*1 No. 6317. Bank. June 1954.] [Sac. v. ELLS Appellant, HARROLD,

ELLA E. Plaintiff and Appellant. WORTH Defendant HARROLD, *2 for Livingston and Louis F. DiResta Plaintiff and David Appellant. Diepenbroek A. Diepenbroek & Wulff and I. for

Devlin, Appellant. Defendant and action

SHENK, J. this for In divorce a decree was entered 1, 1951, purporting November of date to conform Appeal the District Court of direction on a former plaintiff provisions certain financial of the inter- locutory decree. defendant were

Plaintiff and married on November for They separated the first time in 1936. the fall of 1944. 1945, they separation agreement entered into a June, In which all rights to settle and future purported relationship. marital arising September, out of the March, again reconciled but in they separated. became plaintiff commenced the Thereafter action for cruelty. charging extreme The divorce, February By 1949. that decree the concluded that reason of found and their recon- ciliation, executory provisions had abandoned the agreement. It made an separation award $400 years support for five and maintenance of the month community property equally plaintiff. It divided between parties. appealed pro- from the financial portion that thereof visions denying her full relief demanded. defendant did not Appeal The District held Court an action ground cruelty nonoffending extreme to more than one-half party entitled citing property, Tipton v. Tipton, Cal. 443 the trial earnings and that court should have considered the accruing prior to defendant of the final decree determining (Harrold Harrold, estate. pertinent Cal.App.2d portions Appeal of the District Court of page are on “. . interlocutory judgment 609 and are as follows: . the except affirmed, portion ... as to relating to a division which estate, is remanded to the trial court with instructions determine the division of the amount of community estate as indicated herein. ...” parties stipulated Before retrial accounting July 31, 1948, should cover a to three months prior to the date the final decree. From findings made that, following the retrial the court concluded and ordered degree the final be entered November 1, 1951, and that the *3 August accounting period should terminate 1951. It during period $89,904 found that this the sum of accrued to community; $88,224 that remained in community estate, pay and ordered that the defendant plaintiff to the $45,112 By her share. this division she was awarded per 51.13 cent of the total estate full settlement her community property interest. plaintiff’s appeal part

The is from that specified “which that shall have and receive from $45,112.00.” the defendant the sum of She makes ten contentions. Six relate to the court’s determination of the community earnings amount allocable to out of the defend- ant’s income. These disposed total contentions will be before consideration the others. up

The estate is made of the defendant’s earn- ings enterprises from two automobile which were the de- separate property. fendant’s Other income from these busi- return on nesses was determined to a the" investment of his separate capital. consisting Numerous exhibits of the de- tax books, fendant’s records and income returns were intro- evidence, apparent duced in and is findings the court’s large upon based to a extent these plain- were exhibits. The earnings to as contrasted tiffs seeks show that defendant’s from the return his investment these businesses were with greater far than the court. found applicable rule of

