Shaw v. Shaw

• Court: California Court of Appeals
• Writing for the Court: LILLIE; WOOD, P. J., and FOURT
• Citation: Shaw v. Shaw, 38 Cal.Rptr. 520, 227 Cal.App.2d 159 (Cal. App. 1964)
• Decision Date: 12 May 1964
• Parties: Myrna SHAW, Plaintiff and Appellant, v. Warren R. SHAW, Defendant and Respondent. Civ. 27487.

Page 520

38 Cal.Rptr. 520

227 Cal.App.2d 159

Myrna SHAW, Plaintiff and Appellant, v. Warren R. SHAW, Defendant and Respondent.

Civ. 27487.

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

May 12, 1964.

Rehearing Denied June 1, 1964.

Hearing Denied July 8, 1964.

Mack, Bianco, King & Eyherabide and Stephen Eyherabide, Bakersfield, for appellant.

Twitchell & Twitchell and Maurice F. Twitchell, Santa Maria, for respondent.

LILLIE, Justice.

Plaintiff, referred to hereinafter as 'Myrna,' sought partition of certain real and personal property held in joint tenancy and jointly owned with defendant, referred to hereinafter as 'Warren.' By affirmative defense, Warren alleged that in October of 1954 he and Myrna became engaged and mutually agreed to marry the other; that relying and conditioned upon Myrna's promise, he acquired the various properties for the parties jointly and furnished all of the consideration therefor. By cross-complaint, he sought recovery of the subject properties pursuant to the provisions of section 1590 of the Civil Code. ¹ The trial court denied partition and gave judgment for Warren on his cross-complaint. Myrna appeals from the adverse judgment.

There was evidence that about January 1, 1955, the parties began living together in a Santa Barbara apartment; they had met each other two years previously. Myrna was then separated from her husband, Ronald Winter, and Warren was aware of Myrna's marital status. Despite this fact, in their dealing with the public the parties represented themselves to be husband and wife. In August of 1955, Myrna obtained an interlocutory decree of divorce; it was the belief of both parties that a final decree would be obtainable in August of the following year.

In April of 1956, the parties moved to Santa Maria. There they purchased a house on Thornburg Street. Two years later, in 1958, they sold this house and used the profit from the sale to purchase a lot on East Cypress Street, likewise in Santa Maria. In both cases, title to the property was taken in the names of 'Warren R. Shaw and Myrna Shaw, husband and wife, as joint tenants.' With the proceeds of a bank loan, a home was subsequently constructed on the East Cypress lot. This house and certain personal property are the subject matter of this action. All of the funds used for the purchase of these properties were derived from Warren's earnings.

Warren testified that he first proposed marriage in 1954. According to Warren, his proposal was accepted by Myrna with the understanding that she would first obtain a divorce: 'We decided to live together, and go ahead and get married as soon as she could get her divorce.' Based on this contemplated marriage, Warren further testified, he placed the home on East Cypress Street, two bank accounts and a 1957 Mercury in the parties' names as husband and wife; furniture was also purchased on the same basis. After August of 1956, when such decree was obtainable, he repeatedly urged Myrna to obtain her final decree of divorce so that the parties could marry. Although she agreed to do so, no steps were taken by her to carry out Warren's wishes. ² In this connection, Warren testified that the subject of the parties' marriage came up every month until the end of 1958. On various occasions, the parties made specific plans to marry; they were never completed, however, because of some excuse on Myrna's part--for example, she had to visit her sister 'that weekend' or 'she [didn't] feel good.'

Late in 1958, Warren learned that Myrna was seeing another man, Yates by name. Arguments and altercations followed, and the parties separated about February 1, 1959. Subsequently Myrna married Yates, and Warren married another woman.

The present action was instituted in August of 1959. Following the conclusion of testimony, briefs were filed which developed the parties' respective legal positions. Upon submission of the cause, the court filed a Memorandum of Opinion which compliments counsel for the ability with which the case was briefed,--but observes that 'the Court's decision on the facts renders many of the legal arguments moot.' We quote the first two paragraphs of the opinion: 'The decision in this case is governed by one overriding consideration, namely, the credibility of the plaintiff as against the credibility of the defendant. The testimony of each is in sharp contradiction to that of the other on many of the controlling factual issues in the case.

