# Petitioner for ReHearing — Roesch v. Roesch

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioner for ReHearing
- **Published:** January 1, 1979
- **Citation:** 440 U.S. 915

## Text

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

Pa

re ee

>

15

16
17

ii

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

iv

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... ; ..
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
(c) Those shares of stock standing in
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.

A

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.

(c) Those shares of stock standing in respondent’s
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
(c) Limited partnership interest in Con-

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

(c) One ruby ring. 2,000.00

(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.

I.

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.

V.

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.”

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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

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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

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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;
or

(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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_2260%3A1. Public record. Not legal advice.