Marriage of Hilke, In re

• Decision Date: 17 December 1992
• Docket Number: No. S025205,S025205
• Citation: 4 Cal.4th 215,14 Cal.Rptr.2d 371
• Court: California Supreme Court
• Parties: , 841 P.2d 891 In re the MARRIAGE OF Joyce J. and Robert W. HILKE. June MUELLER, as Administratrix, etc., Respondent, v. Robert W. HILKE, Appellant.

Page 371

14 Cal.Rptr.2d 371

4 Cal.4th 215, 841 P.2d 891

In re the MARRIAGE OF Joyce J. and Robert W. HILKE June MUELLER, as Administratrix, etc., Respondent, v. Robert W. HILKE, Appellant.

No. S025205.

Supreme Court of California In Bank.

Dec. 17, 1992.

Henderson & Angle, and Robert O. Angle, Santa Barbara, for appellant.

Robert A. McFarland, Santa Barbara, for respondent.

PANELLI, Justice.

For the purpose of division of property upon dissolution of marriage, property acquired by the parties during marriage in joint tenancy form is presumed to be community property. (Civ.Code, § 4800.1, subd. (b).) ¹ This case requires us to determine the character of a marital residence--title to which was held by the spouses in joint tenancy--when, after entry of a judgment dissolving the marital relationship, followed by the wife's death, the trial court exercised its reserved jurisdiction to divide the marital property. The trial court applied the presumption set forth in section 4800.1 and found the residence to be community property. The Court of Appeal reversed, reasoning that the wife's death intervened before that statute could be applied, so that the husband's right of survivorship as a joint tenant prevailed. We reverse.

Factual Background

Robert and Joyce Hilke married in 1955. In 1969 they purchased a residence, taking title as "husband and wife, as joint tenants." On January 27, 1989, Mrs. Hilke filed a petition to dissolve the marriage. The parties stipulated to an order bifurcating the proceeding, terminating their marital status, and reserving jurisdiction over all other issues, including support and property division.

Before any of the property issues were adjudicated, Mrs. Hilke died. ² Thereafter, the administrator of her estate was substituted as a party. (Code Civ.Proc., § 385; Kinsler v. Superior Court (1981) 121 Cal.App.3d 808, 812, 175 Cal.Rptr. 564.) There had been no change in the title to the property between its acquisition and the date of Mrs. Hilke's death.

The trial court denied Mr. Hilke's motion for summary adjudication of the property's character. The matter proceeded to trial on the undisputed facts set forth in the preceding two paragraphs. Neither party contended there had been any contributions of separate property toward purchase of the residence, and there was no claim of an agreement that the property would be the separate property of either spouse. The trial court determined it retained jurisdiction to decide all of the real property issues that could have been decided had they been presented at the time the parties' marital status was dissolved. It then held that the residence was the parties' community property. The Court of Appeal reversed, and we granted review to address the effect of section 4800.1 on the present situation.

Analysis

A discussion of the development of the statute with which we are concerned will assist our resolution of this dispute. Before 1966, California courts applied a rebuttable presumption that ownership interest In property was as stated in the title. thus, a residence purchased with community funds, but held by a husband and wife as joint tenants, was presumed to be separate property in which each spouse had a one-half interest. The presumption arising from the form of title created difficulties upon divorce or separation when the parties held title to their residence in joint tenancy. A court could not award a house so held to one spouse for use as a family residence for that spouse and the children, unless the presumption arising from the joint tenancy title could be rebutted by evidence of an agreement or understanding to the contrary. (In re Marriage of Lucas (1980) 27 Cal.3d 808, 813-814, 166 Cal.Rptr. 853, 614 P.2d 285.)

To remedy the problem, the Legislature in 1965 added the following provision to former section 164:

"[W]hen 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 divorce or separate maintenance only, the presumption is that such single family residence is the community property of said husband and wife." (Stats.1965, ch. 1710, § 1, pp. 3843-3844.)

Former section 164 was repealed in 1969 in connection with the enactment of the Family Law Act. (Stats.1969, ch. 1608, § 3, p. 3313; In re Marriage of Lucas, supra, 27 Cal.3d 808, 814, fn. 2, 166 Cal.Rptr. 853, 614 P.2d 285.) Effective January 1, 1970, an almost identical provision in section 5110 replaced the substance of former section 164. (Stats.1969, ch. 1608, § 8, p. 3339.)

Section 5110, in turn, was amended in 1983, and the presumption regarding marital property held in joint tenancy form for the purpose of division of property upon dissolution of marriage was moved to newly adopted section 4800.1. The presumption was expanded to cover all property acquired during marriage in joint tenancy form. (Stats.1983, ch. 342, § 1, p. 1538.)

