Decker v. Occidental Life Insurance
Decker v. Occidental Life Insurance
Opinion of the Court
In this action to recover amounts due and owing under a life insurance policy covering the unpaid balance on a contract of purchase and sale with the California Department of Veterans Affairs, defendant insurers appeal from a partial summary judgment (L.A. 29550) and from, a summary judgment (L.A. 29551) entered in favor of plaintiff and against said defendants.
After decision by the Court of Appeal, Second Appellate District, Divisen One, reversing the summary judgment' and .dismissing the appeal from the partial summary judgment, we granted a hearing in this court for the purpose of giving further study to the issues raised. • Having made such study, we have concluded that the Court of Appeal has correctly disposed of the cause. Accordingly, the opinion of the Court of Appeal, authored by Justice Lillie and concurred in by Presiding Justice Wood and Justice Fourt, is adopted as and for the opinion of this court. Such opinion " (with appropriate deletions and additions as indicated) is as foltows :
In July of 1963 (before entry of the final decree), Decker died. In February of 1964, upon plaintiff’s ex parte application, the court made a nunc pro tunc order adding the language “effective upon entry of the final decree’’ to that portion of the decree above quoted. Plaintiff then instituted the .instant proceeding to recover the amount owing on the contract which was insured against by defendants; the latter, by affirmative defense, contended that Decker’s interest in the real property had terminated prior to his death by virtue of the interlocutory decree awarding the family residence to plaintiff. Finding against such defense, the trial court rendered summary judgment in plaintiff’s favor wherein the unpaid balance was determined and judgment ordered against defendants in said amount. These consolidated appeals followed.
If the insured’s interest- in the subject property terminated with the interlocutory decree, the insurance in question wits also terminated. That such was the case is ■ clearly established by the controlling decisions, particularly Fritschi v. Teed, 213 Cal.App.2d 718 [29 Cal.Rptr. 114] (hearing by the Supreme Court denied) which, in pertinent respects, is apposite. Therein the court properly points out that a
The Fritschi ease was also concerned with other problems identical to those raised in the instant proceeding. Thus, as here, the interlocutory decree included a provision for the granting of further relief at the time of the entry of the final decree, and it was unavailingly contended that such language should be construed as a reservation of the court’s power to make an immediate disposition of the property in question. Again distinguishing the several decisions cited, the court concluded that the provision (for further relief) was mere surplusage, particularly in view of the fact that the dispositive provisions of the subject decree “were cast in the present tense, declaring that each party was ‘hereby’ awarded ■designated items.” (P. 725.) In our case, as noted earlier, the dispositive provision “awards” the subject residence to plaintiff; to suggest, as plaintiff does, that such award contains no language of immediacy, perilously approaches the frivolous. Finally, there is no merit to the contention that the nunc pro tunc order amended the decree and made it cdnstruable in plaintiff’s favor for the purposes presently being discussed; the time for appeal having expired, the decree was no longer subject to modification except in aecord- " ance with the methods applicable to judgment generally ' (Luepe v. Luepe, supra, 21 Cal.2d 145, 149-150), and such later order also erroneously sought to correct a judicial, not a clerical mistake. (See 29 Cal.Jur.2d, § 99, p. 13.)
“(a) Upon the entry of an interlocutory decree of divorce or entry of a decree of separate maintenance of a veteran contract purchaser and his wife, the department will recognize the nonveteran wife as the sole purchaser provided the veteran’s entire beneficial interest is transferred to the wife and she agrees to: (1) actually reside in the home; (2) pay interest at the rate prescribed by the California Veterans Board for nonveteran assignees and the resulting increased installments; (3) apply for the Home Protection Plan.
‘ ‘ (b) Should the veteran retain his entire beneficial interest in the property after divorce or legal separation, he may continue as purchaser provided either he or his divorced wife continues to occupy the property.” Counsel for defendants has represented to us that ‘.‘.The Department, in keeping with the foregoing provisions of the; Administrative Code, has adopted thé practice for .many years,"upon entry of the interlocutory decree of divorce, to transfer the contract interest .of the spouse, whose interest is lost by the decree, to the remain
[Since in the divorce ease the trial court had the power to, and did, make an immediate disposition of the subject property and since such disposition, not having been challenged by either of the parties by an appeal from the interlocutory decree, is now final and conclusive upon them, the questions whether the court erred in so doing and whát rule of construction should be applicable to ambiguous interlocutory decrees, are not before us in this case.] [ ] .
[In L.A. 29550, the appeal is dismissed. In L.A. 29551, the summary judgment is reversed. Defendants shall recover costs on both appeals.]
