Fritschi v. Teed

• Decision Date: 11 March 1963
• Citation: 29 Cal.Rptr. 114,213 Cal.App.2d 718
• Parties: Rose Marie FRITSCHI, Plaintiff and Appellant, v. Marie Sylvera TEED, Defendant and Respondent. SUN LIFE ASSURANCE COMPANY OF CANADA, a corporation, Plaintiff, v. Marie Sylvera TEED, Defendant, Cross-Complainant and Respondent. Rose Marie Fritschi et al., Defendants, Cross-Defendants and Appellants. MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a corporation, Plaintiff, v. Marie Sylvera TEED, Defendant and Respondent, Rose Marie Fritschi et al., Defendants and Appellants. Civ. 10384.
• Court: California Court of Appeals Court of Appeals

Page 114

29 Cal.Rptr. 114

213 Cal.App.2d 718

Rose Marie FRITSCHI, Plaintiff and Appellant, v. Marie Sylvera TEED, Defendant and Respondent.

SUN LIFE ASSURANCE COMPANY OF CANADA, a corporation, Plaintiff, v. Marie Sylvera TEED, Defendant, Cross-Complainant and Respondent.

Rose Marie Fritschi et al., Defendants, Cross-Defendants and Appellants.

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, a corporation, Plaintiff, v. Marie Sylvera TEED, Defendant and Respondent, Rose Marie Fritschi et al., Defendants and Appellants.

Civ. 10384.

District Court of Appeal, Third District, California.

March 11, 1963.

Rehearing Denied April 8, 1963.

Hearing Denied May 8, 1963.

Morton L. W. Friedman, Sacramento, for appellants.

McAllister & Johnson, Sacramento, for respondent.

FRIEDMAN, Justice.

The present litigation represents one phase of the same hostilities which produced our decision in Estate of Fritschi, 215 A.C.A. 569, 28 Cal.Rptr. 86. Plaintiff Rose Marie Fritschi and Dr. Ulrich had married in 1934 and received an interlocutory decree of divorce in April, 1958. At the time of their divorce they were the parents of two teenage sons. For several years preceding the divorce Dr. Fritschi had been engaged in an affair with defendant Marie Teed. The Fritschi divorce proceedings were contested. They culminated in an interlocutory decree signed and entered on April 23, 1958. The decree awarded a divorce to Mrs. Fritschi and granted her custody of the two sons. Dr. Fritschi was directed to pay $900 per month alimony and $350 per month child support.

One paragraph of the interlocutory decree stated that Mrs. Fritschi 'be, and she is hereby, awarded' certain described items of community property including the family residence and its furnishings, an automobile and shares of stock. Another paragraph declared that Dr. Fritschi 'be, and he is hereby, awarded' specified items of community property including several parcels of real estate, insurance policies on his own life, and:

'Medical practice of Ulrich A. Fritschi, M.D., including all furniture, fixtures and equipment pertaining thereto, accounts receivable, medical library, and interest in orthoptic laboratory furniture, equipment and supplies;'

The interlocutory decree also contained the usual provisions for entry of a final decree at the expiration of one year 'and the Court shall grant such other and further relief as may be necessary to a complete disposition of this action.'

After the interlocutory decree Dr. Fritschi and Mrs. Teed commenced living together with the intention of marrying as soon as his divorce became final. Before his divorce he had given Mrs. Teed some gifts and now there were additional gifts. They purchased a building lot in Evergreen Estates, Sacramento. The price was $4,575, of which Mrs. Teed contributed $1,400 of her own funds and Dr. Fritschi contributed $3,175. Title was taken in Mrs. Teed's name. Changing their minds about building on that lot, they bought a home on Columbia Drive, Sacramento. Dr. Fritschi made initial payments aggregating $5,000 and made several monthy payments of $350 on this home. Title stood in Mrs. Teed's name. They intended to refinance the house and to take title in both their names when they married. Dr. Fritschi, his elderly mother and Mrs. Teed moved into the house. He bought furniture, including a piano. In March, 1959 he gave Mrs. Teed $5,000 for the use of her and his mother.

One of the items of community property awarded to Dr. Fritschi by the interlocutory decree of divorce was an insurance policy for $10,000 issued by Sun Life Assurance Company. After the interlocutory decree he designated Mrs. Teed as beneficiary of this policy. In July, 1958 he took out a $25,000 policy with Massachusetts Mutual Life Insurance Company. Originally designating the estate as beneficiary, he made Mrs. Teed the beneficiary of this policy in January, 1959.

During the 12 months following the interlocutory decree Dr. Fritschi's net income from his medical practice was approximately $47,000. During the same period he received approximately $40,000 from other sources such as loan repayments, sales proceeds of real estate, surrender of life insurance policies and disability payments. During this period he paid Mrs. Fritschi approximately $17,000, mostly as alimony and child support. His earnings were mingled with other receipts with little or no regard for their origin, and his expenditures, regardless of objective, seem to have been made from commingled funds.

