De La Luz Tovar Cozzi v. Cozzi

Plaintiff appeals from an interlocutory judgment of divorce granted in her favor following a contested trial on the issues presented by her complaint and defendant’s cross-complaint.

The parties were married March 5, 1939, and there is one child the issue of the marriage, aged four years at the time of the filing of the complaint on September 18, 1944. Plaintiff claimed therein that certain personal and real property, together with the improvements thereon, which was owned by and stood in the name of defendant at the time of the marriage and at all times subsequent thereto, was community property. Defendant in his pleadings claimed, and the court found the same at all times to have been his separate property, that it was acquired by him prior to his marriage to the plaintiff, and that it has a value of approximately $60,000.

The court further found that there is no community property owned or acquired by the parties hereto, that defendant did treat plaintiff in a cruel and inhuman manner granting her the interlocutory judgment on that ground, awarding her the custody of the minor child and the sum of $100 per month for its support, further awarding her the use of certain residential property, referred to in the judgment as a “homestead,” owned by defendant as his separate property and from which he had been receiving rentals in the sum of $45 per month, to be held and occupied by plaintiff and the child without rent until the further order of the court, but in no event beyond the time that plaintiff remarries.

Plaintiff claims as grounds for her appeal that the trial court erred, (1) in finding that the parties were not possessed of any community property interests in which plaintiff was entitled to share, and (2) in failing to grant to plaintiff an allowance for the support of herself in addition to that which was made for the support of the minor child.

The evidence clearly shows, and apparently plaintiff now concedes, that all the real property, stocks and bonds presently owned by defendant were acquired by him with separate funds prior to his marriage to plaintiff. It is equally true that, during the period of some five and one-half years they lived together as husband and wife his entire and only income resulted from the rents, issues and profits of such property and defendant maintained and supported himself and family therefrom. He devoted his full time to the management and upkeep of his property. A portion of plaintiff’s time was likewise utilized in collecting rents and otherwise assisting her husband in caring for the real property.

Section 163 of the Civil Code provides: “All property owned by the husband before marriage . . . with the rents, issues, and profits thereof is his separate property.” “Likewise, ordinarily, improvements made out of community funds on lands constituting the separate property of one of the spouses follow the character of the land and become separate property. (5 Cal.Jur. 298.) ” (Seligman v. Seligman, 85 Cal.App. 683 , 689 [ 259 P. 984 ].) That portion of the profits of a business, however, is not necessarily separate property when earned therefrom after marriage, even though such business has been owned and carried on by one of the spouses before the marriage. “The capital which the husband brings to the marriage partnership is his own separate property, but it is a question for the court to determine what portion of the profits thereafter arises from the use of this capital and what part arises from the activity and personal ability of the husband. That portion of the income due to the ‘personal character, energy, ability and capacity of the husband’ is community property. (In re Gold’s Estate, 170 Cal. 621 [ 151 P. 12 ]; Pereira v. Pereira, 156 Cal. 1 [ 103 P.2d 488 , 134 Am.St.Rep. 107 , 23 L.R.A. N.S. 880 ]; In re Caswell’s Estate, 105 Cal.App. 475 [ 288 P. 102 ].)” (Witaschek v. Witaschek, 56 Cal.App.2d 277 , 281 [ 132 P.2d 600 ].)

Assuming the care and maintenance of income prop-' erties owned by him to be a “business,” it is not the profits of the business, but only the ascertained earnings of the defendant from his individual efforts in managing, laboring on and caring for such property, in the nature of salary, wages or the equivalent thereof, which would be community property. (Seligman v. Seligman, supra, p. 687.) No evidence has been called to our attention appraising the value of plaintiff’s such “earnings” or to what proportion of the income they should properly be allocated. In finding all the property, including the increments through income, to be separate property of the defendant, the trial court was entitled to take into consideration the fact that any so-called

With reference to plaintiff’s second ground of appeal, complaint is made of the failure of the court to award her permanent support money. As previously indicated, the interlocutory judgment does award her the use, rent and tax free, of a six-room dwelling house owned by defendant as his separate property, in addition to the sum of $100 per month for the support of the minor child. Where, as here, a divorce is granted for offense of the husband the court may, in its discretion, compel him to provide for such support of the wife as may be deemed just, having regard to the circumstances of the parties respectively. (Civ. Code, §§ 137, 139.) “But this discretion is not arbitrary. ‘. . . it must be exercised along legal lines, taking into consideration the circumstances of the parties, their necessities, and the financial ability of the husband. ... In a legal sense, discretion is abused whenever, in its exercise, a court exceeds the bounds of reason,—all the circumstances before it being considered.’ (1 Cal.Jur. 965.)’’ (Makzoume v. Makzoume, 50 Cal.App.2d 229 , 231 [ 123 P.2d 72 ]; see, also, Kyne v. Kyne, 70 Cal.App.2d 80 , 83 [ 160 P.2d 910 ].)

“An abuse of discretion is never presumed but must be affirmatively established by the party complaining of the provisions of the order. (Wilder v. Wilder, 214 Cal. 783 , 785 [ 7 P.2d 1032 ]; Kaiser v. Hancock, 25 Cal.App. 323 , 328 [ 143 P. 614 ]; Lynch v. Lynch, 69 Cal.App. 66 , 71 [ 230 P. 462 ].) The burden is on the party complaining of the order to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice an appellate court will not substitute its opinion and thereby divest the trial court of its discretionary power. (Hale v. Hale, 55 Cal.App.2d 879 , 883 [ 132 P.2d 67 ]; Sharpe v. Sharpe, 55 Cal.App.2d 262 , 265 [ 130 P.2d 462 ].) ’’ (Berry v. Chaplin, 74 Cal.App.2d 669 , 672, 673 [ 169 P.2d 453 ].)

Taking into consideration all the evidence, including that showing the plaintiff to be 30 years of age as compared to the

The judgment is affirmed.

Shinn, Acting P. J., and Wood, J., concurred.