In re: Michele Lynn McKee

FILED
NOV 18 2022
NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. CC-22-1042-GTS
MICHELE LYNN MCKEE,
Debtor. Bk. No. 6:21-bk-10679-SY
MICHELE LYNN MCKEE,
Appellant,
v. MEMORANDUM*
KARL T. ANDERSON, Chapter 7
Trustee; LAURA O’KANE; CORRINE
LONG,
Appellees.
Appeal from the United States Bankruptcy Court
for the Central District of California
Scott Ho Yun, Bankruptcy Judge, Presiding
Before: GAN, TAYLOR, and SPRAKER, Bankruptcy Judges.
Memorandum by Judge Gan
Concurrence by Judge Taylor
*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
INTRODUCTION
Chapter 71 debtor Michele Lynn McKee (“Debtor”) appeals the
bankruptcy court’s order sustaining an objection to Debtor’s homestead
exemption filed by chapter 7 trustee Karl T. Anderson (“Trustee”) and
partially sustaining an objection filed by creditors Laura O’Kane and
Corrine Long. After an evidentiary hearing, the court concluded that
Debtor could not claim the California automatic homestead exemption
because, on the petition date, she did not physically occupy the property in
question, and she did not have an intent to return to the property.
On appeal, Debtor argues that she is entitled to the homestead
exemption under California law because it was impossible for her to safely
return to the property due to emotional abuse and physical intimidation by
her former life partner and co-owner O’Kane. We acknowledge that Debtor
made decisions during a difficult situation. But the bankruptcy court
correctly applied California law, and its factual findings—that Debtor
made an economic decision to relinquish her interest in the property and
did not demonstrate an intent to reside there—are not clearly erroneous.
Accordingly, we AFFIRM.
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101–1532, and all “Rule” references are to the Federal
Rules of Bankruptcy Procedure.
2
FACTS
A. Prepetition Events
Debtor and O’Kane began a romantic relationship in late 2003 and
began living together in 2004. In approximately 2009 they began working
together as law partners in a firm called O’Kane & McKee, LLP (“O&M”).
In 2010, Debtor and O’Kane purchased a lot and built a home on Bella Cara
Way in Palm Springs, California (“Bella Cara”), which they finished in
2015. Debtor and O’Kane each owned one third of Bella Cara, and O’Kane’s
mother, Corrine Long, owned the remaining third.
In late September 2016, Debtor ended the personal relationship with
O’Kane and a few months later she moved out of Bella Cara. Debtor
initially rented a furnished house, and since February 2018, she has
continuously lived in a rented condominium on Via Sonoma in Palm
Springs (“Via Sonoma”). She changed her driver’s license and voter’s
registration to reflect her address at Via Sonoma.
After the relationship ended, Debtor and O’Kane began discussions
about dividing their jointly owned assets. The discussions culminated in an
October 2017 written agreement (the “Agreement”), which provided for a
division of personal property and titled vehicles, and a process to dissolve
O&M. The Agreement further provided that the parties would sell jointly
owned real property located in Oakland, California, and divide the net
proceeds.
3
Regarding Bella Cara, the Agreement stated that Debtor would
receive a “payout” of her interest based on her net equity under a
hypothetical sale. The parties also agreed that Debtor would retain her one-
third interest in proceeds from pending construction defect litigation.
Pursuant to the Agreement, Debtor agreed to return her keys to Bella Cara
and O’Kane agreed to be responsible for all taxes, insurance, and mortgage
payments for Bella Cara after April 1, 2017.
The Agreement required Debtor to complete billing for an O&M
matter (the “Robinson Matter”) and obtain client approval for the invoice
by December 1, 2017, and it provided she would receive her payout within
30 days of doing so. 2 The Agreement specified that if Debtor failed to
complete the billing and obtain approval on the Robinson Matter by
December 1, 2017, her payout would be reduced, and if she did not
complete the billing by December 31, 2017, she would essentially forfeit her
interest in Bella Cara.
Debtor asserts that she completed the billing on the Robinson Matter
by December 1, 2017, but O’Kane refused to approve her time. O’Kane
maintains that Debtor did not complete the billing on the Robinson Matter
until September 2018 and consequently forfeited her interest in Bella Cara.
