Opinion
D058355 Super. Ct. No. DS35990
08-31-2011
In re the Marriage of CARY LEE and OLIVIA DU. CARY LEE, Respondent, v. OLIVIA DU, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Katherine A. Bacal, Judge. Affirmed.
Olivia Du appeals from a dissolution judgment in which the family court denied her claim for reimbursement of a $100,000 downpayment toward the parties' community residence, and instead ordered that she and her former husband, Cary Lee, each be reimbursed approximately $50,000 under Family Code section 2640, subdivision (b). Finding Du's testimony not credible, the family court ruled Du did not meet her burden to trace the downpayment to a separate property source so as to support her claim for reimbursement under section 2640, and that the downpayment was made from gifts to Du and Lee from an unknown source. We conclude substantial evidence supports the family court's finding that Lee's $50,000 contribution to the downpayment was money previously gifted to him, entitling him to reimbursement for those funds. We affirm the judgment.
All statutory references are to the Family Code unless otherwise stated.
FACTURAL AND PROCEDURAL BACKGROUND
The parties were married on July 31, 1999. Citing irreconcilable differences, Lee filed a petition for dissolution of marriage in January 2008.
The matter proceeded to trial, which took place over three nonconsecutive days. The main trial issue concerned the characterization of a $100,000 downpayment toward the January 2001 purchase of the parties' community residence. The court heard conflicting testimony from Du and Lee regarding the purpose and source of two approximately $50,000 wire transfers (Du received $49,982 and Lee received $49,984), made on May 16, 2000, into Du's and Lee's separately owned bank accounts, which Du and Lee eventually transferred to an account of Lee's from which the downpayment was made. Du asserted that the entirety of the $100,000 was her separate property that she had won through a lottery in Macau in August of 1992, when she was a student. She testified she had given a portion of her winnings to her father to manage, and the $100,000 was from those funds.
Specifically, Du testified she won $2.2 million in Hong Kong currency as reflected by a check for HK$2.2 million dated August 29, 1992. She received a cashier's check on September 1, 1992, for HK$1.025 million; when questioned about why it was less than half of the original winnings, she explained she had split the money with the friend who invited her to Macau and the remaining portion went to tips for service. Du opened an account with the Dao Heng Bank on September 1, 1992, and deposited the HK$1.025 million check. That same day, she withdrew HK$618,740 from the Dao Heng Bank account and assertedly gave it to her father to manage on her behalf. When asked how much HK$1.025 million was worth in United States currency in 1992, she replied $150,000. Taking her conversion ratio as true, the HK$618,740 converted into United States currency equals roughly $90,550. In the interest of clarity, all Hong Kong currency will be notated by HK$0.00 and all United States currency by $0.00.
Du later testified that in 1992 she transferred approximately $680,000 in Hong Kong currency to her father. She also testified that the amount of money she gave her father to manage was at least $120,000, which stayed in China.
According to Du, in May 2000, she and Lee decided it was time to purchase a family home. For the benefit of the family, she told Lee she would loan the community the $100,000 her father managed for her that she had won in the Macau lottery. She testified that she wanted her father to wire her the money he had managed since 1992. Her father could not wire her the money, however, because Chinese currency could not be transferred to foreign countries. They decided to have her brother-in-law transfer the money from Hong Kong through his company, Wing Yu Trading Company, and her father would then reimburse him. She explained the $100,000 was wired in two separate transfers at the suggestion of some unidentified bank clerk to avoid filing a report with the Hong Kong government. At the time, Du had only one account and did not think it necessary to open a second account rather than have the second transfer go to Lee's account. Du testified that she expected her $100,000 back whenever the house sold. Du claimed she had made it clear to Lee that the money was a loan to the community.
Du testified that her brother-in-law was a partner or employee at Wing Yu Trading Company but she did not have written proof of his employment or access to any of the documents regarding the transfer of money from her father to her brother-in-law. Though she claimed the $100,000 was a no interest loan, Du admitted she did not have Lee sign a promissory note or contract regarding the funds, and she conceded she had commingled the money into Lee's community account for the purpose of purchasing the house.
