Opinion
NOT TO BE PUBLISHED
Contra Costa Super. Ct. No. D06-03212
Bruiniers, J.
The trial court in this marital dissolution proceeding determined contested property issues following presentation of conflicting evidence. The trial court entered a judgment which, inter alia, determined the former family residence to be the separate property of respondent James Parks (James), denied reimbursement to the community for purported improvements to that residence and for community pension payments received by James, and awarded an investment account to James as his separate property. Appellant Shelley Parks (Shelley) contends that the court committed reversible error in refusing to issue a statement of decision and further erred in its evaluation and legal analysis of “tracing” separate and community funds relative to the residence and investment account. She also claims that the trial court erroneously denied reimbursements to the community. We reverse and remand to the trial court for retrial of one claim for reimbursement to the community and for correction of a clerical error. In all other respects we affirm the judgment.
We refer to appellant and respondent by their first names for convenience and clarity only. No disrespect is intended. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
I. Background
The record provided by the parties is inadequate but, as discussed post, certain facts were not in dispute. James and Shelley were married on September 14, 1973, and separated on May 24, 2002. James began work for the United States Postal Service in 1965 and retired at age 45 in 1992. Shelley began work at Chevron in 1970 and remained employed there at the time of trial.
Trial commenced on September 13, 2007. Testimony was taken on that date and on November 21, 2007. Between those dates the court held a hearing on September 14, 2007, to resolve a dispute as to admissibility of certain documents offered by James that Shelley alleged had not been produced in requested discovery. At the conclusion of evidence, the court ordered the parties to submit written summations and proposed judgments, with the matter to stand submitted as of December 15, 2007. Both parties submitted written summations on December 10, 2007. James submitted a reply on December 28, 2007, and Shelley filed a supplemental trial brief and a rebuttal on the same date. The court issued its tentative decision on January 25, 2008. Shelley filed a motion for reconsideration and a request for statement of decision on February 4, 2008. On February 14, 2008, the motion for reconsideration was denied and the request for statement of decision was denied as untimely. Shelley filed a timely notice of appeal.
A trial begins upon commencement of opening statements or, if none, when the first witness is sworn. (Code Civ. Proc., § 581, subd. (a)(6).)
Proceedings not referenced by either party also occurred on October 17, 2007. The October 17 proceedings dealt only with termination of marital status and resulted in a bifurcated judgment of dissolution.
The transcript reflects a submission date of December 15, 2007. The clerk’s minutes indicate a submission date of December 14, 2007. The difference is not material to any issue in this appeal.
II. Discussion
A. Failure to Issue a Statement of Decision
We first address Shelley’s claim that reversal is mandated by the trial court’s refusal to issue a statement of decision. Code of Civil Procedure section 632 provides in part: “The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. 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.” (Italics added; see also Cal. Rules of Court, rule 3.1590.) If a statement of decision is timely requested, it is mandatory for the trial court to issue one. (Miramar Hotel Corp. v. Frank B. Hall & Co. (1985) 163 Cal.App.3d 1126, 1129.) The failure to prepare a statement of decision upon timely request is reversible error. (Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1397.)
Shelley contends that the request was timely since the trial had taken, by her calculation, a total of eight hours and thirty-nine minutes. Respondent James asserts that the correct total is eight hours and one minute.
On September 8, 2008, we granted Shelley’s motion to augment the record to include photocopies of the faces of audio CD disks of the trial court proceedings bearing the clerk’s notations of the start and stop times of trial proceedings, and a declaration of court manager Karen Cardinale Ortega confirming the start and stop time of proceedings.
The discrepancy between Shelley’s computation of total trial time and the number calculated by James is attributable to Shelley’s inclusion of approximately 43 minutes spent by the trial judge conducting in camera review on September 14, 2007, of document production requests and responses. Except in cases of administrative mandamus (Bevli v. Brisco (1985) 165 Cal.App.3d 812), “the time of trial means the time that the court is in session, in open court, and also includes ordinary morning and afternoon recesses when the parties remain at the courthouse. It does not include time spent by the judge off the bench without the parties present—lunch, for example—except for such routine recesses as occur during the day.” (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 980 (Gray), italics added.) However, as discussed post, it ultimately is irrelevant whether Shelley’s or James’s calculations are correct. We need not decide if the time spent by the court reviewing the documents in chambers, not in open court, would be properly included in calculation of the total trial time or the significance of the one additional minute if it is not.
