Marriage of Elliott CA2/6 ( 2021 )

Filed 9/13/21 Marriage of Elliott CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of LYNDA and 2d Civil No. B304323
MICHAEL ELLIOTT. (Super. Ct. No. 17FL02195)
(Santa Barbara County)
LYNDA ELLIOTT,
ORDER MODIFYING
Respondent, OPINION AND DENYING
REHEARING
v. [NO CHANGE IN
JUDGMENT]
MICHAEL ELLIOTT,
Appellant.
THE COURT:
It is ordered that the opinion filed herein on August
24, 2021, be modified as follows:
On the caption page, appellant’s name to be corrected
from “MICAHEL” to “MICHAEL.”
There is no change in the judgment.
Respondent’s petition for rehearing is denied.
GILBERT, P.J. YEGAN, J. PERREN, J.
Filed 8/24/21 Marriage of Elliott CA2/6 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of LYNDA and 2d Civil No. B304323
MICHAEL ELLIOTT. (Super. Ct. No. 17FL02195)
(Santa Barbara County)
LYNDA ELLIOTT,
Respondent,
v.
MICAHEL ELLIOTT,
Appellant.
Michael Elliott (Husband) and Lynda Elliott (Wife)
were married in August 2003 and separated in August 2017. In
its December 21, 2018 status only Judgment for Dissolution, the
trial court ordered that one half of the parties’ Vanguard IRA
transferred to a rollover account in Wife’s name. On December
19, 2019, the trial court entered a judgment on reserved issues
that, among other things, divided the parties’ real estate.
Husband alleges the trial court erred when it denied his claims
for reimbursement of his separate property in the Vanguard IRA
and his separate property contributions to the parties’ real estate.
(Family Code, §2640.)1 The trial court concluded Husband failed
adequately to trace his separate property contributions to these
assets and denied all of his reimbursement claims. Husband
contends the trial court erred because his tracing was adequate.
We agree and reverse.
FACTS
The parties met in 1995 and began living together in
April 1996 when they moved into a house on West Street in
Laguna Beach (West Street). Husband purchased the West
Street house by making the down payment of $51,500. He held
title to the property in his name, as a single man. Wife testified
that she made the down payment, that the parties had a joint
bank account, and that they agreed they would share equally any
assets acquired during their relationship. The trial court rejected
this testimony, crediting Husband’s testimony on the issue
instead.
In connection with a prior divorce, his 1997 divorce
from his first wife, Husband received title to a house on Cebolla
Street in Rancho Santa Margarita (Cebolla). The house was
rented out until it was sold in 2011. In 2007, the parties
refinanced this property, taking out cash to pay off the mortgage
on another property. The trial court found the Cebolla house
became community property in this transaction. Husband does
not dispute the characterization.
1All further statutory references are to the Family Code,
unless otherwise noted.
2
Husband next bought a house on National Park Drive
in Laguna Niguel (National Park) in February 2003. He made
the down payment of $295,000 and took title to the property in
his name, as “an unmarried man.” The parties moved into the
National Park house in February and were married six months
later, in August 2003.
In October 2004, after they were married, the parties
sold the West Street house. They used some of the proceeds in
May 2005 to acquire a condominium (the Kazan Street property)
in an exchange under section 1031 (section 1031) of the Internal
Revenue Code. (26 U.S.C. § 1031.)2 Husband took title to the
Kazan Street property as a married man, as his sole and separate
property. In July, the parties used more of the proceeds from the
West Street sale to purchase an office condominium in Mission
Viejo (Chrisanta). Husband and Wife took title to the Chrisanta
property as joint tenants. In 2007, Husband and Wife used
jointly borrowed funds from a refinancing of Cebolla to pay off the
loan secured by the Chrisanta property.
