133 Cal. App. 2d 250 | Cal. Ct. App. | 1955
In this divorce action, commenced by the husband, the wife obtained an interlocutory decree upon her cross-complaint which alleged extreme cruelty. The husband appeals and contends only that the court erred in ordering that certain real property (house and lot) be held in joint tenancy by the parties hereto.
Plaintiff alleged in his complaint that the property was his separate property. Defendant alleged in her cross-complaint that it was community property.
The parties were married in August, 1949. They separated in January, 1953. Plaintiff purchased the property in 1933 and paid for it before the marriage. About three months after the marriage there was a discussion about the real property.
Respondent (wife) testified that the house needed to be repaired and remodeled; she was working and was willing to help in getting those things done; she told appellant that she would help if she had some security; he replied that he would put her name on the deed, that he would put the property in both names, community property; she paid for the Venetian blinds, linoleum, bathtub, and part of the bill for stuccoing the house; she paid approximately $1,000 for improvements on the house.
On November 2, 1949, appellant made a deed conveying the property to himself and respondent as joint tenants.
Appellant testified that about one month after the marriage respondent asked him to put the property in her name and his name; he made no reply; about one month later he said that he would put the property in both names on condition that the “place will always stay as it is and it will never be broken up in case there is a misunderstanding between” them; he said further that due to the dangerous business he was in, automobile racing, he wanted to protect her in case anything happened to him. In response to a question as to whether anything was said about putting in the deed “joint tenancy or community property,” he said: “Well, joint tenancy, I guess.” He testified further that he went with her to have the deed made, and the property was put in joint tenancy.
Appellant argues that the court did not have jurisdiction
Appellant also argues that the court ordered relief which was beyond the scope of the pleadings and the prayer of the cross-complaint. He refers (1) to the allegations of the cross-complaint wherein respondent alleged that the property was community property, and (2) to the prayer wherein she asked that the community property be apportioned between the parties. He argues further that since the court declared “it to be joint tenancy property,” the court granted relief that was inconsistent with and beyond the scope of the pleadings and prayer. It is to be noted that the prayer of the cross-complaint was also “For all proper relief.” Appellant alleged in his amended complaint that the property was held in joint tenancy upon a certain condition and that the property was his separate property. As above stated, the pleadings presented the issue as to the nature and character of the property. The declaration of the court that the property was joint tenancy property was not beyond the scope of the pleadings or the prayers.
The judgment is affirmed.
Shinn, P. J., and Vallée, J., concurred.