2
The Robinson Matter involved O&M’s representation of Jason Robinson in a
probate case between 2014 and 2017. In May 2017, the state court approved a settlement
agreement which provided for payment of $270,000 to O&M for attorney’s fees.
4
O’Kane did not pay Debtor under the Agreement, and the handling of the
Robinson Matter is part of ongoing litigation to dissolve O&M.
B. The Bankruptcy and Exemption Objections
In February 2021, Debtor filed her chapter 7 petition. She listed her
one-third interest in Bella Cara in Schedule A/B and claimed the California
automatic homestead exemption under California Code of Civil Procedure
(“CCP”) § 704.730.
O’Kane and Long objected to Debtor’s homestead exemption,
arguing: (1) Debtor forfeited her interest in Bella Cara pursuant to the
Agreement, and it was not property of the estate; and (2) Debtor admitted
that on the petition date she resided at Via Sonoma and had not lived at
Bella Cara since 2018.
Trustee also objected to Debtor’s homestead exemption and partially
joined O’Kane and Long’s objection. Trustee argued that Debtor’s interest
in Bella Cara was property of the estate, but because Debtor admitted that
she did not physically occupy Bella Cara on the petition date, and she was
unable to demonstrate the requisite intent to live there, she was not entitled
to the exemption. Trustee disputed the validity of the Agreement, but
asserted that even if it was effective, it did not operate to disclaim Debtor’s
interest in Bella Cara. And regardless of the validity of the Agreement, it
clearly demonstrated Debtor’s intent not to reside at Bella Cara after
October 2017.
5
Debtor responded to the objections and argued: (1) her interest in
Bella Cara was property of the estate because it was O’Kane, not Debtor,
who breached the Agreement, and even if Debtor breached it, O’Kane
would have at most a claim for breach of contract; and (2) notwithstanding
her lack of physical occupancy, she was entitled to claim the homestead
exemption because she had a continuous intent to reside at Bella Cara.
Debtor contended that although she and O’Kane were not married, they
cohabited as life partners, and she should be entitled to the protection of
CCP § 704.720(d). That statute allows a debtor who no longer resides in a
homestead to retain the exemption when her “separated or former spouse
continues to reside in or exercise control over possession of the
homestead.”
She further argued that the Agreement did not support a conclusion
that she was abandoning her homestead; it merely demonstrated that she
knew it was unsafe to return to Bella Cara, and she was doing what she
could to amicably obtain her interest in the property and reinvest it
elsewhere. Debtor claimed that her “involuntary absence” from Bella Cara
did not constitute abandonment because, under the Agreement, she was
supposed to receive the value of her interest within a short period of time.
Debtor filed a supplement to her opposition in which she argued that
she did not abandon her homestead under California law because she was
forced from Bella Cara by O’Kane’s verbal abuse and physical intimidation.
She asserted that, but for the abuse, she would still be living there.
6
The bankruptcy court set an evidentiary hearing on the objections. At
the hearing, Debtor testified that O’Kane had been abusive “on multiple
levels” throughout the relationship and became “very nasty” after Debtor
ended the relationship. Debtor stated that after the breakup, she feared for
her safety when O’Kane pushed her into the laundry room and would not
let her leave. Three former employees of O&M all testified that they
witnessed several instances of O’Kane yelling at Debtor and forcing her
way into Debtor’s office.
Debtor testified that after she moved out of Bella Cara, she intended
that her interest in the property be “bought out” by O’Kane. She stated that
she had no choice because she could no longer live at Bella Cara. Debtor
testified that after the couple broke up, she wanted to stay at Bella Cara
until it was sold but had to leave because of O’Kane’s behavior. Debtor
asked about the status of the buyout many times, and in 2018 she emailed
O’Kane, accusing her of delaying the process to avoid paying the buyout.
Debtor indicated that she intended to return to Bella Cara only if O’Kane
agreed to vacate the property, but she had no expectation that O’Kane
would ever leave.
At the conclusion of the evidentiary hearing, the bankruptcy court
requested written closing arguments to address whether Debtor’s intent to
buy a new home with the proceeds from her interest in Bella Cara was
sufficient to claim the homestead exemption under California law when
she was unable to return to living at the property, and whether Debtor’s
7
intent to reside at Bella Cara should be measured by an objective or
subjective standard. The parties submitted their written arguments, and the
court subsequently entered its oral ruling on the record.
