Marriage of Taylor, In re

• Decision Date: 29 August 1984
• Citation: 160 Cal.App.3d 471,206 Cal.Rptr. 557
• Court: California Court of Appeals Court of Appeals
• Parties: In re the MARRIAGE OF Irma B. and Irwin E. TAYLOR. Irma B. TAYLOR, Appellant, v. Irwin E. TAYLOR, Respondent. Civ. 22508.

Page 557

206 Cal.Rptr. 557

160 Cal.App.3d 471

In re the MARRIAGE OF Irma B. and Irwin E. TAYLOR Irma B. TAYLOR, Appellant, v. Irwin E. TAYLOR, Respondent.

Civ. 22508.

Court of Appeal, Third District, California.

Aug. 29, 1984.

Travers & Jacobs and Donald R. Travers, Paradise, for appellant.

Baker, Cornell, Baumbach & Sweeney and Larry L. Baumbach, Chico, for respondent.

EVANS, Acting Presiding Justice.

On appeal from a finding that the family house was respondent husband's separate property, wife contends the characterization was unsupported by the evidence presented. For reasons not asserted by wife, we must reverse.

The parties were married on October 3, 1979. In 1980, they purchased a lot and built a home entirely financed by husband's separate property funds. Title was taken in joint tenancy.

Wife petitioned for dissolution on January 7, 1982. A trial was held solely on the issue of whether the house was community or separate property. The court found that wife had an understanding that the house was to be husband's separate property. An interlocutory judgment was entered November 23, 1982, and wife appealed.

At the time of trial, In re Marriage of Lucas (1980) 27 Cal.3d 808, 166 Cal.Rptr. 853, 614 P.2d 285, was dispositive. Lucas permitted a spouse to prove marital property held in joint tenancy was actually separate property by means of an understanding or agreement with the noncontributing spouse that the property was to remain separate property or that the amount of the investment was to be reimbursed. (P. 815, 166 Cal.Rptr. 853, 614 P.2d 285.) The agreement was not required to be in writing.

Subsequently, two sections have been added to the Civil Code which affect the issue before us. They state in pertinent parts: " § 4800.1 For the purpose of division of property upon dissolution of marriage or legal separation, property acquired by the parties during 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:

"(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.

"(b) Proof that the parties have made a written agreement that the property is separate property."

" § 4800.2 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." (Added by Stats.1983, ch. 342.) ¹

We are confronted with the threshold question of whether sections 4800.1 and 4800.2 govern property rights acquired prior to the effective date of enactment that have not been finally adjudicated by a judgment from which the time for appeal has passed. We conclude that they do. In doing so we have subordinated the presumption against retroactive application of statutes to the fundamental theorem of statutory construction that the intent of the Legislature, where possible, be given effect. (Mannheim v. Superior Court (1970) 3 Cal.3d 678, 686, 91 Cal.Rptr. 585, 478 P.2d 17; In re Marriage of Bouquet (1976) 16 Cal.3d 583, 586-587, 128 Cal.Rptr. 427, 546 P.2d 1371.) The principal question therefore is whether the Legislature intended sections 4800.1 and 4800.2 to operate retroactively. In this instance we are given direct access to the uncodified, but stated intent of the Legislature. Statutes of 1983, chapter 342, section 4 (uncod.) provides, "SEC. 4. 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 the property are not yet final on January 1, 1984." It clearly makes these provisions applicable to any proceeding not final as of January 1, 1984; they are applicable to this appeal.

We also conclude that retroactive application of section 4800.1 does not deny husband due process. All retrospective legislation is not invalid merely because it operates as such. It becomes invalid if it deprives a person of vested rights which are respected or protected by the state, or if it impairs the obligation of contract. (Robertson v. Willis (1978) 77 Cal.App.3d 358, 365, 143 Cal.Rptr. 523.)

We fail to find in section 4800.1 any interference with vested rights. Rather, the section alters the evidentiary burden of proof when a husband and wife take property by a joint tenancy deed. (In re Marriage of Neal (1984) 153 Cal.App.3d 117, 121-124, 200 Cal.Rptr. 341; In re Marriage of Martinez (1984) 156 Cal.App.3d 20, 202 Cal.Rptr. 646.)

Although the record does not reveal a written agreement ( § 4800.1, subd. (b)), the matter must be remanded for retrial to permit consideration of evidence on the questions of separate property contribution and reimbursement. ( § 4800.2.) There was no apparent question concerning the source of acquisition funds. Testimony presented at the trial indicates husband used separate funds to purchase the lot and to build the house; apparently, wife contributed funds to build a fence and should be reimbursed. Each party is entitled to reimbursement of the amounts paid out of separate property funds, to the extent they can be traced.

