Marriage of Cary, In re

Decision Date26 September 1973
Citation109 Cal.Rptr. 862,34 Cal.App.3d 345
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re the MARRIAGE OF Paul A. and Janet E. CARY. Paul A. CARY, Appellant, v. Janet E. CARY, Respondent. Civ. 31311.

Truce, Veal & Jackson, Walter Truce, San Carlos, for appellant.

Campbell, Drollman & Canaday by Gerald Canaday, Fremont, for respondent.

ELKINGTON, Associate Justice.

The principal issue presented by this appeal concerns California's Family Law Act (Civ.Code, §§ 4000--5138, inclusive, sometimes hereafter the 'Act'), effective January 1, 1970, which provides among other things that the concept of individual 'fault,' or 'guilt,' or 'punishment' for such human error, shall not be considered in determining Family property rights.

Paul Cary and Janet Forbes, never married to each other, lived together for more than eight years. During that time they held themselves out to their friends and parents, and to the world generally, as a married couple; she always used the name of Cary. They purchased a home and other property, borrowed money, obtained credit, filed joint income tax returns and otherwise conducted all business as husband and wife. Both knew that they were not married; they had talked several times about a wedding ceremony, but somehow they never got around to it. Four children were born to Paul an Janet; they were supported by Paul who always acknowledged them as his own. Their birth certificates and school registration recorded the parents as Paul and Janet Cary. While Paul worked Janet generally stayed at home taking care of the children and the house.

The relationship between Paul, Janet, and their children must reasonably be deemed that of a Family, coming within the broad purview of the Family Law Act. Paul makes no contention to the contrary.

While living together the parties accumulated some real and personal property through the earnings of Paul. Had they been married it would have been community property, a fact conceded by the parties.

In 1971 Paul petitioned the superior court for 'Nullity of the marriage pursuant to Civil Code section 4001.' A principal trial issue was the question of Janet's rights in the property acquired with Paul's earnings. The trial court's determination that this property should be equally divided resulted in the instant appeal by Paul.

An early day, but nevertheless still valid, rationale of California's community property law is found in Meyer v. Kinzer (1859), 12 Cal. 247, 251--252, where the state's Supreme Court said: 'The (community property law) proceeds upon the theory that the marriage, in respect to property acquired during its existence, is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after dissolution, in case of surviving the other. To the community all acquisitions by either, whether made jointly or separately, belong. . . . All property is common property, except that owned previous to marriage or subsequently acquired in a particular way. . . .'

This principle is given present day expression by Civil Code section 687 which, with exceptions here inapplicable, provides: 'Community property is property acquired by husband and wife, Or either, during marriage, . . .' (Emphasis added.)

While ordinarily applying only to those legally wed, the community property principle has frequently been applied where one or both of the parties mistakenly, But in good faith, believed themselves married. (See Vallera v. Vallera (1943), 21 Cal.2d 681, 683--685, 134 P.2d 761; Feig v. Bank of America etc. Assn. (1936), 5 Cal.2d 266, 272--274, 54 P.2d 3; Flanagan v. Capital Nat. Bank (1931), 213 Cal. 664, 667, 3 P.2d 307; Schneider v. Schneider (1920), 183 Cal. 335, 341, 191 P. 533; Sousa v. Freitas (1970), 10 Cal.App.3d 660, 665, 89 Cal.Rptr. 485.)

In such situations the property has been treated in substantially the same manner as if the parties had been validly married. No inquiry into the respective property 'contributions' was permitted. Speaking of the claim of one who in good faith, but mistakenly, believed her marriage valid, the court in Coats v. Coats (1911), 160 Cal. 671, 678--679, 118 P. 441, 444--445, stated:

'(I)t is entirely immaterial that the bulk of the property was acquired between the years 1900 and 1906, and that the plaintiff's services in its accumulation were 'of no monetary value.' She is not suing to recover for services rendered under a contract for labor, nor to establish the value of her interest in a business partnership. What she did, she did as a wife, and her share of the joint accumulations must be measured by what a wife would receive out of community property on the termination of the marriage. 'The law will not inquire . . . whether the acquisition was by the joint efforts of the husband and wife, or attempt to adjust their respective rights in proportion to the amount each contributed thereto. The law will not concern itself with such an inquiry, but will leave the parties to share in the property in the same proportion as though the marriage contract was what the wife had every reason to believe it to be, i.e., a valid marriage. " (See also Vallera v. Vallera, supra, 21 Cal.2d 681, 683, 134 P.2d 761; Sanguinetti v, Sanguinetti (1937), 9 Cal.2d 95, 99, 69 P.2d 845; Pack v. Vartanian (1965), 232 Cal.App.2d 466, 475-- 476, 42 Cal.Rptr. 729; Caldwell v. Odisio (1956), 142 Cal.App.2d 732, 736, 299 P.2d 14; Estate of Krone (1948), 83 Cal.App.2d 766, 769, 189 P.2d 741; Santos v. Santos (1939), 32 Cal.App.2d 62, 65--66, 89 P.2d 164.)

