Supplemental Brief — Morton v. Morton

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Supreme Court, U. %

@ FILED

IN THE | DEC 88 r9T8

SUPREME COURT tenes coon ye. cure

OF THE UNITED STATES

October Term 1978

No. 78-951

ROSALIE L. MORTON,

Petitioner,

VS.

MAURICE R, MORTON,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE

OF CALIFORNIA SECOND APPELLATE

DISTRICT, DIVISION ONE

SUPPLEMENTAL BRIEF UNDER UNITED

STATES RULES OF COURT 24(5); APPL!

CATION FOR EXTENSION OF TiME TO

FILE PETITION FOR WRIT OF CERTIORARI

AND SUPPLEMENTAL PETITION FOR WRIT

OF CERTIORARI

ROSALIE L. MORTON

15601 High Knoll Road

Eneino, California 91436

(213) 788-4594 and

(213) 974-3980

\ttorney for Petitioner

In Pro Se

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term 1978

No. 78-951

ROSALJAE L, MORTON,

Petitioner,

vs.

MAURICE R. MORTON,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEAL OF THE STATE

OF CALIFORNIA SECOND APPELLATE

DISTRICT, DIVISION ONE

SUPPLEMENTAL BRIEF UNDER UNITED

STATES RULES OF COURT 24(5); APPLI-

CATION FOR EXTENSION OF TIME TO

FILE PETITION FOR WRIT OF CERTIORARI

AND SUPPLEMENTAL PETITION FOR WRIT

OF CERTIORARI

ROSALIE L. MORTON

15601 High Knoll Road

Encino, California 91436

(213) 788-4594 and

(213) 974-3980

Attorney for Petitioner

In Pro Se

:

“se

&

TOPICAL INDEX

Page

Table of Authorities Vv

I LATE DELIVERY WAS EXCUSABLE

AND NOT CONTROLLABLE 2

II

CALIFORNIA IS SUBJECT TO THE

SUPREMACY CLAUSE OF THE

UNITED STATES IN DETERMINING

PROPERTY AND PERSONAL RIGHTS 17

A.

Section 4800(a)(b) California Civil

Code Is Vague: Lacks Guidelines

and Standards By Which an Equal

Division of Community Property Is

to be Accomplished, on Dissolution

and Improperly Delegates to the

Trial Court the Discretion to

"Award Any Asset to One Party On

Such Conditions As It deems Proper

To Effect A Substantial Equal Divi-

sion of the Property, '' and Is Thereby

Void. 20

1. The Lack of Guidelines and

Standards in Section 4800 Has

Resulted in Prohibited State

Action Denying Petitioner Her

Share of the Mature Asset,

The 20th Century Fox Pension

Payment of $1083.67 Monthly. 25

i.

The Lack of Guidelines and

Standards in Section 4800(a)(b)

California Civil Code Has Re-

sulted in the Award to Respondent

of Petitioner's Separate Property,

the Rernainder Annuity Gift in

the Fox Pension. 30

The Lack of Guidelines and

Standards in Section 4800(a)(b)

California Civil Code Has Resulted

in Prohibited State Action Im-

pairing Petitioner's Contractual

Rights Under the Fox Pension. 36

The Lack of Guidelines and

Standards in Section 4800(a)(b)

Has Resulted in Petitioner's Net

Being Awarded Any Part of Her

Unmature County Pension and the

Award to Respondent of Her

Separate Property. 37

The Lack of Guidelines and

Standards Has Resulted in the

Prohibited State Action of Im-

pairment of Petitioner's Contrac-

tual Rights in the County Pension

Which Is Unmatured. 43

The Refusal of the Court to Follow

the One Directive Set Out in Section

4800(a)(b), To value All Assets As

of the Time of Trial or Before Trial,

Has Resulted in the Taking of and

Sale of Petitioner's Separate Prop-

erty Home, and the Award to

Respondent of the Proceeds of Sale. 44

ii.

The Application of the Incorrect

Presumption in Section 5110

California Civil Code and the

Unequal Application and Construc-

tion of That Statute Has Resulted

in the Taking of Petitioner's

Separate Property Home, the

Sale Thereof, and the Proceeds

Awarded to Respondent.

The Supremacy Clause of the United

States Constitution Prohibited the

State Action Whereby Petitioner's

Separate Property Insurance Policy,

of Which She Is Owner and Benefici-

ary Could Be Awarded to Respondent.

Misuse of Judicial Power Where

Not Required by State or Police

Power Legitimate Interests Is

Prohibited State Action Under the

Supremacy Clause of the United

States Constitution.

1. Refusal to Apply the Law As

Required in Section 5125

California Civil Code Is Pro-

hibited State Action.

2. The Refusal to Require Respon-

dent to Account for Community

Funds and the Requirement That

Petitioner Prove Where the Un-

accounted For Funds Were, How

They Were Used, and That They

Still Existed, Was Prohibited

Judicial Action.

iii.

47

62

63

65

Ill

3. State Action Can Not Prevent

Petitioner's Access to This

Court.

CONCLUSION

iv.

68

69

TABLE OF AUTHORITIES

Cases

| Allgeyer v. Louisiana,

165 U.S. 578

Ames v. Ames,

59 Cal. App. 3d 234

Bensing v. Bensing,

25 Cal. App. 3d 889

Betts v. Board of Administration,

21 Cal. 3d 859

Boddie v. Connecticut,

401 U.S. 371

Calif. v. Green,

399 U.S. 159

Fields v. Michael,

91 Cal. App. 2d 443

Frazier v, Tulare County Board of

Retirement,

42 Cal. App. 3d 1046

Free v. Bland,

369 U.S. 663, 8 L.Ed, 2d 180,

82 §. Ct. 1089

French v, French,

17 Cal, 2d 775

Ve

5, 34,

68

35

37

68

67

65

36

54

37

Green v. California,

399 U.S. 159

Griswold v, Conn,

381 U.S. 479

Gudelj v. Gudelj,

41 Cal, 2d 202

Hansford v, Lasser,

53 Cal, App. 3d 364

Honeyman v, Hanan,

300 U.S, 14, 81 L.Ed, 476,

575.Ct, 350

Hurtado v. Calif.,

110 U.S. 516

In re Marriage of Bouquet,

16 Cal, 3d 583

In re Marriage of Brown,

15 Cal, 3d 838

In re Marriage of Fithian,

74 Cal, App, 3d 397

In re Marriage of Fonstein,

17 Cal, 3d 738

In re Marriage of Frapwell,

49 Cal, App. 3d 597

In re Marriage of Hopkins,

74 Cal, App. 3d 591

In re Marriage of Jafeman,

29 Cal, App. 3d 244

vi,

5, 6, 59

14, 22

54

54

10

21

25

31

54

64

43, 55

In

In

In

In

In

In

In

In

In

In

In

re

re

re

re

re

re

re

re

re

re

re

re

Marriage of Johnston,

85 Cal. App. 3d 900 15, 25, 28

Marriage of Kitscher,

79 Cal, App. 3d 527 56, 59

Marriage of Knickerbocker,

43 Cal, App. 3d 103 24, 45, 46

Marriage of Mix,

14 Cal, 3d 604 55

Estate of Murphy,

15 Cal, 3d 907 55

Marriage of Skadon,

19 Cal, 3d 679 42

Marriage of Smith,

79 Cal. App, 3d 725 45, 46, 53

Marriage of Sommers,

53 Cal, App. 3d 509 28

Marriage of Stenquist,

21 Cal, 3d 779 12, 13, 25, 26

35, 40, 41

Marriage of Tammen,

63 Cal. App. 3d 927 24, 46

Marriage of Van Sickle,

68 Cal. App. 3d 728 46

Marriage of Wilson,

10 Cal, 3d 851 41

vii.

Johnson v, Johnson,

214 Cal, App. 2d 29

Kelley v. Johnson,

a oe 42 L.Ed, 2d 387

Kulko v, California Superior Court,

U.S. , 56 L. Ed, 2d 132,

Liodas v, Sahada,

19 Cal. 3d 278

Manley v. Georgia,

279 U. Ss. l,

Morrison v, California,

288 U.S, 258

Morrison v, California,

291 U.S. 82

Palko v. Conn,

302 U.S. 319

Poe v. Ullman,

367 U.S. 497

Regents of the University of California

v. Bakke,

___-iU~.S. » 97 L.2d 750,

caine Ss. Ct. ee

Robinson v., Robinson,

65 Cal, App. 2d 118

viii,

20

22, 26, 47

16

56

55

55

55

14, 22, 71

21, 47

20, 34, 54

|

|

)

|

Shelley v. Kraemer,

334 U.S. 1

Stanton v, Stanton,

421 U.S. 7, 43 L. Ed. 2d 688,

95 §.Ct. 1373

United States v. Classic,

313 U.S. 299

Vaiv. Bank of America,

56 Cal, 2d 329

Waite v, Waite,

6 Cal, 3d 461

Weinberg v. Weinberg,

67 Cal, 2d 557

Western & Atl. R. Co. v. Henderson,

279 U.S. 639

Whitney v, California,

274 U.S, 357, 71 L.Ed. 1095

Wilcox v. Wilcox,

21 Cal, App, 3d 457

Williams v, Williams,

14 Cal, App. 3d 560

Wissner v. Wissner,

388 U.S, 655, 94 L.Ed. 424,

70 S.Ct. 398

26, 31,

57,

26,

62

19

63

65

35

68

55

19

67

54

Yiachos v. Yiachos,

376 U.S. 306

Yick Wo v. Hopkins,

118 U.S. 356

Constitutions

California Constitution of 1849,

Article XI, Section 14

California Constitution (1879)

California Constitution,

Article I, Sections 1, 3, 7,

9, 21 and 26

Article I, Section 21

Article III, Section 1

Article IV, Section 1

Article XI, Section 14

United States Constitution,

Article I, Section 10

Articles I, Section 10 and

VI, Section 2

Article IV, Section 2

Article VI, cl. 2

Xe

19

62

18

18

16

7, 8, 9, 36, 44

9, 24, 42

|

5th Amendment 9, 13

9th & 14th Amendments 8, 9, 13, 14, 26

42, 47, 61

14th Amendment, Section 1 63

Rules and Statutes

United States Rules of Court,

Rule 24(5) 2

California Civil Code,

Sections 1146 and 1148 33

Sections 2223 er 2224 56

Section 4800(a)(b) 20, 23, 27, 30

35, 36, 37, 44

Section 4800(b)(2) 12, 42

Sections 5103 and 5104 48, 49

Section 5105 19

Section 5107 34, 48, 49

Section 5110 47, 48, 50

Section 5118 45, 53

Section 5125 63, 64

xi,

Section 5125(b) 64

California Code of Civil Procedure,

Sections 1985(b) and (c) 66

California Evidence Code,

Section 600 48

California Government Code,

Section 330 et seq. 37

Texts

Cases and Materials on California

Community Property, American

Casebook Series,

2d Ed, 1971, introduction 18

William Burby, Cases and Materials

on the Community Property System 18

Miller, Treaties and Other International

Acts of the United States of America,

217-219, 241, 242 (1937) 18

Schmidt, the Civil Law of Spain and

Mexico,

Book I, Tit. lc. 4 (1951) 18

Treaties

Treaty of Guadalupe Hidalgo, 9, 10, 17, 18, 19

20, 24, 26

27, 36, 70

xii.

