Skip to main content


Reset A A Font size: Print

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

McELROY v. McELROY et al.

Civ. 16030.

Decided: December 19, 1947

Brooks Gifford, Delmas R. Richmond, and Frederick G. Stoehr, all of Pasadena, for appellants. Herbert Gall and Edward Fitzpatrick, both of Los Angeles, for respondent.

This is an action for divorce brought by the wife against the husband. The latter's parents are joined as defendants on allegations that the husband had delivered community funds to them which should be allotted to respondent by the divorce decree. Summons was served on the husband by publication. Not having appeared, his default was entered. The parents filed an answer to the complaint. Respondent was awarded an interlocutory decree of divorce and a money judgment was rendered in her favor against the parents for the sum of $3,000. The parents have appealed from the judgment contending that the court erred in refusing a continuance of the trial and in adjudicating the husband's interest in property not within the State of California, and that there is no evidence to support an inference of fraud on their part.

1. Did the court abuse its discretion in refusing to grant a continuance of the trial? An order was made fixing November 6, 1946, as the date of trial. On September 16, 1946, notice of trial was served on counsel for appellants. There had been some negotiations for settlement between the attorneys for the respective parties and on November 4 the negotiations failed. On that date counsel for appellants called his clients, who were then residing in Portland, Oregon, over the long distance telephone. He talked to appellant Emma McElroy, who stated that her husband, James B. McElroy, had been been ill and was unable to travel. With his motion for a continuance appellants' counsel filed an affidavit reciting his conversation with Mrs. McElroy. On November 6, the date of the trial, appellants made a motion for a continuance based on the attorney's affidavit, which was denied. For some reason not shown by the record the cause was continued until November 7, when it was assigned to a department of the court for trial. The cause was not tried on that date but was continued until Friday, November 8. At the beginning of the trial there was no intimation from appellants' counsel that he was not ready for trial or that the evidence of the absent defendants would be needed. In the afternoon of November 8 the trial was continued until Tuesday morning, November 12, Monday, the 11th, having been a legal holiday. Between November 4, when appellants' counsel ascertained over the telephone that Mr. McElroy was ill, and November 12 there was ample time within which affidavits of Mr. and Mrs. McElroy and their physician could have been obtained showing the physical condition of Mr. McElroy and whether he was unable to make the trip to Los Angeles.

The only information furnished to the court was the hearsay affidavit of counsel repeating what Mrs. McElroy had said to him over the telephone. A similar situation arose in Callegari v. Maurer, 4 Cal.App.2d 178, 40 P.2d 883, where the court stated the elementary rule that an application for a continuance is addressed to the sound discretion of the trial court and that its ruling will not be disturbed unless an abuse of discretion clearly appears. The court said that even a telegraphic report from the attending physician would have put the matter in a different light. In Ross v. Thirlwall, 101 Cal.App. 411, 281 P. 714, the application for continuance was made at the morning session of the court when the attorney for the absent defendant made a statement that defendant's wife was seriously ill and for that reason the defendant was unable to be present. The case was continued until 2:00 o'clock and at that time the only proof offered was the hearsay affidavit of the defendant's attorney to the effect that the defendant was unable to be present because of the illness of his wife. The continuance was denied and on appeal the order was sustained. Other cases in which applications for continuances were held to have been properly denied on hearsay affidavits are Corbin v. Howard, 61 Cal.App. 715, 716, 215 P. 920; Watson v. Columbia Basin Dev. Co., 22 Cal.App. 556, 559, 135 P. 511.

The cases cited by appellants are dissimilar to the instant case. In Jaffe v. Lilienthal, 101 Cal. 175, 35 P. 636, the plaintiff's attorney filed affidavits that were not hearsay but were made by the plaintiff himself and his physician that the plaintiff was in Seattle and too ill to be present at the trial. In Blankman v. Parsons, 73 Cal.App. 218, 238 P. 728, the testimony given by a witness was a surprise that ordinary prudence could not have guarded against and the court held that the plaintiff was entitled to a continuance for the purpose of meeting the testimony. In Re Estate of Stevens, 57 Cal.App. 160, 206 P. 668, it was shown without contradiction that two of the contestants were ill in New York. In Pacific Gas & Electric Co. v. Taylor, 52 Cal.App. 307, 198 P. 651, the application for continuance was made on the affidavit of the defendant's attorney based on a telegram from which it appeared that the defendant was absent from the state and was seriously ill. The opinion states that the defendants had no opportunity to obtain a physician's affidavit.

In the instant case appellants' counsel ascertained on November 4 that Mr. McElroy was ill. The trial date was the 6th, the case was assigned for trial on the 7th, but the trial did not actually commence until the 8th. It was then continued until the 12th. There was ample time for obtaining an affidavit from Portland, Oregon, between the 4th, when the telephone conversation was had, and the 8th, when the trial actually commenced, but no effort was made to obtain one. Four more days elapsed before the completion of the trial. The instant case is not at all similar to the Pacific Gas case on which appellants rely. Since eight days elapsed between the time counsel for appellants ascertained that Mr. McElroy was ill and the twelfth of November, when the trial was completed, and no attempt was made in the meantime to obtain an affidavit from either of the appellants or from their physician, and no reason for such neglect is suggested by appellants, diligence was not exercised and the court did not abuse its discretion in refusing to postpone the trial.

