Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. 402051, Hurl W. Johnson, Judge.
Law Offices of a. Peter Rausch, Jr. and A. Peter Rausch, Jr. for Petitioner and Appellant.
Law Office of Lawrence C. Beaver and Lawrence C. Beaver for Objector and Respondent.
OPINION
HILL, J.
Appellant appeals from a judgment entered against her after respondent’s summary judgment motion was granted. The trial court found that appellant was not the surviving spouse of decedent for purposes of intestate succession, and was therefore not entitled to any distribution from decedent’s estate. Appellant contends that, although she obtained a judgment of legal separation from decedent prior to his death, the marriage was not dissolved and the spouses had reconciled; she asserts she should be considered the surviving spouse for purposes of intestate succession. We conclude the trial court correctly interpreted the governing statute and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
William Brian LoConte (Brian) died intestate on September 12, 2006, and a petition for probate of his estate was filed. On August 31, 2007, Chrys LoConte (Chrys) filed a Petition to Determine Persons Entitled to Distribution of Estate; she alleged she was Brian’s surviving wife and sought a determination that she was entitled to distribution of one-half of Brian’s separate property. She alleged she and Brian obtained a judgment of legal separation on April 23, 2004, but subsequently reconciled and resumed cohabitation until his death. Brian’s father, Bill LoConte (Bill), opposed Chrys’s petition, essentially asserting Brian and Chrys did not reconcile after the judgment of legal separation was entered, but continued to live separately, and even if they reconciled, Chrys did not meet the definition of a surviving spouse found in Probate Code section 78.
For convenience and clarity, because some of the parties share a last name, we refer to them by their first names. No disrespect is intended.
All further statutory references are to the Probate Code unless otherwise indicated.
The court bifurcated the issues, to first determine the effect of reconciliation on the legal separation and whether Chrys could be a surviving spouse, and later hold an evidentiary hearing, if necessary, to determine the facts regarding reconciliation. On January 11, 2008, the court considered the first issues, and concluded that, if the parties reconciled, they intended their marriage to resume. The parties interpreted the ruling to mean that, if Chrys established at an evidentiary hearing that the parties did reconcile, she would meet the definition of a surviving spouse and be entitled to a share of Brian’s estate.
After Bill’s death, Frank A. Van Konynenburg, the trustee of Bill’s family trust and assignee of Bill’s claim, filed a motion for summary judgment, contending that a newly published opinion by this court indicated reconciliation alone was not sufficient to return a spouse to surviving spouse status, and therefore Chrys was not Brian’s surviving spouse. Chrys opposed the motion. The motion was heard by a different judge than the one who presided at the January 11, 2008, hearing. The court granted the motion, concluding Chrys was not a surviving spouse and she had raised no triable issue of material fact on that point. Judgment was entered, and Chrys appeals.
DISCUSSION
I. Standard of Review
We review the trial court’s grant of summary judgment de novo. (Reliance Nat. Indemnity Co. v. General Star Indemnity Co. (1999) 72 Cal.App.4th 1063, 1074.) We also review questions of law, including statutory interpretation and application of a statute to undisputed facts, de novo. (Kurtz v. Calvo (1999) 75 Cal.App.4th 191, 193.)
II. Surviving Spouse
“As to separate property, the intestate share of the surviving spouse” is one-half of the intestate estate, if the decedent leaves one child or a parent. (§ 6401, subd. (c)(2).) Brian died, leaving no children and one parent. Consequently, if he left a “surviving spouse, ” she would be entitled to one-half of his separate property. The term “surviving spouse” is defined in section 78 as follows:
“‘Surviving spouse’ does not include any of the following:
“(a) A person whose marriage to the decedent has been dissolved or annulled, unless, by virtue of a subsequent marriage, the person is married to the decedent at the time of death.
“(b) A person who obtains or consents to a final decree or judgment of dissolution of marriage from the decedent or a final decree or judgment of annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless they (1) subsequently participate in a marriage ceremony purporting to marry each to the other or (2) subsequently live together as husband and wife.
“(c) A person who, following a decree or judgment of dissolution or annulment of marriage obtained by the decedent, participates in a marriage ceremony with a third person.
“(d) A person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.”
