Opinion
G061263
11-21-2023
In re the Marriage of ALENE M. and RALPH J. TABER. v. RALPH J. TABER, Respondent. ALENE M. TABER, Appellant,
Wilkinson & Finkbeiner, and Brian Mullen, for Defendant and Appellant. Law Office of Brian C. Unitt and Brian C. Unitt, Law Office of Taylor Bristol Warner and Taylor Bristol Warner, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, Daphne G. Sykes, Judge.
Wilkinson & Finkbeiner, and Brian Mullen, for Defendant and Appellant.
Law Office of Brian C. Unitt and Brian C. Unitt, Law Office of Taylor Bristol Warner and Taylor Bristol Warner, for Plaintiff and Respondent.
OPINION
DELANEY, J.
The parties are before us a second time. In the prior appeal, we reviewed the family court's order denying the motion for sanctions filed by the former wife, Alene M. Taber, against her former husband Ralph J. Taber. We partially reversed and remanded the matter to the family court to consider two issues: First, whether Alene was entitled to attorney fees and costs for Ralph's allegedly obstructionist behavior in delaying the signing of a stipulated judgment. Second, whether Alene was entitled to damages for Ralph's conduct in allowing a whole life insurance policy, which provided a $250,000 death benefit each on Alene and Ralph, to lapse. (Taber v. Taber (G057081, Oct. 23, 2019) [nonpub. opn.] (Taber).)
We refer to the parties by their first names to avoid confusion; we intend no disrespect.
On remand, the family court conducted a hearing on those issues. The court denied the request for sanctions, and it concluded Alene was entitled to approximately $187,000 for the excess premiums she incurred to purchase a comparable insurance policy on herself. Alene appealed.
Alene first contends the family court abused its discretion in denying sanctions because, among other grounds, the denial order was not supported by the evidentiary record. As discussed below, we conclude Alene misconstrued the court's reasoning and find no abuse of discretion. Alene also argues she was entitled to an additional $250,000 in damages for the loss of the $250,000 death benefit on Ralph. As discussed below, assuming Alene was entitled to 100 percent of the value of the whole life insurance policy, Alene cannot show the court's monetary award did not exceed the policy's value. Accordingly, we affirm.
FACTS
Alene and Ralph were married in 1997, and separated in 2015. On November 21, 2017, they entered into a stipulation for dissolution of their marriage and division of their community property. The stipulation was entered as a judgment of the court on April 5, 2018. (Taber, supra, G057081.)
Following entry of the stipulated judgment, Alene filed a motion requesting the court award her sanctions against Ralph and order him to comply with his obligations under the terms of the stipulated judgment. As relevant to this appeal, Alene sought monetary sanctions pursuant to Family Code section 271 (section 271) for attorney's fees and costs she incurred as a result of Ralph's allegedly nonresponsive and obstructionist behavior. Specifically, Alene alleged Ralph engaged in "a bad faith repudiation of the order for judgment settling the division of their property assets that resulted in eight more months of unnecessary discovery, motion practice, litigation, and settlement efforts . . . . Eventually, this court entered the very same final judgment of dissolution in April 2018, that Alene requested Ralph sign eight months earlier in August 2017."
All further statutory references are to the Family Code unless otherwise indicated.
Alene also requested $437,653.64 in damages for Ralph's alleged concealment and destruction of a whole life insurance policy. According to Alene, "[for] 25 years, from July 1990 until November 2015, the parties were insured by an Acacia (now Ameritas) whole life insurance policy that provided Alene and Ralph each with a $250,000 death benefit." The parties agreed to continue to carry life insurance on each other during their separation and after their divorce. However, Ralph never disclosed the Ameritas policy on his Family Code required disclosure documents. Subsequently, Ralph lied to Alene about the Ameritas policy, telling her it had expired. In response, in March 2015, Alene contacted several insurance companies to obtain new insurance on Ralph, but her efforts were unsuccessful because in April 2015, Ralph learned he had a health condition which made him uninsurable.
Alene further alleged Ralph made the last premium payment for the Ameritas policy on August 21, 2015, and the following day, Ameritas sent Ralph a letter informing him the policy was operating under a 62-day grace period and that he had to pay the premium by October 12, 2015, or the policy would terminate. Ralph did not inform Alene about the letter, and failed to pay the premium. Later, Alene was able to obtain a similar life insurance policy on herself, but the premiums greatly increased. Alene sought the excess premiums for her policy, plus $250,000 for the loss of Ralph's death benefit.