Either Doctor or Mrs. Fritschi would have been eligible for a final decree of divorce on April 24, 1959. In January, 1959 Dr. Fritschi entered the hospital, apparently afflicted with an incurable ailment. On April 5, 1959 he died.

Three separate lawsuits have been consolidated for the purpose of this appeal. In the first action Mrs. Fritschi sues Mrs. Teed for one-half the value of assets given her by Dr. Fritschi before and after the interlocutory decree. These assets, Mrs. Fritschi alleges, had their source in community funds and were given away without her consent. The second suit is an interpleader action filed by Sun Life Assurance Company to adjudicate conflicting claims of Mrs. Fritschi and Mrs. Teed upon the $10,000 life insurance policy issued by that company. On September 15, 1958, Dr. Fritschi paid an annual premium of $364 on this policy. Mrs. Teed's claim to the proceeds is founded upon her status as beneficiary at the time of the insured's death. Mrs. Fritschi claims the proceeds for herself and her two sons, contending that Dr. Fritschi was of unsound mind and acting under undue influence at the time he designated Mrs. Teed as beneficiary and alleging also that the policy is community property.

The third suit was filed by Massachusetts Mutual Life Insurance Company to determine the parties' conflicting claims to the $25,000 insurance policy issued by that company. Mrs. Fritschi claims the proceeds for herself and her two sons on the theory that the two premium payments ($142.67 in July, 1958 and $508.94 in March, 1959) were made from community funds and on allegations of unsound mind and undue influence.

Mrs. Fritschie's claim rests in part upon the contention that the interlocutory decree was not an immediate distribution of marital property; rather it was prospective only, to be operative upon entry of the final decree; thus the marital property never lost its community character, and she, the widow, is entitled to recover half of any gifts and half the proceeds of life insurance purchased with community funds. She also argues that gifts and insurance premium payments made after the interlocutory decree had their source in commingled funds, derived partly from Dr. Fritschi's earnings. At the time of these events a husband's earnings following an interlocutory decree of divorce were community property. ¹ (Brown v. Brown, 170 Cal. 1, 147 P. 1168.) Mrs. Fritschi contends that in the absence of evidence to the contrary, payments made from the commingled funds are presumed to have a community character. She then points to the rule that a widow may avoid one-half of a gift of community property made by her husband without her consent; and to the corollary that a widow is entitled to one-half the proceeds of life insurance, premiums for which were paid from community assets without her consent.

From a judgment in Mrs. Teed's favor in all three actions Mrs. Fritschi appeals on behalf of herself and her sons. Pivotal to the trial court's decision was its appraisal of the interlocutory decree and its effect on the property and funds from which Dr. Fritschi made the payments now under attack. We agree with that appraisal.

Plaintiff Mrs. Fritschi correctly concedes that the divorce court had power, that is, jurisdiction, to render an interlocutory decree immediately distributing the community property. (Leupe v. Leupe, 21 Cal.2d 145, 148-149, 130 P.2d 697; Darter v. Magnussen, 172 Cal.App.2d 714, 718-720, 342 P.2d 528.) She contends, however, that the interlocutory decree of divorce in this case did not do so and cannot be so interpreted. In this connection she relies upon Johnston v. Johnston, 106 Cal.App.2d 775, 236 P.2d 212. That case expresses the view that if the interlocutory decree includes a provision for grant of further relief at the time of entry of the final decree, it will be construed not as an immediate disposition of community property but as a determination of the manner in which the property will be distributed by the final decree. As we have noted, the Fritschi decree does indeed contain a provision for further relief at the time of the final decree.

It has been said that final distribution of marital property should await the final decree; that an interlocutory decree should not attempt an immediate disposition of property. (Dallman v. Dallman, 164 Cal.App.2d 815, 819-820, 331 P.2d 245; Johnston v. Johnston, 106 Cal.App.2d 775, 781, 236 P.2d 212; Waters v. Waters, 75 Cal.App.2d 265, 270, 170 P.2d 494; additional cases cited in Leupe v. Leupe, supra, 21 Cal.2d at 149, 130 P.2d at 699.) From the hortatory expression that an interlocutory decree should not attempt a final property distribution, several decisions infer that such an action is error, that is, necessarily erroneous. (Gudelj v. Gudelj, 41 Cal.2d 202, 259 P.2d 656; Waters v. Waters, 75 Cal.App.2d 265, 170 P.2d 494; Strupelle v. Strupelle, 59 Cal.App. 526, 211 P. 248; Remley v. Remley, 49 Cal.App. 489, 193 P. 604.) The inference is out of harmony with suggestions that property determinations should generally be made at the same time as other divorce issues are decided. (Pereira v. Pereira, 156 Cal. 1, 10, 103 P. 488, 23 L.R.A.,N.S., 880; Klebora v. Klebora, 118 Cal.App.2d 613, 619, 5 P.2d 965; Huneke v. Huneke, 12 Cal.App.2d 199, 203, 107 P. 131.) It is also out of harmony with common practices of trial judges and divorce counsel throughout the state.

These dissonant...