Opinion
2d Civil No. B228077 Super. Ct. No. D317238
01-04-2012
In re Marriage of GLORIA and SALVADOR CARLOS, JR. GLORIA CARLOS, Appellant, v. SALVADOR CARLOS, JR., Respondent.
Law Offices of David L. Ingram, David L. Ingram; Law Offices of Dale Van Camp and Dale Van Camp for Appellant. Law Offices of Michael D. Percy, Michael David Percy; Ferguson Case Orr Paterson LLP and Wendy C. Lascher for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Ventura County)
Gloria Carlos appeals from a judgment of the family law court ordering her to reimburse her ex-husband, respondent Salvador Carlos, for her use of the family residence from the date of separation to the date of judgment. (In re Marriage of Watts (1985) 171 Cal.App.3d 366 (Watts).) Gloria contends the trial court erred because she did not have sole and exclusive possession of the residence. We affirm.
We refer to the parties by their first names for clarity. No disrespect is intended.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Gloria and Salvador were married for 42 years before Gloria filed a petition for dissolution of marriage in July 2006. In the petition, she indicated that the date of separation was 10 years earlier on August 20, 1996. Salvador filed an answer to the petition also stating that the date of separation was August 20, 1996.
In his respondent's brief, Salvador briefly reiterates an argument he made in the trial court that the separation date was not August 20, 1996, but July 27, 2006, and that Gloria has received a windfall by deeming the date of separation to be in 1996. The 1996 separation date was adjudicated in the 2007 proceeding when the court divided Salvador's pension benefits based on the 1996 separation date. Salvador did not appeal that decision and the determination is conclusive. (See Faught v. Faught (1973) 30 Cal.App.3d 875, 878 [a decree of legal separation operates as a final adjudication of such financial aspects of the matrimonial relationship, including division of community property and settlement of property rights, and to the extent the decree deals with such matters it is conclusive].)
On October 9, 2007, the court entered a judgment of dissolution determining that Salvador's pension and IRA were community property, to be divided equally. The court found that Salvador had begun receiving pension benefits in 1998 and had not paid Gloria her one-half share. The court ordered Salvador to pay Gloria $66,924 as her share of Salvador's pension benefits accruing to the date of trial. The court reserved jurisdiction over the issues of spousal support, community real property, and Gloria's request for attorney fees.
In 2009, trial on the reserved issues was held before a different judge. Gloria sought sole ownership of the four-bedroom, two-bath family residence in Ventura; spousal support of $450 per month; and attorney fees. Salvador requested that the Ventura residence, as well as another property in Kern County, be sold; that no spousal support be awarded, and that each party pay their own attorney fees. He also requested that he be reimbursed for one-half the cost of real property appraisals.
Salvador testified that he moved out of the Ventura residence after the date of separation and into a 22-foot travel trailer located on the Kern County property. The Kern County property was purchased in 1995. Salvador had paid all expenses related to the property since that time. The trailer had no water, sewer, plumbing or electricity. Therefore, Salvador stayed at the Ventura residence about two days a week to wash clothes, take a shower, and "take care of business." He testified he had use of only one bedroom in the Ventura residence. He had made all the mortgage payments on the Ventura residence until the mortgage was paid off in January 2006. He also had paid all the mortgage payments on the Kern County property and paid all of the property taxes and homeowner's insurance on the Ventura residence and the Kern County property from the date of separation to the date of trial. He also paid the gas, water and trash bills for the Ventura residence from the date of separation until 2003.
The evidence was conflicting as to when Salvador moved to the Kern County property. The trial court properly used the separation date asserted by Gloria, initially acquiesced in by Salvador, and adjudicated in the initial phase of the trial.
Gloria testified she had been living in the Ventura residence for 45 years and did not want to lose it. Since the date of separation, their three adult children and four grandchildren have lived in the residence with her. She testified that she did not receive rent from her children but that they helped her pay living expenses. Gloria's testimony was inconsistent concerning the amount of money she received from the children on a monthly basis. Gloria's testimony also was equivocal on the amount of money Salvador contributed to utility and other expenses of the Ventura residence during the separation. She testified that Salvador was not limited in the use of the Ventura residence to only a single bedroom.
After trial, the court issued a statement of decision containing, inter alia, the following findings of fact: (1) The parties stipulated, based upon an appraisal, that the Ventura residence had a fair market value of $367,000, and a fair rental value of $1,800 per month; (2) The parties stipulated, based on an appraisal, that the Kern County property had a fair market value of $203,000; and (3) The fair rental value of the Kern County property was $300 per month.