IN THE

SUPREME COURT

OF THE UNITED STATES

ROSALIE L. MORTON,

Petitioner,

vs.

MAURICE R. MORTON,

Respondent,

SUPPLEMENTAL BRIEF UNDER UNITED

STATES RULES OF COURT 24(5):

application for extension of time: Substantial

Federal Questions

TO THE HONORABLE CHIEF JUSTICF, WARREN

E. BURGER, AND THE ASSOCIATE JUSTICES OF

THE SUPREME COURT OF THE UNITED STATES:

Petitioner respectfully applies to this Court for

an extension of time to file the Petition for writ of

Certiorari with this Court and represents (1) The

late filing was beyond the control of petitioner and.

excusable, and (2) The petition presents substantial

Federal Questions as to the extent, if any, the State

of California is subject to the prohibitions and man-

dates of the supremacy clause of the United States

1,

Constitution, the United States Constitution and

Amendments, and Treaties of the United States,

Under Rule 24(5) United States Rules of Court,

petitioner respectfully requests that, should this

Court find legal excuse for the three day late filing

of the petition for writ of certiorari, this supple-

mental brief be considered as clarification of,

corrective of, and supplemental to the petition for

writ of certiorari delivered to Airborne and TWA

airlines on December 4, 1978 for guaranteed

"counter to counter" deliver to this Court on

December 5, 1978.

I

LATE DELIVERY WAS EXCUSABLE

AND NOT CONTROLLABLE

Petitioner respectfully represents to this

Court as follows:

1, The record on appeal presents substantial

federal questions. On September 7, 1978, the

Supreme Court of California denied a hearing as

to the unpublished Opinion of Respondent Court,

2nd Civ, 52725. <A reproduction of the postcard

denial is annexed hereto as Appendix A.

2.. Notice of Appeal and/or Certiorari, and

a request for certification of the record on appeal,

was filed with the Clerk of the Court of Appeals,

Second Appellate District, State of California, and

a copy lodged with the Clerk of this Court, on or

about September 15, 1978.

2.

3. A certified copy of the notice of appeal

and/or certiorari and the docket fee was sent to

the Clerk of this Court, and received on or about

December 6, 1978, and not thereafter,

4. On December 4, 1978, the forty (40) printed

copies of Petition For Writ of Certiorari, printed by

Westside Law Publishers, 606 Wilshire Boulevard,

Santa Monica, California, were delivered personally,

by Robin J. Sherburne, manager of Westside Pub-

lishing, to Airborne. Delivery to the Clerk of this

Court was guaranteed for December 5, 1/78. The

declaration of Robin J. Sherburne is annexed as B-1.

5. Airborne received the forty copies of the

petition and on December 4, 1978 delivered the

package to TWA, flight 78. Delivery to the Clerk

of this Court was guaranteed for December 5, 1978,

The declaration of Len Piazzon, district manager

of Airborne, and the business records noting re-

ceipt by TWA and guaranteed delivery to the Clerk

of this Court, is annexed hereto as Appendix B-2.,

6, Petitioner called the Clerk of this Court,

by telephone, on December 5 and December 6, 1978,

to verify delivery. On notification that delivery

had not been made either on December 5, 1978 or

December 6, 1978, petitioner sent a telegram to

the Clerk of this Court requesting an extension of

time to file the petitions. A reproduction of that

telegram is annexed hereto as C,

7. On December 7, 1978 and December 8,

1978, petitioner prepared a petition and application

to this Court for an extension of time to file the

petition, Included therein were the original

3.

documents of A, B-1, B-2, and C, The applica-

tion for extension of time, and the forty copies of

the Petition for Writ of Certiorari, was received

by the Clerk of this Court on or about December

9, 1978.

8. Onor about December 11, 1978, the

Honorable Associate Justice of this Court, William

R. Rehnquist, denied petitioner's application for

extension of time,

9, Petitioner presents to this Court substan-

tial Federal questions.

Included in those federal questions, but not

limited thereto, are questions already decided by

this Court and can be found in published Opinions,

to wit:

a. The prohibitions on the State action re-

stricting transmutation of property;

b, The prohibitions on State action denying

the equal protection of the law;

c. The prohibitions on the State action im-

pairing contractual obligations;

d, The prohibition on State action denying

procedural and substantive due process

and a fair trial, and trial on the merits;

e. The prohibition on State action discrim-

inating as to age and/or sex whereby

property and personal rights, as guaran-

teed by the United States Constitution,

4,

and the supremacy clause therein, are

violated,

Wissner v. Wissner,

388 U.S. 655, 94 L.Ed. 424,

70 S.Ct. 398;

Free v. Bland,

369 U.S, 663, 8 L, Ed, 2d 180,

82 S.Ct. 1089;

Regents of the University of California

v. Bakke,

U.S. » 97 L.Ed. 2d 750,

rae S. Ct. ane

Shelley v. Kraemer,

334 U.S. 1;

Green v, California

399 U.S. 159;

Stanton v, Stanton,

421 U.S. 7, 43 L. Ed. 2d 688,

95 S.Ct. 1373.

These questions, presented to the appellate

Courts of California, by petitioner, in the briefs

on record on appeal, were neither discussed by

Respondent, nor did he present contrary evidence,

citations of law and/or authorities.

The unpublished Opinion of Respondent Court

refers to these questions, in passing, as follows:

"It is only to be expected that in more

than two hundred and fifty pages of briefs,

appellant would have raised some incon-

sequential issues. To the extent these

issues have not been expressly address-

ed, it should be noted that they have been

considered and found tctally lacking in

merit, "'

Unpublished Opinion, pp. 15, 16.

The federal questions presented on Appeal are

found in the record on appeal at the location

designated as petitioner's closing brief (c.b) peti-

tion for rehearing (r.h.) petition for hearing in

the Supreme Court of California (h) Petition for

Writ of Certiorari, Court of Appeal and California

Supreme Court p.c.) and applcation for certifica-

tion of federal —— on appeal (c.q) and set

forth in footnote 1.1

1/

~ Record on Appeal, references to location of

Federal Questions presented:

Petitioner's Closing brief page 11, reference to

the denial of the equal protection of the laws, and

the application as to failure to reimburse, In re

Marriage Bouquet;

Petitioner's Closing brief, pages 28 and 30,

Green v. California, and the advisement that this

federal question has been decided by the United

(con't p. 7)

6.

Petitioner's request and application for certifi-

cation of the Federal Questions, on appeal and/or

certiorari to this Court, was summarily denied with

the following statement on the postcard,

1/ (con't)

States Supreme Court, wherein refusal to permit

impeachment, and the lack of substantial evidence

and other procedural prohibited state action is

within the United States Constitution. (covers the

procedural errors as to lack of substantial evi-

dence, attorney client privilege, etc.);

Petitioner's brief, page 51, reference to the su-

premacy clause for reference in culmination of

discussion as to the Fox pension and County pen-

sion and the express provision of Art, 1 §10

United States Constitution;

Petitioner's closing brief, page 54, culminating

discussion of the taking of petitioner's separate

property of the Fox pension payments and annuity,

and unmature County pension after death of re-

spondent, stating the application of the ''Federal

Constitution, a denial of equal protection of the

laws and of due process;"'

Petitioner's closing brief, pages 64, 65, refer-

ence to the supremacy of the Federal Constitution

and the denial of petitioner her separate property

rights, and the denial of her entitlement to the

equal protection of the laws. Related to the

(con't p. 8)

Ge

"Because the subject appeal was de-

cided solely on state grounds, the

petition is denied, ''- annexed as

Appendix D.

1/ (con't)

pension plans and existing property;

Petitioner's closing brief, page 82, as to the find-

ings concerning High Knoll, the pensions, and

petitioner's separate property, reference to the

guarantees of the United States Constitution and

property right guarantees therein, and due process

clause, and 14th amendment of the United States

Constitution;

Petitioner's closing brief, page 42, as to capricious

judicial action;

Petition for rehearing, headnotes as to each item,

and body, Treaty of Guadalupe Hidalgo, United

States Constitution, supremacy clause;

Petition for Hearing in the Supreme Court, each

item in headnotes, supremacy clause Federal

Const., 9th, 14th amendments, Art, 1 §10, Treaty,

application in body as to each pension, High Knoll,

procedural due process, insurance;

Petition for writ of certiorari, or other alternative

writ in California Supreme Court, each headnote

refers to Treaty, supremacy clause,

(con't p. 9)

State grounds, independent of the United States

Constitution, and the supremacy clause, Article VI

cl 2, which include the property rights and personal

rights guaranteed by the Treaty of Guadalupe Hidalgo,

Articles VIII and IX, and the amendments to the

United States Constitution, do not and can not exist

in California. A claim of prohibited state action

which is violative of guaranteed Constitutional

rights, raises a substantial federal question.

The certification of Federal Questions, on

appeal and/or certiorari, to this Court, is of long

standing in California, and petitioner's request is

not uncommon,

Whitney v. California,

274 U.S. 357, 71 L.Ed. 1095.

And, the determination if such federal questions

exist is itself a substantial federal question, to

be determined by this Court on examination of the

record on appeal and/or certiorari,

1/ (con't)

14th Amendment, and the body contains citations

and application and further references;

Request for certification of record on appeal; each

item separately states the supremacy clause, the

federal constitution, Treaty, 14th, 9th, 5th Amend-

ments, Art 1§10, as applied in the Petition for

Writ of Certiorari in this Court,

9.

Honeyman v. Hanan,

300 U.S, 14, 81 L.Ed. 476,

57 S.Ct. 350 (1937).

Respondent Court, in the unpublished Opinion,

has decided these Federal Questions contrary to

the Opinions of this Court,

Petitioner has not presented federal questions

concerning those procedural and functional proper

governmental interests in residency requirements,

method of filing, answering, proceeding, and try-

ing issues concerning ''common" property on the

dissolution of a marriage. These are proper

governmental, and local police power, concerns.

Presented, as substantial federal questions,

and not yet decided by this Court, or decided by

this Court but in another setting or by inference,

are further substantial federal questions:

a. Whether the State of California has

separate and exclusive "local law"!

as to personal and property rights,

which overrides the United States

Constitution and the supremacy

clause;

b. Whether the Treaty of Gudalupe

Hidalgo and the United States Con-

stitution guarantees to petitioner

non discriminatory rights as to

person and property equal to that

of Respondent, and equal to and

inclusive of those rights set out in

10,

Proposed amendment XXVII to the

United States Constitution,

10, Petitioner does not, and can not, request

special consideration or treatment by and from

this Court, Nor does she claim that as a trial

attorney, and not an Appellate attorney, she should

be entitled to any special consideration,

It is resvectfully suggested that petitioner did

all acts in a timely and appropriate manner to

assure the delivery to this Court of the forty peti-

tions before December 6, 1978,

The briefs were printed and placed on the

carrier, on December 4, 1978, with guaranteed

delivery to the Clerk of this Court on December

5, 1978,

One extra day was left for mistake or error,

On December 6, 1978 petitioner sent a telegram

and requested an extension of time, and thereafter

petitioned for such extension,

Even the most experienced of attorneys, in

practice before this Court, uses all of the avail-

able time allowed in the preparation of the brief

and research, and rarely delivers to the Clerk of

this Court the briefs in excess of a few days early.

