Petitioner for ReHearing — Roesch v. Roesch

Supreme Court brief1979

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In the Supreme Court *

} aser

OF THE enumnaphanamebin

United States

Octoser Term, 1978

No.

Hexen F. Roescu,

Petitioner,

VS.

Wituiam R. Roescu,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal of the State of California,

First Appellate District

LawrRENCE H. StTotrer

Attorney at Law

465 California Street, Suite 400

San Francisco, California 94104

Telephone: (415) 434-0600

Attorney for Petitioner

Of Counsel:

Victoria J. De Gorr

Attorney at Law

1916 Los Angeles Avenue

Berkeley, California 94707

Telephone: (415) 524-1840

BOWNE-PERNAU WALSH * 1045 SANSOME ST. © S.F.,CA 94111 * (415) 981-7882

x»

TOPICAL INDEX

Jurisdiction ...... ys

Question presented .__..

Constitutional provisions and statutes invelved

Statement of the case... __.

Introduction

Background—The aie behind community property and

quasi-community property .

Facts in the present case __.

Reasons for granting the writ

I. California law prior to the present decision was correct

A. The Addison decision

B. The California Family Law Act

C. The Court of — relied on no authority for its

holding...

II. The California Court of ined decision was not in

accord with decisions of this court

A. Fourteenth Amendment due process clause decisions

B. Fourteenth Amendment privileges and immunities

clause decisions .

C. Article IV, Section 2, privileges and immunities

clause decisions __.

III. The present case has a substantial bearing on the

ability of all eight community fe agg states to regu-

late marital — in accordance with their public

policy

Conclusion

Appendix A —July 24, 1978 published Opinion of California

Court of Appeal

Appendix B —Order of California Court of Appeal denying re-

hearing

Appendix C —September 27, 1978 Order of California Supreme

Court denying petition for hearing

re ee

TopicAL INDEX

Appendix D —Judgment of trial court, Superior Court, County

of Alameda, State of California

Appendix E —Findings of Fact and Conclusions of Law of trial

court

Appendix F —May 23, 1978 Opinion of California Court of

Appeal

Appendix G —June 22, 1978 Order of California Court of Ap-

peal granting rehearing

Appendix H—United States Constitutional provisions involved

Appendix 1 —California Code Sections involved

Appendix J —Pennsylvania Statutes involved

ill

TABLE OF AUTHORITIES CITED

Cases

Page

Federal:

Bradwell v, Illinois, 83 U.S. (16 Wall.) 130 (1872) ...... 16

Ferguson v, Skrupa, 372 U.S. 726 (1963) ................ 14

Hamilton v. Regents of the University of California, 293

U.S. 245 (1934), rehearing denied, 293 U.S, 633 ....... 15

Paul v. Virginia, 75 U.S. (12 Wall.) 168 (1868) ......... 16

Slaughterhouse Cases, 83 U.S, (16 Wall.) 36 (1873) ...... 15

Sosna v. Iowa, 419 U.S. 393 (1975) a Ae Core ay

Williams v. North Carolina, 317 U.S. 287 (1942) ........ 15

State:

Addison v. Addison, 62 Cal.2d 558, 399 P.2d 897, 43 Cal.

Rptr. 97, 14 A.L.R.3d 404 (1965) . 12, 13, 14, 15

Hughes v. Hughes, 573 P.2d 1194, 91 N.M. 399 Sai Mex.

Sup. Ct. 1978) . 6,16

In re Marriage of Ridiaen 16 Cal. 3d 583, 546 Pad 1371,

128 Cal.Rptr. 427 (1976) ......... 16

In re Marriage of prea, 80 Cal. Aves 3d 3 380, 145 5 Cal Rptr

716 (1978) .....

Constitutions

United States Constitution:

Fourteenth Amndment |.

Article IV, Section 2

_ 3, 10, 11, 12, 13, 14, 15

3, 10, 11, 12, 13, 14, 15

TABLE OF AUTHORITIES CITED

Statutes

Page

California Civil Code:

Section 140.5 _. Riera eee hs Meee ay tae ae

Section 146 (former section) .......... sn ee take 12

Sections 4000 et seq. (Family Law Act) . .& & 7, Al, 13

Section 4008... ee Oe eee 3

Soothe GHD o.oo chs cnvcadoages eee een 3,7

Section 4506 .......... Jase errr ye

Section 4507 .. tae Pe ee ee wre: 3, 7,13

Section 4530 Pret ae

Section GOR a) ....iilee esas inns Pee eee ., 3,4

Section 4800 ; 3 10, 13, 16

Section 4800( a) gone a Sac aleleue ee emeeaer oe. oe

Section 4008 &. 6s cand cee _3,4,5,7, 10, 12, 13, 16

Section 4805 __. Pe ee a ee 10

Section GOES... ; ..<voao0 vhs sanus ue Ns

Seation GHt «s.ss ss c<tucuueul a 8l0b UE Ree

Secthom GASB. wo. 6c av nas be chase eee 6

Section 5110 ub eae ee aaa aa 6

Arizona Stats. Title 25, ‘Section 318 | 16

New Mexico Statutes Annotated 1953, Community Property

Act of 1973 (Supp. “cha

Ch. 92, Ast 7, GURL) 52s ee reece 16, 17

Ch. 57, Art 4A, §§ 1 et seq. .

Penn. Stats. Tile $3, Ch. 2, GOD... oi. sc eucscetes 4c ee

Penn. Stats. Title 68, Ch. 13, § 501 ... 87

Vernon’s Texas Code Anno, 1 F amily Code Act 3.63........ 17

Wash. Stats. TRie 90, §SRGBRIMD ...... 5 cccins eee e van 17

98 USC. 1907(3) .. 00 icese ee. eee 2

Texts

Professor Herma Hill ( as fi Schreter “ ‘Quasi-Community Prop-

erty’ in the Conflict of Laws” 50 Cal.L.Rev. 206 (1962) 12

7 Witkin Summary of Cal. Law [8th Ed. 1974] Community

Property, § 92, p. 5182 . .

6 Witkin Summary of Cal. Law [sth Ed. 1974] } Husband and

Wife, §§ 52, 125-126 13

~ oa

In the Supreme Court

OF THE

United States

Ocrosrer Term, 1978

No.

Heven F. Roescu,

Petitioner,

Vs.

Wituiam R. Rorscu,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

to the Court of Appeal of the State of California,

First Appellate District

Petitioner Helen F. Roesch respectfully prays that a writ

of certiorari issue to review the judgment and opinion of

the California Court of Appeal, First Appellate District,

entered in this proceeding on July 24, 1978. Said opinion

held unconstitutional the application of California's quasi-

community property law at the request of a party who had

moved to California and filed for dissolution of marriage,

notwithstanding his spouse had consented to and requested

the application of California law, without physicaily taking

up residence in California.

OPINIONS BELOW

The July 24, 1978 opinion of the California Court of

Appeal is reported at 83 Cal.App.3d 96, and 147 Cal.Rptr.

586, and is set forth as Appendix A to the Petition. The

Court of Appeal order denying without opinion the petition

for rehearing is unreported and is set forth as Appendix

B hereto. The California Supreme Court’s order of Sep-

tember 27, 1978, denying a hearing to review the Court of

Appeal decision is unreported and is set forth as Appen-

dix C hereto. The judgment of the trial court, the Superior

Court of the County of Alameda, is set forth as Appendix

D. The findings of fact and conclusions of law of the trial

court are set forth as Appendix E.

An opinion of the California Court of Appeal rendered

on May 23, 1978 is unreported in the California official re-

ports but is reported at 146 Cal.Rptr. 255 and is set forth

as Appendix F of the petition. The June 22, 1978 order of

the Court of Appeal granting a rehearing is unreported

and is set forth as Appendix G hereto. Following this re-

hearing, the July 24, 1978 opinion (Appendix A) was ren-

dered.

JURISDICTION

The judgment of the Court of Appeal was entered on

July 24, 1978. A timely petition for a hearing to the Su-

preme Court of California was denied by order entered

September 27, 1978 and this petition has been filed within

90 days of that date. This court’s jurisdiction is invoked

under 28 U.S.C. 1257(3).

QUESTION PRESENTED

Whether the United States Constitution prohibits Cali-

fornia from applying the totality of its marital property

law to a California resident who seeks to terminate his

marriage in California, having moved to California from

another state which has a completely different marital

property system.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The relevant provisions of the United States Constitu-

tion which are involved in this case are the due process

clause of the Fourteenth Amendment to the United States

Constitution, the privileges and immunities clause of the

Fourteenth Amendment to the United States Constitution

and the privileges and immunities laws of Article IV, sec-

tion 2 of the United States Constitution. (Appendix H.)

The California statutes involved are the following parts

of the California Family Law Act: Civil Code sections

4000, 4350, 4506, 4507, 4530(a), 4800, 4803. (Appendix I.)

For the convenience of the court, the pertinent portions

of Civil Code sections 4800, 4506, 4530 and 4803 are set

forth immediately below.

Civil Code section 4800(a).

“Except upon the written agreement of the parties,

or on oral stipulation of the parties in open court, the

court shall, either in its interlocutory judgment of dis-

solution of the marriage, in its judgment decreeing the

legal separation of the parties, or at a later time if it

expressly reserves jurisdiction to make such a prop-

erty division, divide the community property and the

quasi-community property of the parties, including any

such property from which a homestead has been se-

lected, equally.”

Civil Code section 4506.

“A court may decree a dissolution of the marriage or

legal separation on either of the following grounds,

which shall be pleaded generally:

“(1) Irreconcilable differences, which have caused

the irremediable breakdown of the marriage.

“(2) Incurable insanity.”

Civil Code section 4530(a).

“A judgment decreeing the dissolution of a marriage

may not be entered unless one of the parties to the

marriage has been a resident in this state for six

months and of the county in which the proceeding is

filed for three months next preceding the filing of the

petition.”

Civil Code section 4803.

“As used in this part, ‘quasi-community property’

means all real or personal property, wherever situated,

heretofore or hereafter acquired in any of the follow-

ing ways:

“(a) By either spouse while domiciled elsewhere which

would have been community property if the spouse

who acquired the property has been domiciled in this

state at the time of its acquisition.

“(b) In exchange for real or personal property,

wherever situated, which would have been community

property if the spouse who acquired the property so

exchanged had been domiciled in this state at the time

of its acquisition.”

The Pennsylvania statute involved is Title 23, Chapter

1, section 10, and Title 68, Chapter 13, section 501. (Appen-

dix J.)

STATEMENT OF THE CASE

Introduction

The decision, of which review by this court is now sought,

held unconstitutional the application by the trial court of

an important portion of the California Family Law Act

that defines marital property and requires it to be divided

equally upon dissolution of marriage.’ It held that a

former resident of Pennsylvania, who could not get a

divorce in Pennsylvania because he had insufficient grounds

to do so, could move to California by himself and terminate

his marriage under California’s liberal Family Law Act

“no-fault” dissolution law. Yet, at the same time it held

that California was prohibited by the United States Con-

stitution from applying its qué.si-community property law

which would have required him to share the parties’ mari-

tal property equally with his wife who appeared in the

action. Thus, the United States Constitution has been used

to usurp and to render non-existent California’s power to

regulate the marital property of a resident of the state who

sought the jurisdiction of a California court and applica-

tion of California law to dissolve his marriage, which Cali-

fornia applies to its other residents as a matter of course.

‘As discussed in “Reasons for Granting the Writ” the portions

of the Family Law Act at issue are those sections defining “quasi-

community property” and mandating its equal division on termi-

nation of marriage. (Civ. Code, §§ and 4800(a).)

Background—The Theory Behind Community Property

and Quasi-Community Property

California is one of the eight community property

states. The distinctive feature of a community property

state is its view of marriage as a partnership in which the

spouses are equal partners regardless of the actual division

of labor. Thus, the community property states consider all

property acquired during marriage as the result of the

work or industry of either spouse to be “community prop-

erty” owned equally by both spouses.’ The community prop-

erty system recognizes a wife who does not work outside the

home as an equal partner in the marriage and in the mari-

tal property even if the husband “earns” the money and

“accumulates” the property in his name. This view is based

on the community property states’ strong public policy

favoring equality and non-sex discrimination. See, e.g.,

In re Marriage of Brigden, 80 Cal.App.3d 380, 389-390,

145 Cal.Rptr. 716, 722-723 (1978); Hughes v. Hughes, 573

P.2d 1194, 1197-1198, 91 N.M. 399 (New. Mex. Sup. Ct.

1978). Both California spouses have interests in the mari-

tal property that are “present, existing and equal.” Cal.

Civ. Code, § 5105.

By contrast, Pennsylvania’s common law orientation is

the total antithesis. It does not recognize the wife as a

helpmate and partner engaged with the husband in the

common enterprise of creating a fortune as well as a family.

*The other community property states are Arizona, Idaho,

Louisiana, Nevada, New Mexico, Texas and Washington.

*Even in a a roperty state, a spouse may own non-

community property ca “separate” property. Generally, sepa-

rate property is property acquired before marriage or by gift or

7 ie after marriage. (See, e.g., Cal. Civil Code §§ 5107, 5108,

She is not considered to own marital property equally with

her husband or to have the right to one-half of it upon

the termination of the marriage unless her name actually

appears on the title. Penn. Stats. Title 68, Ch. 13, § 501.

However, her interests are protected by the fact that

Pennsylvania requires traditional fault as grounds for,

divorce, unlike California which dissolves marriage for

irreconcilable differences. Penn. Stats. Title 23, Ch. 1,

§10; Cal. Civ. Code §§ 4506, 4507. All counsel and the

trial court herein recognized that Pennsylvania ana Cali-

fornia have a completely different value system. (RT 23:

19-24; 29:7-12.)

