Marriage of Papazian

Filed 6/30/06 Marriage of Papazian CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Franklin P. Jones, Judge.

Geragos & Geragos; Esner, Chang & Ellis, Gregory R. Ellis; and Karen L. Mathes for Appellant.

Julia Ann Brungess for Respondent.

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Robert Papazian appeals to this court for the second time in the dissolution of his marriage to Mary Lee Papazian.^[1] In our first opinion (Papazian v. Papazian (June 24, 2003, F037053) [nonpub. opn.]), we remanded the matter to the trial court to determine if an otherwise valid transmutation agreement signed by Mary was the product of undue influence exerted by Robert. The trial court concluded it was and found the transmutation agreement invalid.

The issue in this appeal is whether substantial evidence supported the trial court's orders. We conclude there was not substantial evidence of undue influence and reverse the order of the trial court. This resolution renders several other issues related to the property moot.

FACTUAL AND PROCEDURAL SUMMARY

Robert and Mary were married in 1982. Robert filed a petition for dissolution in 1989. Robert and Mary reconciled and separated on several occasions before separating for the final time on July 15, 1995. A status only judgment of dissolution was filed in December 1997. Over the next two years the trial court took evidence at numerous hearings and resolved numerous issues. The trial court issued a proposed statement of decision resolving all outstanding issues in May 2000 and issued its final statement of decision and order in September of that year. Both parties appealed.

The main issues in the first appeal involved a 38-acre parcel of property acquired during the marriage on which a residence was built (the Copper property). In our initial opinion, we upheld the trial court's conclusion that the Copper property was community property, despite the existence of an antenuptial agreement and that it was acquired with Robert's separate funds. We concluded Robert failed to overcome the presumption that the property was community property since title to the property was held by Robert and Mary as joint tenants. (In re Marriage of Lucas (1980) 27 Cal.3d 808, 812-815.)^[2]

We also concluded in our original opinion that a conditional transmutation Mary executed on November 27, 1990, that transferred Mary's interest in the Copper property to Robert, was effective if it was not the product of undue influence. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 27.) Because there were no findings on the issue, we remanded the matter to permit the trial court to determine in the first instance if Robert could overcome the presumption that the agreement was the product of undue influence. Since there was no final determination whether the Copper property was community property or Robert's separate property, we did not decide several issues related to the Copper property.

The testimony about the transmutation agreement obtained before the first appeal was fairly sparse. The parties completed submitting evidence on the reserved issues on October 9, 1998. On October 26, 1998, Robert submitted an ex parte application to reopen his case for the purpose of introducing the transmutation agreement. In his declaration Robert explained he discovered the document in his safe deposit box on October 20, 1998. The document was in an envelope and stored with his will. He had assumed the document was missing, as Mary had removed many documents related to the divorce from his home after one or more of their reconciliations.

Robert also described the circumstances surrounding the creation of the transmutation agreement. Robert filed a petition for dissolution on April 30, 1989. The petition was not served, however, until November 2, 1990. Mary filed a response to the petition and presented to the trial court an ex parte application on November 8, 1990. After meeting with both attorneys on the ex parte application, the trial court issued mutual restraining orders and other orders intended to separate some of the community property. For instance, Mary was given temporary sole possession and control of a Porsche 928, with Robert making all payments related to the car, and Robert was given temporary possession and control of a Ford pickup truck. The parties also were ordered to cooperate in closing various credit accounts in Mary's name to facilitate Robert's attempt to secure a loan.

Shortly thereafter both parties filed motions. Robert filed a motion to bifurcate the trial to permit the trial court to determine the validity of the antenuptial agreement first. Mary filed a motion for temporary spousal support and attorney fees. Both hearings were scheduled for November 28, 1990.

On November 27, 1990, Mary came to Robert's house in the evening and asked Robert to reconcile. They discussed Mary's assertion in her filings with the trial court that the antenuptial agreement was not valid and her claim the Copper property was community property because title was held in joint tenancy.^[3] Robert reminded Mary they orally had agreed that since Robert's separate property was used to acquire the Copper property, and his separate funds were used to make improvements on the property, the Copper property would be his separate property under the antenuptial agreement. Robert also told Mary he would not continue to invest his separate property funds to complete the house on the Copper property if she was going to claim it was community property. Mary said she would not pursue any interest in the real property held in joint tenancy. Robert told Mary he did not believe her and if she wanted to reconcile to put her statement in writing. Mary agreed and wrote the following note:

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