                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 42112

ERIC RYAN KAWAMURA,                                     )
                                                        )     Pocatello, May 2015 Term
     Defendant-Appellant,                               )
                                                        )     2015 Opinion No. 82
v.                                                      )
                                                        )     Filed: August 24, 2015
JESSICA SARA KAWAMURA,
                                                        )
     Plaintiff-Respondent.                              )     Stephen Kenyon, Clerk
                                                        )

       Appeal from the District Court of the Sixth Judicial District of the State of Idaho,
       Bannock County. Hon. David C. Nye, District Judge. Hon. Gaylen L. Box,
       Magistrate Judge.

       The district court’s decision is affirmed.

       Shawn Anderson, Esq., Pocatello, for appellant.

       Lowell N. Hawkes, Chartered, Pocatello, for respondent.
           _______________________________________________

HORTON, Justice.
       This is an appeal from the district court sitting in its intermediate appellate capacity. The
magistrate court presiding over the divorce of Jessica and Eric Kawamura concluded that the
residence located at 1540 Gwen Drive in Pocatello was Eric’s separate property. The district
court reversed, holding that the magistrate court improperly considered parol evidence to reach
its conclusion. We affirm the decision of the district court to the extent that it reversed the
magistrate court’s determination of the character of the property.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
       Jessica and Eric married on August 4, 2001, in Las Vegas. They concealed their marriage
from their families for one year before having a “marriage” ceremony on August 4, 2002, which
was attended by family members. During the course of their marriage, Jessica and Eric lived in
three homes.
       When the couple married, Eric owned a home located at 319 North Johnson Street in
Pocatello (the Johnson Home). In 2002, Eric sold the Johnson Home and purchased a home
located at 636 Highland Boulevard in Pocatello (the Highland Home). The warranty deed to the

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Highland Home conveyed the property to Eric alone. The Highland Home was purchased with
proceeds from the Johnson Home sale and a cashier’s check in the amount of $52,090.37. Eric’s
grandparents provided the funds for the cashier’s check. At trial, although it was undisputed that
the money from Eric’s grandparents was a gift, the parties disputed whether the gift was to Eric
alone or to both Eric and Jessica. The magistrate court found the money was a gift to Eric alone.
         The third home—the subject of this appeal—is located at 1540 Gwen Drive in Pocatello
(the Gwen Home). The purchase price for this home was $172,291 and was paid with the
proceeds from the sale of the Highland Home and a loan of $78,750 from Eric’s parents. 1 The
warranty deed, dated December 17, 2008, conveyed the property to “Eric Kawamura and Jessica
Kawamura, husband and wife.” At closing, Eric and Jessica placed their initials on the warranty
deed next to their names as “Grantee.”
         After Jessica filed this divorce action, the case proceeded to trial on issues relating to the
characterization and division of the parties’ property. The magistrate court found that the Gwen
Home was Eric’s separate property because it was purchased with the proceeds the sale of the
Johnson Home. Although the magistrate court recognized that a portion of the purchase price of
the Gwen residence was paid with the loan from Eric’s parents, the magistrate court did not
discuss the legal significance, if any, of that fact. Indeed, apart from recognizing that “the
parties’ community property and debt should be divided in a substantially equal manner as
required by Idaho Code § 32-712,” the magistrate court’s memorandum decision is utterly silent
as to any statute or case law that it may have considered in reaching its legal conclusions.
         The magistrate court held that there was no community interest in the Gwen Home. The
court reasoned that although the loan from Eric’s parents was partially repaid from Eric’s salary,
which was community property, there was no claim for community reimbursement because the
value of the home had dropped from $172,291 to $165,000.
         Jessica appealed. On appeal, the district court reversed and remanded, holding that the
magistrate court should have found that warranty deed language conveying the Gwen Home to
Jessica and Eric as husband and wife was conclusive as to the character of the property. The
district court further concluded that the magistrate court erred in its determination that there was

1
  The loan from Eric’s parents was interest-free. At trial, the parties disputed the amount of the loan that had been
repaid. Jessica testified that automatic payments were deducted from Eric’s paycheck at the rate of $800 per month.
Eric testified that he made $400 payments twenty-six times per year. Eric’s mother testified that $43,550 was owed
on the loan at the time of trial, while Jessica testified that $45,575 was owed. The magistrate court did not make a
finding regarding the balance of the loan.

