Opinion
A152588
01-27-2020
In re the Marriage of JEWELL HARGLEROAD SPALDING and LAMAR SPALDING. JEWELL HARGLEROAD SPALDING, Appellant, v. LAMAR SPALDING, Respondent.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT] BY THE COURT:
The opinion filed herein on January 27, 2020 is modified as follows:
The following sentence is added to the end of the disposition on page 19: The parties shall bear their own costs on appeal.
This modification does not effect a change in the judgment. Dated:__________
/s/_________ P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. HF10536794)
In this martial dissolution action, Jewell Hargleroad Spalding appeals a judgment entered after a bifurcated trial addressing the division of several assets of the community estate, including the former family residence, another piece of real property, a community business, and an investment account containing various stocks, asserting various errors in the trial court's valuation and division of those assets. We will modify the judgment to account for the mortgage on the family residence, and to divide the community stock in the investment account in-kind, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and petitioner Jewell Hargleroad Spalding and respondent Lamar Spalding were married in 1983, and separated in May 2010. And on September 15, 2010, Jewell filed a petition for dissolution of the marriage.
As is typical in family law matters, we will refer to the parties by their first names.
On August 10, 2015, after a lengthy history including many continuances, a trial began before the Honorable Alice Vilardi. As will be discussed in more detail, the trial was to address the following bifurcated issues: (1) the valuation of the former family residence on Fairview Avenue in Hayward (the Fairview property); (2) the valuation of the parties' real property on Ponderosa Drive in Amador County (the Ponderosa property); (3) the valuation of the parties' business providing handyman services known as PhilB; (4) the valuation of certain stock held in Lamar's name in a Morgan Stanley/Smith Barney account; and (5) Jewell's request for attorney's fees and costs. Trial took place over the next eight days, with Jewell represented by counsel and Lamar representing himself, and concluded on August 19. Over the next several months, the parties filed two rounds of closing briefs.
On May 2, 2016, the trial court issued a tentative statement of decision, to which the parties filed objections.
On July 19, the trial court issued its final 14-page statement of decision. That decision valued the Fairview property at $850,000 and provided that Jewell could buy Lamar's equity in that property for $425,000; valued the Ponderosa property at $175,000 and provided that Jewell could buy Lamar's equity in that property for $50,000; valued PhilB at $80,000 and provided that Lamar could purchase Jewell's equity in the business for $40,000; found that certain stock held in the Morgan Stanley/Smith Barney account was community property and that it should be "divided equally"; and indicated it would rule on Jewell's request for attorney fees after the statement of decision was final and the parties submitted updated attorney fees information. Jewell objected to the decision and moved for a new trial, and again, over the next several months, the parties filed extensive briefing.
On July 24, 2017, the trial court entered judgment. Shortly thereafter, Judge Vilardi retired. And on September 22, Jewell filed a notice of appeal.
On October 18, 2017, Jewell requested an order staying enforcement of the judgment without the requirement of an undertaking pursuant to Code of Civil Procedure section 917.4. After the trial court summarily denied that request, Jewell filed a petition for a writ of mandamus before this court (A154653). On August 20, 2018, we issued an alternative writ of mandate directing the trial court to set an appropriate appellate undertaking pursuant to Code of Civil Procedure section 917.4, or to appear and show cause why a peremptory writ of mandate should not be granted. On September 6, the trial court granted Jewell's request and set an appellate undertaking pursuant to Code of Civil Procedure section 917.4 in the amount of $100,000. On our own motion, we take judicial notice of the record in this writ proceeding (A154653). (See Evid. Code, §§ 452, subd. (d), 459.)
While this appeal was pending, in February of 2018, another trial took place before the Honorable Thomas Nixon. This trial addressed certain other issues between the parties, including, as will be discussed in further detail below, the "Allocation of debt on the Fairview property." A statement of decision was issued on April 2.
