Giacomazzi v. Rowe

• Decision Date: 28 February 1952
• Citation: 240 P.2d 1020,109 Cal.App.2d 498
• Court: California Court of Appeals Court of Appeals
• Parties: GIACOMAZZI v. ROWE. Civ. 14712.

Page 1020

240 P.2d 1020

109 Cal.App.2d 498

GIACOMAZZI v. ROWE.

Civ. 14712.

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

Feb. 28, 1952.

C. W. Ricketts, Los Gatos, for appellant.

Forrest L. Bentzien, Santa Clara, for respondent.

NOURSE, Presiding Justice.

Plaintiff sued for a declaration of interest in certain real and personal property asking that an undivided one-half interest therein be awarded her on the theory that said property was community.

The parties were formerly husband and wife having been married in December, 1936. They were divorced by a consent decree entered in the State of Nevada on January 17, 1944. Prior to the marriage the defendant purchased a piece of realty in the County of Santa Clara. The total consideration agreed to be paid was $2,200 of which defendant paid approximately $325 before the marraige. Also before the marriage defendant improved the property to the extent of $700. A deed of trust covering the balance due on the purchase price was renegotiated after the marriage and the balance was paid by the defendant from his earnings while the marriage was still in force. Defendant contended that prior to or pending the divorce proceedings plaintiff urged defendant to permit her to obtain a divorce without contest and promised him in writing that she would make no claim upon the property in suit. In her complaint for divorce she alleged that there was no community property; the answer of the husband admitted that fact and he made no contest. Subsequent to the divorce and in reliance upon this assurance defendant remodeled and improved the property at an approximate cost of $3,000.

The trial court found that the real property was the separate property of the defendant since the character of the property is to be determined by its status as of the time of its acquisition. The court's award to plaintiff of a community interest in certain designated personal property is not contested herein.

The principal question argued upon this appeal is whether the rule relied upon by the trial court that the character of property is to be determined by its status as of the time of its acquisition is applicable here. Respondent relies upon Siberell v. Siberell, 214 Cal. 767, 770, 7 P.2d 1003; In re Miller, 31 Cal.2d 191, 197, 187 P.2d 722; Palen v. Palen, 28 Cal.App.2d 602, 83 P.2d 36; Kenny v. Kenny, 97 Cal.App.2d 60, 65, 217 P.2d 151, and similar cases which support this general statement that the character of property, whether separate or community, is to be determined by the status existing at the time it was acquired. There seems to be a uniformity of decision in support of the rule stated. 11 Am.Jur., p. 187, states the rule supported by numerous citations. There it is said: 'The status of property as separate or community property is fixed as of the time when it is acquired. The word 'acquired' contemplates the inception of title, and as a general rule the character of the title depends upon the existence or nonexistence of the marriage at the time of the incipiency of the right by virtue of which the title is finally extended and perfected; the title when so extended and perfected relates back to that time. Stated in another way, the status of title, as belonging to one estate or the other, is determined by the status of the original right, subsequently matured into full title. Under this rule, property to which one spouse has acquired an equitable right before marriage is separate property, though such right is not perfected until after marriage. Thus, property purchased by one spouse before marriage is separate property, though the deed therefor is not executed and delivered until after marriage, and this is true though a part of the purchase price is not paid until after marriage, in the absence of a showing that any part of the balance was paid with community funds; in any event it would be community property only to the extent and in the proportion that the purchase price is contributed by the community. Accordingly, the fact that the title to land owned by a man at the time of his marriage was not perfected by a conveyance from the source of paramount title until after that event does not destroy its character as a separate estate. Property bought before the marriage under a suspensive condition by one of the spouses remains his or her separate property, though the condition is realized after the marriage.'

Appellant relies on Vieux v. Vieux, 80 Cal.App. 222, 251 P. 640; Maskuns v. Maskuns, 93 Cal.App. 27, 268 P. 1093; Estate of Ball, 92 Cal.App.2d 93; Berniker v. Berniker, 30 Cal.2d 439, 182 P.2d 557; and similar cases all to the same purport, except the Berniker case, holding that when the husband before marriage had merely an inchoate right, such as a contract to purchase, and during coverture made the purchase out of community funds the property so acquired became community property. In the Berniker case the property was acquired some ten years after the marriage and during coverture at public sale for the benefit of creditors. The holding in that case was that though the father of the husband had taken title at such sale in his name he held as trustee for the community, the wife having testified that she saw her husband had the purchase price to his father and that such money came from the community earnings. No other authorities are cited which are directly in point, but the fairer rule would appear to be that stated in the paragraph heretofore quoted from American Jurisprudence that, in the absence of a contrary agreement, the community interest runs to the proportion of the purchase price contributed by the community.

However, if we may assume that a community interest was created by the use of community earnings, there remains the question whether such interest was waived by the wife by her express agreement before the divorce, supported by her allegation in the complaint for divorce that she claimed no such interest. By letters addressed to respondent urging him not to contest her action for a divorce she stated that she made no claim to any of the property and would seek no financial award of any kind. In her complaint filed in the Nevada court she alleged that there was no community property.

This issue was well pleaded in defendant's answer where he alleged:

'That plaintiff herein, formerly Florence E. Rowe, requested that defendant, Philip James Rowe, consent to a divorce action so that plaintiff could have her freedom; that said Florence E. Rowe promised defendant, Philip James Rowe, that she would not seek support money and that she would...