Van Konynenburg, in his motion for summary judgment, contended Chrys is not Brian’s surviving spouse because she falls within section 78, subdivision (d). It was undisputed that, on April 23, 2004, Brian and Chrys obtained a judgment of legal separation, which included a stipulated property division. Van Konynenburg contends the judgment constituted “an order purporting to terminate all marital property rights, ” which disqualified Chrys from inheriting as a “surviving spouse.”
In Estate of Lahey (1999) 76 Cal.App.4th 1056 (Lahey), Frances Lahey petitioned for legal separation from her husband, Clarence. A judgment of legal separation was entered, which stated that there were no items of community property subject to disposition by the court. Subsequently, Clarence died intestate, survived by Frances and his daughter from a prior marriage. Frances claimed she was entitled to one-half of Clarence’s estate as his surviving spouse. Citing section 78, subdivision (d), the court stated:
“There is no question that Frances’s marriage to the decedent had not been dissolved or annulled. A judgment of legal separation leaves the marriage bonds intact. [Citations.] However, it is obvious that a surviving spouse for purposes of intestate succession is distinct from the legal wife or husband of the decedent. Probate Code section 78 excludes not only a spouse whose marital status has been terminated but also a spouse whose marital property rights have been terminated. The issue before us, then, is whether the judgment of legal separation constitutes an ‘order purporting to terminate all marital property rights’ so as to disqualify Frances as the surviving spouse.” (Lahey, supra, 76 Cal.App.4th at pp. 1058-1059, fn. omitted.)
The court observed that, “[u]nder the statutory scheme, the court in a legal separation proceeding must divide the known community assets and must characterize the parties’ liabilities as community or separate.” (Lahey, supra, 76 Cal.App.4th at p. 1060.) A judgment for legal separation “serves as a final adjudication of the parties’ property rights and is conclusive and res judicata even in a subsequent proceeding to dissolve the marriage.” (Id. at p. 1059, fn. omitted.) The court rejected Frances’s argument that, because the judgment for legal separation did not mention separate property rights, she retained the right to inherit a share of Clarence’s separate property. “This contention, however, ignores the import of Probate Code section 78. That statute excludes from the definition of surviving spouse one whose marital property rights have been terminated. Nothing in the language or meaning of the statute requires in addition an express termination of inheritance rights, for the obvious effect of the statute itself is to terminate the inheritance rights of such a spouse.” (Id. at p. 1060, fn. omitted.)
In Estate of McDaniel (2008) 161 Cal.App.4th 458 (McDaniel), Troy McDaniel died, survived by his parents and his wife, Marie. His mother filed a petition for distribution of his estate to his parents; Marie opposed it. (Id. at pp. 459-460.) Prior to Troy’s death, Marie had petitioned for dissolution of their marriage. The spouses had stipulated to a judgment dissolving the marriage and ordering that the marital partnership be terminated and the parties be restored to the status of single persons effective October 29, 2005. The stipulation included division of the community property and debts. (Id. at p. 460.) While the dissolution action was proceeding, the parties were still attempting to work out their differences; they signed a private agreement to participate in counseling, continue their marriage with “‘love, respect and help for each other, ’” and keep the dissolution action open, recognizing it could be dismissed at any time before final termination of their marital status. They signed, but did not file, a request for dismissal of the dissolution proceeding; Marie stated they intended to file it after a hearing on September 29, 2005. (Id. at p. 461.) Troy died in a motorcycle accident on September 23, 2005, before the date their marriage was to be dissolved. The trial court found that Marie was not Troy’s surviving spouse and was not entitled to inherit from his estate. (Id. at p. 460.)
In the stipulated judgment, Troy and Marie divided their community property, waived any right to spousal support, and waived their right to appeal.
“It is therefore apparent that, by this proceeding and by their other actions, the parties divided their community property, confirmed their individual share of what was formerly community property as separate property, and waived spousal support thus accounting for and terminating their marital property rights. It is equally apparent that, given the waiver of their right to appeal, the judgment dividing their marital property became final when entered by the court on July 25, 2005, and that the proceedings regarding their marital property were then concluded. Under the circumstances, we find that Marie was, by the time of Troy’s death, ‘a party to a valid proceeding concluded by an order purporting to terminate all marital property rights’ within the meaning of section 78, subdivision (d).” (McDaniel, supra, 161 Cal.App.4th at p. 462.)
