Michelman v. Frye

• Citation: 48 Cal.Rptr. 142,238 Cal.App.2d 698
• Court: California Court of Appeals
• Decision Date: 14 December 1965
• Parties: Carlyle MICHELMAN, as Trustee of Theodore J. Frye, Bankrupt, Plaintiff and Appellant, v. Jacqueline F. FRYE, Defendant and Respondent. Civ. 29367.

Page 142

48 Cal.Rptr. 142

238 Cal.App.2d 698

Carlyle MICHELMAN, as Trustee of Theodore J. Frye, Bankrupt, Plaintiff and Appellant, v. Jacqueline F. FRYE, Defendant and Respondent.

Civ. 29367.

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

Dec. 14, 1965.

Gendel, Raskoff, Shapiro & Quittner, G. Merle Bergman and Arnold Quittner, Los Angeles, for appellant.

Myron W. Curzon, Los Angeles, for respondent.

LILLIE, Justice.

A declaratory relief action was filed by the Trustee in Bankruptcy of Theodore J. Frye, alleging the invalidity of a declaration of homestead made by Mrs. Frye on the ground that she was not physically occupying the premises and her declaration fails to state that she was residing thereon. Each party filed a motion for summary judgment; in addition, plaintiff filed motion for judgment on the pleadings. The court denied plaintiff's motions, and granted defendant's motion for summary judgment; plaintiff appeals from the judgment entered on the order, claiming the trial court's error in granting defendant's motion to be the sole issue.

The following facts were presented by defendant's affidavit in support of her motion. She married Frye in 1953; they have two children. In 1961 the Fryes, as joint tenants, acquired real property at 6218 Each Sixth Street, Long Beach, which they occupied acquired real property at 6218 East a. m. on August 9, 1963, in the Kitchen of their home, Frye grabbed her by the throat, seized a butcher knife and several times said, 'I'll kill you! I'll kill you'; as she screamed he let her go and 'hollered,' 'get out of my sight.' She called the children from upstairs and they ran out the front door to the home of a neighbor, taking with them only the clothing they were wearing. Prior thereto, 'on dozens of occasions,' Frye had, without provacation, whipped the children with a riding crop. She left the home on August 9 fearing for her life and the safety and lives of the children; she had no intention of abandoning her home and only wanted temporary safety from her husband. She went to the home of a niece and immediately consulted a lawyer who filed suit for divorce for her three days later (August 12). She borrowed $100 from her mother and moved into a furnished apartment near her attorney's office; she did not then return to her home because of fear of her husband and because the premises were isolated and, unable to drive a car, she could not conveniently consult with her lawyer. She left most of her clothing and furnishings and all of the furniture at the family home; she at no time changed her voting address. At the time she left her home the property was subject of an escrow to be exchanged for certain apartment buildings; her husband continued to remain on and occupy the premises. However, when it became apparent that the escrow would not close she made demand on Frye to move out so she and the children could resume their residence in the family home. While Frye was living therein, and at a time when she was still residing in the furnished apartment before returning to her home, and on January 30, 1964, she filed a declaration of homestead on the family home. Seven days later (February 6, 1964), Frye not having responded to her demand to move out, she filed an order to show cause to remove him. On March 12, 1964, the court ordered Frye to move out of the premises to permit her to move back in; Frye did so and she promptly returned to the family home with the children. At all times from July 1961, and continuously thereafter, she considered the family residence to be her home and intended to continue residing therein until the escrow closed and the exchange of properties was made, and left it on August 9 only because she feared for her life and the lives of the children; when the escrow failed to close, she moved into the home as soon as she could have Frye removed. Thereafter, on June 9, 1964, Frye became a bankrupt. The interlocutory decree of divorce was entered on July 10, 1964, wherein she was granted a divorce and the court, among other things, declared her home address to be '6218 East Sixth Street, Long Beach.' On September 19, 1964, Frye's Trustee in Bankruptcy filed the within action.

In opposition, Joel Mithers, attorney for plaintiff trustee, filed his declaration wherein he alleged that the 'details of the domestic difficulties' between the Fryes referred to in defendant's affidavit 'are obviously outside of the personal knowledge of the Trustee and accordingly must be denied by the Trustee on the grounds of lack of information'; he then argued the matters set forth in defendant's affidavit. No facts were set forth in the opposing declaration.

In granting defendant's motion, the trial court upheld the validity of the homestead under section 1263, Civil Code; and declared that defendant's husband physically occupied the premises and defendant temporarily left them but with no intention not to return, and that defendant and her husband always were domiciled there, and temporary absence does not lose the homestead right. (Minute Order, December 7, 1964.)

