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In re Marriage of Dellaria

March 17, 2009; as modified April 2, 2009

IN RE THE MARRIAGE OF DAVID M. DELLARIA AND ELIZABETH L. BLICKMAN-DELLARIA.
DAVID M. DELLARIA, APPELLANT,
v.
ELIZABETH L. BLICKMAN, RESPONDENT.



(Marin County Super. Ct. No. FL004808). Hon. Verna A. Adams.

The opinion of the court was delivered by: Ruvolo, P.J.

CERTIFIED FOR PUBLICATION

I. INTRODUCTION

In this marital dissolution action between David Dellaria (David) and Elizabeth Blickman-Dellaria (now Elizabeth Blickman) (Elizabeth), David has filed this appeal challenging the trial court's division of the parties' community property.*fn1 The trial court found that after the parties had separated, they entered into a valid and enforceable oral agreement to divide the major assets in the marital estate. The court then adjudicated their community property rights in accordance with the parties' agreement, even though it resulted in an uneven distribution of property. It is noteworthy that the parties' agreement was never reduced to writing, nor was there an in-court stipulation by the parties to divide their assets in accordance with their oral agreement.

David argues that the trial court erred as a matter of law in making an uneven distribution of the parties' community property in accordance with their oral agreement. He points out that, according to Family Code section 2550, the court was statutorily mandated to order an equal division of community assets, "[e]xcept upon the written agreement of the parties, or oral stipulation of the parties in open court[.]" We agree with David that Family Code section 2550 renders the parties' post-separation oral agreement void and unenforceable; consequently, we reverse the judgment.

II. FACTS AND PROCEDURAL HISTORY

The parties were married on August 27, 1989. They have three children. David filed a petition for dissolution of marriage on September 22, 2000. The court found that the parties actually separated on December 31, 2001.

The extensive appellate record before us reflects that there exists a myriad of complex issues arising from the marital relationship, including issues related to child custody, child and spousal support, visitation, and the parties' community property rights. However, this appeal focuses on a single issue, which was the subject of a bifurcated trial. Relevant to this appeal, Elizabeth described the issue before the court as follows: "The bifurcated trial issue addressed herein is whether or not the parties entered into an enforceable oral agreement dividing their major community assets. Elizabeth contends that the parties entered into this agreement, fully performed this agreement, and are bound by this agreement."

On November 2, 2007, the trial court began taking evidence on this question. Elizabeth testified that she and David had started discussing the property division in late 2002, and they reached an oral agreement dividing their major community assets in March 2003.*fn2 She testified about the significant financial effects of the agreement as evidenced by the documentary evidence.

Briefly, the family home in San Rafael, California, which was held by David, was transferred solely to Elizabeth.

A second piece of real property in Novato, California, which was held in both parties' names, was transferred to David. A third piece of real estate in Homewood, California, and Moving Images, Inc., the community business, were already in David's name and were retained by him alone. Elizabeth testified that under the oral agreement, each party was to retain his or her retirement plans. David was to keep two vehicles and she was to keep one.

David denied that he had any discussions with Elizabeth in March 2003 regarding a settlement of their property rights. He attempted to provide a rational explanation, apart from the alleged oral agreement, why he had signed over the family home and the Wachovia accounts to Elizabeth, why he was given $217,562 in refinance money, and why he was given sole ownership to the property in Novato.

During closing argument, Elizabeth's attorney stated that the issues were " . . . whether the parties entered into a fully executed oral agreement dividing their property . . . " and ". . . are the property transfers that occurred between 2003 and 2005 enforceable property transmutations?" The attorney summarized Elizabeth's position "that all property has been divided, that judgment should be entered on the parties' fully performed agreement dividing their property, and that all property transfers were valid transmutations. . . ."

David's trial counsel questioned whether an oral agreement existed. He said: "There is no executed marital settlement agreement. There is no agreement of any kind executed by the parties that divide[s] the community property or recognize[s] the separate property estates of the respective parties. . . ." David's position, in essence, was that the parties' community ...


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