Millington v. Millington

• Citation: 67 Cal.Rptr. 128,259 Cal.App.2d 896
• Court: California Court of Appeals
• Decision Date: 12 March 1968
• Parties: Lillian MILLINGTON, Plaintiff and Respondent, v. Geoffrey MILLINGTON, Defendant and Appellant. Lillian MILLINGTON, Plaintiff and Cross-Defendant and Respondent, v. Geoffrey MILLINGTON, Defendant and Cross-Complainant and Appellant. Civ. 23481, 23860.

Page 128

67 Cal.Rptr. 128

259 Cal.App.2d 896

Lillian MILLINGTON, Plaintiff and Respondent, v. Geoffrey MILLINGTON, Defendant and Appellant.

Lillian MILLINGTON, Plaintiff and Cross-Defendant and Respondent, v. Geoffrey MILLINGTON, Defendant and Cross-Complainant and Appellant.

Civ. 23481, 23860.

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

March 12, 1968.

Rehearing Denied April 1, 1968.

Hearing Denied May 9, 1968.

Joseph F. Di Maria, Palo Alto, for appellant.

Robert J. Dell'Ergo, Redwood City, for respondent.

SIMS, Associate Justice.

Defendant husband has appealed (1 Civil 23481) from an interlocutory judgment of divorce, awarded to his wife on the grounds of his extreme cruelty, and from all of the orders set forth therein other than that awarding him custody of his minor daughter. He also has purported to appeal from an order denying his motion for a new trial, from an order denying his motion to vacate the judgment, and from an order granting the plaintiff additional attorney's fees, as those orders were entered in the minutes and as they were subsequently incorporated in formal written orders signed and filed in the proceedings. He further purported to appeal from a minute order denying his motion to reopen the trial for additional evidence. In a second appeal (1 Civil 23860) he seeks review of subsequent minute and formal orders granting his wife attorney's fees and costs on appeal. The appeals were consolidated for briefing and hearing.

He states: 'In the first Appeal the first objective is to reverse that part of the said judgment providing for payment of any alimony to the respondent; the second objective therein is to obtain a declaration that as a matter of law the property which the trial court found to be community property is in fact the separate property of the appellant. It is not the objective of the appellant in the first appeal to reverse that part of the Interlocutory Judgment granting a divorce to the respondent.

'In the second Appeal, the objective is to obtain the decision of the Appellate Court that, by virtue of the record, the order for attorneys' fees and costs of transcripts on the first appeal must be reversed.'

The order denying the motion for a new trial is not an appealable order and the appeal therefrom must be dismissed. (Code Civ.Proc. § 963.) Insofar as an appeal lies from any of the other orders which are mentioned in the first notice of appeal and which are not embraced in the interlocutory judgment, the appeals are deemed abandoned by failure to press them before this court, and will be dismissed. (See Cal.Rules of Court, rules 13 and 15(a); and 3 Witkin, California Procedure, Appeal, § 150, pp. 2332--2333.) For reasons hereinafter set forth the interlocutory judgment of divorce is reversed with respect to the provision for alimony and affirmed in all other respects, the minute order granting plaintiff attorney's fees and costs on appeal is affirmed, and defendant's appeal from the subsequent formal order is dismissed.

Background Facts

The court found the following to be true: That the parties were married on February 22, 1949, and separated on March 4, 1963; that there was one child of the marriage, Tracy L. Millington, who was six years old at the time the complaint was filed; since the marriage the defendant had treated the plaintiff in an extremely cruel manner; that plaintiff was entitled to an interlocutory decree of divorce on the grounds of the extreme cruelty of defendant; that both parties were fit parents, but that it was in the best interest of the child that custody be granted to the father, with reasonable rights of visitation in the mother; that plaintiff was without sufficient funds for her proper support, maintenance and care and that she was entitled to permanent alimony of $425 per month; that this amount took into consideration plaintiff's present employment and earnings of $275 per month; that the community property of the parties consisted of various enumerated items, divided equally, the parties' home with a net value of $10,000, and the shares of stock in the business known as the Stanford Sport Shop, Inc. with a net worth of $150,000; that plaintiff by reason of the distribution of the home and stock to defendant was entitled to a promissory note in the sum of $85,000 to bear interest at the rate of six percent per annum, with principal and interest payable in monthly installments of not less than $425; that the balance of the principal and interest on the note was to be due and payable, in full, 15 years from the date of the note; that defendant was entitled to various designated items including the home, and the shares of stock in the business, on the condition that he deliver the promissory note to plaintiff; and that defendant was to pay plaintiff's attorney's fees since she did not have the funds to do so.

