PIKE v. PIKE

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

PIKE v. PIKE.

Civ. 16937.

Decided: August 04, 1949

Wood, Crump, Rogers & Arndt, by Stanley M. Arndt, Los Angeles, for appellant. Irving M. Walker, John L. Martin, Mark Mullin, by Irving M. Walker, Los Angeles, for respondent.

Plaintiff appeals from a judgment after trial before the court without a jury to the effect: (1) that the covenants of an agreement for the support and maintenance of plaintiff are provisions for the payment of alimony to terminate upon the death of her former husband; (2) that such agreement relative to a residence terminated the joint tenancy under which they had previously held the property and converted their title to one of tenants in common; (3) that plaintiff's interest in such property was held by her subject to the rights of her former husband specified in the agreement.

Facts

Plaintiff was the first wife of Warren A. Pike, now deceased. On January 2, 1934, they entered into an agreement denominated ‘separate maintenance agreement.’ The writing dealt separately with the following matters: (1) Property settlement and maintenance of the wife;* (2) Custody, support and maintenance of their daughter; (3) General provisions. Mr. Pike was ‘to pay to the wife the sum of One Hundred and Thirty-five Dollars ($135.00) per month for her maintenance and support. In the event the wife remarries the husband shall be no longer bound to pay said sum of One Hundred Thirty-five Dollars ($135.00) to the wife. The husband covenants and agrees to pay to the wife for the maintenance and support of said daughter, a monthly sum of Twenty-five Dollars ($25.00).’ Another clause dealt with the residence of the parties, which, when the agreement was executed, stood in the names of plaintiff and Mr. Pike as joint tenants. The agreement provided in substance that plaintiff might live in the residence ‘until such time as he (Pike) may be able to sell the said dwelling house for the sum of $10,000’; that plaintiff should have the right to rent the property to another for her own benefit and would maintain the residence and the grounds thereof in good order at her own expense; that her husband should pay all taxes and assessments and all interest on any installment of principal or any obligation secured by a lien upon the property; and should not without plaintiff's consent encumber the property in an amount in excess of $5,500. In the event of a sale it was provided that the net proceeds were to be divided between plaintiff and her former husband after he had been repaid the amount of any principal payments made by him on any note secured by a lien on the property. At the time of the trial it was stipulated that the residence could be sold for more than $10,000.

Plaintiff obtained an interlocutory decree of divorce from Mr. Pike which contained among others the following decrees:

‘It is further ordered, adjudged and decreed that the property and property rights of the parties be settled and determined as set forth in their separate maintenance agreement heretofore made and entered into on the 2nd day of January, 1934, and filed herein on the 5th day of January, 1934, which separate maintenance agreement is hereby approved and made a part hereof as though set forth in full herein.

‘It is further ordered * * * that until the further order of this court defendant pay plaintiff the sum of One Hundred and Thirty-five Dollars ($135.00) per month for her separate maintenance and support so long as she shall live and remain unmarried * * *.’

Subsequently a final decree of divorce was entered in which the foregoing provisions of the interlocutory decree of divorce were approved. After the final decree had been entered Mr. Pike married defendant. On December 23, 1945, he died leaving a will in which defendant was named executrix of his estate.

Plaintiff filed a claim against decedent's estate for monthly payments of $135.00 from the date of his death until the date of her remarriage or death, whichever event should first occur. The claim not having been approved by the executrix, plaintiff filed suit thereon. Defendant filed a cross-complaint requesting that it be decreed that the residential property be sold in accordance with the terms of the agreement.

The trial court found:

(1) That it was not true that in the separate maintenance agreement decedent agreed to pay plaintiff the sum of $135.00 per month for her separate maintenance and support, such payments to continue so long as plaintiff lived and did not remarry;

(2) That the provision in the separate maintenance agreement for the payment of monthly sums of $135.00 to plaintiff was not part of a property settlement, but that it was the intention of plaintiff and decedent that said monthly payments should be for the support of plaintiff and were in the nature of alimony; likewise that the provision in the interlocutory decree for the payment of a monthly sum to plaintiff by decedent was a provision for the payment of alimony;

(3) That in making the agreement it was the intention of decedent and plaintiff that the dwelling house mentioned therein should not be owned by them in joint tenancy, but that each of them should thenceforth own an undivided one-half interest therein subject to the terms of the agreement.