While both parties now appear to agree that the proceedings on September 14, 2007, were part of the “trial” of the case for purposes of this computation, neither of them did so in the trial court. When Shelley requested a statement of decision, she identified the relevant trial dates as “9-13-07 and [1]1-21-07” as did James in his response. Although we are willing to assume, without deciding, that at least some portion of the proceedings on September 14, 2007, would have been properly included in calculating the total trial time, that argument was not made to the trial judge and Shelley is precluded from asserting it here. In her request she focused the court’s attention only on the two dates on which evidence was taken, and the court then correctly determined that the time of trial on those dates was less than eight hours. “[W]here a party by his conduct induces the commission of an error, under the doctrine of invited error he is estopped from asserting the alleged error as grounds for reversal.” (In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, 1640.)
Although the caption of Shelley’s Request for Statement of Decision identifies the hearings as “9-13-07 and 1-21-07,” it is clear from her accompanying Points and Authorities that the latter date should have read “11-21-07.” Shelley also identified the trial dates as “9-13-07 and 11-21-07” in three filings on December 10, 2007 (Petitioner’s Trial Summation, Detailed Summation of the Evidence, and Proposed Form of Judgment), and again in her Rebuttal to Respondent’s Trial Summation on December 28, 2007.
The clerk’s minutes of September 14, 2007, identify the proceedings as “trial.” But see Gray, supra, 103 Cal.App.4th at p. 979: “We cannot realistically expect trial judges to keep stopwatches to record time spent off the bench in chambers, a home office, or at the kitchen table studying the law and evidence.”
Shelley’s own calculations of the trial time for September 13, 2007, and November 21, 2007, would total seven hours and forty-one minutes which is consistent with our review of the record.
B. Tracing Issues
1. Standard of Review
“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 appellant’s burden to affirmatively demonstrate error. [Citations.]” (Gray, supra, 103 Cal.App.4th at pp. 977–978.) We must presume the trial court made all factual findings necessary to support the judgment for which there is substantial evidence. (In re Marriage of Condon (1998) 62 Cal.App.4th 533, 549–550, fn. 11; see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133–1134 [when parties waive a statement of decision expressly or by not requesting one in a timely manner, appellate courts reviewing the appealed judgment must presume the trial court made all factual findings necessary to support the judgment for which there is substantial evidence].)
Our task in reviewing the evidence is greatly complicated by Shelley’s failure to comply with the Rules of Court and basic rules of appellate practice. Her briefs are largely devoted to rearguing the facts and appear to be in significant part a regurgitation of the posttrial pleadings submitted in the trial court. While this superficially may appear economical for the client, it is of little help to us. An “ ‘appellate court is not required to search the record on its own seeking error.’ [Citation.]” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) “ ‘The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue. Unless this is done, the error assigned is deemed to be waived. [Citation.]’ ” (In re Marriage of Fink (1979) 25 Cal.3d 877, 887 (Fink).)
James’s brief fares no better, providing even less in record citations, but he has the good fortune to benefit from the presumptions favoring the judgment entered in the trial court.
To the extent that she cites to the trial record, Shelley fails to address the adverse evidence presented below. “ ‘It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings.’ [Citations.]” (Fink, supra, 25 Cal.3d at p. 887 .) To challenge the sufficiency of the evidence, it is part of an appellant’s fundamental obligation to this court to set forth the version of events most favorable to the prevailing party. (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.) “ ‘A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]’ [Citation.] Where a party presents only facts and inferences favorable to his or her position, ‘the contention that the findings are not supported by substantial evidence may be deemed waived.’ [Citation.]” (Ibid., last two citation omissions added; see also In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 530 (Steiner) [failure to summarize the evidence adduced by the other side waives any issue in this regard].)
Further, both Shelley and James reference trial exhibits (as well as deposition testimony) which neither party sought to include in the record before this court. (See Cal. Rules of Court, rule 8.224(a)(1).) We therefore disregard any factual assertions based on matters not contained within the record. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1220, fn. 4.) While the absence of an adequate record would justify summary rejection of all claims raised in this appeal, we nonetheless attempt to address the merits to the extent that the meager record provided permits us to do so.
2. The Kenwal Residence
Regarding the Kenwal residence, it apparently was undisputed that: the residence was purchased prior to the date of marriage by James’s mother, Loretta Parks (Loretta), in approximately May 1972; the purchase price was $27,739.68; James moved into the residence prior to the date of marriage in 1973 when Loretta moved out of the house. The parties also stipulated that the down payment, in the amount of $1,552.03, was paid by Loretta, and that there was a mortgage of $25,300. James was deeded a joint tenancy interest by Loretta about the time he moved in. Shelley moved into the residence following the marriage. There was conflicting evidence presented, primarily through the testimony of Shelley and James, as to whether the mortgage payments between 1973 and March 1991, when Loretta passed away, were made by Loretta or instead by James using community assets. James inherited the house as the surviving joint tenant.
