Marriage of Jafeman, In re

Decision Date08 December 1972
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re the MARRIAGE of Mary and Edward W. JAFEMAN. Mary JAFEMAN, Respondent and Appellant, v. Edward W. JAFEMAN, Appellant and Respondent. Civ. 29730.

Roy A. Sharff, San Francisco, for appellant and collateral respondent.

William A. Sullivan, San Mateo, for respondent and collateral appellant.

MOLINARI, Presiding Justice.

Edward Jafeman (hereinafter 'Edward') appeals from a judgment (marriage) with the exception of that portion decreeing a dissolution of his marriage to Mary Jafeman (hereinafter 'Mary'). Mary appeals from an order denying an application for attorney's fees to resist Edward's appeal, with the exception of that portion of the order awarding the wife the actual costs of transcript and briefs.

Facts

Edward and Mary were married on May 13, 1951. They separated in October of 1968. There are no children from this marriage. Both have been employed throughout the years of their marriage. Mary has been employed in the same job since 1953 and has contributed to a pension fund.

At the time the parties were married Edward resided at 133 Hickory Lane in San Mateo. Mary lived across the street at 132 Hickory Lane. The residence at 133 Hickory Lane had been purchased by Edward and his former wife in 1942 for $6,500. Following his divorce from his first wife, Edward had the property put in his own name. At the time of his marriage to Mary, Edward owed $4,266.17 on the mortgage which existed on the property. Mary owed $3,701 on her residence.

Mary testified, without objection, that she had gone to the real estate offices of Fox and Carskadon and had examined their records pertaining to the sale of homes on Hickory Lane in 1951. She stated that the highest price paid for a home during that year was $14,500. Mary stated that, as the home at 132 Hickory Lane was identical to the home at 133 Hickory Lane, both were worth the same amount. Edward testified that, in his opinion, the home at 133 Hickory Lane was worth $18,000 at the time the parties were married. He stated that his opinion was based on the fact that another home on the block had been sold for $17,500 during that year.

Prior to their marriage the parties had discussed purchasing a new home as Edward's home only had two bedrooms and this was inadequate for Mary and her son and daughter by a previous marriage. However, Edward was fond of his home and since Mary's children were going to school in the neighborhood, they decided to live in Edward's house.

During the years of their marriage Edward and Mary commingled their personal earnings and the rental income from the property located at 132 Hickory Lane. Beginning in July of 1966, Mary's parents occupied the residence at 132 Hickory Lane rent free. During the first 12 years of the marriage, Mary handled all of the family's finances. In 1962 Edward and Mary experienced marital difficulties. The parties subsequently reconciled and thereafter Edward managed the family's finances. Following this period Mary and Edward each maintained separate savings accounts. Mary had an account at the Peninsula Savings and Loan Association which had a balance of approximately $500 at the time of trial. Mary believed that the contents of this account were community property.

Mary and Edward never had any conversations respecting the ownership of the residence located at 133 Hickory Lane. Mary testified that she always referred to it as 'our home' except when trying to differentiate it from the residence at 132 Hickory Lane. Mary did not know that the title to 133 Hickory Lane was in Edward's name only until shortly before filing for divorce. She stated that she had always thought that it was 'our property' and she had never checked the records at the courthouse.

During the years of the marriage, the principal and interest owing on the mortgage on 133 Hickory Lane, as well as all of the property taxes assessed against the property, were paid with money drawn from the commingled fund. Mary was asked if she had an opinion as to the present market value of the home. She testified, without objection, that she had obtained an estimate from Fox and Carskadon of $35,000 and that, in her opinion, this was the present fair market value of 133 Hickory Lane. She also testified that she had received an estimate of $32,000 for 132 Hickory Lane. It appears from the record that these estimates were written. Edward testified that Mary had obtained an oral estimate in 1968 and that it was $34,500 for 133 Hickory Lane and $34,000 for 132 Hickory Lane.

