Kershman v. Kershman

• Decision Date: 11 May 1961
• Citation: 13 Cal.Rptr. 290,192 Cal.App.2d 23
• Parties: Sadie KERSHMAN, Plaintiff and Respondent, v. Philip KERSHMAN, Defendant and Appellant. Civ. 25085.
• Court: California Court of Appeals Court of Appeals

Page 290

13 Cal.Rptr. 290

192 Cal.App.2d 23

Sadie KERSHMAN, Plaintiff and Respondent, v. Philip KERSHMAN, Defendant and Appellant.

Civ. 25085.

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

May 11, 1961.

Brian J. Kennedy and Vincent E. Lumbleau, Los Angeles, for appellant.

Erb, French & Picone, John R. McCann, Beverly Hills, for respondent.

FOX, Presiding Justice.

This is an action for the partition of real property. Defendant appeals from an interlocutory decree of partition adjudging him the owner in fee of an undivided 6.7% interest in the property.

This action was tried together with an action for divorce in which plaintiff prevailed (Kershman v. Kershman, Cal.App., 13 Cal.Rptr. 288).

Plaintiff and defendant, described in the briefs as mature persons, were married December 24, 1950, and separated October 24, 1958. At the time of the marriage plaintiff owned a parcel of improved real property located at 1630 North Genessee Street, Los Angeles; certain stocks and securities; and a mortgage on property located in Florida valued at approximately $20,500. Plaintiff was not gainfully employed. Defendant owned, at the time of the marriage, tools used in his trade valued at $2,000 and two automobiles valued at $800, one of which was encumbered for $300. Defendant was a mechanic by trade.

During the marriage it was the practice of the parties that plaintiff receive defendant's paycheck and give him $5 per week therefrom for gasoline and spending money From the balance plaintiff made expenditures for household items such as food, utilities, etc. Records were kept by plaintiff of her expenditures in this regard, and any of defendant's earnings that were not so spent were deposited in a bank account in his name. During the eight years that they lived together, defendant's earnings averaged less than $5,000 per year. None of plaintiff's funds appear to have been used for living expenses.

The real property that is the subject of this action was purchased by a joint tenancy deed dated August 4, 1955. It is located on Alta Street, in Santa Monica (hereafter referred to as the Alta property). The purchase price was $16.209. Defendant contributed $1,000 in cash which had accumulated in the above bank account. Plaintiff contributed $8,014 from her separate funds. It was agreed that the balance would be financed by defendant's assumption of a $7,000 mortgage which defendant was to pay out of his share of rentals and his earnings. It was contemplated that this would make their contributions equal. After the property was acquired, the parties agreed to place an improvement upon the property at a cost of $4,000, financed by a loan upon the security of plaintiff's stocks. Defendant was to reimburse plaintiff for one-half of this expenditure. The property was to be rented for $160 per month. Defendant was to receive $60 per month as his share, which he was to use, together with $10 of his earnings, to pay the mortgage installments of $70 per month. Plaintiff was to receive the balance of $100 per month, $60 of which was to off-set defendant's share, and the balance was to be applied in part toward the reduction of defendant's obligation of $2,000 as his share of the improvement. This agreement was carried out, and at the time of trial defendant's obligation with respect to the improvement had been reduced by $973, leaving a balance of $1,027.

This arrangement continued until February 15, 1959, when defendant stopped making payments. The property was not rented part of the time, and defendant apparently paid the whole $70 at those times out of his community earnings, for it was found that, although only 38 payments had been made (January 1956 to February 1959), defendant had expended $520 in community funds on the mortgage payments. There is testimony that defendant paid the June, 1959 instalment, and also those for the first three months of 1960 (upon judicial compulsion). This appears to be the extent of defendant's contribution to the Alta property. The trial court found that his $1,000 initial payment was community property.

It was found that defendant occupied and had the exclusive use and enjoyment of the premises against the wishes of plaintiff from May 1, 1959 to the time of trial, April 7, 1960, and also that the reasonable rental value of the property is $165 per month. It appears that for at least part of this time defendant leased the property to third persons for $160 per month and kept the proceeds. It is not clear how long it was so rented, but possibly from September to the time of trial. Plaintiff testified that she paid the mortgage instalments not met by defendant except for those of July and August of 1959, which were delinquent at the time of trial. These would appear to be four: September, October, November and December, totaling $280. Plaintiff claims in her brief to have paid the property taxes for November.

Based upon this evidence, the court found that plaintiff had a 93.3% interest in the Alta property and defendant a 6.7% interest.

Defendant's first contention is that the trial court did not have the power under the pleadings to do other than order an equal division of the proceeds upon the sale. It is claimed that this is an action for the partition of property held in joint tenancy, and that a joint tenant is, ipso facto, an owner of an undivided one-half interest. This argument is without merit. Cosler v. Norwood, 97 Cal.App.2d 665, 218 P.2d 800 was an action for partition of real property held in joint tenancy. The judgment of the trial court ordering a 3/4-1/4 division of the proceeds, according to the relative contributions of the parties, was upheld. At page 666, 218 P.2d at page 801 the opinion states: 'There is no merit in plaintiff's contention that since the title to the real property was taken in the names of the parties as joint tenants defendant is estopped to claim that she has more than one-half interest in the property. Plaintiff by seeking a partition and an accounting put in issue the interest of each of the parties to the real property in question. Therefore the deed of joint tenancy was only one item of evidence to be considered by the court in connection with other probative facts produced by plaintiff and defendant.' Further, in Thomasset v. Thomasset, 122 Cal.App.2d 116, 133, 264 P.2d 626, 637, it was stated that: 'Property may be found to be other than that indicated by the deed when there is an oral or written agreement as to the ownership of the property, or where such understanding may be inferred from the conduct and declarations of the spouses.'

In the case at bar, plaintiff testified as follows:

'So Philip was going to put his thousand in; I was going to put eight thousand and he was going to assume the mortgage of seven thousand.

'Q. That would make you an equal amount; is that correct? A. Yes.

'Q. Did you have that discussion with him? A. Oh, yes.

'Q. Did you have that agreement with him? A. Yes, I did.'

And again, following testimony concerning the $4,000 improvement, plaintiff was asked, 'Now, then, was the understanding that you were both to have an equal amount ultimately in the property?' She answered, 'When these things were paid off.' This testimony amply supports the implied finding that the plaintiff and defendant had agreed that their interests were not to be equal until defendant had paid his share, and that their interests were to represent at any given point of time the contemporaneous proportion of their respective contributions in relation to the total.

In support of his proposition that property held in joint tenancy must be divided evenly in an action for partition, plaintiff cites us to authority for the very different proposition that in an action between heirs and joint tenancy survivors, matters extraneous to the deed are inadmissible to determine the...