Estate of Atherley

• Court: California Court of Appeals
• Writing for the Court: KAUFMAN; GARDNER, P.J., and KERRIGAN
• Citation: Estate of Atherley, 119 Cal.Rptr. 41, 44 Cal.App.3d 758 (Cal. App. 1975)
• Decision Date: 21 January 1975
• Parties: , 81 A.L.R.3d 97 In the Matter of the ESTATE of Harold F. ATHERLEY, Deceased. Annette ATHERLEY, Petitioner and Appellant, v. Ruth ATHERLEY, Respondent. Civ. 13633.

Page 41

119 Cal.Rptr. 41

44 Cal.App.3d 758, 81 A.L.R.3d 97

In the Matter of the ESTATE of Harold F. ATHERLEY, Deceased Annette ATHERLEY, Petitioner and Appellant, v. Ruth ATHERLEY, Respondent.

Civ. 13633.

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

Jan. 21, 1975.

Hearing Denied March 26, 1975.

Rager, Rager, Winstead & Bright and Henry F. Rager, Fontana, for petitioner and appellant.

Sullivan & Brown and William H. Sullivan, Riverside, for respondent.

OPINION

KAUFMAN, Associate Justice.

Annette Atherley (hereafter 'Annette') appeals from determination of heirship in the estate of Harold Atherley (hereafter 'Harold'). Harold died intestate September 2, 1969. Annette and Ruth Atherley (hereafter 'Ruth') both filed for determination of heirship as the surviving spouse of Harold. Ruth was determined the surviving spouse. The community property was ordered distributed to Ruth, and Harold's separate property was ordered distributed one-third to her and two-thirds to her children. Annette was awarded her separate property, a putative one-half interest in certain property, and a joint tenancy survivorship interest in other property.

Pertinent Facts

Harold and Ruth were married in 1933; Harold and Annette met in 1945. In 1947 Harold left Ruth for Annette, and they lived together until Harold's death in 1969. As described below, in 1961 Harold divorced Ruth, Ex parte, in Juarez, Mexico. The next year Harold and Annette were married in Reno, Nevada. Harold and Ruth had two children; ¹ Harold and Annette had no children. At all times, Harold, Ruth and Annette were domiciled in California.

After living in Santa Cruz approximately a year, Harold and Annette moved to the Los Angeles area in 1948. They resided in Los Angeles until 1961. While in Los Angeles both were employed and they pooled their earnings in various bank accounts. In 1961 they moved to Cherry Valley, where they lived until Harold's death.

In October 1961, Harold and Annette went to Juarez, Mexico, to obtain Harold's divorce from Ruth. They left Los Angeles on a Thursday night, obtained the divorce decree, and returned to Los Angeles by Monday morning. Ruth was served with the divorce papers, but she ignored them after an attorney informed her the divorce would be invalid in California. Subsequently in 1961, Ruth filed a divorce action in Los Angeles. This proceeding was withdrawn before it went to judgment.

The Mexican divorce was arranged by Mr. Newman, a Los Angeles attorney. After their return from Juarez, Harold and Annette met with Newman. He advised them that they had a valid divorce under the laws of Mexico. ² They apparently interpreted this to mean a valid divorce for all purposes, since Annette testified, '(Mr. Newman advised us) (t)hat the divorce was legal and that we could get married.'

In 1962 Harold and Annette were married in Reno, Nevada. Harold's sworn Affidavit of Application for Marriage admits his prior marriage to Ruth, but avers this marriage was dissolved by the Mexican divorce.

After their marriage, Harold and Annette began two improvements on realty in the Edgar Vineyard Tract of Cherry Valley. ³ They both contributed services to the construction of the improvements, and funds used to purchase both land and materials can be traced to their accumulated earnings. The improvements on one parcel were completed, and the parcel was sold. The improvements on the other parcel were incomplete when Harold died in 1969.

Harold suffered a heart attack in 1963. Afterwards, his income consisted of Social Security disability benefits, and the proceeds from the sale of realty. From 1961 on, Annette had no regular source of employment.

At Harold's death his estate consisted of realty in Cherry Valley--a parcel in the Cherry Valley Land and Water Company Subdivision, and the unsold land in the Edgar Vineyard Tract; a savings account in Southwest Savings and Loan; a savings account in Provident Federal Savings and Loan; and miscellaneous personalty. The history of this property is as follows.

The realty was acquired in 1959 and 1960, respectively, with accumulated earnings of Harold and Annette. Any interest of Ruth in the realty was transferred to Harold as his separate property in quitclaim deeds executed in 1963. Unimproved portions of the Edgar Vineyard property were sold in 1965 and 1967, and, as noted above, two parcels were improved by Harold and Annette. One of the improved parcels was sold in 1967. Cash proceeds from this sale ultimately ended up in the Provident Federal account. The remainder of the proceeds was in the form of a promissory note held by Harold and Annette in joint tenancy; this note passed to Annette by right of survivorship.

