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


Civ. 17175.

Decided: October 27, 1949

Newton Van Why, Los Angeles, for appellant. Gavin Morse Craig, Los Angeles, for respondent.

This is an appeal from that part of the decree of distribution in the Estate of Editor Williams, Deceased, which directs distribution to respondent Octavia Williams, as widow of decedent, of one fourth of his estate, as comprising one half of the community property of decedent and respondent.

The record reveals that decedent and respondent were married in 1922 in the state of Mississippi. They lived together until 1929 when decedent shot his wife and fled. Although a warrant was issued for his arrest, decedent was never apprehended. He and respondent corresponded with each other until 1934, the latter's communications being sent in care of the former's aunt who in turn forwarded them to decedent. From the time decedent left respondent in 1929 she was never aware of his actual whereabouts, although she had heard from a friend that he was somewhere in Los Angeles, and since 1934 she heard nothing from him direct. She learned of his death shortly after it occurred.

It appears that decedent came to Los Angeles in 1934 where he lived with one Gertrude Williams until her demise in 1945. Whether the latter was aware of the subsisting marriage between respondent and Octavia Williams does not appear in the record. Decedent and Gertrude Williams were both employed and earning money.

On June 8, 1944, they opened a joint bank account with an original deposit of $1,200.00. At the time of the death of Gertrude Williams, about the middle of the year 1945, this joint bank account was in existence, at which time the balance in the same was $492.10. Who made the various deposits in such account is not shown by the evidence.

On January 4, 1945, Gertrude Williams purchase certain real property for the total consideration of $4,750.00, making a down payment thereon into escrow of $1,000.00 and executing a promissory note secured by a deed of trust on said property for the balance of $3,750.00. Decedent was not mentioned in the transaction. The initial payment of $1,000.00 into escrow was made by check drawn by Gertrude Williams on the foregoing joint account. Title to the property was conveyed to her. From the time of purchase of the property until the death of Gertrude Williams she and decedent lived together on the property. During this time monthly payments amounting to $750.00 were made on the promissory note, but by whom does not appear. Gertrude Williams also owned a Pontiac automobile registered in her name and appraised in the estate now under consideration at $340.00.

Gertrude Williams died testate in 1945, leaving all her property to decedent herein, designated in her will as ‘my husband.’ This will was duly probated and in due time her estate, which included the aforesaid real property and automobile, was distributed to decedent herein. The latter died testate April 9, 1947, leaving a will by which he devised all his property to his brother J. P. Williams. His estate of the foregoing real property appraised at $5,000.00; the Pontiac automobile appraised at $340.00, which had been distributed to him from the estate of said Gertrude Williams, deceased; United States Savings bonds in the joint names of Gertrude Williams and decedent, appraised at $479.00; and cash in the sum of $539.49, apparently the balance remaining in the former joint bank account with Gertrude Williams with some small addition thereto.

Following the death of Gertrude Williams, decedent herein filed a divorce action in Los Angeles against his wife, Octavia Williams, respondent herein. Summons and complaint were served by publication and on May 24, 1946, an interlocutory decree of divorce was entered. In the divorce complaint it was alleged there was no community property belonging to the parties and the decree makes no provision respecting any property rights of the parties. Decedent Editor Williams died during the interlocutory year and following his death and at the expiration of a year after the entry of the interlocutory decree, decedent's attorney in the divorce action, apparently in ignorance of his death, caused a final judgment to be entered on June 4, 1947. According to her uncontradicted testimony, respondent herein had no knowledge of the divorce action until after the death of her husband.

The foregoing will of decedent herein, Editor Williams, was duly probated and upon the filing of the final account respondent, Octavia Williams, filed objections thereto, contending that the property in said estate was community property of herself and decedent and that as his widow, she was entitled to one half thereof. The Court sustained her contentions and ordered distribution to her of one half of said one half, that is to say, of one fourth of the entire estate, both real and personal.

From such judgment the executor prosecutes this appeal and urges that the same should be reversed for the following reasons: (1) That the findings of the trial court are not supported by the evidence; (2) that the judgment is contrary to law.

