Marriage of Leversee, In re

• Decision Date: 04 June 1984
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Paula S. LEVERSEE and Dale E. Leversee: Paula S. LEVERSEE, Appellant, v. Dale E. LEVERSEE, Respondent. A016081.

Page 481

203 Cal.Rptr. 481

156 Cal.App.3d 891

In re the MARRIAGE OF Paula S. LEVERSEE and Dale E. Leversee:

Paula S. LEVERSEE, Appellant, v. Dale E. LEVERSEE, Respondent.

A016081.

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

June 4, 1984.

As Modified June 20, 1984.

Hearing Denied July 25, 1984.

Frank S. McGorty, San Francisco, for appellant.

Craig A. Leri, Marysville, for respondent.

KING, Associate Justice.

In this case we hold that a residence acquired in joint tenancy before marriage, not shown to be the subject of an agreement to hold it as community property, must be characterized as true joint tenancy property over which the court in a dissolution proceeding under the Family Law Act has no jurisdiction. It can be divided only in a separate partition action.

Paula S. Leversee appeals, and Dale E. Leversee cross-appeals, from a judgment of dissolution of marriage. Paula and Dale married on November 25, 1977, and separated December 6, 1978. They had lived together since June 1976. ¹ Before the marriage, in July 1977, they acquired a residence, taking title as "DALE E. LEVERSEE AND PAULINE S. LEVERSEE, his wife, as Joint Tenants." The down payment (approximately $24,000) was made from Paula's separate funds. The trial court found that subsequent mortgage payments were made from commingled accounts that the parties had maintained before and during marriage.

During marriage the parties bought an Audi vehicle for $9,000. They traded in (for $2,500) a Mustang which Paula had owned before marriage. Dale testified that before the marriage, but while the parties lived together, he had paid Paula $1,000 to be used as a payment on her car loan for the Mustang. He also testified that in December 1976 he made a $63 payment for renewal of the Mustang's license.

The parties met on January 15, 1979, in the office of Paula's attorney. There they had a physical altercation in which Paula bit Dale on the face, ripped his shirt, tore his watch from his wrist, and pulled his tie. Dale testified that she also threatened to obtain a gun from her father and shoot Dale, a woman he was currently seeing, and the woman's child. After the altercation Dale was asked to sign a quitclaim deed of the residence in favor of Paula. He signed it, but testified that he would not have done so under "more calm circumstances."

Paula filed a petition for dissolution of marriage on December 12, 1979. The court in its judgment of dissolution characterized the residence and Audi automobile as community property, gave the residence and car to Paula, and ordered Paula to pay a sum to Dale in order to effect an equal division of the property. The court made a finding that Dale had not freely and voluntarily executed the quitclaim deed.

Paula moved for a new trial. The court denied the motion, but modified its findings and conclusions to state that Paula was entitled to payment of $3,873.66 for loans she made to Dale before marriage. The court modified the judgment accordingly.

Paula challenges the court's characterization of the residence as community property and the concomitant order that she pay a sum to Dale to effect a division of the property. She correctly asserts that despite the form of title in which the parties acquired the residence--incorrectly identifying Paula as Dale's wife--the residence was not presumptively community property because it was not acquired during the marriage. "Community property is property acquired by husband and wife, or either, during marriage, when not acquired as the separate property of either." (Civ.Code, § 687; emphasis added.)

The parties' taking of title to the residence as joint tenants prior to marriage raised a presumption of joint tenancy. (Civ.Code, § 683.) That presumption was rebuttable by evidence of an express written or oral agreement between the parties to change the form of ownership to community property. (Socol v. King (1950) 36 Cal.2d 342, 345, 223 P.2d 627; Schindler v. Schindler (1954) 126 Cal.App.2d 597, 604, 272 P.2d 566; Jones v. Kelley (1953) 121 Cal.App.2d 130, 134, 262 P.2d 859.) Dale presented no such evidence. His only testimony on this point was that he and Paula took title as husband and wife "just to make the neighbors feel better," and that they allegedly had a discussion to the effect that ownership of the residence "would be held by both of us."

