Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YD046998, Michael P. Linfield, Judge.
Diana C. Elliott, in Pro. Per. for Appellant.
Law Offices of William P. Powell, Jr., William P. Powell, Jr. and Cynthia M. Powell for Respondent.
TURNER, P. J.
I. INTRODUCTION
This is a marital dissolution action between Diana C. Elliott and Gregory A. Laushine. Ms. Elliott appeals from a December 27, 2006 judgment on reserved issues. Ms. Elliott claimed the parties orally agreed: the proceeds from the sale of her separate property condominium would be contributed to the community; and, in turn, Mr. Laushine would transmute his separate property residence to community property. It was undisputed there was no writing to the effect that Mr. Laushine’s residence would become community property. The trial court ruled as a matter of law that absent an express transmutation declaration in writing as required by Family Code section 852, subdivision (a), Ms. Elliott had no community property interest in Mr. Laushine’s residence. We agree. Accordingly, we affirm the judgment.
All further statutory references are to the Family Code except where otherwise noted.
II. BACKGROUND
The parties were married on March 8, 2003, and separated on June 16, 2004. Mr. Laushine filed a dissolution of marriage petition on June 18, 2004. The couple has one child. At the time of marriage, Ms. Elliott owned a condominium and Mr. Laushine owned a house. Ms. Elliott testified Mr. Laushine pressured her to sell her condominium against her wishes. Mr. Laushine said he intended that both properties—his and hers—would be sold and the parties would buy a house together. Ms. Elliott sold her separate property condominium. At her written direction, of the sale proceeds, 30 percent was distributed to her; the remaining 70 percent was disbursed to the parties jointly. The house was not sold during the marriage. Mr. Laushine never executed any writing giving Ms. Elliott any interest in his separate property home. Pursuant to the judgment on reserved issues, Ms. Elliott received a reimbursement from the community for her separate property payment—from the proceeds of the condominium sale—of community debts.
III. DISCUSSION
A. Ms. Elliott’s Brief
Mr. Laushine argues Ms. Elliott’s opening brief is fatally defective and should be stricken for failure to comply with California Rules of Court, rule 8.204. We decline to strike the brief. (Cal. Rules of Court, rule 8.204(e)(2)(C).) But we disregard Ms. Elliott’s statement of facts, which contains not a single reference to the record. (See Connecticut Indem. Co. v. Superior Court (2000) 23 Cal.4th 807, 813, fn. 2; Matuz v. Gerardin Corp. (1989) 207 Cal.App.3d 203, 206-207.)
B. Transmutation
Ms. Elliott claims Mr. Laushine orally promised to change the character of his real property from separate to community property. Ms. Elliott asserts Mr. Laushine promised the parties would hold all separate property as community property and in reliance thereon, she sold her condominium. As noted above, Ms. Elliott further claimed the parties orally agreed the proceeds from the sale of her separate property condominium would be contributed to the community and, in return, Mr. Laushine would transmute his separate property residence to community property. Whether a transmutation has occurred is a question of law as applied to the undisputed facts. (In re Marriage of Starkman (2005) 129 Cal.App.4th 659, 664; see In re Marriage of Barneson (1999) 69 Cal.App.4th 583, 588.) We conclude Ms. Elliott cannot rely on an oral transmutation and therefore has not established a community property interest in Mr. Laushine’s residence. (§ 852, subd. (a).)
