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


Civ. 16416.

Decided: December 14, 1948

Marion P. Betty, of Los Angeles, for appellant. Nixon A. Lange, of Huntington Park, and Charles E. Beardsley, of Los Angeles, for respondent.

In the proceedings for the administration of the estate of decedent, her divorced husband filed his petition for an order to set apart to him the homestead selected by decedent in her lifetime out of community property. From the order granting such petition the administratrix appeals on the grounds (1) that a final judgment of the superior court between the same parties determined that the same property was an asset of decedent's estate and denied the claims of plaintiff; (2) that the interlocutory decree of divorce not appealed from with its approval of a property settlement was a final disposition of the property rights of the parties and disposed of the matters presented by the petition herein.

Petitioner and deceased were married in 1933 and thereafter occupied lot 134, the property here involved, until January, 1945. During such period the lot was paid for with community funds. In 1944 petitioner filed an action for divorce and by cross complaint the wife sued for separate maintenance. The cause was calendared for trial on May 1, 1945. On January 11, 1945, deceased filed a declaration of homestead on lot 134 without petitioner's actual knowledge. On March 8, 1945, petitioner executed the property settlement whereby he agreed to convey to his ‘wife as her separate property, all of his right, title, claim and interest in and to the * * * house and lot * * * which is held as joint tenants * * * the foregoing to be effective when the wife procures her interlocutory decree of divorce.’ By the same instrument each party waived ‘all rights to administer upon the estate of the other’ and waived ‘any right or claim for family allowance, homestead, support or maintenance, or otherwise, against such other's estate, and agrees not to hereafter claim any interest in the other's property. * * *’ At the same time respondent executed a deed conveying lot 134 to decedent. Mrs. Teel was granted an interlocutory decree of divorce on May 1, 1945, which awarded her the homestead and approved the property settlement. She departed this life 27 days later. Upon the qualification of the administratrix petitioner sued her, alleging a reconciliation with decedent and an oral agreement to cancel the deed. He demanded that the interlocutory decree and the property settlement be set aside and that his deed be cancelled. His demands were rejected. The judgment declared that the property involved was, at the time of Grace Teel's death, her separate property and that the administratrix has right to the possession thereof.

Such judgment having become final was an adjudication of the identical claim presented by the petition herein. There petitioner based his demands upon an oral agreement to be reconciled, to cancel his deed and to set aside the property settlement. The finding was that lot 134 was decedent's separate property at the time of her decease.

A judgment operates as an estoppel to the maintenance of a subsequent action as between the parties to the former action both as to the issues raised and as to every other issue which might properly have been litigated. Code Civ.Proc., sec. 1908; Panos v. Great Western Packing Company, 21 Cal.2d 636, 638, 134 P.2d 242; Slater v. Shell Oil Company, 58 Cal.App.2d 864, 868, 137 P.2d 713. Where a plaintiff in a second action predicates his claim on the same facts alleged in a former suit he is barred by the first judgment not only where the grounds for recovery in the second cause were identical with those stated in the first which he failed to prove, but he is likewise barred where he failed to allege those grounds in his first suit and for that reason was precluded from proving them. Rest., Law of Judgments, sec. 63, a.

That an interlocutory decree of divorce is a final disposal of all matters mentioned therein except the status of the parties has been definitely decided by the courts of this state. It serves as a conclusive adjudication with respect to all issues determined. No court may modify an unqualified disposition of property rights established by the interlocutory decree ‘except in accordance with the methods applicable to the judgments generally.’ It becomes a conclusive adjudication as to all issues determined. Leupe v. Leupe, 21 Cal.2d 145, 148, 130 P.2d 697. In Lang v. Lang, 182 Cal. 765, 190 P. 181, the husband, having purchased certain land with community funds took title in his own name and his wife recorded a declaration of homestead thereon. In his complaint for divorce he made no reference to either lands or hereditaments. The wife having defaulted, the court after trial filed its decision in which no mention was made of the existence of any property. A final decree was duly entered whereby the homestead was set apart to the husband. In the wife's suit for partition of the homestead, judgment was entered in her favor. On appeal the husband contended that the final decree was the conclusive disposition of the community property. It was held that the award of the homestead by the final decree was not admissible in another action as an admission or by way of estoppel since there was no issue tendered by the pleadings to form the basis of such judgment. The question of a community homestead was not mentioned in the complaint and no attempt was made to dispose of it by the interlocutory decree. In that state of the case, the award by the final decree was a nullity; the question of property rights remained for a separate action. Upon the entry of his judgment for divorce the husband without a family was no longer entitled to a homestead exemption.

The homestead rights of respondent herein terminated with the interlocutory decree, not by virtue of its awarding decedent the right to a divorce, but by reason of the award of the homestead to Mrs. Teel pursuant to the prior written agreement of the parties providing for a conveyance to her and pursuant to respondent's subsequent deed.

The proposition that a homestead selected out of community property by either spouse, or by both during coverture, and recorded absolutely in the survivor is soundly based upon the Probate Code, section 663. Had there been no divorce, no property settlement and no deed by him to her, his present claim to total ownership could not be denied. But unfortunately for him those incidents are present here and by virtue of them the title of lot 134 was vested in decedent at the time of the demise. Respondent had the right at the time of the property settlement to stand upon his rights as established by his joint tenancy title and by the declaration of homestead of which he had at least constructive notice and to refuse to convey or agree to convey his interest in the homestead to his wife. But he yielded, evidently in consideration of her agreement to sue for a divorce, and his voluntary conveyance constituted a total alienation of his claim to the lot. When the rights of a spouse (under a contract or under a status) have been settled by the twain, and there is no equitable basis for interference, their settlement will not be disturbed by the courts.

The facts above recited distinguish respondent's position from that of the prevailing party mentioned in the decisions cited by him. Hart v. Taber, 161 Cal. 20, 118 P. 252; Fisher v. Bartholomew, 4 Cal.App. 581, 88 P. 608; Estate of Simonton, 183 Cal. 53, 54, 190 P. 442; Robson v. Meder, 66 Cal.App.2d 47, 151 P.2d 662.

The same is true of respondent's contention that there was no error in the order appealed from, citing In re Burdick's Estate, 76 Cal. 639, 18 P. 805; Vandall v. Teague, 142 Cal. 471, 76 P. 35; Cordano v. Wright, 159 Cal. 610, 115 P. 227, Ann.Cas.1912C, 1044; Rosenberg Bros. & Co. v. Ross, 6 Cal.App. 755, 93 P. 284; Watts v. Gallagher, 97 Cal. 47, 31 P. 626; Saddlemire v. Stockton Savings Society, 144 Cal. 650, 79 P. 381; Estate of Beer, 178 Cal. 54, 171 P. 1062; Estate of Klumpke, 167 Cal. 415, 139 P. 1062. These decisions relate to the rights of a surviving spouse in cases in which the surviving husband or wife had not conveyed his community or homestead rights to his spouse in life. What would have happened had respondent herein and his wife been reconciled is not before the court.

Order reversed with instructions (1) to deny the petition to set aside to petitioner as a homestead the property described in the pleading and (2) to declare that the title of lot 134, Tract 2263, as per map recorded in Book 23, page 33 of Maps, Los Angeles County records, is vested in the heirs at law of decedent.

In concur in the judgment on the ground that petitioner is barred by the judgment rendered against him in his former action brought to set aside the interlocutory decree of divorce and the property settlement agreement and to cancel his deed.

MOORE, Presiding Justice.

McCOMB, J., concurs.