Ralph opposed the motion, arguing the stipulated judgment precluded Alene from seeking sanctions for the alleged delay in proceedings or damages for the alleged destruction of the life insurance policy. The family court denied the motion on the basis it lacked jurisdiction, and Alene appealed. (Taber, supra, G057081.)
On appeal, this court affirmed in part, reversed in part, and remanded for further proceedings. As relevant to this appeal, we ordered the trial court to consider two issues: First, we remanded "Alene's motion for sanctions to permit the trial court to exercise its discretion in considering the issue in the first instance. The trial court shall be limited to awarding sanctions for attorney fees and costs incurred by Alene during the period from November 21, 2017, when the marital settlement agreement was fully executed by Alene and Ralph, to April 5, 2018, when the stipulated judgment was finally entered by the court, and solely attributable to the delays in finalizing the stipulated judgment caused by Ralph, Ralph's counsel, or both." (Taber, supra, G057081.)
Second, we concluded "the trial court should have considered whether the stipulated judgment's provisions . . . applied to the whole life insurance policy that Ralph allowed to expire." (Taber, supra, G057081.) We remanded the matter "to the trial court to make such a determination. If the court does so, it shall also determine on what date the asset should be valued, how much of it should be distributed to Alene, and how much Alene should be awarded in attorney fees and costs." (Taber, supra, G057081.)
Following issuance of the remittitur, the family court set a hearing on the remanded matters. The parties submitted briefing.
In Alene's brief, on the issue of sanctions for delaying tactics, she provided a chronology of the events between "when the marital settlement agreement was fully executed by Alene and Ralph, to April 5, 2018, when the stipulated judgment was finally entered by the court." (Taber, supra, G057081.) According to Alene, the parties and counsel signed the marital settlement agreement on August 18, 2017. On August 24, Alene's attorney sent a proposed stipulated judgment to Ralph's attorney, who responded that he needed time to review the judgment. On September 19, 2017, Alene's counsel contacted Ralph's attorney again to inquire about the status of the proposed judgment, and again Ralph's attorney stated he needed more time for review. On October 2, 2017, Ralph wanted a change to the judgment. After Alene agreed, an amended judgment was sent to Ralph's attorney. Ralph emailed Alene to tell her he would sign the amended judgment over his attorney's wishes, but his attorney requested an additional 30 days to review the amended judgment. On October 5, Ralph asked for further changes, but on October 23, he signed the original version of the proposed judgment. However, Ralph's attorney did not send the document with all the required signatures to Alene's attorney. On October 30, 2017, Alene informed Ralph he signed the wrong version of the stipulated judgment, but Ralph refused to sign the amended judgment. Alene then signed the original version of the judgment.
On November 13, 2017, Alene informed Ralph that his attorney had not signed the original version of the judgment. In response, Ralph told Alene his attorney was not "processing the Judgment because Ralph was contesting his bill with his attorney." On November 27, 2017, Ralph objected to the division of his military pension and "call[ed] Alene to threaten her that he will go to trial and bankrupt her." On November 29, 2017, Ralph's attorney emailed Alene's attorney to say the parties no longer had an agreement and refused to provide a fully executed copy of the judgment. After stating at the November 30, 2017 status conference he would be available for trial, on February 15, 2018, counsel stated he was unavailable due to vacation plans. On March 1, 2018, Ralph's attorney moved to be relieved as counsel, but did not serve the motion on Alene's attorney. At the March 23, 2018 status conference, Ralph's attorney withdrew the motion to be relieved. The court requested the judgment prepared by Alene's attorney, plus documentation on attempts to serve Ralph's attorney with the proposed judgment. On April 5, 2018, the court entered the proposed judgment as a court order.
After setting forth the above chronology, Alene requested $36,847 in attorney fees pursuant to section 271. As to Ralph's alleged breach of his fiduciary duty when he concealed and allowed the Ameritas whole life policy to lapse, Alene requested "100[percent] of the value of the asset on the date of the . . . lapse ...." She calculated the value as $437,653, consisting of the $250,000 death benefit on Ralph and the excess premiums for a policy on herself.