DISCUSSION
Jewell argues that the trial court erred in four specifics: (1) failing to account for the mortgage on the Fairview property in setting the amount of her equity, (2) valuing the Morgan Stanley account at the time of separation and permitting Lamar to purchase her interest in that account, (3) reimbursing Lamar for his separate property used to acquire the Ponderosa property, and (4) failing to require that Lamar reimburse Jewell for certain repairs to the Ponderosa property. She also argues the trial court should have ruled on her request for attorney fees.
On appeal, both parties are proceeding in propria persona.
I. The Fairview Mortgage Should Have Been Included in Valuing the Fairview Property
With respect to the "Valuation of the Fairview Avenue Property," Judge Vilardi found as follows:
"The court finds the value of the property on Fairview Avenue to be $850,000, the value respondent indicated was appropriate in his testimony. (The court finds support for this valuation from the fact that it is close to the amount used for a refinancing petitioner sought.)
This valuation was evidently based on Lamar's narrative testimony that "I independently had an appraisal [of the Fairview property] done in February 2012, which valued the property at $850,000." When Lamar attempted to offer the appraisal itself into evidence, Jewell's counsel objected that the document was hearsay and was incomplete, and the trial court sustained the objection.
"The property is awarded to petitioner provided that she is able to buy out respondent's equity in the property of $425,000 no later than four months after the date the judgment is entered. If she is unable to buy out respondent's equity within that time, the property is ordered to be listed for sale forthwith, with the net proceeds divided equally by the parties. The court reserves jurisdiction over the sale of the property, if a buy-out does not occur."
At trial, Jewell introduced an April 2012 mortgage statement indicating that there was a mortgage on the Fairview property, refinanced in April 2010, in the amount of $426,530, and that the principal balance on that mortgage had declined to $388,456.63 by April 2012. Jewell testified that the April 2012 statement was the last before she again refinanced the mortgage.
In her motion for a new trial, Jewell argued that the trial court erred in failing to consider the loan burdening the property as a community debt, and that after deducting that $426,530 loan from the value of the Fairview property, the "net equity to the community [is] $423,470," one-half of which is $211,735.
Despite Judge Vilardi's seeming resolution of the disposition of the Fairview property, one of the issues set for the February 2018 trial before Judge Nixon was the "Allocation of debt on the Fairview property." And in his statement of decision, Judge Nixon found as follows:
"As indicated, one of the issues the court was to decide at the trial held in August 2015 was the value of the Fairview house. Interestingly, in that decision, the court went beyond merely valuing the house and instead found as follows. [¶] . . . [¶]
"Why the court chose to divide the property when the only question before it was valuation is unknown. This court will take no action on that ruling. The issue this court must decide is whether respondent is responsible for any portion of the mortgage still owing on the Fairview house at [the] time of separation, at time of trial, and now. [¶] . . . [¶]
"The court finds that respondent is responsible for one-half of the existing mortgage on the property at time of trial. The court makes no ruling as to whether or not Judge Vilardi considered the mortgage when setting the value of Fairview at $850,000 and thus ordering petitioner to pay to respondent $425,000 as a buyout of 'respondent's equity'. If it is determined that she decided only the Fair Market Value of the house and her decision is not otherwise overturned, then petitioner would owe respondent $425,000 less one-half of the mortgage owing at time of trial. Legal interest would also apply. If it is determined that $425,000 was, in fact, to be respondent's equity, then if follows that Judge Vilardi considered the mortgage in her calculations. If the judgment is set aside such that a new trial on valuation will be required, a determination will have to be made as to how much of the remaining mortgage respondent will owe as of the new trial date."
Jewell argues that the trial court should have deducted from the parties' equity in the Fairview property the amount of the mortgage at the time of trial in 2015. However, she does not identify what this amount is, nor does she cite any evidence on this point in the record.