We are satisfied that the judgment must be reversed as being contrary to law because of the necessity of applying the doctrine of collateral estoppel. Restatement of the Law, Judgments, § 68.

The record reflects that in the divorce action filed by decedent against respondent herein following the death of Gertrude Williams, the complaint alleged there was no community property belonging to the parties. Respondent herein was duly served by publication and made default in the divorce action. The interlocutory decree declared the decedent was entitled to a divorce on the pleaded ground of cruelty and that a final judgment should be entered one year thereafter. In the case of Brown v. Brown, 170 Cal. 1, 5, 147 P. 1168, 1170, strikingly similar to the one at bar, the rule is thus enunciated by the Supreme Court: ‘Where a defendant is served with a summons and complaint stating the facts upon which he is required to act, and he makes default, he is presumed to admit all the facts which are well pleaded in the complaint. The judgment which follows upon this sort of admission is, in contemplation of law, a complete adjudication of all the rights of the parties embraced in the prayer for relief and arising from the facts stated in the complaint, including the facts in his favor as well as those against him. The defendant here is presumed to have acceded to the proposition embraced in the complaint and to have consented that plaintiff should obtain the relief therein prayed for, upon the conditions and facts set forth in the complaint. The proceeding is equivalent to a statement by Brown to plaintiff that he did not object to a divorce for the cause alleged, based upon the theory that there was no community property existing at the time the action was begun. When judgment is rendered upon such a complaint and default, it becomes, in effect, a contract between the parties that the judgment shall be final with respect to everything properly embraced within the allegations of the complaint and in the prayer for relief.’ To the same effect are the cases of Brown v. Brown, 170 Cal. 8, 147 P. 1171; Stone v. Stone, 58 Cal.App. 415, 208 P. 993; Paduveris v. Paris, 213 Cal. 169, 172, 1 P.2d 986; Maxwell v. Maxwell, 66 Cal.App.2d 549, 552, 553, 152 P.2d 530.

In the case of Stone v. Stone, supra, 66 P.2d at page 419, 152 P.2d 530, it was held that the fact that the summons was served by publication rather than personally was not material.

In Abbott v. Superior Court, 69 Cal.App. 660, 664, 232 P. 154, 156, it was held that while the status of the parties in a divorce action is determined by what is designated by the divorce statute as ‘the final judgment,’ that insofar as the property rights of the parties are concerned the judgment of the court thereon as embodied in the interlocutory decree becomes final when each and every period has expired within which an attack could have been made by motion or appeal.

In the case now under consideration respondent is not seeking to have the judgment in the divorce case or any part thereof set aside, but she is asking for a decree in the probate proceeding establishing her alleged interest in property which, under authority of the Brown cases, supra, has been judicially determined in the divorce action not to be community property. This is a collateral attack upon the judgment in the divorce action and can not be maintained.

If law and good morals should be one and inseparable, it does appear to us to be a harsh rule which provides that a defendant in a divorce action served by publication, and as in the case at bar, at all times unaware of the institution or pendency of the action should be held to be apprised of ‘the facts upon which he is required to act, and * * * is presumed to admit all the facts which are well pleaded in the complaint’, Brown v. Brown, supra, 170 Cal. at page 5, 147 P.2d at page 1170, but we are bound by such rules and must apply them in the instant case until they are disapproved by the Supreme Court.

We have carefully examined the record in this case and have no hesitancy in saying that except for the aforesaid interlocutory decree of divorce, based on the legally proven facts and on such a deduction therefrom as is warranted by a consideration of the usual propensities of people and the course of business, the inference arrived at by the trial court that one half of the estate was the community property of decedent and respondent was fair, reasonable, and sufficient to support the judgment. Code Civ.Proc. §§ 1958, 1960.

For the reasons herein stated the judgment is reversed and the cause remanded with directions to the court below to make its order distributing the entire estate of decedent to J. P. Williams, as provided in the will of said decedent.

WHITE, Presiding Justice.

DORAN and DRAPEAU, JJ., concur.

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Docket No: Civ. 17175.

Decided: October 27, 1949

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

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