The law to allocation is estate under these circumstances stated Huber, page Huber 27 Cal.2d at 792 [167 708] regard “In rule is where the earnings, as follows: to separate prop operating husband is a business which is his is to erty, income such business allocated separate property accordance the extent to which it with capital or his investment. is allocable to husband’s efforts ; (Estate Gold, 170 Cal. Witaschek v. 12] ; 3 Cal.Jur. Witaschek, Cal.App.2d ” Community 46.) 10-Yr.Supp., Property, § During period the defendant received accounting salary a enterprises, Company, the Northern Motor one his $1,000 month nine after which per months, for a doing and was company ceased business dissolved. business, other Ellsworth defendant received his salary $2,000 month Harrold until June Company,, accounting period thereafter until the end $11,374 $2,200 a he a bonus month. addition received corporate $1,430 di- attendance various meetings. earnings all of $89,904, rectors’ These totaled community property. to be which the court found profits Company Harrold Ellsworth varied during $100,000 $135,000 accounting approximately income produced practically all of the defendant’s period. community earnings. There substantial other than his is company prosperity effect owes its evidence to the large franchise; business part to a Ford dealer’s that this competent personnel; that the is with administrative staffed opera part an active its routine defendant does take personal matters, ; frequently absents himself tions that he policy matters primarily he concerned with and that virtually operation of the business. defendant position he company, in a where can sole owner if he salary to do so. greater allocate a to himself chooses *4 accept con “the cannot The contends that arbitrary by to Harrold as clusive the determination urges salary.” the consideration evi amount of his She indicated. But it is that above dence at variance with divergent duly if the trial court has considered the sufficient impressed by has been factual situations and evidence evidence is substantial This to the defendant. more favorable per allocable to $89,904 is thereon that finding based and the not efforts should defendant’s earnings by virtue of the sonal 23 Cal.2d (Estate Bristol, appeal. be disturbed Pac. Cal.2d Co., Southern Crawford Appeal held the District Court prior theOn his contribu- fairly represented salaries that the defendant’s pages 607 and of his businesses. It stated tion to income of the record examination from our 608: “We are convinced to follow the conscientiously endeavored that the trial court equitable make an Huber case and to rule as enunciated earnings community as was personal allocation of income and dis- facts and circumstances particular under warranted ’’ language as a quoted served present case. closed proceedings. The in the guide to the trial court including average earnings, allocation to annual greater than accounting period is during bonuses, average income although the overall prior proceedings, in the In these circum- businesses had decreased. of the defendant's equally applicable to this quoted language is stances, the above tó is that she is entitled plaintiff’s seventh contention accumulating community property on her interest share accounting period. By this contention she does during the in from an seek recover her share of interest earned not to community property. (See Civ. vestment §§ in here 687.) appear not that the funds does or increment. or earned interest volved were invested recovery sought upon the control and is based defendant’s equal” existing interest in plaintiff’s “present, use of the (See community property as it is accumulated. Civ. funds defendant had Code, 161a.) While the § given him power virtue possession he so his did property for the benefit manage control 172a.) (Civ. 161a, 172 and When community. Code, §§ husband over the com power pending a divorce is entry of final decree. munity property exists until Cal.App. 581; Kobsted, (Lord Hough, Chance F.Supp. 65, 69.) ; Cummings, In re 434, section 1915 of Civil Code is defined in Interest or by law fixed compensation allowed “the money.” ap It is forbearance, or detention use, money using the defendant was parent *5 plaintiff meaning the within that section and she is not en- titled to interest thereon. plaintiff’s eighth contention is that since she was grounds

awarded the on of extreme cruelty she should substantially be awarded more than one-half of the property prior under the in the mandate the decision provides part: Civil in “. . . One. ground adultery, If the decree is on the rendered incurable insanity community property cruelty, extreme the shall assigned respective proportions be in the from all court, case, the facts and the condition just.” In parties may deem all other the com- cases munity property equally parties. must be between the divided (Civ. §146, in Code, supra, Two.) It is stated subd. opinion prior page on court at 608: “The appeal, inference derived from this code section is that the nonoffend- ing party more one-half of entitled to than granted ground where the of ex- divorce is cruelty. (Tipton Tipton, treme P. [288 .)” support argument properly . . of her that she 65]. “substantially” be should more than one-half of the awarded on in property, plaintiff relies a statement Quagelli Quagelli Cal.App. 172, page (1929), 99 at P. : . rule “. . all cases the uniform has been ground cruelty that where the on decree is extreme substantially greater award to unoffending spouse must be than that to plaintiff the one who is at fault.” The asserts per the 51.13 her is cent awarded not “substantially greater” by than per the 48.87 cent retained the defendant.

In Gorman v. Gorman, Cal. 378 it 313], was held though impliedly requires section 146 that more than half of community property be awarded to the innocent party, limit the does not otherwise discretion of the trial in making award; portion court depend that the should upon particular of each case, circumstances and that this court would be legal slow to interfere with exercise of dis by (See cretion (1944), trial court. also Crouch Crouch 63 Cal.App.2d 747, Quagelli case, supra, upon plaintiff relies, recognizes which the fore going principle language following page in the 176: “What depends upon difference should the circumstances each case, matter to be that is a determined the trial . . .” the first instance. cannot said as matter law that the award to the statutory provisions, nor that compliance with is not case an abuse discretion o£ the record reveals an examination community estate. apportioning are that under the mandate final contentions plaintiff’s entering erred new prior appeal the trial court entering decree, years More two and ten months than November 1951. entry of interlocutory decree elapsed between 132 of the Civil the trial court. Section *6 year expired has after the part: “When one Code states on of interlocutory judgment, the court motion entry of such motion, may upon or own enter the final party, either its any appeal . but if judgment granting ., the divorce . interlocutory judgment or motion for a new taken from the not until made, shall be entered finally disposed nor if appeal of, then, or has been motion granted reversed.” the motion has been appears provisions It of section 132 are as a one or applicable whether the limited an Webster Webster, judgment. v. 216 whole appealed only 485 from Cal. [14 portion interlocutory determining property decree of rights of parties. pending While the was a “final decree” of divorce was entered the trial court. The court entry improper page held the to be and stated at 494: “Sec entry of of prohibits tion 132 the Civil Code a final decree of ‘if taken from pending] [and judgment.’ pre section been This held to entry though clude the of a final be of portion determining Cory property rights parties.” of Cory, (See also v. 71 P.2d 497]; Ritter Cal.App.2d 309 Ritter, 103 Cal. [162 Superior Newell App. 583 P. Court, 27 Cal. [284 App. 343 P. [149 132, interpreted by as the Webster cases,