In Ralph's declaration on the remanded issues, he explained the reasons for the delay in signing the stipulated judgment. According to Ralph, the parties signed a six-page document on August 18, 2017. However, Alene's attorney then sent his attorney a 34-page document that "incorporated language that was never discussed at the time of our meeting on August 18, 2017." Ralph thought Alene was trying to take advantage of him by incorporating this extra language. He became frustrated at the entire process and questioned why he had agreed to the terms of the judgment.
As to the Ameritas whole life insurance policy, Ralph stated the policy covered him for $250,000, and had a $250,000 death benefit rider on Alene. The parties purchased the policy as an investment tool in the 1990s, but never accumulated any cash value in the policy. According to Ralph, several years before they separated, the parties agreed to let the policy lapse because of the minimal cash value. The cash surrender value of the policy in July 2013 was $1,975, but the amount fell to $1,119 in July 2014, as the cash value was used to pay the premiums. Ralph also explained he did not disclose the Ameritas policy on the Family Code required disclosure form in October 2015 because "we had already decided to let the policy lapse."
At the hearing on the remanded issues, both parties testified. As to Alene's request for sanctions under section 271, Alene authenticated various e-mails and documents supporting the chronology in her briefing. As to the Ameritas policy, Alene testified that in 1990, the parties obtained a whole life insurance policy, with a "cash value" or "face value" of "$250,000 for me and $250,000 for Ralph." Ralph made all the premium payments on the policy from a joint bank account. In February 2015, Alene was reviewing the parties' community assets to prepare the disclosure statement for the petition to dissolve their marriage when she remembered the policy. She asked Ralph, and he told her it had lapsed. Alene tried to obtain a new life insurance policy on Ralph, but was unsuccessful.
When Alene signed the stipulated judgment, she believed the Ameritas policy had expired in February 2015. Only after she was reviewing subpoenaed documents in preparation for her motion to sanction Ralph for his delaying tactics did she learn the policy had not lapsed until November 2015. If she had known the policy was still in effect in February 2015, she would have paid the premiums to keep it active. Alene denied ever deciding to allow the policy to lapse because it had "very good terms." Alene did obtain similar coverage for herself through another insurance company, but the premiums were significantly higher.
On cross-examination, Alene acknowledged one of the documents she reviewed stated that as of July 2015, the policy had a cash value of $113.58. She was "shocked" because she thought the parties could "cash in the policy" at retirement and receive the full amount of $250,000 each.
Called as an adverse witness, Ralph testified he paid the premiums on the Ameritas whole life policy as an automatic deduction from a joint bank account. In January 2015, he instructed the bank to stop the automatic deductions, and believed the policy expired at that time. Ralph never saw the letters from Ameritas about the grace period to reinstate the policy because it was sent to their house, and he no longer lived there after the parties separated.
As to the issues involving the sanctions motion, Ralph acknowledged he and his attorney did not sign the proposed judgment during the eight months between when the parties agreed to the marital settlement agreement and when the court entered the stipulated judgment. During that time period, he asked for changes to the stipulated judgment, and Alene agreed to some of those changes.
In the defense case, Ralph testified the parties obtained the Ameritas policy to save additional money for retirement. He understood that in order to increase the base cash value of the policy, the parties had to pay more than the premium. Initially, they paid more than the premium, but beginning in the early 2000s when they were doing a home renovation, they stopped making excess contributions. In 2011, the parties were informed the base premium on the policy was increasing, but they decided to pay the original premium amount, causing the cash value in the policy to decrease by the difference over time. In July 2014, Ralph received an annual statement from Ameritas showing the cash value was less than $2,000 and decreasing. He did not tell Alene because the parties had already decided to allow the policy to lapse and he had already obtained a term life policy.
As to the delay in the entry of the stipulated judgment, Ralph testified he signed a handwritten stipulated judgment at a mandatory settlement conference in August 2017. Later, Ralph was sent a typewritten formal stipulation that had "a whole bunch of extra words that I wasn't expecting to see." A particular issue of concern was the division of his military pension. Based on their discussions in August 2017, Ralph believed Alene would receive 50 percent of his military pay while they were married, not his entire retirement pay. The proposed judgment, however, stated something different. Ralph wanted to challenge the stipulated judgment, but eventually elected not to pursue it because "the core cause would exceed the benefit." Ralph acknowledged he and Alene eventually agreed to a revised version of the stipulated judgment, but later he signed the original version of the proposed judgment.
