BILL ANALYSIS                                                                                                                                                                                                    






                           SENATE JUDICIARY COMMITTEE
                            Martha M. Escutia, Chair
                           2003-2004 Regular Session


          SB 1407                                                S
          Senator Kuehl                                          B
          As Introduced
          Hearing Date: April 27, 2004                           1
          Family Code                                            4
          KH                                                     0
                                                                 7

                                     SUBJECT
                                         
              Community Property:  Separate Property Contributions

                                   DESCRIPTION  

          Existing law allows a spouse to be reimbursed for separate  
          property contributions to community property, and allows  
          the community to be reimbursed for contributions to the  
          separate property of one spouse.  However, there is no  
          provision for allowing a spouse to be reimbursed for  
          separate property contributions to the separate property of  
          the other spouse.

          This bill would allow reimbursement for separate property  
          contributions of one spouse to the other spouse's separate  
          property assets or debts, unless there is a writing making  
          the contribution a gift.  The proposed right to  
          reimbursement would be without interest or adjustment for  
          change in monetary values.

                                    BACKGROUND  

          Existing law permits reimbursement to a spouse or the  
          community in certain circumstances.  In 2001, a California  
          Court of Appeal declined to extend the right of  
          reimbursement to other circumstances absent express  
          statutory authorization.  (See Comment 1.)

          The Conference of Delegates of California Bar Associations  
          passed a resolution recommending that legislation be  

                                                                  
          (more)




          SB 1407 (Kuehl)
          PageB


          sponsored to amend Family Code Section 2640.  The State Bar  
          of California, Family Law Section unanimously approved the  
          proposed statutory language and is co-sponsoring the bill.





                             CHANGES TO EXISTING LAW
           
           Existing law  provides that the community estate acquires a  
          pro tanto quasi-ownership stake in one spouse's separate  
          property to the extent community funds contributed to the  
          equity in the spouse's separate property.  The community  
          estate acquires its stake for payments made to reduce an  
          encumbrance on separate property and capital improvements  
          to separate property, but not payments made for taxes,  
          interest or maintenance.  [The so-called "Moore/Marsden  
          rule," from  Marriage of Moore  (1980) 28 Cal.3d 366, 373-374  
          and  Marriage of Marsden  (1982) 130 Cal.App.3d 426, 438-440;  
           Marriage of Allen  (2002) 96 Cal.App.4th  497, 502;  Marriage  
          of Wolfe  (2001) 91 Cal.App.4th 962, 928-929 (reimbursement  
          for amount of improvement, not pro tanto interest in  
          enhanced value resulting therefrom).]

           Existing law  authorizes reimbursement for separate property  
          contributions to the acquisition of community property  
          (equity in the community property), unless a writing  
          expressing the intent to make a gift or waiving the right  
          to reimbursement has been executed.  The spouse who  
          contributed separate property is entitled to reimbursement  
          for payments made to reduce an encumbrance on community  
          property and capital improvements to community property,  
          but not payments made for taxes, interest, insurance or  
          maintenance.  The amount reimbursed is without interest or  
          adjustment for change in monetary values.  The amount  
          reimbursed shall not exceed the net value of the property  
          at the time of the division.  [Fam. Code Sec. 2640.]

           This bill  would authorize reimbursement for separate  
          property contributions to the separate property estate,  
          including assets or debts, of the other spouse, unless a  
          writing expressing the intent to make a gift or waiving the  
          right to reimbursement has been executed.  This bill, like  
          existing law, would state that the amount reimbursed is  

                                                                       




          SB 1407 (Kuehl)
          PageC


          without interest or adjustment for change in monetary  
          values.

           This bill  would, unlike existing law, apply to  any   
          contributions from the separate property estate of one  
          spouse to the separate property estate of the other spouse,  
          not only those contributing to the equity of an asset.  The  
          extent of reimbursement would not be limited by the net  
          value of the property at the time of the division, and  
          reimbursement would be required even when there is no asset  
          involved, such as for payments made on a pre-existing tax  
          liability or consumer debts.






                                     COMMENT
           
           1.Stated need for the bill  

            Co-sponsor Sacramento County Bar Association states:

               Since the adoption into law of Family Code section  
               2640, the Legislature and courts have determined that  
               the pre-existing theory, that any contribution of  
               separate property by one spouse to the community or by  
               the community to one spouse's separate property was a  
               "gift" and therefore not subject to reimbursement, was  
               not viable or accurate in today's society.  If this is  
               true, then contributions by one spouse, after  
               marriage, to the separate property estate of the other  
               spouse should not be viewed as a "gift" and be  
               reimbursed if no written waiver, per Section 2640,  
               exists.

            In the case  Marriage of Cross  (2001) 94 Cal.App.4th 1143,  
            husband expended approximately $40,000 of his separate  
            property money for capital improvements to the residence,  
            which was wife's separate property.  Upon dissolution,  
            husband sought reimbursement for the $40,000 and relied  
            on Family Code Section 2640.  The court denied his  
            request and the appellate court affirmed, stating:


                                                                       




          SB 1407 (Kuehl)
          PageD


               Both the clear language of the statute and the cases  
               interpreting it address situations where one spouse  
               has used his or her separate property to purchase or  
               improve community property.  Nothing in section 2640  
               gives one spouse a right of reimbursement for separate  
               property contributions made to the other spouse's  
               separate property.  If the Legislature had intended to  
               give a spouse a right to reimbursement for separate  
               property contributions made to the other spouse's  
               separate property, the Legislature could have included  
               language to achieve this intent.  It did not.  [94  
               Cal.App.4th at 1147 (emphasis in original).]
           
