IN RE: the MARRIAGE OF Carol Glenis and Maurice Albert KETSCHER.

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Court of Appeal, Fifth District, California.

IN RE: the MARRIAGE OF Carol Glenis and Maurice Albert KETSCHER. Carol Glenis KETSCHER, Appellant, v. Maurice Albert KETSCHER, Respondent.

Civ. 3018.

Decided: April 05, 1978

Lawrence W. Young, Robert L. Young, Fresno, for appellant. Shepard, Olson, Turner, Dietrich, Milnes & Glasrud and James S. Shepard, Fresno, for respondent.

OPINION

This appeal from an interlocutory judgment of dissolution of marriage presents questions as to the transmutation of separate property to community property and as to the existence of a joint tenancy. The only property in dispute is 223 acres of farmland and an automobile.

Maurice Albert Ketscher (hereinafter referred to as husband) was the owner of 223 acres of real property in Fresno County, most of which had been acquired from his father. A portion of this property was still in litigation in a dissolution of marriage proceeding between husband and his first wife, Ethel. All of the 223 acres was being leased for agricultural purposes, and husband basically lived on the income from this acreage.

The water supply for the 223 acres of farmland was provided, in part, through the United States Bureau of Reclamation (hereinafter referred to as Bureau). Regulations of the Bureau restricted the amount of land on which an individual landowner could use water from federal water projects to 160 acres. Even in a situation where the title of record was in an individual name, it was possible to double the amount of land on which water from federal water projects could be used if the owner filed a declaration with the Bureau executed by the owner and the owner's spouse stating that the property was their community property. The “Declaration of Community Property” was not required to be recorded. The Bureau accepted the document as evidence that the property was in fact community property, thus authorizing the allocation of water for an additional 160 acres of land. During the course of husband's prior marriage, husband and Ethel had submitted a Declaration of Community Property to the Bureau.

Early in 1972, husband's dissolution of marriage from Ethel became final. Shortly thereafter on March 4, 1972, husband and Carol Glenis Ketscher (hereinafter referred to as wife) were married; at that time husband owned the 223 acres of farmland as his separate property. Wife had been married before, and she had a home and a savings account at the time of her marriage to husband.

Late in April 1973, the Bureau learned that husband owned the 223 acres of farmland as his separate property, but that he was receiving an allotment of water for the entire acreage. Husband was notified by letter from Buddy Smith, an employee of the Bureau, that he must designate the precise 160 acres of land that would receive the water from federal water projects since as a sole owner he was no longer eligible for water for the entire acreage. In response, the Bureau was advised that husband had remarried. Subsequently, in early May 1973, Buddy Smith forwarded a copy of a Declaration of Community Property, which was executed by wife and husband and was hand-delivered by husband to Buddy Smith at the local office of the Bureau. The document was dated May 17, 1973, and contained the following:

“We, the undersigned, hereby declare the following described property in the Orange Cove Irrigation District is held in community property ownership.”

Attached to the declaration was a list of the ranch property held in the sole name of husband, as well as 15 acres in the name of husband and Ethel, his first wife.

After looking over the form, Buddy Smith told husband that since the land was community property, all of the acreage would be eligible for water from federal water projects. Husband nodded his head and left.

Within a short time after this was accomplished, wife and husband began having domestic problems resulting in a separation on July 25, 1973. Husband returned to the Bureau seeking to withdraw the declaration. Buddy Smith stated it could not be done at that time. Before Buddy Smith could explain to husband the proper procedure to withdraw the declaration, husband jumped up and left the office.

On August 6, 1973, wife petitioned the Superior Court of Fresno County for dissolution of the marriage and prayed for a determination of property rights as provided by law, attorney fees and costs. Husband answered the petition on August 30, 1973. During the ensuing year, reunion was attempted on several occasions. During one such period on May 20, 1974, a Lincoln Continental Mark IV automobile was purchased. Payment was in cash, with $9,000 drawn from husband's separate property, and the balance of $2,000 from wife's separate property. In accordance with a prior agreement, wife was paid $2,000 in community funds to reimburse her for the separate funds she previously had advanced for the purchase of the car.

Title to the automobile was taken in the names of “Maurice A. Ketscher or Carol Glenis Ketscher.” When efforts of reconciliation failed, husband unilaterally had the title to the car changed to his name alone.

Hearing on the dissolution proceeded on March 18, 1975, at which time husband testified that prior to marriage both parties orally had agreed that the character of their separate property would not change during the marriage. Husband admitted that during the course of the marriage he had referred to the farmland as “our property.” Further, he stated that in filing the Declaration of Community Property, his purpose was to secure water for the entire acreage, but that he did not intend thereby to make a gift of his separate property to wife. Husband also admitted that he did not explain to wife what she was signing when she signed the declaration. As to the car, husband said that he bought it in anticipation that wife would be returning to him and that he intended at the time of purchase that wife would hold a one-half interest in the automobile. Thereafter, wife returned to husband, and they stayed together for about one month. When wife again left, husband had the title to the car transferred to himself alone.