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no community interest in the Gwen Home because the payments made on the home were made
from community property which increased the equity in the home. Eric timely appealed to this
Court.
                                   II. STANDARD OF REVIEW
         “When reviewing the decision of the district court acting in its appellate capacity, this
Court directly reviews the district court’s decision.” Kraly v. Kraly, 147 Idaho 299, 302, 208
P.3d 281, 284 (2009).
         The Supreme Court reviews the trial court (magistrate) record to determine
         whether there is substantial and competent evidence to support the magistrate’s
         findings of fact and whether the magistrate’s conclusions of law follow from
         those findings. If those findings are so supported and the conclusions follow
         therefrom and if the district court affirmed the magistrate’s decision, we affirm
         the district court’s decision as a matter of procedure.
Pelayo v. Pelayo, 154 Idaho 855, 858, 303 P.3d 214, 217 (2013) (quoting Bailey v. Bailey, 153
Idaho 526, 529, 284 P.3d 970, 973 (2012)). “This Court exercises free review over conclusions
of law.” Barrett v. Barrett, 149 Idaho 21, 23, 232 P.3d 799, 801 (2010). The characterization of
property as either community or separate presents a mixed question of law and fact. Kraly, 147 at
303, 208 P.3d at 285. Although the manner and method of acquisition of property are questions
of fact for the trial court, the characterization of an asset in light of the facts found is a question
of law over which we exercise free review. Id.
                                            III. ANALYSIS
         Eric challenges two aspects of the district court’s decision. First, he challenges the district
court’s determination that the magistrate court erred by considering parol evidence in order to
determine the separate or community property character of the Gwen Home. Eric further argues
that the district court erred in its alternative analysis. In this alternative analysis, the district court
decided that if the Gwen Home was Eric’s separate property, the community would be entitled to
reimbursement for equity in the home resulting from the use of community funds to pay down
the loan from Eric’s parents.
         The magistrate court did not find the deed to the Gwen Home to be ambiguous; rather, it
characterized the fact that Eric and Jessica were named as grantees as “some evidence of the
nature of the Gwen property.” The district court reversed, holding the magistrate court erred by




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considering parol evidence because the deed was unambiguous. 2 This conclusion was based
upon a recent statement from this Court which, as will be discussed, was erroneous.
         In Hall v. Hall, 116 Idaho 483, 777 P.2d 255 (1989), this Court considered whether the
magistrate court erred in determining that real property, purchased with community funds and
deeded to husband and wife, was “part community in nature and part separate.” Id. There,
husband’s grandmother claimed that the property was worth substantially more than the purchase
price and that “the value above the purchase price was meant to be a gift to the husband alone.”
Id. at 484, 777 P.2d at 256. This Court found that the magistrate court erred by admitting the
grandmother’s testimony, stating:
         Where possible, the court should give effect to the intention of the parties to a
         deed. Where the language of a deed is plain and unambiguous the intention of the
         parties must be determined from the deed itself, and parol evidence is not
         admissible to show intent. Oral and written statements are generally inadmissible
         to contradict or vary unambiguous terms contained in a deed. If the language in
         the deed is ambiguous, then evidence of all the surrounding facts and
         circumstances is admissible to prove the parties’ intent. The parol evidence rule
         does not preclude the use of extrinsic evidence to explain the parties’ intent when
         the provisions of a writing are ambiguous. Where, as here, the consideration
         clause clearly recites that the transfer was made “For Value Received,” parol
         evidence is not admissible to contradict the deed by attempting to show the
         transfer was in part a “gift” rather than “for value.”
Id. (internal citations and footnote omitted).
         Subsequent decisions from this Court make it clear that it is a mistake to interpret Hall as
holding that an unambiguous deed is conclusive as to the character of property acquired by that
deed. In Kraly, 147 Idaho 299, 208 P.3d 281, during the course of the parties’ brief marriage,
husband used the proceeds of the sale of his separate property to purchase a parcel of real
property. Id. at 301, 208 P.3d at 283. The warranty deed conveyed the property to Mr. and Mrs.

2
  The district court defined the question before it as one of transmutation of Eric’s separate property by operation of
the warranty deed. Although it does not alter the outcome of this appeal, the district court inaccurately defined the
question before it. “Transmutation” is defined as: “A change in the nature of something: esp., in family law, the
transformation of separate property into marital property, or of marital property into separate property.” Black’s Law
Dictionary 1638 (9th ed. 2009); see also Ustick v. Ustick, 104 Idaho 215, 223, 657 P.2d 1083, 1091 (Ct. App. 1983)
(“Transmutation is a broad term used to describe arrangements between spouses which change the character of
property from separate to community and vice versa.”).
  “The character of an item of property as community or separate vests at the time of its acquisition.” Matter of
Freeburn’s Estate, 97 Idaho 845, 849, 555 P.2d 385, 389 (1976). As there is nothing in the record suggesting that
the parties took any action evidencing an intention to change the character of the Gwen Home from separate to
community or vice versa following its acquisition, the facts of this case do not present a question of transmutation.