Netither the airmail delivery on that flight,

nor any other item, reached its destination as

contemplated,

i

Had that flight, either on December 4, 5 or

6, 1978, crashed, been destroyed or highjacked,

requiring reprinting of the petitions, neither peti-

tioner nor any other attorney at law, or human

being, could or should be faulted therefor,

Other than reports in the newspapers and

news broadcasts, petitioner does not know of her

own knowledge, that a storm caused havoc in the

area of Chicago, on those days. She has been so

advised.

In reading the declaration of the district mana-

ger of Airborne, petitioner believed that total

destruction had occurred and would require more

time than requested in her telegram, from this

Court, to reprint the petitions,

Petitioner has, in her petition and this supple-

mental brief, presented substantial federal questions

concerning almost all classifications of personal,

separate property, and marital property rights.

It was by action of the California Supreme

Court that an extension of time was ordered after

the petition for hearing was timely filed, The

petition was denied September 7, 1978, In August,

1978, In re Marriage of Stenquist (1978) 21 Cal,

3d 779, was published, That published opinion

of the California Supreme Court expressly over-

ruled any implications, which the Phillipson case

may have, except on the express facts of that

case and §4800(b)(2), where fraud and embezzle-

ment have occurred, The Opinion as published

expressly states that there is no interest ina

12.

pensionafter the death of either spouse, as to the

remaining spouse or the heirs,

The express exception is the designation and

gift of an annuity remainder to a beneficiary.

The designated beneficiary need not be a spouse,

and neither the surviving spouse, nor the heirs,

have any further interests therein, subject to

award, distribution or evaluation by a Court.

Unlike any other community asset, a pension

must be evaluated on the apportioned value as be-

tween community and seperate property, and no

interest remains to the surviving spouse after

death, unless expressly provided for in the pension

plan and agreement. In re Marriage of Stenquist,

supra,

This unequivocal statement in Stenquist, pur-

porting to be "local law"' is directly contrary to

the unpublished Opinion of the Respondent Court,

The Opinion was already published at the time

petitioner's hearing in the California Supreme

Court was denied,

Petitioner was denied the equal application of

the law and the privileges and immunities of the

citizens of California and the United States by such

an unequal application. In petitioner's record and

briefs on appeal, is found the same authority and

statements as in Stenquist;:

9th, 14th, 5th Amendment U.S,

Constitution;

13,

Griswold v, Conn,

381 U.S, 479 (1965);

Palko v, Conn,

302 U.S. 319 (1937).

Not even on the terms of non existent "local

law" can the state action be justified, wherein

petitioner is deprived of life, libery, and property.

Petitioner's entitlement to have the pensions

determined on the law of the State of California,

as published before her petition for hearing in the

California Supreme Court was denied, is a sub-

stantial Federal Question for this Court,

This summary denial, and refusal, to equally

apply the law to petitioner is that intentional action

which is prohibited by the supremacy clause of

the United States Constitution,

Shelly v. Kraemer

(1949) 334 U.S, 1;

14th, 9th Amendment U.S.

Constitution;

Articles I, §10 and VI §2, U.S.

Constitution,

If not at this time, in the immediate future,

this Court will be compelled to handle, item by

item, each of the issues and federal questions

presented by petitioner, Before this can be

accomplished, as substantial time and money is

involved, a substantial number of the Citizens of

14,

California, Citizens of the United States, and

Persons, entitled to the privileges and immunities

guaranteed by the United States Constitution, will

be injured and deprived of guaranteed property and

personal rights by prohibited state action,

California has withdrawn itself from the Union

of States in its declarations, inferentially and dir-

ectly, that it is bound only by local law which is

not subject to the supremacy clause of the United

States Constitution,

The subterfuge of equating those permissible

governmental police powers, to legislate as to

methods and procedures concerning marriage and

dissolution, with those personal and property rights

guaranteed by the Federal Constitution, does not

create exclusive local law which is not subject to

review by this Court, on a claim of prohibited

state action,

The denial by Respondent Court, by postcard

claiming non reviewable local state grounds, and

the Opinion of Respondent Court, In re Marriage

of Johnston (1978) 85 Cal. App. 3d 900, at p. 910,

which states:

The laws relating to marital dissolu-

tion are uniquely local in nature, 'The

whole subject of the domestic relations

of husband and wife... belongs to the

States and not to the laws of the United

States.' (inner citation, In re Burrus

1890) 136 US 586, 593-594) "Domestic

relations is a field peculiarly suited to

state regulation and control and unsuited

15,

to control by federal Courts,

clearly support California's disclaimer of control,

prohibitions and mandates, of the United States

Constitution, and the supremacy clause therein,

The supremacy of the United States Constitu-

tion, in guaranteeing those property rights, over

which the state of California, through its Courts,

has claimed plenary control, is found in the

California Constitution,

Article I§§ 1, 3, 7, 9, 21, 26;

Article III §1;

see also Kulko v. California

Superior Court,

Ups. __» 86 L, Bd, 2d 132,

oon...

Wherefore, petitioner makes application to

this Court and prays that the Honorable Chief

Justice, Warren E, Burger, and the Associate

Justices of the United States Supreme Court will,

in the exercise of their discretion, extend and

grant to petitioner the additional time required to

file the petition for writ of certiorari, and then

consider the substantial federal questions pre-

sented in the petition and supplemental brief

thereto,

16,

I]

CALIFORNIA IS SUBJECT TO THE

SUPREMACY CLAUSE OF THE

UNITED STATES IN DETERMINING

PROPERTY AND PERSONAL RIGHTS

The "uniqueness" of California's laws con-

cerning marital property, separate property, and

personal rights therein, is due to the Treaty of

Guadalupe Hidalgo (1848) as amended, Articles

XIII and IX.

Citizens and residents of California are

guaranteed not only the protections from state

action ennumerated and implied in the United

States Constitution and the amendments thereto,

but those additional personal and property rights

guaranteed by a Treaty of the United States,

Contrary to the Opinion of Respondent Court,

and other Opinions, published, in the state of

California, the ''uniqueness'' does not arise by

legislation, judicial decision, nor the California

Constitution, which recognizes the very source,

the supremacy clause of the United States Consti-

tution, as controlling.

Any reputable legal ''casebook"' used by law

students, in California, as to the subject matter

of community property, includes the explanation

that at the time California was annexed to the

United States the marital property law of the area

was the Spanish- Mexican community property

17,

system. This system continued in effect under

the Treaty of Guadalupe Hidalgo and the first

Constitution of California, the Constitution of

1848,

The Constitutional provision was in a form of

a guarantee of the separate property of a married

woman and a directive to the legislature to pass

laws more clearly defining the rights of married

women in "separate" and ''common" property.

The first legislature of the State of California

put into statutory form the basic principles of the

Spanish- Mexican community property system and

expressly provided that common law and the law

of dower and curtesy should not be part of the

California law.

Cases and Materials on California

Community Property, American

Casebook series, 2d Ed, 1971,

introduction;

William Burby, Cases and Materials

on the Community Property system;

Schmidt, the Civil Law of Spain and

Mexico, Book I, Tit. 1c. 4(1951);

Miller, Treaties and Other Inter-

national Acts of the United States

of America, 217-219, 24i, 242 (1937);

Constitution of the State of California

(1849) Art. XI, Sec. 14, Calif, Const,

1879) et seq.

18,

The guarantees of the Treaty promised both

married and unmarried women the right to own,

enjoy and possess separate property, And, a

woman's rights in marital or ''common" property

was equal to that of her husband,

The concepts of absolute management and

control, without interference by the wife, contin-

gent interests, non vested interests, and the right

of disposition or possession only on death or,

recently, dissolution was not a part of that law,

Wilcox v. Wilcox

(1971) 21 Cal, App, 3d 457,

It was not until this Court in its published

Opinions, and the furor created by proposed

amendment to the United States Constitution,

proposed amendment XXVII, did the California

legislature decide that the wife, as originally

guaranteed by the Treaty, had equal and existing

rights of control and possession to ''common''

property as did the husband,

§5105 as enacted 1975 Calif, Civ.

Code;

Shelley v. Kraemer,

334 U.S, 1;

Stanton v, Stanton,

421 U.S. 7, 43 L.Ed. 2d 688,

95 §.Ct. 1373;

Yiachos v, Yiachos,

376 U.S, 306,

19,

In 1975, the police powers of the state of

California no longer required sole management

and control by the husband to insure proper

business dealings and relationships and those

guarantees of the Treaty, ignored to date, were

to be reactivated by proposed amendment XXVII.

A. Section 4800(a)(b) California Civil

Code Is Vague: Lacks Guidelines

and Standards By Which an Equal

Division of Community Property Is

to be Accomplished, on Dissolution

and Improperly Delegates to the

Trial Court the Discretion to

"Award Any Asset to One Party On

Such Conditions As It Deems Proper

To Effect A Substantial Equal Divi-

sion of the Property,'' and is Thereby

Void.

The only property subject to division by a

Court in a proceeding for dissolution is the com-

munity property.

Robinson v, Robinson

(1944) 65 Cal, App. 2d 118;

Johnson v, Johnson

(1963) 214 Cal, App. 2d 29,

Patently inherent in the statute is the fact that

separate trial courts will have different ideas as

to what is ''proper'' and thereby effectuate an unequal

20,

application and construction of the statute and

laws, which is not procedural, but would, and

does, result in the deprivation of life, liberty

and property as to one of the parties.

The observations made by Justice Harlan,

in his dissent, in Poe v, Ullman, 367 U.S. 497,

at pp. 540, 541,

!

.++.+Were due process merely a pro-

cedural safeguard, it would fail to meet

those situations where the deprivation of

life, liberty, or property was accomp-

lished by legislation which by operating

in the future, given even the fairest

possible procedure in application to the

individuals nonetheless destroy the en-

joy ment of all three,

, eeeeeeeee Thus the guaranties of due

process, though having their roots in

Magna Carta's 'per legem terrae!’ and

considered as procedural safeguards

against executive usurpation and tyran-

ny, have in this country become

bulwarks against arbitrary legislation, '"'

(The internal quote is from Hurtado v.

Calif., 110 U.S. 516),

The same results ensue without regard to

the criminal or civil nature of the legislature.

