dissenting.
I respectfully dissent.
Although the trial court’s and the majority’s desire to spare Gladys a “grave injustice” is commendable, that desire is not justification for working a “grave injustice” against Jessie and Frances, his widow.
In the dissolution action Jessie was without legal representation. When Jessie asked for a clarification, the court said:
“he is to retain his ownership in the property and the wife should have possession, but at no cost to her”.
Gladys’ attorney drew the decree which incorporated the finding of the court. There is no indication that the decree was submitted to Jessie for approval as to form. There is no language in the decree or the hearing which enjoins either party from alienating his or her respective interests in the property. There is no language in the decree or the hearing making exercise of ownership rights in joint- tenancy contingent upon survivorship. The decree did give Gladys a sole possessory right and that this right may continue beyond the severance of the joint tenancy I shall accept arguendo, however, the question of possession in a joint tenancy situation is not dis-positive of other rights.
The majority refers to Mangus v. Miller, 35 Colo.App. 115, 532 P.2d 368 (1974). The court in Mangus at page 118 states:
In a joint tenancy, upon the death of one of the joint tenants, the entire undivided interest of the deceased passes, by operation of law, to the surviving joint tenant. See C.R.S. 1963, 153-15 — 1. In *1062ascertaining whether a joint tenancy has been destroyed, resulting in a tenancy in common, we have recently adopted the modern test which focuses on the intent of the parties with regard to the right of survivorship characteristic. Bradley v. Mann, 34 Colo.App. 135, 525 P.2d 492; Accord, Mamalis v. Bornovas, 112 N.H. 423, 297 A.2d 660. Actions by the joint tenants which are inconsistent with the right of survivorship operate to terminate the joint tenancy. Bradley v. Mann, supra.
Prior to Jessie’s conveyance to Frances, he had conveyed his interest in the family home to his children. A short time later Jessie requested that they reconvey his interest to him, which they did. The original conveyance to his children, which was without objection by Gladys, severed the joint tenancy and created a tenancy-in-common.
There being no language in the the decree of dissolution justifying the trial court’s holding, we have a de facto modification of the original decree. This is impermissible. Bart v. Bart, 538 P.2d 427 (Colo.App.1974) (not selected for publication).
To construe the dissolution decree as the majority does leaves Jessie with no present indicia of ownership, with the obligation to pay an existing mortgage, but only an actu-arially questionable expectancy based on survivorship. This interpretation renders the property division illusory, and without validity. All elements of property ownership are given to Gladys. Jessie is given nothing but a vague expectation. In re Marriage of Gehret, 41 Colo.App. 162, 580 P.2d 1275 (1978), see In re Marriage of Ellis, 36 Colo.App. 234, 538 P.2d 1347 (1975). Where a valid construction of a decree is possible, a decree should not be construed so as to render it inoperative. See Thompson v. Crocker, 18 Colo. 328, 32 P. 831 (1893).
Quoting from Gladys’ own brief, I would hold that “the attributes of ownership each party had before the dissolution continued after the dissolution but for possession in the Appellee.” One of the principal attributes of a joint tenancy is the power to sever by conveyance to a third party. First National Bank of Southglenn v. Energy Fuels Corp., Colo., 618 P.2d 1115 (1980). Such a construction, justly and equitably dividing the property, gives the decree an interpretation consistent with § 14-10-113, C.R.S. 1973.
I would reverse and remand to the trial court with directions to grant defendant appropriate relief.