Sullivan, Krieger, Truong, Spagnola & Klausner, Siobhan M. Bishop and Richard P. Sullivan for Appellant. Helen McColl for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10D007827) OPINION Appeal from a judgment of the Superior Court of Orange County, Daphne Sykes Scott, Judge. Affirmed. Sullivan, Krieger, Truong, Spagnola & Klausner, Siobhan M. Bishop and Richard P. Sullivan for Appellant. Helen McColl for Respondent.
This divorce case illustrates Tolstoy's famous dictum that every unhappy family is unhappy in its own way. On a record from which the inferences and conflicts must be resolved in favor of the trial court's judgment, it appears appellant Pauline Nguyen (Pauline) engaged in some chicanery toward respondent Antonioni Dang (Tony) in trying to wrest from him an item of his separate real property known as Trask. Before a business trip to Vietnam, Tony gave Pauline a power of attorney to sell Trask for $300,000 to a third party, in order to raise capital for a restaurant Tony hoped to open in Vietnam. Instead, Pauline used the power of attorney to give the property to her mother, Kinh Nguyen. Pauline's mother then borrowed $85,000 on it, which she gave to Pauline. Pauline kept all but $42,000, which she passed on to Tony in increments. When Tony returned from Vietnam and discovered what Pauline had done with his separate property, he confronted Pauline's mother, who recanted her role in the transfer and promptly deeded the property back to Tony. Tony had to borrow over a $100,000 to keep the property out of foreclosure.
We use the first names of the parties for clarity, meaning no disrespect to the parties. The nickname "Tony" is how his attorney and the family refers to the respondent.
Pauline then used the same power of attorney to deed the Trask property to her own trust (the Angel Trust). It was not until judgment was entered in this case that Pauline was required to transfer Trask back to Tony.
On appeal, Pauline argues the power of attorney by itself transmuted Tony's separate property into community property. The argument fails because the relevant statute requires all transmutations be express, and Pauline makes no effort to show the power of attorney contained language expressly converting Trask into community property. Her appeal also involves a handful of other challenges to the judgment that fare no better.
A preliminary word, however, is also necessary as to the nature of the briefing on appeal. All the issues raised by Pauline are matters which require affirmance if supported by substantial evidence. Common law appellate procedure has long dictated that a party seeking to establish a lack of substantial evidence to support a judgment must set forth all the evidence supporting the trial court's findings. (E.g., Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 ["Accordingly, if, as defendants here contend, 'some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error assigned is deemed to be waived.'"].) Pauline's briefing, though full of record references, fails to comply with the requirement that she set forth all evidence supporting the judgment in her opening brief. Indeed, if there is a pattern to Pauline's briefing, it is merely to allude to Pauline's own testimony, then state a conclusion that the "evidence" clearly establishes her point. That is an approach that has long met with a cold reception in reviewing and appellate courts. (See Sutro Heights Land Co. v. Merced Irrigation Dist. (1931) 211 Cal. 670, 688, quoting Kyle v. Craig (1899) 125 Cal. 107, 116 ["'And where briefs are filed it is the duty of counsel to present all that is material to the points involved.'"].)
Beyond the failure to provide an adequate summary of evidence supporting the judgment, Pauline has also failed to provide an adequate record to establish prejudicial error or abuse of discretion in this appeal. Specifically, she has failed to provide this court with the numerous exhibits which actually document the transactions of the parties. This by itself is fatal to an argument on appeal based on substantial evidence. As Justice Ikola, writing for this court in Sanders v. Walsh (2013) 219 Cal.App.4th 855 pointed out, it is necessary for a substantial evidence argument that an appellant provide the appellate court with all exhibits bearing on the issue: "As a preliminary matter we note that defendants have not provided us with the vast majority of trial exhibits and thus have provided an insufficient record to fully consider their contention." (Id. at pp. 873-874.) And it is fundamental in appellate procedure that an appellant provide the Court of Appeal with a record adequate to consider the appellant's contentions. (E.g., Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)
Despite these deficiencies however, we have, in the interests of justice, elected to examine each issue raised by Pauline to see if any of her claims show prejudicial error or abuse of discretion based on the limited record she has given us. However, given the deficiencies in the briefing from both sides, it is impossible for us to provide readers with a unified comprehensive narrative of the relevant events. The best we are able to do is proceed point by point through Pauline's opening brief.