The clash between the two systems in mobile modern

day society occurs more and more frequently. Parties

often acquire property in one state and terminate their

marriage in another. The rights of husbands and wives

to marital property upon termination of the marriage has

long been a troublesome area, especially to California and

the other community property states. To solve the problem

in a manner consistent with California marital community

property law and policy, the California legislature enacted

Civil Code sections 4800 subdivision (a), 4350, 4530 and

4803 as part of its comprehensive Family Law Act in 1969,

effective January 1, 1970, Civ. Code §§ 4000, et seq., Cal.

Stats. 1969, Ch. 1608, § 8, p. 3314.

Under this legislation, dissolution of marriage is granted

without fault and the community property is divided

equally. Upon such dissolution, property acquired else-

where which would have been community property if the

spouse who acquired it had been domiciled in California

at the time of its acquisition is called “quasi-community

property.” It is divided equally upon dissolution just like

community property. This policy was adopted to apply the

burdens with the benefits to non-residents who desire to

submit themselves to California law.

Facts in the Present Case

Petitioner and respondent were married in Pennsylvania

in 1947. (RT 2:4-6.) During the parties’ 27-year marriage,

respondent rose from coal mine mechanic for Jones &

Laughlin Steel Corporation to Chairman of the Board and

President of Jones & Laughlin. (CT 80.) While in Penn-

sylvania and living with petitioner during 1973, respond-

ent negotiated and entered into a contract of employment

with Kaiser Industries. (CT 110-118; RT 78:1-79:7.) On

December 28, 1973, he left petitioner in Pennsylvania and

came to California to be Chairman of the Board and Chief

Executive Officer at Kaiser Industries pursuant to that

contract. (RT 2:7-11; 3:1-6; 121 :24-25.)

Mrs. Roesch planned to come to California as soon as

the parties’ minor son David was out of school in the

summer of 1974. (RT 164:27-165:10; 165 :24-27.) However,

before this time, respondent told petitioner that she could

not join him in California, (RT 165:10-15.)

Respondent did not have grounds for a divorce in Penn-

sylvania or under Pennsylvania law because of Pennsyl-

vania’s fault requirement. (Penn. Stats. Title 23, Ch. 1,

§10.) Petitioner had committed no act which would give

respondent grounds for a Pennsylvania divorce. (Jbid.)

However, after his move to California, respondent became

a resident and domiciliary of California. (CT 1-2.) In order

to terminate his marriage to petitioner, he therefore sought

the jurisdiction and assistance of the law of California by

filing for a “no-fault” dissolution of the parties’ marriage

in California. (CT 1-2.)

Petitioner appeared in the California dissolution action.

(CT 7-8.) She consented to its jurisdiction as to both

marital status and property and requested the application

of California law. Over her objection, respondent had

these issues severed for trial at different times. (CT 280-

289, 298-299.) He obtained the no-fault dissolution of the

parties’ marriage on September 19, 1975 and was remarried

by the time the marital property trial was held commencing

August 30, 1976. (CT 290-293, Ex. No. 1 in evidence at

trial.)

As was to be expected from respondent's success during

marriage, he had acquired substantial property in Penn-

sylvania which would have been community property if he

had been domiciled in California at the time of its ae-

quisition.

At the beginning of the trial, respondent objected to the

application of California’s quasi-property law on the fed-

eral constitutional grounds of due process and privileges

and immunities and the constitutional issues were argued

at length. (RT 16:4-44:23.) The trial court rejected

respondent's constitutional arguments and divided the

marital property in a manner it considered to meet the re-

quirements of California’s quasi-community property laws.

(RT 44: 2-23; CT 466-473.) Respondent did not appeal

from the trial court’s division of the property. Petitioner

appealed froin the judgment on other issues.* (CT 479-481.)

Although he did not appeal from the judgment, respond-

ent replied to petitioner’s appeal by contending that the

court should not consider the errors she alleged in the trial

eourt’s property division because California Civil Code

sections 4803 and 4800 could not constitutionally be ap-

plied to the parties’ marital property at all. The Court of

Appeal issued an opinion in which it agreed with re-

spondent. (Appendix A, pp. 11-14.) It held that unless

both spouses were domiciled in California before a disso-

lution of marriage was sought, Civil Code sections 4803

and 4800 could not be constitutionally applied to marital

property. (Appendix A, p. 13.) It held that to apply Cali-

fornia law to the parties’ marital property would vio-

late the due process clause of the Fourteenth Amendment

to the United States Constitution, the privileges and im-

munities clause of Article LV, section 2 of the United States

‘Although not at issue in this Petition for Writ of Certiorari,

etitioner had the following complaints on appeal: (1) Respondent

ad made transfers of approximately $278,000 worth of prope

starting shortly after the parties’ separation until before the trial.

The trial court refused to consider this property to be quasi-com-

munity property or require respondent to reimburse petitioner for

it. (2) The trial court had refused to award petitioner any of the

valuable life insurance policies on respondent's life a value of

approximately one million dollars at the time of trial) or to value

them at face value instead of cash surrender value. (3) The trial

court refused to divide equally in kind the parties’ long term tax

shelter assets, but awarded them all te respondent. (4) The trial

court refused to charge respondent with $45,000 for temporary

spousal and child support he had paid to petitioner out of the

parties’ marital mopeny rather than out of his current earnings as

required by California Civil Code section 4805. (5) The trial

court awarded petitioner spousal support of only 7% of respond-

ent’s monthly income of between $40,000 and $45,000. (6) The

trial court conditioned child support upon visitation. (7) The

trial court held that certain rights of respondent to $75,000 a year

for ten years for no work whatsoever under his contract with

Kaiser was his separate property under California law.

Constitution and the privileges and immunities clause of

the Fourteenth Amendment to the United States Consti-

tution.® (Ibid.) The California Supreme Court denied peti-

tioner’s petition for hearing on September 27, 1978.

(Appendix C.)

The result of the decision in this case is that respondent

received the best of both worlds while petitioner received

the worst. Respondent could not have obtained a divorce

in Pennsylvania. He was able to take advantage of Cali-

fornia’s no-fault dissolution law to terminate his marriage

to petitioner. Yet the United States Constitution was held

to relieve him from the California Family Law Act’s con-

comitant legislative mandate that he share the parties’

marital property equally with petitioner.

REASONS FOR GRANTING THE WRIT

I. California Law Prior to the Present Decision Was

Correct.

A. The Addison Decision.

As the largest of the eight community property states,

California has repeatedly been faced with the problem of

dividing marital property acquired by parties in other

states who terminate their marriage in California. Pur-

*The Court of Appeal affirmed the trial court's judgment dividing

the property because respondent had not appealed. ( Appendix A, p.

17. owever, petitioner contended that the trial court applied

California legislation in an erroneous manner and that its proper

application would have resulted in her being entitled to approxi-

mately a million dollars more in property than the trial court

awarded her as detailed in footnote 3. As a result of its erroneous

constitutional holding, the Court of Appeal did not consider most

of petitioner's contentions regarding the yt division on their

merits. If this Court were to grant the Writ as requested herein,

the cause should be remanded to the Court of Appeal for a con-

sideration of petitioner's contentions regarding the property issues

on their merits.

suant to the 1960 study and recommendations of the Cali-

fornia Law Revision Commission relating to “Intervivos

Marital Property Rights in Property Acquired while Domi-

ciled Elsewhere,” the California Legislature enacted then

Civil Code section 140.5.° Cal.Stats. 1961, Ch. 636, § 2, p.

1938. This section defined “quasi-community property”

as all personal property and all real property in Cali-

fornia which had been acquired by parties domiciled else-

where which would have been community property if

acquired while they were domiciled in California. It di-

vided quasi-community property upon termination of

marriage just as if it were community property. At that

time, California required fault to terminate a marriage.

Community property was not always divided equally. The

majority of the community property could be awarded to

the innocent spouse. Former Cal. Civ. Code § 146.

In Addison v. Addison, 62 Cal.2d 558, 399 P.2d 897, 43

Cal.Rptr. 97, 14 A.L.R.8d 404 (1965) the California Su-

preme Court upheld the application of former Civil Code

section 140.5 to property acquired by Mr. and Mrs. Addison

while they were domiciled in Illinois, a common law state.

Upon his divorcee in California, Mr. Addison challenged

section 140.5 contending that for California to apply its

community property concepts in the form of “quasi-com-

munity property” to the parties’ marital property violated

*Former Civil Code section 140.5 was the predecessor of current

Civil Code section 4803 at issue herein. (Deerings California Codes

Annotated, Civil Code § 4803, Legislative History; Cal. Stats. 1969,

Ch. 1608, § 8, p. 3314, operative January 1, 1970.) The problems it

was enacted to solve and the early development of quasi-

community property law in California are explained by Professor

Herma Hill (Kay) Schrefer in the “‘Quasi Community Property’ in

the Conflict of Laws” 50 Cal.L.Rev. (1962).

the due process clause of the Fourteenth paras S to

the United States Constitution, the privileges and immuni-

ties clause of Article IV, section 2 of the United States

Constitution and the privileges and immunities clause of

the Fourteenth Amendment to the United States Consti-

tution. 62 Cal.2d at pp. 564-569, 399 P.2d at pp. 902-904,

43 Cal.Rptr. at pp. 102-104. The California Supreme

Court rejected these contentions. /bid.

B. The California Family Law Act.

In 1969, California revised its family law pursuant to

recommendations of the Family Law Commission. It

enacted a comprehensive Family Law Act Cal. Civ. Code,

§§ 4000, et seq., Cal. Stats. 1969, Ch. 1608, §8, p. 3314,

operative January 1, 1970. The Family Law Act repudi-

ated the concept of fault as a basis for termination of a

marriage. It eliminated the existing grounds for divorce,

abolished defenses to divorce, and established two grounds

for dissolution of marriage: irreconcilable differences and

incurable insanity. Along with the elimination of the fault

requirements for marital termination, the Family Law Act

introduced a central new rule requiring the equal division

of the parties’ community property and quasi-community

property except in certain specified unusual circumstances

not relevant to the present case. Cal. Civ. Code §§ 4506, 4507,

4800, 4803. See also, 7 Witkin Summary of Cal. Law [8th

Ed. 1974] Community Property, § 92, p. 5182; 6 Witkin

Summary of Cal. Law [8th Ed. 1974] Husband and Wife,

§§ 53, 125-126, pp. 4936-4937, 5217-5221.

As part of the Family Law Act, Civil Code section 4803

expanded the definition of “quasi-community property” to

all property acquired while the parties were domiciled

elsewhere which would have been community property if

acquired while they were domiciled in California, and all

property acquired in exchange for this property.

C. The Court of Appeal Relied on No Authority

for its Holding.

In the present case, the Court of Appeal distinguished

Addison v. Addison, supra, by limiting it to its facts and

holding that quasi-community property law cannot con-

stitutionally be applied unless both parties move to Cali-

fornia before seeking to dissolve their marriage. The Court

of Appeal held that to apply California law in any other

situation would violate the due process clause of the Four-

teenth Amendment to the United States Constitution, the

privileges and immunities clause of Article IV, section 2

of the United States Constitution and abridge the privi-

leges and immunities clause of the Fourteenth Amendment

to the United States Constitution. (83 Cal.App.3d 96 at p.

107, 147 Cal.Rptr. 586 at 593; Appendix A at pp. 13-14.)

In support of this holding, the Court of Appeal cited no

authority whatsoever. (Appendix A, pp. 13-14.)

II. The California Court of Appeal Decision Was Not In

Accord with Decisions of this Court.

A. Fourteenth Amendment Due Process Clause

Decisions.

Property rights may be impaired without violating due

process under many circumstances. The state’s inherent

sovereign power includes the so-called “police power” right

to interfere with vested property rights whenever reason-

ably necessary for the protection of the safety, morals,

health and general well being of the people. Ferguson v.

Skrupa, 372 U.S. 726, 729-731 (1963); Addison v. Addison,

supra, 62 Cal.2d at pp. 566-567, 399 P.2d at p. 903, 43

Cal.Rptr. at p. 103.

The interest of California in regulating all aspects of

the marital relationship including division of property

upon its termination justifies application of California’s

quasi-community property law where both party litigants

have submitted themselves to California’s jurisdiction and

laws as in this case. Williams v. North Carolina, 317 U.S.

287, 298-299 (1942). Regulation of domestic relations has

long been regarded as a virtually exclusive province of the

states. Sosna v. Iowa, 419 U.S. 393, 404-410 (1975).

B. Fourteenth Amendment Privileges and Immu-

nities Clause Decisions.

The privileges and immunities clause of the Fourteenth

Amendment to the United States Constitution affords no

greater protection than the due process clause. Privileges

and immunities are only those rights that belong to citi-

zens of the United States as distinguished from citizens

of a state, that is, those rights that arise from the consti-

tution and laws of the United States as contrasted with

those that spring from other sources. Hamilton v. Regents

of the University of California, 293 U.S. 245, 261-262

(1934), rehearing denied, 293 U.S. 633; Addison v. Addi-

son, supra, 62 Cal.2d at p. 568, 399 P.2d at p. 903, 43 Cal.

Rptr. at p. 103.

The privileges and immunities clause, just like the due

process clause, does not prevent government authority from

placing restraints upon property of citizens necessary to

protect or preserve public morals, safety, health and wel-

fare. Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 74-75

(1873).

C. Article IV, section 2, Privileges and Immuni-

ties Clause Decisions.

