Opinion
G030006.
11-20-2003
In re Marriage of MICHELE and MICHAEL CAMERON. MICHELE M. CABORI, Respondent, v. MICHAEL CAMERON, Appellant.
Law Office of Robert I. Duskis for Appellant. No appearance for Respondent.
In a proceeding for dissolution of marriage, the court entered a further judgment on reserved issues. Appellant Michael Cameron raises several issues on appeal. We are called upon to decide whether the court committed error when it failed to issue a statement of decision pursuant to Code of Civil Procedure section 632; whether the court abused its discretion in determining who should receive primary physical custody of the minor child; and whether the court erred in characterizing, valuing and dividing the community property. We conclude the court did not abuse its discretion in awarding primary physical custody of the child to respondent Michele Cabori, but we also conclude the court failed to effect an equal division of the community property. We modify the judgment and affirm as modified.
Cabori has not filed a brief. Under California Rules of Court, rule 17 (a)(2), we decide the appeal based on the record and the opening brief. Cameron has not requested oral argument.
FACTS
Appellant and respondent were married on May 25, 1996, and separated on October 25, 1999. Following a judgment of dissolution entered on December 11, 2000, a trial on reserved issues was held on May 22, June 13, June 18 and July 12, 2001. An additional hearing was held on August 29, 2001, to clarify certain issues and judgment was entered on September 12, 2001.
The judgment awarded primary physical custody of the minor child, Marisa, to Cabori, and set a visitation schedule for Cameron; denied each party any spousal support or attorney fees; and characterized, valued, and divided the community property. Other facts will be recited as germane to the discussion that follows.
DISCUSSION
The Court Was Not Required To Prepare a Statement of Decision
Cameron contends the court committed reversible error when it denied his request for a statement of decision. We disagree.
The time for requesting a statement of decision is governed by Code of Civil Procedure section 632, which provides in pertinent part: "The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision." Rule 825(a) of the California Rules of Court defines when a matter is submitted. "A cause is deemed submitted in a trial court when either of the following first occurs: (1) the date the court orders the matter submitted; or (2) the date the final paper is required to be filed or the date argument is heard, whichever is later." Of course, once the court rules, it has already heard the argument, and, by definition, the matter has been submitted. Accordingly, in a trial of less than eight hours, a request for statement of decision must be made before the court rules.
Here, the court made a series of rulings as it addressed each of the issues presented by the parties. Our review of the record reveals the court made its final ruling on issues related to child custody, child support, and visitation on June 13, 2001; its final ruling on reimbursement credits related to the family residence on June 18, 2001, as well as clarification of its final ruling on visitation; and its final rulings on issues of spousal support, and other property issues on July 12, 2001. At the August 29, 2001 hearing, the court merely clarified issues previously ruled upon.
Thus, the last rulings made by the court on any of the issues Cameron complains about occurred on July 12, 2001. Camerons request for a statement of decision came later, on August 29, 2001. The court made an express finding that the trial had lasted less than eight hours over more than one day. Thus, Camerons request for a statement of decision made on August 29, 2001, was untimely.
In denying counsels oral request for a statement of decision, the court advised, "I have given you my statement on the record. I did the last time we were here. I am not going to do it again."
Cameron has not shown the courts finding was erroneous. "A judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. [Citation.] It is the appellants burden to affirmatively demonstrate error." (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.) In response to counsels query about the amount of trial time spent, the court responded, "We are not beyond the eight hours. The last time I ended this case I said we had not exceeded the eight hours and had my clerk calculate that. [¶] . . . [¶] The fact that you are here post trial with other additional requests of the court doesnt mean its gone beyond eight hours." Cameron has failed to furnish a record to impeach the express findings of the court on this issue. Thus, Cameron has not carried his burden of showing the trial court erred. (Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1051-1052.)
The Court Did Not Abuse Its Discretion by Awarding Primary Physical Custody to Cabori
Cameron argues the court applied an incorrect standard of law when it awarded primary physical custody of four-year-old Marisa to Cabori. Cameron contends the court required him to show a significant change in circumstances rather than considering de novo the best interest of the child. Although at one point the court articulated the wrong standard, we nevertheless conclude the court did not abuse its discretion.
The initial OSC hearing was held before Judge Brice on January 3, 2000. Both parties requested primary physical custody of Marisa. Cabori alleged Cameron was manic-depressive, in need of hospitalization for psychiatric treatment, over indulgent of alcohol, verbally abusive and incapable of feeding or changing Marisa in her absence. In response, Cameron submitted documentation from his therapist and psychiatrist stating that while he suffered from depression, he was capable of caring for the child.