Following arguments, the trial court issued a tentative statement of decision. As to Alene's request for sanctions based on Ralph's delay in signing the stipulated judgment, the court denied the request. It found "Ralph's conduct, while frustrating, highly annoying and costly to Alene, was based upon his disagreement, upon his further consideration, with a term in the judgment. Notably, the judgment was apparently, ultimately amended."
As to Ameritas whole life insurance policy, the court found there was "insufficient evidence to conclude that, during the marriage, the parties agreed to discontinue the policy. Even, assuming for the sake of argument, the parties discussed terminating the policy as early as 2011 and 2013, Ralph later knowingly gave Alene wrong information about the policy's status when he specifically told her the policy had lapsed, even as he was continuing to pay for the policy." It found "Ralph made a material and intentional misstatement to Alene when, in February . . . 2015, Alene inquired about the policy and Ralph told her it had lapsed." After making the May 2015 premium payment, "Ralph intentionally made no further payment," resulting in a lapse in the policy. The court also found Ralph received correspondence from Ameritas regarding the policy, but did not inform Alene and "kept Alene in the proverbial dark." The court concluded "Alene did not . . . knowingly and intelligently waive the policy in the stipulated judgment . . ., because Ralph affirmatively misled her by withholding information regarding its status, thus breaching his fiduciary duty to her." The court, however, found it was undisputed that with Ralph's assistance, "Alene purchased another, comparable policy at a higher premium." Accordingly, the court ordered "Ralph to pay Alene . . . the difference [in the monthly premium amounts.] [C]ommencing July 1, 2021, and continuing until Alene's death or until further court order. Failure to make even one timely payment, without prior written consent from Alene, will result in the balance due of $187,000 ...." The court also ordered Ralph to pay the arrears on the policy premiums.
Alene filed objections to the proposed statement of decision. As to sanctions for Ralph's delay in signing the stipulated judgment, Alene requested the court clarify whether it considered Ralph's voicemail to Alene wherein he threatened to bankrupt her and subpoena everyone in her "'damn office.'" Alene also noted the stipulated judgment that was entered as a court order was not the original version and not amended.
As to the ruling on the Ameritas policy, Alene objected to the award of damages. While she agreed the award of excess premiums totaling $187,000 compensated her for a policy on her life, she requested damages for the loss of the $250,000 death benefit on Ralph's life. In support of additional damages, Alene requested the court find Ralph's conduct fell within the definition of malice under Civil Code section 3294.
The court denied Alene's request and overruled her objections. It specifically declined to further address its rulings on her request for section 271 sanctions. The court entered its rulings as an order on November 4, 2021. Alene timely noticed an appeal from the order. Ralph did not appeal.
Discussion
I. Section 271 Request for Sanctions
Section 271, subdivision (a) states: "Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys." "'Thus, a party who individually, or by counsel, engages in conduct frustrating or obstructing the public policy is thereby exposed to liability for the adverse party's costs and attorney fees such conduct generates.' [Citation.]" (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1318 (Tharp).) "A sanction order under . . . section 271 is reviewed under the abuse of discretion standard. '"[T]he trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order."'" (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82 (Burgard).) Alene contends the family court abused its discretion in denying sanctions for several reasons. First, she argues the family court's finding that Ralph's conduct was "'frustrating, highly annoying and costly to Alene'" met the legal basis for sanctions and the court's denial frustrated the purpose of section 271. But the court's finding only supplied the basis for sanctions, it does not compel such award. Section 271 specifically provides the court may award sanctions for such behavior; it does not mandate sanctions.
