Mueller v. Mueller

Decision Date30 August 1956
Citation301 P.2d 90,144 Cal.App.2d 245
CourtCalifornia Court of Appeals Court of Appeals
PartiesEvelyn Kipp MUELLER, Plaintiff and Respondent, v. Herman W. MUELLER, Defendant and Appellant. Civ. 8834.

Albert L. Wagner, and Thompson & Thompson, Sacramento, for appellant.

Pierce & Brown, Sacramento, for respondent.

SCHOTTKY, Justice.

Evelyn Mueller and Herman Mueller were married in 1935. Three children were born to them, Joan in 1936, Gary in 1939, and Neil in 1952. Differences arose between them, and after more than eighteen years of married life Mrs. Mueller filed an action for divorce. Following a trial she was granted an interlocutory decree of divorce upon the ground of extreme cruelty, was granted the custody of the children and was awarded alimony of $250 per month and support for the three children of $275 per month. The interlocutory decree also made a division of the property of the Muellers. Mr. Mueller's motion for a new trial was denied and he has appealed from said judgment.

Appellant husband does not challenge the decree in so far as it determines the marital status, the custody of the children or the amount awarded for their support, but appellant does make a vigorous attack upon the division of the property and upon the amount of alimony awarded respondent wife. Before discussing the specific contentions of appellant we shall give a brief summary of factual situation as shown by the record.

In 1926, when he was 19 years old, Mr. Mueller, a dental technician by trade, acquired a dental laboratory business for $6,500. He testified that at the time of his marriage in 1935 the value of all his property, including this business, including money in the bank, and everything except his 1931 Pontiac automobile, was $7,000, so it is apparent that there was little, if any, increase in the value of appellant's property between the date he purchased the dental laboratory business and the date of his marriage to respondent.

Mrs. Mueller started to work in the laboratory immediately after the marriage, doing general office work, stenography, and bookkeeping, and continued to work full time until the first child was born. After the birth of Joan and Gary, in addition to taking care of two children she continued for fifteen years to give one week a month to keeping the books.

During the marriage the size of the business increased greatly. Mr. Mueller employs five men in addition to himself. The laboratory does work for dentists as far north as Alturas, as far east as Reno, as far west as Fairfield, and as far south as Newman. The income from the business also increased tremendously.

At the time of the trial the property of appellant and respondent had increased to assets valued by the court at $128,883.89.

The court awarded respondent wife the following items of property:

The family home located at 2765 Land Park Drive, valued at $26,750.00

Household furniture and furnishings valued at 5,000.00

A 1950 Cadillac automobile valued at 1,800.00

Stocks valued at 1,803.12

Cash in the sum of 6,092.82

Present cash value of certain life insurance policies 9,569.60

The court awarded appellant husband the following:

Real property on Unsworth Avenue, Sacramento, equity valued at 700.00

(Gross value $8,500.00, but subject to lien of $7,800.00)

Cabin at Thirty-Mile Stone, valued at 4,500.00

A one-third interest in Hamilton Jewelers, valued at 33,449.68

Proprietary interest in General Dental Laboratory, including book value of tangible assets of $10,215.76; one Chevrolet automobile, $1,050.00; and good will, $25,000.00; less accounts payable, $1,184.28; note payable to Anglo California National Bank, $11,000.00; also less accrued taxes and payroll, $999.62; valued at 23,081.86

Promissory note of Rose Hara valued at 10,896.33 The interlocutory decree provided further that 'To equalize the respective distributing shares of the parties in and to the community property, defendant shall make, execute and deliver to plaintiff his promissory note in the sum of $10,301.16 payable in installments of not less than $100 per month, together with interest at the rate of five and one half per cent (5 1/2%) per annum with unpaid balance due on or before seven (7) years from date,' said note to be secured by a lien in favor of respondent upon the interest of appellant in Hamilton Jewelers.