The sole question necessary for us to determine is:

Was there substantial evidence to sustain the foregoing findings of fact of the trial court?

This question must be answered in the affirmative and is governed by this rule: When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding. In re Estate of Isenberg, 63 Cal.App.2d 214, 217, 146 P.2d 424.

The first finding set forth above is supported by the terms of the agreement whereby decedent promised ‘to pay to the wife the sum of One Hundred and Thirty-five Dollars ($135.00) per month for her maintenance and support. In the event the wife remarries the husband shall be no longer bound to pay said sum of One Hundred Thirty-five Dollars ($135.00) to the wife.’

There is nothing in the agreement by which decedent bound himself to pay plaintiff ‘so long as she shall live and remain unmarried’ the sum of $135.00 per month. This latter provision was inserted by the court in the interlocutory decree of divorce and is the usual form awarding alimony to a wife.

The second finding was likewise supported by substantial evidence. A reading of the agreement shows that the monthly payments were not in lieu of any assignment to the wife of community property, which she would have otherwise received, but were exactly what they were denominated in the agreement: a provision for her maintenance and support. This is evidenced among other things by the fact that in the second paragraph of Part III of the agreement it was provided: ‘The wife accepts the provisions herein made in lieu of any and all other claims and provisions for her support and maintenance * * *’ (Italics added.)

The meaning of the agreement was a question of fact for the determination of the trial court whose interpretation being reasonable and supported by the evidence, is binding upon a reviewing court. In re Estate of Rule, 25 Cal.2d 1, 11, 152 P.2d 1003, 155 A.L.R. 1319; Davis v. Stulman, 72 Cal.App.2d 255, 269, 164 P.2d 787.

As the trial court found, supported by substantial evidence, that the provision in the interlocutory decree of divorce awarding a monthly sum to plaintiff was an award of alimony, the right to such payments terminated with the death of her former husband, Warren Pike. (Miller v. Superior Court, 9 Cal.2d 733, 737, 72 P.2d 868; Parker v. Parker, 193 Cal. 478, 481, 225 P. 447; Roberts v. Higgins, 122 Cal.App. 170, 171, 9 P.2d 517.)

This provision of the separate maintenance agreement fell within the first category of contracts between spouses mentioned in Adams v. Adams, 29 Cal.2d 621, 624, 177 P.2d 265.

The third finding was clearly supported by the evidence. By the terms of the agreement plaintiff, after the date of the agreement, was entitled to have possession of the dwelling house of the parties until such time as decedent was able to sell the house for the sum of at least $10,000. It was further agreed that the rights of plaintiff were not assignable.

For a joint tenancy to exist four unities are required, namely: (1) unity of interest, (2) unity of title, (3) unity of time (as to the creation of the tenancy), and (4) unity of possession. (Section 683, Civil Code. See also Denigan v. San Francisco Savings Union, 127 Cal. 142, 149, 59 P. 390, 78 Am.St.Rep. 35.) In view of the provisions of the separate maintenance agreement two of the above mentioned unities, to wit, unity of interest and unity of possession, were destroyed by the agreement.

(1) The agreement prevented the sale of the property until it could be disposed of for at least $10,000; it gave decedent the right to sell the property when he could obtain at least $10,000 for it; it gave the right to the wife to rent the property which decedent did not have; and it prevented plaintiff from assigning her interest in the property. Clearly plaintiff's interest and rights in the property were entirely different from those of decedent.

(2) The wife was given the possession of the property to the exclusion of decedent, which destroyed the unity of possession. Hence the trial court was correct in finding that after the agreement had been executed the dwelling house was no longer held in joint tenancy, but that each of the parties owned a one-half interest therein subject to the terms of the agreement.

In view of the foregoing findings the trial court properly held:

(1) That plaintiff was not entitled to monthly payments of alimony after her former husband's death;

(2) That the separate maintenance agreement dissolved the joint tenancy pursuant to which they had formerly held and created a tenancy in common subject to the provisions of the separate maintenance agreement, and that such provisions survived the death of Warren Pike and bound the respective heirs, executors, administrators, and assigns of the parties.