While the respondent's brief helpfully quotes swaths of the reporter's transcript in regard to various issues, it provides no record references for its narrative statement of the facts.
A. The Date of Separation
The parties were married in 2001. At trial there was a dispute as to the precise date of separation: Pauline contended it was September 2009. Tony argued for August 2010. The significance of the date of separation appears to be its implications concerning Pauline's fiduciary duties toward Tony in the year 2010, much of which Tony spent in Vietnam in an effort to establish a restaurant.
More precisely, a second restaurant. Apparently the parties began a successful restaurant in Vietnam around 2008, but lost the lease on it and Tony was searching for a new location.
On the date of separation point, there was a simple conflict in the evidence: Pauline testified that in September 2009, Tony told her he wanted a divorce, and left for Vietnam to begin a new life. But when Tony took the stand, he testified the divorce was a surprise to him. He had no "hint" he was separating when he left for Vietnam, and in fact "the whole family" - including his inlaws - was surprised about the divorce when it was announced in September 2010. The trial judge simply believed Tony rather than Pauline. That credibility call is enough to sustain the trial judge's decision. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [testimony of a single witness, "even the party himself" can be "sufficient" to sustain finding].) B. Character of the Trask Property
It appears Tony was actually served in Vietnam.
We take the Trask issue out of order from the opening brief because it is related to the date of separation issue.
In her opening brief Pauline provides few facts involving the Trask property, perhaps to minimize the enormity of what, given the trial court's finding concerning the September 2010 date of separation, can only be characterized as a fairly egregious breach of spousal fiduciary duty. (See Fam. Code, § 721 [imposing fiduciary duties on "spouses"].)
All further statutory references are to the Family Code.
By way of background: There is no dispute that Trask was purchased by Tony sometime in the mid-1990's as rental property from which he could conduct a dental lab business. Tony paid off the mortgage prior to the couple's marriage in 2001. In 2010, Tony left for Vietnam to build up a restaurant business. He gave Pauline a power of attorney concerning the property. Tony's reason for the power of attorney was to have Pauline sell the property to a third party for $300,000 to raise money for the restaurant venture. But the third party (Van Hoang, Pauline's cousin) could not obtain a loan. Then Pauline deeded Trask to her mother Kinh, because, as Pauline testified, her mother, not being in debt otherwise, would have an easier time getting a loan. But when Tony returned from Vietnam in September 2010, and confronted his mother-in-law about the transfer, she felt remorse about her role in the transfer of the property, and deeded the property back to Tony. Still, Pauline was not to be stopped. Pauline admitted she then used the power of attorney to transfer the property into the "Angel Trust" in 2011. Pauline's mother's change of heart did not help her relationship with her daughter - apparently they stopped speaking to each other.
As Tony's counsel would later note, the transfer was in violation of initial restraining orders imposed on both sides at the beginning of the dissolution in August 2010.
On appeal, Pauline concedes that Trask was Tony's separate property acquired prior to marriage. In fact, her sole argument concerning Trask is that the power of attorney changed its character from his separate property. The opening brief does not use the word "transmutation," but transmutation is the essence of Pauline's position. Pauline's contention on appeal fails because a power of attorney, by itself, most assuredly does not accomplish a transmutation. Section 852 requires any transmutations not only be in writing, but also "express." Pauline points us to nothing in the text of the power of attorney Tony gave her that expressly changed the character of Trask from separate to community. C. Character of the Durango Property
Subdivision (a) of the statute provides: "(a) A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected." (Italics added.)
Durango was the family home, purchased in 2003. Pauline acknowledges that Durango was acquired during marriage, but argues the down payment came from an undisputed separate property source, a property referred to in the briefing as Cypress. Pauline notes the title to Durango was originally taken in her name only, even though she was a married woman at the time. Later, in 2007, the property was refinanced, and, according to Pauline, the lender required that title be put into both parties' names. Pauline, however, argues she never intended the property be converted to community because of the refinancing.
The character of Durango is significant for Pauline because the judgment declares Durango to be community property, but still gives Pauline reimbursement credit for $125,000 of her separate property contributed to the property. The upshot is that the equity in Durango at the time of trial was found to be community. That equity was then ascribed to Pauline's side of the community ledger, since the asset was awarded to her.
