Williams' Estate, In re

• Decision Date: 31 October 1950
• Citation: 36 Cal.2d 289,223 P.2d 248
• Parties: , 22 A.L.R.2d 716 In re WILLIAMS' ESTATE. WILLIAMS v. WILLIAMS. L. A. 21062.
• Court: California Supreme Court

Page 248

223 P.2d 248

36 Cal.2d 289, 22 A.L.R.2d 716

In re WILLIAMS' ESTATE WILLIAMS v. WILLIAMS.

L. A. 21062.

Supreme Court of California, in Bank.

Oct. 31, 1950.

Newton Van Why, Los Angeles, for appellant.

Gavin Morse Craig and Vernon L. Ferguson, Los Angeles, for respondent.

EDMONDS, Justice.

The probate court sustained objections by the wife of Editor Williams to the final account of the executor of his will and ordered distribution to her of certain realty and personalty as her share of the community property. The appeal of the executor presents for decision the question as to whether an interlocutory decree of divorce entered upon default effects an estoppel upon a nonresident defendant as to property rights.

More than 20 years ago, Editor and Octavia Williams were married in Mississippi. They lived together until 1929. In that year he shot her and fled from the state. Thereafter, Octavia never knew with any certainty of his whereabouts. Through a friend, she heard that he was in Los Angeles, and until 1934 she communicated with him occasionablly through his aunt.

Editor came to Los Angeles in 1934, and cohabited with a woman who became known as Gertrude Williams until her death. In 1944, they opened a joint bank account and deposited $1,200. When Gertrude died, the balance in the account was about $500. The evidence does not show the relative contributions of each of them to the account.

Early in 1945, Gertrude purchased real property for $4,750. An initial payment into escrow of $1,000 was made by check drawn upon their joint bank account; the balance was represented by a promissory note secured by a deed of trust for $3,750. Title was taken in Gertrude's name. Until her death, she and Editor lived together on the property as man and wife.

Whether Gertrude was aware of the subsisting marriage between Editor and Octavia does not appear in the record. During the time Editor and Gertrude resided upon the property, both of them were employed and installments totaling $750 were made upon the promissory note. The evidence does not show the source of these payments.

Gertrude died testate in 1945, leaving all of her property consisting of the improved realty and some personal property to Editor, whom she designated in her will as 'my husband'. The will was admitted to probate and the property distributed to him.

Editor then filed a divorce action in Los Angeles against Octavia and the summons and complaint were served by publication. In the complaint, it was alleged that there was no community property belonging to the parties. The prayer asked only that the bonds of matrimony be dissolved, and the interlocutory decree entered in 1946 makes no provision respecting any property rights of the parties.

Editor died less than one year after the interlocutory decree was entered. His attorney, apparently uninformed as to his client's death, caused a final judgment of divorce to be entered in 1947. According to Octovia's uncontradicted testimony, she had no knowledge of the divorce action until after Editor's death.

Editor left a will devising all of his property to his brother, J. P. Williams. The estate consists of the real and personal property distributed from the estate of Gertrude, an automobile, bonds in the joint names of Gertrude and decedent, and $500 in cash, which evidently includes the balance in the joint bank account.

When the final account of the executor was presented, Octavia filed objections upon the ground that the property in the estate is the community property of herself and Editor and that, as his widow, she is entitled to one-half of it. The probate court determined that issue in her favor and ordered distribution to her of one-fourth of the entire estate. The executor has appealed from that part of the decree.

The executor contends that the probate court's determination is not supported by the evidence. There is no evidence, he says, showing that one-half of the purchase price of the real and personal property owned by Editor at the time of his death was paid with money earned or acquired by him, other than by gift, devise or inheritance, during the time he and Octavia were man and wife. It is further argued that Octavia is barred or estopped from challenging the allegation in Editor's complaint for divorce to the effect that there was no community property because her failure to deny it constituted an admission of its truth and a contract between them.