But where unmarried persons knowingly lived together in a 'meretricious' or 'sinful' relationship the law of California had consistently shown no concern for vindication of property rights, which under a valid marriage would have been legally established. (See Keene v. Keene (1962), 57 Cal.2d 657, 662--665, 21 Cal.Rptr. 593, 371 P.2d 329; Vallera v. Vallera, supra, 21 Cal.2d 681, 134 P.2d 761; Flanagan v. Capital Nat. Bank, supra, 213 Cal. 664, 3 P.2d 307; Lazzarevich v. Lazzarevich (1948), 88 Cal.App.2d 708, 718--719, 200 P.2d 49; Baskett v. Crook (1948), 86 Cal.App.2d 355, 359--362, 195 P.2d 39; Oakley v. Oakley (1947), 82 Cal.App.2d 188, 190--192, 185 P.2d 848; 4 Witkin, Summary of Cal. Law (7th ed.), pp. 2715--1716.) 'Equitable considerations' were not present, the courts held, because of the 'guilt' of both of the parties. (Keene v. Keene, supra, 57 Cal.2d at p. 662, 21 Cal.Rptr. 593, 371 P.2d 329; Vallera v. Vallera, supra, 21 Cal.2d at p. 685, 134 P.2d 761; Lazzarevich v. Lazzarevich, supra, 88 Cal.App.2d at p. 719, 200 P.2d 39.) The parties were denied any relief and 'the law would leave them in the position in which they placed themselves.' (Cline v. Festersen (1954), 128 Cal.App.2d 380, 384, 275 P.2d 149, 151; Garcia v. Venegas (1951), 106 Cal.App.2d 364, 369, 235 P.2d 89; Baskett v. Crook, supra, 86 Cal.App.2d at p. 362, 195 P.2d 39; Oakley v. Oakley, supra, 82 Cal.App.2d at p. 192, 185 P.2d 848), often to the profit of one (usually the man) and to the prejudice of the other (see Keene v. Keene, supra, 57 Cal.2d at p. 662, fn. 2, 21 Cal.Rptr. 593, 371 P.2d 329, and authority there cited).

Even where a marriage had been solemnized, upon its dissolution and where some moral disparity between the parties was found to exist, it was the judicial practice 'to visit punishment upon the erring spouse in the apportionment of community property. . . .' (Markovitz v. Markovitz (1969), 272 Cal.App.2d 150, 153, 77 Cal.Rptr. 96, 98; Hill v. Hill (1957), 150 Cal.App.2d 34, 37, 309 P.2d 44.) This punishment might even result in the award of all of the community property to the 'innocent' marital partner. (Barham v. Barham (1949), 33 Cal.2d 416, 431, 202 P.2d 289; Irish v. Irish (1966), 246 Cal.App.2d 705, 708, 55 Cal.Rptr. 55.) In such cases a trial court's failure to punish the errant spouse was an abuse of discretion, requiring reversal of the judgment. (Rocha v. Rocha (1954), 123 Cal.App.2d 28, 29, 266 P.2d 130; Gaeta v. Gaeta (1951), 102 Cal.App.2d 87, 88, 226 P.2d 619.)

Recognizing the harshness of the rule of punishment for spousal 'guilt' some courts announced that, although it continued as law, it ranked lower than many other considerations 'in the scale of importance' as a determinant for division of community property. (See Markovitz v. Markovitz, supra, 272 Cal.App.2d 150, 153, 77 Cal.Rptr. 96; Hill v. Hill, supra, 150 Cal.App.2d 34, 37--38, 309 P.2d 44.) The 'punishment and reward' concept of California's family law was widely criticized. Many believe that it was 'tacit recognition of the developing public opinion that resulted in enactment of the new law (the Family Law Act).' (See Attorney's Guide to Family Law Practice (2d ed.) (Cont.Ed.Bar, 1972), p. 251.)

'The basic substantive change in the law (brought about by the Family Law Act) is The elimination of fault or guilt as grounds for granting or denying divorce and for refusing alimony and Making unequal division of community property. . . .' (Emphasis added; In re Marriage of McKim (1972), 6 Cal.3d 673, 678, 100 Cal.Rptr. 140, 142, 493 P.2d 868, 871; and see Civ.Code, § 4800.) It is said that 'by far the most significant provision . . . is the mandatory requirement of an equal division of community property . . .' (Grant, 23 Hastings L.J. (1971--72) p. 249.) The equal division of community property was one of the ways 'of advancing (the Act's) primary no-fault philosophy.' (In re Marriage of Juick (1971), 21 Cal.App.3d 421, 427, 98 Cal.Rptr. 324, 329.) So strong is the policy behind the Act that in family law proceedings relating to property rights, any pleading or proof relating to misconduct, or 'guilt,' or 'innocence' of a party 'shall be improper and inadmissible.' (Emphasis added; see Civ.Code, § 4509.)

In a summary of the Act, and particularly its section 4800 calling...

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