Rutledge v. Rutledge
| Decision Date | 01 August 1955 |
| Citation | 286 P.2d 429,134 Cal.App.2d 689 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Emma Loomis RUTLEDGE, Plaintiff, Respondent and Cross-Appellant, v. Vernon E. RUTLEDGE, Defendant, Appellant and Cross-Respondent. Civ. 20750. |
Tudor Gairdner, Los Angeles, for appellant.
Walter H. Young, Los Angeles, for respondent.
Both plaintiff and defendant have appealed from the present interlocutory judgment rendered May 12, 1954, after the second trial. The judgment after the first trial was in part that defendant pay to plaintiff $69,487, representing one-half of the net worth of the automobile business of the parties as of September 12, 1949, the date of their divorce, with interest thereon computed at 7% per annum from said date; and 'that, subject to the lien of this judgment Vernon E. Rutledge is the sole owner of the Rutledge Buick Company'. That judgment was reversed on appeal. Rutledge v. Rutledge, 119 Cal.App.2d 114, 259 P.2d 79.
Without conflict, the record discloses that plaintiff and defendant had been husband and wife for over 35 years. In 1949 plaintiff commenced an action for divorce in the Superior Court of Los Angeles County. She was then induced by defendant to dismiss her California attorney and to go to Nevada for her decree. It failed to dispose of the community property, which consisted mainly of the business known as Rutledge Buick Company. The real property upon which said business was located was owned by plaintiff and defendant as joint tenants. Both the amended interlocutory judgment from which the first appeal was taken and the interlocutory judgment from which the instant appeals were taken appointed referees, directed them to sell the real property and to report to the court for confirmation, and each ordered that 'the proceeds of the sale shall be divided according to law and the findings and judgment of the court.'
The present judgment is, like the one considered on the former appeal, in part, a 'money judgment'. It awards to plaintiff $91,710.95 'as the balance due * * * on the accounting * * *.' It is urged by defendant that 'the Court erred in awarding her a money judgment instead of ordering the business partitioned or sold, and that such award of a money judgment was in direct contravention of the decision of the Appellate Court in Rutledge v. Rutledge, 119 Cal.App.2d 114 .'
On that appeal from the former judgment in the instant action, Mr. Justice McComb speaking for the court, 119 Cal.App.2d at pages 118-119, 259 P.2d at page 82, said:
'In the present case this rule was not followed. * * *
'As to this portion of the decree it must be reversed with directions to the trial court to cause the property to be sold in accordance with the applicable code provisions and to take a full and complete accounting.
A supplemental complaint was filed November 4, 1953, in which the new matter included allegations of the interests of third parties in the real property; defendant's sole and exclusive possession and control of said business; defendant's collection of rents on the real property and the profits of the business and his refusal to account for them; defendant's statement to plaintiff that she will never get any part of her interest in the said business or the profits therefrom or the rentals from the said real property; and an application for the appointment of receivers to protect the property pending trial.
By his answer to said supplemental complaint, filed November 17, 1953, defendant abmits that he has collected said rents and profits, alleges that he is willing and ready to account for said rentals, and that he will not account for the profits unless compelled by the court to do so; and further that 'this Trial Court found and so decreed that this defendant pay plaintiff as a net return on the latter's former community interest in said business seven per cent (7%) on $69,487. As the result of the foregoing, it is unnecessary for this defendant to account to plaintiff for the profits from said business.
* * *
* * *
'* * * that the District Court of Appeal upheld this defendant's contention that the business should be sold in the above partition action and, since a further trial of the above matter has been set for hearing on December 1, 1953, alleges that a partition sale of said business should be promptly and orderly held and that the appointment of a receiver would seriously jeopardize the interests of all parties to the above action.'
Throughout the second trial, plaintiff contended that she was entitled to a full accounting for one-half of the net profits of the business and one-half of the rentals of the real property from the time of their divorce to the date of the final judgment, in addition to one-half the proceeds of the sales of the business and the real property, respectively.
Defendant consistently contended that the court had no power to take an accounting and that its power was limited by the decision on appeal to ordering sale of the real property and the business, dividing the proceeds of such sales, and awarding plaintiff 7% per annum interest on her half of the proceeds of the sales from the date of the divorce to the date of the sales.
The court reserved its decision as to the amount to be awarded plainti...
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