BLACHE v. BLACHE

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District Court of Appeal, First District, Division 1, California.

BLACHE v. BLACHE et al.

Civ. 14250.

Decided: September 12, 1950

David Livingston, Louis F. DiResta, San Francisco, for appellant. Ernest J. Torregano, San Francisco, for defendant and appellant, Maurice J. Blache, aka Jean J. M. Blache. Edward J. Lynch, San Francisco, for defendant and appellant, Jeanne C. Pedebidou, aka Jeanne Blache.

Action started in 1939 brought by Anna, wife, against defendant Maurice, her husband, and defendant Jeanne, with whom Maurice had contracted an illegal marriage, and in which Anna sought separate maintenance, the recovery of certain community property conveyed by Maurice to Jeanne, and a determination of Anna's interest in the community property and an allocation of such interest to her. This case was before this court in Blache v. Blache, 69 Cal.App.2d 616, 160 P.2d 1361 and in Blache v. Blache, 78 Cal.App.2d 168, 177 P.2d 345. From the judgment rendered on the retrial, all three parties have filed separate appeals.

Facts.

A detailed statement of the history of the parties appears in the opinion in the Blache case. Only such facts as are necessary to this opinion will be set forth here. Anna and Maurice were married in 1912. In the following two years they separated three times, the final separation occurring in Canada. Maurice came to California, and in 1916 sued for divorce, alleging that Anna had deserted him. She defaulted. When the case came on for trial the court refused to grant the divorce without further corroboration. Later the action was dismissed by the court. In 1918 Maurice (although still not divorced from Anna, but believing that he was) married Jeanne.

Anna started this action in 1939. Maurice cross-complained for a divorce on the grounds of cruelty and desertion, and also for an annulment of the marriage, based upon alleged fraud in obtaining his consent to the marriage contract. The trial court denied Maurice any relief on his cross-complaint, and denied Anna a monthly sum for separate maintenance, but awarded Anna $7,989.13 in lieu of her rights in the community property, ordering it to be paid by Jeanne to Anna for the account of Anna, also allowing her attorney's fees, and setting aside transfers of real and personal property made by Maurice to Jeanne on the ground that they were the community property of Anna and Maurice.

Anna appealed, primarily from the court's failure to assign her half of the community property and to award support and maintenance. Maurice did not appeal. Jeanne appealed from the judgment insofar as it affected her. On the appeal, this court held that ‘The action of the court in striking out the finding of ‘wilful neglect,’ coupled with the insertion of the provision giving Anna less than one-half of the community property, and the evidence in the case, make it necessary to reverse the judgment. * * *

‘In view of the conclusions reached herein it does not seem necessary to consider further questions raised by appellant Jeanne. Whether the property described in the complaint was the separate property of Jeanne is a question of fact which may be tested again on a retrial.’ 69 Cal.App.2d at page 631, 160 P.2d at page 144.

‘The judgment in so far as it refers to attorney fees and all provisions of said judgment protective of those fees are affirmed; the portions of the judgment adjudicating Maurice's ownership of one-half of the real and personal property, and vacating and setting aside certain transfers of his interests in such properties to Jeanne, insofar as such transfers affect his one-half interest, and the provisions of the judgment granting an injunction against Maurice until the rights of the parties can be determined, are also affirmed; in other respects the judgment is reversed, and the cause remanded for a new trial in accordance with the views herein expressed.’ 69 Cal.App.2d at page 633, 160 P.2d at page 145.

At the retrial judgment was rendered (1) ordering Maurice to pay Anna for maintenance $50 per month for one year, (2) setting aside the transfers of real and personal property by Maurice to Jeanne, (3) awarding Anna one-fourth of the bank account and one-fourth of certain stock which Maurice had transferred to Jeanne, (4) awarding Maurice one-fourth of this bank account and stock, (5) awarding Anna and Maurice each one-fourth of the real property theretofore conveyed by Maurice to Jeanne, and ordering the latter to make deeds thereof accordingly, (6) impressing liens in favor of Anna and her attorneys upon the interests of Maurice in the properties and on the obligations of Jeanne to Maurice under the judgment, (7) granting Jeanne a $10,000 lien on Anna's interest in the property and assets and a similar lien on Maurice's interest, (8) enjoining Maurice and Jeanne from disposing of any of the property until the judgment in favor of Anna has been satisfied in full (not applying, however, to Jeanne's residual one-half interest), (9) reserving to the court the power to make further orders as may be necessary to carry the judgment into effect, and (10) granting Anna $584.37 costs against Maurice and Jeanne.