The privileges and immunities clause of Article IV, sec-

tion 2 of the United States Constitution has no application

whatsoever to this case. This Clause has as its purpose

only the prevention of discrimination by one state against

citizens of another. It was not intended to give the laws

of one state operation in another. Paw v. Virginia, 75 US.

(12 Wall.) 168, 180 (1868).

In the present case, the party alleging discrimination by

virtue of the application of California law was himself a

citizen of California and therefore has no basis for com-

plaint. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 138-9

(1872). In fact, California has validly impaired so-called

vested marital property rights of its own citizens. In re

Marriage of Bouquet, 16 Cal.3d 583, 591-594, 546 P.2d

1371, 128 Cal.Rptr. 427 (1976).

III, The Present Case Has a Substantial Bearing on the

Ability of All Eight Community Property States to

Regulate Marital Property in Accordance With Their

Public Policy.

Following California’s statutory lead, Arizona enacted

Title 25, section 318, This statute includes, as community

property for the purposes of division upon divorce, prop-

erty acquired by either spouse outside the state which

would have been community property if acquired in the

state and mandates its equal division upon divorce. Laws

1973, Ch. 139, § 2; Amended 1977, Ch. 138, § 7.

The New Mexico Legislature has not yet adopted a statu-

tory scheme similar to California Civil Code sections 4800

and 4803. However, its Supreme Court recently compli-

mented California’s quasi-community property legislation

at issue herein calling it a very desirable step. Hughes v.

Hughes, supra, 573 P.2d 1194 at p. 1201, 91 N.M. 399, at

p. 406. New Mexico currently divides community property

as is just and proper and permits non-community property

to be divided under certain circumstances. N.M.S.A. 1953,

Community Property Act of 1973 and Supp. 1975, Ch. 22,

Art. 7, 96 subdivisions A and B(1) and Ch. 57, Art. 4A,

§§ 1, et seq.

Other community property states have handled the prob-

lem slightly differently but also in ways that would be

unconstitutional if California’s legislation is unconstitu-

tional. For example, Washington and Texas divide all

marital property (both community property and separate

property) on dissolution in a just, equitable and fair man-

ner. Wash. Stats. Title 26, § 26.08.110; Vernon’s Texas

Code Anno. 1 Family Code Act 3.63, Thus, property which

would be all respondent’s in Pennsylvania might be

awarded all to petitioner by Washington or Texas, an even

more dramatic change in property than that accomplished

by application of California’s quasi-community property

law.

CONCLUSION

For the foregoing reasons, petitioner respectfully §re-

quests that her petition for a writ of certiorari be granted.

Dated: December 20, 1978.

Respectfully submitted,

LAWRENCE H, Strorrer

Attorney for Petitioner

Of Counsel:

Victoria J. De Gorr

(Appendices Follow)

Appendices

Appendix A

Certified for Publication

In the Court of Appeal

of the

State of California

First Appellate District,

Division Four

1 Civil No. 41179

(Superior Court No. 451872-7)

In re the Marriage of William R. :

and Helen F. Roesch

WILLIAM R. ROESCH,

Respondent,

vs.

HELEN F. ROESCH,

ScreEe

[Filed July 24, 1978]

OPINION

The marriage of Helen F. Roesch and William R. Roesch

was dissolved by an interlocutory judgment. Wife appeals

from certain portions of the judgment.

A-2

The parties were married in Brownsville, Pennsylvania,

on April 17, 1947, when both were aged 21; they separated

in Pittsburgh, Pennsylvania, on December 28, 1973. The

parties have two children, a daughter who is of age, and

a minor son, David, born April 2, 1959. Before the birth of

the first child in July 1948, wife was briefly employed in

an unskilled job. Since that time, however, she has been

occupied exclusively as a homemaker.

Except for a brief period early in the marriage, the

marital domicile was Pennsylvania, a common law state.

When husband left the household he established his resi-

dence in California. Wife and the parties’ son, David, have

remained in Pennsylvania.

During virtually the entire period of the marriage, hus-

band was employed by Jones & Laughlin Steel Corporation

in Pittsburgh, Pennsylvania. He began as a coal miner, and

gradually rose through the ranks of that corporation until

on October 1, 1970, he was elected to the position of presi-

dent and chief executive officer. His total gross earnings

in that position were $163,000 in 1971. On January 1, 1972,

husband was elected chairman of the board of directors

and president at a base annual salary of $200,000.

In 1973, husband entered negotiations for employment

with Kaiser Industries Corporation of Oakland, California.

On November 12, 1973, prior to the separation and while

he was still employed by Jones & Laughlin Steel Corpora-

tion, husband entered into an employment agreement with

Kaiser. Under the terms of the agreement, husband was to

assume the position of president and chief executive officer

commencing January 1, 1974, for a term ending Decem-

ee es ae

A-3

ber 31, 1980, with a right of extension to May 31, 1990. The

agreement set a base annual salary of $225,000 plus bonuses

and other benefits.

Prior to the marriage, husband took out two policies

insuring his own life. One of these policies, with a face

value of $2,500, was paid up before the parties married.

The other, a U.S. National Service Life Insurance policy

with a face value of $10,000, was paid partly with pre-

marital earnings and partly with postmarital earnings.

During the 27-year marriage and prior to the date of

separation, four more policies were obtained, insuring hus-

band’s life. Wife had been named as a primary beneficiary

in each of these policies. On October 10, 1967, husband

transferred the policies to Mellon National Bank and Trust

Company as trustee. Wife was named as income beneficiary

of the insurance trust, with power to invade the principal.

Just before the parties separated, husband amended the

trust instrument to provide that upon his death the trust

assets would pass into his estate to be used for certain

estate purposes with the remainder to go to his children.

When the parties separated the face value of the insurance

trust had risen to approximately $1,000,000.

Also just before the separation, husband assigned to his

daughter a portion of his vested retirement benefits from

Jones & Laughlin. The effect of this assignment was to

reduce from $20,179 per year to $18,000 per year the bene-

fit husband will receive when the pension matures.

When the parties separated, husband moved his domicile

to California; on January 1, 1974, he began performance

of his employment agreement with Kaiser. In July 1974,

A-4

husband commenced the present action for marital disso-

lution in Alameda County.

There was evidence that during the marriage the parties

acquired as tenants by the entireties, as provided by Penn-

sylvania law, the family home and its furnishings, an auto-

mobile, and certain other property.

Other assets acquired by husband during the marriage

were, under Pennsylvania law, the separate property of

husband. These assets included:

1. Interest in Conoco Exploration Ltd.

2. Interest in Eastgate Shopping Center at Garden

City, Kansas.

3. The insurance trust held by Mellon Bank as re-

lated above.

4. Pennsylvania funds (liquid assets which, at the

time of separation, totaled $275,413.86).

The trial court characterized all of the above assets as

quasi-community property, and divided them between the

parties as follows:

To wife:

1. The family home, valued at $80,000.

2. Household furniture, furnishings, appliances and

effects in the family home, valued at $20,000.

3. Securities standing in wife’s name alone and

having a value of $10,700,

4. A 1971 Ford automobile, valued at $1,400.

The total value of the property awarded to wife was

$114,100.

—

A-5

To husband:

1. All policies insuring husband’s life. The cash

surrender value of the policies was established to be

$8,187.

2. Union Oil Drilling investment, valued at $3,000.

3. Interest in the Conoco Exploration Ltd., valued

at $20,544.

4. Eastgate Shopping Center investment, valued at

$19,000.

5. Remainder of the Pennsylvania funds, valued at

$36,790.75.

6. Proceeds from the sale of Jones & Laughlin stock,

valued at $23,650.

The total value of the property awarded to husband was

$111,176.

Husband was also charged with the use of $57,124 from

the so-called Pennsylvania funds to maintain the Eastgate

Shopping Center investment which was awarded to him.

The inclusion of the above amount brought the total

value of the quasi-community property awarded to husband

to the amount of $168,300. Wife was also charged with

$24,000 because of an increased tax liability of husband

which resulted from her refusal to file a joint tax return

with husband, as the court had ordered. The total amount

charged to wife was therefore $138,100. The trial court

found a net disparity in favor of husband in the amount of

$30,200, and ordered that the disparity be equalized by

either the payment of $30,200 from the joint stock account

of the parties or shares of stock of a like value as of Sep-

A-6

tember 2, 1976, at the option of wife. The parties’ joint

stock account was to be used to pay attorney’s fees with

any residue from the account to be equally divided between

the parties.

The trial court found that the unassigned portion of

husband’s retirement benefits from Jones & Laughlin con-

stituted a quasi-community asset which should be divided

equally between the parties when received by husband. All

of the benefits which husband has or will receive under his

employment agreement with Kaiser were held to constitute

the fruits of his post-separation efforts, and were therefore

confirmed to him as his separate property.

At trial husband stipulated, and the trial court found,

that husband had the ability to pay any amount reason-

ably necessary for the support and maintenance of wife

and the parties’ minor son. Spousal support in the amount

of $2,500 per month was ordered, together with $500 per

month for child support; husband’s obligation to pay child

support was made contingent upon non-interference with

his reserved visitation rights by either wire or David.

Wife contends that the trial court’s award of spousal

support in the amount of $2,500 per month is so inadequate

as to constitute an abuse of discretion. That contention can-

not be sustained.

In setting the amount of spousal support, a wide discre-

tion is vested in the trial court (In re Marriage of Morrison

(1978) 20 Cal.38d 437, 454), “and thus an appellate court

must act with cautious judicial restraint, even though the

particular award might appear on appeal to be modest or

A-7

generous under the particular circumstances.” (In re Mar-

riage of Lopez (1974) 38 Cal.App.3d 93, 114.) A trial court

has abused its discretion when, after calm and careful re-

view of the entire record, it can fairly be said that no judge

would reasonably make the same order under the same

circumstances. (Jz re Marriage of Lopez, supra, 38 Cal.

App.3d at p. 114; In re Marriage of Norton (1976) 71 Cal.

App.3d 537, 541.)

Wife received the family home clear of encumbrances.

In a pendente lite order, dated October 24, 1975, wife had

been awarded $1,650 spousal support and $750 per month

child support, for a total of $2,400 per month. Between

November 1974 and November 1975, wife had accumulated

from these payments savings of approximately $665 per

month, for a total of $8,000. The trial court might reason-

ably infer that appellant experienced no difficulty in living

on support payments amounting to less than that which

she was awarded in the final judgment.

Wife nevertheless contends that the award is inadequate

in view of partic ular circumstances of the case. She urges

that the trial court ignored several crucial factors: hus-

band’s ability to pay; the duration of the marriage; the

unlikelihood of employment for wife in view of her age;

experience and education; the disparity of the award of

income-producing assets favoring husband; the compara-

tive financial positions of the parties before and after

dissolution. But wife requested that she be awarded the

high value, non-income-producing assets and there was

evidence that her monthly expenses did not exceed $2,500

per month; thus, we find no abuse of discretion in the

trial court’s award.

A-8

Wife contends that the trial court erred when it con-

ditioned husband’s obligation to pay child support upon

his “being allowed to exercise visitation rights without

interference” from wife or the minor child. This conten-

tion is sound. The law imposes upon parents an obligation

of child support. (Civ. Code, §§ 242, 4700.) “This obliga-

tion continues notwithstanding the parents’ lack of custody

[citation] .... The extent of the parental support obliga-

tion is left to the sound discretion of the court [citations]

and the trial court’s order will not be disturbed on appeal

unless that discretion is abused. [Citation.]” (Armstrong

v. Armstrong (1976) 15 Cal.3d 942, 947.) There has been

some divergence among the California decisions with re-

spect to the effect on support obligations of the custodial

parent’s disobedience to a visitation order. Several courts

have held that a mother is estopped to enforce child sup-

port payments where she has displayed an intent to frus-

trate the father’s visitation rights. (Seamocki v. Szamocki

(1975) 47 Cal.App.3d 812, 818-820; see Spurrell v. Spurrell

(1962) 205 Cal.App.2d 786, 789 [action by mother to

enforce child support obligation of father under Washing-

ton State decree providing for reduction of child support

payments upon denial of visitation rights].) However,

other courts have disapproved expungement of the child

support obligation to punish a recalcitrant custodial parent.

“[Wle do not regard an order depriving the children of

support for an alleged fault of the mother (especially when

such fault is unproven) as a proper exercise of the court’s

discretion ....” (Ernst v. Ernst (1963) 214 Cal.App.2d 174,

179; see Clarke v. Clarke (1970) 4 Cal.App.3d 583, 589;

Smith v. Superior Court (1977) 68 Cal.App.3d 457, 465.)

_—

A-9

The case of In re Marriage of Ciganovich (1976) 61 Cal.

App.3d 289, 294, takes a middle ground. In that case, the

Court of Appeal summarized the prevailing law as follows:

“Confronted with such a situation, a trial court should be

concerned with the child’s welfare as the paramount con-

sideration. The court should bear in mind that preservation

of parental relationships is in the best interest of the child

as well as the parent. ... [] [A] mother’s sabotage of the

father’s visitation right furnishes no ground for withhold-

ing child support payments. It does provide a ground for a

motion to modify the decree which the court should con-

sider as part of the array of circumstances affecting cus-

tody and support.”

The order here under attack has one specially trouble-

some effect: it invites husband, when aggrieved in relation

to visitation, to withhold support payments instead of

obtaining a neutral determination of the merits of the

grievance. Moreover, it seems to us that when once the

court has determined what child support is necessary and

what visitation will be beneficial, all provisions of the

decree should be enforced; it benefits none of the parties

to recognize (tacitly in regard to visitation and expressly

as to support) selective disregard of portions of what

should be a coordinated judicial determination of rights

and responsibilities. We conclude that it was an abuse of

discretion to make husband’s obligation to pay child sup-

port dependent upon lack of interference with husband’s

right of visitation.