Sections 850 to 853 govern transmutations of real or personal property by married persons. A transmutation is an interspousal transaction that changes the character of separate or community property. (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1100 (Benson); In re Marriage of Campbell (1999) 74 Cal.App.4th 1058, 1062 (Campbell). Section 850 sets forth the general authority for interspousal transmutations, “Subject to Sections 851 to 853, inclusive, married persons may by agreement or transfer, with or without consideration . . . transmute . . . property.” Section 852, which governs transmutations made on or after January 1, 1985, is central to the issues in this case. It establishes the requirements for a valid transmutation. Section 852, subdivision (a) states: “A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” The Supreme Court has defined an “express declaration”: “[A] writing signed by the adversely affected spouse is not an ‘express declaration’ for the purposes of [former Civil Code section 5110.730(a), now section 852] unless it contains language which expressly states that the characterization or ownership of the property is being changed.” (Estate of MacDonald (1990) 51 Cal.3d 262, 272 (MacDonald); accord, Benson, supra, 36 Cal.4th at p. 1100 [“states on its face that a change in the character or ownership of the subject property is being made”]; e.g., Estate of Bibb (2001) 87 Cal.App.4th 461, 469-470 [Department of Motor Vehicles printout insufficient]; In re Marriage of Barneson, supra, 69 Cal.App.4th at pp. 589-594 [written brokerage instruction insufficient].) Under section 852, a transaction between spouses that changes the character of property is ineffective unless the agreement: is in writing; is accepted by the spouse whose property is adversely affected; and expressly declares it effects a change in the character or ownership of the property. (MacDonald, supra, 51 Cal.3d at p. 273; see In re Marriage of Barneson, supra, 69 Cal.App.4th at pp. 588-594.)
As the Supreme Court stated in Benson, supra, 36 Cal.4th at page 1107, “[A transmutation of property] necessitates not only a writing, but a special kind of writing, i.e., one in which the adversely affected spouse expresses a clear understanding that the document changes the character or ownership of specific property.” Section 852 was enacted to prevent spouses from transforming a passing comment into a contract or committing perjury as to the existence of a transmutation agreement. (Benson, supra, 36 Cal.4th at p. 1106; see In re Marriage of Barneson, supra, 69 Cal.App.4th at p. 591.) The Law Revision Commission comment states in part, “Section 852 imposes formalities on interspousal transmutations for the purpose of increasing certainty in the determination whether a transmutation has in fact occurred.” (Cal. Law Revision Com. com., 29C West’s Ann. Fam. Code (2004 ed.) foll. § 852, p. 458.) In MacDonald, the Supreme Court recognized section 852 might cause some inequitable results; but the court refused to second-guess the Legislature’s decision. (MacDonald, supra, 51 Cal.3d at p. 273; Campbell, supra, 74 Cal.App.4th at p. 1064.) Neither promissory estoppel nor part performance serves as a substitute for the required writing. (Benson, supra, 36 Cal.4th at pp. 1101, 1103-1106 [part performance]; Campbell, supra, 74 Cal.App.4th at pp. 1062-1065 [equitable estoppel].)
Here, it is undisputed there is no writing meeting the requirements of section 852, subdivision (a) with respect to Mr. Laushine’s residence. There is no writing transmuting Mr. Laushine’s home to community property. Ms. Elliott’s testimony about an unwritten agreement cannot establish a transmutation. (Benson, supra, 36 Cal.4th at p. 1104; see In re Marriage of Leni (2006) 144 Cal.App.4th 1087, 1095-1096.) Therefore, Ms. Elliott cannot show she has a community property interest in Mr. Laushine’s real property.
C. Undue Influence
Ms. Elliott argues the trial court had to presume undue influence because Mr. Laushine received a gain from the condominium sale that ordinarily he should not have had. Ms. Elliott’s argument raises a question of the interplay between the transmutation requirements of section 852 and the undue influence concerns addressed in section 721, subdivision (b). Section 720 sets forth spouses’ mutual obligations, “Husband and wife contract toward each other obligations of mutual respect, fidelity, and support.” Section 721 imposes a fiduciary duty in interspousal transactions: “(a) Subject to subdivision (b), either husband or wife may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried. [¶] (b) [With exceptions not applicable here], in transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners . . . .” The Law Revision Commission Comment to section 850 notes in part: “In addition to the limitations on transmutation provided in Sections 851-853, the spouses are subject to the general rules governing the validity of agreements and transfers, as well as the special rules that control the actions of persons occupying confidential relations with each other. See Section 721.” (Cal. Law Revision Com. com., 29C West’s Ann. Fam. Code (2004 ed.) foll. § 850, p. 453.) Under section 721, as the Supreme Court has explained, “[P]ersons, once they are married, are in a fiduciary relationship to one another (Fam. Code, § 721, subd (b)), so that whenever the parties enter into an agreement in which one party gains an advantage, the advantaged party bears the burden of demonstrating that the agreement was not obtained through undue influence (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 293) . . . .” (In re Marriage of Bonds (2000) 24 Cal.4th 1, 27.)
