Margolis v. Margolis

• Decision Date: 29 December 1952
• Citation: 251 P.2d 396,115 Cal.App.2d 131
• Court: California Court of Appeals Court of Appeals
• Parties: MARGOLIS v. MARGOLIS. MARGOLIS v. MARGOLIS et al. Civ. 19050.

Page 396

251 P.2d 396

115 Cal.App.2d 131

MARGOLIS v. MARGOLIS.

MARGOLIS v. MARGOLIS et al.

Civ. 19050.

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

Dec. 29, 1952.

Hearing Denied Feb. 26, 1953.

William B. Beirne, Newby, Holder & Newby, and Dee Holder, Los Angeles, for appellant.

Vaughan, Brandlin & Wehrle, J. J. Brandlin and Pat B. Trapp, Los Angeles, for respondents.

MOORE, Presiding Justice.

From an interlocutory decree of divorce and an award to respondent husband of 328/440 of the total properties of the twain accumulated since marriage, the wife appeals.

Mr. and Mrs. Margolis were married in 1902. At that time respondent was engaged in the jewelry business in Kansas City. Early in 1920 he was adjudicated a bankrupt and the couple moved to Albuquerque, New Mexico. Respondent there purchased a home which the family occupied until December, when at the wife's instance the parties separated. Her attorney. Judge John Simms, represented her in the negotiations and in preparing a property settlement and separation agreement. This agreement consisted of two documents: the 'separation agreement,' and the 'memorandum of agreement.' Both were executed on the same date. Pursuant to those writings respondent received $6,000, an automobile and certain insignificant items of personalty. After such matters had been disposed of, Mr. Margolis transferred his domicile to Los Angeles.

In June, 1921, Vivian, daughter of the parties, Joined Mr. Margolis in his Los Angeles home on St. Andrews Place. In August appellant paid them a visit and remained a few weeks. She then returned to Albuquerque where she sold the home and also an apartment building she had purchased after the separation. Returning to the St. Andrews residence, she resided for six months, but no reconciliation occurred. The couple occupied separate apartments. Mrs. Margolis and Vivian departed, made a home in Los Angeles, then South Pasadena, later in a Burbank dwelling Mrs. Margolis had constructed. However, in 1924, pursuant to the entreaties of the daughter, the couple resumed their conjugal relationship and family life until the final separation in 1950. In July of that year, Mr. Margolis established his residence in an apartment house where he remained until he went to live in the home of Vivian and her husband.

After respondent had instituted the instant litigation by filing a complaint to have his rights determined under the writings executed by the parties after their separation in 1920, the action ultimately went to trial on appellant's complaint for divorce and respondent's cross complaint. Vivian Fern was by appellant made a defendant with the allegation that she had received gifts of community property from her father. The judgment determined that of the combined assets of the parties valued at $440,000, the community estate owns 112/440, respondent the balance. On this appeal, Mrs. Margolis attacks the findings that she treated her husband with extreme cruelty and that the greater portion of the total estate is respondent's separate property.

Divorce

In support of the determination that respondent was entitled to a divorce on the ground of extreme cruelty, the court found that during the entire period of the marriage, appellant had 'used insulting, abusive, derogatory and profane language and expressions' toward Mr. Margolis; that she had repeatedly humiliated him in the presence of friends and relatives; that during recent years while respondent was in ill health she continually upset him and hindered his recovery; that she went so far as to threaten his life. Such findings, based upon substantial evidence, support the court's conclusion that respondent is entitled to a divorce on the ground of extreme cruelty.

The testimony of Mr. Margolis, of Vivian Fern, and of former and present employees of the family was to the effect that for over thirty years, Mrs. Margolis treated her husband with a total lack of conjugal kindness, bordering on contempt and hatred. She continually berated him; applied vile epithets and opporbrious terms of hatred and contempt for his maternal ancestry. Mr. Phelps, a male nurse who attended respondent in recent years, testified that on one occasion Mr. Margolis fell while attempting to get out of a chair; that when he arrived to give aid he found Mrs. Margolis standing over the old gentleman addressing him in language seasoned with abhorrence and disgust while his patient was too weak to stand by his own effort; that appellant objected to Mr. Margolis' visiting his Jewish relatives, and to the visits of Vivian to see her father. He testified that on one occasion appellant 'disowned the daughter in his presence and said she was no daughter of hers since she was married to a little fat pig, referring to Mr. Fern.' There was ample proof that appellant's behavior caused Mr. Margolis much suffering and upset him greatly, that he was rendered extremely nervous, lost his appetite; that many times after Mrs. Margolis' tirades he 'would go off and cry.'

In view of such evidence, this court is powerless to interfere with the findings and judgment. It is not the function of an appellate court to weigh the evidence anew. The issue of cruelty and its effect on the aggrieved spouse are questions of fact for the trial court and its determinations are conclusive when, as here, substantial evidentiary support therefor is revealed by the record. LeFiell v. LeFiell, 108 Cal.App.2d 321, 323, 239 P.2d 61. There was no error in the court's overruling appellant's objection to the introduction of evidence of her alleged acts of cruelty that occurred thirty years before. The period of time during which the acts of cruelty continued had a distinct bearing on the court's ultimate disposition of the community property. Arnold v. Arnold, 76 Cal.App.2d 877, 881, 174 P.2d 674.

Division of Property

After finding that the total value of the property in dispute was $440,000 and that the value of the community interest therein was $112,000, the court determined that the balance comprised the husband's separate property. Mrs. Margolis was awarded two pieces of income property and cash totaling $40,500 and in addition, the right to reside in the family home for the remainder of her life. In order to subvert such determination, appellant now presents numerous arguments in support of her contention that the court erred in its findings. She contends that the only proper ultimate fact to be derived from the evidence is that the totality of the property is community in character. She insists that respondent's proof fails to overcome the familiar statutory presumption that property acquired during marriage, though standing in the husband's name alone, is a community asset. Civ.Code, sec. 164.

In order to ascertain the rights of the spouses in the property in dispute a consideration of the writings made in 1920 was essential. The court found that the agreements executed in Albuquerque constituted a property settlement agreement pursuant to which Mr. Margolis received $6,000. Such sum was by him during the period of the separation invested wisely. By 1924 it had increased to $126,000....