A-10

IIt.

Wife contends that the court acted contrary to the evi-

dence when it determined that benefits flowing from hus-

band’s contract with Kaiser Industries were his separate

property. Husband commenced negotiations with Kaiser

Industries as early as March 1973. The employment con-

tract was signed November 12, 1973. Paragraph 12 of the

agreement provided as follows:

“TWELVE. If the employment of Mr. Roesch with

Kaiser shall be terminated for any reason by Kaiser

during the term of this Agreement, or at the election

of Mr. Roesch pursuant to paragraph ONE hereof, or

if Mr. Roesch’s employment shall terminate on Decem-

ber 31, 1980 under the terms hereof, Mr. Roesch shall

be entitled, in addition to any other rights to which he

may be entitled under this Agreement, to receive a

special pension from Kaiser in the amount of $75,000

per year, payable in substantially equal monthly in-

stallments, from the date of such termination until the

death of Mr. Roesch; provided, however, that the

alaount of such special pension shall be increased by

an amount determined by multiplying $3,000 by the

number of full years of service to Kaiser performed

by Mr. Roesch and shall be reduced by the amount of

any benefits payable to Mr. Roesch under Kaiser’s

Retirement Plan in effect at the time of such termina-

tion and by the amounts of any benefits paid to Mr.

Roesch under any other industrial private pension

plan. In the event of Mr. Roesch’s permanent disabil-

ity, payments under this paragraph shall be made,

subject to the conditions thereof, following the expira-

tion of the seven year period provided in paragraph

NINE.”

A spouse’s retirement rights, whether or not vested,

represent a property interest, and to the extent such rights

ans

A-11

derive from employment during marriage, they comprise a

community asset subject to division in dissolution proceed-

ings. (In re Marriage of Brown (1976) 15 Cal.3d 838, 844-

847; see also In re Marriage of Skaden (1977) 19 Cal.3d

679, 682.) Wife points out that husband’s employment con-

tract with Kaiser Industries was executed prior to separa-

tion; it is argued that the pension benefits provided for in

the contract were derived from employment during mar-

riage notwithstanding the fact that respondent did not com-

mence work until after the parties’ separation.

Retirement benefits are not gratuities deriving from the

beneficence of the employer, but are deferred consideration

for past services rendered by the employee. (In re Mar-

riage of Brown, supra, 15 Cal.3d at p. 845; In re Marriage

of Jones (1975) 13 Cal.3d 457, 461.) An employee begins to

earn pension benefits when he begins performance of his

job. (In re Marriage of Brown, supra, 15 Cal.3d at p. 845.)

Husband did not commence performance of his employ-

ment contract with Kaiser until January 1, 1974, three days

after the parties’ separation. If he had entirely breached

his side of the bargain by failing to appear and assume his

duties, Kaiser would have been relieved of the duty to per-

form its side of the bargain. (Rest. Contracts, 4 274.) Hus-

band did not acquire a property right to Kaiser retirement

benefits during marriage.

IV.

Wife contends that the trial court’s division of certain

assets which it characterized as quasi-community property

was improper. Specifically, she challenges the propriety

of the trial court’s order with respect to retirement benefits

A-12

from Jones & Laughlin, certain insurance policies on re-

spondent’s life acquired by the parties during marriage,

and certain income-producing assets.

In the absence of a statute to the contrary, personal

property acquired by a spouse during marriage while domi-

ciled in a common law state does not lose its character as

the separate property of the acquiring spouse upon a

change of domicile to a community property state. (Addison

v. Addison (1965) 62 Cal.2d 558, v63; see 14 A.L.R.3d 404,

411-416.) Furthermore, the rule of tracing is invoked so

that all property later acquired in exchange for the com-

mon law separate property is likewise deemed separate

property. (/d.)

The Legislature has twice attempted to alter the “domi-

cile of acquisition” principle. A former statutory provision

(Civ. Code, § 164 as amended in 1917 [now Civ. Code,

§ 5110]) attempted to treat as community property all per-

sonal property acquired during marriage by either husband

or wife, or both, while domiciled elsewhere, which property

would have been community property if acquired while

domiciled in this state. In Estate of Thornton (1934) 1 Cal.

2d 1, this provision was held ineffective, on the basis that

changes in the community property system which would

impair “vested interests” could not constitutionally be ap-

plied retrospectively.

The constitutional foundation of Thornton, supra, has

arguably been undermined by subsequent decisions holding

that vested property rights can be diminished by retro-

spective application of changes in marital property law if

such application is demanded by a sufficiently important

——

A-13

state interest. (In re Marriage of Bouquet (1976) 16 Cal.

3d 583, 592; Addison v. Addison, supra, 62 Cal.2d 558, 567-

569; see generally Boyd v. Oser (1944) 23 Cal.2d 613, 623.)

Thus, in Addison v. Addison, supra, 62 Cal.2d 558, the

court held that a 1961 enactment e=panding the definition

of community property could constitutionally be applied in

cases meeting two prerequisite conditions: (1) both parties

have changed their domicile to California, and (2) subse-

quent to the change of domicile the spouses sought in a

California court legal alteration of their marital status.

Unless both of these conditions exist, the interest of the

State of California in the status of the property of the

spouses is insufficient to justify reclassification without

violating the due process clause of the Fourteenth Amend-

ment and the privileges and immunities clause of article

IV, section 2, of the federal Constitution. Additionally,

reclassification based upon a mere change of domicile would

abridge the privileges and immunities clause of the Four-

teenth Amendment.

In the present case the parties lived in Pennsylvania for

virtually their entire married life. After their separation,

husband transferred his domicile to California; wife and

“As in this part, “quasi-communi — means all real or

personal property, wherever situat eretofore or hereafter ac-

quired in any of the following ways:

aS, By either spouse while domiciled elsewhere which

would have been community property if the spouse who ac-

quired the property had been domici'cd in this state at the

time of its acquisition.

“(b) In exchange for real or personal troperty, wherever

situated, which would have been commun:‘y property if the

spouse who acquired the property so exchanged had been

omiciled in this state at the time of its acquisition.”

(Civ. Code, § 4803, based. on former Civ. Code, § 140.5 added

by Stats. 1961. )

A-14

the parties’ minor son remained in Pennsylvania. Under

these facts, the interest of California in the marital prop-

erty of the parties is minimal, while that of Pennsylvania

is substantial. Moreover, as a domiciliary of Pennsylvania,

wife is entitled to the protection of the laws of that state.

Application of California’s quasi-community property

statute was therefore improper. While no modification of

the judgment is called for in the absence of an appeal by

husband, wife cannot be heard to complain that the ap-

portionment to her was insufficient, from assets which under

governing Pennsylvania law were not subject to apportion-

ment at all.

Wife contends that the trial court erred in failing to

charge husband for $45,000 which he paid wife for spousal

and child support obligations from January 1, 1975, to the

date of trial. Husband concedes that these sums were paid

out of the Pennsylvania funds, rather than his post-sepa-

ration earnings.

Civil Code section 4805, as in effect until January 1,

1975, provided:

“In the enforcement of any decree, judgment or order

rendered pursuant to the provisions of this part, the

court must resort:

“(a) To the community property; then,

“(b) To the quasi-community property; then,

“(¢e) To the separate property of the party required

to make such payments.”

Effective January 1, 1975, section 4805 was amended as

follows:

A-15

“In the enforcement of any decree, judgment or order

of support rendered pursuant to the provisions of this

part, the court shall resort:

“(a) To the earnings, income, or accumulations of

either spouse, while living separate and apart from the

other spouse, which would have been community prop-

erty if the spouse had not been living separate and

apart from the other spouse; then,

“(b) To the community property; then,

“(e) To the quasi-community property ; then,

“(d) To the other separate property of the party re-

quired to make such payments.”

Under this statute, all payments made by the husband

pursuant to a pendente lite spousal and child support order

after January 1, 1975, were chargeable first to his separate

earnings, income or accumulations. (Jn re Marriage of

Tammen (1976) 63 Cal.App.3d 927, 933.) Relying upon

Tammen, wife contends that the $45,000 in support pay-

ments should have been charged against husband’s post-

separation earnings rather than against assets declared by

the court to constitute quasi-community property.

This contention would have had merit if the Pennsylvania

assets used by husband for payment of support had been

subject to treatment as quasi-community property. But as

we have seen, such treatment would not be constitutionally

permissible. Therefore, the court acted correctly when it

declined to charge husband for using Pennsylvania assets

to pay support.

A-16

VI.

Wife contends that the findings of fact and conclusions

of law rendered by the trial court were insufficient for

effective appellate review. This contention is contrary to

the well-established rule that the findings of fact should

be confined to ultimate material issues in the case, and

that “all else is surplusage.” (Denbo v. Senness (1953)

120 Cal.App.2d 863, 869; Freeman v. Jergins (1954) 125

Cal.App.2d 536, 563.)

Findings of fact, filed after trial, should state ultimate

facts, not evidentiary facts (Miller v. Gusta (1929) 103

Cal.App. 32, 37); the evidence from which an ultimate

fact is determined need not and should not be found by

the trial court. (Thomasset v. Thomasset (1953) 122 Cal.

App.2d 116, 129, overruled on another pt., See v. See (1966)

64 Cal.2d 778, 786.) Wife complains that she was denied

findings on the following evidentiary points: (1) the his-

tory of the negotiations between husband and Kaiser; (2)

the history of husband’s employment with Jones &

Laughlin; (3) the terms of husband’s employment contract

with Kaiser; (4) the terms of husband’s termination agree-

ment with Jones & Laughlin; (5) the amount of husband’s

remuneration from Kaiser Industries; and (6) facts con-

cerning the establishment of the husband’s insurance trust

with Mellon Bank. Each of these requests relates to evi-

dentiary details and the trial court’s refusal to include them

in the findings was proper. (Kanner v. Globe Bottling Co.

(1969) 273 Cal.App.2d 559, 566-567.)

The judgment is modified to delete the provision making

nusband’s obligation to pay child support conditional. As

—

A-17

so modified the judgment is affirmed. Wife will recover

costs on appeal. The trial court will hear and determine

any application by wife for sounsel fees.

Certified for publication.

Christian, J.

We concur:

Rattigan, Acting P.J.°

Paik, J.*

*Under assignment by the Chairperson of the Judicial

Council.

Appendix B

In the Court of Appeal

of the

State of California

First Appellate District

Division Four

1 Civil No. 41179

In re the Marriage of William R. and |

Helen F. Roesch,

William R. Roesch,

Respondent, >

Vs.

Helen F. Roesch,

Appellant. J

[Filed August 17, 1978]

BY THE COURT:

The petition for rehearing filed in the above entitled

cause is hereby denied.

Dated, August 17, 1978

Rattigan, J., Acting P.J.

Appendix C

Clerk’s Office, Supreme Court

4250 State Building

San Francisco, California 94102

September 27, 1978

I have this day filed Order Hearing Denied.

In re: 1 Civ. No. 41179 Marriage of Roesch

Respectfully,

G. E. Bishel

Clerk

Appendix D

Suren Toomajian

Max Thelen, Jr.

Thelen, Marrin, Johnson & Bridges

Attorneys for Petitioner

18th Floor, Tribune Tower

Oakland, California 94612

Telephone: 451-8322

Lawrence H. Stotter,

Stern, Stotter & O’Brien

Attorneys for Respondent

465 California Street

San Francisco, California 94104

Telephone: 434-0600

Superior Court, State of California

County of Alameda

No.: 451 872-7

In re the marriage of:

Petitioner: William R. Roesch

and

Respondent: Helen F. Roesch

[Filed December 27, 1976]

D-2

JUDGMENT DETERMINING CHILD CUSTODY,

CHILD SUPPORT, SPOUSAL SUPPORT,

PROPERTY DIVISION, ATTORNEYS’ FEES & COSTS

The above entitled matter came on regularly for hearing

on August 30, September 1, and September 2, 1976, in

Department 20 of the above entitled court, the HON.

ROBERT H. KRONINGER, Judge presiding; petitioner

being present and SUREN TOOMAJIAN and MAX

THELEN, JR., of the firm of THELEN, MARRIN,

JOHNSON & BRIDGES, appearing as counsel for peti-

tioner, and respondent being present and LAWRENCE

H. STOTTER, of the firm of STERN, STOTTER &

O’BRIEN, appearing as counsel for respondent.

On the 19th day of September, 1975, an Interlocutory

Judgment of Dissolution of Marriage was duly made and

entered into by the above entitled court, under the terms

of which the court expressly reserved for subsequent deter-

mination in the above entitled matter, all issues relating

to child custody, child support, spousal support, property

division, attorneys’ fees and costs; that thereafter and on

November 19, 1975, the above entitled court duly caused

to be made and entered a Final Judgment of Dissolution

of Marriage and that all the provisions of the Interlocutory

Judgment were made binding, the same as if set forth in

full in said Final Judgment.

The judgment set forth below is intended to resolve all

of the aforesaid issues reserved for decision in the afore-

said Interlocutory Judgment of Dissolution of Marriage

granted on September 19, 1975.

—

D-3

Evidence both oral and documentary having, on the

above mentioned trial dates, been introduced by and on

behalf of the respective parties hereto, and evidence being

closed and said cause having now been submitted to the

court for decision, the court, having heretofore made find-

ings of fact and conclusions of law, concludes that a judg-

ment should be entered as hereinafter set forth.