The supremacy clause of the United States

Constitution mandates equality and lack of dis-

crimination in each and every property and

personal right, including the liberty to use and

21.

enjoy property, possess property, control proper-

ty, the right to contract on agreed terms and

conditions, attend the school or University of

one's choice, if qualified, and the right to be free

from governmental intrusions into the privacy of

one's home, which without a valid warrant, are

unreasonable,

Griswold v. Conn, supra;

Palko v, Conn, supra;

Kelley v. Johnson,

__ —iU«-S. , 42 L.Ed, 2d 387.

The legislative standards required to effectuate

the equal division of marital property include;

a. The requirement that each party be en-

titled to the proper apportioned share of a fully

vested and matured pension as it comes due each

month or each period of payment, for the equality

of possession, enjoyment and use,

b, The requirement that each party be sub-

ject to a risk that a pension not yet mature, and

contingent upon occurences not within the control

of the employee spouse, and the Court retain

jurisdiction over that contingent asset, until

maturity or other occurence terminates and pre-

vents maturation,

c, That actuarial life expectancies be pro-

hibited as methods of calculating speculative

value. If one party lives even one day longer or

one day shorter than speculated, equal division

22.

has not been effectuated,

d. That full disclosure as to the use, loca-

tion, and amount of community funds be made by

the managing spouse, who has maintained the

control and management of those funds. That

the non controlling spouse need not have the bur-

den of showing the existence of those funds, the

location of the funds and assets, and that they

are still in existence,

And, that the procedural rights of discovery,

easily evaded by the managing spouse, can not

terminate in the deprivation of life, liberty and

property.

e. That a future contingent interest can not

be awarded one spouse and the other awarded an

existing asset, which is subject to immediate

enjoyment and use, An illusory award which may

never come into existence is not equal to an exist-

ing asset.

The lace of standards in the statute has re-

sulted in numerous conflicting opinions in the

California Appellate Courts as to methods of

distribution,

As to petitioner, the lack of standards has

resulted in the award to Respondent of all the

community assets and most of Petitioner's

separate property.

The refusal of the Court to find the value of

the High Knoll Home as expressly required in

§4800(a)(b) California Civil Code, and the law of

23.

California, and the order of sale of the home with

the proceeds to be awarded to Respondent, pre-

cludes petitioner from receiving any sum from

that sale.

In re Marriage of Knickerbocker

(1974) 43 Cal, App. 3d 103;

In re Marriage of Tammen

(1976) 63 Cal, App. 3d 927,

The lack of standards, other than the delega-

tion to each trial court to do what it deems

"proper, '' has resulted in Respondent receiving

about $300,000 in existing and immediate assets,

and petitioner receiving the debts and obligations

of the community, and a portion of her own sepa-

rate property which, as it is a contingent

remainder, may never accrue,

The supremacy clause of the United States

Constitution mandates that legislation contain

standards and requirements whereby guaranteéd

property and personal rights can not be violated

by prohibited state action,

Art. Vicl. 2, U.S, Constitution;

Treaty of Guadalupe Hidalgo,

24,

1. The Lack of Guidelines and

Standards in Section 4800 Has

Resulted in Prohibited State

Action Denying Petitioner Her

Share of the Mature Asset,

The 20th Century Fox Pension

Payment of $1083.67 Monthly.

The monthly payment of $1083.67, received

and used by Respondent from the date of separa-

tion May 15, 1975, exclusively for his own benefit,

is easily apportioned as to the separate and com-

munity interest and an equal division of that

existing asset can be made,

In re Marriage of Stenquist

(1978) 21 Cal, 3d 779,

Petitioner, on the dissolution of the marriage,

is entitled to her share, in the amount of about

$361 monthly as it comes due, as an owner and

not as a creditor.

In re Marriage of Fithian

(1977) 74 Cal, App. 3d 397;

In re Marriage of Johnston

(1978) 85 Cal, App. 3d 900.

Inherent in the right of equal division of com-

munity property is the right to equally use the

property, enjoy it, possess it, and the liberty to

do whatever petitioner's wants to with the property.

25.

Petitioner's right to use, possess and enjoy

the property as it comes due and payable each

month is equal to that of Respondent,

The State action whereby petitioner is required

to wait to some future date, which may never occur,

in August 1981, when Respondent is to die, actuari-

ally, and then is to receive a portion of her own

separate property in lieu of Respondents receipt

of the whole of the Fox Pension, is prohibited by

the supremacy clause of the United States

Constitution.

9th, 14th amendments U.S. Const. ;

Shelley v. Kraemer, supra;

Kelley v. Johnson, supra,

The highly speculative evaluation of that

existing asset, which is capable of equal division,

denies to petitioner her rightful full share of that

property as guaranteed to her by the Treaty of

Guadalupe Hidalgo.

Petitioner's rights in the monthly pension

payments end on Respondent's death or her own,

which ever occurs first; except for her rights

under Option #2, exercised by Respondent.

In re Marriage of Stenquist

(1978) 21 Cal, 3d 779;

Waite v. Waite

(1971) 6 Cal. 3d 461.

26,

> -_

Should petitioner die before Respondent,

petitioner would receive none of the award of the

contingent remainder, which is her own separate

property, nor would she have any share of the

Fox Pension,

The requirements that division of community

property, on dissolution, be equal is compelled

by the Treaty of Guadalupe Hidalgo, the United

States Constitution, and the amendments thereto.

The lace of standards whereby state action

can be exercised to deprive petitioner of her equal

monthly share of the Fox pension, with the equal

right of possession, enjoyment and immediate use,

compels the finding that §4800(a)(b) is void on its

face, as construed and as applied,

There is no state interest, either in the police

powers or otherwise, whereby those fundamental

rights of property interests can be denied to peti-

tioner, Nor is there state law by which property

can be taken from petitioner by such prohibited

state action,

California is subject to the supremacy clause

of the United States Constitution (page 11 c.b.,

50, 51 c.b., 54, 64, 65 c.b., 82, c.b.sr.h.h.p,.

Co Ce Ge)

The only method of equal division of the month

monthly Fox pension payment is for petitioner to

receive her share, each month, as it is paid

directly from the Fox Plan, 2

2/ Seep, 28,

27.

In re Marriage of Johnston, supra;

In re Marriage of Sommers

(1975) 53 Cal. App. 3d 509, 515,

2 /

The uncontroverted facts concerning the vested

and matured Fox Pension are set out in the petition

for writ of certiorari, For convenience the facts

are as follows:

The Fox Pension

The evidence as to the Fox Pension is uncon-

troverted, In evidence, and record on appeal,

is the testimony of the chairman of the plan and

the written documents which encompass the

employment agreement and the pension plan which

is part thereof,

Nine fourteenths, as apportioned between com-

munity and separate property, is the community

share,

At the time, in May 1974, when Respondent left

Fox and went to work at MGM, the requirements

had been met and the pension matured, Respon-

dent had the sole and exclusive right to direct the

final nature of the plan and unilaterally elected to

take option two (2), That plan and option, which

was elected in writing by Respondent, and delivered

by him to the chairman of the plan, became irre-

vocable on the commencement of payments under

the plan in May 1974 and the delivery of the

(con't p, 29)

28,

r= -

;

:

Petitioner has neither been awarded any por-

tion of the community assets on dissolution, nor

has any division been made, All of the property

was awarded to Respondent,

2/ (con't)

written option election, to the chairman,

The final, irrevocable, contract, resulted in

the payment of $1083,67 monthly from May 1974,

and on the death of Respondent, should she sur-

vive him, an annuity of $541, 84 Monthly is to be

paid to the sole and designated beneficiary,

Rosalie L, Morton,

There is no item of record whereby the Respon-

dent Court, in its unpublished Opinion, could state

the remainder annuity was of joint and last survivor.

The contract on its face, in the record on appeal,

and the chairman of the plan both unequivocally

evidence that Rosalie L, Mortion is the sole and

designated beneficiary,

Respondent need not have made petitioner the

designated beneficiary, He could have elected

to have none or to make any other person, at all,

the beneficiary and as evidenced by testimony

and record on appeal, it need not have beena

spouse, The irrevocability of the assignment is

evidenced that Respondent, after separation

attempted at least three times, with and without

(con't p, 30)

29,

2. The Lack of Guidelines and Stan-

dards in Section 4800(a)(b) Cali-

fornia Civil Code Has Resulted

in the Award to Respondent of

Petitioner's Separate Property,

the Remainder Annuity Gift in

the Fox Pension,

Until the annuity option of the Fox Pension

became irrevocable as an assignment in writing,

2/ (con't)

the help of his attorney of record, to revoke the

option, but was advised he could not,

The trial Court evaluated the existing matured

asset on speculative actuarial life expectancy of

Respondent from March 1975, as to a date of a letter,

until August 1981, All of the Fox pension payments,

from date of separation in May 1975 to date, and

forever, were awarded to Respondent.

The contingent annuity, to come into existence

only after the death of Respondent was evaluated

on a life expectancy of petitioner of 20,5 years

after Respondent's actuarial death,

Respondent was awarded more than one half of

that contingent annuity, which may never come

into existence, if petitioner does not survive

Respondent, Respondent was given the value of

(con't p, 31)

30,

both by the law of California and the express

provision of the Fox contract, Respondent alone

could direct the ultimate character the pension

plan would take.

Waite v, Waite, supra;

In re Marriage of Fonstein

(1976) 17 Cal, 3d 738,

Respondent, unilaterally, made a gift of the

remainder interest of an annuity to petitioner,

This contingent gift was to take effect on his death

if the sole and designated beneficiary, Rosalie L,

Morton, survived him, He was not required to

make such a gift to petitioner and could have made

it to any person,

Contrary to the Opinion of Respondent Court,

there is no evidence nor statement of record nor

in the documents comprising the pension contract

whereby it can be stated that the plan is of last

and joint survivor,

At page 23 of the reporter's transcript on

appeal, Respondent testifies as follows;

"Q. Okay,

2/ (con't)

petitioner's separate property annuity immediate-

ly to be paid to him by selling petitioner's home,

and his receiving the funds of the proceeds,

31,

i

The remainder interest, that is

designated to Mrs. Morton by

the name of Rosalie I., Morton?

~

nS

It is, ''

At page 49 of the reporter's transcript on

appeal, the Chairman of the plan states as follows:

".

at

me

What dces option two provide

for with reference to pension

benefits to Mr. Morton and

pension benefits to a remainder

party ?

It provides-- the election pro-

vides for a monthly payment

to Mr. Morton of $1083.67,

and in the event of his death,

it goes, the option he elected

would go to Rosalyn L, Morton

in the amount of $541, 84 per

month,

You indicated Rosalyn Morton,

How is that spelled?

R-o-s-a-l-i-e. Rosalie,

Iam sorry,

That remainder interest is paid

to Mrs. Morton for her lifetime,

That is correct,

"Q. Once the election is made and

payment start, is the election

irrevocable?

"A, Once the election is made and

payments start, the election is

irrevocable,

"Q. Inthis case, it is irrevocable?

"A, That is correct.

"Q. If Mr. Morton desired to re-

move Mrs. Morton from her

contingent interest and attempt-

ex to receive a higher monthly

pension benefit to him, it would

not be possible to do so?

