Estate of MacDonald

794 P.2d 911, 51 Cal. 3d 262, 272 Cal. Rptr. 153, 1990 Cal. LEXIS 3504

• Court: California Supreme Court
• Decided: August 9, 1990
• Docket: S012304
• Status: Published

Opinions

Opinion

PANELLI, J.

Civil Code section 5110.730, subdivision (a) (section 5110.730 (a)) provides: “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.”

In this case we are asked to decide what type of writing is necessary to satisfy the statute’s requirements. In our view, section 5110.730 (a) must be construed to preclude reference to extrinsic evidence in the proof of transmutations. Accordingly, we conclude a writing is not an ’’express declaration” for the purposes of section 5110.730 (a) unless it contains language which expressly states that a change in the characterization or ownership of the property is being made. Thus, we affirm the judgment of the Court of Appeal.

Facts and Proceedings Below

Decedent Margery M. MacDonald (Margery or decedent) married respondent Robert F. MacDonald (Robert) in 1973. Both had been married previously, and each had children by a previous spouse. Robert was president of R. F. MacDonald Company (the company), where he participated in a defined benefit pension plan.

In August 1984, Margery learned that she had terminal cancer, and she and Robert made plans to divide their property into separate estates. Wishing to leave her property to her own four children, Margery divided the couple’s jointly held stock, sold her half, and placed the proceeds in her separate account. The MacDonalds thereafter consulted with their personal accountant and attorney regarding the division of their jointly held real property. These properties were appraised and divided; Robert paid Margery $33,000 to equalize the division.

Robert was covered by a company defined benefit pension plan which came into existence on January 1, 1977. The designated beneficiary of Robert’s interest in the pension plan was a revocable living trust he had established in 1982. The terms of the trust left the bulk of the corpus to Robert’s children. In November, 1984 Robert turned 65 and his defined pension plan was terminated. On March 21, 1985, Robert received a disbursement of $266,557.90 from the plan. It is undisputed that Margery possessed a community property interest in the plan’s benefits.¹ The pension funds were not divided or otherwise accounted for at the time of the couple’s previous division of their jointly held assets. These community funds were deposited into IRA accounts at three separate financial institutions.

The IRA accounts were opened solely in Robert’s name, the designated beneficiary of each being the revocable living trust which had been designated as beneficiary of the pension plan. The three form documents prepared by the financial institutions for signature by IRA account holders, each entitled “Adoption Agreement and Designation of Beneficiary” (adoption agreements), provided space for the signature of a spouse not designated as the sole primary beneficiary to indicate consent to the designation.² Robert signed the adoption agreements, indicating his agreement to the terms of the IRA account agreements and designating his trust as beneficiary; Margery signed the consent portions of the adoption agreements (consent paragraphs).

Margery died on June 17, 1985, bequeathing the residue of her estate to her four children. Executrix Judith Bolton filed a petition to determine title to personal property (Prob. Code, § 851.5), seeking to establish decedent’s community property interest in the funds held in the IRA accounts. The trial court found that, in signing the consent paragraphs of the adoption agreements, decedent intended to waive any community property interest in the pension funds and to transmute her community property share of those funds into Robert’s separate property. The court denied Bolton’s petition, ruling that decedent had either waived her community property interest in the pension funds or, alternatively, transmuted it to Robert’s separate property.

The Court of Appeal reversed, holding that the adoption agreements did not satisfy section 5110.730 (a). (The court also declined to apply the “terminable interest rule” to the pension funds. Robert’s petition for review does not challenge the Court of Appeal’s opinion in this regard.) A dissenting justice argued that because decedent, in signing the consent paragraphs, had taken “specific, clear and final [action to] accomplish both [a] transfer and a subsequent transmutation[, t]he language and purpose of the statutory requirement were fully satisfied.”

We granted review to construe section 5110.73 x(a).