Second, Alene argues the court erred when it misstated the record that the judgment was amended. As noted, the court found Ralph delayed signing the proposed stipulated judgment because he disagreed with "a term in the judgment. Notably, the judgment was apparently, ultimately amended." The evidentiary record shows Ralph disagreed about the division of his military retirement pension, and that Alene agreed to changes in a revised proposed judgment. Ralph's attorney, however, did not sign the revised judgment, and Ralph eventually signed the original, non-amended proposed judgment, which was later entered as an order of the court. Thus, substantial evidence supported the court's finding that the judgment was amended in response to Ralph's concerns. The fact that Ralph gave up on the amended judgment and signed a nonamended judgment does not undermine the court's finding. Nor does it undermine the court's conclusion sanctions were not warranted because Ralph had a legitimate purpose for his conduct other than delay or frustrating settlement of litigation.
Finally, Alene's reliance on Tharp, supra, 188 Cal.App.4th 1295; In re Marriage of Davenport (2011) 194 Cal.App.4th 1507 (Davenport); Parker v. Harbert (2012) 212 Cal.App.4th 1172 (Parker); In re Marriage of Greenberg (2011) 194 Cal.App.4th 1100 (Greenberg); In re Marriage of George &Deamon (2019) 35 Cal.App.5th 476 (Deamon); Burgard, supra, 72 Cal.App.4th 74; and In re Marriage of Hargrave (1995) 36 Cal.App.4th 1313 (Hargrave) is misplaced. Those cases are legally and factually distinguishable.
In Tharp, supra, 188 Cal.App.4th 1295, the appellate court reversed the denial of a sanctions motion because the former husband failed to respond to discovery properly, disobeyed numerous court discovery orders, and some of the conduct lacked substantial justification. (Id. at p. 1327.) In contrast, here, Ralph did not have a history of failing to comply with court orders and the court found some justification for his conduct.
The remaining cases are even more inapposite because those cases were appeals from a trial court's order awarding sanctions, whereas here the family court denied sanctions. Additionally, the sanctionable acts were more egregious or numerous or both. For example, in Davenport, supra, 194 Cal.App.4th 1507, the appellate court affirmed an order sanctioning the former wife for her counsel's conduct of violating the mediation privilege, mishandling sensitive information, and using "abusive, rude, hostile, and/or disrespectful language" in written communications with opposing counsel on at least three occasions. (Id. at pp. 1532-1534.) In contrast, here, there is only a single instance of Ralph using abusive and rude language to communicate with Alene. Additionally, Ralph did not violate any privilege or mishandle sensitive information.
In Parker, supra, 212 Cal.App.4th 1172, the appellate court affirmed a sanctions award based on unsuccessful contempt claims which the trial court found was objectively frivolous. (Id. at pp. 1175, 1178.) Here, the family court made no similar finding.
In Greenberg, supra, 194 Cal.App.4th 1095, the appellate court affirmed the award of sanctions which was based on the trial court's finding the former husband had attempted to re-litigate a prior judgment. (Id. at p. 1100.) No similar conduct occurred here.
In Deamon, supra, 35 Cal.App.5th 476, the appellate court affirmed an order awarding sanctions against the former wife based on her delay in signing a proposed judgment. (Id. at p. 480.) However, the family court there did not find any justification for the delay in signing the proposed judgment. In contrast, here, the court found Ralph had a good reason for his delay because a term in the proposed judgment was different from the term in the settlement.
In Burgard, supra, 72 Cal.App.4th 74, the appellate court affirmed a sanctions award because the former wife's "prior conduct had resulted in an earlier sanction award and her new motion for reconsideration did not present any new or different facts." (Id. at p. 82.) In contrast, Ralph had not been sanctioned before and he was not seeking to re-litigate a previously determined issue.
In Hargrave, supra, 36 Cal.App.4th 1313, the appellate court affirmed a sanctions award because "[t]he record here amply reflects that appellant and her attorneys engaged in a series of stratagems to avoid the consequences of their initial failure to contest the 50-50 division of tax liabilities and their agreement to file a joint return for 1981. The trial court would have been justified in awarding sanctions based on appellant's conduct since at least 1989 in attempting to avoid paying any portion of the taxes due. The fact that the court gave her one last chance to avoid imposition of sanctions already assessable under section 271 of the Family Code, can scarcely be cause for complaint on the part of appellant." (Id. at p. 1323.) No similar circumstances were present here. Ralph was not seeking to evade his obligations under a joint agreement over the course of several years. In sum, Alene has not shown an abuse of discretion.