          2.Concern regarding inconsistent policies created by bill  
            and potentially unjust results  

              a.   Reimbursment right created by bill inconsistent  
               with limited circumstances under which reimbursement  
               is currently permitted  

               The Family Law Section of the Los Angeles County Bar  
               Association comments:

                 As presently drafted, SB 1407 grants too broad a  
                 right of reimbursement and would appear, for  
                 example, to permit reimbursement for separate  
                 property contributions for such expenses as  
                 interest, maintenance, insurance and taxes, items  
                 for which reimbursement is not currently allowed  
                 under  Family Code  Section 2640.

                 If SB 1407 as presently drafted indeed grants such a  
                 broad reimbursement right, it goes too far beyond  
                 the definition of "contributions to the acquisition  
                 of property" currently set forth in  Family Code   
                 Section 2640(a) and would permit undeserved windfall  
                 reimbursements out of harmony with  Family Code   
                 Section 2640 and current case law.

               The Family Law Section of the Los Angeles County Bar  
               Association states that if the bill were amended to  
               limit the type of reimbursement permitted to be  
               consistent with Family Code Section 2640 and current  
               case law, it would "withdraw [its] present opposition"  
               and view SB 1407

                                                                       




          SB 1407 (Kuehl)
          PageE



                 . . . as a needed and appropriate logical extension  
                 of California's current "right of reimbursement" law  
                 as represented by  Family Code  Section 2640 and the  
                 relatively recent cases of  In re Marriage of Wolfe   
                 and  In re Marriage of Allen  . . . [holding the]  
                 community is entitled to reimbursements for  
                 community property funds used to make improvements  
                 on one spouse's separate property . . . .   
                 [Citations omitted.]

                 As a practical matter, SB 1407 if amended as here  
                 recommended would close a hole in the area of  
                 "reimbursements" that has somehow not been  
                 previously clearly addressed by either statute or  
                 case law, and it would be a worthy statutory fix  
                 enabling some divorcing party to save the expense of  
                 having to establish by litigation the very same  
                 "reimbursement" result statutorily granted by SB  
                 1407 amended as here recommended.

               SHOULD NOT THE BILL BE NARROWED, AS RECOMMENDED ABOVE?

              b.   Reimbursment right created by bill inconsistent  
               with statutory spousal support duty  

               When the Conference of Delegates of California Bar  
               Associations considered Resolution (8-05-2003),  
               identical (after amended) to SB 1407, the Bar  
               Association of Northern San Diego County stated as a  
               counterargument to the Resolution:

                 This resolution attempts to create a category of  
                 rights and liabilities distinct from those common to  
                 marriage and existing domestic partnership by  
                 hand-picking certain privileges from both bodies of  
                 law and deleting basic liabilities common to both,  
                 such as a support obligation.  Eliminating  
                 obligations would gut the domestic partnership laws  
                 and would leave the domestic partner with the least  
                 bargaining power unprotected.

               This comment appears to be related to the statutory  
               spousal support duty under Family Code Sections 4300  
               and 4301:  "Subject to this division [(Fam. Code Sec.  

                                                                       




          SB 1407 (Kuehl)
          PageF


               3500 et seq.)], a person shall support the other  
               person's spouse" [Fam. Code Sec. 4300]; and " . . . a  
               person shall support the person's spouse while they  
               are living together out of the separate property of  
               the person when there is no community property or  
               quasi-community property" [Fam. Code Sec. 4301].

               SB 1407 appears to create a right to reimbursement for  
               contributions from one spouse's separate property to  
               the other spouse's separate asset or debt in the case  
               when there is no community property or quasi-community  
               property that could pay for the other spouse's  
               separate asset or debt, despite the fact that Family  
               Code Section 4301 requires the expense from the one  
               spouse's separate property as an obligation and does  
               not create a right to reimbursement.

               (In contrast to Family Code Section 4301, Family Code  
               Section 914(b) (liability of a spouse's separate  
               property for "necessaries of life" debts of the other  
               spouse incurred during marriage) does not require the  
               exhaustion of the community estate before the  
               nondebtor spouse's separate property may be reached by  
               a third party creditor, and expressly permits  
               reimbursement for separate property funds used only to  
               the extent community or separate property of the  
               debtor spouse was available but not used.  Family Code  
               Section 920(c) provides that a right of reimbursement  
               provided by Part 3 (commencing with Section 900) is  
               limited to a three-year enforceability period, or less  
               if a dissolution occurs before the end of the  
               three-year period.  SB 1407 has no limitations  
               period.)

              c.   Hardships or potential inequities could result from  
               application of bill as written  

               The California Judges Association (CJA) orally  
               informed Committee staff of its opposition to the  
               bill, but as of Friday, April 23, 2004, no letter had  
               been received.

