May a husband, living separate from his wife, the latter having custody of their children, where one of the children is killed by the negligence of a third person, and where the wife sues for and recovers her damages caused by such death, successfully maintain an action against the wife for one-half of her judgment on the theory that such recovery is community property? That is the main question involved on this appeal. The trial court, while holding that the recovery by the wife was community property, held that, under the facts of the case, the husband was estopped from claiming any portion of the judgment. The husband appeals. It is our view that the judgment should be affirmed not only on the theory that if the recovery was community property the husband was estopped from claiming any portion of the judgment, but also because, in our opinion, under the facts, the judgment recovered by the wife was her separate property.
The following time chart presents the key facts:
March 17, 1940 — appellant and respondent were married, and subsequently had three children, one of whom was named Robert.
March, 1944 — the parties separated, the respondent wife taking custody of the three children. From the separation until December of 1945, the appellant contributed to the support of the children. Thereafter, he contributed nothing.
August 9, 1945 — Robert Christiana, the son of the parties, was killed in an automobile accident.
January 18, 1946 — the respondent filed an action in Alameda
March 11, 1946 — interlocutory decree of divorce granted to respondent on default of appellant, the decree being silent as to the disposition of the community property of the parties.
April 20, 1946 — the respondent, after an ineffectual attempt to notify appellant of the action, instituted, in her own name, an action in the Superior Court of Contra Costa County to recover her damages for the wrongful death of Robert. There can be no doubt, and appellant concedes, that a wife, living separate from her husband, and having custody of their child, may maintain such an action in her own name. (Code Civ. Proc., §§ 376, 377.)
September 18, 1946 — respondent recovered a judgment. This judgment was affirmed by the appellate court on September 26, 1947 (Christiana v. Rattaro, 81 Cal.App.2d 597 [184 P.2d 682]), and the remittitur issued November 26, 1947. The respondent collected $11,642.12 gross on this judgment, and $6,755.84 net.
June 5, 1947 — final decree of divorce granted to respondent, the decree containing no express reference to the property rights of the parties. Thereafter, respondent remarried, her last name now being Rose.
July 26, 1948 — the present action was instituted by appellant to recover one-half of the judgment secured by respondent.
The complaint is framed on the theory that the judgment recovered by respondent is community property, and, on that theory, seeks to impose a trust on one-half of the proceeds. The answer alleges two major defenses, first, that the complaint in the divorce action averred that there was no community property of the parties; that the husband was served and defaulted, and thereby admitted the allegations of the complaint; that under such circumstances the husband is estopped to claim there is now community property; and secondly, that the recovery was not community property.
The evidence shows that the husband, after the separation, contributed something to the support of his three children, and after the death of Robert, to the support of the other two, until December of 1945, when all contributions ceased; that although the respondent wife was awarded support for the children and attorney fees in the divorce action, not a cent has been paid thereon; that after the separation, except
The trial court found that when the cause of action arose for the wrongful death of Robert, such cause of action was community property, but that from the time appellant defaulted in the divorce action, all of appellant's rights in the community property, including his rights in the wrongful death action, ceased and terminated. Thus, the theory of the trial court was that the cause of action for the wrongful death of Robert was community property, but that because the respondent in her divorce complaint alleged that there was no community property, and the appellant defaulted, he thereby admitted that there was no community property, and is forever estopped from so claiming, and in particular is estopped from claiming that the proceeds of the wrongful death action are community property.
If it be assumed that the cause of action for the wrongful death of Robert and the proceeds of the judgment were community property, this theory of the trial court would be in accord with the law, and the judgment of the trial court should be affirmed. The divorce complaint, filed in Alameda County on January 18, 1946, alleged "That there is no community property of the parties." The prayer asked for dissolution of the marriage, for the care, custody and support of the children, for attorney's fees, and "for such other and further judgment in the premises as is meet and proper." The interlocutory decree has no specific reference to the property rights of the parties, but it does recite that: "The above entitled action coming on regularly to be heard this day on the complaint of the above named plaintiff, taken as confessed by the above named defendant ... and it appearing to the Court that the said defendant was duly served with process herein, and that the default of said defendant for failure to appear or answer herein within the time allowed by law has been duly and regularly entered...." There is no direct evidence in the present record as to whether appellant was personally served or served by publication in the divorce action, but the interlocutory not only awards respondent
The above case involved property acquired by the husband after the interlocutory and before the final decree, and the specific holding was that the estoppel did not apply to such property, but in the companion case of Brown v. Brown, 170 Cal. 8 [147 P. 1171], the court considered an insurance policy acquired by the husband before the divorce action had been commenced. As to it, the court held that the estoppel applied. In so holding, the court referred to the first case and the principles contained in the above quotation, and held that, under that rule of law, "the judgment of divorce, based upon the complaint declaring that there was no community property, is a conclusive determination against the plaintiff that this property is not community property, and by such judgment she is estopped from claiming any interest whatever in this part of the estate of Brown." (P. 9.) (See, also, Maxwell v. Maxwell, 66 Cal.App.2d 549 [152 P.2d 530]; Fitzgerald v. Herzer, 78 Cal.App.2d 127 [177 P.2d 364]; Horton v. Horton, 18 Cal.2d 579 [116 P.2d 605].)