Discussion

It is undisputed that Margery possessed a community property interest in Robert’s pension funds at the time they were disbursed to him. However, in California, married persons may by agreement or transfer, with or without consideration, transmute community property to separate property of either spouse.³

In this case, the trial court made a factual finding that “[d]ecedent, in executing the Adoption Agreement[s] for the three IRA’s, intended to waive any community right she had in those IRA’s and in fact to transmute her share of that community property asset to the separate property of Respondent.” However, we defer to a trial court’s factual findings only when they are supported by substantial evidence. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429 [45 P.2d 183].)

Our close review of the record reveals that no substantial evidence supported the finding that Margery intended a transmutation.⁴ The Court of Appeal incorrectly stated that Robert presented his own testimony and that of decedent’s accountant as to decedent’s state of mind when she signed the adoption agreements. In fact, there is absolutely no record evidence relating to Margery’s intentions or state of mind when she signed the adoption agreements. The only testimony presented as to her state of mind during her estate planning activities relates to when she and her husband arranged an equal division of their jointly held real properties. The couple’s accountant testified that she did not assist them in the division of any other assets.

Even if the trial court’s findings as to Margery’s intent were supported by substantial evidence, however, they would not support a finding of transmutation in this case. The statute providing for transmutation by transfer is by its own terms “[sjubject to Sections 5110.720 to 5110.740, inclusive” (Civ. Code, § 5110.710), including, obviously, section 5110.730(a). Section 5110.730 (a) invalidates attempts to transmute real or personal property unless certain conditions are met. We must therefore determine whether Margery’s actions, whether or not they were intended to transfer her interest in the pension funds, were effective under section 5110.730 (a) to transmute those funds from community property to Robert’s separate property. We are of the opinion that they were not.⁵

Section 5110.730 (a) requires that a valid transmutation be made, not just in writing, but 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.” (§ 5110.730 (a), italics added.) There is no dispute that the consent paragraphs in the adoption agreements, and decedent’s signatures thereon, are “made in writing.” These writings are manifestly “made, joined in, consented to or accepted by the spouse whose interest in the property is adversely affected,” viz., decedent. Thus, the sole remaining issue to be decided is whether they constitute “an express declaration” for the purposes of section 5110.730 (a).

It is a fundamental rule of statutory construction that a court “should ascertain the intent of the Legislature so as to effectuate the purpose of the law.” (Select Base Materials, Inc. v. Board of Equal. (1959) 51 Cal.2d 640, 645 [335 P.2d 672].) In determining such intent “[t]he court turns first to the words themselves for the answer.” (People v. Knowles (1950) 35 Cal.2d 175, 182 [217 P.2d 1].)

It is not immediately evident from a reading of section 5110.730 (a) what is meant by the phrase “an express declaration.” Examination of the words of the statute and their arrangement reveals only that the “express declaration” called for is to be one “by” which “[a] transmutation of real or personal property” is “made.” The statute does not state what words such an “express declaration” must include, what information it must convey, or even what topics it should discuss.

Since the words of section 5110.730 (a) themselves, including the phrase “an express declaration,” are unclear and ambiguous, it is necessary to resort to other indicia of the intent of the Legislature to determine what meaning the statute should be given. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299]; In re Lance W. (1985) 37 Cal.3d 873, 886 [210 Cal.Rptr. 631, 694 P.2d 744].) In doing so, we consider the historical circumstances of the statute’s enactment, as well as its legislative history. (California Mfrs. Assn. v. Public Utilities Com. (1979) 24 Cal.3d 836, 844 [157 Cal.Rptr. 676, 598 P.2d 836].)

Section 5110.730 (a) was adopted in 1984. (Stats. 1984, ch. 1733, § 3, p. 6302.) Both parties refer to a 1983 report of the California Law Revision Commission (Commission) to ascertain the intent of the Legislature in enacting section 5110.730 (a). In recommending that the Legislature enact that statute, the Commission described “[sjection 5110.730 [as] imposing] formalities on interspousal transmutations for the purpose of increasing certainty in the determination whether a transmutation has in fact occurred.” (Recommendation Relating to Marital Property Presumptions and Transmutations, 17 Cal. Law Revision Com. Rep. (1984) (Commission report) pp. 224-225.) The Commission report goes on to state that section 5110.730 overrules existing case law that permitted oral transmutation of personal property. (Commission report, supra, at pp. 224-225.)