The Southwest account was opened in 1961, and the Provident Federal account was opened in 1964. Both accounts were established with funds accumulated by Harold and Annette between 1948 and 1961. Apparently other deposits were made, but the record mentions only the proceeds from the Edgar Vineyard sales.

Essentially all the personalty was acquired with monies from the savings accounts. ⁴ The exceptions are a .22 caliber pistol and an adding machine, which Annette acquired separately and gave to Harold as gifts. ⁵

At death Harold had four potential heirs: two waives and two children. The trial court held Ruth was the surviving spouse. Anntte was held a putative spouse, and she was awarded a putative one-half interest in the value of the unfinished Edgar Vineyard improvement alone. ⁶ The trial court found the personalty to be the community property of Harold and Ruth. The rest of the estate, including all the remaining realty interests, was found to be Harold's separate property. The community property was awarded to Ruth. The separate property was divided one-third to Ruth and one-third to each child.

Contentions

In substance, Annette contends: (1) Ruth is estopped to assert the invalidity of the Juarez divorce; (2) even if Ruth may assert the invalidity of the divorce, Annette is the surviving spouse; and (3) even if Ruth is entitled to share in the estate, the trial court erred in its disposition of the property.

Discussion and Disposition

There is no question that the Juarez divorce has no force in California, ⁷ and the issue is not contested by the parties. The question remains, however, whether Ruth may raise the invalidity of the divorce. Annette contends Ruth is equitably estopped to assert its invalidity. We do not agree.

Estoppel has been used in this state to validate a second marriage. Usually it is applied when the party estopped has procured the valid divorce, or relied on the validity of the divorce by remarrying. (See Spellens v. Spellens, 49 Cal.2d 210, 217--222, 317 P.2d 613.)

Estoppel has also been applied in cases where the estopped party '. . . slept on her property rights year in and year out and who, by her silence and acquiescence, allowed the rights of a third party to intervene.' (Brown v. Brown, 274 Cal.App.2d 178, 190, 82 Cal.Rptr. 238, 245.) In Brown, there was an invalid Mexican divorce. The first wife waited 30 years before asserting a claim against property accumulated by Mr. Brown and his second wife. In the interim, she acquiesced in her husband's use of the second wife's separate property to build up the purported community property, and accepted monthly support payments from him. Further, the first Mrs. Brown had not previously incicated she challenged the relationship between her husband and his second wife. The court held her estopped to claim a community property interest. Estate of Shank, 154 Cal.App.2d 808, 316 P.2d 710, found an estoppel where the appellant Worley had not ascertained or attacked the validity of a Mexican divorce, and had acted 'as 'a single man." (154 Cal.App.2d at p. 811, 316 P.2d 710.)

Estoppel, however, applies only '. . . to prevent a person from asserting a right . . . where, because of his conduct, silence or omission, it would be unconscionable to allow him to do so.' (Brown v. Brown, Supra, 274 Cal.App.2d at p. 188, 82 Cal.Rptr. at p. 245.) We do not find it unconscionable to allow Ruth to assert the invalidity of the Juarez divorce.

The most that can be said is that Ruth acquiesced, to some extent, in the divorce. In this regard, she lived apart from Harold, supported herself completely out of her separate property, an had relatively cordial relations with Harold and Annette between 1963 and 1969.

On the other hand, she did not passively sit by after learning of the Juarez action. Upon being served with the divorce papers, she consulted her attorney. We infer that but for his advice, she would have done more than simply ignore the Juarez proceedings.

Especially significant are the quitclaim deeds executed in 1963. These deeds were prepared by Harold. In them, Ruth permitted herself to be denominated 'a married woman.' More importantly, she personally lined out a portion of each deed reading: 'This deed is given for the purpose of carrying out the terms of an Oral Property Settlement Agreement between the Grantor and Grantee.' Ruth testified, 'I . . . told Harold I wouldn't sign it as a property settlement, but just to give him the property to sell. And that was--all we did there so he could sell the property. That was the reason.'

Ruth held herself out as married to Harold. The filing of her Los Angeles divorce action indicates she considered herself married to Harold. The withdrawal of that action implies she desired to remain so married. She filed her income tax returns as a married person, filing separately. Further, she was friendly with Harold and Annette only after his heart attack, and only out of concern for his health.

Estoppel is applied to prevent a person from acting ". . . in a manner inconsistent with his former position or conduct to the injury of another.' (Citations.)' (Brown v. Brown, Supra, 274 Cal.App.2d at p. 189, 82 Cal.Rptr. at p. 245.) Guided by this principle, we...