The appelas of each party will be considered separately, except where two parties make the same contention, as——

Use of Prior Trial Testimony.

The opinion of this court, 69 Cal.App.2d at page 631, 160 P.2d at page 144, said: ‘Whether the factual questions on a new trial should be submitted on the same record, or whether new or additional evidence should be presented, is a question to be decided by the trial court and the respective attorneys.’ (Emphasis added.) At the second trial Anna did not appear personally. Over the determined objections of both Maurice and Jeanne, the transcript of testimony of Anna and five other witnesses given at the first trial was admitted. Both Maurice and Jeanne complain of this as error, and point out that ordinarily the prior testimony of a party or witness can only be used where the foundation is laid by showing that the witness is absent, infirm, dead, etc., or where it is used for impeachment purposes. The court's ruling in permitting use of the transcript was based upon the above-quoted sentence in the Blache opinion. A careful study of that sentence justifies the position taken by the trial court. It means that on the new trial it was in the discretion of the court to permit either counsel to try his case anew or to submit it on the record of the previous trial either with or without new or additional evidence. The construction contended for by both defendants, to the effect that the sentence means that if all counsel and the court agree, the new trial could be had on the previous record alone or with new or additional evidence, makes the sentence unnecessary and meaningless. This would be true of all retrials, whether the appellate court mentions the subject or not. Defendants claim they were at a disadvantage as their witnesses were present in person and the major portion of Anna's case was submitted on the cold record, and therefore the court did not have an opportunity, as it did with defendant's witnesses, of observing the demeanor of Anna and her witnesses to determine their credibility. Actually, as a general rule, the person who submits his case on a cold record is at a disadvantage as against the one who presents the witnesses. Defendants must have been poor witnesses, indeed, when the trial court refused to believe them. While both defendants contend that they were deprived of the opportunity of cross-examining Anna, it must be pointed out that at the previous trial, Maurice's attorney cross-examined her for approximately 245 pages of the transcript and Jeanne's attorney waived his right to examine. Moreover, if defendants desired to further examine Anna, they could have taken her deposition.

Cases like Kuehn v. Carols, 32 Cal.App.2d 295, 89 P.2d 672, and Kuck v. Raftery, 117 Cal.App. 755, 4 P.2d 552, are not applicable here. The use of the transcript in this case was on the direct mandate of the appellate court, which undoubtedly had in mind the great length of the previous trial and desired to provide a method of shortening the new trial.

Defendants make a point of the fact that the transcript used was not certified by the reporter as provided in section 273 of the Code of Civil Procedure. At no time during the trial did they raise this objection nor question the correctness of the transcirpt, nor do they now question its correctness. It is too late to object to it now.

Sufficiency of the Evidence.

Both defendants contend that the evidence is insufficient to support the judgment, insofar as it affects each. This requires a consideration of the particular findings of the court and will be discussed together with other questions if raised as to such findings. Generally, the language of the court in the Blache case, 69 Cal.App.2d at page 624, 160 P.2d at page 141, applies to the claim here that the evidence is insufficient: ‘There appear enough contradictory and inconsistent statements in the transcript of the testimony of each of the three principal parties to justify this court in sustaining a finding contrary to the testimony of any one of the parties. Arguments in the briefs that one party should be believed and not the other will not be considered in detail.’

Community or Separate Property?

