Schindler v. Schindler

• Decision Date: 19 July 1954
• Citation: 126 Cal.App.2d 597,272 P.2d 566
• Court: California Court of Appeals Court of Appeals
• Parties: SCHINDLER v. SCHINDLER. Civ. 20186.

Page 566

272 P.2d 566

126 Cal.App.2d 597

SCHINDLER v. SCHINDLER.

Civ. 20186.

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

July 19, 1954.

Clarke & Gleis, Stanley N. Gleis, Beverly Hills, for appellant and cross-respondent.

Hahn, Ross & Saunders, Los Angeles, for respondent and cross-appellant.

MOSK, Judge pro tem.

Declaring that it was impossible to continue to live together as husband and wife, respondent commenced an action against appellant for divorce on October 1, 1952. In her complaint she alleged that certain real property known as 14041 Roblar Road, Sherman Oaks, California, was community property.

Her specific averment in that regard was 'that the title to said property stands of record in the names of the parties hereto as joint tenants for the purpose of convenience only and for no other reason, and said property was intended between the parties hereto to be at all times and now is their bona fide community property'. Appellant answered that 'it was at all times since the acquisition of the said property and is now the intention of the parties that the said property be held by them as joint tenants'.

After trial held on June 23, 1953, the court found 'That it is true that the real property hereinabove described stands of record in the names of plaintiff/cross-defendant and defendant/cross-complainant as joint tenants, but that in truth and in fact, said property is the bona fide community property of the parties hereto'. Pursuant to the foregoing finding that it was community, the trial court awarded the property to respondent, to whom it granted an interlocutory decree of divorce on the ground of extreme and habitual cruelty. From that portion of the decree-relating to the real property, appellant has appealed, maintaining the realty is in fact joint tenancy.

Testimony at the trial revealed that the parties were married in Connecticut and during their marriage acquired a home in Pennsylvania, that residence having been sold when they moved to California in about 1949, at which time the Sherman Oaks residence was purchased. In connection with the acquisition appellant borrowed $3,000 from his father to apply on the purchase price and that sum has not been repaid. Testimony of the respondent was in essence that she did not understand the meaning of joint tenancy, that no one explained its nature or effect to her, that she signed the papers in connection with the transaction, that she thought the property 'belonged to both of us' and that it was community property, and that all payments made on the property came from appellant's earnings. She further stated on cross-examination that there had been no discussion between her and appellant as to how title should be taken. She also admitted that she did not know anything about community property at that time.

The sole question presented on this appeal is whether the trial court properly determined that the real property was in fact community property and therefore subject to disposition in the divorce proceedings.

It is common knowledge that innumerable husbands and wives with little or no information about estates in real property acquiesce without reflection in the suggestion that they place purchased property in joint tenancy. This estate, of course, has certain advantages. Usually not until marital discord reaches the critical stage of dividing community assets does one of the spouses--generally the one found to be innocent of wrong-doing and therefore entitled to more than half of the community property--first learn of the disadvantages of joint tenancy. At that point the issue of lack of comprehension, or absence of consent to the creation of the joint tenancy estate inevitably arises. Rare indeed is the contested divorce case today in which the trial court is not concerned with this issue.

The basic law applicable to this problem is reasonably well settled. It is in some of the refinements that we find what appears at first blush to be a conflict in the cases.

From the very nature of the estate, as between husband and wife, a community estate and a joint tenancy estate cannot exist at the same time in the same property Tomaier v. Tomaier, 23 Cal.2d 754, 758, 146 P.2d 905. This was established in Siberell v. Siberell, 214 Cal. 767, at page 773, 7 P.2d 1003, at page 1005, the court there further holding that 'use of community funds to purchase the property and the taking of title thereto in the name of the spouses as joint tenants is tantamount to a binding agreement between them that the same shall not thereafter be held as community property, but instead as a joint tenancy with all the characteristics of such an estate.'

The statutory presumption that property acquired after marriage except by gift, bequest, devise, or descent is community property, Civil Code, §§ 162, 163, 164, is successfully rubutted by evidence that the property was taken in joint tenancy. Edwards v. Deitrich, 118 Cal.App.2d 254, 260, 257 P.2d 750. The fact that a deed was taken in joint tenancy establishes a prima facie case that the property is in fact held in joint tenancy. King v. King, 107 Cal.App.2d 257, 259, 236 P.2d 912. There is actually a presumption that the property is as described in the deed and the burden is on the party who seeks to rebut the presumption. Edwards v. Deitrich, supra. The form of the deed cannot be lightly disregarded. Even with evidence of contrary intent, the deed alone creates a conflict of fact. Cox v. Cox, 82 Cal.App.2d 867, 870-871, 187 P.2d 23. As stated in Re Rauer's Collection Co., 87 Cal.App.2d 248, 257, 196 P.2d 803, 809, 'The form of the conveyance is itself some evidence of the intent to change it from community property, and creates a rebuttable presumption to that effect.'

On the other hand, a conveyance of property to a husband and wife as joint tenants does not necessarily, and under all circumstances, preclude the idea of their holding the same as community property. Cummins v. Cummins, 7 Cal.App.2d 294, 304, 46 P.2d 284. It is clear that a husband and wife may convert community into separate property, and vice versa, by agreement between themselves, and that persuasive evidence of such an understanding will rebut the presumption created by the form of the deed. Edwards v. Deitrich, supra. Parol evidence is admissible to show that a husband and wife who took property as joint tenants actually intended it to be community property, the purpose being to prevent the use of common law forms of conveyance to alter the community character of real property contrary to the intention of the parties. Tomaier v. Tomaier, supra, 23 Cal.2d at page 757, 146 P.2d at pages 906, 907. In Thomasset v. Thomasset, 122 Cal.App.2d 116, 133, 264 P.2d 626, 637, the court indicated 'Property may be found to be other than that indicated by the deed when there is an oral or written agreement as to the ownership of the property, or where such understanding may be inferred from the conduct and declarations of the spouses.'

The purchase of property with community funds is insufficient standing alone to establish that property is community property. In re Rauer's Collection Co., supra, 87 Cal.App.2d at page 257, 196 P.2d at pages 808, 809. The presumption arising from the form of the deed may not be rebutted solely by evidence as to the source of the funds used to purchase the property. Gudelj v. Gudelj, 41 Cal.2d 202, 212, 259 P.2d 656. However, it may be contraverted by testimony indicating the 'intention, understanding or agreement of the parties'. Socol v. King, 36 Cal.2d 342, 345, 223 P.2d 627, 629. Respondent has emphasized the disjunctive character of the foregoing phrase, and maintains her intention alone will suffice to establish the property held in joint tenancy to be actually community. Neither the facts nor the outcome of Socol, however, lend her much comfort. For the unanimous court there determined that the unrevealed intention of one party alone for the property to remain a part of the community is not effective.

At this point we reach two cases upon which respondent heavily relies. Superficially they appear to conflict with the foregoing rules, but we believe they can be reconciled.

In Palazuelos v. Palazuelos, 103 Cal.App.2d 826, 230 P.2d 431, the court affirmed a holding that property was community although the only evidence mentioned indicated the wife did not intend the property to be...