BABBITT v. BABBITT

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

BABBITT v. BABBITT et al.*

Civ. 19961.

Decided: April 05, 1954

Benjamin D. Brown and A. James Ayers, Los Angeles, for appellants. D. Chase Rich, Los Angeles, for respondent.

This is an appeal from the judgment.

The action was for divorce and also for the recovery of property from defendant Agnes McGowan. The defendant Douglas B. Babbitt defaulted. Defendant McGowan answered.

The record reveals, as recited by appellant, ‘Briefly the evidence disclosed that in 1949 the husband and McGowan, which living together at a time when the husband was married to plaintiff, purchased certain real property in Los Angeles County, described as Lot 39, Tract 7890 and that title thereto was put into the name of McGowan. At that time McGowan was known as Agnes M. Hansen. The trial court has made a finding that community funds were solely used to purchase this property and that title to said property was taken in the name of McGowan in order to keep the plaintiff from knowing about the property and for the purpose of defrauding plaintiff and that McGowan agreed to return the property to husband at such time as he made demand therefor. Evidence offered on behalf of appellant indicated that McGowan was gainfully employed for a substantial part of the time that she and husband were living together and that she contributed her earnings for the common benefit of the two people. However, the trial court has chosen to find that none of of these earnings were put into the property in question.

‘Subsequently, husband demanded of McGowan that she reconvey legal title to the husband, which she refused to do and claimed the property to be her own.

‘In September, 1951, McGowan commenced an action against husband for ejectment from said property and that husband contested said action and filed a cross-complaint claiming legal title and that McGowan was holding the said property in trust for husband.

‘On or about June 4, 1952, McGowan and husband stipulated for judgment in the action whereby each took an undivided one-half interest in said real property and judgment was made accordingly. Plaintiff was not a party to said action.

‘The trial court made judgment decreeing that said property was the community property of plaintiff and husband and awarded all of said property to plaintiff and quieted title to said property in favor of plaintiff as against McGowan.

‘Appellant contends that the trial court was in error in making a finding that all of the said property was community property and in awarding and assigning the one-half thereof claimed by appellant to the plaintiff and in decreeing that appellant had no interest therein.’

In addition to granting the divorce the property in question was restored to plaintiff.

Both defendants testified.

Appellants' argument that, ‘There is no evidence to support any findings' and that ‘The decree herein was not made pursuant to either the allegations of the complaint or the prayer for relief’, is without merit. A review of the record reveals that the evidence is abundantly sufficient and that no prejudicial errors appear.

The judgment is affirmed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.