"Q,. That is correct, It would not

be possible, "'

Sections 1146 and 1148 of the California Civil

Code state as follows:

'§1146 Gifts defined. A gift is a trans-

fer of personal property, made voluntarily,

and without consideration,

"1148 Gift not revocable, A gift, other

than a gift in view of death, can not be

revoked by the giver, "'

A gift during marriage is petitioner's separ-

ate property and not subject to the jurisdiction,

evaluation, nor award of a court in a dissolution

33,

proceeding,

Article I, §21 Calif, Const.;

§5107 California Civil Code;

Robinson v, Robinson, supra,

Neither Respondent nor his heirs had any

rights in that contingent annuity, which contrary

to the Opinion of Respondent Court, was as a

matter of law an irrevocable assignment and gift

of the annuity, to the designated and sole benefi-

ciary, Rosalie L, Morton,

Respondent, unilaterally and irrevocably,

transmuted this community interest to Petitioner's

separate property.

This Court, by published Opinion, has already

decided the Federal Question that the supremacy

clause of the United States Constitution prohibited

state restrictions on the transmutation of property.

Free v. Bland, supra,

Wissner v. Wissner, supra,

The Treaty of Guadalupe Hidalgo, and its

guarantees of a married woman's rights of

separate property, preclude state action whereby

the separate property is evaluated for Petitioner's

life expectancy of over 20,5 years after Respon-

dents' actuarial death, and Respondent is awarded,

immediately, over one half of Petitioner's separ-

ate property.

34,

Even had the asset been community, neither

Respondent nor his heirs would retain rights there-

under, after his death or Petitioner's whichever

occured first.

In re Marriage of Stenquist, supra;

Waite v. Waite, supra;

Bensing v. Bensing

(1972) 25 Cal, App. 3d 889.

Equal division of Community property does not

include the division of Petitioner's separate proper-

ty whereby Respondent is awarded her separate

property, and the contingent annuity left to her is

awarded to her, in part.

A portion of a separate contingent asset can

not be awarded in lieu of an existing community

asset, and deemed an equal division.

The lack of standards and guidelines in the

statute resulting in the abuse of discretion and

jurisdiction of the Court, in doing what it deemed

"proper'' compels the finding that section 4800(a)

(b) is void and repugnant to the supremacy clause

of the United States Constitution,

The immediate payment to Respondent, by the

sale of Petitioner's home, of over one half the

value of the contingent annuity, is subject to this

Court's consideration as a most substantial federal

question, and prohibited state action,

Shelley v. Kraemer, supra.

35.

3, The Lack of Guidelines and Stand-

ards in Section 4800(a)(b) Cali-

fornia Civil Code Has Resulted in

Prohibited State Action Impairing

Petitioner's Contractual Rights

Under the Fox Pension,

The irrevocable assignment and gift of the

annuity remainder created rights in petitioner as

a donee beneficiary to the annuity contract.

These rights, having fully matured, could not

be changed nor destroyed by state action,

Article I, §10 U.S. Constitution;

Frazier v. Tulare County Board of

Retirement

42 Cal, App. 3d 1046 (1974),

The state of California is subject to the

supremacy clause of the United States Constitution,

The summary refusal of the state of California to

adhere to the property and personal rights as

guaranteed by the Treaty of Guadalupe Hidalgo,

the United States Constitution and the amendments

thereto, to Petitioner raises those substantial

federal questions warranted of review and con-

sideration by this Court. (pp. 11, 51, 54, 64,

65, 82, 42 c.b., p.h., h, c.p., c.q).

36,

4, The Lack of Guidelines and Stand-

ards in Section 4800(a)(b) Has Re-

sulted in Petitioner's Not Being

Awarded Any Part of Her Unmature

County Pension and the Award to

Respondent of Her Separate

Property.

Petitioner's County pension is unmatured and

subject to many 1 § enamine not under the con-

trol of petitioner. 3

3/

~ The county pension and disposition is set out in

the petition for writ of certiorari, but is contained

herein for convenience,

Petitioner's unmatured pension, a part of her

employment agreement with the County of Los

Angeles in the performance of her duties as a

deputy district attorney, is found in California

government code §§3300 et seq. It is subject to

change by state legislation, at any time, until

maturation and retirement,

Betts v. Board of Administration

(1978) 21 Cal, 3d 859,

The rule of French v, French (1941) 17 Cal, 2d

775, whereby a pension, not yet matured at time

of dissolution, was not subject to division and

award on dissolution was overruled by In re

Marriage of Brown (1976) 15 Cal. 3d 838, just

(con't p, 38, )

37.

The refusal by the Court to apportion the

pension, as required by the law of California, and

3/ (con't)

before the trial in this matter, For convenience

the facts of the County pension are set forth,

The County Pension

Petitioner commenced employment with the

County of Los Angeles in or about May of 1970,

Participation in the pension plan is a mandatory

condition of the employment. Contribution by

the employee is required, and at the time of

separation there was about $10,000 of employee

contribution in the fund which could not be with-

drawn unless petitioner quit.

The testimony of the administrator of the plan

and the plan and employment agreement, exhibits

of record on appeal, are uncontradicted.

Participation in the plan commenced in May 1970

and the pension will not mature until there has been

ten consecutive years of service with the County

and the employee reaches the age of 55,

Petitioner, the employee, has the sole and ex-

clusive right to direct the character of the plan,

The election can be made after the ten years of

continuous service, Petitioner has the sole and

exclusive right to determine the beneficiary, if

any under the plan, or to determine none, Any

(con't p. 39)

38,

the supremacy clause of the United States Consti-

tution, has resulted in Respondent receiving not

3/ (con't)

number cf contingencies, including legislative

change in the plan, death of petitioner, leaving

county service, illness and the taking of work

related compensation, or other contingencies,

could prevent maturation,

The law of California provides that a pension

must be apportioned as to the community and

separate property interests. Under the formula

set forth by the Courts five tenths (1/2) to amount

of $220 monthly, which would result if maturation

occurred in May or June of 1980, is the communi-

ty interest. Respondent would be entitled to one

half of the community share of $110 each month

as it Came due, or about $55 monthly.

The Court evaluated the unmatured pension on

petitioner's life expectancy of over 20.5 years

after Respondent's death. The court refused to

apportion as to community and separate interest,

and awarded to Respondent one half the amount

actuarially calculated. Respondent is to receive

his share immediately through the sale of peti-

tioner's home and his receipt of the procecds.

By the terms and obligations of the contract of

employment, Respondent has no right or interest

in the contract, and is not a party thereto,

39,

one half the community interest in the pension,

but one half of petitioner's separate property

interest, one half of the community interest and

one fourth of Petitioner's community interest.

The lack of statutory standards permitted

this prohibited state action, as the Court deemed

it proper,"

Respondent has no right to share in that un-

matured pension after his death. His demand

that the pension be evaluated on actuarial tables

of life expectancy was predicated on his urging

on the Court that he was entitled to one half of

the pension evaluated on petitioner's life, of over

20.5 years after his death actuarially in August

1981,

The supremacy clause of the United States

Constitution precludes and prhoibits such an award

and disposition,

Apportionment must be made as to community

and separate property interests. The same form-

ula for apportionment as was used for the Fox

Pension must be utilized,

In re Marriage of Stenquist, supra.

Respondent's rights by way of actuarial tables

and his own claim that he will die, actuarially, in

August 1981, requires that the pension which will

not mature until June 1980, assuming contingencies

do not prevent maturation, be evaluated as five

tenths (1/2) community as to the payment of $220

in June 1980, or $110, He would then be entitled

40,

ae

to one half that amount for the months he would

live until August 1981. The date for commence-

ment of evaluation would be the date of maturation,

June 1980, wherein he would be entitled to less

than $900.

In re Marriage of Stenquist, supra;

In re Marriage of Wilson

(1974) 10 Cal, 3d 851,

Contrary to the unpublished Opinion of Re-

spondent Court, neither Respondent nor any of his

heirs, as a bank account or with any interest at

all, is entitled to share in the County pension

after Respondent's death,

Thereafter it is petitioner's sole and separate

property.

In re Marriage of Stenquist, supra,

The Opinion of Respondent Court and its reli-

ance on Phillipson v. Board of Administration is

not warranted nor the correct statement of the law.

The California Supreme Court, In re Marriage of

Stenquist, supra, expressly states that the reason-

ing of Phillipson is not applicable and that no right

exists in a pension after death,

Further the limitation on Phillipson to its

facts, where the pension was mature, but the

husband, who had taken all the other community

and separate property assets and left the state

with his mistress, had neglected to designate which

option was to be invoked, required the Court to

invoke the option whereby the guiltless spouse

41,

received all of the pension,

§4800(b)(2),

The supremacy clause of the United States

Constitution prohibits state action whereby Peti-

tioner's separate property guaranteed to her by

the Treaty of Guadalupe Hidalgo and the United

States Constitution is taken by a proceeding in

dissolution,

9th, 14th Amendment, U.S. Const. ;

Article VI cl. 2, U.S. Const,

Both parties must bear the riske that an un-

matured pension will not mature, Equal division

precludes the award to Respondent of an immedi-

ate share of the unmatured pension by the sale of

petitioner's home, and his receipt of the proceeds,

wherein Petitioner alone must bear the risk that

the pension will not be changed by statute, she will

not die, she will not be fired for cause, she will

not become ill, or the pension will not mature due

to unknown contingencies,

Since the landmark decision in 1976, that an

unmatured or contingent pension is an asset to

be divided equally on dissolution, In re Marriage

of Brown (1976) 15 Cal, 3d 838, the Supreme Court

of California has cautioned against the use of

speculative actuarial tables to effectuate an im-

mediate division.

In re Marriage of Skadon

(1977) 19 Cal. 3d 679,

42,

ca -

The division other than by the retention of

jurisdiction by the Court until the pension matures

and Respondent then would receive the sum of

$55 monthly until his death, or the resolution as

determined In re Marriage of Jafeman (1972) 29

Cal, App. 3d 244, wherein Respondent could re-

ceive one half of the employee contribution made

during the marriage, or about $5000 as a set off

against another existing community asset, is

prohibited state action and a denial to petitioner

of her rights guaranteed by the supremacy clause

of the United States Constitution,

5, The Lack of Guidelines and Stand-

ards Has Resulted in the Prohibited

State Action of Impairment of

Petitioner's Contractual Rights

in the County Pension Which Is

Unmatured,

By reason of the employment agreement,

Petitioner alone has the sole and exclusive right

to direct the final character of the pension plan,

At the time of maturation, she may elect an

option, she may designate a beneficiary, and she,

exclusively may make any decision as to the rights

and obligations under the contract of employment,

Allgeyer v, Louisiana,

165 U.S. 578, 589 (1987),

43,

Respondent is not a party to that employment

contract and has no rights nor duties thereunder,

The unpublished Opinion of Respondent Court

whereby it is stated that the trial court can make,

even before the time has arrived for election, the

determination as to the rights and benefits of the

employment contract, and can grant and give all

of the benefits to Respondent is prohibited state

action, and void,

Art. I§10 U.S, Constitution,

The State of California is subject to the

supremacy clause of the United States Constitu-

tion, There is no state interest nor police

power which can impair Petitioner's rights under

the employment contract, where, the employment

is lawful, as it is here,

B. The Refusal of the Court to Follow

the One Directive Set Out in Section

4800(a)(b), To Value All Assets As

of the Time of Trial or Before Trial,

Has Resulted in the Taking of and

Sale of Petitioner's Separate Prop-

erty Home, and the Award to

Respondent of the Proceeds of Sale.

