*1 Dist., A040908. First Div. Aрr. Four. [No. 1989.] In re the of DIANA L. and F. BRODERICK. Marriage WARREN BRODERICK, WARREN F. Appellant, BRODERICK, L.
DIANA Appellant. [Opinion partial publication.*] certified for * Court, 976.1, Pursuant to 976(b) California Rules of opinion rules this for certified publication exception part with the IV.
Counsel A. Robert and Teal & for Montgomery Montgomery Husband. Appellant Conner, Catherine Ann Conner and Slabach & Lawrence for Appellant Wife.
Opinion ANDERSON, and bench involve a dis appeal P. J.The at cross-appeal from the pute arising marriage dissolution of and determination of certain of the The facts to the rights parties. pertinent leading controversy Warren F. follow: Broderick and Diana L. Broderick (husband) (wife) were 17, Ronald, January They married on have 1970. two children: born Octo 3, 1971, Sheila, 6, ber born June 1975. family October 1973 the a parties purchased residence located at 701 Drive, Petaluma, $23,500
St. Francis California. The of the home was price $3,800 which was financed by a down spouses making payment $20,400 in the sum of assuming mortgage costs) included also (which $154 month. per the rate of payable all her 1977, transferring executed wife
On September time, had separated the parties At that to husband. in the home rights to have wife paid claimed Arkansas. Husband to move to wife planned at a prepared The deed was $4,000 deed. for the quitclaim consideration husband, the real in the presence wife signed and was title company fully under- indicates wife The record notary and a public. estate broker transaction, i.e., the deed by signing of the the legal consequences stood residence. family in the rights all her give up she would there- money receiving deed and the execution of the quitclaim After her. for, Approximately the children with taking left for Arkansas wife reunited California. family and the later the reconсiled parties months monthly made the in the home and he husband lived During separation loan payments. both husband This time again. the parties separated
In November of marriage superi- for dissolution filed their respective petitions and wife by husband the home was occupied this second During separation, or court. and, mortgage just previous separation, and the children as wife. contribution from it made husband without on were payments once reconciled spouses ended in 1980 when August This separation for the they when They separated lived until together September more. on mortgage payments that the final time. The evidence is uncontradicted stayed together funds while the parties the home were with paid the final during separation but September between 1980 and August 1987, the loan were February payments from lasting September allowed to live the home funds of wife who was made with the separate minor children. with together value of the the fair market that on the date of trial stipulated
The parties $12,000. $82,500 They fur- balance of an loan existing residence was fair time deed the signed ther that at the wife stipulated $45,000 balance of approximately with a loan market value of the house was $18,000. *7 trial, wife contended the evidence presented
Both in her
pleading
quitclaim
and that the
community
family
property
that the
residence was
quitclaim
contended that the 1977
aside. While husband
deed should be set
he
concede that
did
property,
the residence to his separate
deed transformed
to
in the home
community
pursuant
interest
would be entitled to some
wife
496
662, 618 P.2d
re
208] separate The that residence constituted husband’s trial court found the in the home was community and that Moore the interest property under $52,593. claim that the Simultaneously, rejected the court wife’s the of whether husband was deed at issue was invalid. issue Regarding of residence after to rental due to wife’s the occupancy entitled credit husband in the the ruled that such credit was owed to separation, court month, $86 was to be deducted from the child per amount of which sum From this both support payment. judgment parties appeal.
