In Re Marriage of Stallworth

HANING, J., Concurring and Dissenting.

Like the majority I would also affirm the award of support and disposition of the mobilehome because I believe the trial court was acting well within its discretion. I also agree that on the basis of the record before us, Civil Code section 5125, subdivision (b) requires that we reverse that portion of the judgment which declares the trust account to be the child’s property; however, I would remand for further findings. I concur in the reversal of that portion of the judgment which holds that the debt to the wife’s parents is a community obligation. As to the remainder of the majority opinion which reverses the judgment, I respectfully dissent.

Numerous decisions of the Courts of Appeal have upheld the trial court’s discretion, under appropriate circumstances, to defer the sale of the family residence. (In re Marriage of Duke (1980) 101 Cal.App.3d 152 [161 Cal. Rptr. 444]; In re Marriage of Herrmann (1978) 84 Cal.App.3d 361 [148 Cal. Rptr. 550]; In re Marriage of Boseman (1973) 31 Cal.App.3d 372 [107 Cal. Rptr. 232].) I conclude that the present circumstances are appropriate for such an order.

The parties were married for nearly 15 years. The husband is a journeyman plumber earning in excess of $50,000 annually. The wife has not been employed outside the home and has no demonstrable earning capacity save for nominal income obtained through sales of Tupperware products. She has only a high school education, but has enrolled in college and is pursuing a course of study leading to a baccalaureate degree.

The minor son of the parties is suffering from psychiatric problems. He is unable to handle ordinary classroom work at school without additional help, and is attending a special educational program. The wife’s assumption of her formal education is laudable, and should be encouraged. Achievement of her degree will promote her ability to become self-supporting and relieve the husband of much, if not all of his spousal support obligation. The *757wife’s education will also enure to the child’s benefit. If remaining in the family residence temporarily will accelerate or advance the wife’s educational program, the trial court is acting well within its discretion to permit her to remain.

I think the child’s situation speaks for itself. His circumstances and the need for continued treatment are not disputed, and the current low house payments greatly facilitate the continuation of his medical and educational needs. The trial court found that the mental condition of the child and the financial condition of the parties require that the wife and child be permitted to reside in the family residence temporarily. It reserved jurisdiction to modify their occupancy of the residence upon a sufficient change of circumstances. If the wife maintains her present educational progress she will complete school long before the child reaches 18. By that time, if not before, the child’s circumstances may also have changed, and the trial court can reassess the situation.

The possible adverse tax consequences of the deferred sale of the residence were not presented to the trial court by the husband. Although he urges us to do so, we cannot speculate on appeal that such consequences exist. (See, e.g., 9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 250.) The trial court found that the child’s mental condition and the financial circumstances of the parties required that the wife and child remain in the family residence until the circumstances changed. I think its finding is supported by substantial evidence, and should be affirmed.

The evidence regarding the wife’s use of cash on hand for living expenses after separation was disputed. The wife testified that the husband agreed she should use the community funds to supplement the support payments which, standing alone, were insufficient to support her and the child. The trial court found that the husband so agreed. That finding is binding on us. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 [45 Cal. Rptr. 183]; see also In re Marriage of Epstein (1979) 24 Cal.3d 76, 84 [154 Cal. Rptr. 413, 592 P.2d 1165].) Credibility of the witnesses and the weight of the evidence are matters for the finder of fact (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925-926 [101 Cal. Rptr. 568, 496 P.2d 480]), and the testimony of a single witness is sufficient to support a finding on such a factual issue. (Chodos v. Insurance Co. of North America (1981) 126 Cal.App.3d 86, 97 [178 Cal. Rptr. 831].)

With regard to the child’s trust account, if we follow the majority’s reasoning to its ultimate conclusion, the trial court must also order the child’s bicycle, teddy bear and other toys and personal possessions sold or distributed between husband and wife. I am not sure this is what the Legis*758lature had in mind when it enacted Civil Code section 5125, subdivision (b), but neither do I find it necessary to address that issue in light of the record before us. It simply is inadequate to enlighten us sufficiently to rule. We know that some of the money in the trust account consisted of birthday and Christmas gifts. We do not know who made the various gifts, nor the manner in which they were made. We also know that the parties met with a financial advisor for purposes of estate planning, and that pursuant to his suggestion an account was opened to provide for the future education of their child. I would remand to the trial court with instructions to take further evidence and make a new finding on the status of the trust account.

Finally, if the matter has to be reversed for any reason, I think the trial court should be permitted to re-exercise its entire discretion in light of any changes which are required. It disposed of property and awarded support in light of its entire judgment as it then existed. If it must adjust any allocations, it might also exercise its discretion differently in other areas. The discretion belongs to the trial court, and not to us. When appellate courts reverse trial courts in divorce cases, the trial courts should be able to consider the entire matter anew with regard to those areas in which they have discretion.