Marriage of Johnson, In re

• Decision Date: 18 May 1983
• Citation: 191 Cal.Rptr. 545,143 Cal.App.3d 57
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Sara Joyce JOHNSON and Richard L. Johnson. Sara Joyce JOHNSON, Appellant, v. Richard L. JOHNSON, Respondent. A010260. Civ. 50188.

Page 545

191 Cal.Rptr. 545

143 Cal.App.3d 57

In re the MARRIAGE OF Sara Joyce JOHNSON and Richard L. Johnson.

Sara Joyce JOHNSON, Appellant, v. Richard L. JOHNSON, Respondent.

A010260.

Civ. 50188.

Court of Appeal, First District, Division 5, California.

May 18, 1983.

As Modified June 9, 1983.

John W. Cooper, Jr., Eureka, Stephen Adams, San Francisco, DeGoff & Sherman, Richard Sherman, Berkeley, for appellant.

Larry B. Nord, Dalton, Nord & Bicknell, Eureka, for respondent.

KING, Associate Justice.

Sara Joyce Johnson appeals from an interlocutory judgment of dissolution as to property interests, spousal support, and disposition of property acquired while the parties were living together prior to their marriage. Her husband, Richard L. Johnson, cross-appeals contending the trial court erred in not awarding his fishing boat to him as his separate property. For the reasons hereafter set forth, the interlocutory judgment of dissolution is affirmed as to termination of marital status, disposition of household furniture, furnishings and appliances, the 1973 Toyota automobile, the 1975 GMC Blazer, the Luv pick-up truck, and the Falcon trailer, as well as the order for attorneys' fees and costs and the spousal support payable by Richard to Sara (excluding substantive stepdown provisions of the spousal support order). In all other respects it is reversed. The trial court is deemed to have denied Sara's motions for upward modification of temporary spousal support and that order is reversed.

Sara and Richard began living together in November 1967, but were not married until September 25, 1970. On November 24, 1976, Sara filed a petition for dissolution of the marriage. The court rendered its interlocutory judgment of dissolution on October 4, 1979. Additional facts will be stated as each issue is discussed.

Sara's first contention on appeal is that the trial court erred in finding that Richard had a separate property interest in the family residence the parties purchased after the date of marriage and which they held as joint tenants. This determination was based upon Richard's proof of his separate property funds being used for half of the down payment. Sara raises a similar objection with regard to the fishing boat, the Cindy J. Richard held the boat in his name alone but transferred title to both parties as joint tenants during the marriage. Richard's cross-appeal is based on the contention that the trial court erred in not finding that the Cindy J. was entirely his separate property.

While this appeal was pending, the law applicable to these contentions was clarified by the California Supreme Court in In re Marriage of Lucas (1980) 27 Cal.3d 808, 166 Cal.Rptr. 853, 614 P.2d 285 and its progeny In re Marriage of Miller (1982) 133 Cal.App.3d 988, 184 Cal.Rptr. 408; In re Marriage of Priddis (1982) 132 Cal.App.3d 349, 183 Cal.Rptr. 37; In re Marriage of Hayden (1981) 124 Cal.App.3d 72, 177 Cal.Rptr. 183; and In re Marriage of Cademartori (1981) 119 Cal.App.3d 970, 174 Cal.Rptr. 292. The rule in California now is that the statutory presumptions of community property where an asset is held in joint tenancy (Civ.Code, § 5110) can be overcome only by proof of an agreement or an understanding that a separate property interest was to be retained. (See In re Marriage of Lucas, supra, 27 Cal.3d at pp. 814-815, 166 Cal.Rptr. 853, 614 P.2d 285.)

At trial, the court based its determination of the interests in both the family residence and the Cindy J. upon direct tracing. This is error under Lucas. The issues must be retried since there was disputed evidence whether the parties had an agreement or understanding that a separate property interest was to be retained by Richard.

On remand, even if the court finds an agreement or understanding, Richard's theory of tracing based on purported availability of separate property funds in the Cindy J. bank account must still be rejected. Tracing requires proof that separate property funds were actually used to purchase the property at issue; the mere availability of separate property funds is insufficient. (In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 440-446, 181 Cal.Rptr. 910; see Estate of Murphy (1976) 15 Cal.3d 907, 909, 126 Cal.Rptr. 820, 544 P.2d 956.)

The trial court, in its memorandum of intended decision of December 5, 1978, found the fair market value of the Cindy J. to be $90,000. On March 9, 1979, before judgment was rendered, Sara filed a motion for "reconsideration of boat value" asserting that Richard had sold the Cindy J. for $140,000. The court denied the motion stating it could "find nothing in the authority submitted by petitioner that would justify an evaluation date other than the date of trial." Sara contends that the court erred when it determined that it lacked jurisdiction to assign a value to the Cindy J. as of any date other than the date of trial. She correctly relies on In re Marriage of Olson (1980) 27 Cal.3d 414, 422, 165 Cal.Rptr. 820, 612 P.2d 910, decided after the trial herein, which held that it was an abuse of discretion for the trial court to deny a motion to reopen for a more current determination of a house's value following a foreclosure sale between the date of tentative decision and the final judgment. (See also In re Marriage of Rives (1982) 130 Cal.App.3d 138, 152-153, 181 Cal.Rptr. 572.) The proper remedy for this error is to remand the cause for revaluation, including the determination of any post-separation interests of husband in the vessel and consideration of any tax consequences of the sale.

Sara also contends that she was entitled to a portion of the post-separation gross receipts of $117,000 from Richard's use of the Cindy J. as a commercial fishing vessel. The court's memorandum of intended decision and subsequent findings and judgment made no reference to this income, even though Sara proposed a finding on this point. This issue must also be addressed on remand. Its resolution depends upon the court's determination of what community property interest, if any, the parties had in the Cindy J.

In February 1977, subsequent to the separation of the parties, Richard purchased a residence on Lee Ann Drive, making a down payment of $16,000 and taking title as an unmarried man, even though there had not yet been either an interlocutory or final judgment of dissolution of the marriage. Sara contends the trial court erred in failing to order any disposition of this property. Since the property was acquired subsequent to the filing of the dissolution action, her petition did not mention this property and she never moved to amend to include it for disposition by the court. At trial, Sara's counsel did cross-examine Richard concerning the property but still neglected to amend the pleadings. (Compare In re Marriage of Denney (1981) 115 Cal.App.3d 543, 556-557, 171 Cal.Rptr. 440 [request for payment of attorneys' fees in trial brief constituted amendment to pleadings].) Since the cause must be remanded for further proceedings on other issues, Sara may now move to amend the pleadings to seek disposition of the Lee Ann Drive property.

The trial court ordered in its interlocutory judgment of dissolution that Richard should pay Sara the sum of $1,000 per month for spousal support for one year, $750 per month for an additional year, and $500 a month for a third year. No reservation of jurisdiction was thereafter retained. Sara contends that the court erred both in ordering substantive stepdowns and in failing to retain jurisdiction beyond a twelve...