Wife testified that husband had stated prior to their marriage that he would give her half of his property, and that during their marriage he referred to the farm acreage as “our property.” Wife also stated that she was not informed of the nature of the document when she signed the declaration but later was told by husband that the land “was community property but I didn't want to tell you.”

The trial court found that the 223 acres of land was all separate property of husband, that a $2,000 interest in the car was community property, and that the balance of the interest in the car was separate property of husband. Wife has appealed claiming that the 223 acres of farmland has been transmuted from husband's separate property to community property and that the automobile, although ultimately purchased with $9,000 of husband's separate property and $2,000 of community property, was held by wife and husband in joint tenancy. These issues will be discussed separately below.

With regard to the 223 acres of farmland it is urged by wife that as a matter of law there was a transmutation from husband's separate property to community property when husband and wife executed the written Declaration of Community Property relating to the allocation of water from federal water projects. Wife further contends that section 622 of the Evidence Code1 applies to the Declaration of Community Property and that the 223 acres are conclusively presumed to be owned as community property.

Wife's position is that there was a transmutation upon execution of the declaration, and that pursuant to section 622 of the Evidence Code the facts recited in that “written instrument” are conclusively presumed to be true. No case is cited in which a declaration of this type has been held to be a “written instrument”, within the meaning of section 622 of the Evidence Code, for the purposes here involved.

A “written instrument” is defined in Black's Law Dictionary as “(s)omething reduced to writing as a means of evidence, and as the means of giving formal expression to some act or contract.” (Emphasis added.) (Black's Law Dict. (rev. 4th ed. 1968) p. 1788, col. 1.) “Instrument” is defined as “(a) written document; a formal or legal document in writing such as a contract, deed, will, bond or lease. . . . (Par.) . . . A document or writing which gives formal expression to a legal act or agreement, for the purpose of creating, securing, modifying, or terminating a right; a writing executed and delivered as the evidence of an act or agreement.” (Black's Law Dict. (rev. 4th ed. 1968) p. 941, col. 2.)

The meaning of “instrument” also was discussed in People v. Fraser (1913) 23 Cal.App. 82, 84-85, 137 P. 276, 277, in the following terms:

“Generally the term ‘instrument’ as applied to documents necessarily imports a paper writing; but every paper writing is not necessarily an instrument within the settled statutory meaning of the term. With reference to writings the term ‘instrument’ as employed in our statutes has been defined to mean an agreement expressed in writing, signed, and delivered by one person to another, transferring the title to or creating a lien on real property, or giving a right to a debt or duty.”

Consistent with the language of Fraser, it was held in Rich v. Ervin (1948) 86 Cal.App.2d 386, 390, 194 P.2d 809, that a declaration of homestead executed by a man and a woman is not a “written instrument” within the ambit of the conclusive presumption formerly found in subdivision 2 of section 1962 of the Code of Civil Procedure (presently Evid. Code, s 622 (see ante, fn. 1)) since such a declaration “. . . is not a contract between parties, but is a right which is provided by the Constitution of California (art. XX, s 1.5) that the Legislature may define the nature of a privilege in real property, which is distinct, clear and above the normal right of ownership.” The court in Rich explained that homestead declarants do not contract with others, but accept a privilege granted by the state; a declaration of homestead is not a written instrument between parties but a mere recitation of matters that may be true or untrue. (Rich v. Ervin, supra, 86 Cal.App.2d 386, 391-392, 194 P.2d 809.)

In Estate of Neilson (1962) 57 Cal.2d 733, 744-745, 22 Cal.Rptr. 1, 371 P.2d 745, the court discussed the effect of the filing of an income tax return by a husband and wife splitting their income. It was contended that transmutation of separate property to community property could be inferred by the filing of a joint return. The reviewing court held that while such a filing was substantial evidence in support of a finding of transmutation, it would not establish transmutation as a matter of law. The court further stated:

“Their returns were signed under the penalty of perjury and created a disputable presumption that (the husband) had filed lawful income returns and that his separate property had therefore been transmuted into community property. (Citation.) This presumption can be overcome by evidence that the income splitting represented nothing more than an ‘over-zealous desire to minimize income taxes.’ (Citation.) Such evidence might consist . . . of testimony or documents indicating that the spouses regarded the property as separate property despite the filing of income-splitting returns.” (Supra, 57 Cal.2d at p. 745, 22 Cal.Rptr. at p. 8, 371 P.2d at p. 752.)

