Filed 6/3/20 Marriage of Matheson & Armour CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re the Marriage of BRYAN MATHESON and KYMI ARMOUR.

BRYAN MATHESON,

Appellant,

v.

KYMI ARMOUR,

Respondent.

A154210

(Alameda County

Super. Ct. No. AF11583679)

Appellant Bryan Matheson and respondent Kymi Armour were married in October 2002, against the background that they had signed an “Agreement to Keep Property Separate” (agreement) Kymi had prepared, which Kymi signed in December 2000, Bryan in October 2001. The marriage dissolved in 2011. In 2018, trial was held involving three items of property, only one of which is of issue here, a home Kymi had purchased some two years before the marriage that was secured by two mortgages. Bryan claimed the agreement was invalid and sought reimbursement for monies he claimed he paid on the mortgages. Following a brief one and one-half day trial, the trial court entered an order that among other things (1) found the agreement to be valid and (2) denied Bryan’s claim, expressly finding Bryan’s testimony “inconsistent at best” and that he did not meet the burden imposed on him.

Bryan appeals, asserting various claims of error, including that the agreement was not a valid prenuptial agreement, and thus the trial court’s analysis as to his payments was wrong. We agree, and thus reverse.

BACKGROUND

The Parties, the Property, and the Agreement

Bryan and Kymi were married on October 4, 2002. Bryan was

44 years old, Kymi 36. Both were well educated: Bryan had seven years of college, and an Associate of Arts degree in music; Kymi had attended four years of college and two years of graduate school, and had an MBA.

Since 1987, Bryan owned Skyline Studios, a commercial recording facility; and in 1999 he started another business, “iMusicast” (which, it would develop, was unsuccessful). Bryan also held adjunct professor positions, including at Chabot College and San Francisco State University. Kymi was a management consultant who at the time of trial was earning $10,880 a month, though there was evidence she had been unemployed for various periods.

In December 2000, Kymi purchased a house on Shafter Avenue in Oakland (Shafter property), taking title in her name alone. The price was $416,500, and she paid five percent ($20,850) down and closing costs, money she had withdrawn from her retirement accounts. And Kymi took out two mortgages in connection with the purchase. Bryan paid nothing toward the purchase of the Shafter property.

That same month, Bryan and Kymi moved into the Shafter property.

Apparently concurrently with her purchase of the Shafter property, Kymi prepared an “Agreement to Keep Property Separate,” the genesis of which Kymi described at trial: “There were a few of us who had bought homes during that time in 2000. And a friend cautioned me, and said, you know, if you are intending to live with Bryan, it’s a good idea for you guys to have, you know, a keep property separate agreement, or a Premarital Agreement before he moves into your home, especially since you are buying this home on your own.”

Or, as Kymi described it to the trial court a little later, “[T]he intent of the document was to ensure that the things that we came into the relationship with that would, it would remain each person’s, you know, personal property, unless and until we decided otherwise, so that each person would be, you know, equally protected, especially as [Bryan] was starting the second business, and it was not sole proprietorship. It wasn’t an incorporate[d] business. So and then I just purchased my home, and worked really hard to save, and to buy a home, and, you know, in that area. So it seemed, it seemed like a reasonable rational thing to do, Your Honor, because we were, you know—I was in my early 30’s. [Bryan] was in his early 40’s. So, you know, being two responsible adults, it seemed like the appropriate thing to do. I had never lived with anyone.”

Kymi prepared the agreement without consulting an attorney, and as Bryan points out in his reply brief, a notation at the bottom of the agreement indicates it “was adopted from the nolo.com website”—a website, it is worth noting, that has a different set of documents for a “Premarital Agreement.”

The agreement is brief, a mere 11 paragraphs long, with a one and

one-half page attachment that lists their “separately owned property,” 14 items for Kymi, including the Shafter property, and 12 items for Bryan, including his two businesses and some musical equipment. The 11 paragraphs in the agreement included that Kymi and Bryan “agree as follows:

“1. This contract sets forth our rights and obligations toward each other. We intend to abide by them in a spirit of cooperation and good faith.

