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Nowzari v. Crawford (In re Marriage of Nowzari)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Dec 19, 2017
A149997 (Cal. Ct. App. Dec. 19, 2017)

Opinion

A149997

12-19-2017

In re the Marriage of MARYAM NOWZARI and TONY CRAWFORD. MARYAM NOWZARI, Respondent, v. TONY CRAWFORD, Appellant.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. MSD11-03060)

In this dissolution action, Tony Crawford (Husband) appeals following a statement of decision on property issues. We affirm.

BACKGROUND

Husband and respondent Maryam Nowzari (Wife) married in 1991 and had one child born in 1998 (Minor). Wife filed the instant petition for dissolution in 2011. The marital status terminated in a status only judgment issued in 2012. No court order for child support or spousal support issued at any time in this case.

Wife did not file a response brief.

In 2014, the family court issued a statement of decision finding the parties' date of separation was May 13, 2005. Although the parties separated in 2005, they continued to live in the family home together with Minor until June 2011. On June 20, 2011, a domestic violence protective order issued protecting Wife and Minor from Husband, and this order continued until April 17, 2015. Husband was convicted of misdemeanor spousal battery (Pen. Code, § 243, subd. (e)(1)) and criminal threats (id., § 422), with the offense date June 20, 2011.

In 2016, trial was held on the remaining issues of property division and reimbursement claims. Both parties as well as two other witnesses testified and numerous exhibits were admitted into evidence. The trial court issued a proposed statement of decision and, after receiving the parties' objections, issued a final statement of decision. The statement of decision provided it was resolving the remaining issues and directed Wife "to prepare a Judgment on Reserved Issues that incorporates the Court's Revised Statement of Decision as the final Order and Judgment of this court." No judgment has issued to date.

DISCUSSION

As a threshold matter, we consider whether the statement of decision is appealable. " 'The general rule is that a statement or memorandum of decision is not appealable. [Citations.] The rule's practical justification is that courts typically embody their final rulings not in statements of decision but in orders or judgments. Reviewing courts have discretion to treat statements of decision as appealable when they must, as when a statement of decision is signed and filed and does, in fact, constitute the court's final decision on the merits.' [Citation.] The statement of decision in this case is signed and filed and, given its wording, was clearly intended to constitute the court's final decision on the merits. Hence, we treat it as an appealable order." (Pangilinan v. Palisoc (2014) 227 Cal.App.4th 765, 769.) Here, the statement of decision is signed, filed, and clearly intended to constitute the court's final decision on the merits. We treat it as appealable.

Although the statement of decision directs Wife to prepare a final judgment, the judgment was not to contain new findings; instead, it was to simply "incorporate[]" the statement of decision. This is distinguishable from Reed v. Reed (2017) 16 Cal.App.5th 1122, in which we held an order that referenced forthcoming written findings setting forth the basis for the order was nonappealable.

We next note that Husband has elected to proceed on appeal with no record of the oral proceedings in the trial court. "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)

A party can submit a reporter's transcript, an agreed statement, or a settled statement. (Cal. Rules of Court, rules 8.130, 8.134, 8.137.)

We now turn to Husband's contentions. He challenges the family court's denial of Watts charges and Epstein credits. " 'Where one spouse has the exclusive use of a community asset during the period between separation and trial, that spouse may be required to compensate the community for the reasonable value of that use.' [Citation.] The right to such compensation is commonly known as a ' Watts charge.' [Citation.] Where the Watts rule applies, the court is 'obligated either to order reimbursement to the community or to offer an explanation for not doing so.' " (In re Marriage of Falcone and Fyke (2012) 203 Cal.App.4th 964, 978.) "Many contracts, such as an installment debt, require extended periods of performance. The classic solution to the problem created by a separation date during such an extended period is to allow for reimbursement by the spouse who uses his or her postseparation earnings to pay a 'preexisting' community obligation." (In re Marriage of Feldner (1995) 40 Cal.App.4th 617, 624.) However, "reimbursement is not appropriate when paying the community obligation amounts to discharging a duty of support." (Id. at p. 624, fn. 5.) The determination of reimbursements falls within the trial court's broad discretion. (In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1272.)