WHEREFORE, IT IS HEREBY ORDERED, AD-

JUDGED and DECREED, as follows, to wit:

1. That the care, custody and control of the minor child

of the parties hereto, namely, DAVID W. ROESCH, born

April 2, 1959, be and is hereby awarded to the respondent

above named, with reasonable rights of visitation reserved

to the petitioner at all reasonable times and places, and

upon reasonable prior notice to respondent and the minor

child, specifically including, but not limited to, one weekend

per month from Friday evening at 6:00 P.M. to Sunday

evening at 10:00 P.M., upon 14 days prior notice to re-

spondent and/or the minor child of the parties hereto;

petitioner shall have the right to communicate, uninter-

rupted by respondent, with said minor child by telephone

at least one time per week.

2. That the petitioner shall pay to the respondent as

and for the support and maintenance of the above named

minor child of the parties hereto, the sum of $500.00 per

month, said sum payable one-half on the 1st and one-half

on the 15th days of each month, commencing October 1,

1976, and to continue thereafter until said minor child

reaches the age of 18 years, marries, dies, or the further

order of court herein; said child support payments are

expressly contingent upon petitioner being allowed to ex-

«<

D-4

ercise his visitation rights without interference from re-

spondent and in the event petitioner is denied visitation

by respondent or the minor child, then, and in that event,

during that period for which visitation has been denied,

petitioner shall not be obligated to pay any child support

whatsoever to respondent for the benefit of the minor child

of the parties hereto.

3. That petitioner shall pay to respondent as and for

her spousal support, the sum of $2,500.00 per month, said

sum likewise payable one-half on the 1st and one-half on

the 15th days of each month, commencing October 1, 1976,

and to continue thereafter until the death of either party,

the remarriage of respondent, or the further order of

court herein, whichever event oceurs first.

4, That petitioner, WILLIAM R. ROESCH, is hereby

awarded, as his sole and separate property, the following

items of quasi-community property at the fair market

values set forth below, to wit:

(a) All insurance policies wherein peti-

tioner is the life insured, whether or not

D-5

(f) Proceeds from the sale of Jones

& Laughlin stock option

(g) Community funds used by peti-

tioner for the maintenance of Eastgate

and Broad Plains Investments

(h) One-half of the remaining shares

of stock, or proceeds therefrom, of the

parties hereto with Merrill, Lynch, Pierce,

Fenner & Smith, Inc., following payment

therefrom to respondent of $30,200.00 or

shares of stock of a like value as of Sep-

tember 2, 1976, and attorneys’ fees as

hereinafter set forth

(i) Those items of personal property

and effects as set forth in Exhibit “A”

attached hereto and incorporated herein

by reference, wherever said assets may

be situated,

TOTAL VALUE OF ASSETS

AWARDED TO PETITIONER

$ 23,655.00

57,124.00

No Value

Assigned

contained in the insurance trust created

by petitioner in 1967 or not, at a value of

$8,187.00 $ 8,187.00

(b) Union Oil Drilling Investment 3,000.00

(ec) Conoco Investment 20,544.00

(d) Eastgate Shopping Center and

Broad Plains Investment 19,060.00

(e) Remainder of the “Pennsylvania

Funds”

36,790.00

Pursuant to § 4800 of the Civil Code ........... $168,300.00

5. That respondent, HELEN F. ROESCH, is hereby

awarded, as her sole and separate property, the following

items of quasi-community property at the fair market

values set forth below, to wit:

(a) Family home commonly known and

designateu as 2365 Birkshire Drive, Up-

per St. Claire Township, Pennsylvania .... $ 80,000.00

D-6

(b) Household furniture, furnishings,

appliances and effects, save and except

any of those items of petitioner’s personal

property as set forth in Exhibit “A” at-

tached hereto ane »~ this reference made

a part hereof, wsic /’ ns are expressly

awarded to petits.

“4 Pree rrrr treet eee

the name of respondent alone and in re-

SPONdeNt’S POSSESSION ......-.---ceceeeeseenereeeersees

(d) 1971 Ford automobile presently in

respondent’s POSSESSION ............++ssesesesesese-s

(e) That certain ruby ring presently in

respondent’s POSSESSION... Es

(f) Quasi-community funds lost to the

parties by reason of respondent’s refusal

to execute a joint federal and state income

tax return for 1974 ........cc-ccscsccccccscvescoreseeseess

(g) Cash or stock of a like value as of

September 2, 1976, from the parties’ joint

account at Merrill, Lynch, Pierce, Fenner

TI TI. cxceiteonscninincticeniniarssnciieintnsnssninais

(h) One-half of the remaining shares of

stock, or proceeds therefrom, of the par-

ties hereto with Merrill, Lynch, Pierce,

Fenner & Smith, Inc., following payment

therefrom to respondent of $30,200.00 or

shares of stock of a like value as of Sep-

tember 2, 1976, and attorneys’ fees as

NOR EE TI ks etineittinrpierrseriincsons

TOTAL VALUE OF ASSETS

AWARDED TO RESPONDENT ............

$ 20,000.00

10,700.00

1,400.00

2,000.00

24,000.00

30,200.00

D-7

6. That any retirement benefits received by petitioner

by reason of his former employment with Jones & Laughlin

Steel Corporation shall be divided equally between peti-

tioner and respondent, if, as and when petitioner com-

mences receiving such payments.

7. That the four cemetery plots owned by the parties

heretofore shall be forthwith offered for sale and sold at

the highest market price available, and the net proceeds

divided equally between the parties hereto.

8. That all of the benefits which petitioner has received

or will receive by reason of his employment agreement

with Kaiser Industries, Inc. are hereby confirmed to him

as his sole and separate property, said benefits constituting

the fruits of his efforts subsequent to the separation of the

parties hereto within the meaning of 45118 of the Cali-

fornia Civil Code, and respondent has not had, nor does

she now have, any community, quasi-community or other

interest therein whatsoever.

9, That the parties hereto shall liquidate sufficient

shares of stock in the Merrill, Lynch, Pierce, Fenner &

Smith Ine, joint stock account of the parties hereto, subse-

quent to the payment to respondent of the $30,200.00 in

cash or stock as hereinafter set forth, to pay each attorney

in this action, namely, SUREN TOOMAJIAN and MAX

THELEN, JR., of the firm of THELEN, MARRIN,

JOHNSON & BRIDGES, for petitioner, and LAWRENCE

H. STOTTER, of the firm of STERN, STOTTER &

O'BRIEN, for respondent, the sum of $12,500.00 each, for

a total of $25,000.00, on account of attorneys’ fees and costs

incurred in this matter, said sum to be in addition to any

D-8

and all sums previously ordered or paid to each of such

attorneys, and said sum to be payable forthwith.

10. That each of the parties hereto shall assume and

personally pay all other of his or her own court costs and

additional fees for his or her own attorneys, accountants,

investigators, respectively; except as hereinabove expressly

provided to the contrary. '

Done this December 27, 1976.

Robert H. Kroninger

Judge of the Superior Court

D-9

EXHIBIT “A”

1. Books in petitioner’s personal library, including, but

not limited to the following, to wit:

Author Title

Gibbons ........ Rise and Fall of the Roman Empire

Don Posos .... The Life of Woodrow Wilson

Schlesinger .. A series of four books on Franklin

D. Roosevelt beginning with The

New Order

Churchill ...... History of the English Speaking

Peoples (five volumes)

Churchill ...... The War Years—beginning with The

Gathering Storm (three volumes)

Bruce Caton

and Douglas

Freeman. .......... Novels on the Civil War

Will Durant Two remaining volumes consisting

of Our Oriental Heritage and The

Age of Reason

2. Still life picture given by petitioner’s mother.

3. A cane owned by petitioner’s great-grandfather.

4. Cut glass punch bowl set, including stand, cups and

ladle.

d. Antique pocket watch owned by petitioner’s great-

grandfather.

6. Family pictures taken by petitioner.

7. Tools and personal effects of petitioner.

Pw, pat

Appendix E

Suren Toomajian

18th Floor, Tribune Tower

Oakland, California 94612

Telephone: 451-8322

Max Thelen, Jr.

Thelen, Marrin, Johnson & Bridges

2 Embarcadero Center

San Francisco, California 94111

Telephone: 392-6230

Attorneys for Petitioner

Superior Court State of California

County of Alameda

No. 451-872-7

In re the marriage of:

Petitioner: William R. Roesch

and

Respondent: Helen F. Roesch

[Filed December 27, 1976]

FINDINGS OF FACT

AND CONCLUSIONS OF LAW

An Interlocutory Judgment of Dissolution of Marriage

having been made and entered in the above-entitled matter

on September 19, 1975, which said judgment reserved

jurisdiction over all issues except marital status, and a

B-2

Final Judgment of Dissolution of Marriage having been

made and entered on November 19, 1975, this proceeding for

determination of all remaining issues came on regularly

for hearing on August 30, September 1, and September ~

1976, in Department 20 of the above-entitled Court, the

HON. ROBERT H. KRONINGER, Judge presiding; peti-

tioner being present and SUREN TOOMAJIAN and MAX

THELEN, JR., of the firm of Thelen, Marrin, Johnson &

Bridges, appearing as counsel for petitioner, and respond-

ent being present and LAWRENCE H. STOTTER, of the

firm of Stern, Stotter and O’Brien, appearing as her attor-

ney, and both parties having been sworn and testified, and

evidence, both oral and documentary having been intro-

duced, and the Court being fully advised in the premises,

the matter was submitted to the Court for decision. On

September 2, 1976, this court set forth its statement of

intended decision which was duly recorded in the minutes

of said court. On September 7, 1976, respondent’s counsel

requested Findings of Fact and Conclusions of Law, and

on September 10, 1976, the above-entitled court directed

counsel for petitioner to prepare such Findings of Fact

and Conclusions of Law. The court now makes the follow-

ing Findings of Fact and Conclusions of Law, to wit:

FINDINGS OF FACT

1. Petitioner and Respondent were married on April

14, 1947, in Brownsville, Pennsylvania and separated in

Pennsylvania on or about December 28, 1973, and the time

elapsing from the date of the marriage to the date of the

separation is twenty-six years, eight months and eleven

days.

E-3

2. Except for a brief period of time immediately fol-

lowing the marriage of the parties, when they resided in

the State of Ohio, both parties were residents of the State

of Pennsylvania, a common law, separate property state,

through the date of their separation. Respondent has con-

tinued to remain, and is now, a resident of the State of

Pennsylvania. On or about January 1, 1974, petitioner

established his residence in the County of Alameda, State

of California, with the intention of making said place his

home, and has been since said date, and is now, a resident

and domiciliary of the County of Alameda, State of Cali-

fornia.

3. There were three children the issue of this marriage,

one of whom is now deceased, one of whom is over the

age of majority, and one minor child of the parties hereto,

namely, DAVID W. ROESCH, born April 2, 1959, age

17 years.

4, Throughout the pendency of this litigation, said

minor. child has been and remains in the care, custody and

control of the respondent, who is a fit and proper person

to have custody of said minor child.

5. Petitioner has the ability to pay any amount that is

reasonably necessary for the support and maintenance of

respondent and the minor son of the parties, namely,

DAVID W. ROESCH, age 17.

6. Considering the needs of respondent and the ability

of petitioner to pay, and all of the circumstances of the

parties, the sum of $2,500.00 per month is a reasonable

amount for petitioner to pay to respondent as and for

spousal support.

E-4

7. Considering the needs of the minor son of the par-

ties, namely, DAVID W. ROESCH, and the ability of

petitioner to pay, the sum of $500.00 per month is a rea-

sonable amount for petitioner to pay to respondent as

and for the support and maintenance of said minor child.

8. Pursuant to stipulation offered to the court by peti-

tioner and petitioner’s counsel, and upon the representa-

tions of respondent’s counsel as to the time spent by re-

spondent’s counsel and the hourly fees regularly charged

by respondent’s counsel and his law office, that the sum

of $12,500.00 is a reasonable amount to be awarded each

attorney in this action, in addition to all fees previously

ordered or paid and that there are sufficient quasi-

community assets in the Merrill, Lynch, Pierce, Fenner &

Smith stock account in the names of the parties hereto,

from which they should pay said sum to the attorneys

for petitioner and respondent respectively. That the quasi-

community property awarded to each party in this action is

sufficient to allow payment by each such party of his or

her own court costs, accountants and additional fees, if any.

9. The parties acquired various assets as tenants by

the entireties while residing in Pennsylvania, as provided

for by Pennsylvania law, as follows:

(a) Family home commonly known and designated

as 2365 Birkshire Drive, Upper St. Clair Township,

Pennsylvania;

(b) Furniture, furnishings, appliances and effects

situated in the above residence;

(¢c) 1971 Ford LTD automobile;

(d) Certain jewelry not received as gifts;

E-5

(e) The stock account at Merrill, Lynch, Pierce,

Fenner & Smith; and

(f) Investment in Union Oil.

Pennsylvania law provides that upon dissolution, the

parties’ interests in such assets become tenancies in com-

mon and are subject to partition. All assets acquired other

than said assets held as tenants by the entireties are, under

Pennsylvania law, the separate property of petitioner, and

would have been under the laws of Pennsylvania the sep-

arate property of petitioner and not subject to partition

in an action for dissolution of the parties’ marriage.

10. Under the laws of the State of California, all of

the property acquired by petitioner and respondent during

their marriage and held by the parties at the time of their

separation, not including separate property of each party

as hereinafter set forth, is quasi-community property and

subject to division by this court.

