Marriage of Anderson, In re

• Decision Date: 17 April 1984
• Docket Number: No. 53851,53851
• Citation: 201 Cal.Rptr. 498,154 Cal.App.3d 572
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Linda Jo Ash and Gordon ANDERSON. Gordon ANDERSON, Appellant, v. Linda Jo Ash ANDERSON, Respondent. Civ.

Page 498

201 Cal.Rptr. 498

154 Cal.App.3d 572

In re the MARRIAGE OF Linda Jo Ash and Gordon ANDERSON.

Gordon ANDERSON, Appellant, v. Linda Jo Ash ANDERSON, Respondent.

Civ. No. 53851.

Court of Appeal, First District, Division 2, California.

April 17, 1984.

Hearing Denied June 27, 1984.

Donald K. Struckmann, San Leandro, Bernard N. Wolf, San Francisco, for appellant.

Alan H. Davidson, Oakland, for respondent.

SMITH, Associate Justice.

Appellant Gordon Anderson appeals from a judgment in the proceeding for dissolution and consolidated cases of In re Marriage of Anderson and Anderson v. Anderson (County of Alameda Superior Court Nos. H-64175-5 and H-66347-6). The facts pertinent to our decision are as follows.

Appellant Gordon Anderson and respondent Linda Jo Ash Anderson were married on July 30, 1978, and separated fourteen months later on October 5, 1979. There were no children.

Prior to their marriage, appellant purchased his late mother's Hayward home at an estate sale, financing the purchase through a cash inheritance and two promissory notes. Title was taken solely in appellant's name, and appellant testified that he repeatedly refused to follow respondent's frequent requests to place her name on the title documents. Respondent, however, testified that prior to the estate sale she and appellant had decided to buy a house together and, despite the fact that she did not contribute to the down payment, she In the spring of 1979, nine months after their marriage, respondent, who is a real estate agent, suggested that the parties obtain a home equity loan. Appellant agreed based upon his concern for their deteriorating financial condition. They therefore applied for and received a $17,000 loan, part of which would be used to pay bills and the remainder to be placed in investments.

                considered his purchase to be "our home."   Payments on the promissory notes were made from a joint checking account
                

However, on the last day to close escrow on the loan, the title officer informed the parties that respondent would have to sign a release of any property interest that she possibly held in the house. Respondent refused to do so. Asking if anything else could be done, appellant was told that the loan could be transacted if he put respondent's name on the home's title. Appellant said, "Go ahead," and the title officer then prepared a joint tenancy deed which appellant signed.

At trial, appellant testified that he had no idea he was giving respondent a one-half interest in the house. Rather, he assumed that at most the new deed meant that respondent might share in any appreciation accruing on the house after the loan transaction. Appellant also testified that respondent had represented to him that she was knowledgeable of the loan process and that she would take care of his interests. Appellant did not learn of the effect of the joint tenancy deed until he consulted an attorney regarding dissolution proceedings, four months after the deed was executed.

The parties' marital status was subsequently resolved by a bifurcated Interlocutory Judgment of Dissolution of Marriage. It was then determined that the Hayward house was held in community property based upon appellant's conveyance during the home equity loan transaction. The trial court further found that respondent did not make any misrepresentations regarding the loan process and that appellant did not rely on any such representations in executing the grant deed.

APPEAL

Appellant contests the trial court's determination that the Hayward home was community property.

While this case was pending on appeal, the single family residence presumption on which the trial court relied was deleted from Civil Code section 5110 ¹ and is now replaced by two new sections. New Civil Code section 4800.1 now provides that all property acquired by the parties during marriage in joint tenancy is presumed to be community property for the purposes of property division upon dissolution. This presumption is one affecting the burden of proof and may be rebutted by either a written agreement or a clear statement in the deed or in other documentary evidence that the acquired property is in fact separate property. ² Additionally, new Civil Code section 4800.2 creates a right of reimbursement at the time of dissolution for any separate property contributions to an acquisition affected by section 4800.1, provided there is no written waiver. ³

These new statutes apply to proceedings pending on January 1, 1984, if the property division at issue has not yet been adjudicated, if the adjudication is still subject to appellate review, or if the trial court has expressly reserved jurisdiction to make the adjudication. (Stats.1983, ch. 342, No. 7 West's Cal.Legis.Service, pp. 2499-2501; ____ Sen.J. (1983 Reg.Sess.) p. 4867; see also In re Marriage of Brown (1976) 15 Cal.3d 838, 851, 126 Cal.Rptr. 633, 544 P.2d 561.) Since the present case falls within the second category above, we will apply the new legislation.