As did the trial court at the first trial, the trial court at the new trial found that one-half of all property which had been accumulated by defendants during their putative marriage was the community property of Anna and Maurice, even though Anna in no wise contributed to its accumulation. Except as it is affected by the transfers by Maurice to Jeanne, which will be considered later, the evidence is strong that the property was accumulated, as found by the court, by the joint efforts of Maurice and Jeanne, and is the property of Maurice and Jeanne in equal shares. While defendant Jeanne contends that the accumulation grew from a sum of about $10,000 which Jeanne claimed to have had at the time of her marriage, plus her skill and efforts, the evidence well supports the conclusion to which the trial court came. The judge succinctly expressed it in his opinion: ‘There is some evidence that Jeanne invested some of her own money—the total amount of which is not too convincing—into the business. Counsel for plaintiff are willing to concede it to be the sum of $10,000.00 and that Jeanne is entitled to this sum plus a reasonable return on her investment. Because of the rapidity in which money was made by Maurice and Jeanne, I believe that Jeanne is entitled to have $20,000.00 returned to her. I am definitely of the opinion that it was not the investment of any sum of money by Jeanne which caused the accumulation of so much in so short a time but that it was the technical and business ability of Maurice in a specialized field coupled with the thrift and help of Jeanne.’ The trial court obviously did not believe Jeanne's story that there was an agreement between her and Maurice that the business of the Blache Film Laboratory, and the profits therefrom, were to be her separate property. This is the testimony upon which both defendants base their claim that placing the property in joint tenancy constituted a gift from Jeanne to Maurice.

Defendants contend that in order for the property acquired by the husband to be community property the spouses must be actually living together. We can find no such requirement. Section 164 of the Civil Code defines community property as all property acquired during marriage by either husband or wife, other than that mentioned in certain code sections not applicable here. There is no requirement that the husband and wife must be living together at the time of acquisition. There are any number of cases in California holding that property acquired by a spouse during the marital relationship but while actually separated from the other is community property. Britton v. Bryson, 216 Cal. 362, 14 P.2d 502, is one. There the spouses did not live together during a period of over thirty years.

Both contend that Anna waived and relinquished her rights to any community interest, and point first to the fact that Anna permitted a default to be entered against her in the action brought against her by Maurice in Los Angeles in 1916 on the grounds of desertion. While defaulting constitutes an admission of the truth of the material averments of a complaint, Horton v. Horton, 18 Cal.2d 579, 116 P.2d 605, it is for the court in the subsequent action to weigh such an admission against the party's testimony here and determine which to follow. The only issue in the Los Angeles action was whether Anna deserted Maurice. Her failure to answer constituted an admission that she had. However, Anna testified to various acts of physicial cruelty by Maurice, including physical violence, when they were last living together in Canada. This testimony was corroborated. Anna had Maurice arrested but did not prosecute. Anna denied Maurice's testimony to the effect that their last separation was by agreement made at the time of the dismissal of the criminal charge. Thus there was ample evidence from which the court could and did determine that the admission was contrary to the truth. Moreover, the effect of her admission has already been passed upon in the Blache case, supra, 69 Cal.App.2d at page 632, 160 P.2d at page 144: ‘There was a default in the original proceeding but no judgment of divorce entered. A default judgment, if a court has jurisdiction, is a waiver of one's right to subsequently litigate the adjudicated issues [citation], but the ‘issues' in the present case were not previously adjudicated. [Citations.]’

Again, they contend that Anna by her conduct and in her correspondence waived and is estopped from making any claim to support or community interest and was guilty of laches. This is based partly upon the claim that by an express oral agreement made in 1914 Anna agreed to make no claims on Maurice. Although Jeanne's brief states that Maurice's testimony as to the conversation in which this agreement is claimed to have been made was not contradicted by Anna, the record shows that it was. Anna at first stated that she did not recall any such conversation, and later flatly denied that it had taken place. It was the trial court's province to determine whether to believe Maurice or Anna. The judge at the first trial as well as the one at the second trial refused to believe Maurice. See the Blache case, supra, 69 Cal.App.2d at pages 621 and 624, 160 P.2d at page 136. This point is also based upon the fact that from 1916 to 1932 she made no effort to locate Maurice, although she knew the address of the attorney who represented him in the divorce suit which he brought against her, and that in 1932 when she learned of the Blache Film Laboratory in San Francisco she did not immediately pursue the matter after phoning once and learning that he was not in. It is based also upon the correspondence. While from these facts and statements in the letters the conclusion could be drawn that Anna did not intend to hold Maurice responsible for her support or to claim any interest in the community property, there was no express waiver of either. To constitute a waiver the courts have held that there must be manifest a clear and unmistakable intention to waive. See Jones v. Lamont, 118 Cal. 499, 50 P. 766, 62 Am.St.Rep. 251; Estate of Minier, 215 Cal. 31, 8 P.2d 123, 81 A.L.R. 689. Moreover, while the letters are susceptible to the above-mentioned conclusion, they are also reasonably susceptible to a contrary conclusion, which is the one the court drew. As said in the Blache case, supra, 69 Cal.App.2d at page 632, 160 P.2d at page 144: ‘Whether Maurice deserted Anna or versa is entirely a question of fact. The same statement may be made in reference to letters subsequently written by Anna to Maurice.’ ‘The rule is well settled that where the facts established are such as to reasonably permit opposing inferences to be drawn therefrom and the trial court has adopted one and rejected the other, an appellate court will not disturb the finding.’ Baylis v. Baylis, 48 Cal.App.2d 674, 679, 120 P.2d 89, 91.