II. Section 1101 Award for Ralph's Breach of Fiduciary Duty
The family court concluded Ralph breached his fiduciary duty to Alene when he intentionally concealed the status of the Ameritas policy and intentionally failed to make premium payments, allowing the policy to lapse. The sole issue on appeal is the remedy for that breach.
Section 1101, subdivision (g) provides: "Remedies for breach of the fiduciary duty by one spouse . . . shall include, but not be limited to, an award to the other spouse of 50 percent, or an amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney's fees and court costs. The value of the asset shall be determined to be its highest value at the date of the breach of the fiduciary duty, the date of the sale or disposition of the asset, or the date of the award by the court."
Section 1101, subdivision (h) provides: "Remedies for the breach of the fiduciary duty by one spouse . . . when the breach falls within the ambit of Section 3294 of the Civil Code shall include, but not be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty."
Civil Code section 3294 provides in pertinent part: "(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant. [¶] . . . [¶] (c) As used in this section, the following [definition] shall apply: [¶] (1) 'Malice' means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others."
Alene argues she is entitled to 100 percent of the value of the whole life policy, which she contends is the court's award of $187,000, plus an additional $250,000 for the death benefit on Ralph. Alene's arguments rest on two grounds. First, she contends the family court's findings on Ralph's conduct are legally sufficient to award her 100 percent of the value of the death benefit. Second, citing her own declaration, she asserts the value of the death benefit at the time of the breach is $250,000. We need not decide whether the trial court's findings are sufficient to support a finding of malice as a matter of law because we conclude Alene has been awarded at least 100 percent of the value of the whole life policy.
As an initial matter, we note there was only one policy that provided a death benefit of $250,000 each on Alene and Ralph. The record does not establish Alene or the community would have been entitled to both death benefits because there is no evidence that upon Ralph's death, the policy could be continued on Alene on the same or similar terms. In any event, the court's award must be assessed in light of the value of the single Ameritas policy. "In many California cases, courts have recognized the value of whole life insurance as its cash surrender value, and have divided that value when the policy was determined to be community property." (In re Marriage of Lorenz (1983) 146 Cal.App.3d 464, 468.) A subpoenaed document Alene reviewed showed the cash surrender value months before the breach of fiduciary duty was $113.58. Ralph testified that in July 2014, months before the parties separated, the cash surrender value of the policy was less than $2,000. The court's award greatly exceeded 100 percent of either of these two cash surrender values for the entire policy.
While a panel of this court has stated in dicta that the value of a whole life policy likely exceeds its cash surrender value, we have never set forth how to value a whole life policy, especially where the insured is still alive. (See In re Marriage of Gonzalez (1985) 168 Cal.App.3d 1021, 1026.) ["The valuation and division of a term policy does, perhaps, pose a greater challenge than does a whole life policy, whose cash surrender value provides a convenient, although not necessarily accurate, means of present valuation."] We agree that the value of the whole life policy here likely exceeded the cash surrender amount because Ralph can no longer obtain similar life insurance. Alene, however, has not shown the court's award was less than 100 percent of the value of the policy. Her sole valuation ($437,000) relies on the face value of the $250,000 death benefit on Ralph, but that valuation is contrary both to economic and case law because it improperly relies on the face value amount and ignores the time value of money. (See People v. Pangan (2013) 213 Cal.App.4th 574, 582 ["The trial court erred here in not accounting for the fact possession of money now, as distinct from the future, is worth something, and that something must be accounted for in order to arrive at the actual value of an economic loss."]; Cardew v. Cardew (1961) 192 Cal.App.2d 502, 516 [face value of the policy is not evidence of the policy's present value].) It also ignores the costs of the increasing premiums on the policy and the contingent nature of the death benefit, which is realized only on the death of Ralph at some time in the future. The family court thus was entitled to reject Alene's valuation and use a lower valuation, such as the cash surrender value. (See In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 632 ["The trial court's determination of the value of a particular asset is a factual one and as long as that determination is within the range of the evidence presented, we will uphold it on appeal"].) In sum, we conclude Alene has not shown family court abused its discretion in awarding her as a remedy for Ralph's breach of fiduciary duty only the excess premiums for a similar life insurance policy covering herself.
Disposition
The order is affirmed. Ralph is entitled to his costs on appeal.
WE CONCUR: MOORE, ACTING P.J. GOETHALS, J.