“2. All property owned by either of us as of the date of this agreement shall remain the separate property of its owner and cannot be transferred to the other person unless this is done in writing. We have each attached a list of our major items of separate property to this contract. (See Attachment A, Separately Owned Property.)

“3. The income each of us earns—as well as any items or investments either of us purchases with our income—belongs absolutely to the person who earns the money unless there is a written joint ownership agreement as provided in Clause 6.

“4. We shall each maintain our own separate bank, credit card, investment and retirement accounts, and neither of us shall in any way be responsible for the debts of the other (if we register as domestic partners in a community that makes this option available and, by so doing, the law requires us to be responsible for each other’s basic living expenses, we agree to assume the minimum level of reciprocal responsibility required by the law).

“5. Expenses for routine household items and services, which include groceries, utilities, rent and cleaning supplies, shall be equally divided.

“6. From time to time, we may decide to keep a joint checking or savings account for a specific purpose (for example, to pay household expenses), or to own some property jointly (for example, to purchase a television). If so, the details of our joint ownership agreement shall be put in writing (either in a written contract or a deed, title slip or other joint ownership document). [¶] . . . [¶]

“8. In the event we separate, each of us shall be entitled to immediate possession of our separate property. [¶] . . . [¶]

“10. This agreement represents our complete understanding regarding our living together and replaces any and all prior agreements, written or oral. It can be amended, but only in writing, and must be signed by both of us.

“11. If a court finds any portion of this contract to be illegal or otherwise unenforceable, the remainder of the contract is still in full force and effect.”

Kymi signed the agreement on December 5, 2000, the day the purchase of the Shafter property closed. Bryan did not sign it until almost a year later, on October 17, 2001.

As noted, Bryan and Kymi married in October 2002. And in February 2003, Bryan executed an interspousal deed confirming to Kymi the Shafter property “as her sole and separate property.”

The Proceedings Below

Kymi filed her petition for dissolution on July 5, 2011. The parties separated on September 9, 2011, and Bryan moved out of the Shafter property. According to the register of actions, several hearings occurred from late 2011 on, none of which is apparently pertinent here. It was not until October 2016 that a judgment of dissolution of marriage (status only) was entered. And at a January 30, 2017 status conference, the matter was set for trial for June 6 on all property issues.

The matter came on for trial for three half-days, on June 6 and November 8 and 15. Bryan and Kymi agreed at the beginning of trial that there were three assets in dispute: (1) the Shafter property; (2) Skyline Studios and iMusicast, Bryan’s businesses; and (3) various retirement accounts. Both Bryan and Kymi represented themselves, and it is fair to characterize the trial as the trial court asking questions of them, both of whom had been sworn. Put otherwise, there was essentially no direct or cross-examination as the terms are commonly understood, but Bryan and Kymi answering questions, sometimes attempting to explain—perhaps argue, might be a better word—why the other party’s position was not well founded.

The pertinent testimony included the following: After their marriage Bryan and Kymi maintained separate bank accounts. They also created one joint account which, the trial court would later describe, was “created . . . for purposes of sharing household expenses.” And as the trial court would also find, “Both contributed to the joint account for this purpose. Bryan also made payments by check to Kymi for various reasons during the marriage.”

As quoted above, the trial court found Bryan’s testimony “inconsistent at best.” Perhaps it was, as best manifest by the testimony regarding Exhibit B, which Bryan submitted on the first day of trial as showing checks totaling $76,800 with the notation “mortgage” in the memorandum that, he claimed, was money he gave Kymi for payment of the mortgages during the marriage. Kymi objected to many of the checks in Exhibit B as “duplicates,” though she did acknowledge receipt of at least $33,523.

On the second day of trial, Bryan submitted revised copies of cancelled checks paid to Kymi, with duplicates removed. And on the third day of trial, the court admitted into evidence “Exhibit B1,” the revised compilation of Bryan’s cancelled checks carrying the notation “mortgage,” which totaled $45,906.49. In addition to this compilation of checks, Bryan presented subpoenaed bank statements for the joint Bank of America account *1318, showing online transfers into the joint account totaling $128,390.94. He testified that the online transfers from his checking account into the joint account from which the mortgage was paid represented his contributions to the mortgage, as well as other household expenses.

