Donovan v. Donovan

• Decision Date: 23 December 1963
• Citation: 223 Cal.App.2d 691,36 Cal.Rptr. 225
• Parties: Dorothy M. DONOVAN, Plaintiff and Respondent, v. Douglas DONOVAN, Defendant and Appellant. Civ. 27410
• Court: California Court of Appeals Court of Appeals

Page 225

36 Cal.Rptr. 225

223 Cal.App.2d 691

Dorothy M. DONOVAN, Plaintiff and Respondent, v. Douglas DONOVAN, Defendant and Appellant.

Civ. 27410

District Court of Appeal, Second District, Division 1, California.

Dec. 23, 1963.

Hearing Denied Feb. 19, 1964.

Lloyd J. Seay, No. Hollywood, for appellant.

Martin B. Berman, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal from an interlocutory judgment of divorce (a divorce was granted to each of the parties, custody of the children was awarded and some of the property was distributed) 'and from the whole of said judgment.'

Plaintiff wife brought an action in divorce against the defendant husband. She alleged among other things the usual matters and conditions and then set forth that the community property of the parties consisted of (1) the real property which was occupied by them with their two children as a home, (2) certain horses and a trailer, (3) household furniture and furnishings, (4) an interest in a joint venture, (5) shares of stock in the Donovan Ranch (a) property located and operating in the State of Montana, (6) monies on deposit in a bank and monies in a savings and loan association, (7) certain notes receivable (Yellin notes,) (8) life insurance and (9) automobiles. She asked for support and maintenance for herself and for custody, support and maintenance of the minors and attorneys' fees and costs--further she requested that the husband be restrained from molesting her or the children and from taking any of the assets of the parties. She further prayed for a divorce and 'an equitable division of the community property' and the other usual requests.

An order to show cause was issued and on February 5, 1962, pursuant to stipulation the court made an order (pending further action) that the wife should have the custody of the children, the husband should have reasonable rights of visitation and he should pay for their support and maintenance certain specified sums--the husband was to absent himself from the house previously occupied as a home, the exclusive use thereof to be for the wife and children. After providing for the payment of several other items, the order set forth: 'Defendant is order to pay direct to attorney for plaintiff on account of combined attorney's fees and court costs the sum of $500, payable $250 forthwith, and balance payable on or before May 31, 1962.'

The husband answered the complaint by denying any acts of cruelty and stated '* * * this answering defendant alleges that since the marriage of the parties hereto and as a result of an inheritance by this answering defendant from the C. L. Donovan Estate in Toledo, Ohio, wherein and whereby he received the approximate sum of $34,744.99, and together with other income from the separate property and estate of this answering defendant, the parties hereto have acquired certain property which has been placed in the status of joint tenancy and community property of the parties hereto.' There then followed a list of the properties which the plaintiff wife had listed as being the community property of the parties. It was further set forth that the husband was the owner of 17,600 shares of capital stock of Donovan Ranch in Montana which was his sole and separate property, that it was a part of an inheritance which he had received, that the husband had caused such shares to be carried on the books and records of the Donovan Ranch Company in the name of the husband and wife 'as joint tenants' for the purpose of protecting the wife in the event of the death of the husband.

The husband also filed a cross-complaint of divorce wherein he alleged cruelty and set forth substantially the same allegations as are contained in his answer with reference to the property of the parties. The wife answered the cross-complaint by denying the allegations thereof excepting that she admitted that the husband had caused the 17,600 shares of capital stock in the Donovan Ranch to be carried in joint tenant ownership.

A proposed first amended complaint was ultimately filed and answered, however it is unnecessary to comment further about it insofar as this opinion is concerned.

The joint pre-trial statement set forth that the parties could not agree as to the manner in which they held the shares of stock, the house, livestock and other property, and such was to be an issue in the case--there was a further issue as to whether defendant should pay any added sums as and on account of attorneys' fees and costs 'if further fees and costs are due.'

