IN RE: the MARRIAGE OF Gary MATHIASEN and Judith Naughton.

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Court of Appeal, Sixth District, California.

IN RE: the MARRIAGE OF Gary MATHIASEN and Judith Naughton. Gary MATHIASEN, Appellant, v. Judith NAUGHTON, Respondent.

No. H004373.

Decided: April 30, 1990

S. Clay Bedford, San Jose, for appellant. Marer, Marer & Schuck and John F. Schuck, III, Palo Alto, for respondent.

In this marriage dissolution action, the trial court found that prior to and during marriage, Gary Mathiasen (hereafter, Husband) and Judith Naughton (hereafter, Wife) first impliedly, then expressly, agreed to share equally those expenses during the marriage which were for the benefit of both parties, and further agreed that the party giving more than his or her share was entitled to reimbursement from the other.   The trial court determined that Wife had contributed more than her share.   To reimburse her, the trial court awarded to Wife Husband's entire share in the community property and, since that was not enough, entered judgment against Husband for the balance.   Husband appeals, contending that the agreement, as found by the trial court, was void because it was contrary to public policy.   We reverse.

BACKGROUND

Husband and Wife were married September 30, 1978, and separated September 8, 1984.   One daughter, aged 6, was born of this marriage.   A petition to dissolve the marriage was filed February 1, 1985, and the marital status was terminated December 24, 1985.   A judgment of “Dissolution of Marriage—Status Only” was entered January 22, 1986.

In a bifurcated hearing to determine if the parties had entered into any agreement respecting expenses and property arrangements, the trial court found that:  “1. The parties, prior to and during their marriage, had an agreement implied in fact, which later became an express agreement, to share equally those expenses which were for the benefit of both parties.   This agreement included a duty on the part of each party to reimburse the other party for arrearages arising from unequal contributions to such expenditures.

“2. Income received by the parties during the marriage in the form of wages was treated as, and is found to be, the separate property of the earning party.   Earnings other than wages, such as employer contributions to pension, profit-sharing, or retirement plans, were not within the scope of the parties' agreement to maintain separate property interests.”

The trial court further found that Wife had contributed to those expenses $122,607 more than her equal share, and that pursuant to the agreement, which it held valid, she was entitled to be reimbursed therefor.   It therefore awarded to Wife Husband's entire share in the community property which was valued at $71,521 (one-half of the total community assets of $143,041).   Since Husband's arrearages exceeded his share in the community property by $51,086, judgment was entered against Husband with respect to the balance.

Husband appeals, raising a number of contentions, all of which converge around the validity of the agreement.   Because we find the agreement invalid, we need not address each of Husband's contentions individually and separately.

DISCUSSION

As found by the trial court, the agreement had two parts:  the first relating to sharing of expenses and reimbursement therefor;  the second, to property division.

 It has been held that premarital and marital agreements purporting to waive, diminish, or alter the statutory obligation of the spouses to mutually support each other are contrary to public policy and are therefore void and unenforceable.  (In re Marriage of Higgason (1973) 10 Cal.3d 476, 485–486, 110 Cal.Rptr. 897, 516 P.2d 289;  See v. See (1966) 64 Cal.2d 778, 784–785, 51 Cal.Rptr. 888, 415 P.2d 776.)   The rationale for this rule is the recognition that marriage is more than a mere contract—that it is a social institution impressed with public interest and vital to society's stability.   As stated in Pereira v. Pereira (1909) 156 Cal. 1, 5, 103 P. 488:  “In Seeley's Appeal, 56 Conn. 206, [14 Atl. 291], the court says:  ‘Inasmuch as the state rests upon the family and is vitally interested in the permanency of a marriage relation once established, it, for the promotion of public welfare, and of private morals as well, makes itself a party to every marriage contract entered into within its jurisdiction, in this sense, that it will not permit the dissolution thereof by the other party thereto.   Its consent in the form of a decree of its court passed after hearing in due process of law, is a prerequisite for a divorce․’ ”

Consistent with this policy, “․ [H]usband and wife assume mutual obligations of support upon marriage.   These obligations are not conditioned on the existence of community property or income.   The duty to support imposed upon husbands by Civil Code section 155 [now §§ 5100 & 5132] and upon wives by Civil Code section 176 [now §§ 5100 & 5132] requires the use of separate property of the parties when there is no community property.   There is no right to reimbursement under the statutes.”  (See v. See, supra, 64 Cal.2d at p. 784, 51 Cal.Rptr. 888, 415 P.2d 776.)  “ ‘Any attempt by the parties to diminish or waive this obligation in an antenuptial agreement is unenforceable.’ ”  (In re Marriage of Higgason, supra, 10 Cal.3d at p. 486, 110 Cal.Rptr. 897, 516 P.2d 289, quoting 54 Harvard Law Review 473 (1941) at p. 478.)