11. There is quasi-community property as hereinafter

set forth, and each item thereof has been valued as herein-

after set forth based upon the evidence offered to the

court including petitioner’s offer to buy or sell certain

items at specific prices. Said quasi-community property is

as follows, to wit:

Family home commonly known and

designated as 2365 Birkshire Drive,

Upper St. Clair Township, Penn-

sylvania $80,000.00

Furniture, furnishings, appliances

and effects situated in the above

residence 20,000.00

E-6

1971 Ford automobile in respon-

dent’s possession $ 1,400.00

A ruby ring in respondent’s pos-

session 2,000.00

Shares of stock in respondent’s

name alone and in respondent’s

possession 10,700.00

Life insurance policies with peti-

tioner as the life insured 8,187.00

Investment in union oil drilling 3,000.00

Interest in Conoco Exploration Ltd. 20,544.00

Interest in Eastgate Shopping

Center and Broad Plains Investment 19,000.00

Proceeds from sale of option to

purchase shares of Jones and

Laughlin stock 23,650.00

12. Respondent should receive, as her sole and separate

property, by reason of the division of the quasi-community

property as above set forth, at the aforementioned values,

the following items of property, to wit:

(a) The family home commonly known and desig-

nated as 2365 Birkshire Drive, Upper St. Clair Town-

ship, Pennsylvania.

(b) The household furniture, furnishings, appli-

ances and effects, save and except any of those items

of petitioner’s personal property as set forth on page

11 of Petitioner’s Trial Memorandum as filed with this

court which might be located in the above-referenced

family home at the present time.

name alone as hereinabove set forth.

E-7

(d) The 1971 Ford automobile presently in re-

spondent’s possession.

The total value of the above property awarded to

respondent is $114,100.00.

13. Petitioner should receive as his sole and separate

property by reason of the division of the quasi-community

property, and at the values as set forth above, the following

property, to wit:

(a) All the insurance policies wherein petitioner

is the life insured whether or not they are contained

in the insurance trust created by petitioner in 1967.

(b) Union Oil Drilling investment.

(ec) The Conoco Investment.

(d) The Eastgate Shopping Center and Broad

Plains Investment.

(e) The remainder of the “Pennsylvania Funds”.

(f) The proceeds from the sale of the Jones and

Laughlin stock.

The total value of the above property awarded to peti-

tioner is $111,176.00.

14, Petitioner, during the calendar years 1974 and

1975, used funds from the so-called “Pennsylvania Funds”

in the amount of $57,124.00 to maintain the Eastgate

Shopping Center and Broad Plains Investment and peti-

tioner should be charged with the sum of $57,124.00 since

he has presumably benefited and may continue to benefit

from the investment of said funds.

E-8

15. The inclusion of the $57,124.00 in funds used by

petitioner during 1974 and 1975, from the “Pennsylvania

Funds” together with the values of the quasi-community

property awarded to him as hereinabove set forth results

in a total distribution to petitioner of quasi-community

assets and benefits of $168,300.00.

16. By reason of respondent’s refusal and failure to

act on the prior court order herein as made by JUDGE

LINDSAY, the parties suffered a loss of $24,000.00 in tax

benefits, which sum should be charged to respondent’s

share of the quasi-community property as hereinabove

awarded to her. The inclusion of said $24,000.00 sum in

the values of the property as hereinabove awarded to re-

spondent results in a net amount chargeable to respondent

of $138,100.00.

17. If respondent would consent to the filing of an

amended joint federal income tax return for the parties

for the calendar year of 1974, then, and in that event, re-

spondent should receive credit for whatever amount is

actually saved by the parties by reason of the ling of

said amended return minus the costs of the preparation and

filing of such an amended return which respondent shall

assume and personally pay and hold petitioner free and

harmless from any liabilities therefor.

18. That the distribution of the quasi-community assets

as hereinabove set forth results in a net disparity in favor

of petitioner in the amount of $30,200.00. It is therefore

necessary, in order to equalize the division of said quasi-

community assets for respondent to receive, from the stock

account of the parties hereto with Merrill, Lynch, Pierce,

E-9

Fenner & Smith, Inc. as set forth in Exhibit “B” to peti-

tioner’s Trial Memorandum, said cash sum of $30,200.00,

or shares of stock of a like value as of September 2, 1976,

at the option of respondent. In the event that respondent

elects to receive cash in said amount, then, and in that

event, the parties shall liquidate sufficient shares of stock

from said account to allow the payment to respondent of

said cash sum of $30,200.00. The remainder of said stock

account shall be used to pay attorney’s fees as hereinabove

set forth with any residue to be equally divided between

the parties.

19. At the time of the separation of the parties hereto,

petitioner had assigned a portion of his retirement benefits

by reason of his former employment with the Jones &

Laughlin Steel Corporation for the benefit of the daughter

of the parties hereto. This asset, at the time said assign-

ment was made, was the separate property of petitioner

under the laws of the State of Pennsylvania, was not at

said time a quasi-community asset, and any assignment

made by petitioner prior to said assets becoming a quasi-

community asset was valid, and this court does not have

the jurisdiction to nullify said assignment. The remainder

of said retirement benefits receivable by petitioner by

reason of his former employment with Jones & Laughlin

Steel Corporation constitutes a quasi-community asset and

the same should be divided equally between the parties if,

as, and when petitioner commences receiving such pay-

ments.

20. There exist certain items of personal property which

should be confirmed to petitioner as his sole and separate

property and those items are set forth on lines 10 through

E-10

16 on page 11 of Petitioner’s Trial Memorandum as filed

with this court. Any of said items which are in the pos-

session of respondent should be delivered by respondent

to petitioner at the earliest possible time in the condition

in which they were left in the family home by petitioner

at the time of his removal from said family home.

_ 21. The remaining quasi-community asset to be dis-

posed of is the four cemetery plots owned by the parties.

There exists no fair way to determine the ultimate dis-

position of the cemetery plots. The parties themselves,

through their attorneys, should agree upon a disposition

of said cemetery plots, and in the event that no agreement

can be reached, then, and in that event, the said cemetery

plots should be sold at the highest available price, and the

proceeds divided equally between the parties.

22. All of the benefits which petitioner has received

or will receive by reason of his employment agreement

with Kaiser Industries Incorporated, constitute the fruits

of his efforts subsequent to the separation of the parties

hereto and should be confirmed to him as his sole and

separate property.

23. Petitioner is entitled to see and visit the minor son

of the parties hereto, namely DAVID W. ROESCH. Peti-

tioner has heretofore been unsuccessful in the vast majority

of his attempts to speak and visit with said minor child

and it is therefore necessary for petitioner to receive some

assurance that he will be able to visit with said minor son

at reasonable times upon reasonable prior notice to re-

spondent and the minor child of the parties hereto. To that

end, petitioner should be entitled to terminate any child

E-11

support payments as herein ordered in the event that

either respondent or the minor child of the parties hereto

sees fit to deny petitioner reasonable visitation upon

reasonable prior notice.

CONCLUSIONS OF LAW

1, The care, custody and control of the minor child of

the parties hereto, namely, DAVID W. ROESCH, shall be

awarded to respondent, reserving to petitioner the right to

see and visit said minor child at all reasonable times and

places upon reasonable prior notice to respondent and the

minor child, specifically including, but not limited to, one

weekend per month from Friday evening at 6:00 P.M. to

Sunday evening at 10:00 P.M. or any portion thereof, upon

fourteen days prior notice to respondent and/or the minor

child of the parties hereto. Additionally, petitioner shall

have the right to communicate with said minor child by

telephone at least one time each week.

2. That petitioner shall pay to respondent as and for

the support and maintenance of said minor child of the

parties hereto the sum of $500.00 per month, said sum to be

payable one-half on the first and one-half on the fifteenth

days of each month, commencing with that payment due

and owing October 1, 1976, and continuing thereafter until

said minor child reaches the age of eighteen, marries or

dies, said child support payments to be contingent upon

petitioner being allowed to exercise visitation without

interference from respondent as hereinabove set forth.

3. In the event that petitioner is denied visitation as

hereinabove set forth for any reason by respondent or the

minor child of the parties hereto, then, during that period

E-12

for which visitation has been denied, petitioner shall not

be obligated to pay any child support whatsoever to re-

spondent for the benefit of the minor child of the parties

hereto.

4. Petitioner shall pay to respondent as and for spousal

support the sum of $2,500.00 per month, said sum payable

one-half on the first and one-half on the fifteenth days of

each month, commencing with that payment due and owing

on October 1, 1976, and continuing thereafter until the

death of either party, the remarriage of respondent, or the

further order of court herein, whichever event occurs first.

5. That petitioner shall receive as his sole and separate

property by reason of the division of the quasi-community

property as found by this court the following items at the

following values, to wit:

(a) All insurance policies wherein peti-

tioner is the life insured whether or not

they are contained in the insurance trust

created by petitioner in 1967 _ $ 8,187.00

(b) Limited partnership interests in

E-13

(g) Other “Pennsylvania Funds” used

to maintain Eastgate Shopping Center and

Broad Plains Investment

(h) One-half of the proceeds from the

sale of stock (or equal value of stock in

kind) from the Merrill, Lynch, Pierce, 1"en-

ner & Smith, Inc. stock account of the

parties hereto, as set forth in Exhibit “B”

to Petitioner’s Trial Memorandum after

payment to respondent of $30,200.00 (or

stock of like value as of 9/2/76) and at-

torney’s fees as hereinafter set forth.

(i) One-half of petitioner’s retirement

benefits by reason of his former employ-

ment with Jones & Laughlin Steel Corpora-

tion. No value assigned.

(j) One-half of the proceeds of the sale

of the cemetery plots and those items of

personal property belonging to petitioner

as set forth on page 11 of Petitioner’s

Trial Memorandum as filed with this court.

No value assigned.

$57,124.00

Union Oil Drilling Company 3,000.00

oco Exploration Limited 20,554.00

(d) Limited partnership interest in the

Eastgate Shopping Center and Broad

Plains Investment 19,000.00

(e) Remainder of the “Pennsylvania

Funds” 36,790.00

(f) Proceeds from the sale of Jones &

Laughlin Stock Option 23,655.00

6. Respondent shall receive by reason of the quasi-

community property as found to exist by this court at the

values as hereinafter set forth, the following, to wit:

(a) The family home commonly known

and designated as 2365 Birkshire Drive,

Upper St. Clair Township, Pennsylvania $80,000.00

(b) Household furniture, furnishings,

appliances and effects situated in the above

referenced home, save and except any of

those items of petitioner’s personal prop-

erty as set forth on page 11 of Petitioner’s

Trial Memorandum as filed with this court. 20,000.00

E-14

(d) Those certain shares of stock stand-

ing in respondent’s name alone and in

respondent’s possession. 10,700.00

(e) 1971 Ford automobile presently in

respondent’s possession. 1,400.00

(f) Cash proceeds from sale, or stock

of like value, from the Merrill, Lynch,

Pierce, Fenner & Smith, Inc. stock account

of the parties hereto 30,200.00

(g) Funds lost to parties by reason of

respondent’s refusal to sign 1974 joint

income tax return. 24,000.00

(h) One-half of the proceeds of the sale

of the cemetery plots owned by the parties.

No value assigned.

(i) One-half of the retirement benefits

owing to petitioner by reason of his former

employment with Jones & Laughlin Steel

Corporation as were owing to petitioner at

the time of the separation of the parties

hereto, if, as and when the said benefits are

received by petitioner.

7. Petitioner shall have confirmed to him, as his sole

and separate property, any and all benefits received or

to be received by petitioner by reason of his employment

agreement, or his continuing employment with Kaiser

Industries, Incorporated, said benefits accruing to peti-

tioner subsequent to the separation of the parties hereto.

8. Respondent shall have confirmed to her as sole and

separate property any and all jewelry in her possession,

save and except the ruby ring as hereinabove set forth,

E-15

said jewelry having been received by respondent as gifts

during the marriage.

9. Petitioner and respondent shall liquidate sufficient

shares of stock in the Merrill, Lynch, Pierce, Fenner &

Smith, Ine. stock account of the parties hereto as set forth

in Exhibit “B” to Petitioner’s Trial Memorandum, to pay

to each attorney in this action the sum of $12,500.00 or a

total of $25,000.00.

10. Each party shall pay his or her own court costs

and additional fees for his or her own attorneys, ac-

countants, investigators, ete.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: Dee. 27, 1976

Robert H. Kroninger

Judge of the Superior Court

Appendix F

Certified for Publication

In the Court of Appeal

of the

State of California

First Appellate District

Division Four

1 Civil No. 41179

(Superior Court No. 451872-7)

)

In re the Marriage of William R. and

Helen F. Roesch \ =

William R. Roesch,

Respondent,

. Vs.

Helen F. Roesch,

Appellant.

[Filed May 28, 1978]

OPINION

Helen M. Roesch (wife) appeals from certain provisions

of a decree which dissolved her marriage to William R.

Roesch (husband). The parties were married in Browns-

ville, Pennsylvania, on April 17, 1947, when both were

aged 21; they separated in Pittsburgh, Pennsylvania, on

F-2

December 28, 1973. The parties have two children, a

daughter who is of age, and a minor son, David, born

April 2, 1959. —

Before the birth of the first child in July 1948, wife was

briefly employed in an unskilled job. Since that time, how-

ever, she has been occupied exclusively as a homemaker.

Except for a brief period early in the marriage, the

marital domicile was Pennsylvania, a common law state.

When husband left the household he established his resi-

dence in California, Wife and the parties’ son, David,

have remained in Pennsylvania.

