Dorn v. Solomon

Opinion

SILLS, P. J.

Donald P. and Dixie D. Dorn were married in 1975. In 1981, they purchased a home in Fullerton taking title as “husband and wife, as joint tenants." In 1992, the marriage fell apart and Dixie moved out. However, a few months later she discovered she was dying from cancer.

On September 20, 1993, and while she was in the hospital, Dixie executed a quitclaim deed purporting to transfer the family home to “Dixie D. Dorn, Irrevocable Trust dated September 20, 1993.” The purpose of the deed, so we are told, was to enable Dixie to transfer her interest in the family home

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to her daughter by a former marriage, Tammy Gutermuth. Dixie unexpectedly died the following day.

On September 30, 1993, Donald recorded an “Affidavit—Death of Joint Tenant” with the county recorder.

On October 25, 1993, Juanita Solomon, as trustee of the irrevocable trust, recorded the quitclaim deed. Donald, complaining that the property was uninsurable with the quitclaim deed of record, filed this action for declaratory relief, quiet title, and to cancel it. Following completion of discovery Donald filed a motion for summary judgment, which was granted. The trustee appeals.

I

Although the trustee makes numerous arguments, the thrust of the appeal is that Dixie had a right to transfer her community property interest in the family home without Donald’s consent. Relying on Family Code section 2581, which provides that for “the purpose of division of property on dissolution of marriage” there is a rebuttable presumption that property acquired during marriage in joint tenancy is community property, the trustee asserts there was a triable issue of fact as to whether the property was held in joint tenancy or as community property, and the burden was on Donald to prove that he and Dixie did not hold the property as community property.

As Donald correctly points out, the flaw in this argument is that the presumption found in Family Code section 2581 only applies “for purposes of a property division upon marriage dissolution or legal separation.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 1997) <H 8:45 to 8:47, pp. 8-9 to 8-10.) It does not apply when a joint tenant dies. In that case, the property passes by right of survivorship.