Appellant contends herein that defendant's failure to state in her homestead declaration that she resides on the premises renders the declaration a nullity; and that in any event, residence involves a question of fact which cannot be resolved on motion for summary judgment.

While intent in the establishment of residence is primarily one of fact, it appears that the opposing declaration failed to raise a triable issue; the 'denial' therein was not sufficient to controvert the facts set up by defendant's affidavit, thus, the allegations in the supporting affidavit are deemed uncontroverted. The opposing declaration contained solely a 'denial' on 'the grounds of lack of information' and is wholly insufficient. It contains neither affirmative statements of fact as contemplated by section 437c, Code of Civil Procedure, nor a proper denial made by affiant (on behalf of plaintiff in his representative capacity) 'upon his information and belief' as required by section 437c (emphasis added). Further, no showing therein was made of affiant's inability to secure information concerning the details alleged by defendant, nor was any explanation given concerning the reason Frye did not execute an affidavit or Frye's deposition had not been taken. (Gardenswartz v. Equitable etc. Soc., 23 Cal.App.2d Supp. 745, 750, 68 P.2d 322; Southern Pacific Co. v. Fish, 166 Cal.App.2d 353, 366, 333 P.2d 133.) Reference may be made to the pleadings for the purpose of defining the issues (Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 348, 333 P.2d 142), but it may not be made for the purpose of remedying a failure to state facts in an affidavit. (Coyne v. Krempels, 36 Cal.2d 257, 263, 223 P.2d 244; Kimber v. Jones, 122 Cal.App.2d 914, 918, 265 P.2d 922; Vallejo v. Montebello Sewer Co., Inc., 209 Cal.App.2d 721, 734-735, 26 Cal.Rptr. 447.) The complete insufficiency of the opposing declaration herein placed the proceeding in the same posture as if no counter-affidavit had been filed. Thus, if the facts stated in defendant's affidavit (uncontroverted by plaintiff and accepted as true by the trial court) are set forth with particularity, are within her personal knowledge and to which defendant could competently testify were she sworn as a witness, and are sufficient to entitle her to a judgment, the motion was properly granted. (Southern Pacific Co. v. Fish, 166 Cal.App.2d 353, 362, 366, 333 P.2d 133; Cone v. Union Oil Co., 129 Cal.App.2d 558, 562, 277 P.2d 464; Goldstein v. Hoffman, 213 Cal.App.2d 803, 811, 29 Cal.Rptr. 334; Kramer v. Barnes, 212 Cal.App.2d 440, 443, 27 Cal.Rptr 895.) Defendant's affidavit meets these requirements.

Summary judgment is proper if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. (Wilson v. Bittick, 63 Cal.2d 30, 34, ^* 45 Cal.Rptr. 31, 403 P.2d 159; Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785; Burke v. Hibernia Bank, 186 Cal.App.2d 739, 744, 9 Cal.Rptr. 890; Code of Civ.Proc. § 437c.) No triable issue having been presented and the sole remaining question being one of law the same was appropriately determined on motion for summary judgment. (Wilson v. Wilson, 54 Cal.2d 264, 269, 5 Cal.Rptr. 317, 352 P.2d 725; Siemon v. Russell, 194 Cal.App.2d 592, 595, 15 Cal.Rptr. 218; Goldstein v. Hoffman, 213 Cal.App.2d 803, 811, 29 Cal.Rptr. 334.)

At a time when Frye and defendant were still husband and wife and Frye was occupying the family home, but during her temporary absence therefrom, defendant filed a declaration of homestead wherein she stated, '* * * I am a married woman; that my husband is Theodore J. Frye, who has not made any declaration of homestead, and I make such declaration for our joint benefit; that our family consists of my husband and myself, and our two children. My husband is actually residing on the premises hereinafter described, and that I claim said premises as a homestead. * * *'

'The homestead consists of the dwelling house in which the claimant resides, * * *.' (§ 1237, Civ.Code.) The statute confers upon a wife the right to select a homestead, in case her husband has not made such a selection, by executing and acknowledging a declaration of homestead and filing the same for record. (§ 1262.) The declaration of homestead must contain, among other things, '2. A statement that the person making it is residing on the premises, and claims them as a homestead; * * *.' (§ 1263.)

It is undisputed that the home on Sixth Street was the family dwelling and, since 1962, the established residence of defendant, her children and her husband; the residence of the husband, the home legally was the residence...