During virtually the entire period of the marriage, hus-

band was employed by Jones & Laughlin Steel Corporation

in Pittsburgh, Pennsylvania. He began as a coal miner,

and gradually rose through the ranks of that corporation

until on October 1, 1970, he was elected to the position

of president and chief executive officer. His total gross

earnings in that position were $163,000 in 1971. On January

1, 1972, husband was elected chairman of the board of

directors and president at a base annual salary of $200,000.

In 1973, husband entered negotiations for employment

with Kaiser Industries Corporation of Oakland, California.

On November 12, 1973, prior to his separation from wife

and while still employed with Jones & Laughlin Steel

Corporation, husband entered into an employment agree-

ment with Kaiser. Under the terms of the agreement, hus-

band was to assume the position of president and chief

executive officer commencing January 1, 1974, and ending

December 31, 1980, with a right of extension to May 31,

1990. The agreement set a base salary of $225,000 per year

plus bonuses and other benefits.

F-3

Prior to the marriage, husband took out two policies

insuring his own life. One of these policies, with a face

value of $2,500, was paid in full prior to marriage. The

other, a U.S. National Service Life Insurance policy with

a face value of $10,000, was paid partly with premarital

earnings and partly with postmarital earnings.

During the 27-year marriage and prior to the date of

separation, four more life insurance policies were obtained

on husband’s life. Wife had been named as a primary

beneficiary in each of the above policies. On October 10,

1967, husband transferred the policies to Mellon National

Bank and Trust Company as trustee. Under the original

terms of the trust, wife was named as income beneficiary,

with power to invade the principal. However, on December

17, 1973, just before the parties separated, husband

amended the trust to provide that upon his death the trust

assets would pass into his estate to be used for certain

estate purposes with the remainder to go to his children.

At the time of the parties’ separation the face value of the

insurance policies was $130,000. At trial, the value of the

insurance trust was approximately $1,000,000.

Also during December 1973, husband assigned to his

daughter a portion of his vested retirement benefits from

Jones & Laughlin. The effect of this assignment was to

reduce from $20,179 per year to $18,000 per year the benefit

husband will receive when the pension matures.

When the parties separated, husband moved iis domicile

to California; on January 1, 1974, he began performance

of his employment agreement with Kaiser. In July 1974,

husband commenced the present action for marital dis-

solution in Alameda County.

F-4

There was evidence that during the marriage the parties

acquired as tenants by the entireties, as provided by Penn-

sylvania law, the family home and its furnishings, an

automobile, and certain other property.

Certain other assets acquired by husband during the

marriage were, under Pennsylvania law, the separate prop-

erty of husband. These assets included:

1. Interest in Conoco Exploration Ltd.

2. Interest in Eastgate Shopping Center at Garden

City, Kansas.

3. The insurance trust held by Mellon Bank as re-

lated above.

4, Pennsylvania funds (liquid assets which, at the

time of separation, totaled $275,413.86).

The trial court characterized all of the above assets as

quasi-community property, and divided them between the

parties as follows:

To Wife:

1. The family home, valued at $80,000.

2. Household furniture, furnishings, appliances and

effects in the family home, valued at $20,000.

3. Securities standing in wife’s name alone and

having a value of $10,700.

4. A 1971 Ford automobile, valued at $1,400.

The total value of the property awarded to wife was

$114,100.

F-5

T'o husband:

1. All policies insuring husband’s life. The cash

surrender value of the policies was established to be

$8,187.

2. Union Oil Drilling investment, valued at $3,000.

3. Interest in the Conoco Exploration Ltd., valued

at $20,544. ;

4. Eastgate Shopping Center investment, valued at

$19,000.

5. Remainder of the Pennsylvania funds, valued at

$36,790.75.

6. Proceeds from the sale of Jones & Laughlin

stock, valued at $23,650.

The total value of the property awarded to husband was

$111,176.

Husband was also charged with the use of $57,124 from

the so-called Pennsylvania fund to maintain the Eastgate

Shopping Center investment which was awarded to him.

The inclusion of the above amount brought the total

value of the quasi-community property awarded to husband

to the amount of $168,300. Wife was also charged with

$24,000 because of an increased tax liability of husband

which resulted from her refusal to file a joint tax return

with husband, as the court had ordered. The total amount

charged to wife was therefore $138,100, The trial court

found a net disparity in favor of husband in the amount

of $30,200, and ordered that the disparity be equalized by

either the payment of $30,200 from the joint stock account

of the parties or shares of stock of a like value as of Sep-

F-6

tember 2, 1976, at the option of wife. The parties’ joint

stock account was to be used to pay attorney’s fees with

any residue from the account to be equally divided between

the parties.

The trial court also found that the unassigned portion of

husband’s retirement benefits from Jones & Laughlin con-

stitutes a quasi-community asset which should be divided

equally between the parties when received by husband. All

of the benefits which husband has or will receive under his

employment agreement with Kaiser were held to constitute

the fruits of his post-separation efforts, and were therefore

confirmed to him as his separate property.

At trial husband stipulated, and the trial court found,

that husband had the ability to pay any amount reasonably

necessary for the support and maintenance of wife and the

parties’ minor son. Spousal support in the amount of

$2,500 per month was ordered, together with $500 per month

for child support ; husband’s obligation to pay child support

was made contingent upon non-interference with his re-

served visitation rights by either wife or David.

Wife contends that the trial court’s award of spousal

support in the amount of $2,500 per month is so inadequate

as to constitute an abuse of discretion. That contention

cannot be sustained.

In setting the amount of spousal support, a wide dis-

cretion is vested in the trial court (In re Marriage of Morri-

son (1978) 20 Cal.3d 437, 454), “and thus an appellate court

must act with cautious judicial restraint, even though the

F-7

particular award might appear on appeal to be modest or

generous under the particular circumstances.” (In re Mar-

riage of Lopez (1974) 38 Cal.App.3d 93, 114.) A trial court

has abused its discretion when, after calm and careful

review of the entire record, it can fairly be said that no

judge would reasonably make the same order under the

same circumstances. (Jn re Marriage of Lopez, supra, 38

Cal.App.3d at p. 114; In re Marriage of Norton (1976) 71

Cal.App.3d 537, 541.)

Wife received the family home clear of encumbrances.

In a pendente lite order, dated October 24, 1975, wife had

been awarded $1,650 spousal support and $750 per month

child support, for a total of $2,400 per month. Between

November 1974 and November 1975, wife had accumulated

from these payments savings of approximately $665 per

month, for a total of $8,000. The trial court might. reason-

ably infer that appellant experienced no difficulty in living

on support payments amounting to less than that which

she was awarded in the final judgment.

Wife nevertheless contends that the award is inadequate

in view of particular circumstances of the case. She urges

that the trial court ignored several crucial factors: hus-

band’s ability to pay; the duration of the marriage; the

unlikelihood of employment for wife in view of her age,

experience and education; the disparity of the award of

income-producing assets favoring husband; the compara-

tive financial positions of the parties before and after dis-

solution. But wife requested that she be awarded the high

value, non-income-producing assets and there was evidence

that her monthly expenses did not exceed $2,500 per month ;

F-8

thus, we find no abuse of discretion in the trial court’s

award.

Il.

Wife contends that the trial court erred when it condi-

tioned husband’s obligation to pay child support upon his

“being allowed to exercise visitation rights without inter-

ference” from wife or the minor child. This contention is

sound. The law imposes upon parents an obligation of

child support. (Civ. Code, §§ 242, 4700.) “This obligation

continues notwithstanding the parents’ lack of custody

[citation] .... The extent of the parental support obliga-

tion is left to the sound discretion of the court [citations]

and the trial court’s order will not be disturbed on

appeal unless that discretion is abused. [Citation.]”

(Armstrong v. Armstrong (1976) 15 Cal.3d 942, 947.)

There has been some divergence among the California

decisions with respect to the effect on support obligations

of the custodial parent’s disobedience to a visitation order.

Several courts have held that a mother is estopped to

enforce child support payments where she has displayed

an intent to frustrate the father’s visitation rights. (Sza-

mocks v. Szamocki (1975) 47 Cal.App.3d 812, 818-820; see

Spurrell v. Spurrell (1962) 205 Cal.App.2d 786, 789 [action

by mother to enforce child support obligation of father

under Washington State decree providing for reduction of

child support payments upon denial of visitation rights].)

However, other courts have disapproved expungment of

the child support obligation to punish a recalcitrant cus-

todial parent. “[W]e do not regard an order depriving

the children of support for an alleged fault of the mother

(especially when such fault is unproven) as a proper

F-9

exercise of the court’s discretion... .” (Ernst v. Ernst

(1963) 214 Cal.App.2d 174, 179; see Clarke v. Clarke (1970)

4 Cal.App.3d 583, 589; Smith v. Superior Court (1977) 68

Cal.App.3d 457, 465.) The case of In re Marriage of

Ciganovich (1976) 61 Cal.App.3d 289, 294, takes a middle

ground. In that case, the Court of Appeal summarized the

prevailing law as follows: “Confronted with such a situa-

tion, a trial court should be concerned with the child’s

welfare as the paramount consideration. The court should

bear in mind that preservation of parental relationships

is in the best interest of the child as well as the parent....

{7] [A] mother’s sabotage of the father’s visitation right

furnishes no ground for withholding child support pay-

ments. It does provide a ground for a motion to modify

the decree which the court should consider as part of the

array of circumstances affecting custody and support.”

The order here under attack has one specially trouble-

some effect: it invites husband, when aggrieved in relation

to visitation, to withhold support payments instead of

obtaining a neutrai determination of the merits of the

grievance. Moreover, it seems to us that when once the

court has determined what child support is necessary and

what visitation will be beneficial, all provisions of the

decree should be enforced; it benefits none of the parties

to recognize (tacitly in regard to visitation and expressly

as to support) selective disregard of portions of what

should be a coordinated judicial determination of rights

and responsibilities. We conclude that it was an abuse of

discretion to make husband’s obligation to pay child sup-

port dependent upon lack of interference with husband’s

right of visitation.

F-10

ITT.

Wife contends that the court acted contrary to the evi-

dence when it determined that benefits flowing from hus-

band’s contract with Kaiser Industries were his separate

property. Husband commenced negotiations with Kaiser

Industries as early as March 1973. The employment con-

tract was signed November 12, 1973. Paragraph 12 of the

agreement provided as follows:

“TWELVE. If the employment of Mr. Roesch with

Kaiser shall be terminated for any reason by Kaiser

during the term of this Agreement, or at the

election of Mr. Roesch pursuant to paragraph ONE

hereof, or if Mr. Roesch’s employment shall terminate

on December 31, 1980 under the terms hereof, Mr.

Roesch shall be entitled, in addition to any other rights

to which he may be entitled under this Agreement, to

receive a special pension from Kaiser in the amount

of $75,000 per year, payable in substantially equal

monthly installments, from the date of such termina-

tion until the death of Mr. Roesch; provided, however,

that the amount of such special pension shall be in-

creased by an amount determined by multiplying

$3,000 by the number of full years of service to Kaiser

performed by Mr. Roesch and shall be reduced by the

amount of any benefits payable to Mr. Roesch under

Kaiser’s Retirement Plan in effect at the time of such

termination and by the amounts of any benefits paid

to Mr. Roesch under any other industrial private

pension plan. In the event of Mr. Roesch’s permanent

disability, payments under this paragraph shall be

made, subject to the conditions thereof, following the

expiration of the seven year period provided in para-

graph NINE.”

F-11

A spouse’s retirement rights, whether or not vested,

represent a property interest, and to the extent such rights

derive from employment during marriage, they comprise

a community asset suoject to division in dissolution pro-

ceedings. (In re Marriage of Brown (1976) 15 Cal.3d 838,

844-847; see also In re Marriage of Skaden (1977) 19 Cal.

3d 679, 682.) Wife points out that husband’s employment

contract with Kaiser Industries was executed prior to

separation; it is argued that the pension benefits provided

for in the contract were derived from employment during

marriage notwithstanding the fact that respondent did not

commence work until after the parties’ separation.

Retirement benefits are not gratuities deriving from the

beneficence of the employer, but are deferred consideration

for past services rendered by the employee. (Jn re Mar-

riage of Brown, supra, 15 Cal.3d at p. 845; In re Marriage

of Jones (1975) 13 Cal.3d 457, 461.) An employee begins to

earn pension benefits when he begins performance of his

job. (In re Marriage of Brown, supra, 15 Cal.3d at p. 845.)

Husband did not commence performance of his employ-

ment contract with Kaiser until January 1, 1974, three

days after the parties’ separation. If he had entirely

breached his side of the bargain by failing to appear and

assume his duties, Kaiser would have been relieved of the

duty to perform its side of the bargain. (Rest. Contracts,

§ 274.) Husband did not acquire a property right to Kaiser

retirement benefits during marriage.

¥F-12

IV.

Wife contends that the trial court’s division of certain

assets which it characterized as quasi-community property

was improper. Specifically, she challenges the propriety

of the trial court’s order with respect to retirement benefits

from Jones & Laughlin, certain insurance policies on re-

spondent’s life acquired by the parties during marriage,

and certain income-producing assets.

In the absence of a statute to the contrary, personal

property acquired by a spouse during marriage while domi-

ciled in a common law state does not lose its character as

the separate property of the acquiring spouse upon a

change of domicile to a community property state. (Addison

v. Addison (1965) 62 Cal.2d 558, 563; see 14 A.L.R.3d 404,

411-416.) Furthermore, the rule of tracing is invoked so

that all property later acquired in exchange for the com-

mon law separate property is likewise deemed separate

property. (Jd.)

The California Legislature has twice attempted to alter

the “domicile of acquisition” principle. A former statutory

provision (Civ. Code, § 164 as amended in 1917 [now Civ.