In 2008, the parties created the Elliott Family 2008
Trust and transferred title to the Cebolla, Chrisanta, Kazan and
National Park Drive properties to the trust. At that time,
Cebolla and Chrisanta were already community property. The
trial court found the transfer to the trust also transmuted Kazan
and National Park Drive from Husband’s separate property to
2 A section 1031 exchange allows “a taxpayer [to] defer
taxes on gains from the sale of a property by using those gains to
purchase a second property.” (CADC/RADC Venture 2011-1 LLC
v. Bradley (2015) 235 Cal.App.4th 775, 780.) These transactions
typically occur through an intermediary that temporarily holds
title to one or both of the properties and to the proceeds from the
sale. (Ibid.)
3
community property. Husband does not dispute these
characterizations.
In 2011, after the properties had been transferred to
the trust, the parties sold both Kazan and Cebolla. Proceeds
from the sales were deposited with an asset exchange company to
facilitate section 1031 exchanges. The proceeds were later
transferred to acquire a house on Windsor Way in Santa Barbara.
In 2013, the parties sold the National Park Drive house and
bought another house on Mission Ridge Road in Santa Barbara.
As a consequence of these transactions, the parties
owned three pieces of real estate when they separated in 2017:
Mission Ridge Road, Windsor Way and Chrisanta. Forensic
accountant William Duerkson attempted to trace Husband’s
separate property to each of these assets. Because the parties
had shredded older bank statements and other financial records
before their move to Santa Barbara, Duerkson relied on grant
deeds, deeds of trust, escrow closing statements, tax returns and
his discussions with Husband to trace Husband’s separate
property from one property to another. Duerkson did not
determine the source of the down payments Husband made on
Cebolla, West Street and National Park Drive because those
properties were purchased before the marriage and were titled as
Husband’s separate property. Instead, he treated each down
payment as Husband’s separate property and then attempted to
trace that investment from the property originally purchased to a
subsequently purchased property.
Tracing Evidence
Mission Ridge Road. Duerkson initially concluded
that Husband’s pro-rata separate property interest in the Mission
Ridge Road house was 68% of its equity, or $504,025. He reached
4
this conclusion based on his understanding that funds for the
down payment on the Mission Ridge Road house came from the
sale of the National Park Drive house. Husband bought the
National Park Drive house six months before the marriage,
making the down payment of $295,000 and taking title in his
name, as a single man. Duerkson did not determine the source of
funds for that down payment. Community property was used to
make the mortgage payments on the National Park Drive house.
The parties sold the National Park Drive house in
October 2013, and deposited $641,625 in sales proceeds into a
credit union account. Duerkson allocated 60% of the sales
proceeds to Husband’s separate property and 40% to community
property. The parties’ down payment on the Mission Ridge Road
house was made in two installments, both withdrawn from the
credit union account. Duerkson allocated the down payments
first to Husband’s separate property, and when that was
exhausted, to community property. At the end of that process,
Husband’s separate property amounted to 68% of the equity in
the Mission Ridge Road house, or $504,025. He acknowledged
that, if community property was exhausted first, Husband’s
separate property interest in the house would be $291,296.
Chrisanta. The parties acquired the Chrisanta office
condominium after they were married, in a section 1031
exchange. The down payment of $155,000 came from the sale of
the West Street house. Duerkson allocated 85% of those funds to
Husband’s separate property. In 2007, Husband and Wife
refinanced the Cebolla property, taking out $409,000 in cash.
They used $281,014 to pay off the mortgage on Chrisanta.
Duerkson allocated 72.5% of those proceeds to Husband’s
separate property and 27.5% to community property.
5
Windsor Way. The parties acquired Windsor Way in
September 2011 by making a down payment of $272,000. Title to
this property is in the names of both parties, as community
property. Duerkson testified funds for the down payment came
from a section 1031 exchange for Kazan Street and the remaining
sales proceeds from Cebolla. Both sources were, in Duerkson’s
opinion, 100% Husband’s separate property. Because community
funds were used to pay closing costs and other acquisition costs,
Duerkson concluded 7% of the down payment was attributable to
community property. He assigned the remaining 93% to
Husband’s separate property. Duerkson concluded Husband’s
section 2640 reimbursement claim for Windsor Way was
$251,261.
