Gudelj v. Gudelj

• Decision Date: 03 July 1953
• Court: California Supreme Court
• Parties: GUDELJ v. GUDELJ. S. F. 18447.

Page 656

259 P.2d 656

41 Cal.2d 202

GUDELJ v. GUDELJ.

S. F. 18447.

Supreme Court of California, in Bank.

July 3, 1953.

As Modified on Denial of Rehearing July 28, 1953.

Leo R. Friedman, San Francisco, for appellant.

Jefferson E. Peyser, San Francisco, for respondent.

EDMONDS, Justice.

Catherine Gudelj was awarded an interlocutory decree of divorce from John Gudelj on the ground of extreme cruelty. She has appealed from those portions of the decree relating to support, custody of the minor child, and the disposition of the property of the spouses.

The parties were married in 1938. Prior to that time, John was owner and operator of the Pacific Avenue Cleaners. He continued this business until 1943. In 1946, after his discharge from military service, he operated the Owl Cleaners in partnership with one Grinton. They dissolved the partnership in the following year, and John purchased a one-fourth interest in the Helene French Cleaners where he began to work as a 'benzine man'.

In 1948, John made the first payment on a new home, the total purchase price of which was $15,000. Title was taken by a deed which described John and Catherine as joint tenants. The down payment was made in part from community funds and partly from John's separate funds. All subsequent payments were made from his separate property. At the time this action was commenced, some $10,000 or $11,000 remained unpaid on a mortgage against the property.

Catherine commenced an action for separate maintenance and support, and John cross-complained for a divorce. An interlocutory decree of divorce was rendered in favor of Catherine on an amended complaint and against John on his cross-complaint. Physical custody of the minor son was given to Catherine, subject to certain restrictions against removing the boy from the county. In addition, Catherine was awarded $50 per month for support of the child and alimony of $100 per month for a period of two years.

The court found that an undivided one-fourth interest in the Helene French Cleaners was the separate property of John. It also declared that a one-sixth interest in the home is community property, the remainder being John's separate property. In lieu of her community interest in the home, Catherine was awarded $2,375, to be paid within one year from the date of entry of the decree. For a period of 60 days, she was given undisturbed possession of the premises, subject to the condition that if she did not vacate them at the end of that period all payments made by John on the mortgage against the property were to be deducted from the $2,375 mentioned in the decree.

Catherine contends that the provisions of the interlocutory decree which do not allow her to remove the child from the county amount to an abuse of discretion. She argues, also, that the amounts allowed to her for alimony and for support of the child are insufficient. Another contention is that the evidence does not support the findings that a one-fourth interest in the Helene French Cleaners is the separate property of John and that his interest in the home is other than that of a joint tenant. Finally, she says, it was error for the trial court, by an interlocutory decree, to dispose of the property of the spouses.

In reply, John denies that the decree is erroneous in any respect. Furthermore, he asserts, Catherine has accepted benefits from the decree and, by doing so, she has waived any right she might have had to appeal from it.

According to the terms of the decree, Catherine may not remove the child from the territorial limits of the City and County of San Francisco for any period in excess of five days, except that once in each calendar year she may do so for a single continuous period not exceeding three weeks. She asserts that this restriction is arbitrary and unreasonable, in that it fails to provide for the possibility of her being compelled to move to another county for the health of the child or for her personal convenience.

In a divorce proceeding involving the custody of a minor, primary consideration must be given to the welfare of the child. The court is given a wide discretion in such matters, and its determination will not be disturbed upon appeal in the absence of a manifest showing of abuse. Gantner v. Gantner, 39 Cal.2d 272, 275, 246 P.2d 923; Taber v. Taber, 209 Cal. 755, 757, 290 P. 36. 'Every presumption supports the reasonableness of a decree.' Runsvold v. Runsvold, 61 Cal.App.2d 731, 733, 143 P.2d 746.

Custody of the child was given jointly to Catherine and John, with physical custody in Catherine. John was given the right to visit the boy at reasonable times and to have him for at least one day each week. Presumably, such visits are for the best interests of the child. The record includes testimony to the effect that Catherine had threatened to remove the boy from the state and to change his name, thus defeating John's visitation rights. Under such circumstances, it cannot be said that the restrictions imposed upon removal of the child amount to an abuse of discretion. The trial court maintains continuing jurisdiction of the matter and, in the future, if circumstances should arise of the kind suggested by Catherine, appropriate modifications of the custody provisions may be made.