A summary comment on the evidence presented is in order, in light of the attorney's presentations on appeal. The action below was replete with accusations on both sides. There is sufficient evidence to sustain the granting of the divorce on extreme cruelty based on the wife's testimony of physical and emotional mistreatment, the harsh circumstances under which the husband insisted the family live, and the actions of the husband in response to the wife's illnesses.

Suffice it to say, that there was evidence that the wife had treated her husband with extreme cruelty; that she was a paranoid schizophrenic; and that she had subjected her husband to physical and emotional punishment without cause. Since the trial court determined to believe the wife's testimony, only the evidence relevant to the points raised on appeal will be discussed rather than reviewing the evidence of the parties' discord, as has been done in the parties' briefs.

The remaining pertinent findings and evidence are discussed below.

I. Determination of and Division of the Community Property

The court made the following findings that are relevant to its determination that the Stanford Sport Shop was wholly community property, and not wholly or partially the separate property of defendant.

'17. That immediately prior to the marriage of the parties * * * defendant was the owner of a one-half partnership interest in * * * the STANFORD SPORT SHOP, and that the reasonable value of his interest * * * as of that date was * * * $20,500.

'18. That subsequent to said marriage and * * * before the 1st day of January 1954, the * * * co-partnership business * * * was incorporated, with the defendant and his previous partner JOHN CARDOZA * * * as the sole shareholders therein. That thereafter litigation ensued between * * * JOHN CARDOZA and the defendant * * * wherein JOHN CARDOZA sought the dissolution of the corporation and as a result * * * said litigation was settled and terminated by the purchase by defendant of all interest of * * * JOHN CARDOZA in the * * * corporation * * * representing an approximate one-half * * *. That said * * * interest of JOHN CARDOZA was purchased by the defendant with community funds, assets and credit and * * *, defendant became sole shareholder of said corporation.

'19. That the success and income of the business * * * as a co-partnership and later as a corporation has been peculiarly and largely dependent upon the personal efforts of the defendant.

'That the plaintiff contributed extensive effort, time and talent in the operation of the business * * * while a partnership and as a corporation.

'20. That the wages paid to plaintiff and the wages paid to defendant by the partnership and by the corporation operating as STANFORD SPORT SHOP did not adequately compensate said parties for their efforts and services; said wages were set and established by the co-partners and later, upon withdrawal from the corporation of * * * JOHN CARDOZA, were set and established from time to time in varying amounts by the defendant * * *; that the wages and salaries so established by him were determined in accordance with motives and objectives of his not related to a fair return for the efforts of the persons involved.

'21. That for many years after the marriage of plaintiff and defendant, defendant did commingle community and separate assets of the parties in the STANFORD SPORT SHOP with the intention that all should become community property of the parties; that thereafter and for many years prior to the commencement of this action the defendant controlled and established his wages and salary and the wages of the plaintiff from the corporation with a principal motivation of attempting to minimize and defeat any community interest in the said business and to that end he had established salaries and wages less than that to which the parties were fairly entitled.

'22. That the defendant, * * * did leave in the business and did commingle and reinvest therein monies and income * * * attributable to his personal efforts and those of the plaintiff; that the amounts paid by the corporation to the defendant as salary did not adequately compensate the defendant or the community interest for the labor, skill and management of the defendant and plaintiff. As the result of the manipulation by the defendant of his books, records and salaries and accounts, separate property and community property interests of the parties in the business * * * became so commingled, at first intentionally and later unintentionally, as to make unreasonable any attempt to ascertain the extent of any separate property interest therein.'

The facts upon which these findings are based are as follows: Defendant and one Cardoza started the Stanford Sport Shop, as a partnership in 1945. Each man initially invested either $2,000 or $4,000. The assets of the business were its inventory, cash and the ability of the partners. The store in which the shop was located was rented.

Defendant and plaintiff were married in 1949. At the time of the marriage, defendant deposited some...