The statutory provisions are no less emphatic.  Civil Code section 5100 1 states:  “Husband and wife contract toward each other obligations of mutual respect, fidelity, and support.”   Under section 5132, “a married person shall support the person's spouse while they are living together out of the separate property of the person when there is no community property or quasi-community property.”

However, insofar as the agreement “relates to the disposition of the property of the respective parties, and does not seek to alter support obligations imposed by law, it will be upheld.  [Citations.]”  (In re Marriage of Higgason, supra, 10 Cal.3d at p. 485, 110 Cal.Rptr. 897, 516 P.2d 289.)

 If the invalid portion is inseverably linked to the other provisions of the agreement, the entire agreement is void.  (In re Marriage of Dawley (1976) 17 Cal.3d 342, 351, 131 Cal.Rptr. 3, 551 P.2d 323.)   But if the invalid provision is distinct and severable from the other provisions, the valid provisions will be enforced.  (Ibid.;  § 1599.)

 In the instant case, the agreement was to share equally expenses for the benefit of both spouses.   It is not clear if only support expenses were contemplated.   It is not improbable that some expenses might have been for the benefit of both parties although not necessary to their support.   Since it cannot be ascertained from the agreement if the parties meant support expenses only or also expenses which, though beneficial to both of them, were not needed for their support, we find the agreement relating to support expenses would be inseverable from the agreement relating to non-support expenses if the latter had been agreed to by the parties.   Consequently, the entire expense/reimbursement agreement is void.

 Nevertheless, the agreement regarding the division of properties is severable;  it is, therefore, valid.   As quoted ante:  “Insofar as an antenuptial agreement relates to the disposition of the property of the respective parties, and does not seek to alter support obligations imposed by law, it will be upheld.”  (In re Marriage of Higgason, supra, 10 Cal.3d at p. 485, 110 Cal.Rptr. 897, 516 P.2d 289.)   Hence, the trial court's finding as to which properties were separate and which were community will not be disturbed.

The agreement on property separation being valid, each spouse should bear the expenses for the preservation or improvement of his or her separate property.   Therefore, if those expenses were paid by the non-owner-spouse, reimbursement is due from the owner-spouse.   The duty to reimburse in such case derives not from the expense/reimbursement agreement which we have declared invalid, but from the separation of property agreement which we have upheld, since to the owner belongs the burdens of ownership, such as taxes and expenses for preservation and improvement.  (§ 840, et seq.)

 One question remains:  who bears the post-separation support expenses?

The record indicates that even after the parties had separated, Wife continued to contribute to Husband's and family's support in excess of her share.  In re Marriage of Epstein (1979) 24 Cal.3d 76, 83, 154 Cal.Rptr. 413, 592 P.2d 1165, held that the no-reimbursement rule does not apply to a “situation in which, after separating, the party uses his separate property for payments on preexisting community obligations.”   The reason was explained in In re Marriage of Smith (1978) 79 Cal.App.3d 725, 746–747, 145 Cal.Rptr. 205, which reads, in relevant part:  “[T]he practical realities are that almost all married couples have incurred debts which are customarily paid out of their earnings and that, upon separation of the parties, their earnings, the usual, and perhaps only, liquid community asset available for payment of debts, become their respective separate property [citation].   Since upon dissolution both community assets and obligations must generally be distributed to the parties equally [citations], debts remaining unpaid at the time of trial will be accounted for in the distribution of community property and, in effect, charged against the community estate.   However, when, after separation, one of the spouses makes payments on preexisting community debts out of earnings or other separate funds, if the no-reimbursement rule is applied, the result is that community obligations which would otherwise be charged against community property and borne by the parties equally are charged exclusively to the paying spouse.   Thus, application of the no-reimbursement rule will discourage payment of community assets after separation, exacerbate the financial and emotional disruption which all too frequently accompanies the breakup of a marriage and, perhaps, result in impairing the credit reputation of both parties.”  (Fn. omitted.)

Consequently, Wife is entitled to reimbursement for post-separation support expenses she paid beyond her share.

We conclude the trial court erred in sustaining the validity of the expense/reimbursement agreement, in ordering reimbursement for support expenses incurred during the marriage, in awarding to Wife Husband's share in the community property, and in entering judgment against Husband for the balance of $51,086.

DISPOSITION

The judgment is reversed.   This matter is remanded to the trial court with direction to redetermine the property interests of the parties and to divide the community property without regard to the expense/reimbursement agreement.   The property separation agreement, being valid, shall be enforced.   Post-separation support expenses which were paid by one spouse for the other shall be reimbursed.   Expenses for the preservation and improvement of separate properties, to the extent they were paid by the non-owner-spouse, shall likewise be reimbursed.   The trial court shall conduct such further proceedings not inconsistent with this opinion as may be necessary or appropriate in the premises to the disposition of this matter.   Husband is awarded costs on appeal as the prevailing party herein.

FOOTNOTES

1.   Further statutory references are to the Civil Code, unless otherwise specified.

PREMO, Acting Presiding Justice.

COTTLE and ELIA, JJ., concur.