Lee provided no evidence to directly rebut any of the facts regarding Du's 1992 winnings in Macau, other than to testify that Du never told him she had won the lottery. He took the position in his trial brief that the $100,000 was a gift to him and Du from Du's father. At trial, Lee testified that both Du and her father had told him the money was a gift, and he considered the money a gift. Lee stated: "[Du's father] is so happy that I agreed to marry his daughter and just because he knows I'm not rich and so he wants us to have a good wedding, honeymoon and a nice house. So he offer me some money to do some of those or maybe all of them." According to Lee, Du's father told him the money was to help them buy a house. He also testified he and Du had orally agreed the money was a gift that they would treat as either community funds or $50,000 of separate property to each of them. Lee admitted he had no direct knowledge concerning who transferred the approximately $50,000 into his account; he only knew what Du told him, which was that it was from her brother-in-law, with whom he had never spoken. Both he and Du then transferred the $50,000 from their own personal accounts into his Charles Schwab account, leading Lee to state in discovery responses that the gift was "possibly community money . . . ." Lee testified he also transferred $38,000 of his own funds into the account, but admitted he could not prove that transfer.
The court rejected Du's testimony, finding it "simply not credible." It found she did not adequately provide information regarding "how and when she played and then won a lottery, how and where her father managed the money that was allegedly given to him, what the father did with the other funds that were allegedly provided to him, how and from where [Du's] father transferred funds to the brother-in-law, and what was the brother-in-law's relationship with the company that made the transfers to [Lee and Du]." "Instead, the undisputed evidence was that each of the spouses received almost $50,000 from a third party, each deposited this money into a joint account . . . and that the downpayment was paid from this joint account. [¶] Unless each party made a gift of their $50,000 to the community, each would be entitled to a reimbursement of the amount contributed." Later in its ruling, in addressing spousal support, the court explained that the parties were able to purchase a home and two automobiles, but ruled "it is also clear that the downpayment for the home did not come from the parties' earnings, but was the result of a gift from a third party. There is no evidence, one way or another, whether the parties would have been able to purchase a home had it not been for this gift." The court ordered each party be reimbursed their respective $50,000 contributed toward the downpayment on their community residence.
DISCUSSION
I. Principles of Appellate Review
We begin by setting forth fundamental principles of appellate review. We are required to presume the trial court's judgment is correct and must draw all inferences in favor of the trial court's decision. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) " 'We uphold judgments if they are correct for any reason, "regardless of the correctness of the grounds upon which the court reached its conclusion." ' " (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443; Virtanen v. O'Connell (2006) 140 Cal.App.4th 688, 710.)
An appellant's brief should set out a careful assertion of legal error with meaningful argument and discussion of authorities. (See Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2; Wint v. Fidelity & Casualty Co. (1973) 9 Cal.3d 257, 265; 108 Holdings, Ltd. v. City of Rohnert Park (2006) 136 Cal.App.4th 186, 193, fn. 3.) And " 'error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Further, we will not presume prejudice from an error. It is an appellant's burden to persuade us that the court erred in ways that result in a miscarriage of justice. (Vaughn v. Jonas (1948) 31 Cal.2d 586, 601; In re Marriage of Dellaria (2009) 172 Cal.App.4th 196, 204-205; Cal. Const., art. VI, § 13.)
II. General Legal Principles and Standard of Review
"Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property." (§ 760.) Section 760 creates a presumption, rebuttable by a preponderance of the evidence, that property acquired during the marriage is community property. (In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 1585, 1591; In re Marriage of Haines (1995) 33 Cal.App.4th 277, 289-290.) Section 770, subdivision (a)(1) establishes that all property acquired before the marriage or after marriage by gift is considered separate property. Section 2640 provides for dollar-for-dollar reimbursement, without interest, to a spouse who contributes separate property to the "acquisition" of community property to the extent he or she "traces the contributions to a separate property source." (§ 2640, subds. (a), (b); In re Marriage of Koester (1999) 73 Cal.App.4th 1032, 1033.) "In the division of the community estate under this division, unless the party has made a written waiver of the right to reimbursement . . . , the party shall be reimbursed for the party's contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source." (§ 2640, subd. (b).)
