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District Court of Appeal, Second District, Division 3, California.

Leona ADDISON, Plaintiff and Appellant, v. Morton Cutler ADDISON, Defendant and Appellant.

Civ. 27082.

Decided: August 24, 1964

Mosk & Rudman, Norman G. Rudman, Los Angeles, and M. B. Frieden, Hollywood, for plaintiff and appellant. Brock & Shapero and Robert L. Brock, Hollywood, for defendant and appellant.

Each party has appealed from a portion of the interlocutory judgment of divorce. The plaintiff, placing her reliance on sections 140.5, 140.7 and 146 of the Civil Code,1 contends that the trial court erred in its determination that there was no community property other than the furniture and furnishings of the family home. The defendant contends that it was error to embody in the judgment the following provision: ‘Defendant is ordered to pay all current income tax liabilities to the United States Government being in the approximate sum of seventy thousand * * * dollars, and the current tax liability to the Government of the State of California being in the approximate sum of five thousand seven hundred * * * dollars and is ordered to hold plaintiff harmless from such obligations.’

The marriage occurred in Chicago, Illinois, in 1939. The defendant thereafter engaged in business activities in that state. The parties moved to California in 1949. At that time the defendant possessed personal property of a value of approximately $143,000. After the defendant arrived in California he made investments in business enterprises and, at the time of the trial, was the principal owner of an automobile leasing concern. The parties separated about January 3, 1961. The divorce was granted to the plaintiff Leona Addison on the ground of adultery.

The findings of fact of the trial court were in part as follows: 1. The only community property consisted of the household furniture and furnishings located in the family residence. 2. The real property constituting that residence belonged to the plaintiff and defendant as joint tenants and each owned an undivided one-half interest therein as separate property. 3. All other property, including the interest in the automobile leasing concern, 320 acres of land in Kern County, California, an obligation in the approximate amount of $4,000 owed by a Chicago trust, and certain real property in Illinois or the beneficial interest therein under a trust was the sole and separate property of the defendant. 4. The plaintiff was entitled to alimony and support in the monthly amount of $700 for a period of ten years or until her death or remarriage, if either should occur prior to the expiration of that period. 5. ‘By way of additional support and alimony, the plaintiff * * * is entitled to have the defendant * * * pay and hold her harmless from the current income tax liability to the United States Government in the approximate sum of $70,000.00 and the current tax liability to the government of the State of California in the approximate sum of $5700.00.’

As has been noted, the wife's position is that the legislation of 1961 was applicable to the personal property and the California real property standing in the name of the husband and that, accordingly, such property, as ‘quasi-community property,’ should have been divided between the parties in accordance with section 146 of the Civil Code. Some support for that position is found in the reasoning of the Supreme Court in the first opinion, superseded upon rehearing, in the case of Estate of Thornton, reported in 19 P.2d 778. Mr. Thornton brought property into California and became domiciled here in 1919. The court considered the effect on the status of that property of section 164 which, as amended in 1917 (St.1917, Ch. 581, p. 827), was in part as follows: ‘All other property acquired after marriage by either husband or wife, or both, including real property situated in this state, and personal property wherever situated, acquired while domiciled elsewhere, which would not have been the separate property of either if acquired while domiciled in this state, is community property; * * *’ In its earlier opinion the court stated (19 P.2d, at page 784): ‘The second reason why, in our opinion, section 164 of the Civil Code is constitutional, as applied to property brought into this state after 1917 by one who becomes domiciled here after that date, is that even if the 1917 amendment to that section does constitute a deprivation of a property right in the constitutional sense, which we have already held it does not, such legislation is permissible under the power of the Legislature to control and regulate the marriage relation and its incidental property rights. Baker's Executors v. Kilgore, 145 U.S. 487, 491, 12 S.Ct. 943, 36 L.Ed. 786; Noel v. Ewing, 9 Ind. 37. It has always been part of the public policy of this state to protect the interests of the wife in marital property.’2 (See also the concurring opinion in Boyd v. Oser, 23 Cal.2d 613, at 623–624; comment, Community and Separate Property: Constitutionality of Legislation Decreasing Husband's Power of Control Over Property Already Acquired, 27 Cal.L.Rev. 49, 52.)