In May, 1932, Anna learned for the first time that the Los Angeles divorce proceeding had not been completed. Both defendants claim that because of her failure to bring action until 1939, Anna is estopped to make any claims. One of the elements necessary to constitute an estoppel is that the silence of the person sought to be estopped has been relied upon by the other party, or has caused the latter to change his position. See Burgess v. California Mutual B. & L. Ass'n, 210 Cal. 180, 290 P. 1029. The evidence shows that substantially all of the property had been accumulated before May, 1932, and hence Jeanne was not misled by the failure of Anna to act promptly. The evidence discloses no change of position by Jeanne, based on her lack of knowledge of the validity of her marriage, after that date. Anna's letters show that she was withholding action because of Maurice's representations that Jeanne was ill and that the shock of learning the truth might prove injurious or even fatal. The case of Hensgen v. Silberman, 87 Cal.App.2d 668, 197 P.2d 356, cited by Jeanne, is clearly distinguishable from our case. There the wife and husband went to Mexico and made the necessary arrangements for a Mexican mailorder divorce, in which the wife was granted a final decree of divorce. Thereafter in good faith and relying upon this divorce, one Rose married the ex-husband and lived with him for five years as his wife. In the meantime the first wife, with knowledge of the remarriage, herself remarried. Even though she visited at the home of the husband and his new wife several times, at no time did she claim the invalidity of the Mexican divorce nor Rose's marriage, until the death of the husband about five years after his marriage to Rose, at which time she made claim to joint savings accounts and other property of Rose and her husband. The court held that the first wife was estopped from claiming any interest in the property as she permitted Rose to hold herself out as the lawful wife and to ‘incur the benefits and obligations incident to a valid marriage’, 87 Cal.App.2d at page 673, 197 P.2d at page 359, and also to work and pool her earnings with his. There was no such situation here. Practically all of the pooling had been done prior to Anna's discovery of the true situation, and Anna's permitting Jeanne to continue thereafter to hold herself out as Maurice's wife was in the interests of Jeanne's health. We cannot say that under the evidence, as a matter of law the court's findings on laches and estoppel were erroneous.

Statute of Limitations.

The court found that Anna's cause of action for maintenance was not barred by sections 124 or 125 of the Civil Code. In other words, it found that there was no unreasonable lapse of time before the commencement of the action nor such lapse of time as to establish the presumption that there was condonation of the offense or full acquiescence therein. The court found Maurice guilty of desertion, failure to provide for Anna for more than one year prior to the commencement of the action, and adultery. While there is evidence upon which the court could have found that Anna's cause of action was so barred, there was contrary evidence, and we are bound by the court's finding thereon. The same thing applies to the court's finding that the cause of action as it related to the recovery of both real and personal property and other relief was not barred by subdivisions 3 and 4 of section 338, and section 343, of the Code of Civil Procedure.

Transfers of Real and Personal Property.

