Rutledge v. Rutledge
| Decision Date | 08 July 1953 |
| Citation | 119 Cal.App.2d 114,259 P.2d 79 |
| Parties | RUTLEDGE v. RUTLEDGE. Civ. 19532. |
| Court | California Court of Appeals Court of Appeals |
Walter H. Young, Los Angeles, for appellant.
Tudor Gairdner, Los Angeles, for respondent.
In an action for an accounting and partition of certain real and personal property held jointly by plaintiff and defendant, plaintiff appeals from that part of an amended decree (judgment) requiring her to pay her portion of a tax lien deficiency in connection with an income tax return on community property, which return was filed while the parties were husband and wife but the deficiency was not assessed until after they had been divorced.
Defendant also appeals from the same decree.
Facts: Plaintiff and defendant were married in 1914, and divorced in 1949. In 1947, defendant filed two separate income tax returns, one on behalf of himself, in which he listed one half of the community income, and another on behalf of his wife, in which he listed the other one half of the community income.
Thereafter, and subsequent to the divorce of the parties, the government disallowed certain deductions and assessed a deficiency on both of the income tax returns. Defendant paid the deficiency assessed against his return but did not pay that assessed against his former wife's return.
In the instant action, involving an accounting and partition of joint property between the parties, the trial court directed that defendant be credited with payments which he had made or might make on behalf of the deficiency assessment levied by the government on plaintiff's income tax return.
Plaintiff claims that the trial court erred in not requiring defendant to pay the entire deficiency assessment including that assessed against her.
The trial court's ruling was correct in providing that plaintiff should be charged with the unpaid assessment on her income tax return. It only requires her to pay that which she of necessity would have paid on her separate return had the disallowed deductions not been included in the return. It is true the parties were husband and wife and lived together for approximately one and one-half years after the return was filed. However, the divorce dissolved her vested community interest, making all of her property interests 'separate' in nature. Had the proper income tax been paid at the time the return was made the community property would have been reduced by the amount so paid and plaintiff would have received proportionately less as her share of the community property.
It is thus fair and equitable that she at this time pay her proportion of the assessment and not be allowed to unjustly enrich herself by the device of obtaining a divorce from her husband.
It is to be noted that the record is devoid of any evidence that defendant made any false or fraudulent returns. On the contrary it discloses that the returns were prepared by his auditor, his return being signed by him, there being a dispute as to who signed plaintiff's name to the return filed on her behalf. This is immaterial in any event for the reason that the husband, having charge of the community interest, if he signed the return on behalf of his wife, did so as her agent.
Preliminarily defendant contends that the trial court was without jurisdiction to file amended findings of fact, conclusions of law and interlocutory decree of partition, for the reason that after the original findings of fact, conclusions of law and interlocutory decree were entered July 2, 1952, he appealed on July 15, 1952 from the interlocutory decree.
He urges, since the notice of intention to move for a new trial and amend the findings, conclusions and decree were not filed until after the notice of appeal had been filed, the trial court was without jurisdiction to order an amendment to the findings of fact, conclusions of law and enter the decree from which the present appeal is taken.
This contention is devoid of merit. Since the adoption of section 662 of the Code of Civil Procedure in 1929, 1 the trial court has been authorized upon the denying of a motion for a new trial to amend its findings of fact, conclusions of law and enter a new and different judgment. (California Machinery, etc., Company v. University City Syndicate, 3 Cal.App.2d 425, 426, 428, 39 P.2d 853; Spier v. Lang, 4 Cal.2d 711, 714, 53 P.2d 138.)
The taking of an appeal from the original judgment does not deprive the trial court of the power thus conferred. Since the original judgment is nonappealable, the amended judgment is the one from which an appeal may be taken. (See Rutledge v. Rutledge, Cal.App., 259 P.2d 78.)