Ms. Elliott asserts that to find no transmutation of Mr. Laushine’s separate property residence because of noncompliance with section 852 would give him an unfair advantage in contravention of section 721, subdivision (b). Ms. Elliott argues Mr. Laushine would keep the benefit from the sale of her separate property condominium while also retaining his separate property home. The Supreme Court addressed this issue in Benson: “[A]bsent a transmutation that otherwise satisfies section 852[, subdivision (a),] there is no basis for applying the presumption of undue influence under section 721[, subdivision (b)]. [Citation].” (Benson, supra, 36 Cal.4th at p. 1112; accord, Campbell, supra, 74 Cal.App.4th at p. 1065.) In other words, a property transmutation meeting the requirements of section 852, subdivision (a) is subject to fiduciary standards set forth in section 721, subdivision (b). And a transmutation that advantages one spouse over the other is presumed to have been induced by undue influence. (In re Marriage of Delaney (2003) 111 Cal.App.4th 991, 999-1000; In re Marriage of Haines, supra, 33 Cal.App.4th at pp. 293-294.) To be effective, a transmutation must both meet the written express declaration requirements of section 852 and be free of undue influence as required by section 721, subdivision (b). Stated differently, a transmutation agreement meeting the section 852 express written declaration requirement would nonetheless be unenforceable if, in procuring the agreement, the advantaged spouse breached the fiduciary obligations imposed by section 721. (In re Marriage of Haines, supra, 33 Cal.App.4th at p. 296; 2 Cal. Transactions Forms, Estate Planning, § 11:36 (Thomson/West 2008).) But if there is no proof of an interspousal transaction in the form of a transmutation or otherwise, then there is no basis on which to apply the section 721 undue influence presumption. (Campbell, supra, 74 Cal.App.4th at p. 1065; In re Marriage of Barneson, supra, 69 Cal.App.4th at pp. 588-594.) The undue influence presumption (§ 721) cannot be applied to undo an alleged but unproved transmutation. (Campbell, supra, 74 Cal.App.4th at p. 1065; In re Marriage of Barneson, supra, 69 Cal.App.4th at pp. 588-594.)
In Campbell, the husband owned a residence prior to the marriage. The wife contributed her separate property funds to remodel the husband’s separate property home. She claimed that in return the husband promised to place her name on the title to his real property. The wife was never added as a titleholder. (Id. at pp. 1060-1061.) The wife argued that, notwithstanding her inability to prove a transmutation, the husband, who benefited from her investment of separate property funds, should have been presumed to have exercised undue influence over her. (§ 721.) The Court of Appeal disagreed: “[B]efore this statutory presumption may be applied, there must first be proper proof of a valid transmutation [, i.e., an interspousal transaction]. (See In re Marriage of Barneson[, supra,]69 Cal.App.4th [at pp.] 588-594; see also In re Marriage of Koester (1999) 73 Cal.App.4th 1032, 1037, fn. 5 [requiring ‘an unambiguous express written transmutation under section 852 . . .]. As Barneson demonstrates, you don’t just slip into a transmutation by accident.’].) For example, in Haines, the court applied the presumption of undue influence only after summarily concluding that a quitclaim deed was sufficient evidence of a transmutation. (Haines, supra, 33 Cal.App.4th at pp. 294, 297.) Here, [the wife] has not established the existence of a valid transmutation and thus there is no basis upon which to apply the presumption of undue influence.” (Campbell, supra, 74 Cal.App.4th at p. 1065.)
