In Re Marriage of Bjornestad

[803]

Opinion

ROTH, P. J.

Adeline Gloria Bjornestad (Gloria) and Edward R. Bjornestad (Edward) were married on December 31, 1967; separated December 30, 1971, and were pursuant to Gloria’s petition filed February 24, 1972, and Edward’s response thereto, separated by an interlocutory decree of dissolution entered October 6, 1972 (decree), which in items 2 to 8 inclusive made a complete property disposition.

Edward in this appeal contests item 2 thereof. In respect of item 2 the trial court found that the property at 10533 Hester Avenue, Whittier (Hester), held by Gloria and Edward as joint-tenants, was a family residence, the down payment for the acquisition of which was made with $5,400 of the separate funds of Gloria and $450 of the separate funds of Edward, and was resided in by the parties. “Prior to . . . trial . . .” it was sold. From the time of acquisition until sale the trust deed payments made on Hester were made from community funds. The court also found that when Hester was purchased the parties “. . . did not intend to make a gift . . .” to each other and intended that Hester be held as community property “. . . to the extent that the value thereof exceeded ...” their respective separate contributions.

Edward, on motion for a new trial, contested the above finding urging that there was no direct evidence that the parties did not intend to make a gift; that Hester was sold prior to the decree and that the presumption of joint tenancy should apply.

(Benam

v.

Benam

(1960) 178 Cal.App.2d 837,844 [3 Cal.Rptr. 410].) Pursuant to said motion the original findings above recited were amended as follows: “ ‘The parties stipulate that the respondent’s [Edward] contention of gift arises only from a contention that the property is joint tenancy and therefore a gift of separate property is to be presumed.

“ ‘At the time the parties acquired the said family residence, and at all times thereafter, there was no intention to make or not to make a gift communicated by either party to the other. The court finds that the presumption of Section 5110 and its predecessor section applies and that by reason of said presumption, said real property is the community property of the parties except for the traceable separate property set forth in paragraphs 2 and 3 above.’ ”