Pack v. Vartanian

• Decision Date: 23 February 1965
• Citation: 42 Cal.Rptr. 729,232 Cal.App.2d 466
• Court: California Court of Appeals Court of Appeals
• Parties: Edna PACK, Plaintiff and Respondent, v. Jack VARTANIAN, Defendant and Appellant. Civ. 374.

Page 729

42 Cal.Rptr. 729

232 Cal.App.2d 466

Edna PACK, Plaintiff and Respondent, v. Jack VARTANIAN, Defendant and Appellant.

Civ. 374.

District Court of Appeal, Fifth District, California.

Feb. 23, 1965.

Ralph Nickerson and Louis L. LaRose, Visalia, and Leo Kolligian, Fresno, for appellant.

Granger & Moe, by Lewis A. Moe, Delano, for respondent.

RALPH M. BROWN, Justice.

By celebration of a marriage ceremony, plaintiff and defendant entered into a putative marriage relationship on January 13, 1944, and separated about March 1, 1960. The putative marriage was annulled about May 13, 1960. Apparently plaintiff filed no responsive pleadings in the annulment action. Plaintiff commenced this action on March 4, 1963, seeking to recover a division of real and personal property claimed to have been accumulated by the plaintiff and the defendant during the period of the putative marriage, title of which was held in the name of the defendant, together with a share of the rents and profits therefrom from the date of the separation. Defendant appeals from an adverse judgment and from an order denying his motion to vacate the judgment and enter a different judgment. We have concluded that the judgment and the order must be affirmed.

Facts which are not in dispute are as follows: In 1913 defendant's father, Hovakan Vartanian, acquired 105 acres of land, comprised of a parcel containing 65 acres and a parcel containing 40 acres. In 1930 defendant leased the land from his father and conducted farming operations thereon. After his father's death defendant operated the ranch under a leasing arrangement with his mother, and such leasing arrangement continued until the demise of his mother. Evidence was introduced showing two deeds of trust constituting liens against the land. The first deed of trust, dated February 1, 1934, shows defendant's parents, Hovakan Vartanian and Dziadzan Vartanian, as grantors, Willard D. Ellis, Walter C. Dean and Chas. Parker as trustees, and The Federal Land Bank of Berkeley as beneficiary; and that the first deed of trust was given as security for a loan of $4,500 with interest payable in semi-annual installments. The second deed of trust, dated August 1, 1934, shows the same grantors and trustees with the Land Bank Commissioner as beneficiary, and that it was given to secure a loan of $1,500 with interest, payable in semi-annual installments. Plaintiff and defendant celebrated a marriage ceremony on January 13, 1944. Thus, at the date of the marriage ceremony, defendant's father owned the land, defendant operated the ranch under a lease arrangement, and a first and a second deed of trust constituting liens thereon were extant. Hovakan died in 1937 and Dziadzan became the owner of the land. On January 14, 1947, Dziadzan executed five deeds, each conveying to one of her five children, including defendant, an undivided one-fifth interest in the 105 acres. These five deeds were held by an attorney in San Francisco, presumably in escrow, the grantees being unaware of their existence, and were delivered by the attorney to the grantees after the demise of Dziadzan in 1951. The deed naming the defendant as a grantee was received by him in April 1951. Intermediate the execution of these deeds and receipt thereof by the respective grantees, Dziadzan, by a grant deed dated December 7, 1950, conveyed to defendant the 40 acres which had been included by legal description in the 1947 deeds. In May 1952 defendant purchased from each of his three brothers and one sister their respective one-fifth interests in the entire 105 acres for $6,500 each. The evidence does not show the source of these payments. These sales and purchases were negotiated at arms length through an attorney representing defendant and attorneys representing his siblings. Defendant took title in his name alone. It is conceded that defendant sold the 40-acre parcel at some time during the putative marriage relationship, but the record does not disclose the date of such sale.

Following trial of this action the trial judge divided certain personal property; determined that the defendant owned a one-fifth interest in the 65-acre ranch as his separate property; determined that the remaining four-fifths interest was acquired by purchase through the joint efforts of plaintiff and defendant during the putative marriage relationship; and awarded to plaintiff an undivided two-fifths interest therein. On this appeal, defendant does not challenge the manner in which the personal property was divided. The principle controversy is the division of the 65-acre ranch.

