Marriage of Cosgrove, In re

• Citation: 27 Cal.App.3d 424,103 Cal.Rptr. 733
• Court: California Court of Appeals
• Decision Date: 24 August 1972
• Parties: In re the MARRIAGE of Kenneth J. COSGROVE and Marion E. Cosgrove. Kenneth J. COSGROVE, Respondent, v. Marian E. COSGROVE, Appellant. Civ. 39361.

Page 733

103 Cal.Rptr. 733

27 Cal.App.3d 424

In re the MARRIAGE of Kenneth J. COSGROVE and Marion E. Cosgrove.

Kenneth J. COSGROVE, Respondent, v. Marian E. COSGROVE, Appellant.

Civ. 39361.

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

Aug. 24, 1972.

Hearing Denied Oct. 18, 1972.

Young & Young and Walter H. Young, Los Angeles, for appellant.

Ross & Saunders and E. Loyd Saunders, Los Angeles, for respondent.

HERNDON, Associate Justice.

This appeal is taken by the wife from an interlocutory judgment of dissolution of marriage. The husband, respondent herein, petitioned for a dissolution of the marriage pursuant to Civil Code section 4506(1), and by her response to the petition the wife sought a legal separation.

The parties, both of whom are medical doctors, were married on April 19, 1941. They separated 28 1/2 years later on October 24, 1969. There are five children of the marriage, two of whom were adults at the time of separation. At the time of trial i 1971, the ages of Michelle, Michael and William, the other three children, were 20, 18 and 13, respectively. Michelle has since attained her majority.

The community property of the parties was valued at a total of $430,000. The major items of the community property and their respective values were as follows: Jointly owned corporate stocks, $363,000; a residence in Palm Springs, $52,000; cash, $13,000; and two automobiles, $1,000 each. The wife owned separate property consisting of corporate stocks valued at a total of $203,000. ¹

The trial court undertook to divide the community property into equal shares and awarded each party items of a total value of $215,000. In addition to her separate property, the wife was awarded the Palm Springs residence and its furnishings, corporate stocks valued at $155,000, and one-half of the other personal property. The total value of the separate and community property awarded to the wife was $418,500.

To equalize the division of the community property and to offset the value of the residence, the husband was awarded corporate stocks valued at $207,500 in addition to his share of the other personal property. The total value of the property awarded to the husband was $215,000.

The record indicates that for the year 1969, the total income from all of the jointly owned securities was approximately $29,000. The income from the wife's separate property for the same year was approximately $8,500.

For several years the husband had been employed by a medical clinic. At the time of trial his annual salary was $26,300. Computed on the basis of the proportionate division of the jointly owned securities and the 1969 income derived therefrom, the husband's prospective annual income from that source would be approximately $15,500, or a total prospective annual income of $41,800.

The wife's prospective annual income from the jointly owned securities awarded to her, computed on the same basis, would be approximately $13,500. This, added to the $8,500 of estimated annual income from her separate securities, would give her a total prospective annual income of approximately $22,000. The wife testified that the living expenses for herself and the three children for the year 1970 amounted to $21,464.88.

During the marriage the parties created trusts for the benefit of each of their children. At the time of trial the wife was the trustee of these trusts, the assets of which consisted of stocks, bonds and savings accounts. The value of the assets in the trusts for the three minor children and the income therefrom for the year 1969 were as follows:

There was a conflict in the evidence as to the source of the assets which constituted the corpus of each of these trusts. The wife testified that to a large extent these assets were acquired with gifts from her parents, the maternal grandparents of the children. The husband testified that the assets of the trusts were purchased with funds derived from a variety of sources including gifts from the grandparents and commingled community assets.

The findings of the trial court with respect to child support and spousal support were as follows:

'That the Petitioner is able to pay and the Respondent is entitled to receive as child support the sum of $100.00 per month for each child, or a total of $300.00 per month, payable one-half on the 1st and one-half of the 15th of each month commencing May 1, 1971, and continuing until said child attains majority, marries or is otherwise emancipated. The Court finds and this award for child support takes into consideration the separate estate of each child, which estate may be used to pay expenses of education including room and board, tuition, books and travel expenses. That the children have in their own name and in the name of the Respondent either as trustee or custodian for their benefit the following amount of assets for the following children: 1. MICHELLE $76,374.00; 2. MICHAEL $76,374.00; 3. WILLIAM $75,365.00. Each of the parties is capable of gainful employment and will have an estate to supply adequate support. Therefore, no spousal support shall be awarded to either party.'

