Dallman v. Dallman

• Citation: 331 P.2d 245,164 Cal.App.2d 815
• Court: California Court of Appeals
• Decision Date: 06 November 1958
• Parties: Fern T. DALLMAN, Plaintiff, Respondent and Cross-Appellant, v. Lloyd H. DALLMAN, Defendant, Appellant and Cross-Respondent. Lloyd H. DALLMAN, Cross-Complainant, Appellant and Cross-Respondent, v. Fern T. DALLMAN, Cross-Defendant, Respondent and Cross-Appellant. Civ. 9158.

Page 245

331 P.2d 245

164 Cal.App.2d 815

Fern T. DALLMAN, Plaintiff, Respondent and Cross-Appellant, v. Lloyd H. DALLMAN, Defendant, Appellant and Cross-Respondent.

Lloyd H. DALLMAN, Cross-Complainant, Appellant and Cross-Respondent, v. Fern T. DALLMAN, Cross-Defendant, Respondent and Cross-Appellant.

Civ. 9158.

District Court of Appeal, Third District, California.

Nov. 6, 1958.

Rehearing Denied Dec. 1, 1958.

John J. Brannely, Sacramento, Roy A. Sharff, San Francisco, for appellant.

David Livingston, San Francisco, Desmond, McLaughlin & Russell, Sacramento, for respondent.

WARNE, Justice pro tem.

A rehearing was granted in order that this court might consider the effect of an order made by the trial court subsequent to the notice of appeal supplementing the interlocutory decree of divorce. The order purported to authorize the encumbrance by the defendant of the community interest of the parties in certain real property held in the name of a partnership in which they had a community interest, and to distribute the proceeds thereof between the parties. No appeal was taken from such order, however the effect thereof in relation to the disposition of the community property is discussed and considered by the parties in their briefs. Section 946 of the Code of Civil Procedure provides that an appeal, when 'perfected', stops all further proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein. See also Code Civ.Proc. § 949. There can be no question in the instant case that the purported order dealt with the subject matter of the judgment and affected the rights of the parties. Necessarily, therefore, the trial court lost all jurisdiction of the case by virtue of the appeal and could not reinvest itself with jurisdiction by reason of the consent of the parties. See Rosenberg v. Bullard, 2 Cal.App.2d 118, 37 P.2d 521; Parkside Realty Co. v. MacDonald, 167 Cal. 342, 346, 139 P. 805; Kinard v. Jordan, 175 Cal. 13, 164 P. 894; Linstead v. Superior Court, 17 Cal.App.2d 9, 61 P.2d 355; Vosburg v. Vosburg, 137 Cal. 493, 70 P. 473; Sacks v. Superior Court, 31 Cal.2d 537, 540, 190 P.2d 602, and 3 Cal.Jur.2d, Appeal and Error, sec. 191. It follows that since the purported order was void and is not a part of the record in the appeal now pending before this court, we can neither consider the same nor the effects thereof.

Both parties have appealed, but neither questions the propriety of the interlocutory decree of divorce which was granted to plaintiff upon the grounds of extreme cruelty and adultery. Otherwise the decree, insofar as material to defendant's appeal, provides that plaintiff shall have judgment against the defendant for the sum of $396,651.25 in lieu of her interest in the community property to be paid as follows: $50,000 upon the entry of the interlocutory decree; the further sum of $50,000 on or before 90 days from the entry of the interlocutory decree; the further sum of $75,000 on or before 180 days after the last payment of $50,000; the further sum of $75,000 on or before 180 days after the date of the last preceding payment; the balance, if any remaining, to be paid on or before 180 days after the date of the last preceding payment; that if any of said payments be not paid at the time specified, such payments shall bear interest at the rate of five per cent per annum compounded semiannually; also, that on the payment of $396,651.25, defendant shall hold as his sole and separate property all of the community property not awarded to plaintiff by the judgment in this case.