Authorities Relied On By Plaintiff.

The portions of the opinion in Parker v. Parker, 193 Cal. 478, 225 P. 447 relied on by plaintiff, are not applicable to the facts of the present case for the reason that in the cited case it was stipulated that, ‘If a decree for divorce should be awarded to either party, the court instead of dividing the property of said parties between them, might provide for the separate maintenance of defendant by awarding to her certain property for life, and that plaintiff pay defendant such monthly allowance and secure the same by a lien upon such property of plaintiff as in the discretion of the court should seem proper.’ (Italics added.) This stipulation conferred upon the court the right to make a property settlement for the parties and the award of monthly payments to the wife constituted an award of a portion of her share in their property. The court very properly held that under such circumstances she had a claim against her ex-husband's estate. The facts are clearly distinguishable from those at bar.

In re Estate of Mesmer, 94 Cal.App. 97, 270 P. 732, is likewise not in point. There an agreement was entered into between the parties under which all of the community property was conveyed to the husband and he promised to pay his wife $75.00 per month payment to be guaranteed by one Smith during the husband's lifetime. The court made an order awarding her the sum of $75.00 per month during her life and a claim was allowed against the estate for such sum subsequent to his death upon the theory that the monthly payments were in lieu of the wife's receiving any property and that it was the intention of the parties that the payments should continue during her life even though her former husband should die. This intention was evidenced among other things by the fact that the guarantor Smith limited his guarantee of the payments to the period during which the husband should be alive. Clearly the situation in the cited case and that involved herein are factually distinguishable.

Hammond v. McArthur, 30 Cal.2d 512, 183 P.2d 1, is likewise inapplicable for the reason that in the cited case only one of the cotenants joined in transferring his interest in the joint tenancy to his cotenant and the evidence disclosed that it was the intention of the parties, as pointed out by the Supreme Court, not to terminate the joint tenancy and that the rights of survivorship should remain. In the instant case both of the joint tenants executed the agreement which resulted in a termination of the joint tenancy, and the evidence demonstrates that both parties to the agreement intended to terminate the joint tenancy and intended that after the execution of the agreement the right of survivorship should cease.