The court reserved judgment on whether Debtor forfeited her interest
in Bella Cara because Trustee had a separate pending adversary
proceeding which involved the validity and effect of the Agreement. The
court ruled that, although Debtor had an intent to retain her monetary
interest in Bella Cara, she did not have an intent to reside there. It reasoned
that whether Debtor had the requisite intent to return to the property
required an objective test, and it noted that apart from Debtor’s statement
that she would return if O’Kane left, all other evidence indicated that
Debtor’s goal was to take proceeds from her interest in Bella Cara to buy a
new house.
The court also rejected Debtor’s argument to apply CCP § 704.720(d)
because she and O’Kane were not married, and the statute could not be
extended to non-spouses. The court entered a written order disallowing
Debtor’s homestead exemption, and Debtor timely appealed.
JURISDICTION
The bankruptcy court had jurisdiction under 28 U.S.C. §§ 1334 and
157(b)(2)(B). We have jurisdiction under 28 U.S.C. § 158.
8
ISSUE
Did the bankruptcy court err by finding that Debtor did not satisfy
the residency requirement for the California automatic homestead
exemption?
STANDARD OF REVIEW
A debtor’s right to claim an exemption is a question of law we review
de novo, and we review the bankruptcy court’s factual findings, including
a debtor’s intent, for clear error. Elliott v. Weil (In re Elliott), 523 B.R. 188, 191
(9th Cir. BAP 2014) (citing Kelley v. Locke (In re Kelley), 300 B.R. 11, 16 (9th
Cir. BAP 2003)).
Factual findings are clearly erroneous if they are illogical,
implausible, or without support in the record. Retz v. Samson (In re Retz),
606 F.3d 1189, 1196 (9th Cir. 2010). “Where there are two permissible views
of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985).
DISCUSSION
A. Legal Standards Governing the California Automatic Homestead
Exemption
California has opted out of the federal exemption scheme and
permits its debtors only the exemptions allowable under state law. CCP
§ 703.130. As a result, “[t]he bankruptcy court decides the merits of state
exemptions, but the validity of the exemption is controlled by California
law.” Diaz v. Kosmala (In re Diaz), 547 B.R. 329, 334 (9th Cir. BAP 2016).
9
Bankruptcy courts must liberally construe the law and facts to promote the
beneficial purposes of the homestead exemption. Phillips v. Gilman, (In re
Gilman), 887 F.3d 956, 964 (9th Cir. 2018) (citing Tarlesson v. Broadway
Foreclosure Invs., LLC, 184 Cal. App. 4th 931, 936 (2010)).
In California, there are two types of homestead exemptions: a
declared homestead exemption, which must be recorded by a party, and an
automatic homestead exemption, which arises by operation of law when a
party’s principal dwelling is subject to a forced sale. Bhangoo v. Engs Com.
Fin. Co. (In re Bhangoo), 634 B.R. 80, 85 (9th Cir. BAP 2021). Debtor did not
record a declared homestead exemption and instead claimed the automatic
homestead exemption under CCP § 704.730. For purposes of the automatic
homestead exemption, the filing of a bankruptcy petition constitutes a
forced sale. In re Diaz, 547 B.R. at 334.
“Under California law, the party claiming the automatic homestead
exemption has the burden of proof on the existence of the exemption.” In re
Bhangoo, 634 B.R. at 85. Bankruptcy courts must apply the state law burden
of proof on exemptions claimed under California law. See In re Diaz, 547
B.R. at 337 (“[W]here a state law exemption statute specifically allocates the
burden of proof to the debtor, Rule 4003(c) does not change that
allocation.”).
“To determine whether a debtor resides in a property for homestead
purposes, courts consider the debtor’s physical occupancy of the property
and the intent to reside there.” In re Gilman, 887 F.3d at 965 (citing In re
10
Diaz, 547 B.R. at 335; Ellsworth v. Marshall, 196 Cal. App. 2d 471, 474 (1961)).
A debtor who does not physically occupy a property on the petition date is
not necessarily precluded from claiming the automatic homestead
exemption. See e.g., In re Bhangoo, 634 B.R. at 86; In re Diaz, 547 B.R. at 334;
McBeth v. Karr (In re Karr), BAP No. CC-06-1079-KMoSn, 2006 WL 6810996,
at *4 (9th Cir. BAP Oct. 2, 2006).
