Mason v. Mason

Plaintiff wife appeals from those portions of an interlocutory judgment of divorce decreeing: (1) that there is no community property; and (2) that the court retains no jurisdiction to modify the decree with respect to alimony payments.

The parties were married on September 2, 1953, and separated September 4, 1958, a period of five years and two days. Summons and complaint were personally served on defendant within the city of Los Angeles. Defendant failed to answer and his default was entered on October 22, 1958. The hearing of the matter involved lengthy proceedings culminating on May 29, 1959, when the court took the case under submission. Defendant made no appearance in person or by counsel.

Basic to this appeal is plaintiff’s contention that the existence of community assets was established by application of the presumption stated in section 164 of the Civil Code, and that the presumption was not rebutted by competent evidence. The record fully supports this contention and the finding that there is no community property is clearly in error.

Section 164 of the Civil Code provides in the portions here relevant, that all property, except separate property as defined in Civil…