## Facts

- John and Joanna Droeger were married; Joanna filed for dissolution in 1982 and retained Friedman, Sloan & Ross to represent her.
- In October 1986, the law firm sought over $50,000 in pendente lite attorney’s fees and costs under former Civil Code § 4370(a); the family court awarded $9,600 and reserved the remainder for trial.
- On November 3, 1986, Joanna alone executed (1) a promissory note to the law firm for $31,158.66 and (2) a deed of trust encumbering two parcels of community real property to secure the note.
- John did not sign or consent to the note or deed of trust.
- Before the dissolution concluded, John sued to quiet title and invalidate the deed of trust under former Civil Code § 5127, which required both spouses to join in instruments selling, conveying, or encumbering community real property.

## Issues

1. Whether former Civil Code § 5127 requires joinder of both spouses for an encumbrance of community real property, including a deed of trust securing one spouse’s attorney’s fees during a pending dissolution.
2. If the nonconsenting spouse timely challenges the encumbrance during the marriage, whether the encumbrance is void, voidable only as to the nonconsenting spouse’s one-half interest, or voidable in its entirety.

## Decision

- The California Supreme Court affirmed the Court of Appeal’s reversal of the trial court’s dismissal.
- The Court held that § 5127 required both spouses to consent to an encumbrance of community real property.
- An encumbrance made in violation of § 5127 is not automatically void; it is voidable at the election of the nonconsenting spouse if timely challenged during the marriage.
- Because John did not consent and timely sued during the marriage, he could invalidate the deed of trust in its entirety, not merely as to his one-half interest.

## Legal Principles

- Former Civil Code § 5127 requires both spouses to join in executing an instrument that encumbers community real property.
- A transfer or encumbrance made without the required spousal joinder is voidable, not void.
- When the nonconsenting spouse timely challenges the transaction during the marriage, the remedy permits avoidance of the entire encumbrance on the community real property, not partial enforcement against the signing spouse’s asserted one-half interest.
- Policy concerns about access to counsel in dissolution proceedings do not justify a judicially created exception to § 5127; fee-shifting and interim fee-award procedures supply alternative mechanisms.

## Conclusion

A unilateral deed of trust on community real property given by one spouse to secure dissolution-related attorney’s fees violates former Civil Code § 5127 and, if timely challenged by the other spouse during the marriage, is voidable in full, allowing the nonconsenting spouse to invalidate the encumbrance entirely.


Droeger v. Friedman, Sloan & Ross, 54 Cal. 3d 26 (Cal. 1991)