In Re Marriage of Lange

Husband and wife own a family residence in joint tenancy. Wife has husband execute a promissory note secured by a deed of trust for her separate property contributions to acquire and improve the residence. The note and deed of trust do not constitute her written waiver of reimbursement under Family Code section 2640, subdivision (b). But they are unenforceable pursuant to section 721, which creates a fiduciary relationship between husband and wife. We affirm the trial court’s order denying wife the remedy of judicial foreclosure.

Facts

Heino and Sandra Lange married on December 16, 1981. During the marriage, Heino was employed by the Ventura County Department of Behavorial Health as a psychiatrist. Prior to marriage, Sandra was employed in the real estate business, selling, developing, and managing property. After marriage and the birth of their son, Sandra became a full-time homemaker.

The couple maintained a joint bank account from which they paid household expenses. Heino deposited his salary into the joint bank account. Sandra deposited rental income from her separately owned income properties into the joint bank account.

The couple lived in a home in Camarillo,…