Section and other provides that the final decree cannot be entered at certain designated specify may times but it does not when it following a reversal on Here it was entered day designated the same retrial construing financial issues. Neither section 132 nor the eases expressly prohibit entry question it at that time. The by implication is whether the intended or other- delay entry judgment beyond wise to of the final such a time, when it the section. determination this enacted

84 question requires investigation purpose into the and reason providing delay entry a between the initial and the decrees divorce actions in this state. entry of an prior provided (Stats. a final decree of divorce was first 1903 pp. 76) by adding 131 and sections 132 to the Civil years later, Code. Two v. Superior Court, Grannis 146 Cal. 245 P. 106 Am.St.Rep. 23], this court at some length assigned reasons for the addition new sections. (See also Pereira, Pereira v. P. Am.St.Rep. 107, ; Deyoe Superior Court, L.R.A.N.S. 28, Am.St.Rep. 73].) appears Cal. 476 early legislation purpose those cases that the of the 1903 was upon policy hasty based state which does not favor matrimony, dissolution of the bonds of the stand point marriage, considerations affected personal rela standpoint past but and future tionships. following language appears: In later cases the provision ‘The 132 of the Civil contained granting adopted recognition . . . fact that affecting variety perform a divorce the court has a duties to property rights parties the future welfare of their deemed advisable children; those and was possible, matters, far as should that in such cases all of those granting of di finally adjusted in connection with the ’ ” quot 485, 494, (Webster supra, vorce. *7 Webster, v. 343, 345 ing Superior Cal.App. from Newell v. Court, It is to be noted that both the Webster the Newell and during pendency cases a final decree was entered the of an appeal interlocutory judgment, entry from an and the of a judgment prohibited by at that time was the clear lan guage present of section 132. We are not concerned in the appeal case with an the decree as such. decree, That insofar it ordered the dissolution of as the bonds matrimony, of was affirmed and became the law of the case. Any question in no longer connection therewith was and is including right to the final open, the decree as affected involving matters, matters. items the ad Such period pro and the rata division of the accounting ditional adjudicated subsequent on community property, were the Appeal. hearing directed the District Court of This as adjudication any proper not in sense appeal from that does contemplated by the appeal an constitute entry of enacting stay section 132 such as would the the final stay of such a decree, purposes since none of the stated are applicable. (See Webster, supra, Webster v. here 494; 9; Pereira, supra, Pereira 156 Cal. Grannis Superior 245, 248.) supra, Court, foregoing apparent the that there no JFrom delay entry why sufficient trial court should the reason beyond express prohibitions reason appears good 132. there to be for its Furthermore accounting at the entry time of determina If, prohibitions plaintiff accomplish, tion. seeks to applied section 132 are the same manner as to affirmed, decree heretofore final decree could not entered until taken here- from had been determined the time for had ex pired. On an theory this extend the would during might which earnings the defendant’s accumulate to the community though and, affirmed, even accounting by would necessitate another court the community accumulating estate since the close of the previous accounting period during time the appeal pending. By appealing again again was judg from such might ments extend her status indefinitely marital purpose sharing earnings the defendant. In the appeals case there have been two more years than five elapsed entry have since the inter locutory nothing decree. There section 132 of the Civil dealing nor problem, with the in cases which presented dicates that under the circumstances here a new interlocutory decree should be entered.

Our attention has been directed to the decision in DeVall DeVall, 102 Cal.App.2d granted there an divorce and there- after a new trial was ordered the defendant’s motion. The second trial limited to the of question consideration involving property. division of At the termi- signed nation thereof the order effect that the previous remain in effect. interlocutory decree On the same day motion, granted the final court, its own decree of divorce, year having elapsed more than a since original interlocutory decree. On it was held that *8 the entry of of expiration the final decree before the the time improper. second was The present essential in the case difference is that factual here interlocutory there been an affirmance decree sever- of case ing marital in the DeVall relationship, whereas interlocutory appealable still there was an decree time final decree was entered. had

The contention on he defendant’s sole his that legitimate expenses should have been and substantial which community before a "division the total estate deducted expenses alimony, was These include court costs made. personal plaintiff, and all sorts counsel fees awarded to was not expenses. The that defendant trial court found no expenses since allow personal to an offset for entitled no would be ance made and that there plaintiff, was monthly a in the if there had been difference final result expenses community income to offset current division during the single or a income division total granted on accounting period. When divorce is discre cruelty trial court has wide ground of extreme in the well as expenses tion in the allowance costs rules. established within division this discretion presented here be said on the record cannot has been abused. affirmed.