At the time the parties married, Edward's home was almost fully furnished. His former wife had taken a sofa, some end tables and a coffee table and the refrigerator. The remaining furniture was distributed to Mary's relatives and to a friend of her son. Edward estimated that he had paid $5,000 for the furniture. Mary then moved five rooms of furniture from 132 Hickory Lane over into 133 Hickory Lane. Mary had $1,500 which was used to recover some of the furniture, relay the carpets, and purchase paint.

During the first six months of the marriage Edward and Mary added a bedroom and a bathroom to the residence at 133 Hickory Lane. They also constructed a garden house and installed raised flower beds, a tile patio, and a fence. These additions cost approximately $4,700. Mary contributed $3,000 towards this amount which she obtained by refinancing the loan at 132 Hickory Lane, thus raising the indebtedness on that home to $6,700. The indebtedness of $3,000 resulting from the refinancing was paid off with money drawn from the spouses' commingled funds.

During the years of their marriage, Edward and Mary expended money drawn from their commingled funds for remodeling and redecorating the home at 133 Hickory Lane. They obtained two loans for these purposes. The first loan was used for interior improvements in the dining room and living room, new linoleum in the kitchen and a new door, sliding glass windows, and new door fixtures. A portion of the loan was used for the purchase of a chandelier for the dining room and for a bedspread which was made to order. In 1964 they had $2,000 worth of carpet installed. In 1967 Edward and Mary obtained a loan of $3,500. They used this loan to convert a bedroom into a den, to hang new drapes in the bedroom, bathroom and den, to hang a new chandelier in the bathroom, to hang a chandelier in another room, to buy a marble top table for the kitchen, and to reupholster the breakfast nook set and put up wallpaper. Mary testified that during their marriage she and Edward purchased a sofa and some chairs at a cost of approximately $1,500. Mary estimated that their present value was about $400. Edward estimated that the cost of the fixtures and furniture in the home was between $8,000 and $10,000 and that they were currently worth one-half of their original cost.

During the course of the marriage, money from the parties' commingled fund was used for the improvement and maintenance of the residence at 132 Hickory Lane. Mary's father, and later Edward, painted the exterior and interior of the home several times. Edward installed a sprinkler system in the back yard and built a bench and a divider. Edward also replaced the door fixtures. The water heater was replaced twice and the furnace was repaired. The testimony respecting the cost of this work was in substantial conflict. In particular Edward contended that $700 was expended on paint, whereas Mary stated that $195 would be a reasonable figure. Edward contended that $3,000 was expended on plants and garden supplies, whereas Mary stated that $200 was probably spent for this purpose.

On October 15, 1968, Mary filed an action for divorce on the ground of extreme cruelty. Edward filed an answer and a cross-complaint for divorce on the ground of extreme cruelty. Mary filed an answer to the cross-complaint. The case was tried on December 22 and 23 of 1969.

On July 28, 1970, the court filed its findings of fact and conclusions of law. The findings which pertain to the issues raised upon this appeal may be summarized as follows: The court found that the residence located at 133 Hickory Lane is community property; that during their marriage the parties intended the home to be owned as community property; that although the question of title to the property was never discussed, it was Mary's belief that the home was community property and that she did not learn that title was not in their joint names until shortly before filing for divorce; and that each of the spouses was entitled to an undivided one-half interest in said residence.

The court also found that the furnishings which Mary had brought from 'her separate property home at 132 Hickory Lane' and placed in the home at 133 Hickory Lane are community property and that each party was entitled to an undivided one-half interest in said furnishings; that the cash surrender value of Mary's pension fund and the contents of an account in her name at the Peninsula Savings and Loan Association are her separate property; and that additional attorney's fees in the sum of $1,200 should be paid by Edward to Mary's counsel.

The court concluded that the residence at 133 Hickory Lane and all of its household furnishings and furniture, as well as certain insurance policies, pension funds, and bank accounts are community property and should be divided equally after payment of community debts. The court concluded that Edward was to pay Mary's counsel the sum of $1,200 as attorney's fees, in addition to any allowance of counsel fees ordered pendente lite, plus costs in the sum of $12.60. The court did not include this sum as a debt of the community.

On July 28, 1970, the court entered an interlocutory judgment of dissolution of marriage. Following the filing of a notice of...

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