Opinion
2d Civil No. B233452
01-31-2012
JEAN WRAY, Plaintiff and Respondent, v. THOMAS N. THOMPSON, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SD039495)
(Ventura County)
Thomas N. Thompson appeals a judgment dissolving his marriage to Jean Wray, confirming the parties' separate property, and imposing $2,000 sanctions against Thompson pursuant to Family Code section 271. We affirm.
All further statutory references are to the Family Code.
FACTS AND PROCEDURAL HISTORY
At the time of their marriage on June 10, 1996, Thompson and Wray were retired persons receiving Social Security income. Neither party earned income from employment during their nearly 14-year marriage. Before and during the marriage, Thompson received a civil service retirement pension and Wray received monthly rental income from commercial real property that she owned. At trial, the parties agreed that the Social Security income, retirement pension, and commercial property rental payments were the separate property of the party receiving the respective payments.
Two years prior to marriage, Wray purchased a residence on Bright Star Street in Thousand Oaks for $199,000 (Bright Star). Wray paid $50,000 as a down payment and obtained a mortgage for the remainder of the purchase price. She took title to the property as "Jean P. Wray, trustee of the Wray trust agreement, under trust dated 1984." The parties lived together in Bright Star after marriage. Although Thompson requested that Wray place his name on the property title, she declined to do so.
During the marriage, the parties maintained separate bank accounts into which their pension and Social Security payments were deposited directly. Wray paid the Bright Star mortgage payments and property taxes from her checking account. Thompson paid Wray $700 monthly to reimburse her for food, utilities, and other household expenses. Wray did not use any part of Thompson's monthly contributions to pay down the Bright Star mortgage.
In 2003 and 2005, Wray refinanced Bright Star. On each occasion, the loan application identified Wray as the only loan applicant; Thompson was not identified as a co-applicant. Following each refinancing, the deed of trust identified Wray, trustee of the Wray trust agreement, as the trustor.
At trial, the primary issue was the characterization of Bright Star as community property or separate property. Thompson appeared in propria persona and asserted that the property was community property because it had been refinanced during the marriage. He also testified that his monthly household contribution paid down the Bright Star mortgage. He did not offer documentary evidence supporting his claims. Wray provided evidence of the original grant deed, the loan applications for refinancing, and the executed deeds of trust.
The trial court examined evidence of the loan applications regarding the refinancings and questioned Thompson regarding evidence of his separate property contributions to pay down the mortgage. The court then entered judgment confirming Bright Star as Wray's separate property. The court also ordered each party to bear his or her own attorney's fees and costs and imposed $2,000 sanctions against Thompson pursuant to section 271 for "failure to settle this case."
Thompson appeals and contends that: 1) the trial court erred by characterizing Bright Star as Wray's separate property, and 2) he is entitled therefore to reimbursement for Wray's exclusive use of Bright Star following the parties' separation.
DISCUSSION
Thompson argues that Bright Star became community property when Wray refinanced it during the marriage. He relies upon In re Marriage of Branco (1996) 47 Cal.App.4th 1621 and its progeny. (Id. at p. 1627 [community had interest in separate real property where community property loan paid preexisting separate loan].) He also points out that property acquired by purchase during marriage is presumed to be community property and the burden is on the party asserting its separate character to overcome the presumption. (§ 760.)
The trial court did not err by characterizing Bright Star as Wray's separate property. The evidence establishes that Wray purchased the property prior to marriage and maintained it separately during the marriage. Although she refinanced it twice during the marriage, she did so in her name alone. (In re Marriage of Neal (1984) 153 Cal.App.3d 117, 125, disapproved on other grounds in In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, fn. 13 [trial court properly found loan proceeds were separate property where lender relied on equity in separate real property as security for loan].) In ruling, the court stated that it examined the refinancing loan applications and that Thompson was not a party to either of the refinancings. Evidence at trial also indicates that the parties had no community property income from employment or other sources. Thus, the community could not have obtained an interest in Bright Star by refinancing or reducing its encumbrance.
We have also examined the exhibits as part of the record on appeal.
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Thompson asserts that the mere refinancing of separate property during marriage changes the property to community property. The authorities on which he relies do not support his contention because they differ factually. For example, in In re Marriage of Branco, supra, 47 Cal.App.4th 1621, 1623, the parties jointly applied to refinance separately owned real property. Each party also signed the promissory note and deed of trust. (Ibid.) The reviewing court held that the community estate acquired an interest in the appreciation of the separate real property because a portion of the community property loan was used to pay down the mortgage. (Id. at p. 1627.)
In In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1287, the parties refinanced separate real property six times during the marriage. The parties agreed that the loans were community obligations "to be shared equally between the parties, thus giving the community a pro tanto interest in the property." (Id. at p. 1287, fn. 7.)
Here evidence at trial established that Wray refinanced Bright Star with her separate property income and the equity in the property as security for the mortgage. Thompson was not an applicant on the loan and thus the lender could not have relied on his separate property income in making the loan.
In view of our discussion, we need not discuss Thompson's remaining contentions other than to state that he is not entitled to reimbursement for Wray's post-separation use of her separate property. The trial court also did not abuse its discretion by imposing $2,000 sanctions against Thompson for his insistence in litigating this matter.
The judgment is affirmed. Wray shall recover costs on appeal.
NOT TO BE PUBLISHED.
GILBERT, P.J. We concur:
YEGAN, J.
PERREN, J.
Roger L. Lund, Judge Superior Court County of Ventura
Tom Thompson, in pro. per., for Defendant and Appellant.
Ferguson Case Orr Paterson LLP, Joshua S. Hopstone for Plaintiff and
Respondent.