Wife disputed Duerkson’s characterization of the
various down payments and his allocation of the separate
property and community property interests in each asset. She
testified that both spouses contributed to the down payment on
West Street and that their joint account paid some of the
expenses associated with the Cebolla house.3 In addition, in his
answers to interrogatories, Husband described the West Street,
National Park Drive, Chrisanta, and Kazan properties as having
been “purchased by Lynda and Mike.” Wife also noted that there
were no bank statements tracing the source of the down
payments on West Street, National Park or Chrisanta. In
addition, funds from the sale of West Street and Kazan were
deposited with an intermediary to facilitate section 1031
exchanges. Duerkson had no documentation from the
intermediary indicating whether additional funds from
community property sources were held in the intermediary’s
3 The trial court found this testimony not credible.
6
account or tracing specific funds from that account to specific
assets.
Vanguard IRA. Before the marriage, Husband
maintained an individual retirement account (IRA) at the
investment firm Fidelity. Husband’s forensic accountant,
Duerkson, calculated that, in 2002, the Fidelity IRA had a fair
market value of $52,087. Husband contributed an additional
$34,606 to the account in 2002, creating a balance of $86,693. In
2003 and 2004, after the marriage, the parties contributed about
$67,000 to the IRA. Husband transferred the IRA from Fidelity
to the investment firm Vanguard in 2005. At that time, it had a
value of $137,815. Another $4,500 was deposited to the account
in 2008. There were no more contributions to the account. By
the time the parties separated, the Vanguard IRA had earnings
of about $359,000 and a total value of $502,000.
Duerkson allocated all of the contributions made
before marriage to Husband’s separate property and all of the
contributions made after marriage to community property. He
concluded that 56% of the IRA was Husband’s separate property
while 44% belonged to the community.
The trial court’s December 2018 status only judgment
of dissolution reserved jurisdiction over the division of property,
and ordered the Vanguard IRA to be divided equally with Wife’s
portion transferred to a rollover IRA in her name. The judgment
further notes this order was “issued to preserve the ability of
[Husband] to defer distribution of his or her community interest
on the death of the IRA owners.” The trial court received no
expert testimony or other evidence relating to the IRA before it
entered the status only judgment. Duerkson testified at trial
7
that Husband was entitled to an additional $138,744 from Wife’s
rollover IRA, to reimburse his separate property.
The Statement of Decision and Judgment on
Reserved Issues. The trial court issued a lengthy statement of
decision which included its findings that the parties had no
agreement to share property acquired before marriage and no
joint bank account prior to marriage. The statement of decision
also reflects the trial court’s findings that Husband used his
separate property to acquire various assets, and that he had a
section 2640 claim for reimbursement of his separate property
with regard to some of those assets.
The trial court’s judgment on reserved issues states
that its “factual and legal analysis is set forth in its Statement of
Decision. The court denies [Husband’s] Family Code section 2640
claims against the properties at [Mission Ridge Road, Chrisanta
and Windsor Way]. The court also denies [Husband’s] separate
property allocation claim with respect to the Vanguard Rollover
IRA . . . in [Wife’s] name.” The trial court awarded Chrisanta to
Husband and Windsor Way to Wife. It ordered the parties to sell
Mission Ridge Road with the proceeds to be evenly divided
between the parties. The trial court left unchanged the equal
division of the Vanguard IRA it had previously ordered.
DISCUSSION
Contentions
Husband contends the trial court erred when it
denied reimbursement for his separate property contributions to
the parties’ real estate because those contributions were
adequately traced to real estate owned by the parties when they
separated. He contends the trial court erred when it denied
reimbursement of his separate property contributions to the IRA
8
because the account was established prior to the marriage with
his separate property and funds were not withdrawn from it.
Wife contends Husband’s reimbursement claims
relating to their real estate were properly rejected because
Duerkson’s tracing was incomplete. Among other things, Wife
notes that Husband admitted in his discovery responses that
West Street was “purchased by Lynda and Mike [in] 1995 prior to
marriage,” and that National Park Drive was “purchased before
marriage by Mike and Lynda 2003.” In addition, Husband
provided no evidence tracing the source of the funds he used for
the down payments on West Street and National Park Drive.