The on are: whether the cross-appeal (1) issues on primary appeal (2) wheth- properly separate property; residence was classified as husband’s Moore; community er the home was to be determined under interest the interest in the the of the extent of the (3) whether calculation the accurate; (4) reducing and whether trial court erred residence was by child the home rental value. support payment The Was Husband Separate Property I. Residence is is well that a deed a distinct form recognized It like other inasmuch as it whatever conveyance operates any passes Homes, Inc. v. title or interest the has grantor property. {Howard 526, 530 v. Cal.Rptr. Guttman Buller (1961) 190 [12 687, 649].) 62 P.2d It is equally Buller 699 (1944) [145 that title settled the form of the instrument creates a presumption re Marriage to the is shown in the Lucas held as instrument. {In 808, 853, P.2d on (1980) [superseded 27 Cal.3d Cal.Rptr. [166 285] Code, v. 4800.1]; (1953) other Civ. Cal.2d grounds Gudelj Gudelj § 202, 656].) While the from form presumption arising P.2d [259 contrary of a between the may agreement the title be rebutted evidence solely by the funds tracing cannot be overcome parties, presumption by testimony used of an intention not dis nor purchase property, conveyance. re closed at the time of the execution of granteе {In 333, 715 P.2d Fabian Cal. 3d Marriage (1986) is 253].) it of whether the evidence Finally, is axiomatic that issue is a of fact for the trial presumption question sufficient to overcome on if supported court determination will not be overturned appeal whose 212; v. evidence. 41 Cal.2d at DeBoer {Gudelj Gudelj, supra, p. sufficient 504-505 P.2d DeBoer residence was the family separate The trial court found here that The record This evidence. finding supported husband.
497 8, 1977, deed which executed quitclaim wife September that on shows The quitclaim her residence. rights she to husband all transferred County on duly in Sonoma to and was recorded delivered husband deed was the execu- 13, following the reconciled 1977. September Although parties deed, wife. Wife’s trial never retransferred to tion the the was property of share in reconvey her verbally to testimony promised that 1983 husband itself; (b) evidence by: the rebutted the deed (a) quitclaim was property rights intended to all her give up the deed quitclaim wife signing that ever since indicating and conduct (c) testimony husband’s finality; family treated the the 1977 he had considered and execution of sum, verbal to agreement the alleged residence as his separate property. on unsubstanti- into was founded property reconvert the home ated, created failed to overcome the conflicting presumption evidence which free disregard. deed and which the trial court was to by the also claims that the deed should have been set aside
Wife duress; parties; (2) (3) trial court on of: reconciliation of grounds (1) contentions. any consideration. We find no merit of her inadequate A. The Reconciliation the Parties Did Cancel the Not Quitclaim Deed
Wife first have been held contends that deed should following invalid because execution the reconciled which parties ipso its (1955) facto annulled the deed. v. Lamb 131 489 Cal.App.2d {Lamb [280 v. P.2d 793]; Morgan Morgan (1951) P.2d 106 189 Cal.App.2d [234 legal This contention wife lacks both factual support. While it has been held that reconciliation and marital resumption may executory agree relations cancel the settlement provisions 55, v. 202 59-60 (1962) ment {Tompkins Tompkins Cal.App.2d [20 601, Harrold v. 100 609 530]; (1950) Harrold Cal.App.2d [224 alone does 66]), P.2d it well settled that reconciliation not proof 546, v. 550 agreement Bluhm abrogate Cal.App.2d {Bluhm basis, P.2d To avoid on this must be a clear 421]). the contract there [277 indication that intended annul the reconciling agreement parties and restore their earlier Such intent can be for property rights. proven, agreement, of the document example, containing destruction reconveyances of the execution of or restoration control of one v. formerly Gray (1945) exercised it. who {Plante Cal.Jur.3d, Law, Family 104.) This is p. P.2d § benefits true have received or particularly accepted where parties Bluhm, v. agreement. settlement {Bluhm 550; Crossley аlso P.2d p. Crossley (1950) see *9 rate, abrogate the intended to any parties At the issue of whether
132].) mutual marital agreement by responsibilities their resuming their property fact will of the trier of finding a factual determination and the constitutes supra, if the v. by (Tompkins Tompkins, not be overruled record. supported 59; Morgan, Morgan see also p. 193.) at p.