In its discussion of the law then governing transmutations (Commission report, supra, at pp. 213-215), the Commission observed that “[u]nder California law it is quite easy for spouses to transmute both real and personal property; a transmutation can be found based on oral statements or implications from the conduct of the spouses.” {Id., at p. 213.)

The Commission further observed that “the rule of easy transmutation has also generated extensive litigation in dissolution proceedings. It encourages a spouse, after the marriage has ended, to transform a passing comment into an ‘agreement’ or even to commit perjury by manufacturing an oral or implied transmutation.” (Commission report, supra, at p. 214.) The Commission concluded its discussion of transmutation law by saying that “California law should continue to recognize informal transmutations for certain personal property gifts between the spouses, but should require a writing for a transmutation of real property or other personal property.” {Ibid.) Unfortunately, the Commission did not explicitly expand upon the question of what such a writing should be required to contain, except to warn that “[t]he requirement of a writing should not be satisfied by a statement in a married person’s will of the community character of the property, until the person’s death.” {Ibid.) The Commission stated only that its recommendations would be effectuated by the enactment of certain measures, including section 5110.730 (a). (Commission report, supra, at p. 217.)

It thus appears from an examination of the Commission report that section 5110.730 (a) was intended to remedy problems which arose when courts found transmutations on the basis of evidence the Legislature considered unreliable. To remedy these problems the Legislature decided that proof of transmutation should henceforth be in writing, and therefore enacted the writing requirement of section 5110.730 (a).

There is no question that the Legislature intended, by enacting section 5110.730 (a), to invalidate all solely oral transmutations. (Commission report, supra, at pp. 224-225.) By definition, any writing requirement would accomplish this limited goal. It is equally clear, however, that the Legislature intended that section 5110.730 (a) would invalidate some transmutations which, under then-prevailing case law, would have been upheld on the basis of evidence other than oral statements. (Commission report, supra, at p. 214 [“ . . . easy transmutation . . . encourages a spouse ... to commit perjury by manufacturing an oral or implied transmutation . . . .” (Italics added.)].)

In our view, the Legislature cannot have intended that any signed writing whatsoever by the adversely affected spouse would suffice to meet the requirements of section 5110.730 (a). First, to so construe that statute would render mere surplusage all the language following the words “unless made in writing,” including the phrase “an express declaration.” A construction rendering some words surplusage is to be avoided. (People v. Black (1982) 32 Cal.3d 1, 5 [184 Cal.Rptr. 454, 648 P.2d 104]; Watkins v. Real Estate Commissioner (1960) 182 Cal.App.2d 397, 400 [6 Cal.Rptr. 191].) Second, as respondent acknowledges, some of the “easy transmutation” cases which section 5110.730 was intended to overturn involved nonoral conduct or signed writings.⁶ Therefore, it seems reasonable to assume that the Legislature intended section 5110.730 (a) to invalidate some claimed transmutations even though some form of writing existed.

Thus, to construe section 5110.730 (a) so that it does not contain mere surplusage, as well as to effect legislative intent, we must fashion a test by which courts may judge the adequacy of particular writings for section 5110.730 (a) purposes.⁷

We have previously construed a statutory writing requirement similar to section 5110.730 (a). In doing so we elucidated a principle of construction which is of fundamental importance for this case. In California Trust Co. v. Bennett (1949) 33 Cal.2d 694 [204 P.2d 324] (Bennett), we concluded that a rental agreement respecting a bank safe-deposit box, printed on a card and signed by a husband and wife, which by its terms related only to rights of possession and access, did not satisfy a writing requirement for the creation of joint tenancies found in Civil Code section 683 (section 683).