Appellant contends that: (1) the Family Law Act is unconstitutional; (2) the evidence does not support the trial court's finding that the proceeds of certain gifts of stock received from her parents were commingled with the community property and used for community purposes with her knowledge and consent and without any agreement for reimbursement; (3) the trial court abused its discretion in refusing to award spousal support and in awarding inadequate child support; (4) the trial court erred in failing to determine the respective income tax liabilities of the parties for the years 1970 and 1971 and in failing to make suitable provisions for the payment thereof.

Constitutionality Of The Family Law Act

In attacking the Family Law Act appellant has not articulated any specific basis for her assertion that it conflicts with constitutional law. No specific constitutional provision is invoked. The argument is made that 'absolutely no ground rules or guidelines are laid down in the statute as to what constitutes irreconcilable differences' eith the result that the marriage contract may be dissolved 'on the whim and caprice of the particular judge.'

Appellant argues further that 'what has occurred under the Family Law Act is that the Legislature has delegated the function of dissolving marriages either to any litigant who wants to have his or her marriage dissolved and to the absolute discretion of the courts to either grant or deny the dissolution of a marriage without any guidelines whatsoever. This is clearly an unlawful delegation of the power of the Legislature.'

We think no extended discussion is necessary to demonstrate the fallacy of these arguments. The guidelines for the proof and determination of the existence of 'irreconcilable differences' are no more lacking in the present law than were the guidelines for the determination of fault under the former law. The rights of the responding party who elects to oppose the dissolution of the marriage are fully protected. The procedures prescribed for exhausting all reasonable efforts to save the marriage by reconciliation demonstrate the continuing concern of the law for the preservation of the marriage wherever possible. The continuing policy to avoid collusive dissolutions and to insure that dissolutions will be granted only upon adequate proof that the causes of the marital failure are in truth irremediable is emphasized by the recent decision of In re Marriage of McKim, 6 Cal.3d 673, 100 Cal.Rptr. 140, 493 P.2d 868.

The new Family Law Act was enacted after a long and careful study of the social and legal procedures affecting divorce by a Governor's commission and by legislative committees. As early as 1952, the Supreme Court recognized the public policy in favor of dissolving defunct marriages.

'Since the family is the core of our society, the law seeks to foster and preserve marriage. But when a marriage has failed and the family has ceased to be a unit, the purposes of family life are no longer served and divorce will be permitted. ' (P)ublic policy does not discourage divorce where the relations between husband and wife are such that the legitimate objects of matrimony have been utterly destroyed.' (Citations.)' (De Burgh v. De Burgh, 39 Cal.2d 858, 864, 250 P.2d 598, 601.)

In the case at bench, appellant did not contend in the trial court that any available reconciliation procedure had not been utilized. She did not deny the existence of irreconcilable differences but by necessary implication affirmed their existence by her response to the petition wherein she sought a decree of legal separation.

Appellant's Claim Of Right To Reimbursement For Reimbursement For Separate Property Used For Community Purposes

The evidence concerning the extent, the nature and purpose and the disposition of the numerous substantial gifts, which appellant's parents made over a period of many years for the purpose of benefitting their daughter, their son-in-law and their grandchildren, is hopelessly confusing and conflicting.

The husband testified that when gifts of securities were received he immediately had them placed in the names of himself and his wife jointly and that the dividends were deposited either in their joint bank account and/or in one of their three savings and loan accounts. He testified that his salary and dividends from the jointly owned securities also were deposited in one or the other of these accounts; that the common bank account was drawn upon to purchase securities and to pay all the living expenses of the family; and that he and his wife had no agreement that he would reimburse her for any gifts or proceeds of gifts which were thus used and commingled with the community property.

Appellant's claim that she is entitled to reimbursement is predicated upon (1) her testimony that all of...