Fossum v. Fossum
192 Cal. App. 4th 336
| Cal. Ct. App. | 2011Background
- Edward and Sandra Possum purchased a home in 1994; title initially in Edward's name alone to obtain a better loan rate, then placed in both names.
- Sandra quitclaimed her interest in 1994; Edward later executed a handwritten second quitclaim placing title in both names as joint tenants.
- In 1998, they refinanced; Sandra quitclaimed again in Edward's favor with promise to restore her name after refinancing, but title remained in Edward's sole name.
- Sandra later moved out; Edward refused to restore her name; mortgage payments were made from a community account during cohabitation.
- Before separation, Sandra took a $24,000 cash advance on a credit card without disclosure; trial court found fiduciary breach under Fam. Code § 721(b).
- Trial court held the house presumptively community property; awarded Sandra attorney fees from Edward under § 2030 but denied additional fees for fiduciary breach under § 1101(g). The matter was remanded for determine amount of fees under § 1101(g).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the house is community property | Possums claim house was Edward's separate property due to 1998 third quitclaim. | Transmutation or separate property status possible; form of title controls absent undue influence. | House is community property; presumption not rebutted. |
| Effect of the 1998 third quitclaim and undue influence | Edward's form of title should control; Sandra's claim unsupported by undue influence. | Presumption of undue influence applies; Edward abused fiduciary position. | Undue influence presumption applies; third quitclaim invalid to make property separate. |
| Whether Sandra's downpayment contributions are separable property reimbursements | Edward's separate property contributions to downpayment should be reimbursed. | Evidence credits Sandra's testimony; no clear separate-property contribution by Edward. | No separate-property reimbursement; trial court’s finding supported by evidence. |
| Attorney fees under § 1101(g) for fiduciary breach | Edward entitled to attorney fees for Sandra's fiduciary breach. | Trial court properly denied, interpreting § 1101(g) as discretionary. | Statement of error; § 1101(g) mandates fee upon fiduciary breach; remand for amount. |
| Remand remedy and the role of § 1101(g) versus § 1101(h) | Fees should be awarded under § 1101(g) for Sandra's breach. | Discretionary vs mandatory aspects unclear; limited record on request for fees. | Remand to determine amount of attorney fees under § 1101(g) due to § 721 breach. |
Key Cases Cited
- In re Marriage of Bonds, 24 Cal.4th 1 (Cal. 2000) (community property presumption and fiduciary duties framework)
- In re Marriage of Mathews, 133 Cal.App.4th 624 (Cal. App. 2005) (undue-influence presumption in interspousal transactions)
- In re Marriage of Haines, 33 Cal.App.4th 277 (Cal. App. 1995) (undue-influence rebuttal burden in interspousal transfers)
- In re Marriage of Brooks & Robinson, 169 Cal.App.4th 176 (Cal. App. 2008) (form-of-title presumption and its limits)
- In re Marriage of Hokanson, 68 Cal.App.4th 987 (Cal. App. 1998) (mandatory vs discretionary attorney fees under § 1101(g))
- In re Marriage of Rossi, 90 Cal.App.4th 34 (Cal. App. 2001) (clarifies discretion in § 1101 governing attorney fees)
- In re Marriage of Arceneaux, 51 Cal.3d 1130 (Cal. 1990) (procedural standards for asserting property division arguments)
- In re Marriage of Falcone & Fyke, 164 Cal.App.4th 814 (Cal. App. 2008) (forfeiture considerations on appellate fee issues)