The property specifically awarded to plaintiff consisted of an interest in the contract of purchase covering two lots of land at Apple Valley, California; a 1951 Buick Roadmaster automobile; and certain jewelry, clothing, furs, and other articles of a personal nature worn or used by plaintiff and in her possession and under her control which the court found to be valued at $12,348.75. The particular property awarded to defendant consisted of a ranch appraised at $71,231.63; life insurance policies having a cash surrender value of $5,698.94; and a bank account in the sum of $11,000, or a total of $87,930.57. The court found the value of the community property to be $800,000. The principal asset consisted of a 22 per cent interest in a partnership, the Dallman Supply Company, which in turn owned all of the capital stock of a corporation known as the Dallman Company. A lien was imposed upon the partnership interest in the Dallman Supply Company and all other community property of the parties to secure the payment by defendant of the $395,651.25 to plaintiff. The decree also allowed $30,000 additional attorney fees to plaintiff's attorneys, and the sum of $12,986.55 to plaintiff as a further allowance for costs and expenses of maintaining and defending this action. It further ordered that said attorney fees and costs should be paid out of the community property awarded to the defendant. In addition to the above, the decree provides for the payment of alimony to plaintiff until defendant shall have paid $100,000 to her. It is apparent that the court endeavored to divide the property between the parties on the basis of 51 per thereof to the wife and the remaining 49 per cent to the husband.

Defendant has appealed from the decree except insofar as it awards plaintiff a divorce. Plaintiff appeals from that portion of the judgment which provides that if the defendant fails to make any of the required payments at the time specified, such payments shall thereafter bear interest at the rate of five per cent per annum compounded semiannually, it being her contention that the judgment should bear interest at the rate of seven per cent.

Defendant first contends that the trial court exceeded its jurisdiction in entering a judgment requiring him to pay cash for his wife's share of the community property; and second, that aside from the lack of power to award a money judgment, the trial court's action in so doing constituted an abuse of discretion. Although we have concluded to make a different disposition of the community property for reasons hereinafter stated, we do not agree with either contention. An award of money in lieu of a specific interest in community property is a proper method of distribution of the property and is a matter to be determined in the sound discretion of the trial court. Webster v. Webster, 216 Cal. 485, 488, 14 P.2d 522; Bailey v. Bailey, 60 Cal.App.2d 291, 140 P.2d 693; Pope v. Pope, 102 Cal.App.2d 353, 372, 227 P.2d 867; Clark v. Clark 130 Cal.App.2d 685, 279 P.2d 822; Phillips v. Phillips, 152 Cal.App.2d 582, 587, 313 P.2d 630; Wuest v. Wuest, 72 Cal.App.2d 101, 110, 164 P.2d 32.

Defendant next contends that the trial court had no power to require the payment of any sum of money nor to determine the value of the community property prior to the final decree.

The case of Wilson v. Wilson, 76 Cal.App.2d 119, 132, 172 P.2d 568, 576, is an answer to defendant's contention and a solution of the problem. We quote therefrom. 'In the present case we are faced with the problem expressly left open in the Leupe case [Leupe v. Leupe, 21 Cal.2d 145, 130 P.2d 697]. Here the appeal is from the interlocutory decree. In Remley v. Remley, 49 Cal.App. 489, 193 P. 604, and Strupelle v. Strupelle, 59 Cal.App. 526, 211 P. 248, and by implication in other cases see Peis v. Mohr, 126 Cal.App. 300, 14 P.2d 878; Abbott v. Superior Court, 69 Cal.App. 660, 232 P. 154; Webster v. Webster, 216 Cal. 485, 14 P.2d 522, it has been held to be error to make a present and absolute disposition in the interlocutory. It would appear that a proper solution of this problem would be to hold that the interlocutory may make a present disposition of the community property, but that the title thus conveyed is limited and conditional until the entry of the final decree * * * In the present case it was, of course, proper for the trial court to determine in its interlocutory the status of the property and how it ought to be assigned upon the entering of the final decree.' In the present case justice will be best served by amending the decree so as to provide that the disposition of the property and the judgment relating thereto shall become effective upon the entry of the final decree.

It is next contended by defendant that the trial court erred in finding that all of the property involved in the case was community property, and that its value immediately prior to the date of trial was $800,000. The findings concerning these matters were based upon conflicting evidence, and the factual issues have been determined adversely to the defendant. The record in the case is a lengthy one, consisting of over 3,000 pages of transcript and 256 exhibits. No good purpose would be served by detailed statements of the evidence. Suffice it to say we have carefully examined the record and find that there is substantial evidence to sustain the trial court's determination respecting the...