Thomasset v. Thomasset

• Decision Date: 17 December 1953
• Citation: 122 Cal.App.2d 116,264 P.2d 626
• Court: California Court of Appeals Court of Appeals
• Parties: THOMASSET v. THOMASSET et al. Civ. 19605.

Page 626

264 P.2d 626

122 Cal.App.2d 116

THOMASSET v. THOMASSET et al.

Civ. 19605.

District Court of Appeal, Second District, Division 3, California.

Dec. 17, 1953.

Rehearing Denied Jan. 14, 1954.

Hearing Denied Feb. 10, 1954.

Clyde C. Shoemaker, Los Angeles, for appellant.

William H. Hodges, Clarence Hansen, and Charles A. Thomasset, Los Angeles, for respondents.

VALLEE, Justice.

Cross-appeals from particular parts of an interlocutory judgment of divorce. Plaintiff was awarded the divorce without contest. The controversy was with respect to the disposition of property.

Plaintiff appeals from those parts of the judgment which: 1. awards a half interest in certain real property to her; 2. decrees that certain property is the separate property of defendant; 3. orders defendant to pay her $225 a month for her support; 4. terminates an order for her support pendente lite as of May 1, 1952. Defendant appeals from those parts of the judgment which: 1. decrees that certain real and personal property is community property; 2. awards plaintiff certain personal property decreed to be community property; 3. orders him to pay plaintiff $225 a month for her support; 4. orders him to pay plaintiff's attorneys $2,250 as fees.

The parties were married March 26, 1945. Defendant has been a practicing attorney at law continuously since 1927. The property in controversy consists of a house and lot, referred to as the Hudson Avenue property, subject to an encumbrance; an apartment building and lot, referred to as the Manhattan Beach property, subject to an encumbrance; household furniture and furnishings; money in possession of defendant; defendant's law offices and their equipment his accounts receivable; and various other items of personal property.

The court found that the Hudson Avenue and Manhattan Beach properties are community property and awarded an undivided half interest to each party. It found that certain furniture and furnishings are community property and awarded them to plaintiff. It found that the remainder of the property is the separate property of defendant and decreed that plaintiff has no interest therein.

At the date of the marriage, defendant's separate property consisted of cash on hand and in bank, $7,388.75; accounts receivable, $30,722.33; library, $3,724; paintings, $600; and office furniture and supplies, $1,625. Total, $44,060.08.

Prior to marriage, defendant maintained a commercial account in his name with Bank of America. In June, 1949, he opened another commercial account in his name with another branch of the same bank. He maintained these accounts during all of the time in question. During marriage, defendant deposited all cash he had on hand at the time of marriage and all moneys he received from all sources after marriage in these accounts. He testified, 'Everything went into that account.' The deposits during marriage included separate and community funds: cash on hand and accounts receivable at date of marriage, defendant's pension as a veteran, dividends, proceeds of sale of property, and income from his practice. After marriage, all living expenses of the parties and all funds for the purchase of the properties in controversy came from these accounts. Title to the realty was taken in joint tenancy, and title to the personalty, in the name of defendant. All properties involved on plaintiff's appeal were acquired after marriage.

Plaintiff's Appeal

Plaintiff first contends the finding that all of the property not found to be community is the separate property of defendant is without support in the evidence. She argues that property acquired by husband and wife after marriage is presumptively community property; that the evidence shows indiscriminate commingling of all the community and separate funds whereby the identity of each was lost; it became impossible to trace the same and the whole should, therefore, be treated as community property. Defendant's position is that all property purchased by him after marriage was purchased out of the money he had at the date of marriage, adding his pension money, insurance dividends, and fees which had accrued up to the time of marriage--all of which were his separate property--and that he was entitled to make the segregation by showing that at the time each item of property was purchased there were no community funds available to make the purchase, and that he traced his separate funds into the property decreed to be his separate property.

