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In re Lund

May 21, 2009

IN RE MARRIAGE OF KATHRYN A. AND EARL E. LUND, JR.
KATHRYN A. LUND, APPELLANT,
v.
EARL E. LUND, JR., RESPONDENT.



Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Reversed. (Super. Ct. No. 04D001905)

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

CERTIFIED FOR PUBLICATION

OPINION

As part of their dissolution of marriage proceedings, appellant Kathryn A. Lund and respondent Earl E. Lund, Jr., contested whether Earl transmuted his separate real properties into community property by way of a written agreement executed in 2002.*fn1 The court below, conducting a bifurcated trial of this issue pursuant to California Rules of Court, rule 5.175, determined Earl had not transmuted his separate property and, even if he had, Kathryn did not meet her burden of establishing she had not unduly influenced Earl in the execution of the agreement at issue. We granted Kathryn's motion to appeal the court's interlocutory order (Cal. Rules of Court, rule 5.180(d)) and now reverse. Earl made "an express declaration" in writing of his unambiguous intention to transmute all of his separate property as of the date he executed the 2002 agreement. (Fam. Code § 852, subd. (a).)*fn2 The court erred in finding the agreement to be ambiguous and in finding Earl was unduly influenced. A valid transmutation of Earl's separate property occurred.

FACTS

Kathryn and Earl married in August 1990. Kathryn had one daughter from a previous marriage, Earl had a son and daughter from a previous marriage (both of whom Kathryn adopted), and the parties together had a son following their marriage. Kathryn petitioned for dissolution of marriage in March 2004, and Earl's response to the petition also included a request for dissolution of marriage.

The issue before us is whether a document executed by the parties on December 12, 2002 (entitled "Agreement to Establish Interest in Property of Earl E. Lund, Jr., and Anne K. Lund") effectively transmuted various real properties from the separate property of Earl to the community property of Earl and Kathryn. On that day, Kathryn spent approximately 20 minutes at a law firm reviewing and signing various documents (along with the aforementioned agreement, the "Last Will and Testament of Anne K. Lund" and "The Earl E. Lund, Jr. Trust"). She had not reviewed any of the documents before her arrival at the law office. Kathryn met Earl at the law office on his lunch hour; there is no testimony in the record regarding Earl's level of familiarity with or understanding of the documents at issue (Earl did not testify).

The parties disagree as to the meaning of the "Agreement to Establish Interest in Property," and further disagree as to whether the other documents executed on December 12, 2002 should play any role in the interpretation of the agreement at issue. We quote in detail below relevant provisions of the various documents signed by the parties on December 12, 2002.

Agreement to Establish Interest in Property of Earl E. Lund, Jr. and Anne K. Lund*fn3

"THIS AGREEMENT, made and entered into this 12 day of December 2002, by and between Earl E. Lund, Jr., of the County of Orange, State of California, hereinafter called "Husband", and Anne K. Lund,*fn4 of the County of Orange, State of California, hereinafter called "Wife".

"RECITALS

"A. It is the intention of the parties hereto, by this Agreement, to fix and establish their respective interests and rights in all property now owned by them or hereafter acquired by them, except as to property hereinafter acquired by gift, bequest, devise or descent, whether held in their names, as joint tenants, tenants in common, or otherwise for estate planning;

"B. The parties hereto are husband and wife, and have continuously maintained their legal residence in the State of California during their marriage; and

"C. At the date of marriage, Husband owned property, real or otherwise of substantial value and wife had assets of de minimus value; and

"D. The Husband, for estate planning purposes desires to convert said separate property into community property.

"NOW, THEREFORE, in order to evidence, confirm and ratify their agreement and intention it is agreed as follows:

"A. SEPARATE PROPERTY: The following properties are acknowledged to be the separate property of:

"1. Husband

" (a) 6014-6030 Gifford Avenue, Huntington Park, CA

" (b) 4601 E 58th Street, Maywood, CA

" (c) 218 Ogle Street, Costa Mesa, CA

" (d) 12 Wildwheat, Irvine, CA*fn5

"B. COMMUNITY PROPERTY

"1. All other of the*fn6 property, real and personal, of the parties hereto, whether title thereto is held in the names of one or the other of the parties or both of the parties as joint tenants or otherwise, is the community property of the parties ...


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