Kymi testified that she could not say as “absolutely true” whether she used the funds Bryan supplied for the mortgage and she was uncertain whether she used the money received from Bryan for the mortgage or for other household expenses. And she claimed the amounts she received from Bryan were not large enough to cover the mortgage.

Regardless, Bryan’s testimony included that he gave checks to Kymi from his separate account that he claimed were for payments on the mortgage. And while those payments were sporadic, and inconsistent, the fact is that some payments were made—as expressly admitted by Kymi. Specifically:

At one point on the first day of trial Kymi was asked specifically about this by the court and admitted the payments were made:

“THE COURT: With respect to the purchase of the home, [Bryan] testified that he did not contribute to the purchase of the home. And he states that he contributed to the mortgage. Are you—did you in fact receive payments from [Bryan] for the purposes of the mortgage of the home?

“[KYMI]: So I received—I did receive payments from [Bryan]. He would characterize it as mortgage. It was not in fact in my mind mortgage because they were so sporadic and not significant enough to cover mortgage. And this was a big contention.

“And so he might write whatever he wanted to write on the check to try to placate the situation, but point of fact is they were not mortgage payments. They were payments that would be, you know, $300, or—you know my mortgage was $2,300, so.” And while disputing the amounts Bryan claimed, Kymi answered “yes,” Bryan “did make payments” to her.

On the third day of trial the subject was again addressed, and Kymi testified at length about it:

“THE COURT: Okay. [Kymi], you’ve heard the testimony from [Bryan] about his claim that, during your marriage, he contributed towards the payment of the mortgage of the [Shafter property], and also made contributions to household expenses in the amount of $45,906, and $1,000—$128,390. What is your claim as to his contributions toward the mortgage during the time of marriage?

“[KYMI] : So, Your Honor, my claim is this: Throughout our marriage, [Bryan] paid erratically, for a variety of things. So, whether it was childcare, before our son was of school age, or food, or trips, or anything of that nature, it was always piecemeal.

“I was the consistent larger breadwinner. And what would often happen is, I would have to pay for mortgage, medical, any kind of expense that our family, the community, required.

“And due to the nature [of Bryan’s] work, especially during that time, because in 2004, I believe, 2004, 2005, [Bryan] filed for bankruptcy.

“So, during that time, and prior, I was always the consistent breadwinner, and have always made payments for all of [the] things that needed to be paid in a timely manner, including the mortgage.

“[Bryan] would then pay whatever he could, whatever he could provide. And, you know, we—we tried to kind of work it out. And, eventually, that is what created the demise of the marriage, because of the inconsistency with payment.

“And when his parents were alive, for example, they would gift the children—he and his brother, his sisters, between [$10,000] and $15,000 per year, and that would usually come at the end of the year, the beginning of the year.

“And that’s when [Bryan] would then be able to make some payments, to kind of catch up, for things that he was not covering.”

And finally there was this, toward the end of trial:

“THE COURT: We’re back on the record. [Kymi], prior to the break, you were testifying about amounts that you had received from [Bryan] by way of checks. And I just want to confirm that your testimony is, that you did receive monies from [Bryan] during the course of the marriage. And that the monies received, and that were placed into the joint checking account, were used for household needs—household needs, expenses inclusive of mortgage.

“KYMI: Yes, your Honor.”

Kymi and Bryan both offered estimates of the current value for the Shafter property prepared by real estate agents, one by Kymi and two by Bryan. Hearsay objections were sustained, and none of three estimates was admitted into evidence.

Following the close of evidence on November 15, the court ordered the parties to submit written closing arguments by November 29. They did, with Bryan’s including an argument that the agreement was not valid under Family Code section 1615. Bryan also requested that the record be further developed, and that the court appoint an appraiser to conduct an appraisal of the Shafter property. He also requested that the court enter into evidence his originally listed Exhibit 2(c), Exhibits 4(d), (e), and (f), Exhibits 5(a) and (b), and Exhibit 6 and/or that the court take judicial notice of these mortgage/banking records to assist the court in making an accurate property characterization and a Moore/Marsden calculation.

We digress momentarily from the chronology of the proceedings below to discuss Family Code section 1615 which in 2000 and 2001—when Kymi and Bryan signed the agreement—provided that the person against whom enforcement of the agreement was sought had the burden to show either that he or she did not execute the agreement voluntarily or that it was unconscionable. However, section 1615 was amended in 2001, so that the burden as to the validity of a premarital agreement changed, and was placed on the person seeking to uphold the agreement. Thus, amended section 1615, in effect in 2002—the year of their marriage—provides as follows: “(c) For the purposes of subdivision (a), it shall be deemed that a premarital agreement was not executed voluntarily unless the court finds in writing or on the record all of the following . . . . ,” going on to list five specific items. In short, the revised “section 1615, subdivision (c) . . . ‘ “places an evidentiary burden upon the party seeking to enforce a premarital agreement: He or she must be prepared to present evidence sufficient for the court to make the . . . findings; otherwise, the premarital agreement must be held unenforceable as having been involuntarily executed.” ’ ” (In re Marriage of Clarke & Akel (2018) 19 Cal.App.5th 914, 919–920.)

On February 27, 2018, the trial court issued its decision. The decision was four and one-half pages long, single-spaced, and began with the court’s four “orders”: “1. The premarital agreement executed by the parties is valid and enforceable. 2. The house purchased by Kymi is her sole and separate property. 3. Bryan’s businesses are his sole and separate property. 4. Bryan is not entitled to reimbursement for his separate property funds.”

As to the first holding, the validity of the agreement, the court’s analysis relied on the version of section 1615 that was in existence in 2000 and 2001, which analysis consisted of these three paragraphs:

“A premarital agreement may address the disposition of assets post separation and dissolution. Family Code § 1612. The party against whom enforcement is sought has the burden to prove either of the following:

“That the party did not execute the agreement voluntarily.

“The Agreement was unconscionable when it was executed and, before execution of the agreement, all of the following applied to that party:

“A. That party was not provided fair, reasonable, and full disclosure of the other property or financial obligations of the other party.

“B. That party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.

“C. That party did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

“Family Code § 1615(a).

“First, the Court looks to Bryan’s argument that he did not sign voluntarily. He claims that Kymi urged him to sign and he believed that if he did not sign the Agreement their relationship would end. Other than this belief, Bryan presented no evidence that Kymi threatened to end the relationship or that she subjected him to any other coercion or duress. In fact, he testified that he had almost one year to consider the Agreement before he signed it. The Court finds that Bryan signed the Agreement voluntarily.

“Next, the Court turns to whether the Agreement was unconscionable by examining the presence of all factors under Family Code § 1615(a). While it is true that Bryan did not voluntarily and expressly waive, in writing, his right to disclosures, the parties disclosed in the Agreement their ‘major items of separate property.’ In fact, the Agreement lists significant assets, such as the house and Bryan’s business, along with the parties’ respective cars, art, jewelry, and furnishings, down to their dish towels and linens. It is clear that the parties intended to fully disclose all assets of value to them. It is true that there is no list of financial obligations in the Agreement, however, Bryan could have reasonably had adequate knowledge of this information before he signed the Agreement. Bryan testified that he had almost one year to consider the Agreement before he signed it, and he presented no evidence that he requested additional disclosures. Therefore, the Court finds that Bryan has not carried his burden to show that the Agreement was unconscionable or otherwise not enforceable.”

And as to the last point, Bryan’s claim to reimbursement, the court concluded as follows: “Having found that the [Shafter property] is Kymi’s separate property, the question is whether Bryan is entitled to reimbursement for separate property contributions to the mortgage on that property. First, according to the Agreement, any income earned by the parties was to be their separate property. Therefore, Bryan would be entitled to reimbursement of his separate property if he can prove by a preponderance of the evidence that he contributed to the mortgage payments.

“At trial, the parties each testified that they maintained separate bank accounts into which they deposited their respective income. There was also testimony by both that they created a joint checking account at Bank of America ending in *1318. This account was used to pay for joint household expenses. Bryan testified that he made direct deposits into the joint account from his separate bank accounts when he had funds available. This was corroborated through excerpts from bank statements for account *1318 for the period of July 2004 through November 2011. [Citation.] However, there was no evidence presented by Bryan to show that his separate property funds were used to pay down the mortgage. Indeed, it appears from the bank statements that both parties deposited separate property funds into the joint account during this time period, and the funds were used to pay a number of expenses and or transferred to other accounts, including the mortgage account. There is no way for this Court to determine whose funds were actually used for the mortgage payments. It is a matter of credibility and the Court found Bryan’s testimony to be inconsistent at best.

“Bryan introduced evidence of checks he paid to Kymi during the marriage. [Citation.] With respect to the checks, Bryan claims any check with the notation ‘mortgage’ on the memo line was intended to pay down the mortgage on the [Shafter property.] The total amount of those checks is $28,873. Kymi testified that she received these checks from Bryan only when he had funds available. The date range for these checks spans the period of April 2002 through July 2011. The checks also appear to be issued on a sporadic basis for random amounts. This is consistent with Kymi’s testimony at trial. Therefore, without any forensic tracing being available to the Court, it is an issue of credibility, and the evidence weighs in favor of Kymi that these checks were paid to support the family’s living expenses during this period. Bryan has not met his burden by a preponderance of the evidence for reimbursement of the amount of $28,873.”

On April 30, Bryan filed a notice of appeal.

DISCUSSION

Introduction

As noted, Bryan and Kymi represented themselves below, and Bryan’s self-representation continued through the filing of his opening brief here. Kymi’s respondent’s brief was filed by counsel, as was Bryan’s reply brief.

Bryan’s pro per opening brief is 68-pages long, and contains a 16-page “Statement of Facts and Procedural Background” that includes references to many items in the record below that have nothing to do with the issue before us, including Kymi’s petition for dissolution, numerous references to income and expense declarations filed by the parties in 2015, and other declarations filed in 2015, none of which, as best we can tell, was before the court in the trial here. The brief also refers to a “resolution conference statement” in November 2015.

Bryan’s opening brief also has a 45-page section entitled “Argument” that contains various “arguments,” some of which are not arguments at all. But one thing Bryan does argue is that the agreement was not “valid and enforceable,” an argument he makes on two separate bases. The first is that the agreement did not comply with Family Code section 1615, subdivision (c), as it read at the time of the 2002 marriage, which, following its 2001 amendment, requires the five findings the trial court did not make here. Kymi’s respondent’s brief addresses this issue, essentially contending that the applicable statute was the earlier version of section 1615, which put the burden on Bryan and did not require the findings the new statute did. The parties devote a substantial portion of their briefing to the issue of which version of section 1615 applies, Bryan’s position being that the amended section does, pursuant to the statutory language that “a prenuptial agreement becomes effective upon marriage.” (Fam. Code, § 1613.)

We need not weigh in on this issue, however, as we conclude that Bryan’s second argument has merit.

The Agreement Was Not a Valid Premarital Agreement

Family Code section 1610, subdivision (a) provides as follows: “ ‘Premarital Agreement’ means an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage.” And Bryan’s second argument why the Agreement fails as a prenuptial agreement is as follows:

“VIII. Agreement Failed to Satisfy Basic Requirements for a Valid Premarital Agreement and to Comply with Contract Law . . . .

“A. Agreement Lacked the Earmarks of a Valid Premarital Agreement . . . .

“1. Agreement does not Establish its Status as a Premarital Agreement . . . .

“2. Agreement not Reached in Contemplation of Marriage.”

Kymi’s respondent’s brief nowhere addresses this argument. In light of this, we sent a letter to counsel requesting supplemental briefing on two issues, the first of which was “what evidence supports that the agreement was executed in contemplation of marriage.”