The court awarded the Ventura residence to Gloria and the Kern County property to Salvador, with Salvador entitled to an equalizing payment of $82,000 based on the stipulated values of the two properties. Gloria was awarded $81,680.02 in unpaid pension benefits through December 2009.
The court also determined that Gloria was not entitled to spousal support, denied her request for attorney fees, and ordered her to pay Salvador $1,062.50 as her share of the appraisal costs. Gloria does not challenge these determinations on appeal.
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With respect to Watts credits, the court said: "Husband is requesting Watts credits for Wife's exclusive use and possession of [the family residence] since 1996. Wife argues that she did not have sole use and possession because Husband would come to the house an average of 2 days a week to bathe, wash his clothes, etc. The evidence supports Husband's position. Wife testified that after Husband left she moved his things onto the patio. She made changes to the house. Husband had use of one room while he was there to wash his clothes [and] bathe. After Husband left, Wife moved her adult children into the house, and more recently her grandchildren."
Based on Salvador's use of one room in the Ventura residence for two days a week, the court reduced the fair rental value of the Ventura residence by $300, from $1,800 to $1,500 per month. The court awarded Salvador Watts credits of $750 per month for Gloria's use of the Ventura residence. Gloria was awarded Watts credits of $150 per month for Salvador's exclusive use of the Kern County property, for a net credit to Salvador of $600 per month, or $96,000, for the period September 1996 to December 2009.
On appeal, Gloria contends, as she did in the trial court, that the award of Watts credits to Salvador was improper because Gloria did not have sole and exclusive use and possession of the Ventura residence during the period of separation.
DISCUSSION
Standard of Review
A decision to impose Watts charges is reviewed for abuse of discretion. (In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1272.)
The Trial Court Did Not Abuse Its Discretion in Imposing Watts Charges
Family Code section 2550 requires the trial court, upon dissolution of marriage, to divide the community estate of the parties equally. (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 748 [construing former Civil Code section 4800, subd. (a)].) A court's failure to effect a net equal division of community property is reversible error. (In re Marriage of Bell (1996) 49 Cal.App.4th 300, 310-311.)
In equalizing the division of community property, the trial court has the authority to reimburse the community for the value of one spouse's exclusive use of a community asset between the date of separation and the date of trial--commonly referred to by the family law bench and bar as a Watts credit or Watts charge. (Watts, supra, 171 Cal.App.3d at p. 374; see In re Marriage of Bell, supra, 49 Cal.App.4th at p. 311; see generally Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2011) If 8:855, p. 8-213.) Thus, "[w]here one spouse has the exclusive use of a community asset during the period between separation and trial, that spouse may be required to compensate the community for the reasonable value of that use." (In re Marriage of Garcia (1990) 224 Cal.App.3d 885, 890.) The rationale for Watts charges is that they help achieve an equal distribution of the community estate, by allocating credits to one party for the other party's exclusive use of a community estate after separation. (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 631-632.)
There are no specific guidelines for determining when Watts charges should or should not be awarded. Rather, the trial court has broad discretion and must consider all the circumstances when determining whether it is equitable, fair, and reasonable to order reimbursement in a particular case. (Watts, supra, 171 Cal.App.3d at p. 374; In re Marriage of Braud (1996) 45 Cal.App.4th 797, 818-819.) We conclude the trial court was within its discretion in awarding Watts charges.
The trial court found Salvador's testimony that Gloria removed Salvador's possessions from the Ventura residence and that he used only one room in the family residence twice a week to be credible. These findings support the conclusion that Gloria had exclusive use and control of the Ventura residence after the date of separation.
The trial court could have ordered sale of the real properties and division of the proceeds as Salvador requested. However, the court "tried to find a way to keep Wife in the family home in which she has lived for 45 years." The Ventura residence awarded to Gloria was much more valuable than the Kern County property awarded to Salvador. The Watts charges imposed on Gloria were based on the testimony as to the parties' use of the Ventura residence since the date of separation. Salvador's presence in the residence a couple of days a week to wash his clothes did not legally or factually diminish Gloria's exclusive possession and control of the Ventura residence.
Family Code section 2550 was intended to, and does, vest in the trial court considerable discretion in the division of community property in order to ensure an equitable settlement. "The exercise of a trial court's sound discretion is best preserved by maintaining a maximum degree of allowable flexibility." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 603.)
The order of the trial court is affirmed. Respondent shall recover costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
GILBERT, P.J.
YEGAN, J.
Gay Conroy, Judge
Superior Court County of Ventura
Law Offices of David L. Ingram, David L. Ingram; Law Offices of Dale Van Camp and Dale Van Camp for Appellant.
Law Offices of Michael D. Percy, Michael David Percy; Ferguson Case Orr Paterson LLP and Wendy C. Lascher for Respondent.