Lee v. Superior Court

California Court of Appeal Nov 12, 1976 No. Civ. 48883Published

Before: Kaus

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Holding. The trial court lacked authority to order the sale of disputed community property and the distribution of proceeds to one spouse without first determining the property's character or providing adequate security to protect the other spouse's interest. The court may only authorize such a sale if it conducts a partial trial to determine property character or requires sufficient security to protect the objecting party.

Issues

Does Civil Code section 4359 authorize a trial court to order the sale of disputed property and distribute proceeds to one spouse during dissolution proceedings?
May a trial court order the sale of a disputed community asset without determining its character or providing security to the objecting spouse?

Disposition. remanded

Quotations verified verbatim against the opinion

“Civil Code section 4359 provides no authority for the trial court to order that a disputed asset be sold and the proceeds distributed to one spouse, over the objections of the other spouse.”

[708]

Opinion

KAUS, P. J.

Petitioner Enrietta Lee, and real party in interest, Harry Jay Lee, are involved in a marriage dissolution proceeding. The trial court, on Harry’s motion, ordered “pendente lite” the release of a lis pendens recorded by Enrietta against property asserted by her to belong to the community, and, at the same time, authorized the sale of that property, the proceeds to be used to pay debts owing in a business operated by Harry and claimed by him to be his separate property. The trial court stayed its order pending the filing of a petition for extraordinary writ by Enrietta. We granted the alternative writ and ordered that the trial court’s stay order be continued in effect.

Facts

The facts are based on the documents submitted by the parties in connection with Harry’s motion to release the lis pendens and to authorize the sale of the property. Other than this documentation and the balance of the superior court file, the trial court had no other information before it.

In the dissolution action, Enrietta claims that the community property included a floor covering business, the real property on which the business was located, a duplex in which the parties had lived, and an eight-unit apartment building. This proceeding involves the floor covering business and the eight-unit apartment building.

In January 1976, Enrietta signed a quitclaim deed to both the apartment house and the duplex. She claimed that her husband “forced” her to do so. After signing the deeds, she consulted an attorney, who filed •the lis pendens against the properties.

Harry, through his attorney, declared that his floor covering business was “on the brink of total financial disaster,” that he had accounts payable in excess of $56,000, and that he had an offer to buy the eight-unit apartment house at a price which would yield $47,500 in cash. Hariy’s attorney described him as being the “sole proprietor, and title holder” of both the floor covering business and the eight-unit apartment building.

Enrietta apparently considered the purchase price a good one and stated that she was not opposed to the sale as such, provided the

Lee v. Superior Court

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KAUS, P. J.

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