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HARLES TOMAIER, Appellant, v. MILDRED TOMAIER, Respondent
L. A. No. 18606
Supreme Court of California
23 Cal. 2d 754; 146 P.2d 905; 1944 Cal. LEXIS 197
March 2, 1944
PRIOR-HISTORY: APPEAL from a judgment of the Superior Court of Kern County.
Robert B. Lambert, Judge.
Action for divorce.
COUNSEL: Alfred Siemon for Appellant.
Edward M. Selby for Respondent.
JUDGES: In Bank. Traynor, J. Gibson, C. J., Shenk, J., Curtis, J., Edmonds,
J., Carter, J., and Schauer, J., concurred.
OPINION BY: TRAYNOR
OPINION
Early in 1940 plaintiff Charles Tomaier brought suit against defendant
Mildred Tomaier, seeking a divorce and an appropriate division of the
community property. The complaint listed as community property real estate
in Mojave, California, and in Kansas City, Missouri, stating that this land
was "held in joint tenancy." Plaintiff was granted the divorce on the ground
of extreme cruelty. (See Civ. Code, sec. 146.) The court found that all of
this property was community property and awarded a substantial part of it to
plaintiff. The District Court of Appeal reversed that part of the judgment
dividing the property as community property. ( Tomaier v. Tomaier, 50
Cal.App.2d 516 [123 P.2d 548].) On the retrial plaintiff sought to introduce
evidence that the California property was acquired with community funds with
the intention that it was to remain part of the community. The trial court
excluded this evidence declaring that it would accept no evidence that any
of the property was community property, and judgment was rendered holding
that the property belonged to plaintiff and defendant as joint tenants.
Plaintiff appeals, contending that he should have been permitted to prove
that the property was community property even though the deeds named
plaintiff and defendant as joint tenants.
Defendant, however, contends that the inadmissibility of such evidence was
determined on the first appeal, and that this ruling became the law of the
case. The opinion in that case, however, stated that "there is no evidence
in the record . . . that the property should be held other than in joint
tenancy. . . ." ( Tomaier v. Tomaier, supra, at p. 520.) The issue raised on
that appeal, therefore, was merely whether the trial court could divide as
community property land acquired through deeds purporting to create a joint
tenancy, in the absence of evidence of any intention to make it community
property. The statement by the court that "the trial court had no power to
divide the property held in joint tenancy as though it were in fact
community property" is relevant to the determination of this issue, as is
the portion of the opinion immediately following, containing a quotation
from Siberell v. Siberell, 214 Cal. 767, 773 [7 P.2d 1003], to the effect
that the use of community funds to purchase a joint estate is the equivalent
of an agreement that such funds pass from the community. Since there was no
evidence concerning the intention with which the deed was executed, such
language should not be construed as covering the uses that may be made of
such evidence. Moreover, if such language were so broadly construed it would
extend far beyond the issues before the court, and it is well settled that
dicta do not become the law of the case. ( Millsap v. Balfour, 158 Cal. 711,
714 [112 P. 450], and cases cited; Wixson v. Devine, 80 Cal. 385 [22 P.
224]; Mulford v. Estudillo, 32 Cal. 131; Hammond v. McDonald, 49 Cal.App.2d
671 [122 P.2d 332]; see Cowell v. Snyder, 171 Cal. 291, 298 [165 P. 920].)
It is not, therefore, the law of the case that evidence may not be admitted
to show that it was intended that the land in question remain community
property despite the form of the deeds.
It is the general rule that evidence may be admitted to establish that real
property is community property even though title has been acquired under a
deed executed in a form that ordinarily creates in the grantee a common law
estate with incidents unlike those under the law of community property. Thus
land may be shown to be community property even though it is granted to one
spouse alone as his or her property in fee simple. ( Jaegel v. Johnson, 148
Cal. 695 [84 P. 175]; Hammond v. McCollough, 159 Cal. 639 [115 P. 216];
Hibernia Sav. & Loan Soc. v. DeRyana, 210 Cal. 532 [292 P. 632]; Estate of
Cronvall, 220 Cal. 503 [31 P.2d 372].) Again, it may be shown that husband
and wife intended to take property as community property even though they
accepted a deed drawn to them as tenants in common. ( Trimble v. Trimble,
219 Cal. 340 [26 P.2d 477]; Steere v. Barnet, 54 Cal.App. 589 [202 P. 166].)
It has in fact been held unequivocally that evidence is admissible to show
that husband and wife who took property as joint tenants actually intended
it to be community property. ( Hulse v. Lawson, 212 Cal. 614 [299 P. 525];
Jansen v. Jansen, 127 Cal.App. 294 [15 P.2d 777]; see Minnich v. Minnich,
127 Cal.App. 1, 8 [15 P.2d 804]; Horsman v. Maden, 48 Cal.App.2d 635, 640
[120 P.2d 92].) Such rulings are designed to prevent the use of common law
forms of conveyance to alter the community character of real property
contrary to the intention of the parties. Moreover, it is well settled that
property may be converted into community property at any time by oral
agreement between the spouses ( Kenney v. Kenney, 220 Cal. 134 [30 P.2d
398]; Estate of Watkins, 16 Cal.2d 793, 797 [108 P.2d 417, 109 P.2d 1];
Title Insurance etc. Co. v. Ingersoll, 153 Cal. 1 [94 P. 94]; Estate of
Kelpsch, 203 Cal. 613 [265 P. 214]), and an agreement at the time the
property is acquired has the same effect. If the evidence establishes that
the property is held as community property; however, it cannot also be held
in joint tenancy, for certain incidents of the latter would be inconsistent
with incidents of community property.
Defendant contends that Siberell v. Siberell, 214 Cal. 767 [7 P.2d 1003],
establishes that such evidence is inadmissible. In that case property was
purchased with community funds and taken in the name of husband and wife as
joint tenants. This transaction took place in 1913, and in 1918 the property
was granted by the husband to the wife alone. It was contended that the 1913
joint-tenancy deed passed a one-half interest in the property to the wife as
her separate property and a one-half interest to the husband as community
property, thus entitling the wife to three-fourths of the property. The
court rejected this contention, stating that the property could not at once
be a joint estate and community property, and that the shares of joint
tenants are necessarily equal. It was also contended that the 1918 deed made
the entire property the wife's separate property. In response to that
argument, the court declared: "The court found that the deed of January 19,
1918, was not made by the defendant with the purpose or intent that the
community character of said property should be changed so as to make it the
separate property of the plaintiff. It is not disputed that the property was
acquired with community funds, and the testimony of the defendant with
reference to the circumstances under which the deed of 1918 was executed is
sufficient evidence to support the finding that the property was community
property. . . . In any state of the case, the court had the power to divide
the property equally." (214 Cal. 774, 775.
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