Section 770 states: "Separate property of a married person includes all of the following: [¶] (1) All property owned by the person before marriage. [¶] (2) All property acquired by the person after marriage by gift, bequest, devise, or descent. [¶] (3) The rents, issues, and profits of the property described in this section." (§ 770, subd. (a).) Our state Constitution similarly provides: "Property owned before marriage or acquired during marriage by gift, will, or inheritance is separate property." (Cal. Const., Art. I, § 21; see In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 731-732.)
We review the family court's factual findings for substantial evidence. (See Grey v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503.) Under that standard, " 'we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [¶] It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.' . . . [t]o be substantial, the evidence must be of ponderable legal significance, reasonable in nature, credible, and of solid value. However, substantial evidence is not synonymous with any evidence. 'The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record.' " (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th 1257, 1266 [citations omitted].)
III. Substantial Evidence Supports the Family Court's Finding of a Gift
Du contends the family court erred in finding that the $50,000 wired into Lee's account was a gift to Lee from her father; that Lee presented no evidence of her father's intent or that her father asked anyone to deliver those funds to him. She points out that Lee testified at trial he did not know who actually transferred the money into his account and was not sure how it got there.
Lee maintains the court did not expressly find the property was a gift. But the family court did in fact characterize the deposits (In re Marriage of Haines, supra, 33 Cal.App.4th at p. 291), as a "gift from a third party. . . ." Based on that characterization, it found Du and Lee were each entitled to reimbursement of their approximately $50,000 amounts contributed to the downpayment, and that the community residence would be divided subject to those reimbursements.
"A gift is a transfer of personal property, made voluntarily, and without consideration." (Civ. Code, § 1146.) "Three things are necessary for a valid gift: (1) There must be an intent, on the part of a donor having capacity to contract, to make an unconditional gift. [Citation.] (2) There must be an actual or symbolical delivery, such as to relinquish all control by the donor. [Citation.] (3) The donee must signify acceptance, except where it may be presumed." (13 Witkin, Summary of Cal. Law (10th ed. 2005) Personal Property, § 124, p. 140; see also Burkle v. Burkle (2006) 141 Cal.App.4th 1029, 1036, quoting Jaffee v. Carroll (1973) 35 Cal.App.3d 53, 59.) The question of whether a transfer of funds is a gift is one of fact to be determined from all the evidence. (Burkle, at p. 1036; Jaffe v. Carroll, at p. 61 [whether a gift is complete and effectual is a question of fact to be determined from all the evidence]; Matson v Jones (1969) 272 Cal.App.2d 826, 829; Hart v. Olson (1945) 68 Cal.App.2d 657, 663.) Thus, we review for substantial evidence the family court's finding that Lee's $50,000 contribution to the downpayment was made from funds that were gifted to him. (In re Miller's Estate (1956) 143 Cal.App.2d 544, 549.)
Here, Du challenges only the intent element. "It is the intent with which the delivery is made which is the primary essential, for unless the donor intends to divest itself completely of control and dominion over the property, the gift is incomplete." (Yamaha Corp. of America v. State Bd. of Equalization (1999) 73 Cal.App.4th 338, 358.) The sole authority Du cites is Lynch v. Lynch (1932) 124 Cal.App. 454. But Lynch merely recites general principles, and it involved only a question of whether the transfer of shares of stock on a corporation's books and issuance of new shares was sufficient to establish a legal delivery and thus a completed gift. (Id. at p. 458.) Because the uncontradicted evidence was that the owner of the shares told the donees he intended to make a gift to them (id. at pp. 455-456), the question of intent was not at issue in that case. Lynch does not assist Du.