The presumption of community property where a residence is acquired during marriage in joint tenancy, as set forth in In re Marriage of Lucas (1980) 27 Cal.3d 808, 166 Cal.Rptr. 853, 614 [156 Cal.App.3d 896] P.2d 285, and subsequently altered and codified in Civil Code section 4800.1, is inapplicable here, since the parties acquired the residence before marriage. Civil Code section 4800.1, adopted effective January 1, 1984, and applicable to proceedings not yet final as of that date (1983 Stats., ch. 342, § 4), sets forth a presumption that "property acquired by the parties during marriage in joint tenancy form is presumed to be community property." (Emphasis added.) ² The statute's inapplicability to property acquired before marriage is indicated by the legislative history of the bill adopting section 4800.1. That bill originally made the statute applicable to joint tenancy property "wherever situated and whenever acquired," but ultimately made the statute applicable only to "property acquired by the parties during marriage in joint tenancy form." ³

For the same reason the former law as set forth in Lucas, supra, was inapplicable. Lucas dealt with the similar presumption formerly set forth in Civil Code section 5110 that a single-family residence acquired in joint tenancy "during marriage" was presumed to have been community property. ⁴

Thus, since the Leversee's residence was acquired before marriage, did not undergo a title change after marriage and was not shown to be the subject of an agreement to hold it as community property, the trial court erred in characterizing it as community property and lacked jurisdiction under the Family Law Act to divide or affect the parties' interests in it. (See Porter v. Superior Court (1977) 73 Cal.App.3d 793, 803, 141 Cal.Rptr. 59.)

Paula also presented evidence that the quitclaim deed in her favor required the court to confirm the residence to her as her separate property. The court found, however, that Dale had not freely and voluntarily executed the quitclaim deed, and Dale's testimony to this effect was sufficient to support this finding. (E.g., In re Marriage of Mix (1975) 14 Cal.3d 604, 614, 122 Cal.Rptr. 79, 536 P.2d 479.) ⁵ (Ibid.) Paula argues that the court nevertheless lacked jurisdiction under the Family Law Act to adjudicate the validity of the quitclaim deed. But the court did have such jurisdiction, given the dependence of the characterization of the residence (over which the court had jurisdiction) on the validity of the quitclaim and the parties' actual litigating of the quitclaim's validity. (Porter v. Superior Court, supra, 73 Cal.App.3d at p. 805, 141 Cal.Rptr. 59.) ⁶

Because the residence is true joint tenancy property and the court lacked jurisdiction to divide or affect the parties' interests in it, its disposition must be pursued in a separate partition action. (Civ.Proc.Code, § 872.010 et seq.) In the partition action the court may order an equitable compensatory adjustment to compensate Paula for her use of separate funds for the down payment on the residence. (Civ.Proc.Code, § 872.140.) If the appropriate motion is made and granted the partition action may be consolidated with the present dissolution action on remand. (Porter v. Superior Court, supra, 73 Cal.App.3d at p. 805, 141 Cal.Rptr. 59.)

We note that in 1982 the California Law Revision Commission recommended to the Legislature that courts in dissolution proceedings be given jurisdiction over joint tenancy and tenancy in common property of spouses, at the request of either party, in order to "eliminate litigation over the community or separate character of the property, add flexibility to the formulation of a just property disposition, and avoid the need for a separate partition proceeding for the property." (Recommendation Relating to Division of Joint Tenancy and Tenancy in Common Property at Dissolution of Marriage (Sept. 1982) 16 Cal.Law Revision Com.Rep., pp. 2165, 2170-2171.) This recommendation was followed in the original draft of the bill enacting Civil Code section 4800.1, but did not survive subsequent amendments to the bill. (See footnote 3, ante.) The present case demonstrates the wisdom of the Law Revision Commission's recommendation. In the interest of judicial economy and avoiding needless...