After a trial where both parties and others testified upon the issues involved the court made findings to the effect that each of the parties was guilty of extreme cruelty to the other, that the husband did cause the 17,600 shares of capital stock in Donovan Ranch (which he had inherited) to be reissued in the name of the husband and wife 'as joint tenants with right of survivorship,' that originally the funds used for the purchase of the real property was separate property of the husband, that prior to the purchase of the property and after he received the funds he deposited the funds in a joint account in favor of himself and his wife, and subsequent to the deposit the funds were commingled with other funds belonging to both of the parties, that the real property was transferred to the husband and wife as joint tenants, that the defendant caused the 17,600 shares of stock in the Donovan Ranch to be held by husband and wife 'as joint tenants with right of survivorship.' The court concluded that each of the parties was entitled to a divorce, that each owned as his, or her, separate property an undivided one-half interest in the real property as joint tenants, that each owned as his or her separate property a one-half interest in the shares of stock that the horses, trailer and furniture and furnishings were the community property of the parties. The court then ordered in the interlocutory judgment of divorce that each party by entitled to divorce, that the wife have the custody of the children with the right of certain visitations in the husband, the parties to own as joint tenants the real property and 'sole possession of the said real property and appurtenances thereto is granted to the plaintiff Dorothy Donovan. Defendant Douglas Donovan is hereby restrained from occupying or entering upon or making use of the premises except in the exercise of his visitational rights.' It was further ordered that each of the parties should own a one-half interest in the shares of stock in the Donovan Ranch Company--that the wife be awarded as her sole and separate property all of the household furniture and furnishings located in the residence. The husband was ordered to pay certain amounts for the support and maintenance of the wife and children and further 'plaintiff's attorney Martin B. Berman, Esq. is hereby awarded additional attorney's fees in the amount of $1,500,00, said sum to be paid to said Martin B. Berman, Esq. one-half (or the sum of $750.00) by the defendant Douglas Donovan and one-half (or the sum of $750.00) by the plaintiff Dorothy Donovan. In addition thereto defendant is ordered to pay to plaintiff's attorney, Martin B. Berman, Esq., the sum of $228.23 as and for costs.'

The husband was awarded the proceeds due from the promissory notes (Yellin notes) as his separate property. The horses were ordered to be sold within one year and the net proceeds to be equally divided between the parties. Appellant makes no contention presently that the divorce should not have been granted even though the notice of appeal indicates that the appeal is from 'the whole of said judgment.'

Appellant now asserts in effect that the findings of fact and conclusions of law are contrary to the pleadings, that the evidence does not sustain the findings with reference to the status of the real and personal property, that the wife is not entitled to the exclusive possession of the home and that the court failed to find upon certain material issues.

A reading of the record indicates that there is substantial evidence from which the court could have drawn the inferences and the conclusions which were made to the effect that the husband knew what he was doing when he caused the various documents and instruments to be so drawn as to have the record title in the respective properties in himself and his wife as joint tenants with the right of survivorship. It is not the province of this court to re-evaluate this evidence (Price v. Price, 217 Cal.App.2d 1, 31 Cal.Rptr. 350 (217 A.C.A. 1).

There is no evidence to the effect that the husband during the marriage ever attempted to convey his interests in any of the joint tenancy property, without joinder by the wife, to another with the thought of severing the joint tenancy. (See Delanoy v. Delanoy, 216 Cal. 23, 13 P.2d 513.) It is apparent that there was no evidence which the court believed to the effect that the parties themselves had agreed to terminate any joint tenancy created subsequent to the marriage. See McDonald v. Morley, 15 Cal.2d 409, 101 P.2d 690, 129 A.L.R. 810; Wardlow v. Pozzi, 170 Cal.App.2d 208, 338 P.2d 564; California Trust Co. v. Anderson, 91 Cal.App.2d 832, 205 P.2d 1127. See also Goldman v. Goldman, 116 Cal.App.2d 227, 253 P.2d 474.

Section 683 of the Civil Code sets forth the definition and method of creating a joint tenancy. ¹

It is correctly stated in the California Family Lawyer, California Continuing Education of the Bar, Volume 1, page 106: 'Where title to property is taken in joint tenancy by the husband and wife, a gift is presumed from whatever estate furnished the consideration for the property, whether the community estate or the separate estate of either spouse, to the extent necessary to cause the property to be held in joint tenancy. Benam v. Benam (1960), 178 Cal.App.2d 837, 3 Cal.Rptr. 410. Therefore, the presumption of a joint tenancy from the form of the conveyance...