KRIER v. KRIER (1946)

The defendant has appealed from a judgment which was rendered against her in a suit for partition and sale of real property impressed with a homestead which she had previously recorded. The court held that the homestead was terminated by the judgment in a former suit for separate maintenance, and that the last mentioned judgment is res judicata of her ‘right in and to said real property.’

The appellant contends that the judgment in the separate maintenance action is not res judicata of her homestead interest in the property, and that partition and sale of the land will not lie to divest her of her valid homestead right.

The plaintiff and defendant were married November 12, 1929. One daughter, who is a minor, was born as the issue of that marriage. She resides with her mother on the property in question. At the time of their marriage the plaintiff owned twenty acres of farm land in San Joaquin County, together with a small dwelling house thereon, upon which he subsequently expended $1,000 in improvements. The property was valued at $8,000. It was subject to a trust deed to secure an indebtedness of $1,800. Dissensions arose between the spouses. They separated in December, 1942. The husband then left their home. The defendant and their minor daughter continued to reside in the home. February 25, 1944, the plaintiff was granted a divorce upon default of the defendant in a Nevada court, but the complaint failed to ask for a determination of property rights and the decree did not mention such rights. The plaintiff immediately married another woman.

May 18, 1943, the defendant brought suit against her husband in San Joaquin County, California, under Section 137 of the Civil Code, for separate maintenance. On the last mentioned date, while she still lived on the property with their minor daughter, and before the Nevada decree of divorce was granted, Lillian Krier recorded a homestead on the property in question, under Section 1238 of the Civil Code. In the suit of maintenance the court rendered judgment in favor of the wife awarding to her an amount for separate maintenance and further determined that she owned ‘an undivided one-half interest in and to * * * the following described real property of the value of $1,000.00. * * * [Describing the property which is involved in this suit for partition and sale.]’ The homestead was not mentioned in the pleadings of the maintenance suit, nor was it determined by the judgment which was rendered therein. The record of the maintenance suit is not before this court, but the trial court adopted findings in this partition action to the effect that Lillian Krier held a $500 interest in the real property as previously stated, and that Mr. Krier is the owner of that property subject only to that $500 interest. The court also found, however, that the trial court was not requested to vest the homestead in the wife in the maintenance suit. We assume the court's attention was not called to the homestead in that maintenance action.

This suit for partition and sale of the real property was filed by M. H. Krier June 13, 1944, almost one year after the suit for maintenance was determined. The complaint alleges that plaintiff is the owner of said real property subject to defendant's $500 interest therein; that ‘said property is not capable of physical partition’ without material injury to the respective parties, and that it is therefore necessary to sell the same. The prayer asked that the proceeds of sale be applied to payment of defendant's $500 interest, to payment of the $1,800 mortgage, and that the balance be paid to plaintiff.

The defendant filed an answer and cross-complaint denying certain material allegations and affirmatively alleging that she held an interest in the property by virtue of the judgment in the former suit for maintenance; that she was residing with their minor child on the property, and that she recorded a homestead thereon, May 18, 1943, a copy of which is attached to the cross-complaint as ‘Exhibit A.’ The thereupon prayed that the petition for partition and sale be denied and asked the court to vest the homestead in her. Mr. Krier answered the cross-complaint, admitting the recording of the homestead, but alleging that it was terminated by the Nevada decree of divorce, and by the judgment in the suit for separate maintenance.

Upon the findings in this partition suit that the defendant and cross-complainant, Lillian Krier, held a $500 community interest in the property, that the balance belongs to the plaintiff, that the prior judgment in the maintenance suit is res judicata of the wife's homestead interest in the property, that the homestead was terminated by the judgment in that case, and that partition of the property could not be made without substantial prejudice to the parties, it was held to be necessary to sell the property. Judgment was accordingly rendered to the effect that the homestead was terminated by the judgment in the maintenance suit which became res judicata of that issue, and that the defendant and cross-complainant was entitled to no more than her $500 community interest in the property. The property was thereupon ordered to be sold. From that order of sale the defendant has appealed.

The declaration of homestead filed by Lillian Krier May 18, 1943, before the decree of divorce was rendered, was originally valid regardless of whether it was recorded on her husband's separate property or upon property in which she had a community interest as a joint tenant thereof. (Civil Code, sec. 1238.) The homestead declaration complied in every respect with the provisions of Section 1263 of the Civil Code. It was recorded by her while she was the wife of M. H. Krier, before the Nevada decree of divorce was rendered. She continued to live on the premises with their minor daughter after her husband left the home. The homestead was not invalid, nor was it abandoned.