Carter, J., Spence, J., concurred.

TEAYNOE, J.I concur. agree holding opinion I in the majority with the that the properly a final of divorce, trial court decree but entered opinion reaching am this result we should over Webster, rule Webster case, one,

In the Webster was part dividing majority community property. opinion distinguishes ground case that there the final decree the Webster during pendency of an divorce was entered decree, whereas case following after on retrial entered Appeal stating order inter of the District Court “the except portion locutory judgment ... as to that affirmed, (Harrold ...” relating to a division of the estate. Cal.App.2d 601, Harrold, part majority opinion states that this order affirmed the dissolving and holds the order after that an retrial *9 87 entry stay the not such an as will the property issues is of a under section 132 of the Civil final decree Code. only the part first was that of plaintiff’s

Since community interlocutory dividing property, decree the part dissolving marriage was of that decree not before Appeal (American Court of for review. Enter District Winkle, ; 210, v. Van 39 Cal.2d 216 P.2d Inc. prise, [246 935] 664, 168 P. Weinsveig, Ganahl Lbr. Cal. 667 G. Co. [143 Smith, 360, 163 362 P. Ann. Whalen v. [125 part affirm not, therefore, Cas. 1913E It could that only interlocutory decree, and its order reversed the part (Ibid.; decree before that that was it review. 451].) Follow Denman v. 14 Cal.2d 755 P.2d Smith, [97 ing reversal issues, that and retrial of the the trial court division property. present ordered a of the again dividing part judgment that community property. if the The situation is the same as part interlocutory dividing decree property appealed were from for the time. fact first prior appeal, reversal, partial that there was a new prohibitory if cannot avoid the effect section properly case. section was construed the Webster Even appeals parts if there were several of the inter locutory actually “any” were affirmed, the word interpreted case, prohibit the Webster would entry of a final decree of for under case divorce, part if final decree cannot be entered interlocutory pending. decree is majority opinion distinguishes DeVall v. 102 DeVall, Cal.App.2d 53 605], present case [226 on the ground distinguishes same it the Webster ease saying that in the DeVall case there was an interlocutory decree still appealable at the time the final decree was entered, whereas part case the the interlocutory dis solving had been prior affirmed In the DeVall ease a new trial on the relating issues division of the granted after entry decree. At the conclusion previous new trial it was ordered that interlocutory de cree in effect, remain and on day, the same but more than one year entry original after interlocutory decree, a divorce was entered. This final decree was re appeal, authority versed on of Webster v. Webster, supra; Superior Court, Newell v. Cal.App. 27 P. Cal.App. ;

998]; Ritter Ritter, Cory Cal.App.2d Section Cory, any appeal taken from the that “if states shall made, or motion for a new trial finally until motion or been not be entered judg disposed granted nor the motion has of, then, been if added.) ment In the DeVall case the motion (Italics reversed.” appeal, held on follow granted, for a trial was and was new ease, that a final decree of ing reasoning of the Webster year had elapsed until one divorce could not be entered trial. In on new the time but the appeal, decree was reversed case the of divorce can majority hold a final decree *10 entry the year elapsed from the has before one in holding with that the irreconcilable This is retrial. reasoning of inconsistent with the the case, DeVall and is case. Webster interpretation given in my opinion