It should be mentioned that we have examined the record in the Brown cases. It appears that the divorce complaint there, as in the instant case, alleged that there was no community property. The prayer of the divorce complaint in the Brown case, as in the instant case, asked for no relief as to property rights. The interlocutory and final decrees in the Brown case, as in the instant case, made no reference to property rights. Therefore, the Brown cases are on all fours with the instant one.
Appellant correctly points out that the interlocutory and final decrees do not mention the property rights of the parties, and contends that, in spite of the rules of law announced in the Brown cases, before there can be an estoppel there must be an express finding on the subject of community property. The cases cited by appellant in support of this contention are all cases where both the complaint and the decrees were silent as to community property. (De Godey v. Godey, 39 Cal. 157; Kirschner v. Dictrich, 110 Cal. 502 [42 P. 1064]; Minium v. Minium, 53 Cal.App. 55 [199 P. 1104].) These cases deal
Appellant places considerable reliance on Burtnett v. King, 33 Cal.2d 805 [205 P.2d 657, 12 A.L.R.2d 333]. There the complaint in a divorce action had alleged that there was certain specified community property, but the prayer of the complaint asked for no relief in reference to such property. Defendant defaulted. The decree awarded the property to plaintiff. The Supreme Court properly reversed, holding that the trial court, in a default case, cannot award a plaintiff greater relief than that demanded in the complaint. (See Code Civ. Proc., § 580.)
That case involved a different problem than that here involved. In the instant case, the court did not, as in the Burtnett case, give the plaintiff in the divorce action relief not prayed for. Here, the divorce decree gave the plaintiff relief that was in exact accord with the prayer of the complaint. The Burtnett case did not discuss or cite the Brown cases, and certainly did not purport to overrule them.
There are other, alternative, and independent reasons why the result reached by the trial court — denying the appellant any portion of the judgment — is correct.
An examination of those records discloses that the then plaintiff sued for and recovered only for the damage suffered by her, and that she did not ask for or receive one cent for the damage, if any, suffered by her husband. The complaint alleged and prayed for her damages, and the jury was instructed that they might award her the amount that would "reasonably and fairly compensate her" for the loss which she had sustained. Thus in that action the present respondent recovered her damages and recovered nothing for the community.
In Roach v. Drew, 72 Cal.App. 45 [236 P. 568], an illegitimate child of a deceased mother brought an action to have the surviving husband declared a trustee as to a portion of the damages recovered by him for the wrongful death of the wife and mother. In the wrongful death action the husband
The same conclusion was reached in Watkins v. Nutting, 17 Cal.2d 490, 499 [110 P.2d 384]. There the wrongful death action was brought by some of the children of a deceased father. His children by a former marriage were named as defendants upon their refusal to join as plaintiffs. These defendant heirs defaulted. The plaintiffs recovered a judgment, and, a month later, the defaulting children petitioned to reopen the case for the purpose of taking testimony to establish their pecuniary loss occasioned by the death of their father in order to secure a portion of the judgment entered in favor of the suing children. A motion to strike this motion was granted, and the defaulting children appealed. The court affirmed, holding that the defaulting heirs were entitled to no portion of the award of the suing heirs.
In the instant case respondent's recovery in the wrongful death action was for her damages as the heir of the child Robert. She made no recovery on behalf of the possible other heir — her husband — and made no recovery on behalf of the community. Appellant's remedy, if any, is an action for fraud, if fraud existed, not an action to impose a trust on any portion of the judgment.
There is a third independent, alternative, and conclusive answer to this case, and that is that the recovery by respondent in the wrongful death action, as a matter of law, in our opinion, was not community property, but was the separate property of the wife.
Appellant's argument that the cause of action for wrongful death and the proceeds of the judgment in such action are community property, is based primarily on the rule announced in Keena v. United Railroads of S.F., 57 Cal.App. 124 [207 P. 35]. In that case a father brought an action for the wrongful death of a minor child. It was held that the mother's
The same result was reached by the Supreme Court of Idaho in Lorang v. Hays, 69 Idaho 440 [209 P.2d 733]. There, in reference to a similar problem, the court stated (p. 735 [209 P.2d]) "that a cause of action for damages to the person or character of a married woman, which accrue while she is living separate and apart from her husband, is `an accumulation,' [and] is her separate property ... [and] the husband is not a necessary party plaintiff and is not entitled to any of the recovery."
For any and all of these reasons the judgment must be and is affirmed.
Bray, J., and Wood (Fred B.), J., concurred.