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In re Marriage of Buie

December 1, 2009

IN RE THE MARRIAGE OF TATIA C. BUIE AND WALTER NEIGHBORS.
TATIA C. BUIE, APPELLANT,
v.
WALTER NEIGHBORS, RESPONDENT.



APPEAL from a judgment of the Superior Court of San Diego County, Joseph P. Brannigan, Judge. Reversed. (Super. Ct. No. |DN133570).

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

CERTIFIED FOR PUBLICATION

Tatia C. Buie appeals from the family court's judgment on reserved issues in this marital dissolution action. Buie challenges the family court's ruling that a Porsche automobile that she purchased during the marriage with her separate property funds and gifted to her then- husband, Walter Neighbors, was transmuted to Neighbor's separate property by virtue of the gift.

As we will explain, we conclude that the family court erred in classifying the Porsche as Neighbor's separate property. Accordingly, we reverse that portion of the judgment and remand for further proceedings consistent with our opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

This appeal concerns the classification of a 2001 Porsche 996 as Neighbor's separate property, and we accordingly limit our discussion of the factual background to that issue.

Buie and Neighbors were married in 1999. During the marriage, Neighbors purchased the Porsche using a check drawn on Buie's bank account, which held funds derived from Buie's sale of her separate property residence. The purchase price for the Porsche was approximately $60,000. Neighbors apparently considered the Porsche to be a gift from Buie, as it was bought shortly before his birthday.

After conducting a trial on reserved issues, the family court ruled that the Porsche was a gift from Buie to Neighbors. Although the transmutation of community property to separate property generally requires an express declaration in writing (Fam. Code, § 852, subd. (a)),*fn1 the court ruled that under the exception set forth in section 852, subdivision (c) for gifts of "tangible articles of a personal nature" that are "not substantial in value taking into account the circumstances of the marriage," the Porsche had been transmuted to Neighbor's separate property.

Buie appeals, arguing that the family court erred in classifying the Porsche as Neighbor's separate property. She also contends that in the event we conclude that the family court erred in classifying the Porsche as Neighbor's separate property, she should be reimbursed under section 2640, subdivision (b) for the separate property funds used to purchase the Porsche on behalf of the community.*fn2

II. DISCUSSION

A. The Family Court Erred in Concluding That the Porsche Is Neighbor's Separate Property

Section 760 provides: "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." Under this basic principle, the default classification of the Porsche is community property, as it was acquired during the marriage.

The issue before us is whether the Porsche was transmuted from community property to Neighbor's separate property. The Family Code provides that married persons may "[t]ransmute community property to separate property of either spouse." (§ 850, subd. (a).)

However, under section 852, subdivision (a), "[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." An exception to the writing requirement exists for certain types of inter-spousal gifts. Section 852, subdivision (c) states: "This section does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage." Accordingly, only if a gift from a ...


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