Code, $5110]) attempted to treat as community property

all personal property acquired during marriage by either

husband or wife, or both, while domiciled elsewhere, which

property would have been community property if acquired

while domiciled in this state. In Estate of Thornton (1984)

1 Cal. 2d 1, this provision was held unconstitutional.

In 1961, the California Legislature again attempted, in

a more limited way, to change the status of marital prop-

erty acquired prior to California domicile. That legislation

F-13

defines quasi-community property as follows: “As used in

this part, ‘quasi-community property’ means all real or

personal property, wherever situated, heretofore or here-

after acquired in any of the following ways:

“(a) By either spouse while domiciled elsewhere which

would have been community property if the spouse who

acquired the property had been domiciled in this state at

the time of its acquisition.

“(b) In exchan,e for real or personal property, where-

ever situated, which would have been community property

if the spouse who acquired the property so exchanged had

been domiciled in this state at the time of its acquisition.”

(Civ. Code, § 4803.)

In Addison v. Addison, supra, 62 Cal.2d 558, the court

held that there was no constitutional violation in applying

the new statute in cases meeting two prerequisite conditions

which distinguish the Thornton holding: (1) both parties

have changed their domicile to California, and (2) subse-

quent to the change of domicile the spouses sought in a

California court legal alteration of their marital status.

Unless both of these conditions exist, the interest of the

State of California in the status of the property of the

spouses is insufficient to justify reclassification without

violating the due process clause of the Fourteenth Amend-

ment and the privileges and immunities clause of article

IV, section 2, of the federal Constitution. Additionally,

reclassification based upon a mere change of domicile

would abridge the privileges and immunities clause of the

Fourteenth Amendment.

F-14

In the present case the parties lived in Pennsylvania for

virtually their entire married life. After their separation,

husband transferred his domicile to California; wife and

the parties’ minor son remained in Pennsylvania. Under

these facts, the interest of California in the marital prop-

erty of the parties is minimal, while that of Pennsylvania

is substantial. Moreover, as a domiciliary of Pennsylvania,

wife is entitled to the protection of the laws of that state.

Application of California’s quasi-community property stat-

ute was therefore improper. While no modification of the

judgment is called for in the absence of an appeal by hus-

band, wife cannot be heard to complain that the apportion-

ment to her was insufficient from assets which under

governing Pennsylvania law were not subject to apportion-

ment at all.

Wife contends that the trial court erred in failing to

charge husband for $45,000 which he paid wife for spousal

and child support obligations from January 1, 1975, to the

date of trial. Husband concedes that these sums were paid

out of the Pennsylvania funds, rather than his post-

separation earnings.

Civil Code section 4805, as in effect until January 1, 1975,

provided :

“In the enforcement of any decree, judgment or order

rendered pursuant to the provisions of this part, the

court must resort:

“(a) To the community property; then,

“(b) To the quasi-community property; then,

“(c) To the separate property of the party required

to make such payments.”

F-15

Effective January 1, 1975, section 4805 was amended

as follows:

“In the enforcement of any decree, judgment or order

of support rendered pursuant to the provisions of this

part, the court shall resort:

“(a) To the earnings, income, or accumulations of

either spouse, while living separate and apart from

the other spouse, which would have been community

property if the spouse had not been living separate

and apart from the other spouse; then,

“(b) To the community property; then,

“(¢) To the quasi-community property; then,

“(d) To the other separate property of the party

required to make such payments.”

Under this statute, all payments made by the husband

pursuant to a pendente lite spousal and child support order

after January 1, 1975, were chargeable first to his separate

earnings, income or accumulations. (Jn re Marriage of

Tammen (1976) 63 Cal.App.3d 927, 933.) Relying upon

Tammen, wife contends that the $45,000 in support pay-

ments should have been charged against husband’s post-

separation earnings rather than against assets declared

by the court to constitute quasi-community property.

This contention would have had merit if the Pennsylvania

assets used by husband for payment of support had been

subject to treatment as quasi-community property. But

as we have seen, such treatment would not be constitu-

tionally permissible. Therefore, the court acted correctly

when it declined to charge husband for using Pennsylvania

assets to pay support.

F-16

VI.

Wife contends that the findings of fact and conclusions

of law rendered by the trial court were insufficient for

effective appellate review. This contention is contrary to

the well-established rule that the findings of fact should

be confined to ultimate material issues in the case, and that

“all else is surplusage.” (Denbo v. Senness (1953) 120 Cal.

App.2d 863, 869; Freeman v. Jergins (1954) 125 Cal.App.

2d 536, 563.)

Findings of fact, filed after trial, should state ultimate

facts, and not evidentiary facts (Miller v. Gusta (1929) 103

Cal.App. 32, 37) and the evidence from which an ultimate

fact is determined need not and should not be found by

the trial court. (Thomasset v. Thomasset (1953) 122 Cal.

App.2d 116, 129, overruled on another pt., See v. See (1966)

64 Cal.2d 778, 786.) Wife complains that she was denied

findings on the following evidentiary points: (1) the history

of the negotiations between husband and Kaiser; (2) the

history of husband’s employment with Jones & Laughlin;

(3) the terms of husband’s employment contract with Kai-

ser; (4) the terms of husband’s termination agreement with

Jones & Laughlin; (5) the amount of husband’s remunera-

tion from Kaiser Industries; and (6) facts concerning the

establishment of the husband’s insurance trust with Mellon

Bank. Each of these requests relates to evidentiary details

and the trial court’s refusal to include them in the findings

was proper. (Kanner v. Globe Bottling Co. (1969) 273 Cal.

App.2d 559, 566-567.)

The judgment is modified to delete the provision making

husband’s obligation to pay child support conditional. As

F-17

so modili-d the judgment is affirmed. Wife will recover

costs 01 «peal. The trial court will hear and determine

any «})!)| \tion by wife for counsel fees.

Ceri | for publication,

Christian, J.

We co

Rat: a, Acting P. J.°

Pail:, J.”

1: _» assignment by the Chairperson of the Judicial

Coune

Appendix G

In the Court of Appeal

of the

State of California

First Appellate District

Division Four

1 Civil No, 41179

In re the Marriage of William R. pao,

Helen F. Roesch,

William R. Roesch, Respondent,

vs.

Helen F.. Roesch, Appellant.

BY THE COURT:

The petition for rehearing filed in the above entitled

cause is hereby granted.

Dated June 22, 1978

Rattigan, J., Acting P.J.

Appendix H

AMENDMENT XIV—Due Process Clause

“No State shall... deprive any person of life, liberty, or

property, without due process of law... .”

AMENDMENT XIV—Privilges and Immunities Clause

“All persons born or naturalized in the United States

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No

State shall make or enforce any law which shai! abridge

the privileges or immunities of citizens of the United

States... .”

ARTICLE IV, § 2, el. 1

“The Citizens of each State shall be entitled to all

Privileges and Immunities of Citizens in the several

States.”

- =

Appendix I

California Civil Code Sections

§ 4000. Short title

This part shall be known and may be cited as “The

Family Law Act.”

§ 4350. Methods of dissolution

Marriage is dissolved only by (1) the death of one of

the parties, (2) the judgment of a court of competent juris-

diction decreeing a dissolution of the marriage, or (3) a

judgment of nullity.

§ 4506. Grounds for dissolution or legal separation

A court may decree a dissolution of the marriage or legal

separation on either of the following grounds, which shall

be pleaded generally:

(1) Irreconciliable difierences, which have caused the

irremediable breakdown of the marriage.

(2) Incurable insanity.

§ 4507. Irreconcilable differences defined

Irreconcilable differences are those grounds which are

determined by the court to be substantial reasons for not

continuing the marriage and which mak» it appear that the

marriage should be dissolved.

§ 4530. Dissolution; conversion of separation proceedings

(a) A judgment decreeing the dissolution of a marriage

may not be entered unless one of the parties to the mar-

riage has been a resident of this state for six months and

I-2

of the county in which the proceeding is filed for three

months next preceding the filing of the petition.

§ 4800. Division of community and quasi-community prop-

erty

Time of division; equality. The court shall, either (a)

in its interlocutory judgment decreeing the dissolution of

the marriage or in its judgment decreeing the legal separa-

tion of the parties, or (b) at a later time, if the division of

property is in issue and it expressly reserves jurisdiction to

make such a property division, divide the community prop-

erty and the quasi-community property of the parties

equally. The equal division provisions of this section shall

not prevent the court:

(1) Where economic circumstances warrant, from award-

ing any asset to one party on such conditions as the court

deems proper to effect a substantially equal division of the

property;

(2) By way of an additional award or offset against

existing property from awarding from a party’s share any

sum the court determines to have been deliberately misap-

propriated by such party to the exclusion of the community

property or quasi-community property interest of the

other party.

Community property personal injury damages. Com-

munity property personal injury damages shall be assigned

to the party who suffered the injuries unless the court,

after taking into account the economic condition and needs

of each party, the time that has elapsed since the recovery

of the damages, and all other facts of the case, determines

that the interests of justice require another disposition, in

1-3

which case the community property personal injury dain-

ages shall be assigned to the respective parties in such

proportions as the court determines to be just under the

facts of the case. As used in this section, “community prop-

erty personal injury damages” means al] money or other

property-received by a married person as community prop-

erty in satisfaction of a judgment for damages for his or

her personal injuries or pursuant to an agreement for the

settlement or compromise of a claim for such damages,

unless such money or other property has been commingled

with other community property.

(Added by Stats. 1969, c. 1608, p. 3333, § 8, operative Jan.

1, 1970.)

§ 4803. Quasi-community property

As used in this part, “quasi-community property” means

all personal property wherever situated and all real prop-

erty situated in this state heretofore or hereafter acquired

as follows:

(a) By either spouse while domiciled elsewhere which

would have been community property had the spouse ac-

quiring the property been domiciled in this state at the

time of its acquisition.

(b) In exchange for real or personal property, wherever

situated, acquired other than by gift, devise, bequest or

descent by either spouse during the marriage while domi-

ciled elsewhere.

For the purposes of this section, personal property does

not include and real property does include leasehold in-

terests in real property.

J-1

APPENDIX J

Pennsylvania Statutes

$10. Grounds for divorce from bond of matrimony

1. When a marriage has been heretofore or shall here-

after be contracted and celebrated between two persons,

it shall be lawful for the innocent and injured spouse to

obtain a divorce from the bond of matrimony, whenever it

shall be judged, in the manner hereinafter provided, that

the other spouse:

(a) At the time of the contract, was and still is natu-

rally and incurably impotent, or incapable of procreation;

(b) Has knowingly entered into a second marriage, in

violation of the previous vows he or she made to the

former spouse whose marriage is still subsisting; or

(ec) Shall have committed adultery; or

(d) Shall have committed wilful and malicious desertion,

and absence from the habitation of the injured and inno-

cent spouse, without a reasonable cause, for and during

the term and space of two years; or

(e) Shall have, by cruel and barbarous treatment, en-

dangered the life of the injured and innocent spouse; or

(f) Shall have offered such indignities to the person of

the injured and innocent spouse, as to render his or her

condition intolerable and life burdensome; or

(¢) Shail have procured the marriage by fraud, force,

or coercion, and which has not been subsequently confirmed

by the acts of the injured and innocent spouse; or

J-2

(h) Shall have been convicted, as principal or as acces-

sory either before or after the fact, within or without this

Commonwealth, of the crime of arson, burglary, embezzle-

ment, forgery, kidnapping, larceny, murder either in the

first or second degree, assault with intent to kill, voluntary

manslaughter, perjury, rape, robbery, sodomy, buggery,

pandering, treason or misprision of treason, and be sen-

tenced to imprisonment for any term of two years or more

by a competent court having jurisdiction.

2. When a marriage has been heretofore or shall here-

after be, contracted and celebrated between two persons

within the prohibited degrees of consanguinity or affinity,

according to the tables established by law, it shall be lawful

for either of said parties to obtain a divorce from the bond

of matrimony, in the manner hereinafter provided; or

3. If any spouse, upon any false rumor in appearance

well founded of the death of the other, when such other

has been absent for the space of two whole years, hath

married or shall marry again, the party who has not re-

married may at his or her return have his or her own

marriage dissolved by divorce on the ground of bigamy,

leaving the other party to remain with the second husband

or wife. Any such action shall be instituted within six

months after such return. 1929, May 2, P.L. 1237, $10;

1943, March 19, P.L. 21, $1.

4. Where there is insanity or serious mental disorder

which has resulted in confinement in a mental institution

for at least three years immediately before the filing of the

complaint, where there is no reasonably foreseeable pros-

pect of the defendant spouse’s being discharged from in-

J-3

patient care during the next three years subsequent to the

filing of the complaint. A presumption that no such pros-

pect of discharge exists shall be established by a certificate

of the superintendent of such institution to that effect and

such certificate shall include a supporting statement of a

treating physician.

§501. Divorced tenants by entireties hold as tenants in

common; suit for sale and division of proceeds

Whenever any husband and wife, hereafter acquiring

property as tenants by entireties, shall be divorced, they

shall thereafter hold such property as tenants in common

of equal one-half shares in value and either of them may

bring suit in the court of common pleas, sitting in equity,

of the county where the property is situate, against the

other to have the property sold and the proceeds divided

between them. The summons in such suit shall be served in

the same manner and with like effect as in cases of par-

tition at law.

At the hearing on such suit both husband and wife shall

be competent witnesses. The value of the property shall

be proven by the testimony of at least two impartial and

disinterested witnesses. 1927, May 10, P.L. 884, § 1; 1949,

May 17, P.L. 1394, $1.

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.