Section 683 defines a joint tenancy and states the methods by which a joint tenancy may be created. Pursuant to section 683, a joint tenancy may be created by certain transfers, including one “from a husband and wife, when holding title as community property or otherwise to themselves and others or to one of them and to another or others, when expressly declared in the transfer to be a joint tenancy .... A joint tenancy in personal property may be created by a written transfer, instrument or agreement.” (Civ. Code, § 683, subd. (a), italics added.) We held in Bennett that section 683 is mandatory, and that under it joint tenancies can be created only by a writing. (Bennett, supra, 33 Cal.2d at p. 697.)

More importantly, the defendant in Bennett contended that evidence of the decedent’s declarations and the circumstances surrounding the renting of the safe-deposit box should be admitted to interpret the rental card, and that, when interpreted with this extrinsic evidence, the card was sufficient to satisfy the statutory requirement of a writing. (Bennett, supra, 33 Cal.2d at p. 699.)

We found that the rental agreement card in Bennett was “clear” and did “not purport to affect the title to the contents of the box,” because it used neither the words “title” nor “ownership,” but expressly referred only to rights of possession and access. We further observed that “it is well settled that where a statute requires the formality of a writing for the creation of an interest in property, it must contain words indicating an intent to transfer such interest, and in the absence of words which could be interpreted to show such intent, no parol evidence will be admitted.” (Bennett, supra, 33 Cal.2d at p. 699.) Accordingly, we refused to allow parol evidence to supplement the words of the written agreement on the card so as to satisfy the writing requirement of section 683. (33 Cal.2d at pp. 698-699.)

Thus, just as section 5110.730 (a) requires an “express declaration” for a valid transmutation, section 683 requires that the creation of a joint tenancy be “expressly declared.” Unlike section 5110.730 (a), however, section 683 explains what the express declaration it calls for must include. Specifically, section 683 requires that an express declaration creating a joint tenancy must, “in the transfer,” declare the interest being transferred “to be a joint tenancy.” (Civ. Code, § 683, subd. (a).) Section 683 thus ensures that a court need not look beyond the face of a proffered writing to determine whether its writer intended to create a joint tenancy. (Bennett, supra, 33 Cal.2d at p. 699.)

Following the approach elucidated in Bennett, we conclude that a writing signed by the adversely affected spouse is not an “express declaration” for the purposes of section 5110.730 (a) unless it contains language which expressly states that the characterization or ownership of the property is being changed.

Our conclusion honors each of the principles of statutory construction we have discussed. First, it interprets “express declaration,” so as to give significance to all the words of section 5110.730 (a). Second, it effects the intent of the Legislature to create a writing requirement which enables courts to validate transmutations without resort to extrinsic evidence and, thus, without encouraging perjury and the proliferation of litigation. Third, it is consistent with our interpretation of the similar requirement in section 683.⁸

We must now consider whether the writing involved in this case satisfies section 5110.730 (a). Decedent signed paragraphs consenting to the designation of a beneficiary on three standard bank-form adoption agreements. These paragraphs read in full: “If participant’s spouse is not designated as the sole primary beneficiary, spouse must sign consent. Consent of spouse: Being the participant’s spouse, I hereby consent to the above designation. [Signature.]”

Obviously, the consent paragraphs contain no language which characterizes the property assertedly being transmuted, viz., the pension funds which had been deposited in the account. It is not possible to tell from the face of the consent paragraphs, or even from the face of the adoption agreements as a whole, whether decedent was aware that the legal effect of her signature might be to alter the character or ownership of her interest in the pension funds. There is certainly no language in the consent paragraphs-, or the adoption agreements as a whole, expressly stating that decedent was effecting a change in the character or ownership of her interest. Thus, we agree with the Court of Appeal that these writings fail to satisfy the “express declaration” requirement of section 5110.730 (a).