After Loretta’s death, the mortgage payments were made by James from a bank account maintained in his name only, but which received deposits of both separate and community funds, until the mortgage was paid off in February 2001. James testified that the separate funds deposited to the account and the balance maintained of those separate funds at all times exceeded the amounts required to pay the mortgage.
Shelley cites In re Marriage of Mix (1975) 14 Cal.3d 604, 610–611 (Mix) and In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 441 (Marsden) for the proposition that where funds are paid from a commingled account, the presumption is that the funds are community funds, and that in order to overcome this presumption, a party must trace the funds expended to a separate property source. While she correctly cites the rule, “[t]his issue presents a question of fact for the trial court and its finding will be upheld if supported by substantial evidence. [¶]... When separate funds deposited with community funds continue to be on deposit when the withdrawal is made and it is the intention of the drawer to withdraw separate funds specifically, the separate property status of the withdrawn funds is established.” (In re Marriage of Frick (1986) 181 Cal.App.3d 997, 1010–1011.) While Shelley continues to challenge the credibility of James’s evidence, the testimony of a single witness credited by the trier of fact will constitute substantial evidence of that fact unless the testimony is physically impossible or inherently improbable. (Mix, supra, 14 Cal.4th at p. 614).
Substantial evidence therefore supported the trial court’s express finding that James had successfully traced the payments on the property to a separate property source and that the Kenwal residence was James’s separate property. Shelley fails to meet the “daunting burden” imposed upon an appellant who challenges the sufficiency of the evidence to support a judgment. (See In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328–329.)
3. The Schwab 3890 Account
This investment account, which was apparently in James’s name only, was opened during the term of the marriage in February 1996, with approximately $52,250 deposited. Shelley points to testimony that at least $23,000 of this sum came via a credit union account into which James had regularly deposited his community earnings as a postal employee and his post-retirement pension payments. James testified that the source of the funds was a total of $52,000 in cash from his mother’s property, which had been deposited into the credit union and into his personal checking account.
Shelley alleged at trial that the large cash amounts James said came from his search of his mother’s home after her death were actually proceeds of an illicit (and community property) enterprise selling psychedelic mushrooms. (See Q-Soft, Inc. v. Superior Court (2007) 157 Cal.App.4th 441, 449–450.)
Shelley again challenges tracing of the funds deposited to this account to separate property sources. Again her failure to summarize the evidence adduced by James forfeits any issue in this regard. (Steiner, supra, 117 Cal.App.4th at p. 530.) In any event, the trial court could properly credit James’s testimony that the funds deposited to this account were attributable to his inheritance.
4. Community Reimbursement for Kenwal Remodeling Costs
Shelley contends that the trial court erred in failing to require reimbursement of the community for $11,058.21 incurred in remodeling the kitchen of the Kenwal residence in 1990. She submitted an exhibit detailing these expenses, which is not part of the record here. James disputed the claim, testifying that he did not know the amounts spent, the source of the funds, or if Shelley had been reimbursed by his mother. This claim was separate and distinct from her claim of a pro tanto Moore/Marsden interest in the Kenwal property. Shelley made no effort to establish that the alleged improvements enhanced the value of the Kenwal property, and she was thereby limited to a claim for reimbursement of one-half of the community funds spent on improving James’s separate property. (In re Marriage of Wolfe (2001) 91 Cal.App.4th 962, 972–973.)
Shelley cites purportedly conflicting testimony from James’s deposition. This is once again not part of the record here, and the reference is disregarded.
In re Marriage of Moore (1980) 28 Cal.3d 366; Marsden, supra, 130 Cal.App.3d 426.
While the trial court expressly rejected Shelley’s claim of a community interest in the Kenwal residence, the reimbursement issue was not directly addressed in the court’s decision or in the judgment. As discussed ante, however, in the absence of a statement of decision, “ ‘we will presume the trial court found every fact necessary to support its decision.’ [Citation.] ‘Where... there is a conflict in the evidence, “we will infer findings in favor of the [order]....” ’ [Citations.] ‘In reviewing [an order] without a statement of decision the appellate court indulges every intendment in favor of the [order].... The task of the appellate court is limited to searching the record for any substantial evidence which will support the [order].’ [Citation.]” (In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203, 1219, all but citation omissions in original.)
The trial court rejected the claim by failing to grant reimbursement. The court could reasonably have found Shelley’s evidence on this disputed claim unpersuasive and insufficient to meet her burden of proof on this question.
