Marriage of Berentsen, In re

• Decision Date: 11 June 1985
• Citation: 215 Cal.Rptr. 299,171 Cal.App.3d 137
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 171 Cal.App.3d 137 171 Cal.App.3d 137 In re the MARRIAGE OF Ellen P. and Carl Erik BERENTSEN, Ellen P. BERENTSEN, Appellant and Cross-Respondent, v. Carl Erik BERENTSEN, Respondent and Cross-Appellant. Civ. 22669.

Page 299

215 Cal.Rptr. 299

Previously published at 171 Cal.App.3d 137

171 Cal.App.3d 137

In re the MARRIAGE OF Ellen P. and Carl Erik BERENTSEN,

Ellen P. BERENTSEN, Appellant and Cross-Respondent, v. Carl Erik BERENTSEN, Respondent and Cross-Appellant.

Civ. 22669.

Court of Appeal, Third District, California.

June 11, 1985.

Rehearing Denied july 11, 1985.

Certified for Partial Publication ^*.

Review Granted Aug. 22, 1985.

Sally K. Newbill-Callahan, Sacramento, for appellant and cross-respondent.

D. Thomas Woodruff, Carson, Woodruff & O'Hair, Sacramento, for respondent and cross-appellant.

BYRNE, Associate Justice. ^**

Husband and wife both appeal from the final judgment of dissolution dividing the parties' community property and awarding custody of their two minor children to wife. Wife's principal contention is that the court erred in awarding husband an interest in the family residence. Husband's principal contentions are that the court erred in deferring sale of the residence and erred in failing to order joint legal custody of their minor children.

FACTS

Ellen and Carl Berentsen were married in January 1966 and separated April 1979. Both parties were born and raised in Norway. The marriage produced two sons of ages 14 and 11 at the time of trial.

After marriage but before coming to this country the parties executed the following marriage agreement in May 1966:

"The inheritance which the wife has received from the estate of shipowner, A.P. Moeller, shall, in accordance with latter's Will, be the separate property of Ellen Petteroe Berenstsen. The same shall be true with regard to any interests and profits as well as any other property which may be derived from this inheritance.

"We furthermore agree that anything which the wife might later acquire through later inheritance, gifts, or which might be derived from in any way from such acquisition, shall also be her separate property."

After migrating to this country husband attended school in Colorado graduating in 1967 with a B.S. degree in civil structural engineering. Wife is trained as a physical therapist but is not licensed in this state. At the time of trial she worked part-time as a ski guide. The parties have traveled extensively in connection with husband's employment. They have lived in Jordan, Lebanon and Africa.

In 1975 the parties purchased the real property which constitutes the principal subject of dispute in this appeal holding title in joint tenancy form. The property During the summer of 1978 the parties resolved to build a home on the property. Also during the summer of 1978 husband took a job in Tanzania. Wife considers husband's departure as the date of separation. Husband testified that wife believed at this time they were experiencing marital difficulties, but that no discussion of separation occurred. Husband returned for a visit at Christmas 1978 . Separation was discussed at this time although the parties lived together as husband and wife and vacationed together during husband's visit. Husband returned to Tanzania; no resolution was reached regarding the parties' marital problems before he left. He returned around Easter 1979. During the visit it became apparent to both parties that their marriage had ended.

located in the Lake Tahoe area, was unimproved when purchased. ¹

Before husband left for Tanzania in July 1978 the parties discussed the home they decided to build. It was agreed that architectual plans prepared some years before, but never used, would suffice. Husband and wife negotiated and, together, obtained a construction loan for the new residence. During the Christmas holiday of 1978 husband executed a power of attorney which wife subsequently used when selling an unimproved lot the parties held in joint tenancy in order to raise funds to construct their new residence.

Wife instituted this action August 16, 1979. Trial was had March 9-12, 1981.

DISCUSSION

I

A.

Wife contends the trial court erred in finding that the community residence is community property because the parties entered into written agreement providing that a certain inheritance wife received, and interest and profits upon that inheritance, should remain wife's separate property and the funds used to acquire the residence can be traced to that inheritance. (See In re Marriage of Lucas (1980) 27 Cal.3d 806, 814-815, 166 Cal.Rptr. 853, 614 P.2d 285.)

After trial in this matter, in 1983, the Legislature passed Assembly Bill Number 26. (Stats.1983, ch. 342, §§ 1-4.) Assembly Bill Number 26 amended Civil Code section 5110 and added Civil Code sections 4800.1 and 4800.2. ²

Section 4800.1 now provides: "For the purpose of division of property upon dissolution of marriage or legal separation, property acquired by the parties during the marriage in joint tenancy form is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following: [p] (a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property. [p] (b) Proof that the parties have made a written agreement that the property is separate property." (Stats.1983, ch. 342, § 1).

