Daily Development for Wednesday, December 22, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

JOINT TENANCY; SEVERANCE; MARITAL PROPERTY: Filing by one joint tenant/spouse of statutory declaration of severance is not a "transfer" of an interest in "property" of a "property interest" of the other joint tenant spouse, and consequently does not violate the standard injunction filed during California dissolution proceedings prohibiting "transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasicommunity, or separate . . . ."

Mitchell v. Mitchell, E023094, (Cal. App. 4th Dist. 12/20/99)

The court was faced with a bewildering array of interpretations of the interplay between joint tenancy concepts and community property concepts most of which are beyond the interest, not to say comprehension, of lawyers outside of the California family law elite. Suffice it to say that, during marriage, parties in California can have joint tenancy property and the survivorship operates when one spouse dies thus making the joint tenancy paramount to the community property characterization. Upon dissolution, however, California courts are more careful. A reading of the case is necessary to appreciate all the nuances of how the joint tenancy is treated, assuming that it is not severed.

Here, however, the husband, while a petition for dissolution of the marriage was pending, did take advantage of California's statutory provision permitting a joint tenant to sever simply by recording a notice of severance, without transferring any of the property to a third party. The husband then died before the family court could rule on the disposition of property interests. To prevent shenanigans by the parties to alter ownership just before property division, the California legislature provided for an injunction to issue in the form set forth in the caption above.

The decedent's son, who stood to get the father's share of the joint tenancy property, mustered a number of arguments relating to the probable intent of the legislature concerning the status of tenancy property in this circumstance. The court shot them all down except the last. It agreed that the filing of a statutory notice of severance was not a "transfer," since no third party received any interest by the filing. By more or less parallel reasoning, the court concluded that the filing was not a "disposing" of a property interest. The wife's survivorship interest, which clearly was terminated by the action, was not deemd to be "property." The court characterized it as a "mere expectancy."

Comment 1: The editor concurs in the result, but would have looked harder for another way to reach it. If the court could conclude that this semantic argument led to a logical conclusion regarding legislative intent, then couldn't it also have found some other grounds to discerning that intent?

Comment 2: The problem the editor has with the result is that, for many other purposes, we likely do want to regard the survivorship interest in a joint tenancy, exposed as it is to destruction by severance, a true interest in property. Is such an interest, for instance, entitled to due process protection and compensation for takings under the Fifth and Fourteenth Amendments? Not if its not "property."

Comment 3: Note also that the narrow ruling applies only to severance by filing of the statutory declaration. Severance by more traditional means by transfer of a major or minor interest to a third party, would still violate the injunction.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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