and Catherine knew it was being placed in her name for that purpose.

The court further found: at the time of the purchase Catherine and Lawrence were and for many years had been living together as husband and wife but had never been and were not husband and wife; Lawrence had previously been married to Lula Bond; that marriage had been dissolved by a decree of divorce in the superior court of the County of Los Angeles many years prior to the purchase; in that divorce action Luia Bond had secured a judgment against Lawrence for monthly payments for support of minor children; at the time of the purchase Lawrence owed several thousand dollars on that judgment.

The court further found: in 1954 Lula Bond assigned her right of action on the delinquent judgment to Phillips, who sued Lawrence and recovered a judgment against him for $4,969.16; by virtue of a writ of execution issued on that judgment, all interest of Lawrence in the property was sold to the Stonemans on October 11, 1955 for $5,369.69; the Stonemans are the owners of the property; since October 11, 1955 Catherine and Lawrence have collected $2,035 rent from tenants of the property.

Judgment was that the Stonemans are the owners of the property subject to a deed of trust, and that they recover $2,035 from Catherine and Lawrence. The latter appeal.

Appellants first assert they did not have a fair trial. They say the statement of the trial judge quoted in the margin which was made after he had stated what the findings and judgment were to be 'expressed his state of mind throughout the trial and impaired his impartiality and swayed his judgment.' ¹ We find no basis for the assertion. 'It is well settled in this state that the expressions of opinion uttered by a judge, in what he conceives to be a discharge of his official duties, are not evidence of bias or prejudice.' Kreling v. Superior Court, 25 Cal.2d 305, 310-311, 153 P.2d 734, 737. Conviction in the mind of a judge, based on his observation of the witnesses and the hearing of their testimony, does not amount to prejudice against a litigant.

Appellants contend the findings that all of the funds paid toward the purchase of the property were funds belonging to Lawrence, that no funds belonging to Catherine had been invested in the property, that the property was owned by Lawrence and not by Catherine, and that the taking of title in the name of Catherine was for the purpose of concealing from Lula Bond the fact that Lawrence was the true owner of the property and to evade the judgment for child support, are contrary to the evidence. They say the evidence without conflict shows that all the money paid on the purchase price of the property was the separate property of Catherine, and that the evidence is conclusive that the property was not purchased and title taken in her name to hinder, delay, or defraud Lawrence's creditors.

The trial judge, at the conclusion of the evidence, stated he did not believe the testimony of appellants. Respondents say the trial judge was entitled to disbelieve their testimony. That is true. But the fact that he disbelieved their testimony does not furnish affirmative evidence supporting the findings. 'Disbelief does not create affirmative evidence to the contrary of that which is discarded. 'The fact that a jury may disbelieve the testimony of a witness who testifies to the negavtive of an issue does not to itself furnish any evidence in support of the affirmative of that issue, and does not warrant a finding in the affirmative thereof unless there is other evidence in the case to support such affirmative.'' In re Estate of Bould, 135 Cal.App.2d 260, 264, 287 P.2d 8, 10, 289 P.2d 15. The question is: Was there any substantial affirmative evidence which supports the findings? In other words, does the relationship of the parties, together with the other circumstances surrounding and incident to the transactions, constitute evidence which of itself warranted inferences which support the findings?

Appellants' contention requires them to demonstrate that there is no substantial evidence to support the challenged findings. Nichols v. Mitchell, 32 Cal.2d 598, 600, 197 P.2d 550. Appellants, however, recite only evidence favorable to them and argue the case as though we were the judges of the weight of the evidence. It is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact. It is not the province of a reviewing court to search the record in order to ascertain whether it contains evidence that will sustain a contention made by either party to the appeal. Where an appellant claims that some particular issue of fact is not sustained by the evidence, he is required to set forth in his brief all of the material evidence on the point and not merely his own evidence. If this is not done the error assigned is deemed waived. Tesseyman v. Fisher, 113 Cal.App.2d 404, 407, 248 P.2d 471. Notwithstanding appellants' disregard of the rules, we have examined the record.

In April 1938 Lula Bond, Lawrence's former wife, obtained a judgment against him for child support. It was stipulated that as of November 1, 1950 Lawrence was delinquent in child support payments in the sum of about $4,855 under this judgment.

Lawrence testified he was not married to Catherine. Catherine admitted in her answer to the cross-complaint and testified at the trial that she was not married to Lawrence. They began living together about April 1936. ² They have been residents of Sioux City, Iowa, since that time. Catherine testified that at that time she had about $10,000 in the form of currency which she had received as a gift from her deceased sister. Her testimony in this respect was not corroborated. She kept the $10,000 in her home until about 1945. About 1947 Catherine and Lawrence opened a joint tenancy account in Security National Bank, Sioux City. On November 22, 1950 an account was opened in Woodbury County Savings Bank, Sioux City, with an initial deposit of $5,000. This account was in the...