Mears v. Mears

• Decision Date: 29 April 1960
• Docket Number: No. 18769,18769
• Citation: 180 Cal.App.2d 484,4 Cal.Rptr. 618
• Court: California Court of Appeals Court of Appeals
• Parties: Thelma Catherine MEARS, Plaintiff, Cross-Defendant and Appellant, v. Thelma Catherine MEARS, Plaintiff, Cross-Defendant and Respondent.

Page 618

4 Cal.Rptr. 618

180 Cal.App.2d 484

Thelma Catherine MEARS, Plaintiff, Cross-Defendant and Appellant, v. Thelma Catherine MEARS, Plaintiff, Cross-Defendant and Respondent.

No. 18769.

District Court of Appeal, First District, Division 1, California.

April 29, 1960.

William Scammon, Burlingame, for appellant.

Machado, Feeley & Machado, San Jose, for respondent.

MOLINARI, Justice pro tem.

In this action for divorce wherein the wife filed an action against the husband and the husband filed a cross-complaint against the wife, the court rendered its interlocutory judgment of divorce granting to each of the parties a divorce on the ground of extreme cruelty and awarding to the respective parties certain items of community property. Findings of fact and conclusions of law were waived. This appeal by the wife is from certain portions of the judgment providing for the disposition of property found to be community property, from the judgment denying costs of suit and attorney fees, and from the order denying a new trial in said respects. The facts pertinent to this appeal are as follows.

The parties married in Portland, Oregon, on December 7, 1946, and separated on or about May 29, 1958. There were no children of the marriage. The husband testified that at the time of the marriage he had approximately $1,400 in cash, a tailoring business in Portland, and that he was the recipient of monthly service connected disability payments from the United States Government. The wife testified that at the time of the marriage her husband had $600 in cash and that she owned $800 in United States War Bonds. The husband's sister's testimony in this regard was that she handled her brother's funds prior to his marriage and while he was in the service; that these were deposited in a joint account in his and her name; and that when the account count was closed in December 1955 these funds which amounted to $1,388.51 were transferred to an account in his name.

The husband testified that after the dake of marriage he was a post office employee in addition to carrying on his tailoring business, and that his wife worked part time. He stated that the money which he had before marriage and his earnings from said business and employment were used for the purchase of cars, furniture, for living expenses, for vacations, and for the purchase of a home in Portland for the sum of $10,700, the down payment thereon being $5,100. The wife testified that the purchase price for the Portland property was $10,600; that the down payment was $4,500 of which $2,500 came from accumulated earnings and $2,000 was borrowed from her father; that she used the $800 in war bonds which she had prior to her marriage towards the purchase of the house; and that the loan from her father was repaid out of their respective earnings as was the remainder of the purchase price. Both parties testified that in 1951 they moved to California at which time they sold the Portland home and the tailoring business. Both stated that the home was sold for $13,900; and the wife testified that the tailoring business was sold for $1,500 of which $300 or $500 was deposited in a joint bank account, and the balance used for living expenses. It was also testified by the parties that a 1951 Studebaker auto was acquired with joint funds while they were in Oregon, the wife testifying 'we paid for it together * * * we were both working,' and that title was taken as joint tenants. There is no evidence as to its value.

It was the husband's testimony that he deposited $11,000 of the proceeds from the sale of the Portland home in a California bank in his own name; and that $7,000 from this bank account was applied towards the purchase of a home at Number 704 Distel Drive, Los Altos. The wife stated that said bank account was later placed in joint tenancy and that $6,800 was withdrawn and applied as a deposit on account of the purchase price of said home, and that $2,800 was withdrawn by her and invested in an employment agency which later failed. Both parties testified that the title to said property was taken in joint tenancy. The wife testified further that when the loan on said property was renegotiated she contributed the sum of $510 which she had inherited from her father. She also stated that the subsequent payments on said loan came from 'our both working.' The husband, on the other hand, stated the payments on the home came from his monthly government disability checks which amounted to approximately $120 per month, and in this respect testified that he had been receiving these payments for about 11 years, and that he had commingled these payments aggregating $15,840 with all other funds 'into the pot.' The wife stated that these disability payments were approximately $100 per month; that they aggregated $13,200; and that said payments were commingled with other property; that the payments were first deposited in a joint account and then applied towards the payments, on the home; that said joint bank account was used by both of them as they pleased. The wife testified in response to a question that the Los Altos house was ours'; and in response to the question 'Was it community property?' answered 'Yes.'

