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District Court of Appeal, Second District, Division 2, California.


Civ. 10941.

Decided: May 18, 1936

Henry G. Bodkin, of Los Angeles, for appellant. Louis T. Fletcher, of Los Angeles, for respondent.

Defendant appeals from a portion of the judgment in a separate maintenance action, awarding to plaintiff without limitation the use of separate property of defendant, upon which plaintiff had endeavored to declare a homestead.

The conceded facts are:

Plaintiff filed an amended complaint seeking separate maintenance from the defendant on the grounds of (1) desertion and (2) willful neglect. Plaintiff had endeavored to declare a homestead upon a parcel of the separate property of her husband, the defendant. The trial court ordered judgment for plaintiff, and by its decree disposed of the parcel of land upon which plaintiff had endeavored to declare a homestead as follows:

“It is further ordered, adjudged and decreed that plaintiff have in addition to the said fifty ($50.00) dollars per month possession of the real property described as Parcel No. 1, paragraph 1 of this decree, together with all furniture, household goods, and personal effects therein, and any and all rents therefrom. * * *”

The only question necessary for us to determine is: Has the court in a separate maintenance action the power to award the wife separate property of the husband upon which a homestead has been declared for an unlimited period of time?

The law is well settled that the court in granting a wife permanent support and maintenance for herself may assign to her for a limited period only separate property of the husband upon which a homestead has been declared. Section 137 and section 146, subd. 4, Civ. Code.

Mr. Justice McFarland, in passing upon a similar question in Huellmantel v. Huellmantel, 117 Cal. 407, at page 409, 49 P. 574, 575, said: “‘If a homestead has been selected from the separate property of either, it shall be assigned to the former owner of said property, subject to the power of the court to assign it for a limited period to the innocent party.’ * * * Therefore in the case at bar the court could assign the property to the respondent only for a limited period, which, as heretofore held by this court, cannot exceed the life of the party to whom it is assigned.” (Italics ours.)

In the instant case the trial court by its decree erroneously awarded the separate property of the husband, upon which the wife had endeavored to declare a homestead, to her for an unlimited period, contrary to the limitation placed upon the court's power by subdivision 4 of section 146 of the Civil Code.

The portion of the judgment appealed from is reversed.

McCOMB, Justice pro tem.

We concur: CRAIL, P. J.; WOOD, J.

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