Appellant however contends that section 4800.1 does not govern the present fact situation because the Hayward home was not property "acquired by the parties during marriage in joint tenancy." (Civ.Code, § 4800.1) He points to the fact that he himself owned the house before marriage and cannot be deemed to have acquired the property thereafter. Appellant also contends that the word "acquire" means "purchase," and thus, the home was not acquired during the refinancing transaction after his marriage.

We disagree. Both the legislative intent and purpose behind the enactment of Civil Code section 4800.1 compel the conclusion that this section governs the present case. The Senate Committee on Judiciary Report on Division of Marital Property (1983-1984 Reg.Sess.) (hereafter referred to as Marital Property Rep.), adopts the revised California Law Revision Commission Report on these new statutes as evidence of legislative intent and states that Civil Code section 4800.1 "governs property initially acquired before marriage, the title to which is taken in joint tenancy form by the spouses during marriage. The measure of the separate property contribution under Section 4800.2, in such a case, is the value of the property at the time of its conversion to joint tenancy form." (____ Sen.J., supra, at p. 4866.) ⁴ Moreover, the legislative purpose behind section 4800.1 seeks to expand the domestic law court's jurisdiction over assets that spouses frequently hold in joint tenancy, thereby allowing "the most sensible disposition of the marital property." (Marital Property Rep., pp. 2, 4-5.) To adhere to appellant's restrictive interpretation of property affected by the new legislation would unduly impair the trial court's jurisdiction over marital assets.

We also note that the single family residence presumption under Civil Code section 5110, which was the basis for new section 4800.1 (see Marital Property Rep., p. 7) and similarly governed property "acquired by [husband and wife] during marriage as joint tenants," has been applied, without comment, to an analogous fact situation. In In re Marriage of Johnson (1983) 143 Cal.App.3d 57, 191 Cal.Rptr. 545, the section 5110 presumption was applied to a fishing boat which was owned by one spouse until title was transferred to husband and wife as joint tenants during marriage. (Id. at p. 60, 191 Cal.Rptr. 545.)

We also find the analysis in In re Marriage of Miller (1982) 133 Cal.App.3d 988, 184 Cal.Rptr. 408, to be particularly instructive on this point. In Miller, the court similarly faced the argument that the single family residence presumption did not apply because the house at issue was not "acquired" during marriage. The husband contended that although title to the home was taken by both spouses as joint tenants during marriage, he alone had contracted to purchase the house before marriage, and thus, the house was his separate property under the "inception of right" theory. That theory determines the character of community or separate property on the purchaser's marital status at the time of the inception of the right (e.g., equitable title) by which formal title is ultimately taken. (Id., at pp. 990-991, 184 Cal.Rptr. 408.) Rejecting this argument, the court held that cases espousing the inception of right theory are inapposite where there is an affirmative act specifying a form of ownership in a conveyance of title during marriage. Specifically, "the special community property presumption of [former] Civil Code section 5110arises purely from the form in which title is taken. The time of contracting is irrelevant. Here title was taken in joint tenancy after marriage. The property was thus presumptively community." (Id., at p. 992, 184 Cal.Rptr. 408; emphasis added.)

We also conclude that the presumption under Civil Code section 4800.1 similarly arises upon the conveyance of title to both spouses in joint tenancy form during marriage despite the fact that the property at issue may have been owned by one spouse before marriage. It is the express designation of a form of ownership in a transfer of title during marriage that invokes this presumption.

We reject appellant's contention that the word "acquire" means "purchase." The Family Law Act (Civ.Code, §§ 4000-5174) not only defines acquisitions by "purchase" but also "by gift, bequest, devise or descent." (See Civ.Code, §§ 5107, 5108, 5110.) The Act therefore acknowledges that an acquisition may be made by various forms of transactions and is not limited to a mere buy-sell arrangement.

We also reject appellant's contention that under In re Marriage of Mahone (1981) 123 Cal.App.3d 17, 176 Cal.Rptr. 274, the special community property presumption does not apply where one spouse executes a joint tenancy deed for the sole purpose of obtaining a home equity loan. In Mahone, the presumption arising from the form of joint tenancy title was effectively rebutted by an inference of an agreement...