In the opinion of the Supreme Court upon the rehearing in Estate of Thornton, however, that reasoning was not adopted. (Estate of Thornton, 1 Cal.2d 1, 33 P.2d 1, 92 A.L.R. 1343). Afer setting forth that the property was acquired while Mr. and Mrs. Thornton were domiciled in Montana and that, under the laws of that state, it was the husband's separate property, subject only to the wife's dower rights, the Supreme Court stated (1 Cal.2d, at page 3, 33 P.2d at page 2): ‘Further reflection upon the question presented convinces us that under the compulsion of well-understood constitutional provisions, as well as settled pronouncements of this court, no alternative remains but to declare the above-quoted provision [of section 164 of the Civil Code] unconstitutional and void.’

In that opinion in Estate of Thornton, 1 Cal.2d 1, at pages 3–4, 33 P.2d 1, at page 2 the Supreme Court further said: ‘We then must consider whether separate property acquired by either spouse in a common-law state can be converted to common property by the mere act of bringing it into a community property state and establishing a domicile therein. Again this court has repeatedly spoken with a negative answer over a period of more than fifty years. [Citations.]’ The court also stated (1 Cal.2d, at page 5, 33 P.2d at page 3): ‘So long as we are bound by the holding that to limit the right of one spouse by increasing the right of the other in property acquired by their united labors is the disturbance of a vested right, we entertain no doubt of the application of at least two provisions of the Fourteenth [a]mendment to the Constitution of the United States. If the right of a husband, a citizen of California, as to his separate property, is a vested one and may not be impaired or taken by California law, then to disturb in the same manner the same property right of a citizen of another state, who chances to transfer his domicile to this state, bringing his property with him, is clearly to abridge the privileges and immunities of the citizen. Again, to take the property of A and transfer it to B because of his citizenship and domicile, is also to take his property without due process of law. This is true regardless of the place of acquisition or the state of his residence.’

It may be that a reconsideration of the governing principles of constitutional law would lead to a qualification of the reasoning exemplified in the Thornton case so as to sustain the legislative concept of quasi-community property with respect to the determination of property rights in the event of divorce. (See Recommendation and Study Relating to Inter Vivos Marital Property Rights in Property Acquired While Domiciled Elsewhere, 3 California Law Revision Commission Reports, Rec. & Study at I–5 et seq. (1961); Schreter, ‘Quasi-Community Property’ in the Conflict of Laws, 50 Cal.L.Rev. 206, 226–244.) But it is not within the province of this court as an intermediate court of appeal to undertake a re-examination of what we understand to be the applicable law under the prior decisions of the Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937; Goncalves v. S. F. Unified School Dist., 166 Cal.App.2d 87, 89, 332 P.2d 713.)

There was no error with respect to the provision of the judgment requiring the defendant to discharge the obligations for income taxes. In Hall v. Hall, 42 Cal.2d 435, at page 442, 267 P.2d 249 at page 253 the Supreme Court stated: ‘The principles which the trial judge must apply in awarding alimony are few and necessarily general in nature. An allowance for support must be made ‘having regard for the circumstances of the respective parties.’ Civ.Code, § 139. In making that award the trial court has a wide discretion. Baldwin v. Baldwin, 28 Cal.2d 406, 413, 170 P.2d 670. ‘Circumstances' includes ‘practically everything which has a legitimate bearing upon the present and prospective matters relating to the lives of both parties.’ Lamborn v. Lamborn, 80 Cal.App. 494, 499, 251 P. 943, 945. ‘[i]t refers to the needs of the parties and the abilities of the parties to meet such needs; and in measuring such circumstances, consideration should be given to property owned and obligations to be met as well as to ability to earn and actual earnings.’ Becker v. Becker, 64 Cal.App.2d 239, 242, 148 P.2d 381, 383.'