Lamar does not dispute that the mortgage was a community debt that should have been included in the valuation of the Fairview property, stating that "If the mortgage were the only factor affecting the parties' respective equity, Respondent's equity would have been $211,735.00 (($850,000-426,530)÷2)." He then goes on to argue that he contributed $178,943.83 of his separate property to improve the Fairview property, and that he is entitled to the return of the $72,994.85 he contributed toward the down payment from his separate property. He concludes his discussion of the Fairview property by asking that the issue be remanded for "re-trial" so that "all claims against the Fairview property including the community mortgage, and Respondent's separate property reimbursement claims be included in any calculation of the equity in the property before it is divided."
On reply, Jewell responds: "Respondent claims that the amount of the mortgage to deduct is $426,530 without reference to the record. [Citation.] But, as the record reflects, $426,530 was the amount of the mortgage one month prior to separation, April 13, 2010, when the parties refinanced [citation], not the amount of the mortgage five years later at the time of trial in 2015, which undisputedly has been reduced by petitioner solely with her separate property."
With respect to Lamar's arguments, they are barred by the rule that "[a] respondent who fails to file a cross-appeal cannot urge error on appeal." (Kardly v. State Farm Mut. Auto. Ins. Co. (1995) 31 Cal.App.4th 1746, 1748-1749, fn. 1. ) Nor do Lamar's arguments come within the limited exception "to allow a respondent to assert a legal theory which may result in affirmance of the judgment." (California State Employees' Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7; see Code Civ. Proc., § 906.)
We are not persuaded by Lamar's brief suggestion that because the trial court did not identify his separate property contributions and the mortgage as outstanding issues in its July 19, 2016 order regarding another upcoming trial, it must have considered them in calculating the parties' equity. The statement of decision provides no discussion or explanation of these issues, and including Lamar's alleged $251,938.68 of separate property in the equity calculation would not have resulted in equity of $425,000—exactly the figure that results from not considering either the alleged separate property contributions or the outstanding mortgage.
It appears undisputed that the Fairview property was burdened by a community debt in April of 2010, and that such debt should have deducted from the value of the Fairview property before the equity was divided between the parties. (See In re Marriage of Fonstein (1976) 17 Cal.3d 738, 748; In re Marriage of Oldfield (1979) 94 Cal.App.3d 259, 263 ["The mortgage constituted an encumbrance on community property and was thus a community debt, subject to division under [former] Civil Code section 4800, subdivision (a)"].) In addition, the parties do not agree on the amount of the mortgage to be deducted, and it is unclear whether the parties expected this issue to be resolved in the August 2015 trial, or whether Judge Vilardi "chose to divide the property when the only question before [her] was valuation," as Judge Nixon suggested. Under these circumstances, we will remand this issue to the trial court to determine the appropriate amount of the community mortgage to be deducted from the $850,000 value of the Fairview property before dividing the equity between the parties.
II. The Community Stock Should Have Been Divided In-Kind
Judge Vilardi considered whether stock in Exxon Mobil, Humana, and Johnson & Johnson, held in a Morgan Stanley/Smith Barney (MSSB) account, were Lamar's separate property or community property, concluding in her statement of decision as follows:
"The court finds that respondent has met his burden of establishing that the Exxon Mobil holdings in the MSSB account are his separate property. The court finds that he has not met his burden of establishing that the balance of the holdings in the account, specifically the Humana and Johnson & Johnson stock, retained their separate property character at the date of separation. [¶] . . . [¶]
"The value of the separate property holdings in the MSSB account on the date of separation is to be deducted from the total account balance on that date of $181,952. The court finds that the amount remaining in that account is community property and is to be divided equally. The amounts petitioner has withdrawn from the account post-separation are to be allocated to her as an early distribution of the equal division ordered. Respondent may buy out petitioner's interest in the balance of the MSSB account; if he elects to do so, the account is to be returned to his name alone and petitioner is ordered to cooperate in accomplishing the change in how the account is held.