On May 25, 1939, shortly after Maurice told Jeanne of his marriage to Anna, Maurice and Jeanne signed a withdrawal slip and the latter withdrew the entire bank account of $15,978.26 from their joint tenancy account and redeposited it under the name of ‘Lucille Codo’ and shortly after withdrew it from that account and redeposited it under the fictitious name of ‘Mary White.’ About the same time Maurice transferred to Jeanne his interest in 100 shares of Pacific Gas and Electric Company stock issued in the names of Maurice and Jeanne as joint tenants. On June 1, 1939, both defendants signed a document called a settlement and release of claims, which set forth that Jeanne had ‘presented certain claims' against Maurice ‘to real property standing in * * * [their] joint names * * * as well as for damages resulting from misrepresentations and concealments of * * * [Maurice] which caused * * * [Jeanne] to believe that she was * * * [his] legal wife * * * and which resulted in damages and losses to’ her, ‘and also for services and for monies had and received,’ and that Jeanne had a good cause of action against Maurice based upon said claims and had indicated her intention of suing him unless satisfactory adjustments were made; that Maurice had admitted the justice of the claims and desired to remedy the wrong and to restore ‘to her that which is actually hers.’ Maurice then agreed, in settlement, to convey to her by deed all his interest in the five parcels of real estate then standing in the names of Maurice and Jeanne as joint tenants. The same day he executed deeds to Jeanne of his interest in said real property. The trial court found that these transfers of both personal and real property were fraudulent because they were made without consideration, not in good faith, and for the purpose of depriving Anna of her community interest therein. Both defendants contend that the court's finding is not supported by the evidence and that there was ample consideration, as Jeanne was foregoing her right to damages against Maurice, because of his action in purporting to marry her when he was legally unable to do so, citing Lazzarevich v. Lazzarevich, 88 Cal.App.2d 708, 200 P.2d 49. While it is true she had such right, the court found that in obtaining the transfers she, in effect, was not asserting or enforcing such right, but was attempting to defraud Anna. In spite of the presumption of consideration from the execution of the written instruments, the conclusive presumption of section 1962, subdivision 2, Code of Civil Procedure (which binds only the parties to the agreement) and Jeanne's testimony on the subject, there was substantial evidence to support the court's finding to the contrary. The circumstances of the case, the transfer by Maurice of his interest in the bank account, and Jeanne's redeposit of it in another name, before the so-called settlement of claim was made, the contradictory testimony of Maurice and Jeanne that the property was hers alone and had been placed in joint tenancy on a banker's advice to avoid probate expense, Jeanne's refusal at first to account for the money, are evidence to the contrary, or at least raise reasonable inferences to the contrary.

Moreover, assuming that there was consideration for the transfers, they nevertheless were fraudulent under section 3439.07 of the Civil Code as being conveyances made to hinder, delay or defraud a creditor (here, Anna). ‘Where the transferee participates in the fraudulent intent, the transfer is void as to creditors, even though a valuable consideration may have been paid. [Citations.]’ Rossen v. Villanueva, 175 Cal. 632, 635, 166 P. 1004, 1005.

Again, Anna, the legal wife, had the right to have the transfer of the real property set aside under the provisions of section 172a of the Civil Code, which provides: ‘The husband has the management and control of the community real property, but the wife * * * must join with him in executing any instrument by which such community real property or any interest therein * * * is sold, conveyed, or encumbered; * * *.’ The exception that the section does not apply to a purchaser in good faith without knowledge of the marriage relation is not applicable here, as, of course, Jeanne knew of the marriage relation at the time the transfer was made. The suit to avoid the transfer was brought within the year prescribed by the section.

Maurice's One-Fourth.

Jeanne claims that in any event the court erred in setting aside that portion of the transfers which included Maurice's one-half of the community interest or a one-fourth interest in the whole property. She points out that Maurice did not ask for the setting aside of the transfers. She cites authorities such as Title Insurance & Trust Co. v. California Development Co., 171 Cal. 173, 152 P. 542, to the effect that a transfer may be good as between the parties even though void as to creditors, and cases such as Taylor v. Russell, 8 Cal.App.2d 61, 47 P.2d 305, to the effect that a decree avoiding a deed as to creditors of the grantor leaves the deed operative between the parties. These principles are applicable in the event that Maurice should attempt to assert adverse claims against Jeanne. They do not apply, however, to the action of the court in setting aside the transfer of the entire community interest so that it may be available in the maintenance action for disposition by the court. Under certain circumstances it could award the entire community interest to the wife, or, as here, could award her merely half and required the other half to be subject to payment of its order for support. Heuer v. Heuer, 33 Cal.2d 268, 201 P.2d 385, does not apply to this situation. In that case the divorce had already been granted. Where such is the situation or the husband has died, it has been held that conveyances by the husband without the wife's consent may be set aside only as to her community one-half. Pretzer v. Pretzer, 215 Cal. 659, 12 P.2d 429; Trimble v. Trimble, 219 Cal. 340, 26 P.2d 477. But where the community still exists, the conveyance may be set aside in its entirety. Ballinger v. Ballinger, 9 Cal.2d 330, 70 P.2d 629; Britton v. Hammell, 4 Cal.2d 690, 52 P.2d 221. Where there is pending either a divorce or maintenance proceeding the court has the power to set aside the entire transfer to await its disposition of the community property. Therefore, here, it was proper for the court to set aside the transfer as to the whole of the community property and to require Jeanne to convey one-fourth to Maurice as well as one-fourth to Anna, so that Maurice's one-fourth may be subject to the court's orders. Moreover, as said in Blache v. Blache, supra, 78 Cal.App.2d 168, 177 P.2d 345, referring to the opinion in the Blache case: ‘The transfers were held to have been correctly set aside to protect that half of the property which, if on retrial is found not to be the separate property of Jeanne, may be treated as if it were the community property of Maurice and Anna. Blache v. Blache, supra, 69 Cal.App.2d 624, 160 P.2d 136.’ 78 Cal.App.2d at page 170, 177 P.2d page 346.

