O'Bryan v. Commissioner

¶1dissenting: I respectfully dissent from the majority view under^ the first issue. The separation agreement which the parties executed in 1935 or 1936 was a separation agreement by its terms and did not purport to accomplish an ending of the community property of the parties then. It appears to me to be unsound to construe the agreement as an expression of intention of both parties to terminate the community interests of the spouses in a part of that which ordinarily constitutes community property, namely, future earnings. That there was no such intention at the time the separation agreement was executed is demonstrated by the execution on October 5, 1942, of the “Property Settlement Agreement” which stated that it was the intention of the parties to settle and adjust their community and property rights. That agreement purported to adjust the interests in all property. The statement in the 1942 agreement that it was “in full settlement of all- property rights past, present and future,” and that all property acquired by either party from and after the date thereof should be the separate property of each, negates the theory that at some time prior to October 5,1942, the parties had effected a separation of property interests, to wit, in 1935 or 1936. I believe it is incorrect to hold that petitioner’s earnings were his separate property after the execution of the separation agreement under facts which indicate that other kinds of property were not to be the separate property of the spouses.