We do not hold that section 5110.730 (a) requires use of the term “transmutation” or any other particular locution. Although a writing sufficient to satisfy the “express declaration” requirement of section 5110.730 (a) might very well contain the words “transmutation,” ’’community property,” or “separate property,” it need not. For example, the paragraph signed by decedent here would have been sufficient if it had included an additional sentence reading: “I give to the account holder any interest I have in the funds deposited in this account.”⁹

We are aware that section 5110.730 (a), construed as we have construed it today, may preclude the finding of a transmutation in some cases, where some extrinsic evidence of an intent to transmute exists. But, as previously discussed, it is just such reliance on extrinsic evidence for the proof of transmutations which the Legislature intended to eliminate in enacting the writing requirement of section 5110.730 (a).

Manifestly, there are policy considerations weighing both in favor of and against any type of transmutation proof requirement. On the one hand, honoring the intentions of the parties involved in a purported transmutation may suggest that weight should be given to any indication of these intentions. On the other hand, the desirability of assuring that a spouse’s community property entitlements are not improperly undermined, as well as concern for judicial economy and efficiency, support somewhat more restrictive proof requirements. The Legislature, in enacting section 5110.730 (a), apparently thought it unwise to rely on some kinds of evidence to effect transmutations. It is not for us to question that legislative conclusion. Accordingly, the judgment of the Court of Appeal is affirmed.

Lucas, C. J., Broussard, J., Eagleson, J., and Kennard, J., concurred.

1 The dissent erroneously states (post, at p. 281) that the pension funds “ . . . were essentially the product of Robert’s 35 years in business, most of which preceded his marriage to decedent. . . .” Actually, as noted above, the pension fund did not even come into existence until 1977, more than three years after Robert married decedent. Thus all payments into the plan occurred during the marriage of the parties.

2 The adoption agreements are one page long. They provide space for the entry of “General Information” (where Robert entered his name, address, and other personal data), for “Designation of Beneficiary,” for “Consent of Spouse,” for “General Provisions” (relating to payout procedures upon the participant’s death) and for “Adoption of Plan” (which Robert signed, agreeing to participate in the particular financial institutions’ retirement account plans). The consent portions of the adoption agreements each provided in full: “If participant’s spouse is not designated as the sole primary beneficiary, spouse must sign consent. Consent of Spouse: Being the participant’s spouse, I hereby consent to the above designation.”

3 Civil Code section 5110.710 provides: “Subject to Sections 5110.720 to 5110.740, inclusive, married persons may by agreement or transfer, with or without consideration, do any of the following: [10(a) Transmute community property to separate property of either spouse. [j|](b) Transmute separate property of either spouse to community property. [10(c) Transmute separate property of one spouse to separate property of the other spouse.”

4 No substantial evidence supports several other “factual findings” which the trial court incorporated into its judgment. The record contains no substantial evidence that Margery was “aware of the financial decisions being made in [her husband’s] business, particularly in terms of the pension plan itself.” The plan was stipulated to have been established in 1977, before Margery became active in her husband’s business. (She was bookkeeper in the years 1978-1980.) The record does not support the conclusion she was aware of its terms; at best she knew of its existence. Nor is there any evidence that she was “aware of the terms of the Living Trust [established by Robert MacDonald and made by him the beneficiary of his pension plan when the plan was established, and later named by him beneficiary of the IRA accounts].” The living trust was established in 1982, when Margery was no longer bookkeeper for R. F. MacDonald Company. In short, the record discloses no evidence that Margery even knew she had a community property interest in the pension plan proceeds.

5 We decline to treat respondent’s IRA accounts as decedent’s will substitute, as urged by respondent. Respondent has argued that Civil Code section 5110.730 does not apply to testamentary dispositions and/or to dispositions made by will substitutes. He further alleges that the IRA consent forms signed by Margery were a will substitute. We disagree. The record contains no substantial evidence that Margery or Robert intended that the IRA accounts would be so regarded. Moreover, consideration of respondent’s will-substitute theory, advanced for the first time in this court, would be contrary to our established policy. (See Cal. Rules of Court, rule 29(b).)

