# Decker v. Occidental Life Insurance > California Supreme Court · April 18, 1969 · 70 Cal. 2d 842 URL: https://www.frixlaw.com/law-library/cases/9544614 ## Case - **Full name:** RAE L. DECKER, Plaintiff and Respondent, v. OCCIDENTAL LIFE INSURANCE COMPANY Et Al., Defendants and Appellants - **Court:** California Supreme Court - **Decided:** April 18, 1969 - **Citations:** 70 Cal. 2d 842; 76 Cal. Rptr. 470; 452 P.2d 686; 1969 Cal. LEXIS 371 - **Precedential status:** Published - **Opinion:** Concurrence by Mosk - **Judges:** Sullivan, Mosk - **Cited by:** 8 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9544614 ## Opinion text MOSK, J. I concur in the judgment. However, in merely adopting the Court of Appeal opinión the majority have failed to discuss or resolve two frequently recurring questions: (1) Does a trial court commit reversible error in ordering an immediately effective disposition of property in an interlocutory decree? (2) If not, where the language of the decree is ambiguous or silent.on the'question of intended timing, does the presumption favor immediate or delayed disposition ? Proper resolution of this case, as well as necessary guidance to trial courts and the bar, compels • a reply to these queries. ■ The first.question.is raised by implication, if not directly, in the instant case. In Luepe v. Luepe (1942) 21 Cal.2d 145, 149 , [ 130 P.2d 697 ], this court determined that a trial court had. .the’, power—i.e., .;jurisdiction—to" .make an- immediately effective", disposition. of .'property in .an' interlocutory decree, *849 though perhaps it “should not” do so. Based on that hortatory expression, Gudelj v. Gudelj (1953) 41 Cal.2d 202, 214 [ 259 P.2d 656 ], held that regardless of the trial court’s jurisdictional power, it was reversible error to make an immediate disposition. So far as oúr subsequent pronouncements indicate, this is the present state of the law. However, Fritschi v. Teed (1963) 213 Cal.App.2d 718 [ 29 Cal.Rptr. 114 ], on which the majority largely rely, cast considerable doubt upon the Gudelj holding. Granted that Fritschi purported to distinguish Gudelj and later “dissonant authorities,” it went beyond that point and strongly implied that Gudelj was not an accurate statement of the law and that it was 11 out of harmony with common practices of trial judges and divorce counsel throughout the state.” (Id. at p. 723.) This implication was fortified by the court’s readiness to conclude, in the face of ambiguous language, that the trial court had in fact made an immediate disposition. A clear inference is that, contrary to Gudelj , the trial court involved in FritscM not only acted within its power, but it acted properly—i.e., did not commit reversible error—in making an immediate disposition. This court, by adopting the Court of Appeal opinion herein which relies on FritscM for an identical conclusion, without mention of the Gudelj question, unfortunately perpetuates this confusion. It is now this court that implies an immediate disposition is proper—as I agree it should be—but without forthrightly stating as much. The FritscM court, like the Court of Appeal below, was without power to do more than question the Gudelj holding; this court, however, can and should overrule it. I would hold that a trial court in its discretion may make an immediately effective property disposition in the interlocutory judgment of divorce if the intention to do so is expressly stated therein. The second question must be answered, as a corollary to the first, to avoid unnecessary repetition of the type of ad hoc construction, based on nebulous terms such as “hereby” and “awards,” to which the majority have been compelled to resort in this case. This court should clarify the law for the bar, future litigants and courts by articulating a simple, unambiguous rule of construction: absent the clear declaration of intent by the court to make an immediately effective property disposition, all property disposition contained in the interlocutory judgment becomes effective upon entry of the final judgment of divorce. . *850 Even were a majority persuaded that a presumption should favor .immediate disposition, however, we should unequivocally say so; for having some firm guideline would encourage courts and counsel to adopt more precise language in the preparation of interlocutory decrees and thus eventually the present uncertainties would be eliminated from this area of the law. In shoít,. I believe this court should resolve all the issues in the instant cáse in a manner calculated to avoid, rather than encourage, .a repetition of this type of litigation. The majority, by adopting the Court of Appeal opinion, have regrettably foregone the opportunity to do so. They compound their omission by gratuitously adding to the opinion a paragraph in parentheses stating that rules of construction applicable to ambiguous interlocutory decrees “are not before us in this case.” Such ipse dixit and cavalier dismissal of an issue ignores a record replete with the injection and discussion of the subject in every brief on file. 1 Appellate responsibility dictates responding to a proper query. McComb, J., and Burke, J., concurred. Icite chapter and verse: (1) plaintiff’s petition for hearing, p. 10; (2) defendant’s answer to petition for hearing, pp. 1-2; (3) defendant’s opening brief in the Court of Appeal, p. 9; (4) plaintiff’s reply brief in the.Court of Appeal, p. 9; (5) defendant’s reply brief in the Court of Appeal, pp. 2-3; (6) amicus curiae brief, p. 5; and (7) in addition, the trial court discussed the Gudelj problem from the bench (Rep. Tr., p. 3). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9544614. Public record. Not legal advice.