The automatic homestead exemption may be available to a debtor
temporarily absent from the principal dwelling on the petition date if the
debtor can establish an intent to return to the homestead property after the
absence. In re Bhangoo, 634 B.R. at 86; In re Diaz, 547 B.R. at 334. Debtor
acknowledged that she did not physically occupy Bella Cara on the petition
date. Thus, the automatic homestead exemption applies only if she could
prove her intent to return to Bella Cara.
B. The Bankruptcy Court Properly Applied California Homestead
Law.
Debtor argues that the bankruptcy court erred by disallowing her
homestead exemption because she had the subjective intent to reinvest her
interest in Bella Cara in a new residence, and she would have returned to
Bella Cara if O’Kane had ever left the property. She contends that she did
not abandon her homestead because she was forced to leave the property
due to emotional abuse and physical intimidation, and it was impossible
for her to return so long as O’Kane continued to reside there.
11
California courts have long held that a lack of physical occupancy
does not necessarily preclude a party from claiming the homestead
exemption. See In re Bhangoo, 634 B.R. at 86; In re Diaz, 547 B.R. at 335-36.
And where a party does not physically occupy the property due to safety
concerns, California courts have been notably lenient. See Michelman v.
Frye, 238 Cal. App. 2d 698, 704 (1965) (upholding debtor’s declaration of
homestead made while she was absent from the property due to threats of
violence made by her husband who continued to reside there); Moss v.
Warner, 10 Cal. 296, 297-98 (1858) (holding that “removal made under very
just apprehensions for the safety of his family from the existing hostilities
of the Indians in the vicinity” was not an abandonment of the homestead).
Though we understand the plight of a debtor who must leave a
homestead property due to safety concerns, and we liberally construe the
law and facts to promote the beneficial purpose of the homestead
exemption, we cannot obviate the residency requirement under California
law. It is essential that a debtor who is temporarily absent on the petition
date have an intent to reside in the property, even if the debtor was forced
to leave due to dangerous conditions. See Michelman 238 Cal. App. 2d at 704
(“Absence from one’s permanent residence, if all the while he intends the
absence only for a special temporary purpose to be followed by resumption
of the former residence, constitutes neither abandonment thereof nor a
change of residence. The question . . . must depend largely upon his
intention.”) (cleaned up); Moss, 10 Cal. at 298 (“The residence of the family
12
in San Diego [away from the homestead] was merely temporary. Their
home was not there, and, of course, not their homestead. They were merely
sojourners in the city.”).
We are unaware of any authority supporting a claim to the California
automatic homestead exemption where the debtor does not demonstrate an
intent to reside there. “[W]hether the debtor physically occupies the
property or not, the debtor must have an intention to reside there.” In re
Diaz, 547 B.R. at 336; see also In re Gilman, 887 F.3d at 966; Ellsworth, 196 Cal.
App. 2d at 475 (“While the very purpose of the homestead law is to protect
the property from existing debts, the declarant must have ‘a bona fide
intention to make the place his residence, his home.’” (quoting Lakas v.
Archambault, 38 Cal. App. 365, 373 (1918)).
Consequently, the bankruptcy court correctly determined that the
automatic homestead exemption required Debtor to demonstrate an intent
to return to Bella Cara.
C. The Bankruptcy Court Did Not Clearly Err by Finding that Debtor
Lacked the Intent to Return to Bella Cara.
Debtor contends that her subjective statement—that she would
return to Bella Cara if O’Kane vacated the property—is sufficient to
overcome objective evidence that she intended to abandon the homestead.
Although a debtor’s intent to reside in a property involves a subjective
state of mind, that subjective intent is typically demonstrated by objective
manifestations. Debtor’s testimony about her intent is probative, but it is
13
not necessarily dispositive. See Tromans v. Mahlman, 111 Cal. 646, 647 (1896)
(“The physical fact of actual occupancy, as well as the intention with which
she occupied the house, were both elements to be considered in
determining actual residence; and the court was not bound to accept her
statement that she intended to reside thereon as conclusive, if other
facts . . . were inconsistent with such intention.”); see also, Nahman v. Jacks
(In re Jacks); 266 B.R. 728, 742 (9th Cir. BAP 2001) (“[S]ubjective intent may
be gleaned from objective factors.”); Carrillo v. Su (In re Su), 290 F.3d 1140,
1146 n.6 (9th Cir. 2002).