The sole standard required of a Court by

statute, whereby community assets and obliga-

tions must be evaluated before trial to accomplish

44,

the equal division of community property, was

refused and ignored by the trial Court.

In re Marriage of Knickerbocker

(1974) 43 Cal. App. 3d 103,

The uncontroverted evidence is clear that

Petitioner, during separation, paid community

debts to the IRS, store bills, all of the first and

second mortgage payments on the High Knoll

Home, the taxes on the property, the insurance,

the costs of repairs and replacement of appli-

ances, and all structural repairs necessitated

by land slippage,

The trial Court refused to make a finding, though

requested by Petitioner, as to the amount of reim-

bursement she was entitled by the use of her separate

property funds.

Calif. Civ. Code §5118;

In re Marriage of Smith

(1978) 79 Cal, App, 3d 725,

Such denial of reimbursement for the use of

separate property after separation is a denial of

the equal protection and application of the law,

In re Marriage of Bouquet

(1976) 16 Cal, 3d 583,

Although requested by Petitioner, the trial Court

refused to find a value as to the High Knoll Home,

The home was merely ordered sold, with the

proceeds of sale to be given to Respondent after

the mortgages are paid, and he is paid for any

reimbursements he may have when the interlocu-

tory judgment becomes final.

45,

° Contrary to the law of California, the trial The argument that such procedural rules are

Court authorized the taking of additional testimony exclusively within the state police powers, can not

. to provide Respondent with a vehicle whereby he be sustained, when, as in this case the result is

can receive the whole of any separate property or deprivation of life, liberty and property

community assets available.

9th, 14th amend :

After the interlocutory judgment of dissolu- ment U.S, Const. ;

tion has been entered, the Court may retain juris- Shelley v. Kraemer, supra;

diction for further proceedings concerning spousal , ——

support, child support, or the administration of Kelley v. Johnson, supra;

an unmatured pension plan, and nothing further.

Poe v. Ullman, supra,

In re Marriage of Van Sickle

(1977) 68 Cal. App. 3d 728,

(pp. 11, 28, 42, 51, 30, 54, 64, 65, 82, c.b.: C. The Application of the Incorrect

: p.h., h, CP. Coq) Presumption in Section 5110

California Civil Code and the

Not only must the requirements that value be Unequal Application and Construc-

determined before the trial, to know the amount tion of That Statute Has Resulted

to be divided equally, be adhered to, but findings in the Taking of Petitioner's

as to the amount of community debts paid with Separate Property Home, the

separate property, after separation must be Sale Thereof, and the Proceeds

made, Awarded to Respondent,

Absent this, petitioner was deprived of her

separate property, and the speculation as to value

which, due to the order of sale, resulted in The establishment of presumptions, rules of

Respondent receiving the proceeds from sale. evidence, and the burden of proof is eitite the

regulation of the state of Cali i

In re Marriage of Knickerbocker, supra; jee rn

In California, since 1965, a presumption ha

wn , ’ Ss

In re Marriage of Smith, supra; nott been evidence and therefore can not postin

a judgment, as proof,

In re Marriage of Tammen

(1976) 63 Cal, App. 3d 927,

46. 47

ES EE Ne

Section 600 of the California Evidence Code

encumbrance thereon, is acquired prior

states as follows: , q p

to January 1, 1975, by a married woman

by an instrument in writing, the presump-

tion is that the same is her separate

property, and if so acquired by such

married woman and any other person,

the presumption is that she takes the

part acquired by her, as tenant in

common, unless a different intention is

expressed in the instrument; except,

that when any of such property is acquired

by husband and wife by an instrument in

which they are described as husband and

wife, unless a different intention is ex-

pressed in the instrument [emphasis

added] the presumption is that such

property is community property of said

husband and wife, "'

''§600. Presumption and inference de-

fined. (a) A presumption is an assump-

tion of fact that the law requires to be

made from another fact or group of facts

found or otherwise established in the

action. A presumption is not evidence,

(i

The face of the 1973 deed by which the High

Knoll Home was acquired, and of which a certified

copy is in evidence and in the record on appeal,

states that such property was granted to:

"

coceecesee Maurice R Morton and

Rosalie L. Morton, husband wife, as

joint tenants, not tenants in common,

not communit he

unity property ''§5107 [Wife's separate property, and

conveyance thereof] All property of the

wife, owned by her before marriage and

that acquired afterwards by gift, bequest,

devise, or descent with rents issues and

profits thereof, is her separate property.

The wife may, without the consent of her

husband convey her separate property,"

And, section 5110, 5107, 5104 and 5103 state:

''§5110: [Other real property situated in

this state and other personal property

acquired during marriage: Presumptions. ]

Except as provided in sections 5107,

5108, and 5109 and Subdivision (c) of

section 5122, all real property situated

in this state--acquired during the marri-

age be a married person while domiciled

in this state----is community property:

but whenever any real or personal

property, or any interest therein or

'§5104 [Joint Ownership or Community

property] A husband and wife may hold

property as joint tenants, tenants in

common, or as community property. "'

'§5103 [Property transactions between

spouses or with other person governing

confidential relations.] Either husband

48, 49,

of wife may enter into any engagement

or transaction with the other, or with

any other person, respecting property,

which either might if unmarried; sub-

ject, in transactions between themselves

to the general rules which control the

actions of persons occupying confidential

relations with each other, as defined by

Title 8 (commencing with section 2215)

of part 4 of Division 3,"'

Contrary to the express provisions of §5110

(all references to sections are to the California

Civil Code, unless stated otherwise) Respondent

Court, in the unpublished Opinion applied the

incorrect presumption to the face of the deed,

Respondent Court states that the face of the deed

raises the presumption that the property is com-

munity property, and further states that Respon-

dent could use his secret intent and fraud to

declare the intent of the parties.

Both of the statements, both as to fact and

law, are incorrect,

The record on appeal, including the reporter's

transcript, documents and exhibits of record,

petitioner's briefs on appeal, and Respondent's

reply brief, in which he admits that he did not

overcome the presumption on the face of the deed,

but that petitioner did, is without contradiction,

Respondent by his testimony stated that he

and his business manager, Lee Winkler, who

contrary to the Opinion of Respondent Court, as

shown by the testimony of record in the reporter's

50,

transcript (p. 768), was not Petitioner's business

manager, demanded to and did exclusively handle

the escrow and purchase of High Knoll, (Exhibit

"A'' - Deposition of Respondent. )

Respondent Court, in its unpublished opinion,

refers to the testimony of Winkler wherein he

states the community did not have the funds or

money to purchase High Knoll,

At page 260 of the reporter's transcript, an

exchange between the Court and Respondent is

found as follows;

"The Court: The thing I don't understand

is why did you keep hitting the bank for

these loans? You had income, she had

income, what was the problem?"

"Respondent: Your Honor, that's the

reason why I retained Mr. Winkler,

I could not control the expenditures of

money or our taxes that were present

during those years. We were in debt

from the very day we married. We

never got out of it." [emphasis added]

Winkler was not retained nor consulted until

February of 1973, almost ten (10) years after the

marriage, (Reporter's Transcript p. 260.)

The insolvency of the community, during

the whole of the time the marriage existed, was

further testified to by Denise Kahn, Respondent's

witness, an employee of Winkler. (Reporter's

Transcript, pp. 573-589),

ol,

The lack of any evidence to support the trial

Court, was pointed out again and again to Respondent

Court. There is no evidence, competent nor other-

wise, by which Respondent Court, in the unpublished

Opinion, can make the statement that evidence exists.

(p. 30 c.b.)

Further, the testimony of Esther Kascle, an

attorney at law, with a masters degree in Tax from

the University of Southern California School of law

and a licensed Certified Public Accountant, testified

unequivocally that from the date of its inception, the

community was insolvent and near bankruptcy. The

only funds available for the purchase of High Knoll

were the separate property funds of petitioner. These

funds were traced to the sale of Petitioner's Canfield

home, owned before marriage to Respondent and

received as an award by Court judgment in her prior

divorce proceedings, and the rents issues and profits

of similar separate property. (Exhibits G, D, J, L)

(R.T. pp. 806-817).

These funds had been placed in separate

savings accounts by petitioner on the receipt

thereof, and not only had the separate property

not been commingled with community property,

but had not been commingled with each other.

Esther Kascle traced these separate property

funds directly from the separate property asset

to the purchase of High Knoll and deposit in

escrow in July and June of .1973 (R. T, 587-590).

There is no credible evidence of record that

the community received a refund of $10, 000 in

taxes in 1973, Instead, the IRS record clearly

states that an audit occured as to the 1972 tax

52.

liability concerning Respondent's alleged support

payments to his ex wife. The additional payment

required by that audit was made by Petitioner,

after separation, by IRS deducting the sum from

her income tax refund. Whereby she paid this

community debt with her separate property and

was denied reimbursement therefor,

In re Marriage of Smith, supra;

Calif, Civ. Code §5118,

Moreover the testimony of both Winkler and

Esther Kascle that before and after 1973, the

community debts far exceeded any asset, includ-

ing an alleged refund, precludes community assets

as a source of acquisition. Respondent, personal-

ly testified that in 1974 he was in debt in the amount

of $20,000. However, no disclosure was made as

to the reason, the disposition of the funds, nor the

use to which they were put,

Also totally absent is any evidence, nor did

Respondent so contend, that Petitioner intended

to give Respondent any part of her separate proper-

ty asa gift. To the contrary, both Respondent

and his secretary, Rose Branz admitted the forgery

of petitioner's signature whereby separate property

of petitioner was obtained without her knowledge

and/or consent, and the title to High Knoll was

taken in joint tenancy rather than as her sole and

separate property, as she directed the escrow

officer (R, T, 420-424),

The presumption, which arises from the face

of the 1973 deed is that the property is joint

53,

tenancy, and separate property not subject to the

jurisdiction in a court of dissolution.

In re Marriage of Robinson, supra.

Neither Respondent's secret intent to take

title in joint tenancy and appropriate petitioner's

separate property, nor his assertion that com-

munity funds were used in the acquisition, is

adequate to overcome that presumption,

In re Marriage of Frapwell

(1975) 49 Cal, App. 3d 597;

Gudelj v. Gudelj

(1953) 41 Cal, 2d 202;

Hansford v. Lasser

(1975) 53 Cal, App. 3d 364,

Had, in fact, a community asset been used

for acquisition, the published Opinion of this Court,

prohibiting restrictions by state action as to

transmutation of property, would have compelled

the finding that the supremacy clause of the United

States Constitution guaranteed petitioner her

separate property rights in her home,

Free v. Bland, supra;

Wissner v. Wissner, supra,

The device of designating a presumption as

"procedure, '' whereby prohibited state action is

permitted by California, where the action results

in the taking of life, liberty and property, has not

54,

yet been agreed to by this Court as permissible

State action,

Western & Atl. R. Co. v. Henderson,

279 U.S, 639 (1929);

Manley v. Georgia,

279 U.S. 1, 7 (1929);

Shelley v. Kraemer, supra;

Morrison v, California,

288 U.S, 258 (1933)

Morrison v, California,

291 U.S. 82 (1934),

Petitioner could, by the use of either of two

methods, overcome the presumption of joint ten-

ancy on the face of the deed, to wit:

a, evidence of the insolvency of the com-

munity at the time of acquisition

b, the use of separate funds traced to the

acquisition,

In re Marriage of Mix

(1975) 14 Cal. 3d 604;

In re Marriage of Jafeman, supra;

In re Estate of Murphy

(1976) 15 Cal, 3d 907,

55,

Both methods of proof, without contradiction,

are of record, High Knoll is petitioner's sole

and separate property, acquired by the non-com-

mingled, separate property funds, and rents issues

and profits therefrom, owned prior to her marriage

with Respondent,

Whether or not a joint tenancy or separate

property could be found the same result would ensue

and a court in dissolution would be precluded from

disposing of High Knoll by sale, aware, or otherwise.