The Supreme Court agreed with Campbell in Benson. In Benson, the husband claimed there had been a transmutation of his community property retirement accounts to his separate property in return for his deeding a community property residence to a trust benefiting the wife. The Supreme Court rejected an argument by the husband that to apply the section 852, subdivision (a) requirement and find no transmutation of his retirement accounts would allow the wife an unfair advantage—she would retain the benefit of the deed he signed in her favor but he would not receive a separate property interest in his retirement accounts. (Benson, supra, 36 Cal.4th at p. 1111.) The Supreme Court held: “The claim . . . lacks merit. Husband does not seek to undo a transmutation that was so grossly one-sided and unfair as to be the product of undue influence under section 721[, subdivision] (b). (E.g., In re Marriage of Haines, supra, 33 Cal.App.4th 277, 293-294.) He instead invokes these principles to establish a transmutation that fails to comply with the terms of section 852[, subdivision] (a), as construed in MacDonald, supra, 51 Cal.3d 262. However, absent a transmutation that otherwise satisfies section 852[, subdivision] (a), there is no basis for applying the presumption of undue influence under section 721[, subdivision] (b). (Campbell, supra, 74 Cal.App.4th 1058, 1065.)” (Benson, supra, 36 Cal.4th at p. 1112.)
In the present case, Ms. Elliott has not established any transmutation; hence, there is no basis on which to apply the undue influence presumption arising under section 721, subdivision (b). Here, as in Benson, Ms. Elliott attempts to invoke section 721, subdivision (b), to establish a transmutation of Mr. Laushine’s separate property to community property without the written express declaration required by section 852. This she cannot do. (Benson, supra, 36 Cal.4th at pp. 1111-1112.) That Ms. Elliott performed her side of the alleged bargain does not obviate the section 852, subdivision (a), requirement of an express written transmutation declaration. Even if the parties intended to treat their separate property residences as community property, Ms. Elliott’s attempt to change the character of Mr. Laushine’s residence from separate to community property fails under section 852, subdivision (a). (MacDonald, supra, 51 Cal.3d at pp. 267-268.)
Even if we concluded Ms. Elliott could assert undue influence in breach of section 721 as to the sale of her separate property condominium without seeking a community property interest in Mr. Laushine’s residence, i.e., without asserting a transmutation as to that asset, the judgment would not be reversible. This is because the trial court found Mr. Laushine did not breach his fiduciary duties. The trial court denied Ms. Elliott’s claim for damages resulting from the sale of her condominium. Ms. Elliott has not challenged those rulings on appeal by reference to the record and an applicable standard of review. (E.g., People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37; Hess Collection Winery v. California Agr. Labor Relations Bd. (2006) 140 Cal.App.4th 1584, 1607, fn. 6; Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1001, fn. 2; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116.)
D. Constitutional Contentions
Ms. Elliott raises equal protection and right to contract arguments premised on the California Constitution. Ms. Elliott did not raise any claims under the California Constitution in the trial court. Constitutional objections not raised in the trial court are forfeited. (People v. Anderson (2001) 25 Cal.4th 543, 592, fn. 17; People v. Williams (1997) 16 Cal.4th 153, 250; People v. Jackson (1996) 13 Cal.4th 1164, 1231, fn. 17; People v. Rodrigues (1994) 8 Cal.4th 1060, 1119, fn. 22; People v. Garceau (1993) 6 Cal.4th 140, 173, disapproved on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118; People v. McPeters (1992) 2 Cal.4th 1148, 1174.)
IV. DISPOSITION
The judgment is affirmed. Gregory A. Laushine is to recover his costs on appeal from Diana C. Elliott.
We concur: ARMSTRONG, J. KRIEGLER, J.