In resolving questions of a temporary absence from a homestead, we
have endorsed the “useful analysis” articulated by the bankruptcy court in
In re Bruton, 167 B.R. 923, 926 (Bankr. S.D. Cal. 1994). See In re Bhangoo, 634
B.R. at 89; In re Karr, 2006 WL 6810996, at *5. That analysis focuses on
“whether the debtors demonstrated, rather than merely claimed, their
intent to return to their home after the absence.” In re Karr, 2006 WL
6810996, at *5. “In other words, courts should focus on what objective
evidence showed an intent to return.” In re Bhangoo, 634 B.R. at 89.
Here, the bankruptcy court considered Debtor’s testimony, but
concluded that the objective evidence—including the Agreement and email
exchanges between the parties—showed that Debtor never intended to
return to Bella Cara and instead sought payment from O’Kane for her
interest. The court reasoned:
14
[W]e have so much other evidence, especially written evidence,
that indicates she had no intent to ever move back into the
house. She wanted to sell it. She just wanted money. The only
evidence that slightly supports her claim of homestead
exemption is just her testimony, subjective belief that this is her
homestead and she would get money out of this, since she
wanted to buy a home.
Hr’g Tr. 16:16-23, Feb. 9, 2022.
Debtor clearly expected to be paid for her interest, but the record
does not evidence an intent to return to Bella Cara. She changed her
address on her driver’s license and voter registration, relinquished her keys
and possession of Bella Cara, signed the Agreement which provided for
her to receive payment for her interest, and had communications with
O’Kane in which she continually asked for her buyout. And under the
Agreement, Debtor ceased paying the mortgage, maintenance, taxes, and
other expenses related to Bella Cara.
Debtor argues that she signed the Agreement to preserve her
homestead interest, not to abandon it. But the automatic homestead
requires a debtor to reside in a property, not merely to retain an economic
interest in it. The purpose of the Agreement was to divide the parties’
jointly held property interests. It was an economic transaction that
provided for Debtor to leave Bella Cara and receive payment for her
interest while O’Kane continued living there.
The bankruptcy court’s finding is supported by evidence in the
record, and we do not substitute our judgment for that of the bankruptcy
15
court. See Legal Serv. Bureau, Inc. v. Orange Cnty. Bail Bonds, Inc. (In re
Orange Cnty. Bail Bonds, Inc.), 638 B.R. 137, 149 (9th Cir. BAP 2022). And
“[w]here there are two permissible views of the evidence, the factfinder’s
choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at
574. The bankruptcy court did not clearly err in finding that Debtor lacked
the intent to return to Bella Cara, and it did not err in sustaining the
objection to her homestead exemption.
D. CCP § 704.720(d) is Not Applicable to Debtor’s Situation.
Debtor asserts that under a liberal application of the homestead
statutes required by California law we should treat her the same as a
married spouse in the same situation who would otherwise be allowed the
exemption under CCP § 704.720(d).3 She maintains that the California
Legislature intended individuals forced to leave a homestead under similar
circumstances be entitled to the homestead exemption without needing to
prove their intent to return to the property.
3
CCP § 704.720(d) provides:
If a judgment debtor is not currently residing in the homestead, but his or her
separated or former spouse continues to reside in or exercise control over possession of
the homestead, that judgment debtor continues to be entitled to an exemption under
this article until entry of judgment or other legally enforceable agreement dividing the
community property between the judgment debtor and the separated or former spouse,
or until a later time period as specified by court order. Nothing in this subdivision shall
entitle the judgment debtor to more than one exempt homestead. Notwithstanding
subdivision (d) of Section 704.710, for purposes of this article, “spouse” may include a
separated or former spouse consistent with this subdivision.
16
By enacting CCP § 704.720(d), the California Legislature chose to
extend the homestead exemption to debtors not currently residing in the
property only: (1) while that debtor’s separated or former spouse continues
to reside in the property; and (2) until the community property is divided
by judgment or enforceable agreement. Section 704.720(d) is inapplicable
here; Debtor and O’Kane were not married, and Bella Cara was not
community property. Liberally construing this provision does not permit
us to extend the exemption beyond the express limitations of the statute.