Marriage of Watts (1985) 171 Cal.App.3d 366; Marriage of Epstein (1979) 24 Cal.3d 76.

The family court denied Epstein credits and Watts charges for the period of June 20, 2011 through April 17, 2015 on the grounds that: "(a) [Husband] was providing support to [Wife] and [Minor] during this period by maintaining shelter for them, even though no support orders were in place, and (b) during this time [Husband] was subject to a Domestic Violence Restraining Order that included a 'move-out' order from the [family] residence. The court finds it would be inequitable to require [Wife] to reimburse [Husband], who was convicted of domestic violence offenses against her, for the costs of living in the community residence." Husband argues this was an abuse of discretion because, since no support orders issued in this case, he "never formally brought before the trial court the issue of the social security derivative benefits." Husband is apparently referring to an argument that Minor was entitled to derivative social security disability benefits during this period, but Wife did not apply for these payments. Husband fails to provide authority demonstrating such potential benefits impact support liability or render the family court's reimbursement ruling an abuse of discretion. Husband also appears to argue the amount of his payments during this period exceeded the amount of any support liability. To the extent this would render the family court's order an abuse of discretion, we presume, as we must, that any requisite evidence regarding the amount of support liability took place during the oral proceedings. (Estate of Fain, supra, 75 Cal.App.4th at p. 992 ["it is presumed that the unreported trial testimony would demonstrate the absence of error"].)

The family court also denied Husband Epstein credits for the period May 13, 2005 through June 20, 2011 because "[Husband] was living in the house with [Wife] and their daughter, was enjoying all the benefits of living there, took full advantage of all the tax benefits by filing jointly with [Wife], and was complying with his legal duties to support his daughter and his spouse." Husband contends the family court's ruling effectively changed the adjudicated date of separation, but we see no such indication in the court's ruling. Husband also argues he paid all the expenses and Wife received tax money to spend on household expenses. He fails to explain why these facts render the family court's ruling an abuse of discretion.

Husband challenges the family court's ruling that Husband voluntarily gifted $20,000 in cash to Wife during their marriage, which she put toward the down payment on their residence. Husband notes that Family Code section 2640, subdivision (b) provides, in relevant part, "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." Husband does not contend no such written waiver exists, although we note the statement of decision makes no mention of one. Husband failed to raise this issue below and has therefore forfeited it. (In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 695 [" ' "As a general rule, theories not raised in the trial court cannot be asserted for the first time on appeal; appealing parties must adhere to the theory (or theories) on which their cases were tried . . . . [I]t would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal." ' "].)

Finally, Husband argues four of the family court's factual findings lack substantial evidence: the valuation of the parties' residence, the finding that Husband's request for a reimbursement for post-separation labor was unsupported by the evidence, the finding that Wife did not breach her fiduciary duties in connection with the proceeds of a land sale, and the valuation of Husband's separate property retained by Wife. We reject these challenges, presuming, as we must, that substantial evidence for all four findings was present in the oral proceedings. (Estate of Fain, supra, 75 Cal.App.4th at p. 992.)

Regarding the fiduciary duty challenge, to the extent Husband argues it was Wife's burden to show she used the proceeds for a community purpose, he cites no authority for this proposition and we therefore decline to consider it. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [" ' "When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived." ' "].) --------

DISPOSITION

The order is affirmed. Respondent is awarded her costs on appeal.

/s/_________

SIMONS, J. We concur. /s/_________
JONES, P.J. /s/_________
NEEDHAM, J.


Summaries of

Nowzari v. Crawford (In re Marriage of Nowzari)

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Dec 19, 2017
A149997 (Cal. Ct. App. Dec. 19, 2017)
Case details for

Nowzari v. Crawford (In re Marriage of Nowzari)

Case Details

Full title:In re the Marriage of MARYAM NOWZARI and TONY CRAWFORD. MARYAM NOWZARI…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Date published: Dec 19, 2017

Citations

A149997 (Cal. Ct. App. Dec. 19, 2017)