"The court reserves jurisdiction to determine the amount of proceeds to be awarded to petitioner from the MSSB account if the parties are unable to reach agreement on this issue."
And the judgment subsequently entered by the court read as follows:
"The General Electric and Exxon Mobil holdings in the Morgan Stanley Smith Barney account are confirmed to be the separate property of Respondent.
"The value of the account as of the date of separation is $181,952.00. The value of the separate property holdings GE and Exxon Mobil is to be deducted from that amount and the remaining balance is community property and is to be divided equally. The amounts Petitioner has withdrawn from the account post-separation are to be allocated to her as an early distribution of the equal division ordered. Respondent may buy out Petitioner's interest in the balance of the MSSB account. If he elects to do so, the account is to be returned to his name alone and Petitioner is ordered to cooperate in accomplishing the change in how the account is held.
The parties apparently agree that no such withdrawals were made.
"The value of the MSSB account is $181,952.00. The value of the separate property GE and Exxon Mobil stock in the Morgan Stanley / Smith Barney account as of the May 11, 2010 is $71,669.76. The remaining community balance is $110,282.21 Respondent can buy out Petitioner's community share of the account for $55,141.12, and elects to do so.
This third paragraph is crossed out and initialed "AV."
"The Court reserves jurisdiction to determine the amount of proceeds to be awarded to petitioner from the MSSB account if the parties are unable to reach agreement on this."
In her objections to Lamar's proposed judgment, Jewell argued that the value of the stock had increased substantially since the parties separated in 2010 and that therefore using the $181,952 valuation for the account violated Family Code section 2552, subdivision (a), which requires the court to value assets "as near as practicable to the time of trial." Jewell also argued that there was no basis for permitting Lamar to purchase Jewell's interest in the community stock, rather than dividing the stock equally between the parties.
In support, Jewell attached a statement for the account for the period covering May 1-31, 2017, indicating that the Humana stock at that time had a market value of $108,000.90, the Johnson and Johnson stock had a market value of $25,439.92, and the market value of the entire account was $215,874.82.
Jewell renews these arguments on appeal, but indicates that the parties may have reached an agreement on this issue—in particular, her brief states that in February of 2019, the parties "agreed to equally divide" the remaining "465 shares of Humana and 198.362 shares of Johnson & Johnson" such that "equal shares of the community stock are now held separately by each party."
Jewell also argues that any division of the stock should reflect that Lamar allegedly sold some 600 shares of Johnson & Johnson and 100 shares of Humana, worth approximately $45,218, after the parties separated for his own separate use.
In her objections to Lamar's proposed judgment, and in her motion for a new trial, Jewell listed five sales of stock between October 11, 2010 and March 16, 2012, consisting of 800 shares of Johnson & Johnson and 100 shares of Humana.
Lamar disputes that the division of the community stock indicates that this issue has been resolved: "[The division] was merely an accounting device to permit Respondent to use an uncontested account for purposes of further investment while the allocation between the parties is resolved. Until there is another order, Respondent has the right to buyout Petitioner for $55,141.22." As with the valuation of the Fairview property, Lamar also seeks to reopen the entire issue of the valuation and characterization of the various stocks on appeal.
Lamar is plainly wrong that he has a right to "buyout [Jewell] for $55,141.22," because that portion of the proposed judgment was crossed out by the trial court.
Again, Lamar's challenges to the characterization of the stock and its valuation are disposed of by his failure to file a cross-appeal from the judgment. (See Kardly v. State Farm Mut. Auto. Ins. Co., supra, 31 Cal.App.4th at p. 1748, fn. 1.)
We agree with Jewell that the trial court abused its discretion in permitting Lamar to purchase Jewell's interest in the stock rather than dividing it in-kind.