The OSC hearing resulted in a temporary order awarding joint custody to both parents, awarding Cabori primary physical custody, and granting Cameron standard conditions of visitation. A final judgment dissolving the marriage was entered on December 11, 2000, reserving all other issues for trial. All reserved issues, including custody of Marisa, were eventually set for trial and heard by Judge Seymour.
At the outset, we acknowledge the appropriate standard of review. "The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test. [Citation.] The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the `best interest of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)
In Montenegro v. Diaz (2001) 26 Cal.4th 249, 255, the Supreme Court reaffirmed the long-standing rule that where the court has made no previous final custody determination, a modification of the existing custody arrangement does not require that a significant change of circumstances since the date of the previous order be shown. Instead, the court must apply the best interest standard, and award custody "in the best interest of the child." (Fam. Code, § 3040, subd. (b).) The court held that where prior custody orders were temporary, and not final, the trial court properly applied the best interest of the child standard, and not the changed circumstances standard.
In Burchard v. Garay (1986) 42 Cal.3d 531, the court held the changed circumstance rule applies "whenever custody has been established by judicial decree." (Id. at p. 535.) Burchard further explained the relationship between the best interest rule and the changed circumstance rule. "The changed-circumstance rule is not a different test, devised to supplant the statutory [best-interest] test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the childs best interest. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements." (Ibid.) In Montenegro, the court made clear, however, that the changed-circumstance rule applied only to situations in which modification of a final custody order was sought.
Significantly, the court in Burchard recognized that in "most cases . . . the changed-circumstance rule and the best-interest test produce the same result. When custody continues over a significant period, the childs need for continuity and stability assumes an increasing important role. That need will often dictate the conclusion that maintenance of the current arrangement would be in the best interests of that child. But, there will be occasional cases where it makes a difference." (Burchard v. Garay, supra, 42 Cal.3d at p. 538.)
For example, in In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, this division concluded that application of the wrong standard could and did make a difference in that case. In Lewin, the court awarded primary physical custody of the child to the father, even though, like the present case, the mother had custody of the child from birth, and the previous custody orders had been temporary. Under the facts shown by the evidence in Lewin, we held the trial court properly awarded custody to the father based on the childs best interest without requiring proof of changed circumstances. The burden was not shifted to the father to show a change in circumstances.
But the instant case is not one of those "occasional cases where [application of the wrong standard] makes a difference." While the court did at one point state the wrong standard, its ultimate decision was not an abuse of discretion. Cameron presented scant evidence that Marisas best interests would be served by granting him primary physical custody. And on the other side of the scale was the existence of a stable long-standing custody arrangement, with no evidence that it was not working well for Marisa.
At the outset of the hearing on May 22, 2001, the court said, "I think we are looking at the best interests of the child. [& para;] So what do you want to present? [¶] . . . [¶] You should present evidence as to what you want the order to be." The court further stated, "I think we start out with the idea that, you know, unless there is some attack on the parents parenting skills or temperament or personality traits, that they are on equal footing. [¶] So, where do we go from there?" As part of its quest to determine who was the more appropriate parent to have primary custody, the court directed counsel to inquire whether Cabori denied Cameron visitation, or made it impossible for him to exercise visitation rights consistent with the existing order.
Cameron testified he should have primary custody because Cabori tried to deprive Marisa from seeing him. Cameron claimed Cabori was not helpful when he had visitation problems and was unable to make his visits due to his work schedule. During the 17 months the custody order had been in effect, Cabori denied his request to adjust the visitation schedule about 12 times. Cameron also claimed Cabori was using two women friends as substitute fathers. Cameron also testified he was the more patient parent. However, the court ultimately found, and Camerons counsel admitted, Cabori had not violated the existing custody and visitation order.
Family Code section 3040, subdivision (b) grants the court the "widest discretion to choose a parenting plan that is in the best interest of the child." By its direction of counsels questioning, the court attempted to determine what custody arrangement was in Marisas best interest. Acknowledging there was a long-standing custody arrangement in existence, the court attempted to have Cameron demonstrate it was in Marisas best interest that he receive primary custody. By its inquiry, the court attempted to ascertain whether Cabori had frustrated the temporary custody order by limiting Camerons ability to see his child, and attempted to evaluate the ability of Cameron to care for Marisa during his periods of visitation. In short, the court attempted to ascertain what custody arrangement would be in the best interest of the child. The court, after listening to the testimony of Cameron, determined the child should remain with Cabori.
