In re Marriage of SANDRA and EDWARD FOSSUM
SANDRA FOSSUM, Respondent,
EDWARD FOSSUM, Appellant.
California Court of Appeal, Second District, First Division
January 28, 2011
Appellant Edward Fossum and his ex-wife, respondent Sandra Fossum purchased a
house in 1994. To obtain the best interest rate, the property was purchased in Edward’s
name alone, but later title was placed in both spouses’ names. In 1998, the parties agreed
to enter into the same arrangement in order to obtain a good interest rate on a loan to
refinance their home. Sandra quitclaimed her interest in the property to Edward, but he
never restored Sandra’s name to title. Following trial in this action, the trial court
determined the house was community property. Edward contends that ruling was in error.
Prior to the parties’ separation, Sandra took a cash advance on a credit card of $24,
000, but never disclosed the transaction to Edward. The trial court found Sandra had
breached her statutory fiduciary duty to her spouse. (Fam. Code, § 721, subd. (b).)
Edward contends the trial court erred when it refused to award him attorney fees, which
are mandated under section 1101, subdivision (g), for Sandra’s fiduciary violation. On
this point, we conclude Edward is correct.
FACTUAL AND PROCEDURAL BACKGROUND
Edward and Sandra Fossum were married in September 1994, after having lived
together since 1992. They separated in November 2002.
The parties had no children
together, although Sandra had a minor child from a prior relationship. Sandra filed a
petition for dissolution in January 2003. Trial was conducted on various dates during
February, March, June and October 2007. The primary dispute at trial, and on appeal,
involves the characterization of real property located at 21557 Placerita Canyon Road,
Santa Clarita (the “property, ” or “house”). Escrow on the property closed in October
1994. The down payment on the property was between $30, 000-$38, 000. The funds for
the down payment came from the Fossums’s joint savings account.
The first quitclaim
At trial, Sandra testified that the source of the down-payment funds was money she
and Edward earned together working in Edward’s construction business during 1994,
repairing homes after the Northridge earthquake. Sandra worked primarily as a “laborer,
” laying floors, repairing cracks, working on stone, and assisting Edward with design
work and shower, kitchen and complete home remodels. She and Edward traveled
together to and from work each day. The funds had been kept in a savings account that