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state of JUAN ABLE VARGAS, JR., Deceased. MILDRED VARGAS, Petitioner and
Appellant, v. JOSEPHINE VARGAS, Claimant and Respondent
Civ. No. 41800
Court of Appeal of California, Second Appellate District, Division Two
36 Cal. App. 3d 714; 111 Cal. Rptr. 779; 1974 Cal. App. LEXIS 715; 81
A.L.R.3d 1
January 14, 1974
PRIOR-HISTORY: Superior Court of Los Angeles County, No. P 550 285, Robert
W. Kenny, Judge.
COUNSEL: Ronald L. Katsky, Peter H. Kruse and Lawrence Earl Logue for
Petitioner and Appellant.
Ervin M. Roeder, N. E. Youngblood and Barry T. Harlan for Claimant and
Respondent.
JUDGES: Opinion by Fleming, J., with Roth, P. J., and Compton, J.,
concurring.
OPINION BY: FLEMING
OPINION
For 24 years Juan Vargas lived a double life as husband and father to two
separate families, neither of which knew of the other's existence. This
terrestial paradise came to an end in 1969 when Juan died intestate in an
automobile accident. In subsequent heirship proceedings the probate court
divided his estate equally between the two wives. Juan's first wife Mildred
appeals, contending that the evidence did not establish Juan's second wife
Josephine as a putative spouse, and that even if Josephine were considered a
putative spouse an equal division of the estate was erroneous. 1
FOOTNOTES
1 For an earlier appeal concerning appointment of an administrator for
Juan's estate, see Vargas v. Superior Court, 9 Cal.App.3d 470 [88 Cal.Rptr.
281].
Mildred presented evidence that she and Juan married in 1929, raised three
children, and lived together continuously in Los Angeles until Juan's death
in 1969. From 1945 until his death Juan never spent more than a week or 10
days away from home. They acquired no substantial assets until after 1945.
Josephine countered with evidence that she met Juan in 1942 while employed
in his exporting business. They married in Las Vegas in February 1945 and
went through a second marriage ceremony in Santa Ana in May 1945. Josephine
knew Juan had been previously married, but Juan assured her he had acquired
a divorce. In July 1945 they moved into a home in West Los Angeles and there
raised a family of four children. After 1949 Juan no longer spent his nights
at home, explaining to Josephine that he spent the nights in Long Beach in
order to be close to his business, but he and Josephine continued to engage
in sexual relations until his death in 1969. He visited Josephine and their
children every weekday for dinner, spent time with them weekends, supported
the family, and exercised control over its affairs as husband and father.
Throughout the years Josephine continued to perform secretarial work for
Juan's business at home without pay.
The foregoing evidence amply supports the court's finding that Josephine was
a putative spouse. An innocent participant who has duly solemnized a
matrimonial union which is void because of some legal infirmity acquires the
status of putative spouse. ( Estate of Foy, 109 Cal.App.2d 329, 331 [240
P.2d 685].) Although Josephine's marriage was void because Juan was still
married to Mildred, Josephine, according to her testimony, married Juan in
the good-faith belief he was divorced from his first wife. Her testimony was
not inherently improbable; her credibility was a question for determination
by the trial court ( Estate of Goldberg, 203 Cal.App.2d 402, 412 [21
Cal.Rptr. 626]; Estate of Long, 198 Cal.App.2d 732, 737-738 [18 Cal.Rptr.
105]); and court acceptance of her testimony established her status as a
putative spouse.
The more difficult question involves the equal division of Juan's estate
between Mildred and Josephine.
California courts have relied on at least two legal theories to justify the
award of an interest in a decedent's estate to a putative spouse. (Luther &
Luther, Support and Property Rights of the Putative Spouse, 24 Hastings L.J.
311, 313-317; see also Annot., 31 A.L.R.2d 1255, 1271-1277.) The theory of
"quasi-marital property" equates property rights acquired during a putative
marriage with community property rights acquired during a legal marriage. (
Blache v. Blache, 69 Cal.App.2d 616, 624 [160 P.2d 136].) Subsequent to the
time of Juan's death this theory was codified in Civil Code section 4452:
"Whenever a determination is made that a marriage is void or voidable and
the court finds that either party or both parties believed in good faith
that the marriage was valid, the court shall declare such party or parties
to have the status of a putative spouse, and, if the division of property is
in issue, shall divide, in accordance with Section 4800, that property
acquired during the union which would have been community property or
quasi-community property if the union had not been void or voidable. Such
property shall be termed 'quasi-marital property.'"
A second legal theory treats the putative marriage as a partnership: "In
effect, the innocent putative spouse was in partnership or a joint
enterprise with her spouse, contributing her services--and in this case, her
earnings--to the common enterprise. Thus, their accumulated property was
held in effect in tenancy-in-common in equal shares. Upon death of the
husband, only his half interest is considered as community property, to
which the rights of the lawful spouse attach." ( Sousa v. Freitas, 10
Cal.App.3d 660, 666 [89 Cal.Rptr. 485].)
In practice, these sometimes-conflicting theories have proved no more than
convenient explanations to justify reasonable results, for when the theories
do not fit the facts, courts have customarily resorted to general principles
of equity to effect a just disposition of property rights. ( Coats v. Coats,
160 Cal. 671, 678 [118 P. 441].) For example, in Brown v. Brown, 274
Cal.App.2d 178 [79 Cal.Rptr. 257], the court found that a legal wife's
acquiescence in a putative wife's 28-year marriage equitably estopped the
legal wife from claiming any interest in the community property.
The present case is complicated by the fact that the laws regulating
succession ( Prob. Code, 220 ff.) and the disposition of marital property
( Civ. Code, 4800 ff.) are not designed to cope with the extraordinary
circumstance of purposeful bigamy at the expense of two innocent parties. 2
The laws of marital succession assume compliance with basic law ( Civ. Code,
3548) and do not provide for contingencies arising during the course of
felonious activity. For this reason resort to equitable principles becomes
particularly appropriate here. "Equity or chancery law has its origin in the
necessity for exceptions to the application of rules of law in those cases
where the law, by reason of its universality, would create injustice in the
affairs of men." ( Estate of Lankershim, 6 Cal.2d 568, 572-573 [58 Cal.Rptr.
1282]; see also, Holy Trinity Church v. United States, 143 U.S. 457, 472 [36
L.Ed. 226, 232, 12 S.Ct. 511]; Lynch v. Overholser, 369 U.S. 705, 710 [8
L.Ed.2d 211, 215, 82 S.Ct. 1063].) Equity acts "in order to meet the
requirements of every case, and to satisfy the needs of progressive social
condition, in which new primary rights and duties are constantly arising,
and new kinds of wrongs are constantly committed." ( Wuest v. Wuest, 53
Cal.App.2d 339, 346 [127 P.2d 934].) Equity need not wait upon precedent
"but will assert itself in those situations where right and justice would be
defeat
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