The Declaration of Community Property in the instant case was not an agreement expressed in writing. Neither wife nor husband intended by this document to commit an agreement to writing. In fact, there was no discussion between wife and husband as to the contents of the document, if at all, until sometime after the signatures were affixed. This writing may be compared to the declaration of homestead. Each such writing is signed by the declarant or declarants; each purports to describe the names in which property is held; each is not a contract with others, but a document that must be filed in order to accept a privilege granted by law; and neither is a “written instrument” within the meaning of section 622 of the Evidence Code.

Although the Declaration of Community Property does not fall within the provisions of section 622 of the Evidence Code, it is not without effect. As in the filing of an income tax return, it is evidentiary on the issue of whether the property has been transmuted; this evidence may be considered along with other evidence to determine the character of the property, but it does not establish transmutation as a matter of law.

We thus are called upon to determine if the record contains substantial evidence to support the finding of the trial court. The finding of a trial court that property is either separate or community in character will not be disturbed on appeal if supported by substantial evidence. (Beam v. Bank of America (1971) 6 Cal.3d 12, 25, 98 Cal.Rptr. 137, 490 P.2d 257; see also In re Marriage of Mix (1975) 14 Cal.3d 604, 614, 122 Cal.Rptr. 79, 536 P.2d 479.) Although there was conflicting evidence on the issue of transmutation of husband's separate property to community property, there was substantial evidence to support the trial court's finding that no such transmutation took place and that the 223 acres of farmland in question remained husband's separate property; husband's testimony indicated that he and wife regarded the farmland as husband's separate property despite the filing of the Declaration of Community Property with the Bureau.

The issues as to the Lincoln Continental Mark IV automobile involve different rules of law. Wife contends that although the trial court found that a small interest in the automobile was community property and that the rest was husband's separate property, the evidence discloses that as a matter of law the car actually was held in joint tenancy.2

The only material evidence on this issue is that husband admitted that he intended to give wife a one-half interest in the car at the time it was purchased; that husband bought the car in anticipation that wife would return and stay with him; that the funds ultimately used to purchase the car were $9,000 of husband's separate property and $2,000 of community assets; that title to the car was taken in the names of “Maurice A. Ketscher or Carol Glenis Ketscher;” and that about one month after husband bought the car wife left for the final time and husband changed the registered title to the car to his name alone.

Since at the time of purchase the automobile was registered in the names of husband and wife in the alternative, by the use of the word “or”, the law deems that the ownership of the car was held in joint tenancy. (Veh. Code, ss 4150.5, subd. (a), 5600.5, subd. (a); see 3 Witkin, Summary of Cal. Law (8th ed. 1973) Personal Property, s 21, p. 1633; Brunn, California Personal Injury Damage Awards to Married Persons (1966) 13 UCLA L.Rev. 587, 600, fn. 73, 2d par.) However, the form of the instrument under which a husband and wife hold title is not conclusive as to the character of the property; property acquired under a joint tenancy instrument may be shown to be actually community property or the separate property of one spouse. (Gudelj v. Gudelj (1953) 41 Cal.2d 202, 212, 259 P.2d 656; Socol v. King (1950) 36 Cal.2d 342, 345, 223 P.2d 627.) But the presumptive character of the property as disclosed by the instrument under which the spouses held title cannot be overcome by testimony of the hidden intentions of one of the parties (Machado v. Machado (1962) 58 Cal.2d 501, 506, 25 Cal.Rptr. 87, 375 P.2d 55; Gudelj v. Gudelj, supra, 41 Cal.2d 202, 212, 259 P.2d 656) or by merely showing the source of the funds used to purchase the property (Gudelj v. Gudelj, supra, 41 Cal.2d 202, 212, 259 P.2d 656; Donovan v. Donovan (1963)223 Cal.App.2d 691, 696, 36 Cal.Rptr. 225). Even uncontradicted testimony that the purchase price of property is paid entirely from a husband's own separate funds is insufficient by itself to offset the effect of a joint tenancy instrument. (Borgerding v. Mumolo (1957) 153 Cal.App.2d 821, 827, 315 P.2d 347.)

In the instant case the presumptive character of the automobile as property held in joint tenancy was not rebutted by competent, relevant evidence, but rather was reinforced by husband's testimony that at the time of the purchase of the car he intended to give wife a one-half interest in the vehicle. The fact that husband may have entertained a secret intent that the joint tenancy instrument reflecting the ownership of the car would have no effect unless wife returned and stayed with husband for a reasonable amount of time is of no consequence since the presumptive character of the automobile, as disclosed by the instrument under which it was acquired, cannot be overcome by testimony of the hidden intentions of husband.

