Crook v. Crook

• Citation: 184 Cal.App.2d 745,7 Cal.Rptr. 892
• Parties: James R. CROOK, Plaintiff, Cross-Defendant and Appellant, v. Willilena J. CROOK, Defendant, Cross-Complainant and Respondent. James R. CROOK, Plaintiff and Respondent, v. Willilena J. CROOK, Defendant and Appellant. Civ. 19052, 19053, 19125.
• Decision Date: 21 September 1960
• Court: California Court of Appeals Court of Appeals

Page 892

7 Cal.Rptr. 892

184 Cal.App.2d 745

James R. CROOK, Plaintiff, Cross-Defendant and Appellant, v. Willilena J. CROOK, Defendant, Cross-Complainant and Respondent.

James R. CROOK, Plaintiff and Respondent, v. Willilena J. CROOK, Defendant and Appellant.

Civ. 19052, 19053, 19125.

District Court of Appeal, First District, Division 2, California.

Sept. 21, 1960.

Wallace B. Colthurst, Harry D. Miller, Oakland, for appellant James R. crook.

Francis T. Cornish, Berkeley, for respondent Willilena J. Crook.

SHOEMAKER, Justice.

This is a consolidation of three appeals. James R. Crook, hereinafter referred to as hubsand, and Willilena J. Crook, hereinafter referred to as wife, were granted divorces from each other on the ground of extreme cruelty. The husband appeals from that portion of the judgment disposing of certain corporate stock standing in the name of the parties as joint tenants and also from the order awarding costs and attorney's fees to the wife pending appeal. The wife appeals from the order denying alimony pending appeal.

Each of the spouses was awarded a divorce from the other on grounds of extreme cruelty on April 20, 1959. In his pleadings the husband joined a cause of action to quiet title to corporate stock held in joint tenancy. This stock, worth around $30,000, was owned by the husband as his separate property at the time of marriage. After the marriage he placed the stock in the names of himself and wife as joint tenants. The husband testified that he informed his wife that he made the change in the form of title of the stock so it would pass to her on his death without necessity of probate. She denied that he ever told her that was his purpose. The court determined that a gift to the wife had been made by the busband and that the stock was held in joint tenancy.

After the husband's motion for new trial was denied he appealed from that part of the judgment determining the status of the corporate stock. Thereafter the wife moved for attorney's fees, costs and alimony pending appeal. The court awarded her costs and fees but denied her alimony and her appeal is from this denial.

The husband contends that court erred in determining that the corporate stock was held in joint tenancy. The attack by the husband consists largely of marshalling testimony he gave at trial to the effect that he told his wife he did not intend to make a present gift, but merely wished to avoid the necessity of her having to put the property through probate in the event of his predeceasing her. This was denied by the wife, which created a conflict in the evidence.

Further, the stock being in the names of the parties as joint tenants created a rebuttable presumption of joint tenancy (Borgerding v. Mumolo, 1957, 153 Cal.App.2d 821, 824, 315 P.2d 347; Donlon v. Donlon, 1957, 155 Cal.App.2d 362, 365, 318 P.2d 189; Gudelj v. Gudelj, 1953, 41 Cal.2d 202, 212, 259 P.2d 656), which alone suffices to give rise to a conflict in the evidence (Schindler v. Schindler, 1954, 126 Cal.App.2d 597, 601, 272 P.2d 566; In re Rauer's Collection Co., 1948, 87 Cal.App.2d 248, 257, 196 P.2d 803). The husband attempts to distinguish these cases upon the ground that they involve real property, whereas the present situation is one concerning personal property, urging that deeds have a certain sanctity. This reasoning is not convincing, for all these cases hold is that the instrument designating the form in which the property is held, is some evidence towards that conclusion. These cases are most persuasive support for applying, by analogy, that reasoning to instruments of title for personal property. Logic demands that such be done, for to do otherwise would require the court to completely ignore the form in which title is held.

Since on either of the foregoing bases the evidence on the intent in creation of the joint tenancy is conflicting the appellate court is governed by the often stated rule that substantial evidence being present, this court must accept the trial court's finding. De Puy v. Sullivan, 1959, 168 Cal.App.2d 292, 293, 335 P.2d 750; Copprell v. Copprell, 1948, 87 Cal.App.2d 4, 195 P.2d 868; Cox v. Cox, 82 Cal.App.2d 867, at page 869, 187 P.2d 23, at page 24.

The husband asserts it was error for the trial court to award the wife costs and attorney's fees pending appeal. The husband's first argument on this point is that the trial court abused its discretion. He acknowledges that a trial court which denies a wife costs and fees at the time of trial may award such on appeal. Diamond v. Diamond, 1957, 149 Cal.App.2d 788, 791, 308 P.2d 909. The alleged abuse of discretion is claimed to be the making of such an award after a finding that the wife had funds substantially equal to those of the husband. This statement after trial was made because the wife was awarded one-half the stock in joint tenancy; such award is in dispute here. He says alimony was denied her for the same reason; the judge merely stated it was a case where both parties should be granted a divorce without any alimony. The findings of the trial court do not indicate the wife had the ability of pay her attorney's fees and costs on appeal as is claimed by the husband. Since the allowance of attorney's fees and costs under Civil Code, § 137 and the amount thereof are questions for the discretion of the trial court, its order will not be set aside where, as here, there has been no showing of abuse of discretion. Warner v. Warner, 1950, 34 Cal.2d 838, 839, 215 P.2d 20; Baldwin v. Baldwin, 1946, 28 Cal.2d 406, 418, 170 P.2d 670; Comey v. Comey, 1937, 8 Cal.2d 453, 454, 66 P.2d 148.

The husband argues that costs and fees to protect the wife's interest in joint tenancy on appeal do not come within the purview of Civil Code, § 137.3. It is clear that ordinarily a divorce court is without power to dispose of property held in joint tenancy. Walker v. Walker, 1952, 108 Cal.App.2d 605, 608, 239 P.2d 106; Wright v. Wright, 1957, 148 Cal.App.2d 257, 269, 306 P.2d 536. However, where the questions of determination of joint tenancy and its disposition have been pleaded and tried before the divorce court, it may dispose of such property. Glass v. Glass, 1906, 4 Cal.App. 604, 608, 88 P. 734; Huber v. Huber, 1946, 27 Cal.2d 784, 793, 167 P.2d 708; Roy v. Roy, 1938, 29 Cal.App.2d 596, 603, 85 P.2d 223. The manifest purpose of pendente lite allowances under the section in question is to enable the wife to secure adequate representation and to meet the legal expense of litigation essential to her side of the controversy in a divorce action. Bernheimer v. Bernheimer, 1951, 103 Cal.App.2d 643, 648, 230 P.2d 17; ...