In California valid homestead may not ordinarily be terminated by means of a suit for partition and sale thereof. Walton v. Walton, 59 Cal.App.2d 26, 138 P.2d 54; Lang v. Lang, 182 Cal. 765, 190 P. 181; 20 Cal.Jur. 611, sec. 25. This is especially true where the rights of minor children are involved in the homestead, regardless of whether it is recorded on the separate property of the husband or upon the community interests of the spouses. Civil Code, sec. 1238. It follows, under the circumstances of the present case, in which the original validity of the homestead is conceded, that the suit for partition and sale thereof will not lie, unless the prior judgment in the action by the wife for separate maintenance is res adjudicata and that it had the effect of terminating the homestead. We are persuaded that judgment was not res judicata.

In the case of Walton v. Walton, supra, which was a suit by the husband for partition and sale of property held by the spouses in joint tenancy, upon which the wife had recorded a homestead in behalf of herself and their minor child after the desertion of the husband, the judgment of the trial court to the effect that the suit for partition and sale of the property would not lie, was affirmed on appeal, While a prior action by the wife for maintenance was pending, the husband brought this suit for partition and sale of the community property. Two days after filing the complaint for partition the wife recorded a homestead on the property. She answered the complaint for partition setting up her homestead as a bar. The suit for maintenance was first tried. In that action judgment was rendered awarding to her the custody of their minor child, and granting her specified sums of money for maintenance and support. Upon that showing the court subsequently held, in the partition suit, that the homestead was valid and that the property was therefore not subject to partition and sale. The court said in that regard [59 Cal.App.2d 26, 138 P.2d 58]:

‘It follows necessarily, therefore, that since a husband, cannot in any manner, without his wife's consent, destroy a homestead declared by her on property of which he is sole owner, he cannot by an action in partition bring about the destruction of a homestead declared by her on property in which he owns a lesser estate, namely, only a joint tenancy interest.’

Section 1240 of the Civil Code provides in that regard:

‘The homestead is exempt from execution or forced sale, except as in this title provided.’ (Italics ours.)

In the Lang case, supra, the wife recorded a homestead on their community property in bahalf of herself and her husband, while they were living together on the property. There were no children as the issue of their marriage involved in the homestead right. The husband subsequently secured a divorce from his wife, by default, on the ground of her desertion. The complaint failed to mention property rights. It was not alleged there was any community property, and the homestead was not mentioned in the pleadings. In spite of that fact, the final decree set the homestead apart to the husband. The wife thereafter brought suit for partition of the community property. The husband answered her complaint alleging there was no community property since the decree of divorce had assigned the homestead to him. The trial court ordered the partition of the community interests. On appeal that judgment was affirmed. But the Supreme Court held that the divorce court erroneously set the homestead apart to the husband since it was not an issue in the divorce proceeding, no property interests having been pleaded in the complaint. The court said in that regard that ‘It is a well-established rule that in a default case the relief granted cannot exceed the prayer.’ (Citing authorities.) [182 Cal. 765, 190 P. 182.] The court further held that the husband, James A. Lang, having left his wife, and there being no children involved, he was no longer the head of the family and therefore could not claim his right under the homestead, which was therefore terminated by the decree of divorce. On that theory the subsequent petition of the wife to partition the community property was granted. Apparently the wife waived her homestead right. There is a clear distinction between the facts of that case and the present action. In this case the husband is petitioning for partition and sale of the property. He left his wife and their home. She continued to reside on the property with their minor child, and under such circumstances she recorded the homestead. She still lives with that child on the property. The Lang case recognizes the validity of a homestead recorded by the wife where there are minor children who are interested therein. The Supreme Court bases its opinion in the Lang case on its statement that ‘Here, however, the rights of minor children are not involved.’ Regarding the principle that the homestead is not affected by a decree of divorce which fails to determine property rights, when there are minor children involved, the court said:

‘Authority can be found to the effect that where the rights of children are concerned the homestead is not affected by the divorce where the decree is silent upon the question. Redfern v. Redfern, 38 Ill. 509; Holcomb v. Holcomb, 18 N.D. 561, 120 N.W. 547, 21 Ann.Cas. 1145; and Byers v. Byers, 21 Iowa 268. The cases to this effect are based upon the theory that there is still a head of a family within the meaning of the homestead acts, and that the children's rights cannot be affected by the quarrels of their parents. 2 Bishop, Marriage, Divorce and Separation, § 1210. Here, however, the rights of minor children are not involved. The only issue of the marriage was a son, who at the date of the entry of the final decree was an adult. It is not contended that defendant had residing with him upon the property in question any of the persons mentioned in section 1261 of the Civil Code upon which a claim could be based that he was the head of a family. No such questions are presented by this appeal.’ (Italics added.)

