Lipka v. Lipka
Decision Date | 19 November 1963 |
Citation | 386 P.2d 671,60 Cal.2d 472,35 Cal.Rptr. 71 |
Court | California Supreme Court |
Parties | , 386 P.2d 671 Marguerite B. LIPKA, Plaintiff and Respondent, v. LaVern H. LIPKA, Defendant and Appellant. L. A. 26867. |
Mantalica, Barclay & Teegarden and Lewis C. Teegarden, Los Angeles, for defendant and appellant.
Edward M. Raskin, Emmet G. Lavery, Jr., Los Angeles, and Paul P. Selvin, Beverly Hills, for plaintiff and respondent.
Defendant appeals from an interlocutory decree of divorce granted to plaintiff, which decree awarded the respective parties various items of their community property, provided for periodic payments to plaintiff 'for her support and maintenance and * * * as a further division of community property,' and granted a lien as security for such payments.
Facts: Plaintiff's complaint alleged extreme cruelty. Defendant denied the allegations and filed a cross-complaint charging plaintiff with extreme cruelty.
Question: First. Was there sufficient evidence of cruel and grievous mental suffering to support the interlocutory decree of divorce?
Yes. The following rules are here applicable.
(1) The infliction of grievous mental suffering as a ground for divorce is a question of fact, to be deduced from the circumstances of the case in light of the intelligence, refinement, and delicacy of sentiment of the complaining party. (LaMar v. LaMar, 30 Cal.2d 898, 901, 186 P.2d 678; Keener v. Keener, 18 Cal.2d 445, 447(1), 116 P.2d 1; Griffith v. Griffith, 129 Cal.App.2d 803, 808(2), 277 P.2d 850.)
(2) The sufficiency of the corroborative testimony in a divorce action lies within the sound discretion of the trial court. (LeVanseler v. LeVanseler, 206 Cal.App.2d 611, 613(2), 24 Cal.Rptr. 206; Spivak v. Spivak, 191 Cal.App.2d 455, 457(2-4), 12 Cal.Rptr. 786; Griffith v. Griffith, supra, 129 Cal.App.2d at p. 809(3), 277 P.2d at p. 853.)
(3) When a finding of fact is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination of whether there is any substantial evidence, contradicted or uncontradicted, which will support the finding. (Primm v. Primm, 46 Cal.2d 690, 693(1), 299 P.2d 231.)
Plaintiff testified relative to cruelty and suffering, as follows:
As corroboration of the foregoing testimony, plaintiff's brother testified:
It is to be noted that defendant's counsel did not question the sufficiency of the corroborating evidence in the trial court and waived cross-examination of the witnesses on the question of cruelty.
In view of the above evidence, which supports the findings of the trial court and, in turn, the interlocutory decree, no useful purpose would be served in detailing other evidence of acts of cruelty.
Second. Was the interlocutory decree void insofar as it provided that periodic payments to be made thereunder to plaintiff were for support and maintenance, as well as a further division of community property, and were not to terminate on the death or remarriage of either party?
No. Defendant contends that the provisions in the decree stated above violated the requirement of section 139 of the Civil Code that support and maintenance payments terminate on death or remarriage unless the parties agree to the contrary in writing. Here there was no written agreement.
By construing the provisions of the decree as a whole, however, it is clear that the periodic payments were ordered as part of the division of the community property, rather than for the support and maintenance of plaintiff. Accordingly, no written agreement was necessary.
The decree specifically provides that the payments are to be made to plaintiff as part of the division of the community property. It reads: 'The community property of the parties is divided as follows:
'Plaintiff is awarded as her sole and separate property:
* * *'(Italics added.)
In Tuttle v. Tuttle, 38 Cal.2d 419, at page 412(2), 240 P.2d 587 at page 589 we affirmed an order of the trial court denythe wife's motion to increase the amounts payable to her under a similar decree and said: '* * * the provision requiring the payment of stated amounts for a limited period is one of eight numbered paragraphs which specify in detail how 'the hereinafter designated property which is found to be community property * * * (is to be) divided and apportioned'. * * *
'There is ample evidence to support the trial court's finding in the order denying modification that the provision for payments to Lillie was a disposition of property rights and not alimony.'
The fact that the monthly payments to plaintiff were to continue until a given amount had been paid, were then to cease without reference to plaintiff's needs or defendant's ability to pay after that time, and were not to terminate on the death or remarriage of either party, is, in itself, an indication that they were to be made as part of the settlement of plaintiff's community property interests. (Cf. Dexter v. Dexter, 42 Cal.2d 36, 41, 265 P.2d 873.)
Since plaintiff procured her divorce on the ground of extreme cruelty, the trial court could have awarded her all the community property, as well as alimony. However, even counting the entire amount of the periodic payments as part of plaintiff's share of the community property, she was awarded no more than half of the total community property. * This is a factor to be considered in determining the nature of such payments.
Where the award to the respective parties of varying items of community property creates an imbalance in equitable division, the use of a monetary award from the person receiving the greater value to the person receiving the smaller value is an acceptable and practicable method of adjusting the inequalities in the property values so awarded. (Webster v. Webster, 216 Cal. 485, 488(1), 14 P.2d 522; Sullivan v. Sullivan, 193 Cal.App.2d 277, 279(2).) The fact that the decree may provide that such a monetary award is for the maintenance and support of the party in whose favor it is made does not render it any the less an award of a portion of the community property. (Tuttle v. Tuttle, supra, 38 Cal.2d 419, 422(3), 240 P.2d 587; Webster v. Webster, supra.)
The cases of Fields v. Fields, 94 Cal.App.2d 56, 209 P.2d 977, and Bailey v. Bailey, 60 Cal.App.2d 291, 140 P.2d 693, determine that payments to be made as support and maintenance and as a division of community property should not be combined in a single payment. However, defendant may not complain, because it was the action of his own trial counsel that was responsible for the insertion of the language complained of. (See Kalmus v. Kalmus, 103 Cal.App.2d 405, 426(28, 29), 230 P.2d 57 ( ).)
Plaintiff, through her counsel, announced to the trial court that she wished to waive alimony. Defendant's counsel, however, over plaintiff's objection, insisted on the inclusion of the present language dealing with both support and maintenance and division of community property, so that defendant could obtain a potential tax advantage.
Then at the conclusion of the trial the following colloquy ensued: ...
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