Estate of Mitchell

• Citation: 76 Cal.App.4th 1378,91 Cal.Rptr.2d 192
• Decision Date: 20 December 1999
• Docket Number: No. E023094.,E023094.
• Court: California Court of Appeals
• Parties: ESTATE OF Robert Stanley MITCHELL, Deceased. Shirley C. Mitchell, Petitioner and Respondent, v. Charles Jeffrey Mitchell, as Special Administrator, etc., Objector and Appellant.

91 Cal.Rptr.2d 192

76 Cal.App.4th 1378

ESTATE OF Robert Stanley MITCHELL, Deceased.

Shirley C. Mitchell, Petitioner and Respondent, v. Charles Jeffrey Mitchell, as Special Administrator, etc., Objector and Appellant.

No. E023094.

Court of Appeal, Fourth District, Division 2.

December 20, 1999.

Certified for Partial Publication.^*

Review Denied April 19, 2000.

Marjorie G. Fuller, Fullerton, and Phillip J. Holman, Monrovia, for Objector and Appellant.

Hartnell, Horspool & Fox and Donald R. Ferguson, Redlands, for Petitioner and Respondent.

OPINION

RICHLI, J.

During their marriage, Robert and Shirley Mitchell acquired certain real property as joint tenants. The marriage soured, and a dissolution proceeding was filed. As a result, both an automatic temporary restraining order (Fam.Code, § 2040, subd. (a)) and a court-ordered preliminary injunction went into effect which prohibited both of them from "transferring encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate...." Thereafter, Robert purported to sever the joint tenancies unilaterally by recording declarations of severance. (Civ.Code, § 683.2, subd. (a)(2).) A little over a month later, while the dissolution proceeding was still pending, he died.

Charles Mitchell, Robert's son and the administrator of his estate, claims the severance was effective, and Robert's interest in the property therefore passed to the estate. Shirley claims the attempted severance was ineffective because it violated the preliminary injunction, and therefore Robert's interest in the property passed to her by right of survivorship.

We will hold that the severance of a joint tenancy by recording a declaration of severance is not a "transfer" or a "disposition" of "property." Accordingly, such a severance does not violate either the automatic temporary restraining order in a dissolution proceeding or a similarly worded court-ordered temporary restraining order or preliminary injunction.

I FACTUAL AND PROCEDURAL BACKGROUND

A. Background.

Robert and Shirley were married in 1978. Between 1986 and 1990, they acquired four separate parcels of real property in Helendale. They took title to each of these properties as "Robert S. Mitchell and Shirley C. Mitchell, husband and wife as joint tenants." (Capitalization omitted.)

B. The Dissolution Proceeding.

On September 9, 1996, Shirley filed a petition for legal separation against Robert. Later, she filed an amended petition for dissolution of marriage.

The family law court issued a summons which, as required by Family Code section 2040, subdivision (a), included a temporary restraining order (the automatic TRO). The automatic TRO enjoined Robert from, among other things, "transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life."

The summons, as required by Family Code section 2040, subdivision (b), also included the following warning:

"WARNING: California law provides that, for purposes of division of property upon dissolution of marriage or legal separation, property acquired by the parties during marriage in joint form is presumed to be community property. If either party to this action should die before the jointly held community property is divided, the language of how title is held in the deed (i.e., joint tenancy, tenants in common, or community property) will be controlling and not the community property presumption. You should consult your attorney if you want the community property presumption to be written into the recorded title to the property."

On Shirley's ex parte application, the family law court issued an order to show cause (OSC) which included an additional temporary restraining order (additional TRO). (Fam.Code, § 2045.) Like the automatic TRO, the additional TRO enjoined Robert from, among other things, "transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, except in the usual course of business or for the necessities of life."

On September 11, 1996, Robert was personally served with the summons (including the automatic TRO and the warning) and the OSC (including the additional TRO).

On December 17, 1996, Robert filed a declaration in response to the OSC. In it, he consented to the issuance of a preliminary injunction containing the same property restraints as the additional TRO.

On December 18, 1996, after a hearing on the OSC, the family law court ordered: "All restraining orders previously granted shall remain in full force and effect." This was, in effect, a preliminary injunction (the preliminary injunction).

C. Robert's Attempt to Sever the Joint Tenancies.

On June 3, 1997, Robert executed and recorded a declaration of severance of joint tenancy as to each of the four properties. (See Civ.Code, § 683.2, subd. (a)(2).) Each declaration stated:

"I, Robert S. Mitchell, hereby grant to myself, Robert S. Mitchell, all my respective rights, title, and interest in and to the real property...."