Here the that the execution of the quitclaim evidence demonstrates divorce; only single, a not in it constituted contemplation deed was of a settlement which not property part property isolated transaction was a of marital agreements range address wide agreement. Property settlement assets, the of all the generally include division disputes They include issues usually the the additional including personal property. fees, costs, etc. custody spousal attorney of child and support, support, But, of a part even were to assume that the 1977 deed was quitclaim we because it was executed agreement contemplation separa settlement tion, a com fails. The transfer of the residence was wife’s contention still (rаther executory contract) deal than an and wife provision pleted Furthermore, the bargain). retained the consideration the benefit of the (i.e., to abro by parties record does not establish that intended reconciling, following deed. wife that their reconciliation Although testified gate reconveyance proper some about a of her share in the there was discussion denied he had ever made such a ty, categorically promise. husband that Moreover, destruction, there or of an execu was no evidence the dеed’s In control reconveyance tion of or of restoration of wife’s over property. of this are bound sustain the trial court’s that finding evidence we light nullify did deed. (Craw the reconciliation of the not parties v. Southern Co. P.2d Alder (1935) Cal.2d ford Pacific 450, 465 son v. Alderson Lamb, briefly primary note authorities supra, Morgan, supra, We wife, are from In both Lamb distinguishable cited these circumstances. there settlement between Morgan, complete agreement was interlocutory decree of dissolu- incorporated which was parties addition, Morgan trial In cоurt in Lamb and upheld tion. the appellate that, finding present, court’s of fact under the circumstances there void the settlement parties reconciliation was intended deeds executed the husbands. agreement, including herein, otherwise, record court found and based upon contrast the trial such is not sufficient say finding supported before us we cannot evidence. Claim Duress Does Not Support
B. The Record been set should have *10 quitclaim that the 1977 argues Wife next We disagree. duress. it was obtained aside because for duress may be set aside (or deed) a contract It is well settled thаt “ ‘ regard a threats person . . so oppressing if it obtained only was himself, a member of his or of liberty of or of his safety property, or ing ’ ” (In re . . .” exercise of his will. him of the free family, as to deprive Cal.Rptr. 743-744 Gonzalez 57 Marriage (1976) Cal.App.3d [129 446, 461 184 (1960) Cal.App.2d see also Gross v. Needham [7 a than mere threats or puffing; Duress “is more 664].) Cal.Rptr. to induce intentionally pressure used threats or must be shown to have party Marriage re (In detriment.” or nonaction to the other party’s action 1051, 1073, 116], 6 italics fn. Stevenot (1984) Cal.App.3d added.)
Herein, because she she deed signed quitclaim wife testified that violence on the money. alleged needed the The wanted to leave husband and earlier; at the time of of months couple of husband took part place document, threats nor violence.1 husband exerted neither executing Thus, execu that at the time of the beyond the record demonstrates dispute threats, fear or vio tion of the deed free will was not overcome wife’s lence, under circum sign and that she not induced to the document was her against and caused her to act destroyed agency stances which her free Needham, these 461.) at Given Cal.App.2d p. will. (Gross supra, facts, in that wife did not justified finding sign the trial court was duress;2 rules of review we appellate deed under under well-settled quitclaim could every in fact which the trial court assume favor of this determination Gonzalez, Marriage re reasonably (In have deduced from the evidence. Needham, at 745; supra, at Gross v. p. 460.) p. Now, you had— testimony “Q. regards to the violence that part: 1The wife’s in reads earlier, you for and Warren
testified about there had been no violence between [husband] right? you isn’t that prior signеd quitclaim September months to the time deed deed, Yeah, signed [])]Q. you Warren A. At the time that about two months. [fl] No, holding (Italics added.) threatening you, [j|] a stick.” was A. he wasn’t wasn’t hel prove rejects argument as the facts fail to finding question “The Court 2The states: money needing she wanting and because was except apparently of wife duress context safety testimony her at leaving that wife feared for for Arkansas. There no whatsoever was deed; any showing had asked husband there that wife the time of the execution of the nor was contrary, apparently money husband sent go refused. To the for to Arkansas and then was money support to Arkansas. . . .” the