2. The court had jurisdiction to adjudicate the husband's interest in the property involved. Appellants maintain that since defendant husband resided out of the State of California and was served by publication of summons the court was without jurisdiction to determine his interest in property outside the state. This contention has two answers: (1) The husband has not appealed from the judgment and therefore no issue between him and respondent is presented to this court. The parents have no cause to complain because of a judgment determining the property rights of their son and his wife. The personal judgment was rendered against them because they were in possession of money which the court found to be community funds that should be divided between respondent and her husband. Appellants had no title to the money and no right to retain it. While the personal judgment against the parents is no doubt objectionable to them, nevertheless they are not injured by the adjudication of property rights between the husband and wife, and it is elementary that one who is not injured by a judgment cannot complain of its provisions on appeal. Nichols v. Nichols, 135 Cal.App. 488, 491, 27 P.2d 414. The judgment merely requires them to pay to respondent the money in their possession that is hers and not theirs. (2) It is not necessary, as contended by appellants, that ‘a personal judgment against the defendant, or a judgment determining the status of his property within the state to be his community property’ be obtained before a judgment can be rendered against appellants based upon their possession of community property. In Nichols v. Nichols, supra, the husband was absent from the state and was not served with summons personally or by publication. A receiver of the community property was appointed and the bank which held the property appealed. The court held that the bank could not urge errors which affected only the defendant husband and notwithstanding the failure to serve the defendant with process, sustained the order appointing a receiver and sequestering the husband's property. In Murray v. Murray, 115 Cal. 266, 271, 47 P. 37, 37 L.R.A. 626, 56 Am.St.Rep. 97, service by publication was made on the husband and upon his codefendant who was alleged to be holding property for him. The decree adjudicating that the property involved belonged to the husband and was chargeable with the maintenance of the plaintiff and the infant child of the parties, and declaring conveyances of property to the husband's codefendant to be fraudulent, was sustained.

3. The deposit of the husband's earnings with his parents was not a legitimate exercise of his power of management and control of community property. Appellants argue that by reason of section 172 of the Civil Code, providing that the husband has the management and control of the community personal property, his deposit of funds with his parents cannot be attacked. This provision does not give him power to dispose of the property without a valuable consideration or for a fraudulent purpose. The court found that title to no part of the money was ever transferred to the parents; that they had merely the right of possession and custody; that they were bailees and trustees for respondent and her husband; that when they received the money they knew that it was the community property of the husband and wife; that the husband's purpose in depositing the money with his parents was to knowingly deprive respondent of her interest therein.

In Berniker v. Berniker, 30 Cal.2d 439, 182 P.2d 557, which involved a similar situation in which the husband's father was holding property in his name which belonged to the husband, the court sustained a judgment declaring the property to be community property and awarding the wife an interest therein. The court held that since the wife's lawful interest in the community property could not be affected by the fraudulent purpose of her husband in transferring the property to his father, she was entitled to recover her community interest. In Nichols v. Nichols, supra, the transfers of community property, made with intent to defeat the wife's rights, were held to be void. Furthermore, appellants do not claim the fund as their own, and since they are therefore not injured by the judgment they cannot complain of it on appeal.

4. The evidence supports the finding that the husband placed money in his parents' possession with the design to defeat respondent's rights. Respondent testified that her husband was in the United States Navy and had made an allotment of $200 per month to his father and mother; that on an occasion in 1943, prior to his going to the Pacific, they were at his parents' home and before leaving he said ‘I will have to ask my mother for some money.’ At that time respondent saw in the mail which had been delivered a Navy check which the husband said was the allotment that was going to his mother; respondent saw the check and observed that it was payable to Emma McElroy, her mother-in-law. She also testified that when she looked over the deposit slips there were 31 deposits of $200 each, with the Navy numbers on the deposit slips. This evidence, which was not contradicted, supports the finding that the husband delivered to his parents a total sum of $6,000 which was earned while he was married to respondent and which was community property, and supports the judgment against appellants for $3,000, or one half of the total.

The parents knew that the husband's earnings were community property and that respondent was entitled to her lawful share of the money. From respondent's evidence that the money was deposited with the parents for a period of two and a half years and from the fact that no consideration is shown to have passed from the parents to the husband, the inference is drawn that the parents knew that the deposit of the money with them was done with the purpose on the part of the husband to deprive respondent of her interest therein.

Moreover, whether or not the deposit was made with a fraudulent intent, respondent was entitled to her community interest. (1) If the payments were deposited merely for safekeeping the parents held the money in trust and respondent could recover her interest (Berniker v. Berniker, supra); (2) if the money was intended as a gift by the husband to his parents the transaction was void since the husband was without power to make a gift of community property. Civ.Code, sec. 172.

5. The evidence supports the finding that appellants had the community funds in their possession when the action was commenced. During the trial it was stipulated that $6,000 deposited in the bank account of appellants was community property. Since it is undisputed that the parents received the money and that it was community property their continued possession of it is presumed until the contrary is shown. Appellants' answer does not plead the repayment of the money to the husband. The only evidence of its disposition is that in November, 1945, a portion of it, or possibly all, was withdrawn from the parents' bank account in Whittier and transferred to their account in Portland, Oregon. The transfer of the money from one bank to another does not change its character; it remained community property and was in the parents' possession.

6. The evidence does not show that the parents paid the money to respondent's husband. The very slight amount of evidence to the effect that Emma McElroy, the mother, saw cash deals between James B. McElroy (her husband) and their son, and that she paid some of her son's bills (amount not stated), is far from being proof that the money was repaid to defendant husband. The ‘cash deals' between father and son may have been, as far as the court is advised, the deposit of further moneys by the son with his father.

Judgment affirmed.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.

Copied to clipboard