Demurrer.

Jeanne contends that the court's action in overruling her demurrer to the complaint is erroneous because the complaint alleges fraud on information and belief and in general terms. An examination of the first amended complaint fails to support the charge. In one paragraph plaintiff did allege on information and belief that Maurice, with intent to conceal the ownership of all the property from plaintiff and to prevent her from obtaining any part of it, quitclaimed it to Jeanne. However, later, plaintiff positively alleged that Maurice attempted to give all of the community real property to Jeanne, that Maurice and Jeanne conspired with each other to transfer title to the community property to Jeanne for the purpose of defrauding plaintiff with intent to conceal its ownership and to prevent plaintiff from obtaining any interest in it, that in furtherance of the conspiracy Maurice did cause to be made, executed and recorded quitclaim deeds of it to Jeanne. The complaint (while hardly a model of pleading) was sufficient.

Presumptions.

Based upon Mazzenga v. Rosso, 87 Cal.App.2d 790, 197 P.2d 770, both defendants contend that the presumption of the validity of the second marriage overcomes the presumption as to the validity of the first marriage, and then claim that there is no evidence that the first marriage had not been terminated. The finding of continued marriage is not based upon the presumption following from the first marriage, but on the positive testimony that it had not been dissolved. In the amended complaint Anna alleged the marriage and that she and Maurice ever since were and now are husband and wife. Maurice, by failure to deny, admitted it. Jeanne's answer denied the allegation. Anna positively testified that other than the Los Angeles divorce action which was dismissed, she had never been either a plaintiff or defendant in a lawsuit. Maurice testified that in 1932 he found out that he had not obtained a divorce. Except for the formal denial in Jeanne's answer there never was any claim at any time, including the other appeal, that the marriage had been dissolved. The language used by the court shows that ‘There can be no community property in the absence of a valid marriage. * * * However, Maurice's share of the property acquired during his association with Jeanne may be the community property of himself and Anna in the absence of evidence that their marital status has been legally dissolved * * *.’ 69 Cal.App.2d at page 624, 160 P.2d at page 140. So far as the proceedings at the trials were concerned, the dissolution of the first marriage or the validity of the second marriage was not an issue. To attempt to raise the question now is trifling with the court.

Necessity for Support.

Maurice also contends that the order for support was invalid because Anna was not present at the trial to testify as to her present needs (her testimony at the prior trial showed her need as of that time). The award of $50 per month for one year is well supported by her showing of need at that time, regardless of whether that need continued to the time of the second trial. There is nothing in section 137, Civil Code, which prohibits the making of such order.

Maurice's Cross-Complaint.

Maurice contends that the court erred in not considering the issues raised in his cross-complaint. The court found: ‘The issues presented by Maurice's cross-complaint for divorce and annulment were disposed of at the previous trial of this case, and the decision at said trial on said issues is embodied in [certain] Findings * * * filed in this case at the conclusion of said previous trial. Maurice did not appeal from the judgment entered pursuant to said findings, and said decision upon said issues became final.’ This finding is correct. Maurice's failure to appeal from the judgment denying his cross-complaint left the judgment final as to him on the issues set forth in the cross-complaint. Anna's appeal, of course, was not from that part of the judgment denying Maurice relief under his cross-complaint. Nor did Jeanne appeal therefrom. (It is doubtful if she could have done so.) Therefore, the issues under the cross-complaint were not before the appellate court, and it had no power to reverse the judgment thereon, had it wished to do so. The language used in the opinion, 69 Cal.App.2d at page 633, 160 P.2d at page 145, ‘in other respects the judgment is reversed,’ cannot be stretched to cover that portion of the judgment which was not before the appellate court. The judgment against Maurice on his cross-complaint is separate from the rest of the judgment in the case. The situation here is somewhat similar to that in Neill v. Five C. Refining Co., 79 Cal.App.2d 191, at page 194, 179 P.2d 818, at page 820, where the court said:

‘Maguire contends that the judgment which it consented to against itself is not binding in this case, because it was thereafter reversed by the District Court of Appeal. Coates v. Maguire etc. Corp., 47 Cal.App.2d 275, 117 P.2d 898.