In support of the trial court's findings as to the car, husband argues that the gift in joint tenancy was ineffectual since wife failed to present any evidence that there was a “delivery.” This argument is without merit. It is true that where something remains to be done in carrying out the donor's intent, the gift is not complete, under the presumption that the donor exhibits an intent to retain title by failing to take the contemplated action. Here, nothing remained to be done. The title was placed in both names at the direction of husband, and the delivery of the certificate of ownership and the automobile to husband was unconditional. Husband, as one of the joint owners, was entitled to the possession of the certificate of ownership and the car. His possession thereof was in no way inconsistent with the complete vesting of title to a one-half interest in his wife. Delivery of the certificate of ownership and the car to either of the joint tenants effected a transfer vesting title jointly to husband and wife. Vesting of wife's one-half interest did not come through husband, but came directly to her upon delivery of the certificate of ownership and the automobile to husband. (See Abegg v. Hirst (1909) 144 Iowa 196, 122 N.W. 838, 839.) In short, delivery of property to a person who has purchased it for the benefit of himself and another is sufficient to vest title to an undivided interest in such other person. (See 38 Am.Jur.2d (1968) Gifts, s 25, p. 829; Annot. (1943) 145 A.L.R. 1386, 1387.)

The evidence presented below discloses that as a matter of law husband and wife held title to the automobile in joint tenancy. Although either party had the right to “. . . dispose of the title and interest in the vehicle” (Veh. Code, ss 4150.5, subd. (a), 5600.5, subd. (a)) husband cannot rely upon this provision to defeat the interest of wife in her separate one-half share of the car by merely transferring title to the vehicle to his name alone.

Just because the automobile is joint tenancy property it does not mean that in the instant proceeding wife is entitled to an award of one-half interest in the car. The trial court had authority in the present marriage dissolution proceeding to determine whether the automobile was either joint tenancy property or a combination of husband's separate property and community property. But once it is determined that the car is joint tenancy property the interest of each spouse thus being separate property (see ante fn. 2) power to divide such property in the instant marriage dissolution proceeding ceases. (Donovan v. Donovan, supra, 223 Cal.App.2d 691, 698, 36 Cal.Rptr. 225; Davis v. Davis (1963) 222 Cal.App.2d 691, 693, 35 Cal.Rptr. 281; Barba v. Barba, supra, 103 Cal.App.2d 395, 396, 229 P.2d 465.) If termination of the joint tenancy title to the automobile is deemed necessary either husband or wife may commence an appropriate action under title 10.5 of part 2 of the Code of Civil Procedure (commencing with s 872.010) to effect a partition. (Barba v. Barba, supra, 103 Cal.App.2d 395, 396, 229 P.2d 465.)

The judgment is reversed to the extent it purports to affect the parties' interests in the Lincoln Continental Mark IV automobile, and the cause is remanded with directions to the trial court to set aside the findings of fact and conclusions of law that are inconsistent with the views expressed herein; to make and file findings of fact and conclusions of law to reflect that the Lincoln Continental Mark IV automobile is held in joint tenancy; and to enter judgment accordingly. In all other respects the judgment is affirmed. Each party shall bear his or her own costs on appeal.

FOOTNOTES

FOOTNOTE.  

1.  Section 622 of the Evidence Code reads as follows:“The facts recited in a written instrument are conclusively presumed to be true as between the parties thereto, or their successors in interest; but this rule does not apply to the recital of a consideration.”Section 622 of the Evidence Code (eff. Jan. 1, 1967) was derived from former subdivision 2 of section 1962 of the Code of Civil Procedure (repealed Jan. 1, 1967) which provided that there was a conclusive presumption as to “(t)he truth of the facts recited, from the recital in a written instrument between the parties thereto, or their successors in interest by a subsequent title; but this rule does not apply to the recital of a consideration.” (Stats.1955, ch. 948, s 3, p. 1835.)

2.  Under a true joint tenancy the interest of each spouse is separate property. (Davis v. Davis (1963) 222 Cal.App.2d 691, 693, 35 Cal.Rptr. 281; Barba v. Barba (1951) 103 Cal.App.2d 395, 396, 229 P.2d 465; see 7 Witkin, Summary of Cal. Law (8th ed. 1974) Community Property, s 48, p. 5139.) When a husband uses his separate funds to acquire property held in joint tenancy by him and his wife, the wife's separate interest in the joint tenancy property is a gift from her husband. (See Cash v. Cash (1952) 110 Cal.App.2d 534, 538, 243 P.2d 115.)

CHARGIN,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

FRANSON, Acting P. J., and HOPPER, J., concur.