Palmer v. Palmer

Opinion

KINGSLEY, Acting P. J. This case involves the property provisions of an interlocutory decree of dissolution.1 The marriage herein involved, lasting over 12 years, has had a history of disagreements, separations and reconciliations, resulting ultimately in the present separation in June 1980. The wife had filed the first petition for dissolution on August 23, 1977.2 A decree of final judgment of dissolution was entered on January 23, 1981. The proceedings on the reserved issues dragged on until the decree herein involved was entered on August 15, 1983. The husband has appealed.3

The parties are mature and each has, at all times during the marriage been gainfully employed—the wife as a school teacher and the husband as a chiropractor. There are no children.4

I

A major issue on this appeal involves the family residence. It was purchased three months after the marriage with a down payment, using money loaned by the wife’s mother. After the mother’s death, payments were made on the house using funds inherited by the wife toward the purchase and other expenses, a total of approximately $34,000. The trial court awarded her a credit of that amount in the final adjustment. The property and its furnishings were awarded to the wife, she being ordered to pay to the husband $20,000 to equalize the total distribution.

It is the husband’s contention here that, since there was, as he claims, no agreement involving the wife’s contributions, they must be presumed to [193]have been gifts by her to the community and not matters for credit. As of the date of the hearing that was the law. However, the husband’s claim here fails for two reasons:

The wife testified that she had carefully kept all of the contributions herein involved paid out of separate funds, not intending any gift to the community and that the husband at all times knew of that intention. The trial court, as was its prerogative, believed the wife; treated her testimony as the equivalent of the interspousal agreement which, admittedly, rebutted the otherwise “presumed” gift.

(2) In 1983, the Legislature enacted section 4800.2 of the Civil Code, reading as follows: “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. As used in this section, ‘contributions to the acquisition of the property’ include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property.” That new rule was part of chapter 342, Statutes of 1983, section 4, which chapter provided as follows: “This act applies to the following proceedings: