dissenting.
I respectfully dissent.
The majority here has determined that respondent, Dewey F. Dodge, was an “occupant” for purposes of the homestead exemption statute. In my view, neither the facts nor the law supports that conclusion.
The homestead statute, § 38-41-203, C.R.S. (1982 Repl.Vol. 16A), states: “Said property, when so homesteaded, shall only be exempt as provided in this part 2 while occupied as a home by the owner thereof or his family.” It has long been the law in Colorado that occupancy of the premises by one claiming a homestead exemption is a necessary prerequisite to enforcement of such a claim. Helkey v. Ashley, 113 Colo. *267175, 155 P.2d 143 (1945); Pierson v. Truax, 15 Colo. 223, 25 P. 183 (1890).
One can “occupy” only one place at a time for purposes of the homestead exemption. “[T]he right of occupancy is something that would have to exist either in toto or be completely nonexistent. Occupancy is a physical thing. It cannot alternately appear and disappear like the Cheshire cat in Alice in Wonderland.” Wallace v. First National Bank, 125 Colo. 584, 246 P.2d 894 (1952).
Once one ceases to reside on homesteaded property, a presumption of abandonment arises, and the claimant has the burden of overcoming the presumption by clear and definite evidence. Monte Vista Bank & Trust Co. v. Savage, 75 Colo. 180, 225 P. 219 (1924). In Savage, our Supreme Court held that a vague intention to return perhaps at some future time to reside at the homestead will not preserve the exemption; rather, an intention that is sufficient to rebut the presumption of abandonment must be positive and certain, not conditional and indefinite. Thus, as the Savage court stated, for occupancy to continue once the claimant has left the property, “it must appear that the removal was temporary in its nature, made for a specific purpose, with the intention of reoccupying the premises.”
Roberta Dodge, the decedent, owned the home in her sole name prior to her marriage to respondent and did not change the title. Thus, respondent had no record interest in the home.
Respondent testified that, in June or July 1981, he “moved out” of the home by agreement with decedent, and established his own residence. He caused the utility bills for Roberta Dodge’s home to be changed to her sole name. He neglected to have the propane gas bill for the house transferred, but it was not a monthly bill, as were those for other utilities. He did not recall filling out a change of address form at the post office, but there is no evidence whether he received all his mail at decedent’s home.
He set up housekeeping in a mobile home he owned in the area of decedent’s home and caused bills for its maintenance to be sent to him. On a few instances, in the fall of 1981, he briefly attempted reconciliation and stayed in decedent’s home for a few days at a time. At all other times from June 1981 to decedent’s death, he lived in his mobile home.
After they separated, he and decedent attended marriage counseling, hoping to reconcile their differences. However, respondent testified that there was no agreement that he return to the home on a permanent basis, but only that he had hoped to convince decedent that they should reconcile. Indeed, there is no evidence that the parties did reconcile, and respondent testified that he sought counsel for purposes of filing a dissolution of marriage action approximately a week before decedent’s death.
The testimony of respondent belies any conclusion that he was an “occupant” for purposes of the homestead exemption statute. Respondent’s testimony is replete with his “hopes,” his “wishes,” and his “anticipation” that he could move back to decedent’s home. Nevertheless, he testified that “there had been no agreement .... I had not set a specific date for my return.” Nowhere in the record is there any indication that either respondent or decedent had taken any action that would indicate respondent had regained his status as an “occupant” of the homestead.
Thus, in determining that respondent occupied decedent’s house for purposes of the homestead exemption, the trial court and the majority have, in my view, misapplied the relevant law to the uncontradicted facts in this case.
Secondly, I dissent because I believe the majority has invaded the province of the General Assembly by rewriting § 38-41-204, C.R.S. (1982 Repl.Vol. 16), the homestead exemption statute. See Tompkins v. DeLeon, 197 Colo. 569, 595 P.2d 242 (1979). It has done this by applying tortured logic to arrive at its conclusion that, here, “or” means “or both.” While that conclusion *268evidences an attempt to achieve an equitable result, the statute, as worded, does not allow such an interpretation.
Having determined that respondent qualified as an “occupant” pursuant to § 38-41-203, C.R.S., the majority ignores the plain language of § 38-41-204, C.R.S., which states:
“When any person dies seized of a homestead leaving a widow, or husband, or minor children, such widow, or husband, or minor children are entitled to the homestead. In case there is neither widow, husband, nor minor children, the homestead shall be liable for the debts of the deceased.” (emphasis added)
If respondent qualifies as an occupant, as the majority concludes, then he should be awarded the entire homestead exemption. If he does not, then decedent’s children should be awarded the exemption. A fair and plain reading of § 38-41-204 admits of no other interpretation.
Nor does the majority interpretation further the purpose of the statute. If respondent were responsible for the care of decedent’s minor children, then he would be entitled to the exemption to preserve the “family home.” Wallace, supra. But here respondent has no responsibility for the care of decedent’s minor children. There is no “family” whose home will be protected by awarding respondent the exemption.
The net result of the majority’s determination is to allow both the respondent and the minor children to be entitled to assert homestead exemptions, until the “homestead estate terminates.” Consequently, administration of this relatively modest estate can only be a procedural and financial nightmare for all participants. Indeed, the most likely effect of the majority’s pronouncement here is that it will echo through the trial and appellate courts of this state until it dissipates the funds of all concerned.
Moreover, the majority’s ruling may operate to thwart the desires of the testator who intended that all the proceeds of her sole significant asset were to go to her children, rather than to her estranged husband who had contributed nothing towards the purchase of the property and had no claim of title to it.
I would reverse the trial court’s order, and award the homestead exemption to the children.