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


Civ. 17915.

Decided: June 28, 1951

Hiram T. Kellogg, Los Angeles, for appellant. Arthur C. Webb, Los Angeles, for respondent.

This action below to partition real property held in joint tenancy by respondent and appellant was instituted by the husband-respondent after his wife had procured an interlocutory decree of divorce, but prior to the entry of the final decree.

The basic and controlling question prosented by the appeal of the ex-wife is whether the trial judge erred at the trial in refusing to permit appellant to file an amendment to her answer setting up an entirely new defense to the complaint.

The rule has long been established in this state that a ruling on such a question is wholly within the discretion of the trial judge and so may not be reviewed on appeal except for an abuse of discretion. Schalich v. Bell, 173 Cal. 773, 161 P. 983. In an endeavor to show the court abused its discretion appellant relies on certain facts which will now be stated.

An interlocutory decree of divorce was granted to appellant on December 31, 1948, upon her cross-complaint filed against respondent. This decree expressly found, as was alleged in the cross-complaint, that the real property here involved was held in joint tenancy by the parties to that action who are likewise the parties to this action, and that the property was not community property, but held by them in joint tenancy. In her cross-complaint appellant made no allegation as to any vested or future right of homestead nor did she request that any such issue should be deferred for disposition in the final decree. The decree additionally granted the custody of a minor child to appellant and ordered respondent to pay support money to appellant for her own benefit and that of the minor child. On February 23, 1949, less than two months after the interlocutory decree had been entered, respondent instituted the instant action to partition the joint-tenancy property and duly recorded at the same time a lis pendens. By her answer to the complaint in partition appellant admitted the property was held in joint tenancy, as respondent alleged, but set up as an affirmative defense that partition thereof should not be decreed as occupancy of the property was essential to the needs of appellant and her minor son. Upon motion of respondent the law and motion department of the court as early as April 6, 1949, struck out this affirmative defense. No appeal was taken from the ruling although the order was appealable. Dupont v. Dupont, 4 Cal.2d 227, 48 P.2d 677. In that connection we observe that in Barba v. Barba, 103 Cal.App.2d 395, 229 P.2d 465, it was held that a trial court may not even enter such an order as a part of an interlocutory decree of divorce where the property is held by the parties in joint tenancy. After December 31, 1949, one year after the interlocutory decree of divorce had been entered, either of the parties was entitled to a final decree, but neither requested it until on January 18, 1950, when the respondent caused such a decree to be entered on January 19, 1950, but not nunc pro tunc as he might have done. The instant action for partition came on for trial on January 13, 1950. On that date, shortly before the case was actually called for trial appellant, without knowledge of respondent, had filed of record with the recorder of deeds a declaration of homestead against the property involved which purportedly was made (1) in behalf of herself and respondent and (2) in behalf of herself, and her minor child, in her capacity as head of the family. Thereupon at the opening of the trial appellant requested permission to amend her answer so as to set up as an absolute defense the filing of the declaration of homestead. The trial court denied the request. Thereupon, appellant made an offer to prove the fact as just narrated but, over objection, the proof was ruled inadmissible.

From the facts so far recited it is apparent that appellant utterly failed to exercise due diligence in seeking her alleged prospective homestead right in the property, if she had any such right after the filing of the divorce action or after the interlocutory decree was granted to her therein. Accordingly, it seems plain to us that the trial judge did not abuse his discretion.

The judgment is affirmed.

HANSON, Justice pro tem.

WHITE, P. J., and DRAPEAU, J., concur.

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