
    [Civ. No. 3011.
    Fourth Dist.
    Mar. 17, 1942.]
    CHARLES TOMAIER, Respondent, v. MILDRED TOMAIER, Appellant.
    
      Edward M. Selby for Appellant.
    Alfred Siemon and Bennett Siemon for Respondent.
   SCHOTTKY, J. pro tem.

Appellant wife appeals from a judgment granting respondent husband a divorce upon the ground of extreme cruelty, and making a division of the property of the parties. Appellant contends that the evidence is insufficient to support the finding of cruelty on her part, and that she was entitled to a divorce on her cross-complaint on the ground of desertion.

No useful purpose would be served by setting forth the somewhat sordid evidence in the case on the charges of cruelty and on the counter charge of desertion. No hard and fast rule of law can be laid down as to what particular facts must be proved in order to justify a finding that a spouse has undergone grievous mental suffering. A correct decision must depend upon the sound sense and judgment of the trial court. Therefore, in the case at bar, whether or not the acts and conduct of appellant inflicted grievous mental suffering upon respondent was a question of fact for the determination of the trial court from all the facts and circumstances in the case (Barnes v. Barnes, 95 Cal. 171 [30 Pac. 298, 16 L. R. A. 660] ; Hansen v. Hansen, 86 Cal. App. 744 [261 Pac. 503] ; Shaw v. Shaw, 122 Cal. App. 172 [9 Pac. (2d) 876]) and a careful reading of the entire record convinces us that there is ample evidence to support the conclusion that respondent was entitled to a divorce upon the ground of extreme cruelty.

The trial court found that respondent and appellant were the owners of the following property: Parcel 1. Lots 17 to 21, in Block 99, in the town of Mojave, leased to the Safeway Company and subject to an encumbrance in the sum of $5,000.00. Parcel 2. A residence in Kansas City, Missouri. Parcel 3. Money in escrow in the Bank of America, being the proceeds from the sale of Lot 5, Block 100, in the town of Mojave. Parcel 4. A Dodge, 1939 automobile coupe, house trailer, household furniture and furnishings in possession of respondent at Mojave.

The trial court further found that parcels 1, 2 and 3, stood of record in the name of appellant and respondent as joint tenants; and

“That the parties acquired said properties during their marriage and that it was not the intention of the plaintiff or of the parties that the defendant should be vested with or become the owner of any interest in either of said properties as her separate property; that said properties and each of them were acquired with separate funds of plaintiff and with community funds of plaintiff and defendant and not with any separate funds of the defendant; that plaintiff never at any time intended to make any gift to the defendant of any right, title or interest in or to any of said properties of either of them; that the interest in said properties which these parties now own was acquired by them with the purpose and intention that the same should be and become their community property; that the parties agreed to encumber and did encumber said properties for the improvement of the same for their common benefit and they agreed that the community income should be applied to the improvement and development of- said properties for their common use and benefit and that they never had any intention that said properties or any of the same should be improved or developed or acquired for the benefit of the separate estate of the defendant ; and that the property referred to as parcel 4 is personal property and the community property of the parties hereto.” of the spouses must therefore be classed as their separate but joint estate in property.” (See, Estate of Harris, 9 Cal. (2d) 649 [72 Pac. (2d) 873].)

The trial court then decreed that all of said property was community property and awarded parcels 1 and 4 to respondent, parcel 2 to appellant, awarded appellant $1000.00 out of parcel 3, and respondent the balance of parcel 3, and awarded appellant $1850, to be paid by respondent at the rate of $50.00 per month, commencing at the entry of the final decree, without interest.

Appellant contends that the trial court erred in finding that parcels 1, 2 and 3 were community property, and argues that because said real property stood in the names of appellant and respondent as joint tenants, this finding cannot be sustained.

We must agree with this contention and hold that the trial court had no power to divide the property held in joint tenancy as though it were in fact community property. This is clearly held by our Supreme Court in Siberell v. Siberell, 214 Cal. 767 [7 P. (2d) 1003], there the court said, at page 773:

“First, from the very nature of the estate, as between husband and wife, a community estate and a joint tenancy cannot exist at the same time in the same property. The use of community funds to purchase the property and the taking of title thereto in the name of the spouses as joint tenants is tantamount to a binding agreement between them that the same shall not thereafter be held as community property but instead as a joint tenancy with all the characteristics of such an estate. It would be manifestly inequitable and a subversion of the rights of both husband and wife to have them in good faith enter into a valid engagement of this character and, following the demise of either, to have a contention made that his or her share in the property was held for the community, thus bringing into operation the law of descent, administration, rights of creditors and other complications which would defeat the right of survivorship, the chief incident of the law of joint tenancy. A joint tenancy in one estate and in it the rights of the spouses are identical and coextensive.
“Secondly, on its face section 164 has no application to a case where ‘a different intention is expressed in the instrument’ and it seems to us clear, as already pointed out above, that a joint tenancy, the evidence of which the law requires to be on the face of the conveyance creating it, is of necessity an expression of the intention to hold the property otherwise than as community property and that the equal interest

Furthermore, we deem it proper to state that there is no evidence in the record that it was the intention of the parties that the property should be held other than in joint tenancy, so even if it were proper in such a case to show that there was such an intention, which we do not hold, there is no evidence to support it.

In view of the foregoing, that part of the judgment granting respondent an interlocutory decree of divorce upon, the ground of extreme cruelty is affirmed, and that part of the judgment as to the division of the property is reversed. Costs of appeal to be borne by each party.

Barnard, P. J., and Marks, J., concurred.  