Thus, because the judgment was final as to marital property rights prior to Troy’s death, Marie was not a surviving spouse. The court rejected Marie’s argument that section 78, subdivision (d), applied only to legal separation judgments and not to a dissolution action, both because it was not timely made and because “[t]here is nothing in the language of the statute to support this argument.” (McDaniel, supra, 161 Cal.App.4th at p. 463.) Like Lahey, McDaniel concluded Marie was legally Troy’s wife at the time of his death, because their marital status had not yet terminated, but, pursuant to subdivision (d), she was not his surviving spouse. (McDaniel, at p. 463.)
McDaniel did not expressly consider or rule on the effect of reconciliation on section 78, subdivision (d). Contrary to the representations in Chrys’s briefs, the reconciliation or attempted reconciliation in McDaniel did not occur after final dissolution of the parties’ marriage; it occurred during the pendency of the dissolution proceeding. The decedent died prior to final termination of the parties’ marital status. Thus, in that case as in this one, when the decedent died, the parties’ property rights had been adjudicated, but the parties remained legally married. The court in McDaniel did not ascribe any significance to the parties’ attempt at reconciliation.
As Lahey and McDaniel indicate, where the parties obtain a judgment or order terminating their marital property rights, section 78, subdivision (d), bars the wife from inheriting as a surviving spouse of the deceased husband, even if their marital status was not terminated prior to the husband’s death. We conclude that, because she obtained a judgment of legal separation in which the parties’ property rights were finally determined, Chrys was “a party to a valid proceeding concluded by an order purporting to terminate all marital property rights, ” under subdivision (d). Accordingly, absent some exception to subdivision (d), she was not a surviving spouse under section 6401 for purposes of intestate succession.
Chrys contends an exception to section 78, subdivision (d), should be made where the parties to the legal separation reconcile prior to the death of a spouse. She asserts there is a public policy favoring reconciliation which would be served by recognizing such an exception.
“The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute.” (People v. Pieters (1991) 52 Cal.3d 894, 898.) “If the language is clear and unambiguous there is no need for construction.” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.) When a statute reflects a policy choice by the Legislature, it is not our place to implement a different policy. (Gikas v. Zolin (1993) 6 Cal.4th 841, 851.) Chrys does not contend the language of section 78, subdivision (d), is ambiguous or subject to multiple interpretations. Rather, she asks the court to read into the statute an exception that does not appear there.
Section 78, subdivision (d), provides: “‘Surviving spouse’ does not include … [a] person who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.” As construed by Lahey, a spouse who was a party to a legal separation proceeding and obtained a final judgment of legal separation which included a division of the marital property falls within this subdivision.
Subdivision (a) of section 78 excludes from the definition of a surviving spouse of a decedent “[a] person whose marriage to the decedent has been dissolved or annulled.” It contains an exception, where the person remarried the decedent before his or her death. Subdivision (b), excludes a person who obtained a judgment of dissolution or annulment that is not recognized as valid in California. This subdivision contains two exceptions: where the spouses go through a ceremony purporting to marry each other and where they subsequently live together as husband and wife. Subdivision (c) excludes as a surviving spouse one who subsequently marries someone other than the decedent. It contains no exceptions.
The inclusion of express exceptions in section 78, subdivisions (a) and (b), which deal with subsequent changes in or resumption of the parties’ marital relationship, indicates the Legislature considered the possibility of a resumption of the relationship and provided for it where it considered it appropriate to do so. In contrast, the Legislature included no exception in subdivision (d). It made no provision for reconciliation, even though it was presumably aware of the substantial case law concerning the effect of reconciliation in dissolution proceedings that existed at the time section 78 was originally enacted. (See In re Marriage of Modnick (1983) 33 Cal.3d 897, 910-912 (Modnick); former § 78, Stats. 1983, ch. 842, § 21, which was enacted in 1983 and repealed in 1991, and was identical to the current version.) In the context of the statute as a whole, we believe the absence of any mention of reconciliation indicates the Legislature did not intend to make an exception for a resumption of the relationship in cases falling within subdivision (d) of section 78.