‘However, the judgment which was reversed by the District Court of Appeal was against another defendant in the same action. No appeal was perfected by Maguire, and the two judgments are separate. Code of Civil Procedure sec. 579. Therefore, the judgment against Maguire was not considered by the District Court of Appeal, and remained final despite the reversal of the judgment as to the other defendant. Lake v. Superior Court, 187 Cal. 116, 200 P. 1041; Smith v. Anglo-California Trust Co., 205 Cal. 496, 271 P. 898.’

Moreover, the trial court in effect found on the matters set up in the cross-complaint. It specifically found that Anna was not guilty of extreme cruelty towards Maurice. Its finding that Maurice deserted Anna negatives Maurice's allegations that she deserted him, or was guilty of fraud in marrying him with the intent not to live with him. The refusal of the trial court to consider Maurice's cross-complaint in no wise prevented Maurice from asserting and presenting to the court, as he did, all of the defenses he claimed to have against all matters raised by her complaint.

Anna's Appeal.

Anna's sole ground of appeal is that the court failed to dispose of the increment of the community property, consisting of moneys in the bank and certain stocks. The court found that money was deposited in various banks in San Francisco and that various shares of stock were purchased by Jeanne but ‘said assets are not before the Court for disposition.’ We are unable to determine the foundation of such a statement. In the amended complaint it is alleged that ‘the rentals, issues and profits of said real property are community property, and are of a monthly value in excess of One Thousand Dollars ($1,000.00).’ In the prayer plaintiff asks that all of the community property be set aside to her and that a receiver be appointed to take control of all of the community property. Thus, the determination of whether there were increments from the community property, and the disposition thereof, was before the court. It is a little difficult to determine Jeanne's position on this subject. She seems to contend that any division of the increment would be an allowance to Anna of maintenance or support which the court could not allow for certain reasons which she sets forth in her answering brief. But such a contention is wrong. A spouse who is entitled to be awarded a share of the community property is also entitled to be awarded the increment from the share. ‘There is no constitutional or statutory provision expressly declaring that ‘rents, issues, and profits' of community property shall partake of the same attributes of ownership as the capital property, but such characteristic must follow as a matter of law, because the right of beneficial use is an incident of ownership.’ Boyd v. Oser, 23 Cal.2d 613, 621, 145 P.2d 312, 316. The second contention made by Jeanne is that the ‘Court's function on retrial was simply to determine title to a one-half interest in the properties.’ Assuming that this was the court's only function, she does not specify why increment is not included in this specification. Increment is a part of the ‘properties.’ If she means that the retrial was merely to determine whether Jeanne had any interest in the one-half of the real and personal properties specifically mentioned in the prior opinion (other than the one-half which the court held in that opinion was her separate property), she is wrong. The very purpose of the action was to determine what share plaintiff should be awarded to whatever community property there was, and hence when the court determined that Jeanne had no interest in that half of the property, its functions did not end but it was required to dispose of the whole of that half interest, necessarily including increments.

In the judgment, the court reserved the right and power to make further orders and decrees, and possibly it intended that the determination of this matter should be done later. However, it should have been done then. The case will have to be remanded for the purpose of determining the increment applicable to the portion of the community awarded plaintiff. Inasmuch as Anna did not appeal from that portion of the judgment which awarded her onefourth of the community property, in any event she would not be entitled, as intimated in her brief, to a greater share of the increments than one-fourth.

The judgment insofar as it provides that the increments from the community property are not before the court, is reversed, and the cause remanded for the trial and determination of that issue; in all other respects the judgment is affirmed, Anna to recover her costs on all appeals.

FOOTNOTES

1.  Hereinafter referred to as ‘the Blache case.’

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.

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