Markovitz v. Markovitz

• Citation: 77 Cal.Rptr. 96,272 Cal.App.2d 150
• Parties: Janet MARKOVITZ, Plaintiff and Appellant, v. Edward MARKOVITZ, Defendant and Respondent. Civ. 32721.
• Decision Date: 21 April 1969
• Court: California Court of Appeals Court of Appeals

Page 96

77 Cal.Rptr. 96

272 Cal.App.2d 150

Janet MARKOVITZ, Plaintiff and Appellant, v. Edward MARKOVITZ, Defendant and Respondent.

Civ. 32721.

Court of Appeal, Second District, Division 5, California.

April 21, 1969.

Axelrad, Sevilla & Ross and Robert Dale Heron, Los Angeles, for plaintiff and appellant.

Robert J. Grossman, Los Angeles, for defendant and respondent.

STEPHENS, Associate Justice.

This is an appeal from an interlocutory decree of divorce granted for extreme cruelty. Plaintiff herein contends that the apportionment of community property made by the trial court is contrary to law and unjust, and asks this court to modify the judgment in that respect, and to instruct the trial court to enter judgment as so modified.

There can be no doubt that this court, as a reviewing court, is by statute given the power of changing the trial court's disposition of community property if from a review of the record this court finds that the apportionment made is unjust. (Civ.Code § 148; Hill v. Hill, 150 Cal.App.2d 34, 35, 309 P.2d 44.)

Plaintiff's claim in the present case is that since she obtained the divorce on the ground of extreme cruelty, she was entitled to be awarded more than one-half of the community property and that this was not done. More specifically, she contends that in disposing of the principal community asset, a convalescent hospital, to the parties as tenants in common, the trial court erred in awarding defendant husband two-thirds of the 'net proceeds' which are earned from the operation of the hospital. Our task, however, is not confined to reviewing the disposition of each separate asset in isolation from the disposition of the whole of the community, but rather it embraces a determination of whether the award of community property to each party, viewing the judgment in its entirety, is in accord with justice in the light of the facts of this particular case and the condition or circumstances of the parties. Hill v. Hill, Supra, 150 Cal.App.2d 34, 36, 309 P.2d 44. We know of no principle of law or practice which requires that each asset or fund must be divided equally or in a manner favorable to the innocent party. (See Green v. Green, 27 Cal.App.2d 99, 101, 80 P.2d 513; Thomsen v. Thomsen, 31 Cal.App. 185, 189, 159 P. 1054.)

In the present case, under the terms of the interlocutory decree, plaintiff is to receive the following assets: (1) real property valued at $3950; (2) furniture valued at $600; (3) an automobile valued at $750; (4) insurance policies valued at $88.52. Defendant husband is to receive the following assets: (1) a coin collection valued at $1200; (2) an automobile valued at $1500; (3) insurance policies valued at $1,545.54. ¹ Each party was awarded an undivided one-half interest in certain savings bonds and in a convalescent hospital. As previously noted, defendant husband was awarded two-thirds of the net proceeds to be realized from the continued operation of this asset, plaintiff wife to receive the remaining one-third. Defendant was given the power to manage and operate this hospital as if he were the general partner in a limited partnership, free from interference by plaintiff, the limited partner. As a correlative obligation, defendant was ordered to hold plaintiff harmless and indemnified from any debt or liability incurred in the operation of the hospital. Defendant was authorized to allocate to himself a salary of $2200 per month, plus the costs and expenses of one 'first-class automobile' if used for business purposes. Plaintiff was awarded $600 per month for her support, and was given a lien on defendant's one-half interest in the hospital to insure defendant's continued payment of this obligation. Each party was given custody of one child; custody of a third child was awarded jointly. Defendant was ordered to pay $100 a month child support for the minor in plaintiff's custody, and directed to pay the medical bills of all three children during their minority.

While it is true that the trial court was under an obligation to award the innocent party more than one-half of the community property, it is within the sound discretion of the trial court to determine how much more than half it will award. (Irish v. Irish, 246 Cal.App.2d 705, 55 Cal.Rptr. 55; Harding v. Harding, 223 Cal.App.2d 709, 36 Cal.Rptr. 184.) However, the inquiry does not end there. Both the trial court and appellate court must consider all circumstances in the case. (Stevenson v. Superior Court etc., 62 Cal.2d 150, 41 Cal.Rptr. 466, 396 P.2d 922.) As stated in Hill v. Hill, Supra, 150 Cal.App.2d 34, 37--38, 309 P.2d 44, 46: 'Apparently the decisions have embraced the concept that it is proper in such cases to visit punishment upon the erring spouse in the apportionment of community property. Nevertheless, divorce having been granted and the time having arrived for apportioning the community property, the amount thereof, the age of the parties, their physical and mental condition, their ability to support themselves, and the needs of minors, if such there be, are all matters ranking higher in the scale of importance than the mere infliction of punishment for wrongdoing.'

Placing a value on a business as a going concern...