It is true that when the parties returned to finish the trial on June 13, 2001, the court said to Cameron, "[T]here is an element of stability and continuity there. There is a burden on your part to show a change of circumstances." But we do not read this remark as necessarily imposing the wrong standard. In context, the court had already listened to Camerons testimony offered on the issue of the best interest of Marisa. The court was not persuaded that anything it heard suggested that Marisas best interest would be served by a change in primary physical custody. In effect, the court told Cameron it had weighed the element of stability against Camerons testimony, and the stability of the existing custody arrangement outweighed Camerons reasons for requesting a change.
Thus, we cannot say the court abused its discretion in awarding primary physical custody to Cabori. From the evidence, it appears the long-standing custody agreement already in effect worked well. "`An appellate tribunal is not authorized to retry the issue of custody, nor to substitute its judgment for that of the trier of facts. Only upon a clear and convincing showing of abuse of discretion will the order of a trial court in such matters be disturbed on appeal. Where minds may reasonably differ, it is the trial judges discretion and not that of the appellate court which must control." (In re Marriage of Lewin, supra, 186 Cal.App.3d at p. 1492.) Because the record amply supports the trial courts exercise of discretion, we affirm the custody decision.
Property Issues
Cameron contends the court made a variety of errors in characterizing, valuing, and dividing the community assets and liabilities. We agree some errors were made. But they can easily be corrected.
Family Code section 2550 requires the court to "divide the community estate of the parties equally." Family Code section 2551 also requires the court to "characterize liabilities as separate or community and confirm or assign them to the parties in accordance with Part 6 (commencing with Section 2620)."
The trial of this matter was a disjointed affair, conducted in segments over several days. The parties offered very little "evidence," as usually understood, and as defined in section 140 of the Evidence Code. Instead, counsel for the parties made offers of proof on discrete issues and argued their respective positions, sometimes punctuated by a question or two directed to one of their clients, and then the court ruled. Our review of the transcript suggests the trial proceeded in this fashion mostly because neither counsel was prepared to put on their evidence in the normal fashion. The courts frustration with their lack of preparation and unfamiliarity with some of the basic facts concerning the property is evident.
The judgment awards miscellaneous items of personal property to the party having possession of each respective item. Although Cameron complains that certain of the items should have been valued and divided separately, no evidence, or even offer of proof, was made by either party at the time of trial. The court did not abuse its discretion in confirming to each of the parties the personal property they had informally divided by taking possession.
The court did, however, undertake to value certain assets and liabilities and to divide them between the parties. Although we have concluded the court was not required under the circumstances to prepare a statement of decision, the court nevertheless was required to effect an equal division of the community property. The division of property set forth in the judgment fails to do so. The manner in which the accounting is set forth is difficult to follow. Instead of showing a straightforward listing of the charges and credits assigned to each party, totaling them up, and equalizing any resulting inequality with an equalization payment, the judgment shows a series of charges and credits in a manner that inspires little confidence that the community estate was equally divided. Charges and credits sometimes reflected money owed to or from the community as a reimbursement or credit, and sometimes these items represented the division of an asset already dissipated after the date of valuation. Although the accounting was probably understandable to the parties, it is difficult to follow on the face of the judgment. Nevertheless, by reviewing the evidence and offers of proof at trial, together with the arguments of the parties both orally and in their written trial briefs, the judgment can be understood.
First, we conclude the court erred in characterizing a community debt known as the "Leasecomm debt" as Camerons separate obligation. We also conclude the values of the assets and liabilities set forth in the judgment are supported by substantial evidence and require no further correction. Lastly, we conclude the judgment does not effect an equal division of the community property. As we will show, the error is not large, but it is substantial enough to require correction. Fortunately, Family Code section 2555 permits us to revise the disposition of the community estate "in all particulars, including those which are stated to be in the discretion of the court." The evidence is sufficient to allow us to revise the disposition, thereby not subjecting the parties to further proceedings on these issues in the trial court.
1. The Leascomm Debt
The judgment provided that "all other debts listed by [Cameron] shall be paid by [Cameron]." One of those debts was known as the "Leasecomm debt." The court determined the Leasecomm debt resulted from an improvident investment made by Cameron in an online merchant account he had acquired to sell surplus merchandise over the Internet. Although Cameron explained the Leasecomm debt generated no income for the community, he testified it represented an unsuccessful attempt to supplement the community income during a period he was on disability.