The trial court was obligated to "divide the community estate . . . equally." (Fam. Code, § 2550; see In re Marriage of Cream (1993) 13 Cal.App.4th 81, 87.) And an equal in-kind division is the general rule. (In re Marriage of Behrens (1982) 137 Cal.App.3d 562, 572.) However, Family Code section 2601 provides that "[w]here economic circumstances warrant, the court may award an asset of the community estate to one party on such conditions as the court deems proper to effect a substantially equal division of the community estate." "[T]he 'economic circumstances' which empower a court to award an asset to one spouse alone are limited to those circumstances where the asset is not subject to division without impairment." (In re Marriage of Brigden (1978) 80 Cal.App.3d 380, 391-393.) And the "determination whether 'economic circumstances warrant' is . . . entrusted to the sound discretion of the trial court." (In re Marriage of Behrens, supra, 137 Cal.App.3d at p. 572.)
Here, the trial court did not identify any "economic circumstances" that would warrant such a division, nor has Lamar identified any on appeal. Nor did the trial court identify any way in which the decision to award the stock to Lamar was offset or justified by the disposition of other parts of the community estate. The asset in question is not a family home, a family-run business, or a closely-held corporation that is difficult to value. (See In re Marriage of Brigden, supra, 80 Cal.App.3d at pp. 391-392 [suggesting that "ongoing family business," "close corporation," or "asset which is essential to a party's ability to earn a living" could not be divided without impairment].) Instead, it is publicly-traded stock that can be easily divided—indeed, has already been divided—between the parties. (See In re Marriage of Brigden, supra, 80 Cal.App.3d at p. 393 ["where, as here, the stock is traded on a national exchange and its possession is merely 'helpful,' economic circumstances do not warrant the award of the entire block to one spouse"].) Accordingly, we will direct the trial court to order the shares of community stock divided equally in-kind between the parties.
Given this conclusion, we need not address Jewell's argument regarding the timing of the trial court's valuation of the community stock.
As for Jewell's argument that Lamar sold certain stock for his separate use, Lamar concedes that he "sold some shares for living expenses and to pay Petitioner's attorney's fees" and asserts that "[i]t is not necessary to adjust the division of stocks; the Superior Court can simply order that Respondent pay Petitioner an appropriate amount in cash." In light of this concession, we will order the trial court to address this issue on remand. III. The Trial Court Did Not Err in Awarding Lamar $75,000 for his Separate Property Contribution to Acquiring the Ponderosa Property
In 1986, Lamar and Jewell entered into a written agreement with Jewell's parents (the Hargleroads) according to which the Hargleroads agreed to sell a remainder interest in the Ponderosa property, which they then owned, to Jewell and Lamar for $75,000, to be used to construct a house on the property. It is undisputed that the $75,000 was contributed using Lamar's separate property.
Prior to the death of Jewell's mother in April 2007, Jewell's sisters sought to invalidate the contract, and a settlement agreement was reached pursuant to which the sisters were paid approximately $23,300, a payment Lamar argued was made with his separate property.
Lamar sought reimbursement for both payments pursuant to Family Code section 2640, subdivision (b), which provides that "[i]n the division of the community estate under this division, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, 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."
With respect to the Ponderosa property, the trial court found:
"Petitioner's parents owned an unimproved lot on Ponderosa Drive in Amador County. A house was built on the property where petitioner's parents lived together and petitioner's mother lived alone after her father died. Petitioner and respondent inherited the property as joint owners after the death of petitioner's mother. The parties agree that the value of the property is $175,000. They disagree about whether respondent has a separate property reimbursement interest in the property under Family Code section 2640.
"Respondent provided $75,000 to his in-laws from the Morgan Stanley/Smith Barney account for the construction of the home described above. Petitioner does not contest the separate property nature of the funds respondent provided for the construction of the home. In exchange for the contribution of construction funds, the parties were added to title. Petitioner argues that respondent never told her he would seek reimbursement of the $75,000 if they later divorced and that it is unfair of him to make that request in these proceedings without such prior notice. She argues that had she been advised of his intention to seek reimbursement, she and her mother could have returned the $75,000 to him, removed the parties from title to the home, and then inherited her third (petitioner has two sisters, who were her mother's only heirs) of the property without a deduction for his contribution.