Section 4800.2 now provides: "In the division of community property under this part unless a party has made a written waiver of the right to reimbursement or signed a writing that has the effect of a waiver, the party shall be reimbursed for his or her contributions to the acquisition of the property to the extent the party traces the contributions to a separate property source. The amount reimbursed shall be without interest or adjustment for change in monetary values and shall not exceed the net value of the property at the time of the division. As used in this section Section 5110 was amended to, inter alia, delete the following sentence: "When a single family residence of a husband and wife is acquired by them during marriage as joint tenants, for the purpose of the division of such property upon dissolution of marriage or legal separation only, the presumption is that such single-family residence is the community property of husband and wife." (Stats.1983, ch. 342, § 3.) Uncodified section 4 of the bill provides "[p] This act applies to the following proceedings: [p] (a) Proceedings commenced on or after January 1, 1984. [p] (b) Proceedings commenced before January 1, 1984, to the extent proceedings as to the division of property are not yet final on January 1, 1984." Without addressing constitutional issues, some courts have interpreted sections 4800.1 and 4800.2 to apply retroactively. (In re Marriage of Benart (1984) 160 Cal.App.3d 183, 188, fn. 2, 206 Cal.Rptr. 495; In re Marriage of Huxley (1984) 159 Cal.App.3d 1253, 1259, 206 Cal.Rptr. 291; In re Marriage of Koppelman (1984) 159 Cal.App.3d 627, 636, 205 Cal.Rptr. 629; In re Marriage of Buol (1984) 159 Cal.App.3d 174, 178, fn. 4, 205 Cal.Rptr. 543; In re Marriage of Leversee (1984) 156 Cal.App.3d 891, 896, 203 Cal.Rptr. 481 (dicta); In re Marriage of Buford (1984) 155 Cal.App.3d 74, 80, 202 Cal.Rptr. 20; In re Marriage of Anderson (1984) 154 Cal.App.3d 572, 577, 201 Cal.Rptr. 498; In re Marriage of Neal (1984) 153 Cal.App.3d 117, 121 at fn. 1, 200 Cal.Rptr. 341.) Other courts are split on the issue of constitutionality of retroactive application of section 4800.1.(In re Marriage of Taylor (1984) 160 Cal.App.3d 471, 474, 206 Cal.Rptr. 557 ( § 4800.1 constitutional); In re Marriage of Milse (1984) 159 Cal.App.3d 471, 475, 205 Cal.Rptr. 616 ( § 4800.1 unconstitutional); In re Marriage of Martinez (1984) 156 Cal.App.3d 20, 30, 202 Cal.Rptr. 646 ( § 4800.1 constitutional).) At oral argument we granted the parties' requests to file supplemental briefs on the issue of the constitutional propriety of the retroactive application of these two sections.

'contributions to the acquisition of the property' include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property." (Stats.1983, ch. 342, § 2.)

At the time of trial controlling law was provided by our Supreme Court's decision in In re Lucas, supra. The pertinent provisions of Lucas provide that property ³ held jointly is presumed to be community in the absence of an agreement or understanding to the contrary. (In re Marriage of Lucas, supra, 27 Cal.3d at p. 815, 166 Cal.Rptr. 853, 614 P.2d 285.)

Under both Lucas and subdivision (b) of § 4800.1 the presumption that property held jointly is community property may not be rebutted by tracing the source of acquisition to separate funds; an agreement must be proved. While under Lucas the agreement may be proved "from the circumstances and actions of the parties" (In re Marriage of Rives (1982) 130 Cal.App.3d 138, 163, 181 Cal.Rptr. 572), section 4800.1, subd. (b), requires a writing.

The trial court found that the writing here at issue, the marriage agreement between the parties executed in Norway, was insufficient to overcome the presumption. We believe if the court's finding is supported by substantial evidence, its characterization of the residence must be upheld. The showing required by the law as it existed at the time of trial was less forceful than that now required by section 4800.1. Consequently, if the trial court's finding is supported by substantial evidence its determination that the residence is community property must be upheld.

                (Beam v. Bank of America (1971) 6 Cal.3d 12, 25, 98 Cal.Rptr. 137, 490 P.2d 257;  In re Marriage of Tucker (1983) 141 Cal.App.3d 128, 136, 190 Cal.Rptr. 127;  In re Marriage of Camire (1980) 105 Cal.App.3d 859, 865, 164 Cal.Rptr. 667. 4  )
                

We believe substantial evidence supports the trial court's conclusion that the...