It was testified by the wife that a 1955 Buick in her possession was purchased for the sum of $3,413.42; that a 1950 Studebaker which he had inherited from her father was used as a 'trade-in,' an allowance therefor being made in the sum of $900; that the title to said auto was taken in their joint names; and that the remainder of the purchase price was paid from 'community property.'

Concerning certain articles of furniture and household furnishings it was testified to as follows by the wife: that the bedroom carpeting was purchased by her from her father's estate, as were a sectional davenport, ottoman, white leather chair, charcoal wing chairs, brass tray and candelabra which 'I purchased from my separate estate'; that the oak round table, one rocking chair, and a hutch table were 'from the estate of my father'; that one rocking chair was 'separate property before I met Mr. Mears' as were a secretary, sterling silverware and Lenox china; and that the oak hall desk was purchased from proceeds realized from the sale of a Governor Winthrop secretary that 'I had.' By the husband: that 'some of the furniture' was purchased and acquired by him and his wife in Oregon and California prior to her inheritance from her father; that what was acquired after the inheritance was from 'community funds,' excepting the sterling silverware, Lenox china, and the secretary which he acknowledged were owned by the wife prior to the marriage; and that the ottoman and leather chair were a gift to him from the wife. The wife testified further that she sold a piece of property in Seaside, Oregon, for $1,000 out of which she loaned her husband $700, of which he later repaid the sum of $500 which she applied to the purchase of furniture.

Both parties testified that they purchased 15 shares of Varian Associates stock the title to which was taken in joint tenancy by agreement. The wife stated that said stock was purchased for $277.70 of which $189.17 came from the sale of furniture which she inherited from her father, and $88.53 from 'our joint community checking account.'

According to the testimony of both parties a paint business known as Mears Paint and Wallpaper Company was purchased for the sum of $4,000 which was borrowed from the wife's father; that a promissory note therefor was executed by them; and that $200 was paid on account. The wife admitted that said note was not included in her father's estate, stating that she 'tore it up a month or so' after his death, and explaining an entry in the books of the paint company by an account reading, 'Loan payable, Charles D. Davis, $3,800.00 Capital, $3,800.00. To record translation of debt per will,' as follows: 'He knew that my father had died and that we wouldn't be paying it back because the money was mine,' so he put it to capital * * * for income tax purposes. The husband testified that about two months prior to his death his father-in-law told him to 'forget about the note, that is a gift to you.' The husband stated that the paint business is now worth $3,000, while the wife testified that her husband told her he was offered $7,500 for it. She stated further that the said business 'belongs to me and my husband.'

The wife testified that she operated a business known as the Excel Temporary Personnel Agency in copartnership with another person; that she and her copartner each invested $1,500 in said business; and the $1,500 so invested by her came from moneys inherited from her father's estate.

There was testimony that two poodles were acquired by the parties, the wife testifying that they cost $250 which she borrowed from her sister-in-law and repaid out of her salary, and the husband testifying that one of them cost $125, the purchase price being advanced by his sister.

A certain piece of real property, Lot B, Tract 219, Peninsula Garden Farms, Palo Alto, was purchased, according to the wife's testimony, for the sum of $16,500 which she 'inherited from her father's estate.' The husband admitted that he had executed a grant deed to his wife conveying this lot to her as her sole and separate property. He testified further that this property 'was bought with her inheritance for $16,500' and that 'I never wanted anything to do with her properties.'

There was testimony also to the effect that the wife withdrew $300 from a bank book which was solely in her name for the purpose of taking a trip to Mexico with her husband, and that on another occasion she withdrew $150 from the same account so that she and her husband could go to the Rose Bowl game.

It was also testified by the wife that she and her husband borrowed $2,000 from Mr. and Mrs. Willard Coons for the purpose of paying income tax and bills owed by the paint business. Mrs....