In the section 132 case was erroneous. Since section 132 is concerned Webster solely of the relationship the dissolution marital with interpreted only to mean that when an parties, it should provisions taken de- is marriage dissolving entry of a cree prohibited finally until that disposed of divorce by or in case by by retrial, or of another affirmance Furthermore, principal given affirmance thereof. reason holding in case persuasive. the Webster is not In that “ granting said ‘that a divorce the has a case it perform property rights variety affecting of duties to parties the future welfare of those and parties' and [by Legisla- children; it was deemed advisable their matters, possible, all of far such cases those ture] finally adjusted granting in connection with the should be ’ ” (Webster Webster, 485, of a 494 divorce. [14 522].) There no basis this statement in either the alimony nor or other cases this court. Neither statutes “finally adjusted” at of children are the time custody of divorce; both can be modified at granting a (Civ. Code, 138, 139.) Moreover the thereafter. time §§ required community prop- divide the is not trial court custody time of inter- erty problem at the or decide the separate decree, can those matters locutory but determine 1, 488, P. 134 (Pereira Cal. Pereira, actions. 880]; Brown, Brown Am.St.Rep. 23 L.RA.N.S. Elms v. Cal.2d Elms, Legislature 102 A.L.R. Even if the deemed rights custody finally it advisable that should adjusted objective by the divorce action, is defeated long the Webster If the parties, court, rule. foresee litigation they over matters, may those leave them to be de- separate later or in in- prolonging termined actions to avoid definitely marriage. the dissolution of the given support holding other reason the Webster prolonga- case is that the favors marriage. tion of the Legislature, however, by ex- press expiration terms of section 132 fixed year a one entry after decree as the time for the of the final decree of the absence of an from the trial court’s determination that a granted. divorce should be expresses legis- 132 also Section policy favoring lative the restoration of the single persons status of enabling remarry them to after expiration year of the one period. amply As illustrated case, permits the Webster rule the frustration policies these litigious spouse’s repeated appeals provisions of the interlocutory dividing the com- munity property. my opinion purpose the obvious appeal and provision new prevent of section 132 is to the dissolution of right finally until the thereto is finally settled. Once it is proper determined that a divorce is year period and the one elapsed, purpose of fully 132 is accomplished. *11 holding in the Webster harmony case is also out of general

with the giving finality parts rules to severable judgments appealed subject not from or not to a motion for a new partial trial. If a is taken from which the issues severable, parts determined are not appealed from become beyond scope final and are review appellate of the (American court. Enterprise, Inc. v. Van Winkle, 39 supra, 210, 216; Cal.2d G. Ganahl Lbr. Co. Weinsveig, v. supra, 667; 168 664, Cal. v. Smith, Whalen supra, 163 362.) Cal. If part appealed from is re- versed, and a new trial therein, is had issues involved parts appealed not from are (Smith not affected. Anglo-California Trust Co., 205 Cal. Neill v. Refining Five C Co., Cal.App.2d P.2d 818].) Similarly, a may new be had the issues affecting of a without part severable

involved 662.) (Code Proc., parts. Civ. the other §§ light gen these interpreted in the 132 should be Section judgments divorce apply to rules, they eral should assuming for persuasive for there are no reasons actions, The reliance in exception an 132 establishes to them. “any” in that sec case on the use of the word Webster light purpose of sec persuasive. In the tion is not appeals, means partial governing tion and the rules “any” interlocutory decree dis part from the of the authority appeals from solving marriage. Moreover, interlocutory given is the same in divorce actions decrees grants authority section of the of Civil Procedure Code (§ 963, 2.) appeals judgments generally. subd. from part of the inter frequent from actions, appeals divorce property demonstrate locutory dividing decree decreeing part a dis from the ordinarily that it is severable supra, 156 marriage. Pereira, (E.g., Pereira solution 681, 685; Wilson v. 1, 10; supra, Cal.2d Elms, Elms 568].) As the 119, 122 Wilson, Cal.App.2d case these issues opinion in the majority concedes, they cannot be interdependent are not so interwoven independently of one another. considered Newell, overruled Webster case should be it should disapproved, and Cory, and DeVall cases Ritter, entered can be be held that a decree entry of from the expiration year time after the one no is interlocutory here, there decree, when, dissolving provisions provisions and the involved in issues severable property are dividing the marriage. those the dissolution involved Sehauer, J., concurred. may policy well better social

EDMONDS, J.It to allow entry of of divorce when an appeal pend- ing provisions decree deal- rights. But the ing with has stated in “if language any appeal too to be misunderstood that clear interlocutory judgment” may the final decree taken finally disposed (Civ. until of. [emphasis added].) the section Consistently, 132 § applied years. for over 20 so construed has been *12 (Webster Webster, 216 P.2d 522], and cases following decision.) capable

It evident that the seems section of abuse may prolong indefinitely wife who status almost appeals, enjoy series and thus continue to a share in Traynor earnings. the husband’s Justice allow the would final decree entered pending to be from the parts judgment, according principles to generally relating partial appeals. to Justice Shenk would to be allow that decree after an has been taken although decided, result has been to proceedings. remand the cause further Both solutions ignore specific 132; mandate both to solutions judicially legislated that extent amount to a repeal section. fundamental the courts should not substitute Legislature. of social policy

their standards for those of the body In the situation, clearly stated that no final there shall be until the final disposition judgment. If the social policy should be state to allow to obtain a notwithstanding unsettled issues remedy property rights, as to for the to accordingly. amend section 132

I purports would reverse insofar as it direct a final divorce.