In Re Marriage of Taylor

On appeal from a finding that the family house was respondent husband’s separate property, wife contends the characterization was unsupported by the evidence presented. For reasons not asserted by wife, we must reverse.

The parties were married on October 3, 1979. In 1980, they purchased a lot and built a home entirely financed by husband’s separate property funds. Title was taken in joint tenancy.

Wife petitioned for dissolution on January 7, 1982. A trial was held solely on the issue of whether the house was community or separate property. The *473 court found that wife had an understanding that the house was to be husband’s separate property. An interlocutory judgment was entered November 23, 1982, and wife appealed.

At the time of trial, In re Marriage of Lucas (1980) 27 Cal.3d 808 [ 166 Cal.Rptr. 653 , 614 P.2d 285 ], was dispositive. Lucas permitted a spouse to prove marital property held in joint tenancy was actually separate property by means of an understanding or agreement with the noncontributing spouse that the property was to remain separate property or that the amount of the investment was to be reimbursed. (P. 815.) The agreement was not required to be…

I respectfully dissent.

The trial court found wife understood the family home was husband’s separate property. (Maj. opn., ante, at pp. 472-473.) The majority upsets this finding for one reason: husband and wife’s failure to foresee in 1980 that the 1983 Legislature would require them to have put their 1980 understanding in writing. For this lack of prescience the majority deprives husband of his separate property interest in the family home.

The majority opinion applies Civil Code section 4800.1, 1 retroactively according to the Legislature’s wishes (see Stats. 1983, ch. 342, § 4 [uncodified]), without seriously considering the statute’s effect on husband’s vested property rights. (See Robertson v. Willis (1978) 77 Cal.App.3d 358, 365 [ 143 Cal.Rptr. 523 ].) The majority dismisses section 4800.1 as merely altering the “evidentiary” burden of proof, oblivious of the fact that the new burden can only be met by evidence whose time for creation has long since passed. (Maj. opn., ante, at p. 474; cf. In re Marriage of Martinez (1984) 156 Cal.App.3d 20, 30 [ 202 Cal.Rptr. 646 ].) I conclude application of section 4800.1 to this case, where the property was acquired prior to that…

EVANS, Acting P.J.

On appeal from a finding that the family house was respondent husband's separate property, wife contends the characterization was unsupported by the evidence presented. For reasons not asserted by wife, we must reverse.

The parties were married on October 3, 1979. In 1980, they purchased a lot and built a home entirely financed by husband's separate property funds. Title was taken in joint tenancy.

Wife petitioned for dissolution on January 7, 1982. A trial was held solely on the issue of whether the house was community or separate property. The court found that wife had an understanding that the house was to be husband's separate property. An interlocutory judgment was entered November 23, 1982, and wife appealed.

At the time of trial, In re Marriage of Lucas (1980) 27 Cal.3d 808 [ 166 Cal. Rptr. 653 , 614 P.2d 285 ], was dispositive. Lucas permitted a spouse to prove marital property held in joint tenancy was actually separate property by means of an understanding or agreement with the noncontributing spouse that the property was to remain separate property or that the amount of the investment was to be reimbursed. (P. 815.) The agreement was not…