MOONEY v. MOONEY

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

MOONEY v. MOONEY.

Civ. 16420.

Decided: February 07, 1949

Allan L. Leonard, of Los Angeles, for appellant. John E. McCall, of Los Angeles, for respondent.

Defendant appeals from the portion of an interlocutory decree of divorce decreeing (a) that the community property of plaintiff and defendant consists of a dwelling and malt shop at 11977 Inglewood Avenue, Hawthorne, California, the furniture in the house and the fixtures in the shop; (b) that an undivided one-half interest in and to the aforesaid dwelling and malt shop, furniture in the house, and fixtures in the malt shop be awarded to plaintiff as his sole and separate property; (c) that defendant within 10 days after notice of judgment deed to plaintiff an undivided one-half interest in and to the aforesaid real property and execute and deliver to him a bill of sale of an undivided one-half interest in and to the fixtures in said malt shop and the furniture in said dwelling.

Facts

Plaintiff filed an action for divorce against defendant on the ground of cruelty and alleged among other things:

“IV

“That there is community property of the parties hereto consisting of and inclusive of his ‘(plaintiff's)’ separate property:

“(1) A 7–room dwelling house and a malt shop business located at 11977 Inglewood Avenue, Hawthorne, California, of the approximate value of $30,000.00, mostly his separate property;”

“(2) Money in bank, Bank of America, Hawthorne Branch, $6500.00, or thereabouts;

“(3) Furniture in dwelling house and fixtures in malt shop approximating the value of $1000.00; *”

The trial court found as follows:

“IX

“Except as otherwise hereinbefore specifically found, all of the allegations of plaintiff's complaint and in his answer to defendant's cross-complaint and in his answer to defendant's amendment of her cross-complaint are true.

“X

“The Court further finds that the community property of the parties consists of the dwelling and Malt Shop located at No. 11977 Inglewood Avenue, Hawthorne, California, and the furniture in the house and the fixtures in said Malt Shop.”

The court also found that it was true that there was “(1) A 7–room dwelling house and malt shop business and improvements and additions thereto located at 11977 Inglewood Avenue, Hawthorne, California, of the approximate value of $30,000.00, most of which is the separate property of the cross-defendant.” (Italics added.)

An interlocutory decree of divorce was also granted to plaintiff.

Questions

First: Did the trial court fail to find on material issues relative to the community property of the parties?

This question must be answered in the negative. Findings IX and X, supra, were express findings relative to the community property of the parties and the trial court not having made any other findings relative to the allegation in paragraph IV of the complaint as to the community property, they constituted findings that the allegations therein were true.

Second: Was finding X inconsistent with finding VI?

This question must likewise be answered in the negative. Finding X found that the allegations as to the community property in paragraph IV of the complaint were true, while finding VI, though not artfully drawn, found that some of the property was the separate property of defendant. Finding VI is a general finding, while findings IX and X are specific findings, and the rule is established that in case of a conflict between general findings and specific findings as to particular averments of a pleading, the latter control in the case of an inconsistency. (See cases cited in note 14, page 974, section 206, 4 Cal.Jur. (1926).)

In the instant case the trial court's findings as to community property were sufficiently specific.

Third: Was there substantial evidence to sustain the trial court's finding number X?

This question must be answered in the affirmative. Plaintiff testified that he and his wife agreed that the property described in finding X should be purchased in both of their names and that he spent thousands of dollars on the property. He further testified that he spent approximately $4500 on the buildings known as the “malt shop”; that he had the inside of the house refinished; had an extension built on the barn, fences and corrals constructed, and had made numerous other improvements in connection with the property; and that he had purchased certain personal property located in the dwelling house. Such testimony was sufficient to sustain the trial court's finding, and this court is thus without authority to disturb the finding of the trier of fact. (In re Estate of Isenberg, 63 Cal.App.2d 214, 217, 146 P.2d 424.)

Fourth: Should the trial court have found that the real property in question was defendant's separate property since the title to the property was taken in defendant's name and a purchase contract for a portion thereof stood also in her name?

This question must be answered in the negative. Whether evidence is sufficient to overcome the statutory presumption that property acquired by a married woman by an instrument in writing is presumably her separate property is for the trier of fact to decide whose conclusion, supported by substantial evidence, will not be disturbed on appeal. (Attebury v. Wayland, 73 Cal.App.2d 1, 5, 165 P.2d 524; Williamson v. Kinney, 52 Cal.App.2d 98, 102, 125 P.2d 920.)

In the present case plaintiff testified that he and his wife agreed that the property should be taken in their joint names, and that he had implicit faith in her and believed she would keep her promise. Such testimony coupled with the testimony that plaintiff had paid various sums for the property constituted substantial evidence to sustain the trial court's finding which, under the above rule, is binding upon this court.

We are, of course, not at liberty to consider evidence in conflict with that which sustains the trial court's findings.

The decree is affirmed.

McCOMB, Justice.

MOORE, P.J., and WILSON, J., concur. Rehearing granted; McCOMB, J., dissenting.