In view of the conclusions derived no useful purpose would be served by discussing other points argued by counsel because irrespective of their determination they would not change the result we have reached.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  ‘The agreement read:‘Separate Maintenance Agreement‘This agreement, made at Los Angeles, California, this 2nd day of January, 1934, by and between Warren A. Pike, party of the first part (hereinafter sometimes referred to as the husband), and Eugenie H. Pike, party of the second part, hereinafter sometimes referred to as the wife),‘Witnesseth:‘Whereas, the husband and wife were duly married on or about the 12th day of June, 1913, in the City of Philadelphia, State of Pennsylvania, and the issue of said marriage is one daughter, Elizabeth Jane Pike, now of the age of nineteen years; and‘Whereas, marital difficulties have arisen and exist between the husband and the wife, by reason of which they have separated and are now living separate and apart; and‘Whereas, it is the desire of the parties hereto that the property of each shall be separately owned by each and that there shall be no community property whatsoever owned by the two together, and that fair and reasonable provisions shall be made for the separate maintenance of the wife and for the custody, maintenance and education of said daughter and as to the respective property rights and obligations of the husband and wife, all as hereinafter more particularly set forth;‘Now, therefore, in consideration of the premises and the mutual covenants and agreements hereinafter set forth, said parties do hereby mutually covenant and agree as follows:‘I‘Property Settlement and Maintenance Of The Wife‘It is the intention of the parties hereto by this Indenture specifically to settle for all time their and each of their property rights in respect to the property which they or either of them now have, or which they or either of them may hereafter acquire, and it is a fact that this indenture is made and entered into freely and voluntarily by both parties, free from any duress, constraint or influence of any kind or nature on the part of either, and that each party has had independent advice and counsel and has entered into this indenture fairly and freely, acting absolutely upon the independent judgment of each and upon such independent advice and counsel.‘The wife hereby releases and confirms to the husband as his separate property and estate all of his articles of personal use and adornment and all cash in hand possessed by him and all money in bank to his credit, and any and all securities now owned or possessed by him and/or standing in his name, and any and all choses in action or in possession and any and all property and interests in property, real and personal, which he may now have or hereafter acquire (except as hereinafter provided for), and any and all property and claim to any property whatsoever (except as hereinafter provided for) in or to which the wife may have had or claimed any community interest, and any rights of inheritance, to be held by him as his separate property and estate.‘The husband hereby releases and confirms to the wife as her separate property and estate all her articles of personal use and adornment and all cash in hand possessed by her and all money in bank to her credit.‘The Packard Sedan owned by the husband, or by the parties hereto, shall become and remain the separate property of the husband, and the wife hereby releases and quitclaims to the husband said Packard Sedan. The husband hereby covenants and agrees that the wife may live in the furnished dwelling house located at No. 715 La Mirada Avenue, San Marino, California, until such time as he may be able to sell said dwelling house for at least the sum of Ten Thousand Dollars ($10,000.00). In the event of the sale of said dwelling house, the husband and wife hereby expressly agree that the net proceeds derived therefrom after deducting principal and interest on any mortgages or trust deeds outstanding on said property, shall be divided equally between husband and wife, except, however, that in the event the husband makes any principal payments on any mortgages or trust deeds which may exist on said property, he shall be entitled to recover the amount of said principal payments made by him from the sale price of said property before the net proceeds shall be divided equally between husband and wife. The wife covenants and agrees that during the time she shall have the right to the use and occupancy of said premises and equipment, to maintain the same and the grounds and landscaping thereof in as good order and condition as they may be at the time of the commencement of her occupancy, reasonable wear and tear and damage by the elements excepted. The husband covenants and agrees promptly to pay and discharge before delinquency, all taxes and assessments against said property (excepting taxes assessed and levied against the personal property of the wife) and all interest and any installments of principal on any note or notes secured by mortgage or deed of trust covering said property. The wife shall have the right to rent said property and shall be entitled to keep for herself all rents received therefrom. The husband covenants and agrees that he will not make any further loans encumbering the above dwelling house and property for a greater amount than the present encumbrance, which is in the amount of $5500.00, without first obtaining the written consent of the wife to do so.‘It is hereby agreed with respect to the motor boat ‘Restless', that the parties own a one-half interest in said motor boat, and that either party may have the use of the same upon giving reasonable notice to the other party, and that in the event of the sale or trade of the one-half interest of the parties in said motor boat, then and in that event the proceeds of said sale or trade will be divided equally between them.‘The husband hereby releases, confirms and quitclaims to the wife as her separate property and estate the furniture, household effects, decorations, bric-a-brac and equipment of every kind and description contained in said dwelling house and/or in, about or belonging to or used in connection with said premises.