In re Marriage of Carpenter
Decision Date | 22 July 2002 |
Docket Number | No. B150606.,B150606. |
Citation | 100 Cal.App.4th 424,122 Cal.Rptr.2d 526 |
Court | California Court of Appeals Court of Appeals |
Parties | In re the MARRIAGE OF Jeanne and Marvin W. CARPENTER. Jeanne Carpenter, Appellant, v. Marvin W. Carpenter, Respondent. |
Misho, Kirker & Pina, Vanessa Kirker, Santa Barbara, for Appellant.
John F. Hodges, Arroyo Grande, for Respondent.
Jeanne Carpenter (wife) appeals from a marital dissolution judgment awarding Marvin W. Carpenter (husband) $415,000 as reimbursement for his separate property contribution in the purchase of a house. The trial court found that husband, in executing a premarital agreement, did not waive his right of reimbursement under Family Code section 2640, subdivision (b).1 Pursuant to the premarital agreement, the trial court awarded wife $2,083 a month spousal support for five years but declined to rule on whether support was modifiable. We affirm.
Husband is 68 years old. Wife is 59 years old. She owns a bookkeeping service and was husband's bookkeeper before they married. On November 10, 1997, they entered into a premarital agreement providing that their separate property would remain separate property. The agreement stated that husband was buying a house in Arroyo Grande and that, upon marriage, the house would be "deemed to be their community property."2
Husband paid $415,000 for the house. Escrow closed on the parties' wedding day, November 20, 1997. A few days after the wedding, husband executed a quitclaim deed transferring title to husband and wife as community property.
The parties separated two years later and sold the house for $650,000. The trial court awarded husband $415,000 as reimbursement for his separate property contribution. (§ 2640, subd. (b).) The balance of the sale proceeds, with offsets, was divided as community property.
Section 2640, subdivision (b) provides: Section 2640 creates a substantive right of reimbursement that can be relinquished only by an express written waiver by the contributing spouse. (In re Marriage of Witt (1987) 197 Cal. App.3d 103, 108, 242 Cal.Rptr. 646 [discussing former Civil Code section 4800.2].) "In the absence of such a written waiver the donative intent of the contributing spouse does not bar reimbursement...." (Ibid.)
Wife argues that section 2640 does not require the magic words "I waive reimbursement." We agree, but there still must be a writing that has the effect of a waiver. Wife has not demonstrated, as a matter of law, that the premarital agreement has the effect of a waiver. She claims that the premarital agreement, the quitclaim deed, and the mortgage payments show that the house was transmuted to community property. These documents did not affect husband's right of reimbursement after the house became community property. (In re Marriage of Walrath (1998) 17 Cal.4th 907, 918-919, 72 Cal.Rptr.2d 856, 952 P.2d 1124; see § 852, subd. (a) [ ].) Nor does the commingling of separate and community property funds forfeit husband's right of reimbursement where the separate property contribution is traced to its source. (In re Marriage of Cochran (2001) 87 Cal. App.4th 1050, 1057, 104 Cal.Rptr.2d 920; In re Marriage of Braud (1996) 45 Cal. App.4th 797, 822-823, 53 Cal.Rptr.2d 179.)
The trial court concluded that the writing requirement of section 2640 was not satisfied because the premarital agreement was silent on husband's right of reimbursement. When such an agreement is silent on such concept, it cannot have the effect of a waiver. Wife's reliance on paragraph 7, which governs property acquired after marriage, is misplaced.3 The trial court found:
When the premarital agreement was signed, husband was unaware of his right to reimbursement. However, at that time, he knew that wife was not receiving an absolute gift of half of the value of the house. Before the wedding, the parties discussed creating a trust to provide wife a life estate if he predeceased her. Under the proposed trust, the house would be sold upon wife's death and husband's $415,000 investment would be paid to his children. Wife, however, refused to execute the trust instrument after the wedding.
Husband's articulated desire to place the house in a trust supports the trial court's finding that he did not waive his right of reimbursement.4 The waiver of a legal right requires an intentional act with knowledge of the right being waived. (In re Marriage of Vomacka (1984) 36 Cal.3d 459, 469, 204 Cal.Rptr. 568, 683 P.2d 248; In re Marriage of Perkal (1988) 203 Cal. App.3d 1198, 1203, 250 Cal.Rptr. 296.) (In re Marriage of Perkal, at p. 1203, 250 Cal.Rptr. 296.) The premarital agreement provides that "neither party shall have any interest in the separate property of the other, and nothing in this Agreement shall divest a party from his or her property as determined under this Agreement." The judgment is consistent with section 2460, which (In re Marriage of Walrath, supra, 17 Cal.4th at p. 919, 72 Cal.Rptr.2d 856, 952 P.2d 1124.)
Wife asserts that husband made an outright gift of a half interest in the house. But even if the quitclaim deed stated that the transfer was a gift, it would not defeat husband's right to reimbursement under section 2640. (E.g., In re Marriage of Perkal, supra, 203 Cal.App.3d at pp. 1203-1204, 250 Cal.Rptr. 296 [ ]; In re Marriage of Witt, supra, 197 Cal. App.3d 103, 108, 242 Cal.Rptr. 646 [ ]; In re Marriage of Kahan (1985) 174 Cal.App.3d 63, 72, 219 Cal.Rptr. 700 [ ].)
Wife was awarded $2,083 a month support for five years pursuant to the premarital agreement. She contends that the trial court should have ruled on whether support was non-modifiable. The trial court found: It did not err. The ripeness doctrine bars courts from issuing advisory opinions. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 998, 90 Cal.Rptr.2d 236, 987 P.2d 705.)...
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