6 For a detailed analysis of existing transmutation law, the Commission referred the Legislature to Reppy, Debt Collection from Married Californians: Problems Caused by Transmutations, Single-Spouse Management, and Invalid Marriage (1981) 18 San Diego L.Rev. 143 (Reppy article). (Commission report, supra, at p. 213, fn. 20.) Examples of objectionable transmutation cases discussed in the Reppy article include Nevins v. Nevins (1954) 129 Cal.App.2d 150 [276 P.2d 655], There, a husband filed his separate federal income tax return (which at that time called for him to report half the community income) without including half of his wife’s income. Since he was aware of the existence of his wife’s income, the court found that the husband’s signed tax return, which did not include it, was highly probative of the husband having transmuted his community property interest in his wife’s income to his wife’s separate property. Another example discussed in the Reppy article is In re Marriage of Lucas (1980) 27 Cal.3d 808 [166 Cal.Rptr. 853, 614 P.2d 285], There, a motor home purchased by a couple during marriage was declared to have been transmuted to the wife’s separate property when a purchase contract was made out in the husband’s name only, but title and registration were made out in the wife’s name only. (27 Cal.3d at pp. 817-818; Reppy article, supra, at pp. 156-157, fns. 48-53.) See also Pacific Mut. Life Ins. Co. v. Cleverdon (1940) 16 Cal.2d 788, 791 [108 P.2d 405] [transmutation of wife’s community earnings when husband “borrowed” and repaid some of them] and O’Connor v. Traveler’s Ins. Co. (1959) 169 Cal.App.2d 763 [337 P.2d 893] [transmutation of wife’s community earnings when husband made no objection to her giving some of them to her son], both discussed in the Reppy article.

7 The only reported California decision to consider the adequacy of a signed writing to meet the requirements of section 5110.730 (a) concluded that the writing in question was not sufficient. (Estate of Blair (1988) 199 Cal.App.3d 161, 167-168 [244 Cal.Rptr. 627].) In Blair, a surviving husband disputed a probate order that he pay his deceased wife’s estate one-half of the net proceeds from the sale of the family residence, which had been purchased by the couple during their marriage and held in joint tenancy. The probate court had found that there had been a transmutation of the property from joint tenancy to community property “as a result of an agreement or understanding” between the spouses during the course of their subsequent separation. The agreement was said to consist in the wife having listed the residence as community property in her petition for legal separation and the husband having signed a deposition in the dissolution proceeding which said that he “believed” the residence was community property. The Court of Appeal held that the husband’s deposition was not sufficient to satisfy Civil Code section 5110.730 because, although in writing, it did “not necessarily show the parties’ separate agreement that the jointly held property was actually community property.” (Estate of Blair, supra, 199 Cal.App.3d at pp. 165-168.)

8 Following the filing of his petition for review, Robert submitted a letter to court asking to amend his petition for review to include the issue of whether the adoption agreements constituted a valid written consent to the disposal of a community property asset under Civil Code section 5125, subdivision (b). Apparently, respondent’s request amounted to a reformulation of his alternative argument in the Court of Appeal that decedent “waived” her interest in the IRA funds. The Court of Appeal found this argument to be “merely another means of circumventing the requirements of section 5110.730 . . . allowing transmutations by oral agreement or conduct.” We agree with the view of the Court of Appeal and, for the same reasons, reject Robert’s waiver contention. In any event, Robert’s letter seeking to amend his petition was never filed or approved by the court and, accordingly, our grant of review was limited to the issue of construing section 5110.730 (a).

9 Married persons who decide to open IRA accounts with community funds, of course, may or may not, in individual cases, wish to transmúte those funds. Thus we do not assume that drafters of IRA account adoption agreements will want to revise their standard forms so that a spouse’s signature consenting to a designation of beneficiary will always effect a transmutation.