Deed Invalid Does Render Consideration Not Inadequacy C. been inval should have Finally, wife claims that Marriage re Moore grounds. on equitable idated {In she received inade complains Cal. She Rptr. $3,000 for exchange only inasmuch as husband paid consideration quate $13,000 the time of interest worth over in the home—an her half-interest execution of the deed. fails, statutory under well-settled because Wife’s contention validity of not defeat the of consideration does case law inadequacy *11 Code, 1040;3 v. Marzocchi Odone of fraud. (Civ. deed in the absence § 431, (1980) v. Court Generes Justice 436 P.2d 34 Cal.2d (1949) [211 66 678, Taylor (1944) 222]; Taylor Cal.Rptr. 106 683 Cal.App.3d [165 Co. 390, Cambridge in As stated 480].) 398 P.2d [152 “A consideration P.2d 62 139 (1943) Cal.App.2d v. Moore 57]: [144 if has been executed real it property a deed of necessary not to support convey intent to its contents and with of voluntarily knowledge and with 809, 813 (1978) Cal.App.3d Brown v. Fix (Accord the grantee.” title to Cal.Rptr. herein, made no that husband the record establishes In the case home, any make nor did he the value of the regarding representations the deed. Wife understood time of the signing to wife at the promises and, consid in for the exchange agreed upon and effect of the meaning eration, to husband. Under her title the home voluntarily she transferred claim to the proper nor legal equitable circumstances wife has neither these mutually a in return for voluntarily and ty knowingly parted she which sum. agreed upon Moore, strikingly a Marriage poses In re of and, therefore, case. not control the present does
different factual situation Moore, wife, with inadequate the citizen Marriage foreign In In re interest in her community her the waived English language, command of right that she had such military knowing without pension husband’s indeed Those facts of the transaction. understanding meaning without equitable power trial court’s inherent for an invocation of the called advantage husband took by which agreement annul the settlement contrast, fully here was By wife. wife ignorant of his unrepresented effect of legal in the home and right aware of both her thus, decision result of an informed deed; conveyance was the contract, voluntary executed sub “A transfer is an рrovides Civil Code section is not neces concerning general; except that a consideration ject contracts to all rules of law added.) sary validity.” (Italics to its Such, course, relief here denial of that equitable justifies on her part. sought. Formula Correctly Trial Court Chose Moore
II. The Family in the Residence Ascertaining Community Interest erred in raised is whether the trial court major The second issue community in the residence under Moore. Husband interest calculating interest on that the determination argues appeal now (1983) re Stoner adjudicаted Marriage have been under In should Moore. 351], subsequent a case decided below, rebuttal, since, husband conceded wife out points proceedings Moore, he is bound by that the interest in the house should be decided under under this on raising appeal that concession and barred from issue error, trial. Wife’s theory posi doctrines of invited waiver estoppel, tion is well taken.
It is settled that where a his conduct induces commis party error, sion an under of invited error he is from estopped the doctrine error v. Cavalli alleged (Abbott as for revеrsal. asserting grounds *12 379, 383 P. Morris v. 135 67]; (1982) 114 Cal.App. [300 Frudenfeld Witkin, 23, 76]; (3d 32 9 Cal. Procedure ed. Cal.App.3d Cal.Rptr. [185 §301, Similarly, waives his 1985) p. 313.) an Appeal, appellant right acquiescing to attack error or or at expressly implicitly agreeing trial to the or to on ruling procedure objected (Redevelopment appeal. 158, Berkeley v. 80 3d 166 Agency City Cal.Rptr. (1978) Cal.App. [143 Witkin, Procedure, 633]; 9 Cal. 305-307 at supra, pp. 316-318.) §§ “A is not Finally, change it is axiomatic that to his party permitted him position theory a new different on To to adopt appeal. permit court, only manifestly unjust do not be to trial tо so would unfair but 233, 240-241 (Ernst (1933) v. Searle 218 Cal. opposing litigant.” [22 25, In re Karlin 24 33 715]; Marriage Cal.App.3d P.2d accord (1972) Marriage re grounds on other in In Cal.Rptr. [disapproved [101 240] 633, 561, 838, 851, 15 fn. 14 544 P.2d (1976) (126 Brown Cal.3d Cal.Rptr. Bicycle 94 A.L.R.3d Rickel v. Co. 144 164)]; (1983) Schwinn however, 648, Husband, relies on an 732].) 656 Cal.Rptr. [192 rule, may be pre to the that an issue not raised at trial exception general a legal for the first time on the issue involves appeal purely sented when rests could not have question which on an uncontraverted record which Morgan v. (Hale been altered of additional evidence. presentation 375 P.2d Wilson v. Cal.3d (1978) Cal.Rptr. [584 [149 802, 805 (1980) Lewis 106 Cal.App.3d in