"While it may well be true that petitioner was surprised when respondent requested reimbursement in this action, there does not appear to be any provision in [Family Code] section 2640 or any holding in any of the cases that interpret it that require notice of an intent to claim reimbursement of a separate property contribution to acquisition of property of the community property estate.
"After petitioner's mother was widowed, she eventually fell into poor health. She went to live out-of-state with one of petitioner's sisters and then required more intensive, and expensive, care. The parties and petitioner's sisters eventually reached an agreement that the parties would buy out the two sisters' interests in the property in exchange for payment of approximately $23,300, becoming the sole parties that would inherit the property upon petitioner's mother's death.
"The respondent testified that the funds to buy out petitioner's sisters' inheritance rights to the Ponderosa Drive property came from his separate property GE account. He was, however, unable to provide a clear tracing of the funds. Respondent has the burden of proving that the funds came from a separate property account. His inability to provide that tracing must result in a denial of his claim for reimbursement of this amount.
"Respondent is to be reimbursed $75,000 for his separate property contribution to the acquisition of the home on the lot on Ponderosa Drive. The parties are to share equally the balance of $100,000. The property is awarded to petitioner subject to the equalization payment of $50,000."
Jewell argues on appeal that applying Family Code section 2640 to the $75,000 payment was error because it "ignores the undisputed terms of a unique bargained for written agreement," that "[h]ad respondent disclosed any intent to claim 'reimbursement' from petitioner for him to gain one-half of property which petitioner's family already owned, there would have been no agreement," and that the $75,000 entitled Lamar "to buy in for himself what petitioner's family owned and he was receiving due to petitioner's participation." This argument fails.
Jewell points to no language in the written agreement evidencing any waiver of Lamar's right to reimbursement or any intent that Lamar's contribution of $75,000 be considered community property. The agreement defines Jewell and Lamar as "the Spaldings" and thereafter creates obligations for "the Spaldings," for example, that "the Spaldings will deposit with the escrow company the purchase price required by paragraph 1 above plus the sum of Fifty-Five Thousand and no/100 Dollars ($55,000.00) such that the total amount of cash in the escrow will be Seventy-Five Thousand and no/100 Dollars ($75,000.00)." In other words, the agreement created a $75,000 marital obligation that was undisputedly satisfied with Lamar's separate property. Accordingly, the trial court did not err in concluding that the $75,000 to acquire a remainder interest in the Ponderosa property was a community obligation satisfied with Lamar's separate property, such that he is entitled to reimbursement under Family Code section 2640.
IV. Jewell's Claim for Post-Separation Repair Expenses on the Ponderosa Property Will Not Be Addressed for the First Time on Appeal
On July 19, 2016, the same day it issued its final statement of decision, the trial court issued an "Amended Order re Trial" outlining the unresolved issues it would decide at an upcoming trial, including the "accounting of rents from the Jackson property from date of separation to July 18, 2016."
It is unclear why the trial court referred to the "Jackson" property, but Jewell's brief treats this as a reference to the Ponderosa property.
On January 25, 2017, Jewell filed an "Accounting for her parents' real property Ponderosa." In a written statement, she asserted she had been sharing the rental income from the Ponderosa property with Lamar but paying the expenses for the property exclusively herself until July 2014, when she began withholding Lamar's share of the rental income to offset expenses. She also attached her IRS Schedule E for the years 2010 through 2015, purporting to show that, taking the expenses paid by Jewell from Lamar's one-half share of the rental income amounted to some $24,063 that Lamar owed Jewell as of December 2015. Jewell briefly raised this issue in her motion for a new trial, filed after the final statement of decision and after judgment was entered, but the trial court appears not to have addressed it.