In an effort to ensure application of the presumption to marital property held in joint tenancy form, no matter when acquired (see In re Marriage of Buol (1985) 39 Cal.3d 751, 218 Cal.Rptr. 31, 705 P.2d 354; In re Marriage of Fabian (1986) 41 Cal.3d 440, 224 Cal.Rptr. 333, 715 P.2d 253), the Legislature in 1986 amended section 4800.1 to include its finding that "[i]t is the public policy of this state to provide uniformly and consistently for the standard of proof in establishing the character of property acquired by spouses during marriage in joint title form, and for the allocation of community and separate interests in that property between the spouses." (Stats.1986, ch. 539, § 1, p. 1924; § 4800.1, subd. (a)(1).) The Legislature found that a compelling state interest exists to provide for uniform treatment of property, and accordingly amended the statute to provide that section 4800.1 shall apply to all property held in joint title regardless of the date of acquisition of the property or the date of any agreement affecting the character of the property. ( § 4800.1, subd. (a)(3).)

The nub of this case is whether the community property presumption of section 4800.1 applies to the residence owned by Mr. and Mrs. Hilke. If it does not, then the presumption arising from the form of title is that the spouses were joint tenants and Mr. Hilke consequently succeeds to the property by right of survivorship, absent a transmutation. (See Tenhet v. Boswell (1976) 18 Cal.3d 150, 155-156, 133 Cal.Rptr. 10, 554 P.2d 330; § 5110.730 [methods of transmutation].) We turn, therefore, to the question of whether the prerequisite for its application is met: that is, whether the instant proceeding involves a division of property upon dissolution of marriage. ( § 4800.1, subd. (b).)

The parties do not dispute that the trial court reserved jurisdiction to decide property issues when it entered its judgment terminating the parties' marital status. (See § 4515, subd. (c).) The death of one of the spouses abates a cause of action for dissolution, but does not deprive the court of its retained jurisdiction to determine collateral property rights if the court has previously rendered judgment dissolving the marriage. (McClenny v. Superior Court (1964) 62 Cal.2d 140, 144, 41 Cal.Rptr 460, 396 P.2d 916; Kinsler v. Superior Court, supra, 121 Cal.App.3d at pp. 811-812, 175 Cal.Rptr. 564.) Mrs. Hilke's petition for dissolution alleged that the residence was community property. Mr. Hilke's response alleged that the full extent of community property had not been determined. The trial court properly exercised its retained jurisdiction to decide the issue despite Mrs. Hilke's intervening death, and its order requiring the sale of the residence and equal division of the proceeds between the former spouses effected a division of property upon the dissolution of a marriage. ( § 4800.1, subd. (b).) By its terms, section 4800.1 applies.

Mr. Hilke urges that section 4800.1 creates an evidentiary presumption that applies only at the division of property stage of a dissolution proceeding. It does not, in his view, "automatically convert" joint tenancy property to community property the moment a dissolution proceeding is filed. For this proposition, with which we do not quarrel, he cites Estate of Blair (1988) 199 Cal.App.3d 161, 244 Cal.Rptr. 627 (Blair ). Blair involved a situation similar to the present case but for the fact that the wife died before the entry of any judgment respecting the parties' marital status. Because, as we have seen, an action for legal separation or dissolution is personal to the spouse, the proceeding in Blair abated at the wife's death. The question of the character of the marital residence arose in the context of a proceeding brought by the wife's personal representative under Probate Code section 851.5, claiming that her estate owned a one-half interest in the residence. The Court of Appeal in Blair declined to apply section 4800.1, reasoning that for the purpose of determining the character of real property on the death of one spouse, there is a presumption " 'that the property is as described in the deed and the burden is on the party who seeks to rebut the presumption.' " (Blair, supra, 199 Cal.App.3d 161, 167, 244 Cal.Rptr. 627 [quoting Schindler v. Schindler (1954) 126 Cal.App.2d 597, 602, 272 P.2d 566].) This result was correct, since the abatement of the marital action by virtue of the wife's death precluded the court from making a division of property. Blair does not, however, dictate the identical result in the present case, since here the trial court had dissolved the spouses' marriage before the wife's death, and had reserved its jurisdiction to determine property issues in subsequent proceedings.

Recently the Court of Appeal for the First District considered a case involving facts and issues similar to those we address today. Justice King, writing for the court in In re Marriage of Allen (1992) 8 Cal.App.4th 1225, 10...