The Lang case, therefore, supports the validity of the homestead under the circumstances of this case.

The Nevada decree of divorce, which was rendered after the homestead was recorded, did not terminate the homestead. That divorce court did not attempt to determine the property rights between the spouses. It had no jurisdiction of their real property in the State of California. Taylor v. Taylor, 192 Cal. 71, 76, 218 P. 756, 51 A.L.R. 1074; 27 C.J.S., Divorce, § 330, p. 1287. The original validity of the homestead having been established, it is presumed to continue in force and the burden was on the cross-defendant in this case to show by satisfactory evidence that it had terminated. De Haven & Son Hardware Co. v. Schultz, 122 Or. 493, 259 P. 778. This, he failed to do, unless the fact that Lillian Krier might have litigated the validity of her homestead in the maintenance suit renders the judgment in that case res judicata.

We are of the opinion the judgment in the suit for separate maintenance did not terminate the prior valid homestead recorded by Lillian Krier and that it is not res judicata of that issue. The homestead was neither mentioned nor litigated in that proceeding. It is true that it might have been made an issue, and if so, its validity might have been determined in the suit for maintenance, but it was not. It is apparent from the record in this case that the validity of the homestead was raised by the pleadings for the first time in this suit for partition and sale of the property. The findings in this case affirmatively determine that ‘It is true that in said separate maintenance action * * * the plaintiff did not request the Court to set aside said homestead to her.’ It is further found in this case that the court merely awarded to the wife in the maintenance suit a specified monthly sum as maintenance, a division of certain farm equipment and a community interest to the extent of $500 in the real property in question. The finding with respect to that ‘community interest’ provides that the judgment in the maintenance action determined merely:

‘That plaintiff is hereby awarded one-half of the above described community property, as follows: An undivided one-half interest in and to the following described property:

‘An interest in the following described real property of the value of $1,000.00, towit: Said property is described as follows: [Describing the real property in question.]’

It is conceded that the foregoing $500 community interest which was awarded to Lillian Krier in the maintenance suit was her share of community funds which were invested in the property by the spouses during the time of their marriage. That interest had no bearing upon, or application to, the homestead.

A suit for separate maintenance does not necessarily involve the determination of the validity of a homestead recorded by one of the spouses. If the homestead is not tendered as an issue, and its validity is not determined in a suit for maintenance, we assume the judgment is not res judicata of that subject, and its validity may then be litigated in another action, or it may be a bar to the sale of the property on a partition suit. The same thing is true regarding the failure to determine the property rights of the spouses in a suit for divorce. Property rights may be tendered and determined in a suit for divorce, but where they are neither tendered nor determined therein, they may be litigated in another action. Callnon v. Callnon, 7 Cal.App.2d 676, 46 P.2d 988; Paduveris v. Paris, 213 Cal. 169, 1 P.2d 986; Green v. Green, 66 Cal.App.2d 50, 151 P.2d 679. In the Callnon case, supra [7 Cal.App.2d 676, 46 P.2d 990] it is said:

‘A judgment is res judicata only in so far as it is within the issues of the cause in which it is rendered. (Citing authorities.)

‘In an action for divorce the parties may seek a determination of their property rights; but, if they elect not to do so, such rights are not deemed adjudicated and are subject to determination in another proceeding. (Citing authorities.)’

In the Paduveris case, supra, suit was brought by the husband to quiet title to certain real property, after a final decree of divorce had been rendered against him by default. The divorce decree did not mention the property rights. In her complaint for divorce the wife alleged that the spouses owned community property, but the divorce court failed to determine such alleged rights. In response to her husband's contention, in his subsequent suit to quiet title, that the real estate was his separate property to which title was acquired by a previous deed of conveyance from his wife, she contended that the default of her husband in the divorce case constituted an admission on his part that it was community property, and that the divorce decree was therefore res judicata of that issue. The trial court found in favor of the husband in the suit to quiet title, determining that the deed was valid and that he was therefore the owner of the property and entitled to its possession. On appeal that judgment was affirmed. The Supreme Court said [213 Cal. 169, 1 P.2d 987]:

‘Had the decree found in accordance with said admission, the defendant would have been precluded from proving, in a subsequent action instituted by him, that the property was his separate property on the date to which the adjudication made in the divorce decree related. * * * This result would follow from an application of the general rules governing the conclusiveness of judgments. But an admission made by failure to answer is not the equivalent of an adjudication. Where the divorce decree fails to determine the property rights of the parties, the husband is not precluded from thereafter showing that the wife had relinquished her community interest pending the divorce action.’