Considering the entirety of the evidence to determine donative intent as we must (Jaffe v. Carroll, supra, 35 Cal.App.3d 61), we conclude there is sufficient evidence to uphold the trial court's finding. The trial court was entitled to rely upon Lee's testimony that both Du and her father told him the money was a gift. That the testimony was admitted into evidence over counsel's objection, does not change our conclusion. Du does not challenge the trial court's evidentiary ruling, thus its decision to allow Lee's testimony stands. Further, while the trial court found the gift was from an anonymous third party, that finding does not prevent us from upholding the judgment, which we will do on any supporting theory. (Howard v. Thrifty Drug & Discount Stores, supra, 10 Cal.4th at p. 443.) As stated, Lee's testimony supports a conclusion that the money was intended as a gift from Du's father, delivered via another entity by wire transfer into Lee's bank account. There is no evidence any conditions were placed on the transfer, or that any effort was made to retrieve the money after it was deposited into Lee's account.
The Restatement Third of Property, Wills and Other Donative Transfers, section 6.2, comment k, page 24 states that a delivery to a third party for the benefit of a donee constitutes a completed gift if the delivery is made with the intent to make a present transfer to the donee. This rule is consistent with California opinions holding that delivery of a gift or deed to a third party is complete if the donor intends to part with all dominion and control over the property at that time. (Windiate v. Moore (1962) 201 Cal.App.2d 509, 514-515; Herman v. Mortensen (1945) 72 Cal.App.2d 413, 417-418.)
Such transfer, in our view, can be reasonably construed as an act demonstrating clearly and unequivocally the donor's deliberate intent to effect a present transfer of ownership of those funds to Lee. (See Yamaha Corp. of America v. State Bd. of Equalization, supra, 73 Cal.App.4th at p. 358; Gordon v. Barr (1939) 13 Cal.2d 596, 601-602 [delivery is effective "[a]s long as the donor's acts unequivocally show that he intended to divest himself of ownership in the property . . . ."].) We conclude the family court impliedly found such intent in its order.
Du has not met her burden on appeal to establish otherwise. She does not cite authority for the proposition that evidence of donative intent requires testimony from the actual donor. To the contrary, direct evidence from the donor is not required; intent is often proven by circumstantial evidence, that is, inferred from facts and statements surrounding the transaction. (See, e.g., Union Mut. Life Ins. Co. v. Broderick (1925) 196 Cal. 497, 502-503 [involving evidence, following the decedent's death, of decedent's intent to give a gift of an insurance policy]; Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 834 [fraudulent intent].)
Further, while Du is correct in her assertion that the appellate court looks to the entire record on appeal, all inferences must be drawn in favor of Lee, the prevailing party. Du relies solely upon her own testimony and documentary evidence, which contradicts Lee's testimony and other evidence supporting the judgment. But evidence in Du's favor has no bearing on our review: "We have no power on appeal to weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or the reasonable inferences that may be drawn from the evidence." (Navarro v. Perron (2004) 122 Cal.App.4th 797, 803.) Under our standard of review, " 'we look only to the evidence supporting the prevailing party. [Citation.] We discard evidence unfavorable to the prevailing party as not having sufficient verity to be accepted by the trier of fact.' " (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 449.) Credibility is a matter of judicial discretion and "[e]ven though contrary findings could have been made, an appellate court should defer to the factual determinations made by the trial court when the evidence is in conflict." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 479.) We exercise such deference here, where the family court assessed the conflicts in the evidence and specifically passed on Du's credibility.
The family court found that "[Du's] failure to timely claim a separate property right in the down payment certainly put her credibility in question. And her credibility was not buoyed by her testimony at trial." The court found the entire testimony in general not credible. It specifically mentioned the unnamed friend who invited her to Macao, the "company in which the brother-in-law allegedly had some sort of interest," and the "avoid[ance] of some unidentified regulatory or similar governmental hurdle." The court also found several holes in Du's story that not only caused problems in her attempt to trace the separate property interest but called her credibility into question.
Thus, sufficient evidence supports the family court's finding that the $50,000 deposit to Lee's bank account was acquired by him as a gift, entitling him to be reimbursed for those funds expended on the purchase downpayment for the community residence. Having reached that conclusion, we need not address Du's further contentions that her evidence showed the entire $100,000 was her pre-marriage separate property, and that her evidence rebutted the community property presumption.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.