Lakenan v. Lakenan

• Decision Date: 04 December 1967
• Court: California Court of Appeals Court of Appeals
• Parties: Paulita LAKENAN, Plaintiff and Appellant, v. Neal C. LAKENAN, Defendant and Respondent. Civ. 30169.

Page 166

64 Cal.Rptr. 166

256 Cal.App.2d 615

Paulita LAKENAN, Plaintiff and Appellant, v. Neal C. LAKENAN, Defendant and Respondent.

Civ. 30169.

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

Dec. 4, 1967.

Rehearing Denied Jan. 3, 1968.

Hearing Denied Jan. 31, 1968.

Rosenthal & Green, Beverly Hills, and Richard H. Levin, Los Angeles, for plaintiff and appellant.

Morgan, Wenzel, Lynberg, Stearns & Morris and Landon Morris, Los Angeles, for defendant and respondent.

FOX, Associate Justice. ^*

Plaintiff was granted an interlocutory decree of divorce and was given custody of the minor child of the parties. She was awarded $1,000 per month alimony and $150 per month for support of the child. Plaintiff also received all of the community Property.

Being dissatisfied with the financial aspects of the judgment, plaintiff has appealed.

The parties were married in November 1950 and separated in October 1963. A daughter was born in April 1955. The interlocutory decree was rendered in February 1965, ¹ on the ground of extreme cruelty.

Defendant is a man of considerable wealth, largely acquired by gift and inheritance. During the period of this marriage defendant does not appear to have had any sustained employment or to have been engaged in any regular business. He appears to be a great devotee of golf and to have spent a large portion of his time in the pursuit of that sport.

Plaintiff complains that the award of $1,000 per month alimony is wholly inadequate. This, of course, is a matter that is committed to the sound discretion of the trial judge, and will not be disturbed on appeal, absent a showing of an abuse of discretion, and there is no such showing here. But, argues plaintiff, the court should have considered defendant's adultery in fixing her alimony award, and its failure to take this factor into account was error and prevented her from getting the benefit of a penalty that should have been imposed on defendant because of his social misconduct. That is to say, the more serious the husband's misconduct the greater the alimony award to the wife should be. There is no merit in this theory insofar as the award of alimony is concerned. This is made clear in Whitney v. Whitney, 164 Cal.App.2d 577, 330 P.2d 947 (hear. den.). At page 580, 330 P.2d at page 949 the court stated:

'Appellant's argument starts with the premise that 'one aspect of alimony is that it is a penalty.' She contends that here the penalty is not in due proportion to the degree of cruelty which, she asserts, respondent committed.

'A mere reading of the applicable statute demonstrates the fallacy of her premise. 'In any interlocutory * * * decree * * * the court may compel the party against whom the decree * * * is granted to make such suitable allowance for support and maintenance of the other party for his or her life, or for such shorter period as the court may deem just, having regard for the circumstances of the respective parties * * *'. (Civ.Code, § 139.) This does not speak of punishment of the guilty party measured by the degree of guilt. It speaks only of legal consequences which flow from conduct which causes dissolution of the marriage. In such a case the law imposes a duty to compensate the opposite party. This compensation does not take the form of exemplary or punitive damages. Instead, the trial court in its exercise of sound discretion is to grant a 'suitable allowance for the support' of the other party, for life or a shorter period 'as the court may deem just, having regard for the circumstances of the respective parties.'

'Appellant cites cases in which the word 'penalty' was used when referring to the duty imposed by this statute. But it does not appear that the courts in those cases measured the duty in terms of the degree of the so-called offense. We think, therefore, that they used the word 'penalty' as if it meant no more than the expression 'legal consequence.' It is more accurate to say, as the Supreme Court said in Hall v. Superior Court, 45 Cal.2d 377, 384, 289 P.2d 431, 435: 'In theory, alimony is considered to be compensation to the injured spouse for the loss resulting from the other's breach of the obligations of the marital relationship. (Citation.) * * *'

The trial court found that the only community property consisted of the home in Beverly Hills and the furniture and furnishings therein. This property was awarded to plaintiff. The court was authorized to award all of the community property to plaintiff since the decree was granted on the ground of extreme cruelty under the provisions of section 146, subdivision one, of the Civil Code.