The circumstances in which a resumption of the relationship gives rise to exceptions to section 78, subdivisions (a) and (b), are distinguishable from a reconciliation after a termination of marital property rights under subdivision (d). Subdivision (a), creates an exception where the parties who dissolved their marriage remarried prior to the decedent’s death; in that situation, the parties complied with the formal legal requirements to reestablish their marital relationship. The exception recognizes the parties’ existing legal relationship. Under subdivision (b), if the parties have attempted to dissolve or annul their marriage, but that dissolution or annulment is not recognized as valid in California, the husband or wife may still qualify as a surviving spouse if the parties subsequently purported to marry each other or lived together as husband and wife. In that situation, there has been no valid termination of the marriage; by participating in a marriage ceremony or living together as husband and wife, the parties would accept and act in accordance with their existing legal relationship. In the case of a judgment of legal separation, however, a valid judgment governs the parties’ property interests; if the court were to recognize an exception to subdivision (d), for reconciliation, it would effect a change in the parties’ legal relationship. The parties’ conduct would not be a confirmation of their existing legal relationship, but a significant alteration of it.
Section 78, subdivision (d), does not contain any exception for spouses who reconciled prior to the decedent’s death, and we find no basis for reading such an exception into the statute. Because there is no reconciliation exception, the statute also contains no definition of reconciliation to guide the court in determining when such an exception would apply. The first judge who considered whether Chrys was a surviving spouse under the statute stated that, “[c]ommon sense tells me that if they got back together again, and they are living as husband and wife, they intended that all the things with marriage go back together.” He concluded that, if Chrys could establish that the parties reconciled, she would qualify as a surviving spouse.
In dissolution proceedings prior to July 1, 1984, the law provided for entry of an interlocutory decree of dissolution, followed by a final decree entered six months after service of process on or appearance by the respondent. (11 Witkin, Summary of Cal. Law (10th ed. 2010) Husband and Wife, § 109, pp. 164-165.) The main purpose of the delay in entry of the final decree was to allow an opportunity for reconciliation; if the parties reconciled during that time, the court could refuse to enter the final judgment. (Ibid.) The party claiming reconciliation had the burden of “establish[ing] by ‘clear and cogent proof’ that the spouses mutually intended to resume their marital status and to live together on a permanent basis.” (Modnick, supra, 33 Cal.3d at p. 911.) The intention had to be “unconditional and contemplate a complete restoration of all marital rights.” (Ibid.)
Effective July 1, 1984, the Legislature eliminated the interlocutory decree. (11 Witkin, Summary of Cal. Law, supra, Husband and Wife, § 109, pp. 164-165.) Under current law, the judgment of dissolution is entered, but does not become final and terminate the marital relationship until six months after service on or appearance by the respondent. (Fam. Code, § 2339.) If the parties reconcile prior to finality of the judgment, they may jointly dismiss the dissolution action. (Fam. Code, § 2338.)
When spouses resume cohabitation after obtaining a judgment of legal separation, the court cannot assume they intended a complete restoration of all their marital rights. The parties may have intended to conduct themselves as if the judgment of legal separation no longer existed and treat all of their property, even that previously divided between them, as community property. Alternatively, they may have intended to maintain the previously divided property as separate, but begin to accrue community property anew. They may have resumed cohabitation on a trial basis, without intending to immediately change the status of their property interests at all. Even if they intended to reconcile permanently, they may have been unwilling to go through another property division proceeding in the event their reconciliation failed, and they may have agreed to keep their property interests separate. Whether one party to a marriage can inherit from the other as a surviving spouse is an issue that, by its nature, arises after the death of one spouse. At that point, it is difficult to determine how the parties intended to hold their property interests after a reconciliation; one party is unavailable to express his or her intent and the other may be inclined to rewrite history in order to obtain a favorable result.
We find nothing in section 78 to support a conclusion the Legislature intended to allow a spouse to inherit as a surviving spouse if the parties, after obtaining a final judgment of legal separation, resumed cohabitation or reconciled prior to the death of the deceased spouse. If the Legislature had intended to make such an exception, it would have included it expressly in section 78, subdivision (d), as it did with the exceptions to section 78, subdivisions (a) and (b). We do not believe such an exception can or should be implied from the language of the statute. Even if, as Chrys argues, there is a public policy in favor of reconciliation and preservation of marriage, we believe that, if such an exception to section 78, subdivision (d), is to be recognized, it should be created by the Legislature, which can consider all the policy interests involved, define reconciliation, and establish the prerequisites for and the limits on the exception.
DISPOSITION
The judgment is affirmed. Respondent is awarded his costs on appeal.
WE CONCUR: LEVY, Acting P.J., POOCHIGIAN, J.