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Kraly as “husband and wife.” We rejected wife’s claim that because “the warranty deed
unambiguously identifies the … property as community property” it was “dispositive as to the
property’s character.” Id. at 302, 208 P.3d at 284. Instead, we described the analysis employed to
determine the character of property:
              Whether a specific piece of property is characterized as community or
       separate property depends on when it was acquired and the source of the funds
       used to purchase it. The character of property vests at the time the property is
       acquired. Property acquired during a marriage is presumed to be community
       property. The presumption can be overcome if the party asserting the separate
       character of the property carries his burden of proving with reasonable certainty
       and particularity that the property acquired during marriage is separate property.
Id. at 303, 208 P.3d at 285 (internal citations and footnote omitted).
        In Barrett, 149 Idaho 21, 232 P.3d 799, we considered a case where, in the course of
refinancing her separate property, wife executed a quitclaim deed to herself and her husband as
tenants by the entirety. The magistrate judge presiding over their subsequent divorce action
agreed with husband’s contention that this transmuted the property from separate to community.
The magistrate court found the deed to be unambiguous and excluded extrinsic evidence as to
wife’s intent. Id. at 22, 232 P.3d at 800. The district court remanded the case for the magistrate
court to consider parol evidence in its determination whether husband had met his burden of
proving transmutation. Id. at 22–23, 232 P.3d at 800–01. We affirmed the decision of the district
court. In our discussion, we noted that we had occasionally made statements regarding the effect
of deeds that had “obscured” the governing rule of law. Id. at 24, 232 P.3d at 802. Our decision
in Barrett largely relied on our previous decision in Winn v. Winn, 105 Idaho 811, 673 P.2d 411
(1983). We explained that in Winn, a case
       involving a property purchase concluded some months after the marriage using
       separate property of the husband, the Court considered a variety of factors to be
       considered in the absence of the parties’ “actual, articulated intent”: (1) whether
       the community was liable for payment on the loan; (2) the source of the payments
       toward the loan; (3) the basis of credit upon which the lender relied in making the
       loan; (4) the nature of the down payment; (5) the names on the deed; and (6) who
       signed the documents of indebtedness. Id. at 814–15, 673 P.2d at 414–15. This
       Court explained:
               [t]he presence or absence of any or all of the above listed factors is
               relevant in determining the character of the credit by which a loan
               is obtained. None is conclusive. We deliberately refrain from
               selecting one item as dispositive. Such an approach is too rigid in
               light of our ultimate purpose of determining the likely intent of the

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                 spouses and in consideration of the highly individualistic and often
                 complex fact situations presented.
        Id. at 815, 673 P.2d at 415. The fact that Winn involved the purchase of new
        property rather than the question of whether existing property was transmuted
        does not change the analysis here. Winn was clear in its holding that evidence
        beyond the deed itself could be introduced to determine the character of property
        even where that determination might differ from the language of the deed.
Barrett, 149 Idaho at 24, 232 P.3d at 802.
        Unfortunately, in a decision authored after Barrett, this author spawned further confusion
by serving up erroneous dicta which the district court relied upon in deciding Jessica’s appeal:
                Although unnecessary to the determination of this appeal, we feel it is
        important to reiterate the limited scope of our holding in Barrett v. Barrett, 149
        Idaho 21, 232 P.3d 799 (2010). In that case we held that “the language of a deed
        executed in the course of refinancing does not conclusively determine the
        character of property for purposes of a divorce action.” Id. at 24, 232 P.3d at 802.
        That is a narrow exception to the general requirement that deeds are to be
        interpreted by their plain language. This Court recognized that when a deed is
        executed at the behest of a bank during refinancing, it is not necessarily a
        completely accurate portrayal of the grantor’s intent. Barrett should not be
        interpreted as allowing extrinsic evidence in other situations where the deed is
        unambiguous.
Garrett v. Garrett, 154 Idaho 788, 791 n.1, 302 P.3d 1061, 1064 n.1 (2013).
        Today, we reiterate our decisions in Barrett and Winn and repudiate the dicta in Garrett.
However, as the character of property is a question of law to be decided upon the facts found by
the trial court, we affirm the district court’s decision reversing the magistrate court’s conclusion
of the character of the Gwen Home on alternative grounds.
        The Gwen home was purchased during the course of the marriage. Thus, it was
presumptively community property. The community was liable to repay the loan from Eric’s
parents. The community was the source of the funds used to make payment on the loan. Eric and
Jessica were named as grantees in the deed to the Gwen Home, a fact that they acknowledged at
the time of its acquisition by their initials on the deed. The only evidence favoring Eric’s claim
that the Gwen Home was Eric’s separate property is the fact that his separate property was the
source of the down payment on the home. This single fact is insufficient to overcome the
presumption that the Gwen Home was community property. 3 In light of this holding, we do not

3
 Eric likely has a claim against the community for reimbursement of his separate estate for separate property that
can be traced to the down payment on the Gwen Home. Matter of Freeburn’s Estate, 97 Idaho 845, 850, 555 P.2d
385, 390 (1976).

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reach the district court’s alternative analysis that would apply if the Gwen Home were separate
property.
                                        IV. CONCLUSION
        For the foregoing reasons, we affirm the district court’s decision to reverse the magistrate
court’s conclusion that the Gwen Home was Eric’s separate property. We award costs on appeal
to Jessica.
        Chief Justice J. JONES and Justices EISMANN and BURDICK, CONCUR.
W. Jones, J. specially concurring:
        Although I agree that the decision of the district court should be affirmed, I write to
clarify that I adhere to my dissent in Barrett v. Barrett, 149 Idaho 21, 26, 232 P.3d 799, 804
(2010). This case could similarly be interpreted based entirely on the fact that the deed was
unambiguous and the black letter law in real property transactions is that parol evidence is not
admissible for interpreting an unambiguous deed. Thus, I would affirm the decision of the
district court that the magistrate court improperly considered parol evidence.
        “When an instrument conveying land is unambiguous, the intention of the parties can be
settled as a matter of law using the plain language of the document and without using extrinsic
evidence.” Camp Easton Forever, Inc. v. Inland Nw. Council Boy Scouts of Am., 156 Idaho 893,
899–900, 332 P.3d 805, 811–12 (2014); Porter v. Bassett, 146 Idaho 399, 404, 195 P.3d 1212,
1217 (2008). In this case, when Eric and Jessica bought the Gwen property, the deed issued that
property to “Eric Kawamura and Jessica Kawamura, husband and wife.” Both Eric and Jessica
placed their initials on the warranty deed next to their names as “Grantee.” Because there is no
ambiguity in the interpretation of the deed, no extrinsic evidence is necessary beyond the
language of the deed. Therefore, the property conclusively belongs to “Eric Kawamura and
Jessica Kawamura, husband and wife.”
        This Court has very subtly changed what has been the law of Idaho regarding property
for the last hundred years. In conveyances of real property, where a deed is unambiguous and
clear it is conclusive and parol evidence is not admissible to alter or vary its terms.
        The first rule of construction to be applied to a written instrument in order to
        determine what is intended by it is that resort shall be had to the language of the
        instrument itself, and if the expressed meaning is plain on the face of the




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       instrument it will control. The intention must be ascertained from the language of
       the deed itself where that is not ambiguous.

Meir-Nandorf v. Milner, 34 Idaho 396, 201 P. 720, 721 (1921) (quotations and citations
omitted).

       In a divorce case the court must deal with determining the nature of the property
(separate or community), as well as the distribution of the property (to husband or wife). The
majority seems to be inappropriately attempting to merge the considerations for determining the
division of marital property with the interpretation of an unambiguous property deed. This is a
mistake. The assignment of property in a marital divorce is a different consideration from the
question of whether a deed is ambiguous.
       Indeed, the Majority goes further than it did in the Barrett case where the consideration
of outside evidence only applied to a refinancing situation. As I emphasized in my dissent in
Barrett, unambiguous deeds are to be determined by what they say. The Court muddied the
waters of property law in Barrett, by allegedly creating a “narrow exception” to the general rule,
and now goes further by indicating that Barrett was not a narrow holding at all. The question
now becomes whether this Court will say that all real estate transactions by all parties, regardless
of the financing, are examined for the intent of the parties regardless of the clarity of the deeds.
       Additionally, as I pointed out in my dissent in Barrett, the Court still fails to give an
explanation as to why property transactions that involve husbands and wives should be treated
differently than deeds between complete strangers or between husbands and wives in situations
other than divorce. Although implied, the majority fails to state that this holding applies only to
the interpretation of deeds between married couples. The implications of allowing parol evidence
in interpreting unambiguous property deeds will lead to uncertainty in all property transactions.
This uncertainty will affect all parties involved in real property transactions, including lending
institutions and title insurance companies.
       Therefore, I would affirm the decision of the district court that the magistrate improperly
considered parol evidence in its interpretation of the Gwen property deed. Because this deed was
unambiguous, its interpretation need go no further than the language of the deed itself. As stated
in the deed, the Gwen home was not Eric’s separate property, but belonged to both “Eric
Kawamura and Jessica Kawamura, husband and wife.”




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