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Kircher v. Kircher

November 4, 2010

BONNIE KIRCHER, PLAINTIFF AND RESPONDENT,
v.
ADELAIDE KIRCHER ET AL., DEFENDANT AND APPELLANT.



(Marin County Super. Ct. No. CV082412) Trial Judge: Hon. Verna A. Adams, Judge

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

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Defendant and appellant Adelaide Kircher appeals the judgment entered after a bench trial.*fn2 Adelaide contends: (1) The trial court erred by concluding that a marital settlement agreement (MSA) between Adelaide's deceased husband, Vincent Kircher, and his former wife, plaintiff Bonnie Kircher, which was executed in June 1976 and modified in 1987 by stipulation of the parties,*fn3 waived the provisions of Family Code, section 4337 and provided for continuing support payments to Bonnie after Vincent's death; (2) the trial court erred by concluding that Adelaide is personally liable to Bonnie for such continuing support payments in an amount not exceeding the fair market value of real property held by Vincent and Adelaide as joint tenants at the time of Vincent's death, pursuant to sections 13550-13551 of the Probate Code.*fn4

We conclude that the modified MSA waived the provisions of Family Code section 4337 and provided for continuing support payments to Bonnie after Vincent's death. Moreover, we find no error in the trial court's legal conclusion that the property held in joint tenancy falls within the ambit of section 13551. Accordingly, the judgment is affirmed.

FACTS

The facts framing the legal issues presented are undisputed. Bonnie and Vincent married on December 10, 1960 and separated on February 13, 1970. The couple had no children during the marriage.*fn5 In June 1976, Vincent's attorney prepared the MSA between Bonnie and Vincent. The MSA states that "[t]he purpose of this Agreement is to make a final and complete settlement of all rights and obligations between [Bonnie and Vincent], including [their] respective property rights and [their] rights and obligations concerning the support of wife." Under the terms of the MSA, husband agreed to pay wife $700 per month in support payments "terminating upon the death of either the husband or the wife or the remarriage of wife." At the time of the dissolution of the marriage in 1976 Bonnie was 53 years old.

Further, the MSA states: "It is our intention to effect an equal division of our community property listed in Exhibit 'B.' Because of the nature of husband's business operating primarily leased hotels, the division is not possible in kind. Husband will pay the substituted asset out of the revenue from the community property retained by him. [¶] . . . [¶] Husband agrees that . . . wife shall receive the community property described in 'Exhibit C.' [¶] Wife agrees that . . . husband shall receive the community property described in Exhibit 'D.' " The community property assigned to Bonnie in Exhibit 'C' includes a house in Millbrae, California, complete with furniture and furnishings, a one-half interest in real property at 440 Eddy Street in San Francisco, and the principal sum of $124,000 payable in monthly installments of $1,100. The community property assigned to Vincent under Exhibit 'D' of the MSA includes two San Francisco properties, a hotel at 410 Eddy Street and an apartment block at 640 Eddy Street, as well as a 50 percent interest in six hotel and apartment block leaseholds in San Francisco (the other 50 percent owned by a third party) and the proceeds of several life insurance policies. Under the MSA, Vincent also agreed to leave by will to Bonnie his undivided one-half interest in 440 Eddy Street.

In March 1987, Vincent and Bonnie jointly filed a "Stipulation and Order Modifying Interlocutory Judgment of Dissolution of Marriage" (1987 Stipulation). The 1987 Stipulation contains several recitals the first of which acknowledges that Bonnie has raised issues regarding the propriety and equity of the division of community property set forth in the MSA. Further recitals state that Vincent has met the support obligations set forth in the MSA, denies any inequity or impropriety of the division of community property under the MSA, and "continues to have an abiding and sincere concern for [Bonnie's] well-being." The 1987 Stipulation also revised the support obligations under the MSA, in return for which Bonnie waived "once and for all any rights, causes of action, claims, title or interest in any of the property of whatsoever character and/or description set forth" in the MSA. Under the terms of the 1987 Stipulation, Vincent agreed to pay Bonnie "$2,000 per month commencing February 1, 1987, as and for spousal support, and continuing with monthly installments thereafter "until the death of [Bonnie] or until the remarriage of [Bonnie] or proof that [Bonnie] has lived with another person in a marital-like relationship for thirty or more consecutive days." In addition, Vincent agreed to purchase or lease a new vehicle for Bonnie at least every five years and to maintain health insurance for her benefit, both obligations to continue "until the death of [Bonnie], her remarriage, or proof that [Bonnie] has lived with another person in a marital-like relationship for thirty or more consecutive days."

In July 1998, following the execution of the modified MSA, Vincent married Adelaide. They remained married until Vincent's death in January 2005. Vincent executed his last will and testament on November 11, 2004. Under the provisions of the will, Vincent left to Adelaide, among other things, a property at 193 Oak Drive, San Rafael, his interest in the real property known as the Women's Hotel at 642 Jones Street in San Francisco, together with any other real property and leasehold interests that he owned at the time of his death.

Sometime during his marriage to Adelaide, but prior to his death, Vincent transferred title in three real properties, namely 193 Oak Drive, San Rafael, 642 Jones Street, San Francisco and 982 Post Street in San Francisco, to himself and Adelaide as joint tenants.*fn6 After Vincent died, Adelaide sold the Post Street property for $5 million and received from the escrow of the sale the sum of $3,874,994.33. Adelaide also sold the Jones Street property for $4,250,000 and received proceeds from the sale in the amount of $2,925,811.13.

While Vincent was alive, he met all the support payments to Bonnie required under the modified MSA. After Vincent's death in January 2005, Bonnie filed a creditor's claim against Vincent's estate in probate court on July 11, 2005, asserting a claim for past and future obligations under the modified MSA. During this time, Adelaide continued to make support payments to Bonnie as provided in the modified MSA. Adelaide terminated monthly support payments to Bonnie in April 2008, but continued to pay for Bonnie's health insurance.

PROCEDURAL BACKGROUND

On May 16, 2008, Bonnie filed a complaint against Adelaide personally and in her capacity as the Executor of the Will of Vincent Kircher, alleging that Adelaide is personally liable for Vincent's debts under section 13550-13552 and seeking damages and attorney fees for breach of the terms of the modified MSA. On October 7, 2008, Bonnie filed a First Amended Complaint (FAC) adding a claim for declaratory relief which sought a declaration that Adelaide, both individually and as the Executor of Vincent's estate, was obligated to continue to comply with the terms of the modified MSA.

Thereafter, Adelaide filed a "Motion for Determination That [Bonnie] has no Right to Demand Payment out of Properties Held by [Adelaide] and Vincent Kircher in Joint Tenancy When Vincent Died." In her motion, Adelaide argued that Bonnie cannot enforce the modified MSA's support obligations against the real properties that she and Vincent held in joint tenancy because under settled law a surviving joint tenant takes the property free of creditors' claims. Bonnie, in her opposition, asserted that she did not seek a judgment lien upon the joint tenancy properties which Adelaide sold; rather she sought to ...


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