IN RE: the Marriage of Rose H. and Norman HEIKES. (1994)

 Civil Code section 4800.1, subdivision (b),¹ provides that upon dissolution of marriage, “property acquired by the parties during marriage in joint form ․ is presumed to be community property.”  Section 4800.1 applies retroactively to a contingent property interest obtained before its enactment.  (In re Marriage of Hilke (1992) 4 Cal.4th 215, 14 Cal.Rptr.2d 371, 841 P.2d 891.)

 The companion section Civil Code section 4800.2 ² allows for the reimbursement of separate property contributions to the community.   Here we hold that Civil Code section 4800.2 also has retroactive application to property acquired before January 1, 1984, the effective date of its enactment.

Rose H. Heikes appeals an order of the trial court granting a partial new trial in her action for dissolution of marriage to Norman Heikes.   We affirm.

FACTS

Wife Rose H. Heikes brought this action to dissolve her marriage to husband Norman Heikes.   At trial, wife claimed interest in the family residence at 917 Carrillo Road in Santa Barbara and unimproved real property near Boron, California.

Husband had owned the 917 Carrillo Road property and the Boron property before marriage.   On January 20, 1976, during the marriage, he placed title to these properties to wife and himself, as joint tenants.   Husband and wife agree that they had no written agreement that husband would retain these real properties as his separate property.

At trial, the trial judge remarked that under In re Marriage of Lucas (1980) 27 Cal.3d 808, 816, 166 Cal.Rptr. 853, 614 P.2d 285, wife received “a windfall” because there was no agreement, written or oral, that husband would retain these properties as his separate property.   Under Lucas, the transfer created the presumption that husband had made a gift.   Accordingly, the trial judge determined that the joint tenancy real property was the community property of the marriage and wife was entitled to one-half interest in those properties.³

On December 11, 1992, the court clerk entered the trial court's judgment determining the parties' property interests.   Six days later, our Supreme Court decided In re Marriage of Hilke, supra, 4 Cal.4th 215, 14 Cal.Rptr.2d 371, 841 P.2d 891, expressly permitting retroactive application of Civil Code section 4800.1 ⁴ where no vested property interest exists.

Husband then sought a new trial, contending that Civil Code section 4800.2, a companion section to section 4800.1, also applied retroactively, under dictum in Hilke.  Section 4800.2 permits reimbursement to the contributing spouse for separate property assets contributed to the community, unless that spouse waives reimbursement in writing.⁵

In his notice of motion for a new trial, husband claimed the trial court made an “error in law” because In re Marriage of Hilke, supra, 4 Cal.4th 215, 14 Cal.Rptr.2d 371, 841 P.2d 891, disapproved or limited prior decisions holding that Civil Code sections 4800.1 and 4800.2 do not apply retroactively.  (Code Civ.Proc., § 657, subd. (7), stating grounds for a new trial.)   Husband failed to state, however, whether his new trial motion would rest upon “affidavits or the minutes of the court or both․”  (Code Civ.Proc., § 659.)

At the hearing on husband's motion, the trial judge acknowledged that at trial, he believed sections 4800.1 and 4800.2 could not apply retroactively because of In re Marriage of Fabian (1986) 41 Cal.3d 440, 224 Cal.Rptr. 333, 715 P.2d 253 and In re Marriage of Buol (1985) 39 Cal.3d 751, 218 Cal.Rptr. 31, 705 P.2d 354.   He added that had husband challenged these decisions at trial, he would have deemed husband's argument “frivolous” within the statute penalizing frivolous arguments.  (Code Civ.Proc., § 128.5.)

The trial judge then granted a partial new trial concerning the Carrillo Road and Boron properties.   This would give husband an opportunity at a new trial to claim reimbursement for his separate property contributions in the acquisitions of these two real properties, pursuant to Civil Code section 4800.2.

Wife appeals the order granting a partial new trial and contends:  1) husband did not raise the retroactivity issue at trial, and 2) In re Marriage of Hilke, supra, 4 Cal.4th 215, 14 Cal.Rptr.2d 371, 841 P.2d 891, does not permit retroactive application of Civil Code section 4800.2 because she has a vested community property interest in the properties.