Property acquired during marriage and taken in the name of the husband is presumed to be community property. Fountain v. Maxim, 210 Cal. 48, 51, 290 P. 576. The presumption is rebuttable. Wilson v. Wilson, 76 Cal.App.2d 119, 126, 172 P.2d 568. The burden rests on the party asserting that property acquired after marriage is separate to establish that fact. Wilson v. Wilson, supra, 76 Cal.App.2d at page 126, 172 P.2d at page 572. There are expressions in the decisions to the effect that the separate character of property acquired after marriage is to be established by 'clear and convincing evidence,' 'clear and decisive proof,' 'clear and satisfactory proof'. Estate of Pepper, 158 Cal. 619, 622, 112 P. 62, 64; Estate of Rolls, 193 Cal. 594, 597, 226 P. 608, 609. These expressions state a rule of evidence directed to the trial court; and if that court finds that the evidence meets the rule, a reviewing court must accept that determination as conclusive if there is substantial evidence to support it. Baines v. Zuieback, 84 Cal.App.2d 483, 488, 191 P.2d 67. The decision of the trier of fact must be according to the preponderance of evidence. Code Civ.Proc. §§ 2061, subd. 5, 2103. Whether the evidence adduced to overcome the presumption of community property is sufficient for the purpose is a question of fact for the trial court. Gudelj v. Gudelj, 41 Cal.2d 202, 259 P.2d 656; Wilson v. Wilson, supra, 76 Cal.App.2d at page 126, 172 P.2d at page 572.

Moneys earned by defendant prior to, but collected after, marriage were not community funds. Hill v. Hill, 82 Cal.App.2d 682, 698, 187 P.2d 28; 10 Cal.Jur.2d 674, § 10. Whether property acquired by a man during marriage is separate is determined by the time of its acquisition. If it was separate then, it remains so with the exception of such increase thereof as may have been due to the contribution of the community by virtue of capital or industry, unless by agreement of the spouses it is transmuted into community property. Berry v. Berry, 117 Cal.App.2d 624, 629, 256 [122 Cal.App.2d 124] P.2d 646; Kenney v. Kenney, 97 Cal.App.2d 60, 65, 217 P.2d 151. Separate property does not lose its character as such by reason of a change in form or identity. 10 Cal.Jur.2d 680, § 18. Property that is purchased with separate funds ordinarily continues to be separate property. Huber v. Huber, 27 Cal.2d 784, 791, 167 P.2d 708. Plaintiff was entitled only to a division of such income as defendant earned during marriage and property into which such income had been transmitted, if any remained. Hill v. Hill, 82 Cal.App.2d 682, 697, 187 P.2d 28.

It appears to be plaintiff's contention that if a dollar which is separate property is deposited in a bank account in which there is a dollar which is community property, the dollar which was separate property becomes community property; and if a dollar which is community property is deposited in a bank account in which there is a dollar which is separate property, the latter dollar becomes community property; and that, in either case, all property purchased with the deposited funds is community property. That is not the law. Where separate and community funds are so commingled that it is impossible to trace the source of the funds, the whole will be treated as community property. Fountain v. Maxim, 210 Cal. 48, 51, 290 P. 576. The presumption that property acquired during marriage is community is controlling only when it is impossible to tract the source of the specific property. Gudelj v. Gudelj, 41 Cal.2d 202, 259 P.2d 656. In Estate of Lissner, 27 Cal.App.2d 570, at page 574, 81 P.2d 448, at page 449, it is said: 'The stocks are the most valuable portion of the estate, and the main question in connection with them is the character of the real property in Los Angeles from the proceeds of which the court found that the stocks were purchased. While there is evidence that these proceeds were commingled with community funds, there was likewise evidence from which the court was able, very easily, to trace them directly into the stock. * * * The mere mingling of separate property of a husband or wife with community property does not change its character from separate to community property unless the property so mingled cannot be traced. Scott v. Remley, 119 Cal.App. 384, 6 P.2d 536.' If the exact amount of money allocable to separate property and the exact amount of money allocable to community property deposited in a bank account can be ascertained, the money allocable to separate property is not so commingled that all of the funds become community property. It can be traced. Huber v. Huber, 27 Cal.2d 784, 792-793, 167 P.2d 708. In Carle v. Heller, 18 Cal.App. 577, 123 P. 815, it was held that the depositing in a bank account in the names of husband and wife of the proceeds of the sale of the wife's separate estate with the proceeds of the sale of community property did not constitute such a commingling as to render it impossible to trace and segregate the separate property from that of the community ¹. In People v. Kirkpatrick, 77 Cal.App. 104, 246 P. 84 it was held that money received by a husband from his wife which was her separate property did not, by the mere act of commingling it with presumably community funds in his bank account, cease to be her separate property. See, also, Rosen v. Rosen, 17 Cal.App.2d 601, 603, 62 P.2d 384; cf. Berry v. Berry, 117 Cal.App.2d 624, 256 P.2d 646.

In Hill v. Hill, 82 Cal.App.2d 682, at...