Kymi’s entire argument in her supplemental brief on the issue is as follows:

“The agreement provides that the parties may register as domestic partners. [Citation.]

“The Family Code currently provides that registered domestic partners have the same rights, protections and duties as spouses. Fam. Code § 297.5(a).

“It is acknowledged that, at the time that Kymi and Bryan executed their agreement in 2001, California’s domestic partnership statute did not provide domestic partners with all of the rights, duties and protections of the Family Code, such as community property rights. In re Marriage Cases (2008) 43 Cal.4th 757[,] 801–802.

“Nonetheless, the reference in the parties’ agreement to domestic partners may be evidence of their intent to be bound by the Family Code, even as the scope of the rights, duties and protections afforded to domestic partners under the Family Code evolve over time. Today, whether parties are subject to the Family Code by marriage or domestic partnership is a distinction without a difference under California law. Fam. Code § 297.5(a).

“ ‘The fact that one agreement is named a domestic partnership agreement and another is named a prenuptial agreement is insignificant as the purpose of both is to permit the parties to enter into a contract that reflects their wishes regarding the property they own and will acquire in the future.’ Estate of Wilson (2012) 211 Cal.App.4th 1284[,] 1296.”

We are unpersuaded.

As Kymi’s brief argument concedes, she does not even contend the agreement was made in contemplation of marriage. Rather, she asserts that because the agreement mentions the possibility the parties will register as domestic partners in the future and because current law provides that domestic partners and spouses have similar rights, one should simply assume that the parties’ agreement was made in contemplation of marriage. By no means.

Contrary to Kymi’s insinuation—indeed, as Kymi’s argument concedes— domestic partnership was not available to them at the time they signed the agreement. That is, when Kymi signed the agreement in 2000, and when Bryan signed it in 2001, section 297 stated that a domestic partnership is established when, inter alia, both persons file a declaration of domestic partnership with the Secretary of State and both persons were either members of the same sex or (for opposite sex couples) if one or both persons were over the age of 62. This was not the situation here—and Kymi and Bryan could not have become domestic partners.

The reference to “domestic partnership” in the agreement does nothing to show the parties’ intent to transform their “living together agreement”—as Kymi characterized it—into a premarital agreement, as Kymi suggests. Indeed, what the language regarding “domestic partnership” does support is that the parties were not contemplating marriage at the time the agreement was entered into and that the parties had very little understanding of what they were actually signing.

The background of the agreement is set forth above, including with quotations of passages of Kymi’s testimony as to how, and why, the agreement came to be. And conspicuously missing from either passage is any reference whatsoever to any marriage—contemplated or otherwise.

As quoted, Kymi’s first explanation was that a “female friend” cautioned her that “if you are intending to live with Bryan, it’s a good idea for you guys to have, you know, a keep property separate agreement or a premarital agreement before he moves into your home, especially since you are buying this home on your own.” Tellingly, while Kymi’s friend mentioned two possible agreements, Kymi drafted a “Keep Property Separate Agreement,” not a “Premarital Agreement.” No mention was made to a pending marriage, or even an expectation that the parties would marry or were planning to marry in the near future. Kymi prepared and signed the agreement in December 2000, and there is no indication the parties were engaged at that point, let alone had set a wedding date. And as noted, Bryan did not sign the agreement until 2001, and the marriage did not occur until October 2002, almost two years after Kymi prepared and signed the agreement.

Kymi’s later explanation for the intent of the document was this: “So the intent of the document was to ensure that the things that we came into the relationship with that would, it would remain each persons, you know, personal property, unless and until we decided otherwise, so that each person would be, you know equally protected especially as [Bryan] was starting the second business, and it was not sole proprietorship. . . . So it seemed, Your Honor, because we were, you know, I was in my early 30’s and [Bryan] was in his early 40’s. So, you know, being two responsible adults, it seemed like the appropriate thing to do. I have never lived with anyone.”