Pauline's argument is that the fact of a separate property source for the down payment in 2003, plus the fact title was taken in her name alone that year, made the property her sole and separate property, and the 2007 refinancing had no effect on the character of the property. Her legal authority for her argument is In re Marriage of Haines (1995) 33 Cal.App.4th 277, 289-290 (Haines).
Here is where what isn't in the opening brief or in exhibits not provided to this court (again) makes the difference - a fact ironically highlighted by the actual passage Pauline cites from Haines. Pauline's contribution to Durango was, at most, only the down payment. Durango was a credit acquisition during marriage. A lender was involved. As the appellate court pointed out in In re Marriage of Grinius (1985) 166 Cal.App.3d 1179, 1186, "the character of credit acquisitions during marriage is 'determined according to the intent of the lender to rely upon the separate property of the purchaser or upon a community asset. [Citations.]'" Moreover, if there is no evidence of the lender's intent, the general time-of-acquisition community property presumption prevails. (Id. at p. 1187, see also Ford v. Ford (1969) 276 Cal.App.2d 9, 14 [noting intent of lender is a fact issue].) Because Pauline does not establish Durango was acquired based on her own separate credit in 2003, the trial court's characterization of the property as community was not a tough call and must be upheld.
The passage from Haines, which the opening brief cites but does not quote, simply recounts a few basics of California marital property law, including the requirement that any party contesting the presumptive community status arising out of an asset's acquisition during the marriage bear the burden of showing it to be separate, though any credible evidence will be sufficient to do so: "A basic rule of a community property system is that all property acquired during marriage is community property unless it comes within a specific exception; the major exceptions to the basic community property rule are those relating to separate property. (See 22 Cal. Law Revision Com. Rep. (1992) pp. 134-135.) Thus, there is a general presumption that property acquired during marriage by either spouse other than by gift or inheritance is community property unless traceable to a separate property source. (See former Civ. Code, § 5110 [Fam. Code, § 760].) This is a rebuttable presumption affecting the burden of proof; hence it can be overcome by the party contesting community property status. (In re Marriage of Mix[, supra,] 14 Cal.3d [at pp.] 611-612.) Since this general community property presumption is not a title presumption, virtually any credible evidence may be used to overcome it, including tracing the asset to a separate property source, showing an agreement or clear understanding between parties regarding ownership status and presenting evidence the item was acquired as a gift. (Hogoboom & King, Cal. Practice Guide: Family Law 1 (The Rutter Group 1994) § 8.363, p. 8-90.)." (Haines, supra, 33 Cal.App.4th at pp. 289-290, fn. omitted.)
Any doubt would be removed by the subsequent refinancing in 2007. Pauline tells us virtually nothing about that refinancing, and is particularly silent as to whether the lender was making the loan based on community or separate credit. Since Pauline does tell us that the lender required Tony's name to be on the title at that point, she effectively acknowledges the reasonable inference that the 2007 refinancing was based on community credit. All our record thus shows that Durango was an asset acquired during marriage with community credit, making it community property. D. Reimbursement for Loans
Pauline asserts she should be reimbursed for two contributions from what she claims was her separate property to the community. One of these was $100,000 from her separate property known as Cypress, and she says the contribution was made to save Trask from foreclosure. She claims a second contribution of $45,000, originating in a loan from "friends and relatives," was made to save Durango.
The contribution of $50,000 to save Durango can be summarily dealt with. Pauline's reply brief concedes the loans were made while Tony was Vietnam, that is, during the marriage, given the September 2010 date of separation. Pauline cites us to no evidence that the intent of the lenders was to look only to her separate income or assets. So on appeal we must assume that the money used to try to save Durango was community, not separate.
That leaves the $100,000 supposedly used to save Trask from foreclosure. Pauline's argument here fails because the trial court impliedly found the money was used elsewhere, not to save Trask. Specifically, the colloquy between Pauline's trial counsel and the court reproduced in the margin shows the $100,000 was used for a restaurant in Vietnam, not Trask. Pauline's theory on appeal is a departure from her theory at trial, which was to argue the $100,000 was lost because of Tony's improvidence in Vietnam. But the trial court made no finding that Tony had misappropriated any money for the Vietnam ventures or otherwise violated any fiduciary duty, and there is no basis for us to do so. E. Zero Value Dental Lab
"The Court: And that's what - as I went through, it was hard to kind of follow. [We sympathize with the trial judge, now having first-hand experience with this hard to follow case.] What seemed to be uncontested was that there was a plan by the parties to establish some business ventures in Vietnam.