CONCLUSION
Based on the foregoing, we AFFIRM the bankruptcy court’s order
sustaining Trustee’s objection to Debtor’s homestead exemption.
Concurrence begins on next page.
17
TAYLOR, Bankruptcy Judge:
I join with reluctance.
I agree that the California legislature limited application of C.C.P. §
704.720(d) to a separated or former spouse. I recognize that this statute
reflects a legislative recognition that the dissolution of a relationship
frequently requires a termination of joint residence even where physical
threat is not present; accordingly, it provides automatic protection of the
homestead rights of a spouse who vacates the home. But we cannot expand
the statute through judicial fiat to cover non-married persons.
And I acknowledge that the bankruptcy judge's findings of fact as to
Ms. McKee's state of mind are entitled to deference and evaluated under
the clear error standard. Here the findings have sufficient, if far from over-
whelming, support in the record. I must affirm.
But I write separately because the focus of both the bankruptcy court
decision and the memorandum from the Panel appear to me to
inappropriately narrow the frame of inquiry when a domestic partner
leaves a homestead and alleges that the departure is involuntary,
expedient, or based on an actual risk of harm.
First, we cannot lightly deprive a person of a homestead against a
background of alleged physical threat. California law has protected the
homestead when the departure is involuntary and the result of a fear of
1
physical harm for over a century. See Moss v. Warner, 10 Cal. 296, 297-98
(1858); see also Michaelman v. Frye, 238 Cal. App. 268, 704 (1965). 1
Here, the bankruptcy judge implicitly found that such threats were
not the reason for the departure; he found, in effect, that it was a business
decision. The record supports this conclusion: Ms. McKee owned only a
third of the home – the remainder was owned by her former domestic
partner and her former domestic partner's mother; the agreement involved
a broader separation of assets, including dissolution of a law partnership;
the agreement allowed for a total loss of Ms. McKee's interest in the home's
proceeds if she did not perform certain law office related tasks; Ms. McKee
was absolved from responsibility for all costs in connection with the home;
and Ms. McKee neither retained her homestead rights in the document nor
discussed the homestead otherwise when she entered into the transaction.
That Ms. McKee is a lawyer is also supportive of her relinquishment of a
homestead. Again, on this record, I affirm even though I might reach a
different conclusion were the case tried to me.
But in the absence of factors supporting such a business basis for the
departure from the home, I would reverse. And I would do so even if the
1I emphasize that there was no judicial finding substantiating Ms. McKee's allegations
of violence as to Ms. O'Kane. I concur to express concerns as to future cases involving a
substantiated threat of harm or any situation where one domestic partner co-owner
makes the decision that they can no longer live in a jointly owned home without a risk
to physical safety, emotional health, or general well-being or where the removal from
the home is coerced or otherwise involuntary as a result of the termination of the
relationship.
2
facts do not support a conclusion that the departure was not required to
avoid physical harm.
The fact that the co-owner vacating possession rented another
dwelling and acted as the law requires in changing an address on
government documents should be given little or no weight when the
departure from the jointly-owned home is merely-expedient, involuntary,
or coerced. And a well-evidenced desire to return only when or if a former
domestic-partner departs should be sufficient where there is no exchange
of valuable alternative consideration in exchange for vacating the home.
Finally, the fact that the non-resident co-owner is deeply interested in
receiving proceeds to use toward purchase of a new home typically should
support a conclusion that the homestead rights are retained; the purpose of
the homestead exemption is to keep a roof over a person's head. Where the
nonresident party wants to use home proceeds for exactly this purpose and
is not resident in the home because joint habitation is difficult, impossible,
or dangerous, we should interpret the exemption statutes broadly and
absent unusual facts determine that the homestead was not abandoned.
I acknowledge that the California cases to date focus on the intent to
return to the dwelling. But we need not tie-on blinders and ignore that the
shattering of a relationship injects tremendous complication into the
scenario. I am confident that when the relationship between domestic
partner co-owners terminates, the party who vacates the home need not
intend to return in all circumstances to preserve the homestead. In short, I
3
would find it sufficient for retention of the homestead, if such a person, to
borrow from Moss, merely sojourns in another location until it is safe for
body, mind, and spirit to return to the homestead. And, as a result, if the
homestead is sold during this period of absence, I would allow the
inadvertently absent co-owner to claim the proceeds free from creditor
claims and to use them to acquire a safe place to live.
4