In resolving the problem of affording reasonable support to the plaintiff, the trial court was entitled to consider the serious situation that would arise if she had to share the burden of the income tax obligations and if, by reason thereof, her interest in the family residence should be endangered. The court did not abuse its discretion in making the challenged order so as to safeguard the wife in the enjoyment of a reasonable provision for her support. (See Bowman v. Bowman, 29 Cal.2d 808, 811, 178 P.2d 751, 170 A.L.R. 246.)

The judgment is affirmed.

As to the defendant's appeal, I concur.

As to the plaintiff's appeal, I dissent because I do not agree that the 1961 amendment to Civil Code, section 146, is unconstitutional as applied to the facts of this case. Estate of Thornton, 1 Cal.2d 1, 33 P.2d 1, decided that the Legislature could not make change of domicile the occasion for a transfer of property by operation of law. That decision did not pass upon the power of the Legislature to provide for a transfer of property upon the dissolution of a marriage as a means of adjusting the equities between spouses. (See 3 California Law Revision Commission, Reports, Recommendations and Studies, p. I–8, I–32.)


1.  Sections 140.5 and 140.7 were added to the Civil Code and section 146 thereof was amended in 1961, and the legislative changes became effective after the action for divorce was commenced. Section 140.5 is as follows: ‘As used in Sections 140.7, 141, 142, 143, 146, 148, 149 and 176 of this code, ‘quasi-community property’ means all personal property wherever situated and all real property situated in this State heretofore or hereafter acquired: ‘(a) By either spouse while domiciled elsewhere which would have been community property of the husband and wife had the spouse acquiring the property been domiciled in this State at the time of its acquisition; or ‘(b) In exchange for real or personal property, wherever situated, acquired other than by gift, devise, bequest or descent by either spouse during the marriage while domiciled elsewhere. ‘For the purposes of this section, personal property does not include and real property does include leasehold interests in real property.’ Section 140.7 is as follows: ‘As used in Sections 141, 142, 143, 146, 148, 149 and 176 of this code, ‘separate property’ does not include quasi-community property.' As amended in 1961, section 146 is in part as follows: ‘In case of the dissolution of the marriage by decree of a court of competent jurisdiction * * * the court shall make an order for disposition of the community property and the quasicommunity property * * * as follows: ‘(a) If the decree is rendered on the ground of adultery, incurable insanity or extreme cruelty, the community property and quasi-community property shall be assigned to the respective parties in such proportions as the court, from all the facts of the case, and the condition of the parties, may deem just. ‘(b) If the decree be rendered on any other ground than that of adultery, incurable insanity or extreme cruelty, the community property and quasi-community property shall be equally divided between the parties.’

2.  While, in view of the conclusion we reach in this case, it is not necessary to discuss specifically the validity of a retroactive application of the 1961 legislation, it is to be noted that immediately after the quoted portion of the earlier opinion, the Supreme Court also stated: ‘Although it is true that in Estate of Frees and Estate of Drishaus, supra, it was held that this state would not be justified in converting separate property into community, where the husband's rights to the property had vested under the laws of this state, the conversion as applied to property when it is brought into this state after 1917 stands on an entirely different basis. Where the property was brought into this state before 1917 the conversion was involuntary, but as applied to property brought into this state after 1917, the conversion was dependent upon its owner's decision, with full knowledge of the existing law, to bring the property here and to take up a domicile here. When the property was brought here by Mr. Thornton in 1919 and he became domiciled in this state, he was charged with knowledge of the then existing California law and had notice that if he brought the property into this state his rights therein would be limited. Mr. Thornton must be held to have impliedly consented to the conversion by his voluntary assumption of residence here and by voluntarily bringing the property here. 20 Cal.Law Rev. 201.’

FORD, Justice.

SHINN, P. J., concurs.

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