The court ruled the debt was not a community debt and assigned it to Cameron as his separate obligation because it produced "absolutely no benefit. . . . This is just like throwing the money away. [¶] . . . [¶] Where somebody uses bad judgment and wastes material resources, I am not convinced that the court has to follow that. [¶] . . . [¶] I think the court has discretion where somebody cant justify an expenditure adequately that its not going to stick the other party."
The evidence does not support the courts conclusion. Family Code section 2625 provides: "[D]ebts incurred by a spouse during marriage and before the date of separation that were not incurred for the benefit of the community, shall be confirmed without offset to the spouse who incurred the debt." In re Marriage of Hirsch (1989) 211 Cal.App.3d 104, held that a debt consisting of a damage award arising out of a spouses negligent conduct while serving as a member of a board of directors was properly characterized as a community debt, where the evidence before the court showed mostly an intangible benefit to the community. In In re Marriage of Bell (1996) 49 Cal.App.4th 300, the court characterized a damage award arising out of a spouses embezzlement as a proper community obligation where the community had enjoyed the fruits of the embezzled money. We do not read section 2625 to command that a debt be characterized as separate simply because it arose from an improvident expenditure. The only evidence before the court showed that Cameron made an honest effort to benefit the community — an effort, to be sure, that may have been improvident in hindsight. Although the community received no monetary return for this expenditure, an honest effort was made to begin a new business for the benefit of the community. We think the community should bear the burden of the failed business venture, and not saddle one spouse with the entire loss. Thus, we conclude there was no basis to characterize the Leasecomm debt as Camerons separate debt.
The Leascomm debt amounted to $1,936. This amount must be added to the list of community liabilities to be divided.
2. The Division of Community Property
We begin our review of the division of community property by preparing a balance sheet for the community, using the assets and liabilities shown in the judgment. The assets are: a house, valued by the court at $235,000; Caboris 401(k) plan, valued at $1,500; Camerons 401(k) plan, valued at $6,380; Caboris bank account, valued at $500; and Camerons bank account valued at $38. The liabilities include loans and liens against the house, valued at $212,323, and other debts totaling $15,448. We adjust this last number by adding in the Leasecomm debt making the total unsecured debt $17,384.
Other adjustments must be made for separate property contributions to the community, for money withdrawn or contributed to the community estate after separation, as well as to compensate the community for a partys exclusive use of the house after separation. The judgment reflects, and the evidence supports, the following adjustments.
Cabori was entitled to be reimbursed $5,724 by the community estate as her separate property contribution to the down payment on the house. (Fam. Code, § 2640.) On the other hand, Cabori had exclusive possession of the house for 16 months after separation, thereby incurring an obligation to the community estate for the rental value of that occupancy. (In re Marriage of Watts (1985) 171 Cal.App.3d 366, 372-374.) The parties stipulated the fair rental value was $1,919 per month, so Cabori owed the community $30,704. Against that charge, the evidence showed Cabori contributed to the community after separation by making payments on the house loans and for property taxes in the amount of $27,873.85 (rounded to $27,874). She is entitled to reimbursement from the community for those payments. (In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85.)
Cameron had exclusive possession of the house for four months, and, like Cabori, owed the community $1,919 per month for that occupancy. Cameron made no offsetting payments against the house loans. Thus Cameron owed the community $7,676 for his use of the house. But the evidence also showed that after separation Cameron reduced the amount of a community loan from his 401(k) plan by paying the amount of $3,486. He is entitled to be reimbursed in that amount by the community.
Thus, we construct the community balance sheet as shown.
------------------------------------------------------------------------ | ITEM | ASSETS | LIABILITIES | |-----------------------------------------------|----------|-------------| | House | $235,000 | | |-----------------------------------------------|----------|-------------| | Cabori 401(k) | $1,500 | | |-----------------------------------------------|----------|-------------| | Cameron 401(k) | $6,380 | | |-----------------------------------------------|----------|-------------| | Cabori Bank Account | $500 | | |-----------------------------------------------|----------|-------------| | Cameron Bank Account | $38 | | |-----------------------------------------------|----------|-------------| | Loans and liens against house | | $212,323 | |-----------------------------------------------|----------|-------------| | Other debts | | $17,384 | |-----------------------------------------------|----------|-------------| | Receivable from Cabori (use of house) | $30,704 | | |-----------------------------------------------|----------|-------------| | Receivable from Cameron (use of house) | $7,676 | | |-----------------------------------------------|----------|-------------| | Payable to Cabori (payments on house loans) | | $27,874 | |-----------------------------------------------|----------|-------------| | Payable to Cameron (payments on 401(k) loan | | $3,486 | |-----------------------------------------------|----------|-------------| | Payable to Cabori (reimburse down payment) | | $5,724 | |-----------------------------------------------|----------|-------------| | TOTALS | $281,798 | $266,791 |
The net value of the community estate is $281,798, less $266,791, or $15,007. Each party is entitled to receive property having a net value of one-half the community estate, or $7,503.50.