Jewell argues that we should modify the judgment to credit her approximately $24,000 for these expenses with respect to the Ponderosa property. However, this factual issue was intended to be resolved in a separate trial, and the record does not make clear whether that trial has taken place or may yet take place. And neither the statement of decision nor the judgment here on appeal makes any mention of the issue. Under these circumstances, we will decline Jewell's invitation to reach this issue in the first instance on appeal, although she remains free to raise it on remand.
Lamar's brief suggests that this issue is to be decided in "the upcoming trial," while Jewell suggests that the issue was intended to be, but was not, resolved during the trial that took place in February 2018.
V. The Trial Court Did Not Err In Its Valuation of PhilB
With respect to the community business known as PhilB, the trial court found:
"The parties agree that PhilB is a community property business. PhilB was originally acquired in 2000 as a franchise that provides handyman services. The acquisition cost was $300,000, over 75% of which was for goodwill and intangibles that a later appraisal found had either substantially decreased in value or were significantly overstated at the time of acquisition. The franchise lapsed and the business was then operated by respondent as a non-franchise business.
"Petitioner argues that respondent intentionally mismanaged the business to depress its value and deprive her of a fair share of the asset upon division and award. She argues that the business should be valued at its acquisition cost because of respondent's intentional devaluation of the asset.
"Respondent argues the business lost income because of factors beyond his control, including self-dealing by some of his independent contractors, increased availability of handyman services from larger box stores like Home Depot, and the significant decrease in spending on home improvement projects during and after the housing crisis of 2008.
"The court finds respondent's explanation of the decline in income to PhilB to be credible. Petitioner's request to value the business at its acquisition cost is denied.
"The court finds it is appropriate to value the business at the date of separation. PhilB is essentially a business operated by respondent. The court finds that it has no equipment or capital assets. Petitioner argues that the business bought tools over the years that should be included in valuing it. Respondent acknowledges that the business purchased tools, but testified that they were acquired for use by the various contractors who provided the handyman services. The court found respondent's testimony about the purchase of tools by PhilB to be credible.
"The PhilB business was appraised in 2012 by an Evidence Code 730 expert. The appraisal resulted in two valuations, one if franchise fees were still owed and being paid, one without. Petitioner argues that the appraisal should not be used because it was prepared for settlement purposes only. The court is not persuaded by this argument. First, the appointment and appraisal do not say its use is limited to settlement discussions, though it is clear that the parties obtained the appraisal to aid in settlement efforts. Second, the order appointing the appraiser provides that the appraisal will come into evidence. If the appraiser's work product was intended to be limited to the parties' settlement negotiations, a provision calling for introduction of the appraisal would not have been included in the order.
"Neither party disputes that the business was not paying franchise fees at the date of separation and was no longer operating under the franchise name at that time. The court sets the value of PhilB at the $80,000 value found by the appraiser as the 'without franchise fees' value. The business is awarded to respondent with an equalizing payment of $40,000 due petitioner."
Jewell argues that the trial court erred in valuing PhilB at the date of separation pursuant to Family Code section 2552, subdivision (a), which, as noted, requires the court to value assets "as near as practicable to the time of trial." However, her brief does not provide any citation to the record indicating that she raised this argument before the trial court, nor does she cite to any evidence in the record of a valuation of PhilB at the time of trial, or indeed as of any other date (other than the 2000 purchase price of $300,000). Rather obviously, the trial court did not err in failing to consider and accept an argument that was not made, on the basis of evidence that was not before it.
Jewell also argues that the trial court's valuation of PhilB is not supported by substantial evidence, because the appraisal on which it was based was not intended for use at trial, was not final, and was based on "contradicting information" provided by Lamar. These arguments are meritless. No matter the purpose for which the appraisal was prepared, it is plainly substantial evidence—that is, evidence that is reasonable, credible, and of solid value—in support of the trial court's valuation, and we will uphold the trial court's valuation if supported by any substantial evidence, even if contradicted, in the record. (In re Marriage of Micalizio (1988) 199 Cal.App.3d 662, 673; In re Marriage of Kahan (1985) 174 Cal.App.3d 63, 66.)