Plaintiff argues, however, that the court erred in failing to find that she had a community interest in certain other property. She first mentions an executor's fee of between $10,000 and $11,000 which she claims that her husband had received as executor of his father's estate. The record, however, discloses that the estate had not been closed and no final accounting had been submitted to the probate court, and defendant had not received and could not legally receive the fee as an executor. This point is emphasized in Estate of Heck, 160 Cal.App.2d 162, 324 P.2d 733. At page 166, 324 P.2d at page 736, the court stated: '* * * it is said that the amount to be allowed an attorney as compensation for ordinary probate proceedings cannot be ascertained until the amount of the estate accounted for in the administration is known, and unless the whole amount of the compensation can be ascertained, it is impossible to arrive at the proportionate amount to be allowed for a part of such services; that it is settled that an executor or administrator is not entitled to the commissions allowed by law until the settlement of his final account, and that the same rule is applicable to the allowance of attorney's fees.'

Plaintiff argues that such executor's fee should have been treated as community property as to that portion thereof which represented compensation for services defendant performed during the marriage. The difficulty with accepting this argument is two-fold. First, as is stated in Estate of Heck, supra, it is impossible to arrive at a proportionate amount to be allowed for an executor's services and second, plaintiff fails to direct the court's attention to any evidence in the record upon which the court could have made such an allocation. Under these circumstances, the executor's fee, no portion of which was due or owing at the time of trial, was a mere expectancy, not subject to division as community property. (See French v. French, 17 Cal.2d 775, 778, 112 P.2d 235, 135 A.L.R. 366.)

Plaintiff also argues that certain motel properties and a restaurant, which were the separate property of defendant, had increased in value and that a portion of this increase was the result of defendant's community effort and was therefore community property. There is a conflict in the evidence as to whether these properties had, in fact, increased in value. Defendant's witness, Mr. Swoboda, testified to the effect that there had been no particular increase in the market value of these properties. Plaintiff, however, vainly attacks Mr. Swoboda's qualifications to testify as an expert in the evaluation of such properties. Mr. Swoboda sold two of the motels involved here as a broker and had seen the third. He had been a motel broker exclusively for the past ten years. In the three years preceding the trial he had sold, as a broker, motels having a sales price of $6,000,000. In light of Mr. Swoboda's extensive activity in the sale of motels, it would seem that the trial court did not abuse its discretion in permitting him to testify as an expert as to the value of the motel properties.

In arguing that there was an increase in the value of the motels and the restaurant, plaintiff is, in effect, asking this court to reweigh the testimony on this point. We, of course, cannot do that. Furthermore, the evidence justifies the inference that defendant devoted his time almost exclusively to golf, and that he visited these properties only on infrequent occasions. The trial court could therefore reasonably conclude that defendant 'expended only minimal effort' (Estate of Neilson, 57 Cal.2d 733, 740, 22 Cal.Rptr. 1, 371 P.2d 745) in connection with these ventures. See, also, Weinberg v. Weinberg, 67 Cal.2d ---, ^a 63 Cal.Rptr. 13, 432 P.2d 709. Also, plaintiff offered no admissible evidence to establish any value for defendant's asserted services. There is ample support for the trial court's determination that there was no community interest in these properties.

Plaintiff vainly argues that defendant's separate property was changed to community property by oral agreement on the theory that her testimony of such an agreement was not controverted.

In Tidlund v. Seven Up Bottling Co., 154 Cal.App.2d 663, pp. 666--667, 316 P.2d 656, p. 658, this court pointed out: '* * * It is elementary that the jury, in passing upon the credibility of a witness, is entitled to consider his interest in the result of the case, his motive, and the manner in which he testifies (citations), and the jury may disbelieve the testimony of the witness even though it is uncontradicted if there is any rational ground for doing so. (Citatio...