DISCUSSION

I.

Wife argues husband may not use Hilke as the basis for his new trial motion because he did not argue for the retroactive application of section 4800.2 at trial.   Wife points out that the “error in law” urged as a ground for a new trial, must have been “excepted to by the party making the application.”  (Code Civ.Proc., § 657, subd. (7).)  Wife also contends husband did not specify in his new trial motion whether the motion would rest upon affidavits or the trial court minutes.  (Code Civ.Proc., § 659.)

 Wife is technically correct.   Husband did not request the trial court to reject or limit binding California Supreme Court decisions.   Husband also did not specify whether his new trial motion rested upon affidavits or the trial court minutes.   Nevertheless, these omissions are not fatal to husband's new trial motion.  (Nichols v. Hast (1965) 62 Cal.2d 598, 601, 43 Cal.Rptr. 641, 400 P.2d 753 [abuse of discretion to deny new trial motion because it fails to state whether made on affidavits, court minutes, or both];  Hoffman–Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15, 1 Cal.Rptr.2d 805 [legal challenges may be raised for the first time by a new trial motion].)

The trial judge expressly stated that in applying the law as it existed at the time of trial, he would have denied an argument for application of Civil Code section 4800.2 and considered such argument “frivolous.”

The Greek philosopher Heraclitus was known to remark that “nothing endures but change.”   His insight is particularly applicable to the law.   Ever present, but never static, it is always changing.   Yesterday's “frivolous” argument may accurately describe tomorrow's state of the law.   Trial judges should therefore restrain an itchy trigger finger when brandishing the sanction gun.

Because husband's new trial motion rested upon application of legal principles declared by the recent Hilke decision, specification of “affidavits or the minutes of the [trial] court” would not have assisted either wife or the trial court concerning the new trial motion.  (Code Civ.Proc., § 659.)

II.

Wife also asserts Hilke does not overrule previous decisions holding that Civil Code sections 4800.1 and 4800.2 apply only prospectively.   (In re Marriage of Fabian, supra, 41 Cal.3d 440, 451, fn. 12, 224 Cal.Rptr. 333, 715 P.2d 253 [Section 4800.2 does not apply to dissolutions pending on January 1, 1984, the effective date of Civil Code section 4800.2];  In re Marriage of Buol, supra, 39 Cal.3d 751, 754, 218 Cal.Rptr. 31, 705 P.2d 354 [Section 4800.1 does not apply to dissolutions pending on January 1, 1984, the effective date of Civil Code section 4800.1].)  She asserts she has a vested community property interest in the two real properties and relies upon Fabian, supra, 41 Cal.3d 440, 224 Cal.Rptr. 333, 715 P.2d 253.   Wife contends Hilke is factually distinguishable from Fabian and Buol, because Hilke did not involve vested property interests but Fabian and Buol did.

For many years prior to the 1983 enactment of Civil Code sections 4800.1 and 4800.2, it was settled that absent an oral or written agreement to the contrary, separate property contributions to a community asset were deemed gifts to the community.  (In re Marriage of Fabian, supra, 41 Cal.3d 440, 446, 224 Cal.Rptr. 333, 715 P.2d 253.)   Thus, a party who used separate property for community purposes could demand reimbursement only if he established an oral or written agreement to that effect.  (Id. at pp. 446–447, 224 Cal.Rptr. 333, 715 P.2d 253.)

Section 4800.2 “[turns] the tables” and preserves the contributing spouse's separate property interest unless he waives the right to reimbursement in writing.  (Id. at p. 450, 224 Cal.Rptr. 333, 715 P.2d 253;  Hilke, supra, 4 Cal.4th 215, 223, 14 Cal.Rptr.2d 371, 841 P.2d 891.)   Thus, section 4800.2 “in effect revers[es] the presumption of the prior law” and establishes a statutory reimbursement right.  (In re Marriage of Hilke, supra, 4 Cal.4th 215, 223, 14 Cal.Rptr.2d 371, 841 P.2d 891.)