Appellant's first contention is that the court erred in attempting to distribute the community property at the time of entering the interlocutory decree. He cites Gudelj v. Gudelj, 41 Cal.2d 202, 259 P.2d 656, and numerous other cases which lay down the rule that the portions of an interlocutory decree purporting to make an immediate distribution of property are erroneous. Respondent in reply does not question the rule but asserts that appellant should be estopped to make this contention because appellant's counsel at the trial 'repeatedly asserted to the court that one of the objects of the trial would be to have the court make a present division of the community property.' The record shows that prior to the taking of testimony there was a discussion between counsel for the respective parties and the court as to a division of the property, and while there was no specific mention of present or immediate distribution, the court could well have, and undoubtedly did, infer from the statements of counsel that the parties did desire an immediate division of the property. However, in the instant case it is stated in respondent's brief and not disputed by appellant in his reply brief that appellant has not delivered to respondent any of the property awarded to her in the interlocutory decree, and therefore the error complained of is one 'which may and should be corrected by striking out the words of present disposition and inserting words to indicate that the disposition will be made in the final decree.' Slavich v. Slavich, 108 Cal.App.2d 451, 457, 239 P.2d 100, 103.

Appellant makes a number of contentions in his attack upon the division of the property. These contentions center upon the finding as to the proprietary interest in General Dental Laboratory, which, as hereinbefore set forth, was awarded to appellant. The dental laboratory business was found by the court to be community property and appellant points to the evidence that nine years prior to his marriage he purchased said business for $6,500 and argues that the court erred in failing to find what part of the business was his separate property. Respondent in reply points to testimony of appellant that at the time of the marriage the value of his business was $6,500 and points also to the fact that no testimony was introduced to trace any part of the $6,500 from the date of the marriage, or to show whether it was represented in fixtures or furniture which must have become obsolete or which may have been left when the business moved. Respondent points also to the testimony of appellant that the success and value of the business was due entirely to his skill and ability and argues that under the circumstances shown by the record, whatever may have been the separate interest of appellant in said dental laboratory business, it was hopelessly commingled with community earnings. Respondent quotes the following from In re Estate of Fellows, 106 Cal.App. 681, at page 684, 289 P. 887, at page 888:

'* * * it is incumbent upon the party contending for the separate estate to clarify the history of the property and to demonstrate, not to an exactitude, but to that degree of proof that clearly and convincingly satisfies an unprejudiced mind, that the property is separate property. Freese v. Hibernia Sav. & Loan Soc., 139 Cal. 392, 73 P. 172. The burden of proof is upon the claimant of the property as separate estate.'

Also at page 683 of 106 Cal.App., at page 888 of 289 P.:

'In the absence of evidence to the contrary, is must be assumed that the horses were lost by death and that the tools, implements, etc., were discarded at some period during the twenty-seven years of married life, as useless.'

The general rule is well expressed in 10 Cal.Jur.2d, pages 686, 687:

'If, however, one of the spouses invests his or her separate property in a business and conducts that business during marriage, the resulting profits are community and separate property in proportion to the amounts attributable to that spouse's personal efforts and to capital investment, respectively.

'What amount of the profits of a business conducted by one of the spouses is due to the personal efforts of that spouse and what amount is attributable to his or her capital investment must, in each case, be determined from the surrounding facts and circumstances.'

In the instant case the record shows that respondent worked with appellant in said business after the marriage, that the profits from the business were used to buy a substantial home and other property including real property, stocks and an interest in the Hamilton Jewelry Company. It was stipulated in open court that all of this property was community property, which indicates strongly that the parties after their marriage regarded said dental laboratory business and the profits thereof as community property. While it is true that appellant paid $6,500 for the business nine years prior to the marriage, it is also true that the location of the business was changed after the marriage and that new furniture, fixtures and equipment were added. In the absence of any evidence in the record to trace any of the property that was in the business at the time of the marriage, and in view of the manner in which the proceeds of the business were invested and regarded by appellant and respondent, the court may well have concluded that any portion of the present value of the dental laboratory business that could be said to be traceable back to original investment was so intermingled with...

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    ...778, 785, 51 Cal.Rptr. 888, 415 P.2d 776); Tassi v. Tassi (1958) 160 Cal.App.2d 680, 690, 325 P.2d 872, 878; Mueller v. Mueller (1956) 144 Cal.App.2d 245, 249, 301 P.2d 90; Thomasset v. Thomasset (1953) 122 Cal.App.2d 116, 124, 264 P.2d 626 (overruled on other grounds See v. See (1966) 64 C......
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