Again, there was no mention of marriage or that they were deliberately opting out of the system of community property law that applies to marital relationships. Neither party had been married and divorced previously. Indeed, Kymi had never “lived with anyone.”

In sum, there was no testimony about any contemplated marriage. And no such reference in the agreement itself. But beyond all that, to the extent there is any reference to any possible legal relationship, it is to a “domestic partnership.” As quoted above, paragraph four of the agreement recites that “each party shall maintain their own separate bank, credit card, investment and retirement accounts . . . ,” and then adds this: “if we register as domestic partners in a community that makes this option available and, by so doing, the law requires us to be responsible for each other’s basic living expenses, we agree to assume the minimum level of reciprocal responsibility required by the law.” Domestic partnership, not marriage.

And finally, paragraph 10 provides: “This agreement represents our complete understanding regarding our living together and replaces any and all prior agreements, whether written or oral.” While this provision is consistent with a cohabitation agreement between two unmarried individuals, it does not reflect that the parties entered into this agreement anticipating marriage and wanted to establish their respective financial rights and responsibilities upon marriage and possible divorce.

In sum, there is no declared purpose or other prefatory language indicating the parties’ intent to enter a premarital agreement designed to govern a marital relationship and possible divorce rather than just their cohabitation or at most, a possible domestic partnership—no substantial evidence that the agreement was entered into in order to define their respective rights and obligations “in contemplation of marriage.”

Since the agreement was unenforceable, all payments made on the mortgage on the Shafter property while the parties were married were presumptively made with community property, whether the payments came from Kymi’s or Bryan’s earnings. (See § 760.) Therefore, the community is entitled to reimbursement of its pro tanto share of the value of the house based on the Moore/Marsden rule as argued by Bryan. As the leading treatise puts it, “[I]f community funds are used to make mortgage payments on property purchased by one spouse before marriage, the community acquires a pro tanto interest in the ratio that principal payments on the purchase price made with CP bear to payments made with SP . . . and any increase in value of the property must be apportioned accordingly. (Marriage of Moore[, supra,] 28 Cal.3d 366; Marriage of Marsden[, supra, 130 Cal.App.3d 426]; see Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1287 (citing text); Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1552; Bono v. Clark (2002) 103 Cal.App.4th 1409, 1421–1422 (citing text).)” (Hogoboom & King, California Practice Guide: Family Law (The Rutter Group 2019) ¶ 8:301, p. 8-112.)

As alluded to above, Bryan’s evidence, proposed Exhibit C, included a comparative market analysis consisting of a compilation of recent, similarly located, comparable home sales, including information such as sales price, address, square footage and price per square foot, obtained from the Multiple Listing Service database. And as noted, the trial court sustained hearsay objections to the evidence proffered by both sides as to the realtors’ testimony as to the value.

In her supplemental brief, Kymi contends that Bryan did not show all the facts necessary for a Moore/Marsden calculation because there was no evidence of the value of the Shafter property at trial. Passing over whether the trial court’s ruling on the issue was correct, the community is entitled to reimbursement for home improvements made to Kymi’s separate property during marriage, which Kymi admitted comprised $51,635.25, and which she characterized as “greatly” benefitting the community. Thus, the community should be reimbursed at least dollar-for-dollar for the amount of the improvements on the home during the marriage (see In re Marriage of Wolfe (2001) 91 Cal.App.4th 962, 973), or for the enhanced value of the property that the improvements created, if that sum is greater than the out-of-pocket costs. (See In re Marriage of Frick (1986) 181 Cal.App.3d 997, 1019.)

Moreover, there are unresolved factual issues with respect to the deed of trust in the original amount of $150,000 that Kymi asserts increased to $193,356 during the marriage. That is, where the parties refinance a separate property loan with a community property loan, the new loan proceeds are a community property payment of the separate property loan. (In re Marriage of Branco (1996) 47 Cal.App.4th 1621.)

DISPOSITION

The judgment is reversed, and the matter is remanded for further proceedings consistent with this opinion. Bryan shall recover his costs on appeal.

 

_________________________

Richman, Acting P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

Matheson v. Armour (A154210)