We now review the judgment to determine the assets and liabilities assigned to each party. Cabori was awarded the house at a value of $235,000, her 401(k) plan valued at $1,500, and her bank account valued at $500. The total value of these assets, before accounting for debts (liabilities), was $237,000. Against those assets, she was assigned community debts consisting of the loans and a lien against the house amounting to $212,323, and other debts totaling $5,908. She was also reimbursed for her down payment and charged and credited with the use of the house and the payments she made.
Cameron was awarded his 401(k) plan valued at $6,380, together with a $38 bank account. The total value of these assets, before accounting for debts, was $6,418. Against those assets, Cameron was assigned community debts totaling $9,540, which we adjust to $11,476 to account for the Leasecomm debt. Finally, Cameron was charged with the use of the house and credited for his payments on the 401(k) loan.
The above word description for the property distribution is represented in an accountants traditional "T-account" for each of the parties as shown.
------------------------------------------------------------------------ | ITEM | CABORI | CABORI | CAMERON | CAMERON | | | Charges | Credits | Charges | Credits | |------------------------------|----------|----------|---------|---------| | House | $235,000 | | | | |------------------------------|----------|----------|---------|---------| | Cabori 401(k) | $1,500 | | | | |------------------------------|----------|----------|---------|---------| | Cameron 401(k) | | | $6,380 | | |------------------------------|----------|----------|---------|---------| | Cabori Bank Account | 500 | | | | |------------------------------|----------|----------|---------|---------| | Cameron Bank Account | | | $38 | | |------------------------------|----------|----------|---------|---------| | House loans and liens | | $212,323 | | | |------------------------------|----------|----------|---------|---------| | Division of debts | | 5,908 | | $11,476 | |------------------------------|----------|----------|---------|---------| | Caboris use of house | $30,704 | | | | |------------------------------|----------|----------|---------|---------| | Camerons use of house | | | $7,676 | | |------------------------------|----------|----------|---------|---------| | Caboris house payments | | $27,874 | | | |------------------------------|----------|----------|---------|---------| | Camerons 401k loan Payments | | | | $3,486 | |------------------------------|----------|----------|---------|---------| | Caboris down payment | | $5,724 | | | |------------------------------|----------|----------|---------|---------| | TOTAL | $267,704 | $251,829 | $14,094 | $14,962 | ------------------------------------------------------------------------ Net to Cabori $15,875 Net to Cameron <$868> Difference $16,743
The equalization payment owed by Cabori to Cameron is one-half of $16,743 or $8,371.50. When this payment is made, each party will have received one-half of the net community estate in the amount of $7,503.50. But Cabori does not owe this entire amount. The evidence also showed that she had already paid Cameron $5,000 in connection with a modification of the loan against the house. Giving Cabori credit for her payment results in a remaining equalization payment being owed by Cabori to Cameron in the amount of $3,371.50.
Other Issues
Cameron complains the court did not conduct the trial in the manner set forth in Code of Civil Procedure section 607. But "[t]he trial court has wide discretion in the conduct of a trial and unless it can be shown that there was an abuse of discretion, an appellate court will not interfere." (Kraft v. Nemeth (1952) 115 Cal.App.2d 50, 52.) The court did not abuse its discretion when it did its best to conduct the trial efficiently in the face of a welter of unorganized and incomplete information presented by counsel.
The other issues raised by Cameron are not supported by adequate argument or authority. "`In a challenge to a judgment, it is incumbent upon an appellant to present argument and authority on each point made. Arguments no presented will generally not receive consideration." (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278.) For this reason, we deem Camerons remaining issues waived.
DISPOSITION
Pursuant to section 2555 of the Family Code, the judgment is modified by ordering Cabori to pay Cameron $3,371.50 as the remaining balance of an equalization payment due him. As modified, the judgment is affirmed. In the interest of justice, the parties shall bear their own costs on appeal.
We concur: SILLS, P.J., FYBEL, J.