The amount to be allowed for alimony and support of a child are matters which also lie within the sound discretion of the trial court. Brockmiller v. Brockmiller, 57 Cal.App.2d 623, 625, 135 P.2d 184. No abuse of that discretion is shown here. Catherine was given alimony amounting to $100 per month for two years. In addition, she was given some money which was community property and an insurance business producing income of about $700 per year. Prior to 1947, Catherine earned from $280 to $300 per month as a bookkeeper and there is evidence that she is physically able to resume employment. An award of $50 per month for the support of the child, although not overly generous, cannot be said to be so inadequate as to amount to an abuse of discretion.

According to the record, the undivided one-fourth interest in the Helene French Cleaners was purchased by John for $11,500. John paid $1,500 of that amount in cash and executed a note for $10,000. No specific finding was made concerning the status of the note, but the trial court found that the cash payment was made from John's separate funds and concluded that the entire partnership interest is his separate property. Catherine contends that the evidence does not support these findings.

The evidence concerning the source of the $1,500, although confused and conflicting, is sufficient to support a finding that it was derived from John's separate property. John testified that the money came from the Owl Cleaners and, although he further stated that the equipment and fixtures of the business had been sold at a loss, apparently at least $1,500 was obtained from that source. Catherine claims that the Owl Cleaners must be presumed to have been community property because the business was acquired during the existence of the marriage. Civ.Code, Sec. 164. But that presumption is controlling only when it is impossible to trace the source of specific property. Falk v. Falk, 48 Cal.App.2d 762, 768, 120 P.2d 714. Here the presumption is rebutted by the testimony of John that the Owl Cleaners was purchased with funds acquired from the sale of the equipment of the Pacific Avenue Cleaners, admittedly his separate property, and from a bank account held jointly by John with his mother in which was deposited the proceeds from the sale of real property owned by them prior to John's marriage.

However, the record does not support the conclusion that the balance of the purchase price of the partnership interest was made from John's separate property. That part of the payment was represented by a note signed by John. There is a rebuttable presumption that property acquired on credit during marriage is community property. Civ.Code, Sec. 164; Hogevoll v. Hogevoll, 59 Cal.App.2d 188, 193-194, 138 P.2d 693. But 'funds procured by the hypothecation of separate property of a spouse are separate property of that spouse'. In re Estate of Abdale, 28 Cal.2d 587, 592, 170 P.2d 618, 922. The proceeds of a loan made on the credit of separate property are governed by the same rule. In re Estate of Ellis, 203 Cal. 414, 416-417, 264 P. 743. In accordance with this general principle, the character of property acquired by a sale upon credit is determined according to the intent of the seller to rely upon the separate property of the purchaser or upon a community asset. In re Estate of Ellis, supra, 203 Cal. 414, 416, 264 P. 743; Hogevoll v. Hogevoll, supra, 59 Cal.App.2d 188, 193-194, 138 P.2d 693; and see Schuyler v. Broughton, 70 Cal. 282, 285, 11 P. 719; Vandervort v. Godfrey, 58 Cal.App. 578, 582, 208 P. 1017. In the absence of evidence tending to prove that the seller primarily relied upon the purchaser's separate property in extending credit, the trial court must find in accordance with the presumption. See Falk v. Falk, supra, 48 Cal.App.2d 762, 767, 120 P.2d 714.

No testimony was offered concerning the intent of the seller in extending credit to John. John asserts, however, that shortly before the credit transaction, he and his mother sold real property for some $30,000, and the seller must have relied upon John's interest in the proceeds. Furthermore, he contends, his previous failures in attempts to operate cleaning businesses demonstrate that the basis for credit could not have been his personal ability and capacity. However, even if these facts be accepted as true, there is no evidence that the seller had knowledge of their existence. There being no satisfactory evidence to contradict the presumption, it must prevail.

Between the date of purchase of the partnership interest and the commencement of the present action, John withdrew from the profits of the business $3,600 per year. In addition,...