In 1 Southern California Law Review, at page 166, it is said with respect to the conclusiveness of a decree of divorce upon the property rights of the spouses that:

‘There can be no doubt that, as to the specific property put before the court for its decision, the court's judgment is res judicata. (Citing Allen v. Allen, 1911, 159 Cal. 197, 113 P. 160.) On the other hand, where the question has been placed before the court by the pleadings and a division of the property has been asked for but the judgment has been silent as to the status of property rights put in issue by the pleadings, the decree merely awarding a divorce, it has been held that the decree is not res judicata as to the property rights of the parties.’ (Italics added.)

With respect to the conclusiveness of a former judgment between the parties to a suit, whether it is rendered in a divorce proceeding or in a different action, it is said in Section 68 of Restatement of the Law of Judgments, at page 293 and following, that:

‘(1) Where a question of fact essential to the judgment is actually litigated and determined by a valid and final judgment, the determination is conclusive between the parties in a subsequent action on a different cause of action. * * *

‘(2) A judgment on one cause of action is not conclusive in a subsequent action on a different cause of action as to questions of fact not actually litigated and determined in the first action. * * *

‘* * * Where the subsequent action is based upon a different cause of action from that upon which the prior action was based, the effect of the judgment is more limited. The judgment is conclusive between the parties in such a case as to questions actually litigated and determined by the judgment. It is not conclusive as to questions which might have been but were not litigated in the original action. This is the doctrine of collateral estoppel.’ (Italics added.)

To the same effect is the case of Green v. Green, supra.

Section 1911 of the Code of Civil Procedure provides:

‘That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto.’ See 15 Cal.Jur., Sec. 190, p. 137.

The rule with respect to the extent to which a former judgment between the same parties is an estoppel to a subsequent suit involving the same subject-matter is concretely stated in Edmonds v. Glenn-Colusa Irr. Dist., 217 Cal. 436, at page 446, 19 P.2d 502, at page 506, as follows:

“A former judgment between the parties to an action is conclusive, in all subsequent actions involving the same questions, not only as to matters actually decided in the former controversy, but as to all matters belonging to the subject of the controversy and property within the scope of the issues which also might have been raised and determined.' (Citing authorities.)' (Italics ours.)

Applying that rule to the present action, it seems clear that the proceeding for separate maintenance did not involve the question of the homestead right. That question was neither pleaded nor determined therein. The only controversy in that proceeding was the question as to how much money the husband should be required to contribute to the support of his wife and their minor child. The court did incidentally determine that the wife held a community interest to the extent of $500 in the real property. There was no controversy over the homestead. That homestead was neither actually nor necessarily involved in the maintenance suit. It was an entirely different subject matter from those which were litigated, and that judgment therefore did not estop the wife from setting up her homestead claim in this subsequent action for partition and sale of the property.

In this suit for partition and sale of the property, the burden was on the respondent and cross-defendant, M. H. Krier, to prove that the validity of the homestead was placed in issue and actually litigated and determined by the court in the prior suit for maintenance. He failed to sustain that burden. The record in this case contains no evidence upon that subject. In Section 68 of Restatement of the Law of Judgments, at page 306, it is said in that regard:

‘Where a later action was brought between the same parties upon a different cause of action, and one of the parties relied upon the prior judgment as conclusive on an issue arising in that action, the burden of proof lay upon him to show that the matter in issue was actually litigated and determined in the prior action; and if the record did not show what was in fact litigated and determined, he could introduce evidence as to the proceedings at the trial in order to show what matters were in fact litigated and determined.’

Applying the preceding statements of law to the facts of this case we are impelled to hold that the validity of Lillian Krier's homestead was neither litigated nor determined in the prior suit for maintenance, and that the judgment in that case is not res judicata of that issue in this different cause of action for partition and sale of the property. The court did not find in this action that the homestead was litigated or determined, or even mentioned in the pleading or trial of that case. At least there is no evidence in this case to support the court's conclusion ‘that said judgment in said separate maintenance action is res judicata.’

The judgment for partition and sale of the property is therefore reversed, and the court is directed to render judgment in favor of the cross-complainant validating her homestead thereon.

THOMPSON, Justice.

ADAMS, P. J., and PEEK, J., concur.