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.