In support of the order of distribution, Octavia asserts: (1) The divorce decree did not determine the character of the property. The decree is not conclusive in this regard because the complaint asked for no determination of property rights. (2) A defendant who is served by publication without knowledge of the action is not estopped to assert a community interest in property. (3) The decree of the probate court is supported by substantial evidence, in that during the entire time Gertrude and Editor lived upon the land as husband and wife, he was employed and earning money. This, with the testimony as to the joint bank account, supports an inference that he paid at least one-half of the consideration for the real and personal property acquired during the meretricious relationship.

Another ground relied upon by Octavia is that the realty and the automobile were held in Gertrude's name because to do otherwise would have exposed Editor to the risk of being located by his wife. She also argues that estoppel applies only to a defendant with actual knowledge of the pendency of litigation or to a plaintiff who makes community property an issue in the litigation.

Upon the evidence, the probate court was justified in determining that, as between Editor and Octavia, one-half of his estate is community property. She is, therefore, entitled to one-fourth of it unless she is estopped by the default judgment in the divorce action.

'it is true that an interlocutory decree in a divorce case is conclusive and res judicata with respect to all proper or necessary issues determined thereby. When so determined the interlocutory decree has been said to be in the nature of a contract between the parties, and upon the entry of the final decree the rights of the parties to community property becomes final and conclusive, subject only to attack on appeal or other statutory remedy.' Green v. Green, 66 Cal.App.2d 50, 61, 151 P.2d 679, 684. Where subsequent litigation is based upon a different cause of action from that upon which the prior suit was based, '(T)he judgment is conclusive between the parties in such a case as to questions actually litigated and determined by the judgment. It is not conclusive as to questions which might have been but were not litigated in the original action. This is the doctrine of collateral estoppel.' Rest., Judgments, § 68, comment a, quoted with approval in Green v. Green, supra, and Babcock v. Babcock, 63 Cal.App.2d 94, 146 P.2d 279.

Section 1911 of the Code of Civil Procedure provides: 'That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.' The parties to a divorce action may seek a determination of their property rights, but such an issue is not essential to the action. If it does not appear from the decree that property rights were determined by it, they are not deemed to have been adjudicated and may be the subject of an independent action. Tarien v. Katz, 216 Cal. 554, 15 P.2d 493; Green v. Green, supra; Callnon v. Callnon, 7 Cal.App.2d 676, 46 P.2d 988.

The decree of divorce awarded Editor did not, therefore, necessarily include a determination of property rights and is no bar to the present action unless, from the face of the decree, it may be said that the issue of property was decided. The complaint alleged that there was no community property, but the prayer asked only that the bonds of matrimony be dissolved. The interlocutory decree recites that '* * * plaintiff is entitled to a judgment from defendant * * *', but neither it nor the final judgment makes any provision respecting property rights of the parties. Under such circumstances, it cannot be said that the court decided any issue other than the right to a divorce.

The fact that the judgment was secured by default does not warrant the application of a special rule. 'A default judgment is an estoppel as to all issues necessarily litigated therein and determined thereby exactly like any other judgment * * *.' Horton v. Horton, 18 Cal.2d 579, 585, 116 P.2d 605, 608; Strong v. Shatto, 201 Cal. 555, 258 P. 71; Harvey v. Griffiths, 133 Cal.App. 17, 22, 23, 23 P.2d 532; 3 Freeman on Judgments, 5th ed., p. 2690, sec. 1296. Of course, a court in a default action may not grant relief beyond that which is demanded in the complaint, Code Civ. Proc. § 580; Burtnett v. King, 33 Cal.2d 805, 205 P.2d 657, but the present case does not involve that problem. The decree obtained by Editor is silent as to property rights and the parties do not attack its validity or scope nor challenge it as being either void or erroneous. It did no more than to declare that the bonds of matrimony should be dissolved, and the court's jurisdiction to that extent is unquestioned.

Tested by the foregoing principles, it is clear that Octavia is not estopped to claim one-fourth of the estate of Editor by reason of the decree. However, it is argued that she is barred from making that claim because of her failure to deny the allegation in Editor's complaint for divorce to the effect that there was no community property.

The position taken by the executor is based upon statements made in deciding Brown v. Brown, 170 Cal. 1, 147 P. 1168. Mrs. Brown's complaint alleged that there was no community property and the prayer asked only that she be awarded a divorce. The husband did not answer and a default judgment was entered granting the wife a...