"Now that seemed undisputed that, you know, they were going to invest or be it a restaurant or restaurants, and that money was used for that purpose.
"Ms. Edgar: I would agree with the Court because my client refinanced Cypress to give the money to the Respondent to take it and do just that.
"The Court: Was that like $50,000?
"Ms. Edgar: A hundred.
"The Court: I'm sorry, a hundred thousand dollars?
"Ms. Edgar: Socorrect.
"The Court: Hold on. We haven't got to you yet. So this was theand obviously this was before Cypress went into default.
"Ms. Edgar: Correct.
"The Court: It had to be. All right. So it sounds like once the money went to Vietnam for that purpose, there was kind of no accounting of it. There wasn't kind of a daily accounting, what's going on. There wasn't a close monitoring of it.
"Ms. Edgar: Correct." (Italics added.)
"The Court: And now it's gone and you are saying - you are distrustful of what happened with the money. Each person is blaming - is pointing the finger that that person, you know, that the other person was the one that, you know, made the money or had the money or collected the money or -
"Ms. Edgar: And therein
"The Court:lost the money.
"Ms. Edgar: And therein comes our breach of fiduciary duty. That he breached his fiduciary duty to the family as far as the management of the money. So we make a breach of fiduciary duty argument and also the domestic violence argument." (Italics added.)
The trial court awarded a "the dental lab business" to Tony at zero value, along with equipment valued at $5,000. On appeal Pauline claims the business was her separate property, and had a value of $150,000.
As far as we can tell from the briefing and the record, "the dental lab business" (our italics) to which the trial court is referring was an entity called "Star Dental," which is now defunct - hence the equipment was valued separately from the business qua business. Pauline's attorney admitted as much in oral argument at the trial level, recognizing "The business existed pre," meaning it existed prior to the separation of the parties.
According to Tony's briefing, Pauline changed the name of Star Dental to All Star Dental while the divorce was pending.
Any issue regarding the character of the dental lab business is thus moot. Having conceded the business is defunct, it makes no difference that the business might - even assuming Pauline had set forth all the facts and presented us with a complete record - arguably be her separate property. And as to value, the trial court was clearly right on the merits. The business is defunct, thanks at least in part to Pauline's excluding Tony from his place of work at Trask. It makes no difference that in 2008, a property tax bill might have shown the business had $150,000 in assets. By the time of trial it was a dead letter. F. Attorney Fees
As Justice Moore once wrote in another domestic case where a party was overreaching, be careful what you wish ask for. (See In re Marriage of Barth (2012) 210 Cal.App.4th 363, 365.) If this court were - hypothetically we emphasize - to remand on the issue of the character of the dental lab business, Tony might have a claim for rent owed by the community for use of his real separate property and also a claim for his half of the community component of the value of Pauline's allegedly separate business. Of course, this scenario is fanciful because, absent misappropriation under section 2602, family law courts do not divide assets worth zero. --------
The final issue presented by Pauline is what she characterizes as a denial of attorney fees. Actually, denial overstates things, but not by much. The trial court awarded $5,000 to Pauline's trial attorney, payable from the proceeds of the sale of the community Durango property. She had requested $150,000.
Pauline's argument on appeal is a compendium of acts which Tony supposedly committed (e.g., placing lien on his separate property Trask which supposedly made it impossible for Pauline to obtain a loan for Durango - how she does not say) which, according to Pauline, compelled the trial court to award her an amount greater than $5,000 under two litigant-fault sections of the Family Code, section 271 [fee awards subject to conduct of party in furtherance or frustration of settlement] and section 6344 [fees in obtaining domestic violence restraining order].
But the trial court expressly rejected Pauline's efforts to obtain attorney fees under the litigant-fault sections of the Family Code. Since Pauline makes no effort to supply us with all the evidence supports the trial court's findings that Tony committed no breach of fiduciary duty or committed domestic violence, the argument is (again) waived.
As to the basic non-litigant fault California attorney fee statute based on the respective needs and abilities of the parties (§ 2030), Pauline likewise waives the issue. She presents no argument that any relative disparity in the parties' incomes or assets would compel this court to find an abuse of discretion in the award. Her brief, for example, provides no such comparison. There is just nothing upon which we could base a ruling in her favor.
The judgment is affirmed. Tony will recover his costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: IKOLA, J. THOMPSON, J.