## Facts

- Dixie Gilmore (plaintiff/appellant), an incompetent person acting through her guardian, and Don Gilmore (defendant/respondent) married in 1946 and lived together about six years before divorce proceedings began in 1952.
- Dixie filed an amended and supplemental complaint for divorce alleging Don’s extreme cruelty, desertion, and adultery; Don answered and cross-complained for divorce alleging Dixie’s extreme cruelty.
- Don owned interests in three automobile dealerships before marriage. During marriage, his ownership interest increased substantially in value (from approximately $182,010 to $786,045).
- The dealerships were staffed so that Don worked only part-time and often took extended vacations, while still drawing a substantial salary.
- Evidence showed that, during the relevant period, automobile dealership values rose sharply due to expanded consumer automobile sales and favorable market conditions.
- The trial court found Dixie committed extreme cruelty toward Don over a period of years and awarded Don an interlocutory decree of divorce on that ground; it rejected Dixie’s claims that Don was guilty of cruelty or desertion.
- On Dixie’s adultery allegations, the trial court found the allegations untrue except that Don engaged in at least six acts of sexual intercourse with women not his wife between June 1 and June 20, 1952; it found these acts occurred after the action was filed and did not constitute extreme cruelty toward Dixie or cause her mental suffering.
- For property, the trial court found Don’s salary during marriage was community income but was fully expended for community purposes, leaving no community property at the time of divorce.
- The trial court found specified real and personal property was held in joint tenancy, and it characterized the remaining disputed assets—including the appreciation in Don’s dealership interests—as Don’s separate property (or property of a corporation he owned).
- Dixie appealed, challenging (among other rulings) the divorce award to Don and the classification of the dealership appreciation and other property.

## Issues

1. Whether substantial evidence supported the trial court’s finding that Dixie’s conduct constituted extreme cruelty justifying an interlocutory divorce decree in Don’s favor.
2. Whether Don’s post-filing acts of adultery required granting Dixie a divorce on her pleaded grounds or otherwise compelled reversal.
3. Whether the trial court erred in characterizing the increase in value of Don’s premarital automobile dealership interests as separate property rather than community property subject to division.

## Decision

- The California Supreme Court affirmed the interlocutory judgment.
- Substantial evidence supported the finding that Dixie engaged in a sustained course of conduct causing Don grievous mental suffering and constituting extreme cruelty; the appellate court would not reweigh conflicting testimony or credibility choices.
- The trial court’s finding that Don’s post-filing sexual conduct did not amount to extreme cruelty toward Dixie and caused her no mental suffering was supported by the record and did not require granting Dixie the divorce.
- The trial court properly treated the appreciation in Don’s dealership interests as separate property where the evidence showed the increase was mainly attributable to Don’s premarital capital investment and general market conditions (including a postwar rise in dealership values), and Don’s community-compensable services were already reflected in his salary.
- Because Don’s community salary had been spent for community purposes during marriage, the finding that no community property remained at divorce was upheld.

## Legal Principles

- A finding of extreme cruelty will be upheld on appeal if supported by substantial evidence; appellate review does not retry the facts or reassess witness credibility.
- Increases in value or profits from a separately owned business during marriage are characterized based on their primary source: (a) community property to the extent attributable to the spouse’s personal efforts, skill, and management during marriage, and (b) separate property to the extent attributable to separate capital, business structure, or market forces.
- The Pereira and Van Camp allocation methods are evidentiary tools, not rigid requirements; the trial court may select an approach consistent with the evidence showing what produced the increase.
- Community earnings received during marriage are community property, but a spouse claiming a divisible community estate must show that community assets remained after accounting for community expenditures.
- Post-separation or post-filing sexual misconduct does not automatically establish “extreme cruelty”; the trier of fact may consider timing and whether the conduct caused the complaining spouse mental suffering on the theory pleaded.

## Conclusion

The Supreme Court of California affirmed an interlocutory divorce decree awarding the divorce to Don Gilmore based on substantial evidence of Dixie Gilmore’s extreme cruelty, upheld the trial court’s rejection of Dixie’s claim that Don’s post-filing adultery constituted extreme cruelty toward her, and affirmed the property characterization that the dramatic appreciation in Don’s premarital automobile dealership interests remained his separate property because the increase stemmed chiefly from capital and market conditions rather than compensable marital labor, with Don’s community salary having been consumed by community expenses.


Gilmore v. Gilmore, 45 Cal. 2d 142, 287 P.2d 769 (1955)