Hopkins v. Axene

Opinion

WALLIN, Acting P. J. Does Civil Code section 4800.2 govern in a dissolution proceeding filed after January 1, 1984, but involving property acquired before that time, where judgment was rendered prior to January 1, 1987? On constitutional grounds, we hold it does not.

The facts in this case are undisputed. In 1982, while married, Mary Lou Hopkins (Wife) and Harry Axene (Husband) purchased a Palm Desert [290]condominium. Although the entire $198,000 purchase price was paid by Husband from his separate property, title was taken in both parties’ names, as community property.

The parties separated in June 1983 and Wife petitioned for dissolution of marriage in June 1984. The marriage was dissolved in December 1984 and trial on reserved issues was held in January 1986. At trial, Husband requested reimbursement for his separate property contribution to the condominium. He based his claim on Civil Code section 4800.2,1 which permits reimbursement of separate property contributions to community assets, absent a written waiver of reimbursement. Although section 4800.2 was in effect when the dissolution petition was filed, the court refused to apply it because the acquisition preceded the effective date of the statute. At the time of purchase the contrary rule of In re Marriage of Lucas (1980) 27 Cal. 3d 808 [166 Cal.Rptr. 853, 614 P.2d 285] controlled. Husband appeals.

In July 1983, the Legislature added section 4800.2, abolishing the long-standing rule that separate property contributions to community assets were presumed gifts to the community in the absence of a contrary agreement. (See Stats. 1983, ch. 342, §§ 1-4, pp. 1538-1539; for former rule, see In re Marriage of Lucas, supra, 27 Cal. 3d 808.) “As the law stood [before 1983], an agreement was necessary to preserve a separate property interest in funds contributed to the acquisition of a community asset. . . . Under the new law, no agreement is needed: the tables are turned so that the separate property interest is now preserved unless the right to reimbursement is waived in writing.” (In re Marriage of Fabian (1986) 41 Cal. 3d 440, 450 [224 Cal.Rptr. 333, 715 P.2d 253].)

Section 4800.2 provides: “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. ...” Section 4800.2 and its companion, section 4800.1, were applicable to all proceedings commenced on or after January 1, 1984. (Stats. 1983, ch. 342, § 4, p. 1539.)