Metropolitan News-Enterprise


Friday, May 11, 2018


Page 1


In Marital Dissolution Case:

Unequal Split of Appreciation in Asset Partially Bought With Separate Funds Improper—C.A.


By a MetNews Staff Writer


The Fourth District Court of Appeal has held that in a dissolution of marriage action, the court must, in apportioning an asset that was purchased after marriage at least in part with separate funds, treat the appreciation in the value of the property as a community asset, to be divided equally, in the absence of written evidence of a contrary intent of the parties.

Riverside Superior Court Commissioner Mickie Reed did not do that in the case of Gary L. Chefetz’s action to dissolve his marriage to Rodney Walker. Rather, Reed found that Chefetz, who contributed a greater sum in separate funds to the downpayment on a home, had a separate property interest in the amount of $32,745 based on the appreciation and that Walker had such an interest in the amount of $6,705.88.

That, Justice Cynthia Aaron of Div. One said in her opinion on Tuesday reversing a portion of the judgment, contravenes Family Law Code §2581, which provides:

“For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form…is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following:

“(a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property.

“(b) Proof that the parties have made a written agreement that the property is separate property.”

Presumption Not Rebutted

Agreeing with Walker that he was shortchanged, Aaron wrote:

“[T]he trial court did not find that the joint title community property presumption contained in section 2581 was rebutted. There is nothing in the trial court’s statement of decision that suggests that the court made such a finding. On the contrary, the court expressly found both that the parties acquired the property as joint tenants during the marriage and that the property was community property.

“Nor is there any evidence in the record of a writing sufficient to rebut the presumption set forth in section 2581….

“In the absence of the rebuttal of the section 2581 presumption, the court was required to find that the marital residence was community property.”

Under Family Law Code 2640, she said, Chefetz and Walker was each entitled to reimbursement of his separate-property contribution but reimbursement pursuant to that section “may not include any amounts attributable to appreciation.”

Other Relief Sought

While Chefetz filed in Riverside Superior Court for dissolution of the couple’s 2009 marriage in Connecticut, Walker then additionally sought termination of their 2004 domestic partnership entered into in New Jersey. He relied upon Family Law Code §299.2 which provides:

“A legal union of two persons of the same sex, other than a marriage, that was validly formed in another jurisdiction, and that is substantially equivalent to a domestic partnership as defined in this part, shall be recognized as a valid domestic partnership in this state regardless of whether it bears the name domestic partnership.”

Aaron declared that “the 2004 New Jersey domestic partnership is not ‘substantially equivalent’…to a California domestic partnership for purposes of dissolution” because “the New Jersey domestic partnership does not confer substantively similar legal rights and benefits to a domestic partnership formed under the Act.”

She noted that Walker “not contend that New Jersey law afforded domestic partners comparable rights with respect to property division, debt liability, or partner support as California law provides domestic partners,” adding:

“Even a cursory examination of the two statutory schemes makes clear that the legal rights conferred by the domestic partnership laws differ dramatically in the two states.”

Aaron’s opinion is denominated “In re the Marriage of G.C. and R.W.

The case was brought by Chefetz in Riverside Superior Court on Oct. 15, 2012, utilizing the true names of the parties, was litigated using their untruncated names, was appealed to the Fourth District’s Div. Two as “In re the Marriage of Gary Chefetz and Rodney Walker,” was briefed using that caption, and was, in a Nov. 8, 2017 California Supreme Court order, rerouted to the San Diego-based Div. One with the caption unaltered.

In a footnote, Aaron explained:

“We refer to the parties by their initials, in order to attempt to provide them with some degree of privacy with respect to personal medical information that is discussed in this opinion.”

Timothy L. Ewanyshyn of La Quinta Law Group, who represented Walker, said yesterday:

“The decision to identify the parties by their initials was made by the Justices of the Court of Appeal, to the best of my knowledge.”

In a portion of the opinion that is not certified for publication, the court affirms the denial of permanent spousal support to Walker, who challenged Reed’s determination that he was in “good health” and could work a full 40-hour week.

The personal medical information set forth in the opinion is that Walker “is HIV positive” but does not have AIDS “and takes a cocktail of medications; suffers from deep vein thrombosis, blood clotting problems, and a shoulder injury; and has been on short-term disability previously due to internal bleeding.”

It quotes Walker as saying, in testimony, that his health is “pretty good” and that he is “doing really well with that cocktail of medications” for treatment of HIV.

“[W]e conclude that the trial court did not abuse its discretion in finding that R.W. was in ‘good health’ in declining to award him permanent spousal support,” Aaron said.

The case is P073119.


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