The trial court's finding that a four-fifths interest in the real property was acquired by the plaintiff and the defendant by their joint efforts, during the purported marriage, is supported by the presumption that property acquired during marriage, even though taken in the name of the husband, is community property (Civ.Code, § 164). The presumption is controlling when it is impossible to trace the source of specific property (Gudelj v. Gudelj, 41 Cal.2d 202, 210, 259 P.2d 656). The party asserting that property acquired during the period of the marriage is separate bears the burden of establishing its separate character (Price v. Price, 217 Cal.App.2d 1, 6, 31 Cal.Rptr. 350). Some courts have ruled that the burden may be met only by 'clear and convincing' evidence or 'satisfactory proof.' (Thomasset v. Thomasset, 122 Cal.App.2d 116, 123, 264 P.2d 626.) Whether or not the presumption is overcome is a question of fact for the trial court. (Machado v. Machado, 58 Cal.2d 501, 506, 25 Cal.Rptr. 87, 375 P.2d 55; Gudelj v. Gudelj, supra, 41 Cal.2d 202, 212, 259 P.2d 656; Harding v. Harding, 223 Cal.App.2d 709, 713, 36 Cal.Rptr. 184.)

In this case defendant contends that he produced satisfactory proof to overcome the presumption and clearly establish his entitlement to a greater proportion, if not all, of the 65 acres as his separate property. He points to his own testimony that, in 1934, foreclosure proceedings were threatened and defendant entered into an 'option' arrangement with his father whereby defendant agreed to assume and pay the indebtednesses evidenced by notes secured by the two deeds of trust which constituted liens against the entire 105 acres and, upon payment in full, he would 'get' the 40-acre parcel; that after the demise of his father he entered into a similar 'option' arrangement with his mother; that at the date of the putative marriage he had paid about one-half of the total lien indebtednesses; that he paid approximately $3,000 into escrow in December 1950 at which time he received the grant deed from Dziadzan conveying the 40 acrs to him; and that he sold the 40 acres during the putative marriage relationship. From this testimony he reaches various results by a process of syllogistic reasoning. It is claimed that he acquired a separate property interest in the 40-acre parcel by reason of the 'options'; that upon its sale the proceeds, or a proportion thereof, were separate property, and that the trial court could have traced these funds into the purchase from his siblings of their respective interests in the 65 acres, under the doctrine of tracing by implication. The theory is clear; the supporting proof is not.

As to existence of an option, defendant produced only one writing. This was a lease with his mother dated March 14, 1938, which granted defendant an option to purchase the 40-acre parcel and contained the following language: 'Said purchase price is to be a sum equal to the mortgage outstanding on my whole vineyard at the time that this option is exercised. This option is to terminate on December 31, 1939.' Defendant testified that the 'option' was renewed from year to year; but produced no writings to that effect. In the absence of such writings the question of whether or not there was in fact an option in existence at the time of the putative marriage in 1944 depended solely upon the uncorroborated testimony of the defendant. The trial court found against him on this question as it had a right to do. Further, although the trial judge asked for proof of payments defendant claimed to have made on the liens prior to marriage, none was produced. Defendant testified that he had paid about one-half but was unable to state any sum certain. He produced no evidence of the value of the 40 acres at the date of the putative marriage. The deeds adduced in evidence add to the confusion. Although in 1950 his mother purported to convey to the defendant the 40-acre parcel, she had theretofore, in 1947, executed deeds conveying to each of her five children an undivided one-fifth interest in all of her realty, including the same 40 acres. Defendant produced no evidence of when he sold the 40 acres. If that sale was subsequent to the purchase from his siblings of their interests in the ranch, obviously the proceeds of the sale could not be traced into that purchase. The fact that the 1952 deeds from his siblings include the description of the 40 acres indicates that defendant had not then sold the 40 acres. It would be unreasonable to assume that defendant sold the realty to a third party and then recorded subsequent deeds conveying to him a four-fifths interest in the same parcel.

The trial judge pointed out the lack of proof of the existence of an 'option' at the date of the putative marriage; the lack of proof of any payments made by the defendant on the notes secured by the trust deeds; the lack of proof of the exact amount claimed to have been paid thereon; and the lack of proof that such payments, if any, were made pursuant to any option to purchase the 40 acres. Defendant was provided with every opportunity to develop his theories of separate property ownership, but failed to bear the burden of offering 'clear and convincing' evidence, nor did he explain the lack thereof. The evidence which defendant did produce is not of that conclusive nature as to require ...