Gardner v. Harris

RABINOWITZ, Justice,

with whom EASTAUGH, Justice, joins, dissenting in part.

After finding that the VMT bonds were Harris’s separate property, and in response to Harris’s motion to amend the findings and judgment, the superior court observed that

[t]he bonds themselves were used simply to collateralize the parties’ joint loans, and both were equally responsible for the repayment of such loans against the principal of the bonds, Mr. Harris’ separate property.

The superior court then deleted language in Harris’s proposed order which would have required Gardner to pay Harris $20,000 to partially restore the full worth of his separate pre-marital asset. In his cross-appeal Hams asserts that the superior court erred in not requiring Gardner to pay $20,000 as her portion of the loans made against the bonds.

The court disposes of Harris’s cross-appeal point in the following manner:

Once the bonds were placed into the account, Harris ran the risk that the bonds would be called and the credit used. Until the credit was used the bonds remained Harris’s separate property. When the bonds were called, however, the portion that was used for credit was lost, and the remaining proceeds remained Harris’s separate property.

Op. at 9 (emphasis added).

Harris argues that the superior court should have found Gardner responsible for her share of an-approximate $40,000 “devaluation” of the bond, the amount which was repaid to Merrill Lynch out of the bond proceeds to repay loans the couple had taken out to refinance the Monterey property and the boat. In my opinion, Harris’s cross-appeal point is meritorious, and I would hold that the superior court erred in not requiring Gardner to pay her portion of the loans made against the bonds.

I think it determinative that the superior court ruled that Harris and Gardner “were equally responsible for the repayment of such loans against the principal of the bonds.... ” In the absence of an agreement by Harris that he would bear sole responsibility for the loans if the bonds should be called, and given the superior court’s finding that both were equally responsible for repayment of the loans against the principal of the bonds, I conclude that the superior court erred in not requiring Gardner to pay her portion of the loans repaid upon the call of the bonds.

If, as this court concludes, the portion of the proceeds not used to repay the loans remains Harris’s separate property, then what transforms the portion of the proceeds used to repay the loans into marital property? I perceive of no principled way to distinguish between the two parts of the bonds used as collateral other than some type of agreement regarding the repayment of the loans in the contingency that the bonds were called. The superior court found no such agreement.