Griffin v. Griffin

• Decision Date: 17 December 1953
• Docket Number: Nos. 15444 and 15445,s. 15444 and 15445
• Citation: 122 Cal.App.2d 92,264 P.2d 167
• Parties: GRIFFIN v. GRIFFIN et al. Civ.
• Court: California Court of Appeals

Page 167

264 P.2d 167

122 Cal.App.2d 92

GRIFFIN v.GRIFFIN et al.

Civ. Nos. 15444 and 15445.

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

Dec. 17, 1953.

Rehearing Denied Jan. 15, 1954.

Hearing Denied Feb. 10, 1954.

A. Don Duncan, San Francisco, for appellants.

Charles Reagh, San Francisco, for respondent.

NOURSE, Presiding Justice.

These are reciprocal divorce actions in which the husband appeals from the adverse judgment in the main action (15445) and from an order awarding the wife fees and costs to oppose his appeal (15444).The husband's attorney, A. Don Duncan, intervened in the main divorce action to protect his assigned one-third interest in a fund deposited in court in the name of the husband in another action but which the wife in this divorce action claimed to be her separate property.Intervener appeals from the judgment (15445) in so far as it is adverse to him and awards the fund as a whole to the wife.The main appeal (15445) is on an engrossed statement of oral proceedings and a clerk's transcript, the appeal 15444 on an engrossed statement only.

The parties were married in March, 1943.There are no children of this marriage.At the time of the trial in September, 1950, the husband was sixty-two, the wife fifty years old.Before and at the time of this marriage the wife was a waitress and had been twice married.After the marriage the husband opened a cleaning business in San Francisco.The wife also worked there, according to her 'full time', according to the husband 'half time.'He complains that she put money of the business in an account under the name she had used prior to her marriage and that her conduct with regard to a certain fireman was improper.He instituted a divorce action in 1944 but he dropped the action on her promise not to see the fireman any more.In 1944she made a gift of $4000 of his money to her daughter by a prior marriage.In 1945 a new divorce action was started by the husband on the wife's resuming relations with the fireman and again dismissed.In March, 1947, the husband again started a divorce action after having found his wife with the fireman.He made a property settlement agreement with her in which he gave her $10,500 in settlement of all community property, separate property and alimony claims, and she abandoned all claims to the business, book accounts and the Cadillac automobile to him, each otherwise to keep what they had or would earn in the future.He paid the $10,500 and also $2,500 to her attorneys, and on April 3, 1947, he obtained an uncontested interlocutory decree on the ground of extreme cruelty.However a few days thereafter he suffered a physical and nervous breakdown.He was in a hospital ten days, and a little later went back to his former home and wife.She testified that there was then a formal reconciliation and that they agreed that each would keep as separate property what each had received under the property settlement, but that for the future the former community relation would be resumed (without such financial agreement the effect of a reconciliation would have been the same.Mundt v. Connecticut Gen. Life Ins. Co., 35 Cal.App.2d 416, 418, 95 P.2d 966;9 Cal.Jur 827.)In April-May, 1947, the husband sold the Chestnut Street cleaning business to a certain Comperes for $37,500, of which $10,000 was paid down, the balance to be paid in monthly installments of $500 and secured by a chattel mortgage on the equipment of the business.He testified that he had to pay $3,750 commission and deficiencies in federal income tax for several years amounting to some $3,000 from the down payment.When he found early in 1948 that the Comperes had gone East and that some equipment was missing he filed a foreclosure suit on March 1, 1948, through Morris Lowenthal as his attorney.At the receiver's sale on August 9, 1948, he bid the property in for $4,600 from the indebtedness of the Comperes, but a certain Williamson, who had acquired an interest in the business from them, objected and demanded payment in cash.Mr. Lowenthal advised that although he thought the objections without merit, cash deposit might be required.According to the wife's testimony, she then furnished the $4,600 on the husband's and Mr. Lowenthal's assurance that it would be returned by the court to her in a short time.According to the husband's testimony he borrowed $5,000 for the purpose from a friend.On August 20th Judge Kaufman required the cash deposit.The receipt is in the name of the husband.On August 25, 1948, Mr. A. Don Duncan was substituted for Mr. Lowenthal.The wife testified that she provided $350 for his retainer.The sale was confirmed, the receiver getting $460 of the deposit.Motions to release the balance to Mr. Griffin were denied.Considering the foreclosure suit prematurely filed because there had been no default in payment until June 10, 1948, Mr. Duncan dismissed the action without prejudice on October 29, 1948.On November 23, 1948, Williamson filed an action to quiet title to the fund.Both Mr. Griffin and Williamson tried repeatedly to have the money released on motion but without result.Griffin employed Mr. Duncan to defend against the Williamson quiet title suit and to cross-complain in it and assigned to him a 30% interest in the fund.Griffin obtained a judgment for the payment of the fund on July 7, 1949.