"The purpose of this declaration is to sever whatever joint tenancy may exist between myself and my spouse, Shirley C. Mitchell, with respect to the ownership of the above property pursuant to Civil Code § 682.2(2) [sic].

"This conveyance changes the manner in which title is held, grantors and grantees remain the same and continue to hold the same proportionate interest, R & T 11911[.]" (Capitalization omitted.)

D. Robert's Death and the Probate Proceeding.

On July 17, 1997, while the dissolution proceeding was still pending, Robert died. Under his will, any interest his estate had in the four properties would go to Charles and other legatees rather than to Shirley.

On August 7, 1997, Charles filed the present probate proceeding. On October 27, 1997, Charles was appointed administrator of Robert's estate.

On January 29, 1998, Shirley filed a verified petition to determine title to the four properties. (See Prob.Code, § 9860 et seq.) She asserted that Robert's attempt to sever the joint tenancies was ineffective because it violated the preliminary injunction; as a result, the properties continued to be held in joint tenancy and, upon Robert's death, by right of survivorship, she became the sole owner. On March 18, 1998, Charles filed a response to the petition. He asserted the severance was effective because it was not a "transfer" of any "property" and it therefore did not violate any court order.

On July 6, 1998, the probate court held a hearing on the petition. It took judicial notice of the file in the dissolution proceeding.¹ The parties agreed there was no need to take any other evidence. After hearing argument, the probate court granted Shirley's petition. It ruled that the severance was void because it violated the preliminary injunction. Alternatively, it ruled that Shirley's application for an OSC, together with Robert's responsive declaration consenting to the property restraints of the additional TRO, constituted a written agreement not to sever the joint tenancy; thus, the severance also was void because it violated this agreement.

II DISCUSSION

Charles contends the severance of the joint tenancies did not violate the injunctive orders. In support of this contention, he offers several alternative arguments, not all of them equally convincing. In the end, however, we agree with him that the severance was not a "transfer" of "property."

A. Statutory Background.

We begin with some basic background principles.

1. Joint Tenancy.

"A distinctive feature of joint tenancy, as opposed to other interests in land, is the right of survivorship. This means that when one joint tenant dies, the entire estate belongs automatically to the surviving joint tenant(s). [Citations.]" (Grothe v. Cortlandt Corp. (1992) 11 Cal. App.4th 1313, 1317, 15 Cal.Rptr.2d 38.) The severance of a joint tenancy transforms it into a tenancy in common by extinguishing the right of survivorship. (Tenhet v. Boswell (1976) 18 Cal.3d 150, 155, 133 Cal.Rptr. 10, 554 P.2d 330; Re v. Re (1995) 39 Cal.App.4th 91, 96, 46 Cal. Rptr.2d 62.)

A joint tenant may sever a joint tenancy in real property unilaterally by: (1) executing and delivering a deed to a third person, (2) executing a deed to himor herself, (3) executing a written declaration of severance, or (4) executing any other written instrument evidencing an intent to sever. (Civ.Code, § 683.2, subd. (a).) In addition, with one exception not applicable here, the deed, declaration, or other written instrument must be recorded before the severing joint tenant dies. (Civ.Code, § 683.2, subd. (c).) Such an attempt to sever a joint tenancy is ineffective, however, if it is contrary to a written agreement of the joint tenants. (Civ.Code, § 683.2, subd. (b).)

2. The Characterization of Property Acquired During Marriage as Joint Tenancy or Community Property.

A husband and wife may co-own property as joint tenants, tenants in common, or community property. (Fam.Code, § 750.) Property cannot be held both as community property and in either a joint tenancy or a tenancy in common at the same time. (See Tomaier v. Tomaier (1944) 23 Cal.2d 754, 758, 146 P.2d 905 [joint tenancy]; see also Civ.Code, § 682.) Accordingly, each spouse's interest in a joint tenancy or a tenancy in common is his or her own separate property. (Estate of Murray (1982) 133 Cal.App.3d 601, 604, fn. 3, 183 Cal.Rptr. 924 [tenancy in common]; Meyer v. Thomas (1940) 37 Cal. App.2d 720, 723-724, 100 P.2d 1066 [joint tenancy].)

"Before 1966, California courts applied a rebuttable presumption that ownership interest in property was as stated in the title. Thus, a residence purchased...