Ottinger v. Ottinger

• Decision Date: 02 May 1956
• Citation: 141 Cal.App.2d 220,296 P.2d 347
• Parties: Eileen OTTINGER, Plaintiff and Respondent, v. I. M. OTTINGER, Defendant and Appellant. Civ. 16565.
• Court: California Court of Appeals Court of Appeals

Page 347

296 P.2d 347

141 Cal.App.2d 220

Eileen OTTINGER, Plaintiff and Respondent, v. I. M. OTTINGER, Defendant and Appellant.

Civ. 16565.

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

May 2, 1956.

Millington & Dell'Ergo, Redwood City, for appellant.

Thacher, Jones, Casey & Ball, San Francisco, for respondent.

PETERS, Presiding Justice.

The trial court, in this divorce action, decreed that plaintiff and defendant, formerly wife and husband, were tenants in common of certain property in San Mateo County, and that plaintiff-wife was entitled to $250 attorney's fees. The defendant-husband appeals.

The parties were married in April of 1929 in Missouri, and went to live with defendant's parents on a farm near Greenville, Tennessee. The marriage was not a happy one. In January of 1930, plaintiff, after being severely beaten by defendant, left the farm, went to live in Greenville, secured a job, and filed an action for divorce. This action was dismissed when the parties effected a reconciliation. In 1936 plaintiff again left the farm, taking the parties' three living children with her, and proceeded to Greenville. She again filed an action for divorce, but again dismissed the action after a reconciliation. This time, however, plaintiff did not move back to the farm. There is a conflict as to whether the parties cohabited after this 1936 separation. Plaintiff testified that after the reconciliation, the parties lived together, in Greenville, until September of 1937, when the defendant left Tennessee in search of work, telling plaintiff that when he found it he would send for her and the children. Defendant went to West Virginia and sent plaintiff several letters from there, professing his love for the family, and on one occasion enclosed a $10 bill.

The defendant directly contradicted this testimony. He claims that his wife left him in 1936, and that thereafter the parties never again lived together; that he stayed on the farm until the last part of 1937, when he left Tennessee; that at that time his wife was living in Bristol, Virginia.

Two of the children of the parties corroborated their mother, testifying that they lived with their mother and father in Greenville in 1937.

Plaintiff testified that it was not until October of 1937 that she and the children went to Virginia. In 1939 she returned to Greenville and again filed a divorce action, which she again dismissed after entering into an agreement to such effect with her mother-in-law. Then plaintiff moved, with the children, to Oregon. Plaintiff testified that, after her husband left her in 1937, she supported herself and the children. Between 1937 and 1949 she corresponded with her mother-in-law and tried, without success, to find out defendant's address.

Some time after the 1937 separation defendant came to California, arriving here with $5. Between 1940 and 1953, while living in California, he acquired real property appraised at $11,500, and trust deeds totalling $7,864.46.

In 1949 plaintiff found it necessary to secure defendant's signature to a document involving real property acquired by her in Oregon, and finally secured defendant's San Mateo County address from the Chief of Police in Greenville. By correspondence she secured defendant's signature to the document. This was the first time that she knew of defendant's whereabouts since 1937. She did not personally see defendant, however, until 1953, when defendant came to Oregon to try to obtain her consent to an appearance in a divorce action he had filed in Nevada. She refused to sign the papers, and, on July 18, 1953, defendant secured a default decree of divorce in a Nevada court. Defendant had moved to Nevada in 1953, and, at the time of trial (May, 1954), was a registered voter and a resident of that state.

Plaintiff filed the present action on July 10, 1953, in San Mateo County. She secured personal service on defendant in California. The amended complaint charges defendant with desertion, wilful neglect, adultery and cruelty, and alleges that when defendant filed the Nevada action he was, in fact, a resident of California. She asked that the Nevada decree be declared void on the ground of lack of jurisdiction, prayed for a declaration that all of the property owned by defendant in San Mateo County was community property, asked for its division, and also prayed for alimony and separate maintenance, plus attorney's fees. The answer of defendant avers that the separation of the parties was by mutual consent, and sets up the Nevada decree secured on July 18, 1953, as a complete defense.

The trial court found that the defendant had in fact deserted plaintiff in 1937; that defendant was a resident of California between 1940 and 1953, but became a resident of Nevada in May of 1953; that while married to plaintiff and while a resident of California, defendant acquired, from his California earnings, certain real property and certain trust deeds; that in Nevada on July 18, 1953, defendant obtained a valid decree of divorce from plaintiff.

Based on these findings the trial court concluded that the real property and trust deeds in San Mateo County were the community property of the parties, and that by reason of the dissolution of the marriage by divorce the parties became and are tenants in common in equal shares in that property. A judgment so providing and also awarding plaintiff $250 attorney's fees was entered. Defendant appeals from those portions of the judgment decreeing plaintiff to be a tenant in common of the property and awarding plaintiff attorney's fees.

The basic contentions of appellant are that the evidence, as a matter of law, shows that plaintiff deserted defendant, and that under California law a deserting wife is not entitled to share in the husband's earnings during the period of their separation. Both contentions are erroneous.

In the first place, the respondent testified that after the 1936 separation the parties became reconciled and lived together until September, 1937, when appellant left for West Virginia, promising to send for respondent and the children. This he never did. The basic part of this testimony was corroborated by the two children of the parties. Thus, the finding that appellant in fact deserted respondent in 1937 is supported by substantial, although conflicting, evidence.

In the second place, even if the evidence did show, as a matter of law, desertion by respondent, at the times here relevant it was not the law of California that a deserting wife acquired no interest in the earnings of the husband after separation.

Appellant contends that under the old Spanish and Mexican laws of community property a deserting wife is not entitled to share in property subsequently earned by the husband. There is undoubtedly authority to that effect. The case of Pendleton v. Brown, 25 Ariz. 604, 221 P. 213, cited by appellant, undoubtedly so held. But the rule of that case is not applicable in this state. Randolph v. Randolph, 118 Cal.App.2d 584, 258 P.2d 547, expressly so held. There the wife deserted her husband in 1928. Twenty-five years later the husband sued for divorce, alleging desertion and cruelty. The trial court awarded the husband a divorce on the ground of desertion, but granted the wife one-half the community property. On appeal the husband urged the precise point here under discussion, namely, that a deserting wife gains no interest in subsequently acquired property of the husband. The...