In re Marriage of Kitscher

(1978) 79 Cal, App. 3d 527,

Petitioner's burden of proof as to Respondent's

forgery, fraud and embezzlement, both by himself

and his secretary, is not heavy (R, T, 228-237),

Respondent's own admissions, and testimony

of record and that of Rose Branz, is more than

adequate (R, T, 800-801; 465-490; 615),

Liodas ve Sahada

(1977) 19 Cal. 3d 278,

This uncontradicted breach of a fiduciary duty,

as a matter of law, renders Respondent a construc-

tive trustee for Petitioner, both as to High Knoll

and the unaccounted for community funds in an

amount of over $300,000 (R. T, 294-296; 800;

801).

Calif, Civ, Code §§ 2223, 2224,

56,

The supremacy clause of the United States

Constitution guarantees Petitioner's rights to her

separate property. Prohibited state action by

which she is deprived of her home by sale and

the proceeds delivered in total to Respondent

presents a substantial Federal Question to this

Court. (pp. 11, 28, 30, 51, 54, 64, 65, 82,

Cabo Bes, By CoPsn CoG)

Respondent's reply brief consisted only of

the bald conclusion without any specific designation

in the record, or documentary support that the

Interlocutory Judgment was supported by substan-

tial evidence, Respondent's purported authority

for his position as cited on page 6 of Respondent's

Brief (Fountain v,. Maxim and Williams v.

Williams), have no application at bar; because,

the facts are not analogous. Both cases deal

with the presumption created by former §164 of

the Civil Code, that property acquired during the

marriage is presumed to be community, which

presumption is rebuttable; but, the burden of

proof to rebut such presumption rests on the

party asserting that the property is not community,

In Williams v, Williams (1971) 14 Cal. App. 3d

560, 565, the Court stated:

(4) It is incumbent upon the parties

to an appeal to cite the particular portion

of the record supporting each assertion

made, It should be apparent that a re-

viewing court has no duty to search through

the record to find evidence in support of

a party's position, "

which Respondent has not done,

97,

An example of Respondent's general course

of conduct is found by noting that in August of

1975, after the separation and after this action

was filed in May of 1975, but before the trial in

this matter in August of 1976, Respondent ex-

ecuted and recorded a notarized deed which states;

"Maurice R. Morton, quitclaims, con-

veys, transfers, assigns and delivers

all and any right title and interest in

the real property 15601 High Knoll Road,

Encino, California to IRWIN R. MILLER,

IN TRUST FOR CAROLYN ROSALES,"

(emphasis added and total deed not included)

Neither Respondent nor his attorney of record,

Irwin R. Miller, advised the trial Court nor peti-

tioner of the transfer or the deed.

Petitioner first discovered this deed in July

1978 when she ordered a certified copy of the

High Knoll deed as an exhibit to the petition for

rehearing. A certified copy of the 1975 deed

was annexed to the petiton for rehearing and to the

the petition for hearing in the Supreme Court of

California,

Although petitioner had heard that Respondent

was going to attempt to assign a portion of her

home to another person but intended to keep a life

estate, she could not find any evidence of such a

transaction (C, T.).

The concealment from petitioner and the trial

court of the existence of the 1975 deed, not only

denied jurisdiction to the Court over the property,

98,

as Respondent had no interest therein, and indis-

pensable parties had not been joined, but deprived

petitioner of a defense and thereby a fair trial with

procedural and substantive due process, as man-

dated by the United States Constitution and the

amendments thereto.

Had High Knoll been community property, the

transfer before trial would have converted the

property to tenants in common, and petitioner's

separate property, not subject to the jurisdiction

of the Court.

In re Marriage of Kitscher, supra;

Green v. California, supra.

This Court, by published Opinion, has already

decided the Federal Question which prohibits state

action in unequal application of the laws of evidence

whereby a trial on its merits is prevented.

Respondent Court decided that Federal Ques-

tion contrary to the directives of this Court.

Green v. Calif.,

399 U.S. 159 (c.b. p. 30)

59.

D. The Supremacy Clause of the United

States Constitution Prohibited the

State Action Whereby Petitioner's

Separate Property Insurance Policy,

of Which She Is Owner and Benefici-

ary Could Be Awarded to Respondent.

Respondent Court, in the unpublished Opinion,

neither mentioned petitioner's contention that the

Equitable Life Assurance Company policy, of

which petitioner was the sole owner and beneficiary,

and which produced semi annual dividends, could

not be awarded to Respondent.

At page 27 of the reporter's transcript on

appeal, Respondent answered questions by his

counsel of record as follows:

"Q. Who is the owner and beneficiary

of the $50,000 term policy with Equitable ?

"A. Mrs. Morto ."'

In the record on appeal is the exhibit of

Respondent's holographic will, in which he states

that all insurance policies are petitioners and

that they were paid for by her sole and separate

property. (Exhibit ''BBB.'')

His testimony, of record, is that he intended

and meant exactly what was said in that will, which

had been delivered to petitioner at the time he

wrote it.

60.

:

Whether the policy is a transmutation, which

can not be restricted by state action, as already

determined by published Opinion of this Court,

or it is Petitioner's separate property, per se,

the trial court still would have no jurisdiction

thereover.

The supremacy clause of the United States

Constitution must prevail to prevent prohibited

State action which denies petitioner the right to

her separate property, guaranteed to her by the

Treaty of Guadalupe Hidalgo.

9th, 14th amendment U.S. Const.

The theory, by which the trial Court could

determine the policy was without value and there-

by could award it to Respondent, has not been

discussed, considered nor disclosed by Respon

dent Court in the unpublished Opinion.

The guarantees of the Federal Constitution

compel this Court to consider the substantial

Federal Questions presented. (pp. 11, 28, 30,

51, 54, 64, 65, 82 c.b.:p.h., h., c.p., C.q)

61.

E, Misuse of Judicial Power Where

Not Required by State or Police

Power Legitimate Interests Is

Prohibited State Action Under the

Supremacy Clause of the United

States Constitution.

This Court, by published Opinion, has already

decided the substantial Federal Question that

Judicial action, which impairs the privileges and

immunities of Citizens of the United States or,

which injures them in life, liberty, or property

without due process of law, or denies to them

the equal protection of the law is void.

Shelley v. Kraemer, supra.

State responsibility is not cleared by the fact that

Respondent Court was not authorized by statute to

deny petitioner her share of the Fox pension equal-

ly as it was paid as Respondent; take from her the

separate property contingent annuity remainder;

take from her her home; take from her the sepa-

rate property interest in her unmatured County

pension, and provide and change the contractual

guarantees of the contract of employment.

Yick Wo v. Hopkins,

118 U.S. 356 (1886)

Only the misuse of power and the failure to

follow the law equally, or at all, caused the dam-

age to petitioner's property rights which are

protected by the United States Constitution.

62.

The taking of the insurance policy without

authority or discussion is violative of Constitu-

tional prohibitions.

United States v. Classic,

313 U.S. 299, 326 (1941);

Art. IV §2 United States Constitution;

14th Amendment §1 U.S. Constitution.

1. Refusal to Apply the Law As

Required in Section 5125

California Civil Code Is Pro-

hibited State Action.

Respondent admitted that he gave to his adult

30 year old divorced daughter, who would not

work, at least three cars, paid all of her living

expenses, medical and dental expenses, insurance,

and gave her a weekly sum of that like he paid his

ex wife for support, which sum was designated

as $150 weekly.

Contrary to the unpublished Opinion of the

Respondent Court, petitioner neither knew about

the gifts nor did she consent to the gifts (R.T.

116-118; 232-237; 326; 327; 435-437; 787, 981).

There is no evidence of record to support

the unpublished Opinion of Respondent Court,

Denise Kahn, an employee of Respondent's

business manager, testified that Petitioner kept

asking her where the money was going, questioned

her about gifts to the adult daughter, and was

suspicious. 63.

XN

Section 5125 of the California Civil Code

requires a writing in consent of such a gift be the

evidence of intent. There was no such writing

at bar,

Respondent Court, to sustain the statement

of the trial court that it seemed all right to have

Respondent give what he wished to his daughter,

and the trial Court knew no reason why he could

not do so, in its unpublished Opinion, states that

petitioner is estopped to demand the writing.

Such authority for such Opinion is an old case con-

cerning partnership law where both partners had

equal management and control of the assets.

In no way, as the Opinion suggests, does the

case cited concern itself to management and con-

trol of community assets by Respondent which

was mandatory as to petitioner.

The evidence of a writing is required as con-

sent to such a gift to prevent the deprivation of

property to petitioner on dissolution.

In re Marriage of Hopkins

(1977) 74 Cal. App. 3d 591.

California Civil Code §5125(b) states as

follows:

'(b) A spouse may not make a gift of the

community property without a valuable

consideration, without the written consent

of the other spouse. "

64,

Petitioner is entitled to reimbursement of

her separate interest in community property

given as a gift of at least one half of the over

$75,000 given by Respondent to his adult daughter

(R.T. 483-499).

Fields v. Michael

(1949) 91 Cal. App. 2d 443;

Vai v. Bank of America

(1961) 56 Cal. 2d 329.

2. The Refusal to Require Respon-

dent to Account for Community

Funds and the Requirement That

Petitioner Prove Where the Un-

accounted For Funds Were, How

They Were Used, and That They

Still Existed, Was Prohibited

Judicial Action.

Respondent refused to produce bank and

business records, kept exclusively by himself

and his secretary. He and his secretary were

the only persons who were signatories to accounts

carried by Respondent to which Respondent

deposited some of petitioner's separate assets.

The records were kept at his business location

(R.T. 228-237).

Petitioner did not know where the accounts

were, which banks were used, or what disposi-

tion had been made of the proceeds.

65.

Respondent refused, although served with a

demand pursuant to §§ 1985(b)(c) of the California

Code of Civil Procedure, to produce the records

as demanded (R.T. 294-296).

Respondent produced no records for Bank of

America, at which he testified such account was

still in existence; produced minimal records for

Union Bank, only up to 1972; produced business

records of Winkler, in Court, which Esther Kascle

testified were substantially different in kind and

substance, than those shown to her at Winkler's

office, purporting to cover the same items

(R.T. 466-474; 560).