In the meantime he had opened a new cleaning plant at 745 O'Farrell Street on leased premises, in which he put the equipment which he had bought.He borrowed for the installation $4000, giving a chattel mortgage, and opened the business in January, 1949.The wife again worked in the business.There were difficulties repeatedly between them.Twice the husband called the police to put her out of the shop.The final separation came in June 27, 1949, when he found her going through the pockets of his coat.

After the judgment as to the deposit Williamson made a motion for a new trial which was denied, and he later appealed.After the motion for a new trial had been denied, Mr. Griffin gave his wife a check for $4,100 postdated September 13, 1949, but when her attornesy offered him an assignment of the fund for signature he refused to sign.On September 8, 1949, the wife's divorce suit was filed and he stopped payment of the check.Mr. Duncan obtained a dismissal of the appeal from Williamson's attorneys, which, however, he did not file when he heard Mrs. Griffin claimed the fund as he wished first to get his fee out of the matter.

The wife's complaint alleged domicide in San Francisco, extrme cruelty in general terms, that there was community property including the O'Farrell Street business, that the husband had under his control the sum of $4,100 on deposit with the clerk of the San Francisco Superior Court, which sum is her separate property, that unless restrained the husband will do away with the community property and the deposit, with prayer for an interlocutory decree, all the community property, permanent and pendente lite support and maintenance, counsel fees and costs, a pendente lite injunction protecting the community property and the deposit of $4,000 and general relief.After an order to show cause and hearing at which the husband objected to the jurisdiction of the court as to separate property, a preliminary order restraining defendant from transferring community property and the deposit and awarding the wife temporary alimony costs and fees was granted.At the same time defendant demurred to the complaint on the ground that a divorce action and an action as to separate property were improperly united, which demurrer was overruled.

The husband's answer denied cruelty, the existence of community property and that the deposit was the wife's separate property or that she had ever claimed it, and alleged that the cleaning establishment and the deposit were his separate property, that he had litigated it as such and assigned 30% of it to his attorney and that the court in the divorce action had no jurisdiction to make any determination as to it, that plaintiff was able to support herself and that she had made a property settlement with him in which she released all community and separate property and alimony claims, which settlement was approved in an interlocutory decree granted him on the ground of the wife's extreme cruelty, which decree had become final, and that plaintiff was estopped from claiming anything contrary to that settlement.He cross-complained for a divorce on the ground of the wife's extreme cruelty alleged in general terms, for awarding of the cleaning business to him, reapproval of the property settlement of April 1, 1947, and that if the court should determine it had jurisdiction then to award 70% of the fund to himself, 30% to Duncan.The cross-complaint was amended to allege specific acts of cruelty of the wife.

In her answer to the amended cross-complaint the wife denied the allegations in general but admitted the property settlement and interlocutory decree and alleged reconciliation and resumption of her property rights for the future.After permission of the court was obtained, A. Don Duncan filed his complaint in intervention, alleging the facts as to the deposit stated before, and several instances in which the wife had been present when intervener took steps in court to obtain the release of the deposit to the husband without objecting or making any claim to it herself, that therefore the wife was estopped to claim that the 30% assigned to him was her property with prayer for a declaration that he was the owner of said 30% interest.The wife denied said allegations.

The court found among other things the wife's residency requirement, extreme cruelty of the husband, the 1947 property settlement and interlocutory decree, reconciliation of the spouses and oral agreement cancelling the settlement for the future only, that the O'Farrell Street business is in part ...