In Fabian, a married couple owned a motel as community property.   During marriage, husband invested $275,000 of his separate property funds in motel improvements.   The parties had no agreement that husband would be reimbursed for that sum.   The trial court concluded husband made a gift of $275,000 to the community.   Husband appealed.

During the pendency of his appeal, the Legislature enacted Civil Code section 4800.2, requiring reimbursement of separate property contributions to community assets, unless the contributing spouse has waived reimbursement in a writing.   Our Supreme Court held that section 4800.2 could not apply retrospectively because it would violate due process to do so.  (In re Marriage of Fabian, supra, 41 Cal.3d 440, 447–451, 224 Cal.Rptr. 333, 715 P.2d 253.)

The court stated it was impossible for wife to obtain a written waiver of husband's reimbursement right because the marriage had been dissolved by the time section 4800.2 was effective.  (In re Marriage of Fabian, supra, 41 Cal.3d at p. 450, 224 Cal.Rptr. 333, 715 P.2d 253.)   The court limited its holding of unconstitutionality, however, by this statement:  “We hold only that application of the statute to cases pending on January 1, 1984, impairs vested rights without due process of law.”  (Id. at p. 451, fn. 12, 224 Cal.Rptr. 333, 715 P.2d 253.)

Hilke concerned a marital residence held in joint tenancy by husband and wife.   During dissolution proceedings, before the trial court could decide division of marital property, wife died.   The trial court applied the presumption of section 4800.1, that property acquired during marriage in joint tenancy form is community property.   Husband appealed and argued it was unconstitutional to apply section 4800.1 to property acquired before the January 1, 1984, effective date of the statute.

Hilke held that husband did not have a vested interest as a surviving joint tenant.  (In re Marriage of Hilke, supra, 4 Cal.4th 215, 222, 14 Cal.Rptr.2d 371, 841 P.2d 891.)   In dictum, however, the Supreme Court emphasized the “factual distinction[ ]” between Fabian and Hilke.  (Ibid.)  “An additional difference between this case, on the one hand, and Fabian and Buol, on the other, is that section 4800.1 was enacted well before Mrs. Hilke filed the petition for dissolution.”  (Id. at p. 223, fn. 4, 14 Cal.Rptr.2d 371, 841 P.2d 891.)   In Fabian and Buol, sections 4800.1 and 4800.2 were enacted during the pendency of the appeals in those cases.

It is true that Hilke did not concern a vested property right and Fabian and this appeal do.   Nevertheless, the statements in Hilke concerning the limited holding of Fabian are significant.   They suggest our Supreme Court would apply Civil Code sections 4800.1 and 4800.2 to dissolution actions brought after the January 1, 1984 effective date of those sections, regardless of the date of the property transfers.   The reliance on former law by the parties in Fabian and Buol is not present here.   The statements in Hilke also suggest our Supreme Court now would not agree now with In re Marriage of Columbo (1987) 197 Cal.App.3d 572, 242 Cal.Rptr. 100 and In re Marriage of Griffis (1986) 187 Cal.App.3d 156, 231 Cal.Rptr. 510, holding otherwise.

Accordingly, the order granting a new trial is affirmed.   Wife shall bear costs on appeal.

FOOTNOTES

1.   Civil Code section 4800.1 is now found at Family Code sections 2580 and 2581, without substantive change.

2.   Civil Code section 4800.2 is now found at Family Code section 2640, without substantive change.

3.   The trial judge made no order requiring the sale of these properties.   Husband's mother had built a guest cottage on the Carrillo Road property and the trial judge determined she held a life estate in that property.

4.   Civil Code section 4800.1 provides that upon dissolution of marriage, “property acquired by the parties during marriage in joint form ․ is presumed to be community property.”   This presumption may be rebutted by documentary evidence of title or by a written agreement, according to section 4800.1, subdivisions (b)(1) and (b)(2).

5.   Civil Code section 4800.2 provides in part:  “In the division of community property under this part unless a party has made a written waiver of the right to reimbursement or signed a writing that has the effect of a waiver, the party shall be reimbursed for his or her contributions to the acquisition of the property to the extent the party traces the contributions to a separate property source․”

GILBERT, Associate Justice.

STEVEN J. STONE, P.J., and YEGAN, J., concur.