‘The husband represents that he is the owner of a United States Government Insurance Policy Number K–347251 in the amount of Ten Thousand Dollars ($10,000.00), in which said policy the wife is the beneficiary. The husband covenants and agrees that he will not (except as hereinafter stated) change the name of said beneficiary, and that during his life he will pay the premiums on said policy so that should he predecease his wife she will be entitled to the proceeds of said policy. The husband also represents that he is the owner of Pacific Mutual Life Insurance Policy No. 289018, in the amount of Three Thousand Dollars (3,000), in which said policy the wife is beneficiary. The husband covenants and agrees that he will not (except as hereinafter stated) change the name of said beneficiary, and that during his life he will pay the premiums on said policy so that should he predecease his wife she will be entitled to the proceeds of said policy. Should the wife remarry, however, the husband shall have the option to change the beneficiary under said above two policies of life insurance. The husband further represents that he is the owner of Pacific Mutual Life Insurance Policy No. 654608, in the amount of Ten Thousand Dollars ($10,000.00), in which said policy his wife is beneficiary, and the husband covenants and agrees that he will in the immediate future change the beneficiary under said policy and cause the daughter, Elizabeth Jane Pike, to be made beneficiary thereunder, and that during his life he will pay the premiums on said policy so that should he predecease his said daughter she will be entitled to the proceeds of said policy. The husband further represents that he has made policy loans on one or more of the above three policies of life insurance, and that said loans total approximately $2700.00. The husband covenants and agrees that he will not request or make any further loans increasing the total amount of the present life insurance policy loans without first obtaining the written consent of the wife to do so.‘The husband covenants and agrees to pay to the wife the sum of One Hundred and Thirty-five Dollars ($135.00) per month for her maintenance and support. In the event the wife remarries the husband shall be no longer bound to pay said sum of One Hundred Thirty-five Dollars ($135.00) to the wife. The husband covenants and agrees to pay to the wife for the maintenance and support of said daughter, a monthly sum of Twenty-five Dollars ($25.00). The husband agrees that the monthly payments for the maintenance and support of the wife and daughter shall be paid to the wife in two equal installments on the 1st and 15th days of each and every month, commencing on the 1st day of January, 1934. Receipt of the sum of Eighty Dollars ($80.00), being the payment due January 1st, 1934, is hereby acknowledged by the wife.‘II‘Custody, Support And Maintenance Of Daughter‘It is agreed that the best interests of said minor daughter will be subserved by allowing the wife to have full custody and control of said minor daughter, but it is mutually agreed that the husband shall have the right freely to visit said daughter at any and all reasonable hours and occasions.‘It is mutually agreed that in the event the wife shall die before said daughter attains the age of majority, then and in that event the entire and exclusive custody and control of said daughter shall go to the husband.‘The husband shall have the exclusive right to decide the education of said daughter and the school or schools, and college or colleges which she shall attend, and whether or not said daughter shall board and live at the school or college which she shall attend. The husband shall pay the cost of educating said daughter, including tuition and books, and during such time as the said daughter shall board and live at the school or college she shall attend, the husband during such period shall pay all maintenance and educational expenses for said daughter, and the amount which is hereinbefore provided to be given to the wife for the support of said daughter shall be eliminated while said daughter is living and boarding at school or college.‘In the event of the serious illness of said daughter the husband covenants and agrees that he will in any case, and regardless of whether the marriage between the parties hereto shall have been dissolved by divorce and the wife shall have remarried, pay all doctors' and nurses' charges and all medical and hospital bills, if any, insofar as it shall be reasonably possible for him to do so.‘Except as hereinabove provided, the wife shall provide for the support and maintenance of the daughter out of the funds to be paid to her as provided for under paragraph I hereof.‘The wife shall not be required to account to the husband, or otherwise, for any sums paid to her on account of her support and/or maintenance, or on account of the support and maintenance of the daughter.‘III‘General Provisions‘First and second parties shall at any time or times make, execute and deliver any and all further and other instruments as the other of said parties shall reasonably require for the purpose of giving full force and effect to this agreement and for the performance of the covenants and provisions hereof.‘The wife accepts the provisions herein made in lieu of any and all other claims and provisions for her support and maintenance, and of the support, maintenance and education of said daughter during her minority, and the wife hereby covenants that she will not at any time hereafter contract in the name of the husband, or otherwise, any debt or debts for which the husband as such might become liable, and the wife, hereby further covenants that she will at all times hereafter keep the husband indemnified against any and all claims, damages and liabilities whatsoever that she may hereafter contract or incur, and of all actions, claims and demands on account thereof. The husband covenants that he will at all times hereafter keep the wife indemnified against any and all claims, debts and liabilities whatsoever that he may hereafter contract or incur, and of all actions, claims and demands on account thereof.‘From and after the date of this instrument the earnings and all other acquisitions of property of either of the parties shall be his or her separate property and estate and not community property. Each party may, except as herein otherwise provided, freely acquire, convey and dispose of his or her property and enter into contracts and do all other acts and things in respect to his or her property as freely as though unmarried and without the joinder of the other party.‘In the event that the marriage between the parties should be dissolved by divorce, the wife agrees that she will ask that this agreement be recognized by the Court granting the decree of divorce dissolving said marriage.‘It is further mutually understood and agreed, in the event the marriage between the parties should be dissolved by divorce, that the provisions hereinbefore expressed in paragraph I respecting payment of moneys for the maintenance and support of the wife are accepted and agreed to without prejudice to a subsequent application to said court for modification of said provisions in the event of changed financial conditions of the parties.‘The rights of the wife hereunder shall not be assignable.‘In witness whereof, the parties hereto have signed their names the day and year first above written.‘Warren A. Pike,‘Party of the First Part (husband).‘Eugenie H. Pike,‘Party of the Second Part (wife).’

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.

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