5. James’s Post-Separation Retirement Payments
Shelley argues that the trial court erred in failing to require James to account to the community for the post-separation payments he received from the postal service. James ignores this issue entirely in his respondent’s brief. “[I]f the right to retirement benefits accrues, in some part, during marriage before separation, it is a community asset and is therefore owned by the community in which the nonemployee spouse as well as the employee spouse owns an interest. [Citation.]” (In re Marriage of Lehman (1998) 18 Cal.4th 169, 179 (Lehman).) It was undisputed that James was employed by the postal service both before and during the marriage, and therefore a pro rata community interest existed in the post-separation retirement income received by James. James did not dispute that he received USPS retirement income both during the marriage and after the date of separation. The court ordered the division of the community portion of either party’s interest in any deferred compensation plan, including any retirement plans, with division by a qualified domestic relations order if required. However, the order and the resulting judgment did not provide compensation to Shelley for her community share of the USPS pension payments received by James after separation, which she contended totaled $77,232.00 as of the time of trial. The consequence of the court’s order was an unequal division of the community interest in this asset.
Shelley contended that she was owed one-half of this amount, or $38,616.00. She also acknowledged, however, that the community interest in the USPS pension benefits was 71 percent. Her interest in the post-separation cash distributions would necessarily be limited to one-half of this lesser amount (i.e., 50 percent of $54,834.72).
Family Code section 2550 requires the court, subject to limited exceptions, to divide the community estate of the parties equally. (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 967 (Quay).) Family Code section 2610, dealing with retirement plans, provides in relevant part that: “(a) Except as provided in subdivision (b), the court shall make whatever orders are necessary or appropriate to ensure that each party receives the party’s full community property share in any retirement plan, whether public or private,....” (See also In re Marriage of Schofield (1998) 62 Cal.App.4th 131, 135.) “The superior court must apportion an employee spouse’s retirement benefits between the community property interest of the employee spouse and the nonemployee spouse and any separate property interest of the employee spouse alone. [Citations.]... Whatever the method that it may use, however, the superior court must arrive at a result that is ‘reasonable and fairly representative of the relative contributions of the community and separate estates.’ [Citation.]” (Lehman, supra, 18 Cal.4th at p. 187.)
Generally, we review a ruling dividing property under the abuse of discretion standard. (Quay, supra, 18 Cal.App.4th at p. 966.) Here the trial court lacked discretion to apportion the community interest in James’s retirement benefits in a manner that did not comply with Family Code sections 2550 and 2610 and Lehman. We are therefore required to reverse on this issue, and remand the matter to the trial court to determine the amount of any equalizing payment due to achieve an equal division. Since it appears that the trial judge who originally presided over the trial has retired and no longer has capacity to act, the issue must be retried. (See Raville v. Singh (1994) 25 Cal.App.4th 1127.)
Retrial of this issue is required because other factors may exist which the trial court may consider in providing for equalization of the USPS pension benefits. Such factors may preclude simple mathematical calculation of Shelley’s pro rata percentage interest against the sums received, including adjustment for taxes that James presumably paid on the entire distributions, including Shelley’s share. (A nonemployee spouse’s share of such distributions is taxable to him or her notwithstanding the fact that the payments were first distributed to the employee spouse who then, acting as a conduit, turned the funds over to the nonemployee. See Powell v. Commissioner (1993) 101 T.C. 489, 497–499 [because distributions from a pension plan are community property under California law an employee spouse would be deemed to receive the distributions “on behalf of the community [so] that... later payment to [the ex-spouse would be] a transfer to [the ex-spouse] of funds that at all times belonged to [him or] her,” fn. omitted]; Eatinger v. Commissioner (1990) 59 T.C.M. (CCH) 954.) We do not suggest what result the trial court should reach, so long as an equal division is affected.
C. Clerical Error on Vehicle Valuation
Shelley asserts that the judgment reflects a clerical error in assigning a valuation of $500 to a 1980 GMC truck awarded to James. The parties agreed that the value of this community asset was $1,500. Since the matter is otherwise remanded for limited retrial, we will order that this correction be made by the trial court and that the judgment be corrected to provide for a $750 offsetting payment to Shelley.
III. Disposition
The matter is remanded to the trial court for purposes of a limited retrial on Shelley’s claim for reimbursement to the community for USPS pension payments received by James between the date of separation and date of division of the asset, and for correction of a clerical error in the judgment to assign a stipulated value of $1,500 to the 1980 GMC truck awarded to James and a corresponding offset to Shelley. The judgment is otherwise affirmed. Each party will pay his/her own fees and costs.
We concur: Simons, Acting P. J., Needham, J.