The Fox records, subpoenead by petitioner

evidenced sums amounting to more than $24, 000

at termination and other large amounts which

were not accounted for (R. T. 467-469; 498-499;

616-617).

Testimony from the head of the accounting

department at Fox noted that there were very few

such checks covering termination pay and that

when he went to get such cancelled checks, pur-

suant to the subpoena, he found that the large

check issued to Respondent could not be found.

(p. 5 of Exhibit LLLL., )

As vice president of business affairs and

administration, the accounting department and

the cancelled checks were under Respondent's

control (Exhibit LLLL).

66,

At one point in time, counsel tor Respondent

mentioned over $19,000 in stocks, also not accounted

for (R.T. 914) (Exhibit LLLL, 2, 3).

The trial Court refused to permit impeachment

of Respondent by the use of his own signed letters

and business documents, or to permit such items

to be entered in evidence. (Exhibits HHH, III,

JJJ, KKK, KK, FF, Q, R, A, B, C, F, G, H,

I, K, M-QQQ. )

Petitioner had received, from a friend at Fox,

a box of records which had been marked "'trash"'

and which Rose Branz identified as having been

cleaned out of Respondent's office and having been

left with her for destruction (R.T. 970-971).

By reason of the foregoing, petitioner was

deprived of a fair trial as required by the due

process and equal protection clauses of the United

States Constitution. These Federal Questions, by

published Opinion, have already been decided by

this Court.

Calif. v. Green,

399 U.S. 159.

By the law of California, and the leading case

which is a decision by Respondent Court of Appeals

of the State of California, Second Appellate District,

Division One, Williams v. Williams, (1971) 14 Cal.

App. 3d 560, Petitioner need only show that by Esther

Kascle's accounting, sums of community assets of

over $200,000 were unaccounted for (R.T. 483-499).

67.

Thereafter Respondent had the duty to account

and to state the precise use and location of the

assets. (pp. 11, 30, 51, 54, 64, 65, 82, 42 c.b.:

p.h., h. c.p., c.q.) (Exhibit A-QQQQ, 2-10

incl. )

Ames v. Ames

(1976) 59 Cal. App. 3d 234;

Weinberg v. Weinberg

(1967) 67 Cal. 2d 557, 563.

Reimbursement for at least one half this sum

is guaranteed to petitioner by the supremacy

clause of the United States Constitution.

3. State Action Can Not Prevent

Petitioner's Access to This

Court.

Respondent Court's refusal to grant a Stay of

proceeding or to set an amount whereby a Stay

Bond could be posted, refusal to Honor the origi-

nal Stay, which was never dissolved, the refusal

to certify the Constitutional Questions on Appeal,

and the denial that California is subject to any

law other than the local law results in Petitioner

being denied access to this Court.

This substantial Federal Question, if nothing

else, should be considered and determined by

this Court.

Boddie v. Connecticut,

401 U.S. 371 (1971).

68.

III

CONCLUSION

STATE ACTION DEPRIVING PETITIONER

OF A SUBSTANTIAL RIGHT IS REVIEW-

ABLE BY THIS COURT UNDER THE

SUPREMACY CLAUSE OF THE UNITED

STATES CONSTITUTION,

Either a law or action by the state which de-

prives a person of a protected right must be held

invalid, even were a legitimate governmental

interest involved.

Whether the state action, as to Petitioner,

was due to misinformation, the desire to protect

the interlocutory judgment of the trial Court,

general dislike of prosecutors in the County of

Los Angeles, or even dislike of Petitioner, is not

what is relevant or meaningful.

It is for these very reasons that review by

this Court is compelled when guaranteed rights and

protections have been violated by state action.

The unbiased equal application and protection

of the laws and the guarantees of life, liberty and

property, must be equally dispensed to the saint

as well as the most gross criminal.

69.

All persons, men, women, and children, as

well as ficticious ''persons" are entitled to receive

those personal and property rights guaranteed by

the Constitution.

The Treaty of Guadalupe Hidalgo has given

those women domiciled in California personal and

property rights over and above rights afforded in

other States and other community property states.

From the inception, the intention was to make

those rights equal to rights afforded the husband

and the men in California.

If proposed amendment XXVII should ever

become a part of the Constitution of the United

States, then all women in the United States will

be entitled to equal treatment with the men.

In California, it has taken over one hundred

years to come near to what the Treaty guaranteed

in 1848. Some of the slowness of action is due

to the substantial work and cost involved to apply

to this Court.

Resistance accounts for a great deal.

It is only this Court which is capable of

setting the appropriate standards and determining

the substantial Federal Questions presented.

Respect for the integrity and dignity of the

court system and judiciary is a requirement funda-

mental to the linited States Constitutional system

of Governmeni.

70.

The absolute deprivation and destruction of

Petitioner's community and separate property

rights, guaranteed to her by the United States

Constitution, compels consideration by this Court

of those basic and fundamental Federal Questions

presented,

Palko v. Conn, supra.

Respondent court can not ignore those published

Opinions of this Court, and decide federal questions

on the premise that the Supremacy Clause of the

United States Constitution does not bind or control

California which acts and is entitled to act on

strictly "local" law.

The United States Constitution, and the

Supremacy clause therein, controls the State of

California as it does every other state in the

Union,

Wherefore Petitioner Prays that the Honor-

able Chief Justice, Warren E. Burger, and the

Associate Justices of the United States Supreme

Court, will permit the late filing of the Petition

For Writ of Certiorari and will consider and

determine the substantial Federal Questions

presented by Petitioner herein.

71,

For the reasons aforesaid, it is respectfully APPENDIX A

prayed that a writ of certiorari be granted to re-

view the judgment of the Court of Appeals, Second '

Appellate District Division One.

4

Respectiully submitted, CLERK'S OFFICE, SUPREME COURT

4250 STATE BUILDING

ROSALIE L, MORTON

SAN F "RANGES, GALIFORNIA 94102

ee “Sep 4= 1979

I have this day filed Order, —

Attorney for Petitioner

In pro se

eee —e_- meee . - ee

" oth Ad nde)

HEAR "G [ Dz: ol

Inre:____-¢ Civ... No, 52725 |

In_ re Marriage of Morton |

ts,

Respectfully,

G. E. BISHEL

Clerk

syori es ' te aM Oa

72.

APPENDIX B-1

IN THE SUPREME COURT OF THE

UNITED STATES

In re Marriage of Morton

ROSALIE L. MORTON,

Petitioner,

Vv.

SUPERIOR COURT, LOS ANGELES

COUNTY, STATE OF CALIFORNIA

COURT OF APPEAL, STATE OF

CALIFORNIA, SECOND APPELLATE

DISTRICT, DIVISION ONE,

J)DECLARA-

)TION OF

)

) ROBIN J.

) SHERBURNE

SUPREME COURT OF THE STATE OF)

CALIFORNIA,

Respondents,

MAURICE R. MORTON,

Real Party in Interest.

)

eee eee ee

I, Robin J. Sherburne, declare as follows:

i, That I am the office manager of West-

side Law Publishers, Inc., 606 Wilshire Boulevard,

Santa Monica, California,

2. That on December 4, 1978, I gavea

package containing 40 copies of a Petition for Writ

B-l, Rs

4

of Certiorari and one copy of a Motion for Stay on

Writ of Certiorari to the Court of Appeal of the

State of California, Second Appellate District,

along with proofs of service by mail thereof, on

behalf of Rosalie Morton, attorney-at-law and

petitioner herein, to an Airborne Freight Corpora-

tion employee, Mr. Jay Walsh, at the hour of

6:10 p.m., for delivery to the United States

Supreme Court on December 5, 1978. The above

referenced brief was required to be filed by the

Clerk of the United States Supreme Court on

December 5, 1978,

3. I was informed by a representative of

Airborne that this parcel was dispatched by special

airfreight handling by Airborne Freight Corporation,

and was to be hand delivered to the Clerk of the

United States Supreme Court in Washington, D.C.

4, I was further informed by an Airborne

representative that the package containing the

briefs was hand delivered by another Airborne

employee to the TWA counter to be placed on

flight No. 78 to Washington, D.C., National Air-

port, where it was to be picked up by another

Airborne employee and hand delivered to the

United States Supreme Court. This shipment

bore the bill of lading No. LAX 6658257,

Flight 78 had a stop over at O'Hare Airport in

Chicago.

5. That we used the services of Airborne

Freight Corporation on a continuing basis in the

past few years, and each time we used special

handling services which would guarantee delivery

from Los Angeles, California to the United States

B-1,

Supreme Court in less than twenty-four hours.

8, Several Airborne Freight employees

6. On December 6, 1978 I was informed have been diligently working with me to locate this

by Geri Marchegiano, a customer service repre- package.

sentative of Airborne Freight Corporation, that

she did not have the proof of delivery information, I declare under penalty of perjury that the

as there were several flight schedules that had foregoing is true and correct. PExecuted at

changed due to weather conditions, and that our Santa Monica, California on December 7, 1978,

parcel was probably sent via another airline or

another flight on to National Airport in Washington, /s/

and that they would not receive the dispatch infor- Robin Joy Sherburne

mation from their computer until they learned

what flight the parcel was diverted to,

Vs Later in the day on December 5, 1978,

I telephoned Airborne Freight Corporation's local

offices to find out if we were able to receive a

proof of delivery yet to the Clerk's of the United

States Supreme Court. Iwas informed by Ms.

Marchegiano that Flight 78 was delayed from

landing in Chicago due to adverse weather condi-

tions, i.e,, 22 inches of snow on the runway at

O'Hare Airport. This Flight No. 78 was to

proceed after changing planes at O'Hare Airport

to National Airport in Washington, and was

scheduled to arrive in Washington at 9:10 a.m.

on December 5, 1978,

I was further informed by Ms. Marchegiano

on December 5, 1978 that an Airborne Freight

employee was attempting to claim the parcel at

O'Hare Airport, and was unable to recover the

package from TWA Airlines. This parcel has

still not been located by either TWA or Airborne

Freight Corporation,

APPENDIX B-2

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declare under penalty of perjury that the foregoing

correct. Executed at Los Angeles, California this

Jy

‘ihager

Len Piaz

District

» D.

Our driver, Jay Walsh, picked up a package (LAX 6658257,

This freight was dropped at TWA, Los Angeles International

Both TWA and Airborne have been tracing this package.

this time we have been unable to locate the freight.

The plane changed in Chicago fram a 707 to a 727.

not been able to determine if this freight boarded the plane

change to Washington, D. C.

Len Piazzon, District Manager of Airborne's Los Angeles

terminal do hereby declare the following:

delivery to the Clerk, U. S. Supreme Court, Washington, D. C.

on December 5, 1978.

In Re Marriage of Morton Petition For Writ of Certiarara

Publishers, 606 Wilshire Blvd., Santa Monica, California for

Airport and logged at the ticket counter for Flight 78 to

10 pounds) at 1810 on December 4, 1978, from Westside Law

15601 High Knoll Road

Encino, California 91436

Ms. Rosalie L. Morton

December 7, 1978

I,

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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