VI. The Trial Court Did Not Err in Failing to Rule on Jewell's Request for Attorney Fees
Jewell's final argument is that the trial court erred in failing to rule on her request for attorney's fees pursuant to Family Code section 2030, which provides that the court may order, "if necessary based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to the other party's attorney, whatever amount is reasonably necessary for attorney's fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding." With respect to Jewell's request for attorney fees, the trial court found:
Lamar's brief does not respond to this argument.
"Attorney's Fees
"The court will rule on petitioner's request for attorney's fees after the statement of decision is final. Petitioner is ordered to file an updated attorney's fees declaration and each party is ordered to file and serve an updated income and expense declaration within 30 days of the date the statement of decision is final. This will be 15 days from the date of mailing this decision of mailing plus five days."
Although it is not in the record, Jewell appears to have filed another request for attorney fees on February 27, 2017.
At a hearing held on April 13, the trial court indicated that it had not yet ruled on the request because the parties had not filed income and expense declarations in order to enable the trial court to assess the parties' relative access to resources. The trial court continued the hearing to May 19 so that the parties could file the required declarations.
Again on May 19, the trial court indicated that it still did not have a clear picture of the parties' respective access to resources, in part because it had yet to determine the amount of Jewell's equity in the Fairview property, an issue that was set to be determined in an upcoming trial. The trial court indicated it would continue Jewell's request to the time of that trial, then set for August of 2017.
Shortly thereafter, Judge Vilardi retired and the trial date set for August was vacated. It appears that Jewell's request was never ruled on.
Jewell argues that it was reversible error to "refuse to rule on a needs based motion under [Family Code] section 2030 until the conclusion of the case, just as the trial court here made clear it intended."
We find no error, and certainly no abuse of discretion. (See In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 657 ["The family court has broad discretion in ruling on a motion for fees and costs; we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order"].) In order to make an award of attorney fees under Family Code section 2030, the trial court was required to make findings as to whether there was a "disparity in access to funds to retain counsel" (see Family Code § 2030, subd. (a)(2)), in connection with which it ordered the parties to file declarations of income and expenses—declarations that were evidently not before the court when the hearings were held on Jewell's request in April of 2017. In addition, as the trial court noted, Jewell's access to funds to retain counsel was in part dependent on the amount of her equity in the Fairview property, an issue that was set for trial in August of 2017. There was no error in declining to rule on Jewel's request until these declarations had been filed and the issue of Jewell's equity in the Fairview property had been resolved. This is not a case in which the trial court simply refused to exercise its discretion to award fees despite having the necessary information from the parties (see In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1217, 1221), nor a case where the trial court refused to award fees because the documents in support of a party's request were too "voluminous" (see In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1313). In short, Jewell has failed to demonstrate error.
Jewell also briefly argues that a ruling was required by Family Code section 2031, subdivisions (a)(2) and (b)(2). Subdivision (b)(2) does not apply, including because Jewell's motion was not oral. (See Family Code § 2031, subd. (b).) And subdivision (a)(2)'s requirement that the motion be ruled on "within 15 days of the hearing on the motion" does not apply because, as noted, the "hearing on the motion" was first continued, and then apparently never held. --------
DISPOSITION
The case is remanded to the trial court with directions to (1) determine the appropriate amount of the community mortgage to be deducted from the $850,000 value of the Fairview property before dividing the equity between the parties, (2) order that the community stock (Johnson & Johnson and Humana) in the Morgan Stanley/Smith Barney stock account be divided equally in-kind between the parties, and (3) address the issue of Lamar's sale of community stock in Humana and Johnson & Johnson after separation. In all other respects, the judgment is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.