The record herein is clear that both his statement pretrial indisputably be if the found to his and at trial husband conceded that residence was community inter parties’ court should determine the separate property, in the By allegedly to such pursuant acquiescence est the home Moore.4 standard, for first time here on raising from erroneous husband barred procedure. to that adjudication pursuant error from stemming appeal Stoner, case the new exception. fails to himself within bring Husband husband, funds after community expended held that the relied on constituted the wife’s separate execution of Marriage re gift make a to the wife. because the husband intended to {In Stoner, contrast, in case here the 864.) By at supra, p. made exe following the community payments crucial issue of whether the gift to be a to the separate cution deed were intended raised, husband, proceeding developed was neither nor communi determination of suggested parties’ below. It follows that the a but purely legal question, under would not would ty pose interest Stoner dimension; then be resolved оn appeal, add a factual the case could not new his her interest concerning since introduced evidence or party neither governed The thus is on the residence. case making payments 534], P.2d where our Taggart Ward v. Cal.2d required not be party Court stated: should Supreme opposing “[T]he theory ‘contemplates first on new that appeal against defend for the time controversy of which are consequences open factual situation the ” Rickel Schwinn (Accord or at the trial.’ presented were not issue put Co., Bicycle р. 656.) Was III. Interest in the Home Community The Calculation of Erroneous formula, found the communi Moore the trial court
Using the *13 $52,593. This ty equalled in the was 74.6 which percent, interest residence both contends that the of the trial court is attacked Wife finding parties. which, if in the formula prop trial court several factors Moore disregarded community in a erly would have resulted higher percentage applied, hand, $63,582.69. Husband, the other in the on totalling interest property community the in all the contribu including claims that trial court erred the February the in 1973 and purchase tions made between the home the made February date of trial in 1987. He maintains that contributions pretrial “The parts 4The record follows: The husband’s statement: pertinent of the read as major conmunity parties to are some interest the property items of be divided the [hus Additionally, plan the retirement an interest in the retirement fund. and [wife’s] [][] band’s] holding community re pursuant the in In have some interest in the residence to would [wife] (Italics added.) Marriage Moore.” three, separate house is the husband’s Definition of the at trial: if the issues “[N]umber the decision. property, are the that’s wifе’s entitled to under Moore what credits [][] [szc] words, she does cred- separate property],] we the is have other concede that house [the wife] [if] (Italics added.) pursuant its to the Moore decision.” of the only from the date have counted community should been funds with 8, 1977; legal he claims the on of the deed September execution quitclaim all her (including all of wife to transfer the interest of the deed was effect husband, un- date) grantee to that to community interest accumulated the limited We husband and remand case for the deed. with agree der in the community interest residence. redetermining purpose convey such used when intends to grantor A deed is quitclaim has, to other he or in contradistinction interest as she an well- warranty estate of title. Under fee or other with grant deeds which law, title and interest right, deed all the quitclaim passes settled execution, but not pass at the its it does has time of grantor (Howard thereto. grantor subsequent interest title or acquired Homes, Guttman, v. Coa 530; Helvey at p. Inc. supra, 746, P.2d Valley chella Water Dist. 293, Cal.Jur.3d, 598, Deeds, As in Buller v. 603.) at stated pp. §§ “ Buller, closely deed related 699: ‘A is quitclaim release, as a form of to a but has come be distinct simple recognized any transferring like the extent conveyance, other deed to operates has, or .... A whatever title interest the but none other grantor however, deed, only as the operates to transfer such interest purports has, carry it hence an ti executing after-acquired one then does not ” tle.’ Land & Cattle Co. v. Roemer (Accord (1970) Cal.App.3d Klamath 613, 618 automatic But even aside from the deed, effect of a deed here legal language transfer of the states tо divest undersigned (wife) that “It is the intention of the explicitly other any community interest in the above described or property, herself of wise.” (Italics added.) It follows from by executing the above discussion that the quitclaim 8, 1977, on all her interest in the September wife transferred to husband home interest existing community that time which also included had that the loan point paying which accrued as a result down up clear, however, community funds. It is principal equally community made after of the deed and after contributions the execution reconciled, an interest creаted parties after-acquired *14 by which was the deed. The conclusion prior home unaffected to the thus the contributions made inescapable community prior that while community execution of deed must be those disregarded, in included defray the loan made thereafter must be payments principal community in the determining interest residence. parties’ is community interest in the the trial court recalculating property controlling bound to follow the set forth in Moore. The guidelines where, here, to make loan community funds are used as is that principlе a tanto community pro receives separate property, on the payments in the ratio that the payments in such community property interest property funds. made separate to the with community payments funds bear in in and developed defined Moore is calculated under formula This Frick Marriage in In re detail greater separate determines the “[Ojne formula: first Under this Cal.Rptr. 766]. The in property. interest community property percentage property by crediting sepa is determined interest percentage separate рroperty amount of the loan on and the full with the down property payment rate re community by property payments which the less the amount property purchase is divided balance of the loan. This sum duced the principal share. The percentage is the resulting figure separate property The price. the amount by dividing is determined share community property percentage pur the principal reduced community payments in which property Moore, (In The 373-374.) 28 Cal. 3d at pp. re Marriage supra, chase price. marriage thе end of as valued at interest separate property property amount of capital appreciation, all the adding prenuptial determined (determined to the funds separate attributable during marriage appreciation by the separate during marriage by multiplying capital appreciation by separate interest), equity paid and the amount property percentage The funds. community (In re Marriage Marsden share in the value of the [1982] at is determined pp. 437-439.) attributable marriage during the amount of by adding capital аppreciation re Mar community (In funds.” funds to the equity paid Frick, at riage 1008.) p. Payment Was Correct*
IV. The Reduction the Child Support redetermine the trial court in order to The case is remanded to the the views ex- consistent with community interest the residence parties’ is affirmed. herein; judgment in all other pressed respects J., Perley, concurred. IV, II, III,
POCHÉ, J. opinion, of the lead fully concur parts I I. reluctantly I in result agree part The showed that very close case. evidence obviously
At trial this was deed, a tenth grade wife had of the execution of the quitclаim the time * ante, footnote, page See 489. *15 During
education, job. never held a account and had did not have a bank bills, all the groceries, had marriage, paid purchased husband negotiated had purchase the tax It was husband who returns. prepared residence, insurance agent estate and title family dealt with the real of the Arkan- husband and move to When to from separate wife decided people. $3,000.1 sas, had offered her deed because husband she signed words, “I money.” have the was in his name so I could In wife’s “I it put later, months in Arkansas somе 10 hurry.” After the reconciliation an awful wife’s home husband were from paid car expenses trip $3,000. her she signed giving up
When wife the deed she understood that was house, interest she had (50 but she had no idea what percent) interest $45,000 an loan of existing value had minus (some or what the house However, her of the never to the value $18,000). husband misrepresented Wife to ask house; thought he made whatsoever. never no representations $13,500. the value entitlement some property: about of her to the record, I On limited. On this appeal judge task of the much more can find evidence to the trial court’s that there was support finding sufficient no duress or in the transaction. I also that reconciliation agree fraud husband’s nullify its own force does not deed especially light fact, not testimony, obviously credited the trier of that the did parties nullify intend to their Nevertheless I continue reconciliation. a quick have serious doubt that this transaction is conscionable: legally an (or four) equity having three thousand dollars for interest exchange least value. triple $4,000; believed never that factual dis- paid Husband he closer the trial court resolved
pute.