. Traynor, C. J., Peters, J., and Tobriner, J., concurred/
Brackets together, in this manner [ ] without enclosing material, are used to indicate deletions from the opinion of-the Court of Appeal; brack
In No. [29550] the appeal is from a partial summary- judgment ad- ... judging .the liability, of defendants under the subject policy but making s no , determination of-the amount due, thereunder. In No. [29551] the ap- . peal, is from the, summary, -judgment, subsequently entered, which dis
Seetion 987.1, supra, reads:."The department.™ each individual case may specify .the.'terms of the contract entered into with the purchaser, but no property sold under the provisions of this article shall, voluntarily • or- 'involuntarily, -by operation ‘ of law or otherwise, be' transí erred,' assigned, encumbered, leased, let or sublet, in whole or in.part, without .the .written consent of the department, .until the purchaser has paid therefor in full and hs£s complied with all the terms-and conditions-of this-contract of purchase."’ ’ ..... . ...-'• ■
Concurring Opinion
I concur in the judgment.
However, in merely adopting the Court of Appeal opinión the majority have failed to discuss or resolve two frequently recurring questions: (1) Does a trial court commit reversible error in ordering an immediately effective disposition of property in an interlocutory decree? (2) If not, where the language of the decree is ambiguous or silent.on the'question of intended timing, does the presumption favor immediate or delayed disposition ? Proper resolution of this case, as well as necessary guidance to trial courts and the bar, compels • a reply to these queries. ■
The first.question.is raised by implication, if not directly, in the instant case. In Luepe v. Luepe (1942) 21 Cal.2d 145, 149, [130 P.2d 697], this court determined that a trial court had. .the’, power—i.e., .;jurisdiction—to" .make an- immediately effective", disposition. of .'property in .an' interlocutory decree,
However, Fritschi v. Teed (1963) 213 Cal.App.2d 718 [29 Cal.Rptr. 114], on which the majority largely rely, cast considerable doubt upon the Gudelj holding. Granted that Fritschi purported to distinguish Gudelj and later “dissonant authorities,” it went beyond that point and strongly implied that Gudelj was not an accurate statement of the law and that it was 11 out of harmony with common practices of trial judges and divorce counsel throughout the state.” (Id. at p. 723.) This implication was fortified by the court’s readiness to conclude, in the face of ambiguous language, that the trial court had in fact made an immediate disposition. A clear inference is that, contrary to Gudelj, the trial court involved in FritscM not only acted within its power, but it acted properly—i.e., did not commit reversible error—in making an immediate disposition.
This court, by adopting the Court of Appeal opinion herein which relies on FritscM for an identical conclusion, without mention of the Gudelj question, unfortunately perpetuates this confusion. It is now this court that implies an immediate disposition is proper—as I agree it should be—but without forthrightly stating as much. The FritscM court, like the Court of Appeal below, was without power to do more than question the Gudelj holding; this court, however, can and should overrule it. I would hold that a trial court in its discretion may make an immediately effective property disposition in the interlocutory judgment of divorce if the intention to do so is expressly stated therein.
The second question must be answered, as a corollary to the first, to avoid unnecessary repetition of the type of ad hoc construction, based on nebulous terms such as “hereby” and “awards,” to which the majority have been compelled to resort in this case. This court should clarify the law for the bar, future litigants and courts by articulating a simple, unambiguous rule of construction: absent the clear declaration of intent by the court to make an immediately effective property disposition, all property disposition contained in the interlocutory judgment becomes effective upon entry of the final judgment of divorce. .
In shoít,. I believe this court should resolve all the issues in the instant cáse in a manner calculated to avoid, rather than encourage, .a repetition of this type of litigation. The majority, by adopting the Court of Appeal opinion, have regrettably foregone the opportunity to do so. They compound their omission by gratuitously adding to the opinion a paragraph in parentheses stating that rules of construction applicable to ambiguous interlocutory decrees “are not before us in this case.” Such ipse dixit and cavalier dismissal of an issue ignores a record replete with the injection and discussion of the subject in every brief on file.
McComb, J., and Burke, J., concurred.
Icite chapter and verse: (1) plaintiff’s petition for hearing, p. 10; (2) defendant’s answer to petition for hearing, pp. 1-2; (3) defendant’s opening brief in the Court of Appeal, p. 9; (4) plaintiff’s reply brief in the.Court of Appeal, p. 9; (5) defendant’s reply brief in the Court of Appeal, pp. 2-3; (6) amicus curiae brief, p. 5; and (7) in addition, the trial court discussed the Gudelj problem from the bench (Rep. Tr., p. 3).
Reference
- Full Case Name
- RAE L. DECKER, Plaintiff and Respondent, v. OCCIDENTAL LIFE INSURANCE COMPANY Et Al., Defendants and Appellants
- Cited By
- 9 cases
- Status
- Published