The instrument of title does not indicate a retention of the separate character of the property, nor was a written agreement relative to separate property asserted. ( § 4800.1, subd. (a).)

The judgment is reversed and the matter is remanded for retrial in order to determine the parties' respective interests pursuant to sections 4800.1 and 4800.2.

CARR, J., concurs.

SIMS, Associate Justice, dissenting.

I respectfully dissent.

The trial court found wife understood the family home was husband's separate property. (Maj. opn., ante, at pp. 558 - 559). The majority upsets this finding for one reason: husband and wife's failure to foresee in 1980 that the 1983 Legislature would require them to have put their 1980 understanding in writing. For this lack of prescience the majority deprives husband of his separate property interest in the family home.

The majority opinion applies Civil Code section 4800.1, ¹ retroactively according to the Legislature's wishes (see Stats.1983, ch. 342, § 4 [uncodified] ), without seriously considering the statute's effect on husband's vested property rights. (See Robertson v. Willis (1978) 77 Cal.App.3d 358, 365, 143 Cal.Rptr. 523.) The majority dismisses section 4800.1 as merely altering the "evidentiary" burden of proof, oblivious of the fact that the new burden can only be met by evidence whose time for creation has long since passed. (Maj. opn., ante, at p. 559; cf. In re Marriage of Martinez (1984) 156 Cal.App.3d 20, 30, 202 Cal.Rptr. 646.) I conclude application of section 4800.1 to this case, where the property was acquired prior to that section's effective date (January 1, 1984), creates an impossible burden of proof and thus deprives husband of his separate property without due process of law. (See, e.g., Wells Fargo & Co. v. City etc. of S.F. (1944) 25 Cal.2d 37, 41, 152 P.2d 625 (opn. by Traynor, J.); Wexler v. City of Los Angeles (1952) 110 Cal.App.2d 740, 747, 243 P.2d 868; compare In re Marriage of Bouquet (1976) 16 Cal.3d 583, 592, 128 Cal.Rptr. 427, 546 P.2d 1371; Addison v. Addison (1965) 62 Cal.2d 558, 566, 43 Cal.Rptr. 97, 399 P.2d 897; Flournoy v. State of California (1964) 230 Cal.App.2d 520, 534-537, 41 Cal.Rptr. 190.)

I begin with an undisputed premise: that husband's interest in the family home was a property interest, and was created at the time the lot was purchased and the house constructed. The status of property as community or separate is normally determined as of the time of acquisition. (In re Marriage of Bouquet, supra, 16 Cal.3d at p. 591, 128 Cal.Rptr. 427, 546 P.2d 1371; Trimble v. Trimble (1933) 219 Cal. 340, 343, 26 P.2d 477; 7 Witkin, Summary of Cal. Law (8th ed.1974) Community Property, § 6, p. 5098.) Once property is acquired its owner has a vested right to it and it may not be taken or transmuted by the government without due process of law. (See Robertson v. Willis, supra, 77 Cal.App.3d at p. 365, 143 Cal.Rptr. 523; 5 Witkin, op. cit. supra, Constitutional Law, § 282, p. 3571.) Since husband's separate funds were used to acquire the lot and construct the house (maj. opn., ante, at p. 558), his separate property interest therein may not be taken through retroactive legislation without following the dictates of due process. (Ibid.)

Section 4800.1 has been interpreted by other Courts of Appeal to be a mere rule of evidence intended to narrow the court's retrospective inquiry into the status of property by limiting that inquiry to a search for written evidence. (See, e.g., In re Marriage of Leversee (1984) 156 Cal.App.3d 891, 203 Cal.Rptr. 481; In re Marriage of Martinez, supra, 156 Cal.App.3d 20, 202 Cal.Rptr. 646; In re Marriage of Buford (1984) 155 Cal.App.3d 74, 202 Cal.Rptr. 20; In re Marriage of Hug (1984) 154 Cal.App.3d 780, 201 Cal.Rptr. 676; In re Marriage of Anderson (1984) 154 Cal.App.3d 572, 201 Cal.Rptr. 498; and In re Marriage of Neal (1984) 153 Cal.App.3d 117, 200 Cal.Rptr. 341.) ² Because a party usually has no vested right in a particular rule of procedure or evidence, the Legislature is ordinarily free to change such rules and to give the change retroactive effect. (See San Bernardino County v. Indus.Acc.Com. (1933) 217 Cal. 618, 628, 20 P.2d 673; 5 Witkin, op. cit. supra, Constitutional Law, § 285, pp. 3574-3575.)

There is, however, an...