               Through a member judicial officer, CJA expressed  
               concern that expanding the right to reimbursement  
               beyond the circumstances presently permitted under the  

                                                                       




          SB 1407 (Kuehl)
          PageG


               case law and Family Code Section 2640 could be  
               inequitable and create hardship.  For example, in a  
               divorce involving no assets, only liabilities (which  
               is common), if early in the marriage husband used  
               separate property assets to pay pre-marriage consumer  
               debt of wife totaling $10,000, and the couple divorces  
               when both spouses are retired and living on limited  
               income, wife would owe to husband $10,000 in addition  
               to owing 50 percent of the community's debts.  Wife  
               could be burdened with the debt with no source of  
               income to repay husband.

               Family Code Section 2640 limits the separate property  
               reimbursement to amounts contributed to the  
               acquisition of property, and caps reimbursement at the  
               net value of the property at the time of division,  
               which ensures that there is a source for repayment of  
               the contribution and protects the community from  
               liability exceeding the net value of asset.

               California Judges Association proposes that if the  
               intent of the bill is to correct the problem stated in  
                Marriage of Cross  (which concerned husband's separate  
               property contribution for capital improvements to  
               wife's separate property house), Family Code Section  
               2640 should be extended:

               i.     only to allow reimbursement for payments made  
                 to reduce an encumbrance on the other spouse's  
                 separate property and capital improvements to the  
                 other spouse's separate property, but not payments  
                 made for taxes, interest, insurance or maintenance;  
                 <1> and

               ii.    in addition to the amount reimbursed being  
                 without interest or adjustment for change in  
                 monetary values as stated in Family Code Section  
                 2640(b) and SB 1407, reimbursement should only be  
                 available:

                  A.        if the asset to which contributions were  
                  ---------------------
               <1>       The amendments suggested by the Family Law  
               Section of the Los Angeles County Bar Association,  
               above, would address CJA's concern on this issue.


                                                                       




          SB 1407 (Kuehl)
          PageH


                    made is still part of the other spouse's separate  
                    property estate (in which case the amount  
                    reimbursed should not exceed the net value of the  
                    property at the time of the division), or 

                    B.          if the asset to which contributions  
                      were made is no longer part of the other  
                      spouse's separate property estate but the  
                      proceeds of the asset are now traceable to some  
                      other asset of the other spouse's separate  
                      property estate (in which case the amount  
                      reimbursed should not exceed the net value of  
                      that asset at the time of the division).

           1.Supporters assert difference in policies is appropriate  

            Supporters of SB 1407 acknowledge that the rule created  
            by SB 1407 for dealing with a separate property  
            contribution to the separate property of the other spouse  
            is different than existing rules governing a separate  
            property contribution to pay a community debt.   
            Supporters contend that limitations on reimbursement of  
            separate property of one spouse used to benefit the  
            community is due to the fact that the debts and  
            responsibilities of the community are also obligations of  
            that spouse and that, therefore, the spouse using  
            separate property for the benefit of the community is  
            receiving a direct partial benefit.  Supporters assert  
            that allowing 100 percent reimbursement of the separate  
            property for payment of a community debt would to some  
            extent result in unjust enrichment.

            Supporters offer that partial liability is not the case  
            when the separate property of one spouse is used for the  
            benefit of the separate property of the other spouse, and  
            states that 100 percent reimbursement in this  
            circumstance is appropriate because the spouse giving the  
            property receives no benefit, and the spouse receiving  
            the property will retain all the benefit after the  
            marriage ends.  Supporters offer the following example:   
            if husband owes $10,000 on a car that is his separate  
            property, and he wants to retain the car as his separate  
            property during the marriage, he will have to pay the  
            debt on the car with funds from some source other than  
            his wages and salary, such as funds from a gift or an  

                                                                       




          SB 1407 (Kuehl)
          PageI


            inheritance.  If wife uses funds from her separate  
            property to pay the $10,000 debt on the car, which will  
            still remain the separate property of husband because no  
            community property assets were used, at the time of  
            dissolution husband will not only have the car, but the  
            entire $10,000 left in some separate account.   
            Reimbursing 100 percent of the separate property of wife  
            leaves husband in the same position as if he had used his  
            own separate property to pay the $10,000 in the first  
            place, which he would have had to have done in order to  
            maintain the character of the car as his separate  
            property.  In fact, even if husband is required to  
            reimburse wife the entire $10,000, he is still in a  
            better position because he will keep any interest earned  
            on the $10,000 up to the time of the dissolution.   
            Supporters contend that for this reason, allowing for 100  
            percent reimbursement of separate property used to  
            benefit the separate property of the other is entirely  
            fair and reasonable.

          Support:   None Known

          Opposition:Los Angeles County Bar Association, Family Law  
                    Section (support if amended); California Judges  
                    Association



                                     HISTORY
           
          Source:  The State Bar of California, Family Law Section;  
                Conference of Delegates of California Bar  
                Associations; Sacramento County Bar Association

          Related Pending Legislation:  None Known

          Prior Legislation:  None Known
          
                                 **************