'The Court believes the defendant and cross-complainant and disbelieves the plaintiff and cross-defendant. The Court is satisfied that all property placed in the names of both parties as joint tenants was done on the basis and assumption that the parties would marry. The Court is satisfied that defendant and cross-complainant sincerely desired marriage, and that he did everything that could reasonably be expected of a man to effectuate it. The Court is satisfied that plaintiff and cross-defendant, while promising marriage, and allowing defendant to justifiably rely thereon, never really intended to abide by her many promises, and for this reason procrastinated and made excuse after excuse for a period of many months, until she found another man more interesting to her than defendant and cross-complainant. This persistent course of conduct on the part of plaintiff and cross-defendant amounted to a refusal on her part to perform her promise.'

Myrna does not question the sufficiency of the evidence to support the finding that title to the various properties was taken on the assumption that the parties would marry. She points out, however, that section 1590 of the Civil Code requires as a condition of recovery thereunder that there be a 'gift' of money or property; since there is authority for the proposition that a gift is a transfer of property without consideration (24 Cal.Jur.2d § 4, p. 7), she argues that there could have been no gift of the subject properties if there was a valid consideration for the transactions in suit. Certain theories are advanced which assertedly sustain her position in this regard. She also contends, assuming for augument's sake the applicability of section 1590, that the trial court failed to take into consideration 'the equities of the parties' in awarding all of the properties to Warren.

In support of her claim that there was no failure of consideration for the subject transactions, Myrna traces the parties' relationship during the four years they lived together. Thus, while Warren applied his earnings toward the acquisition of the properties, she in turn contributed her services to Warren and the household. She cites Taylor v. Taylor, 66 Cal.App.2d 390, 152 P.2d 480, where it was held that the performance of 'all normal marital personal services' constituted consideration for a joint tenancy deed. But the facts in that case are different from those at bar. In Taylor there was a good faith belief by the woman that a valid marriage existed; a 'putative' marriage comes into existence 'where one or both parties to an invalid marriage have in good faith believed such marriage to be valid.' (Sanguinetti v. Sanguinetti, 9 Cal.2d 95, 99, 69 P.2d 845, 847, 111 A.L.R. 342.) Since there was no such belief by either party in the present proceeding, the theory of recovery found in Taylor becomes wholly inapposite. Also relied upon by Myrna is McWhorter v. McWhorter, 99 Cal.App. 293, 278 P. 454. There the parties contracted a so-called 'common-law marriage' and by their joint efforts acquired real and personal property as joint tenants which was partitioned by the trial court. The judgment was affirmed, the opinion stating that 'it is entirely immaterial, so far as the determination of this appeal is concerned, whether they lived together in good faith as husband and wife, or otherwise.' (99 Cal.App. p. 295, 278 P. p. 455.) But, unlike our case, there was proof (as shown above) that the property was acquired by the efforts of both parties; too, the court was not confronted with the effective provision of section 1590--nor could it have been, the statute having been enacted in 1939 (ten years following McWhorter). More closely in point is McCracken v. McCracken, 75 Cal.App.2d 872, 171 P.2d 944, cited in appellant's closing brief, to the effect that it is immaterial whether one party has made all of the payments on property taken in the parties' names as joint tenants; again, however, the court was not called upon to consider the impact, if any, of section 1590 on the situation at hand.

Another theory of recovery or setoff is the existence of an agreement between the parties to divide the property or to compensate for services, as the case may be. 'If a man and woman live together as husband and wife under an agreement to pool their earnings and share equally in their joint accumulations, equity will [preserve] the interest of each in such property.' (Vallera v. Vallera, 21 Cal.2d 681, 685, 134 P.2d 761, 763.) It has been said that 'protection may be afforded...