Mitchell v. Mitchell

During their marriage, Robert and Shirley Mitchell acquired certain real property as joint tenants. The marriage soured, and a dissolution proceeding was filed. As a result, both an automatic temporary restraining order (Fam. Code, § 2040, subd. (a)) and a court-ordered preliminary injunction went into effect which prohibited both of them from “transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate . . . Thereafter, Robert purported to sever the joint tenancies unilaterally by recording declarations of severance. (Civ. Code, § 683.2, subd. (a)(2).) A little over a month later, while the dissolution proceeding was still pending, he died.

Charles Jeffrey Mitchell, Robert’s son and the administrator of his estate, claims the severance was effective, and Robert’s interest in the property therefore passed to the estate. Shirley claims the attempted severance was ineffective because it violated the preliminary injunction, and therefore Robert’s interest in the property passed to her by right of survivorship.

We will hold that the severance of a joint tenancy by recording…