Walters v. Walters

Opinion

EHRENFREUND, J.* We are called upon to decide whether in a bifurcated marital dissolution proceeding the community property should [537]be valued at the time the marital relationship is dissolved or at the time the community property is divided by the court. We treat the question as one of first impression.

Cynthia Walters (wife) appeals from the judgment dividing the community property in which the court evaluated the community residence at $50,000, its value at time of trial in which the property was divided. Her sole contention on appeal is that the property should have been valued at $26,000, its value two years earlier wfren the marriage was dissolved.

On October 15, 1975, the wife obtained an interlocutory judgment of dissolution of her marriage from her husband, Jack Walters, by default. The judgment also granted the residence to the wife as her separate property. On June 9, 1977, the trial court granted the husband’s motion “to vacate all community property provisions in the Interlocutory Judgment of Dissolution of Marriage entered on October 15, 1975 . . . .” This order had the effect of restoring the previously existing property status and the situation was the same as if the property judgment had never been made (Estate of Edwards (1972) 25 Cal.App.3d 906, 912 [102 Cal.Rptr. 216]). Both parties agree the court’s order in no way restored the marital relationship. The only substantial property at issue is the community residence. Under California’s “divisible divorce” concept, if property is not divided by the interlocutory or final judgment dissolving the marriage, then the issue of property rights is not adjudicated in the dissolution proceedings and may be the subject of a later independent proceeding. (Irwin v. Irwin (1977) 69 Cal.App.3d 317, 320-321 [138 Cal.Rptr. 9].) Therefore the trial court in 1977 was entitled to determine anew the question of value and division of property.

At the 1975 dissolution hearing the residence had a value of $26,000. After the dissolution the wife made the house payments and continued to live in the residence with her child. In 1977, the time of the trial in which the property was divided by the court, the value of the residence had increased to $50,000. The court ordered the parties to sell the home and to divide the proceeds equally. The wife urges this court to find any increase in value after the 1975 dissolution to be her separate property. Under such theory, the husband would receive $13,000 of the $50,000 sale proceeds (one-half of $26,000) and the wife would receive the remainder. We conclude the trial court’s decision to value the property at the time of the 1977 trial is supported by Civil Code section 4800,