Takahashi v. Fish and Game Comm., 30 Cal.2d 719, 185 P.2d 805, Linstead v. Superior Court, 17 Cal.App.2d 9, 61 P.2d 355, and Kinard v. Jordan, 175 Cal. 13, 164 P. 894, relied on by defendant, are not here applicable because the attempt to amend the judgments in such cases were not made pursuant to the provisions of section 662 of the Code of Civil Procedure.
Questions: First: Did the trial court err in awarding plaintiff a money judgment against defendant in the sum of $69,487.00?
Yes. Plaintiff filed an amended complaint seeking an accounting and partition. The complaint alleged that plaintiff and defendant had been husband and wife but were divorced in 1949; that at the date of the divorce there was certain real and personal properties belonging to the parties which were community property, the principal personal property so far as necessary to the determination of this cause being an automobile business, together with the land and buildings located at 5101-11 Whittier Boulevard, Los Angeles.
After trial the court, among other things, decreed that defendant should pay to plaintiff $69,487.00 representing one half of the net worth of the automobile business. The court found, supported by substantial evidence, that the parties were cotenants of this business. This being true the court was without power to make such an order.
When several persons are co-owners of real or personal property any one or more of the co-owners may file an action for partition. It then becomes the duty of the court to partition the same and if this cannot be done without great prejudice to such owners, it is the duty of the court to cause the property to be sold and to partition the proceeds among them according to their respective interests. (Code of Civil Procedure, sections 752, 752a) 2.
In the present case this rule was not followed. It is obvious that prejudice resulted to one or both parties for the reason that since the business could not be partitioned between the parties, without detriment to one of them, plaintiff was entitled to have it sold and it is possible that upon a sale thereof her share of the proceeds of the sale would have amounted to more than the $69,487. On the other hand, upon the sale of the property it might have sold for less, in which event defendant could have purchased plaintiff's interest for less than the amount the court directed that he should pay for plaintiff's half interest.
As to this portion of the decree it must be reversed with directions to the trial court to cause the property to be sold is accordance with the applicable code provisions and to take a full and complete accounting.
In the accounting between the parties the court will determine the proper amounts to charge defendant and to credit plaintiff on account of the net income earned by the business from the date of the divorce of the parties to the date of the filing of the present action, in the absence of any supplemental and/or amended pleadings. For example, if the...
To continue reading
Request your trial
-
Olivas v. Olivas
...v. Herrmann. Although husband and wife had an equal interest in the profits and losses of the business, see Rutledge v. Rutledge, 119 Cal.App.2d 114, 259 P.2d 79 (1953); Walton v. Walton, 287 Mich. 557, 283 N.W. 687 (1939), any salary husband earned from the business after the divorce would......
-
Teixeira v. Verissimo
...Oil Corp. v. Walden, 4 Cal.2d 637, 52 P.2d 237; Brunscher v. Reagh, 164 Cal.App.2d 174, 176, 330 P.2d 396; Rutledge v. Rutledge, 119 Cal.App.2d 114, 120, 259 P.2d 79; McWhorter v. McWhorter, 99 Cal.App. 293, 295-296, 278 P. 454; Black v. Black, 91 Cal.App.2d 328, 204 P.2d 950.) The plaintif......
-
Hunter v. Schultz
...(1949) 91 Cal.App.2d 328, 332, 204 P.2d 950; Nevarov v. Nevarov (1953) 117 Cal.App.2d 581, 585, 256 P.2d 330; Rutledge v. Rutledge (1953) 119 Cal.App.2d 114, 120, 259 P.2d 79; Brunscher v. Reagh (1958) 164 Cal.App.2d 174, 176, 330 P.2d 396; 4 Powell on Real Property, p. 603), we disagree wi......
-
Patten-Blinn Lumber Co. v. Francis, PATTEN-BLINN
...Superior Court, the plaintiff must record * * * a notice of the pendency of the action * * *' (Emphasis added). In Rutledge v. Rutledge, 119 Cal.App.2d 114, 120, 259 P.2d 79, it was held that a party to the action could not assert as a defense the failure to file the aforesaid Section 1243 ......