Wife contends that funds borrowed in the 2007 refinancing of
Cebolla should be treated as community property because both
spouses were obligated on the loan. Husband’s separate property
cannot be traced to real estate purchased with those loan
proceeds because all of the loan proceeds are community
property. Husband also failed to exclude the possibility that
other, community property funds were deposited with the section
1031 intermediary and used to make the down payments and
principal payments on Kazan, Chrisanta and Windsor Way.
Wife contends the trial court correctly denied
reimbursement from the Vanguard IRA because the status only
judgment was final as to this asset. Alternatively, she contends
Husband failed adequately to trace his separate property.
Standard of Review
Section 2640, subdivision (b) provides that, “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
9
extent the party traces the contributions to a separate property
source.” Reimbursement “is not limited to the specific property to
which the separate property was contributed, but extends to ‘any
other community property that is subsequently acquired from the
proceeds of the initial property, and to which the separate
property contribution can be traced.’ [Citation.]” (In re Marriage
of Cochran (2001) 87 Cal.App.4th 1050, 1057 (Cochran).)
Whether the separate property of a spouse has been
adequately traced to a community asset is a question of fact for
the trial court. We review the trial court’s factual findings on
that issue to determine whether those findings are supported by
substantial evidence. (In re Marriage of Braud (1996) 45
Cal.App.4th 797, 823.)
Tracing Separate Property Contributions
Tracing is an indispensable prerequisite to any
reimbursement under section 2640. “[A] contributing spouse
cannot randomly seek reimbursement from any asset through
which his or her separate property contribution has at some time
passed.” (In re Marriage of Walrath (1998) 17 Cal.4th 907, 923
(Walrath).) The party seeking reimbursement has the burden to
trace his or her separate property contributions to specific assets.
(Cochran, supra, 87 Cal.App.4th at p. 1057.) Virtually any
credible evidence may be used to establish the status of property
as separate or community. (In re Marriage of Ciprari (2019) 32
Cal.App.5th 83, 91.) “[T]rial courts are free to consider and credit
reasonable, well-supported, and nonspeculative expert testimony,
when determining whether the proponent has successfully traced
commingled assets to a separate property source.” (Id. at p. 97.)
In Walrath, our Supreme Court held that a party’s
“entitlement to a separate property contribution reimbursement
10
is [not] limited to the original community property to which the
contribution was made . . . .” (Walrath, supra, 17 Cal.4th at p.
913.) Instead, when the original property is refinanced and the
loan proceeds are used to “purchase or pay down the
indebtedness on the original and other assets, the contributing
spouse can trace the contribution to, and be reimbursed from,”
both the original asset and the newly acquired assets. (Ibid.)
Here, the trial court’s statement of decision found
that Husband made separate property contributions to the
community’s acquisition of the Cebolla, West Street and National
Park Drive properties. With respect to each of those properties,
the trial court also found that Husband had a claim under section
2640 for reimbursement. Although it made factual findings that
proceeds from the sale or refinancing of these properties were
used to acquire new properties (Kazan, Chrisanta, Windsor Way
and Mission Ridge Road), the trial court’s judgment “denie[d]
[Husband’s] Family Code section 2640 claims” against those same
properties in their entirety. This was error.
Husband acquired Cebolla, West Street and National
Park Drive before the marriage. To the extent he made down
payments on these properties prior to the marriage, the down
payments were, by definition, made with his separate property.4
(§ 770.)
4 Husband acquired Cebolla during his first marriage and
was awarded the property in the judgment of dissolution relating
to that marriage. The record contains no evidence regarding the
amount or source of any down payment. There is evidence that
the property had a fair market value of $190,000 and secured
debt of $195,000 when title was transferred to Husband.
11
In each instance, Husband took title to the property
as a “single” or “unmarried” man. “The owner of the legal title to
property is presumed to be the owner of the full beneficial title.”
(Evid. Code, § 662.) This presumption may be rebutted by clear
and convincing evidence. (Ibid.) Here, the trial court expressly
rejected Wife’s testimony that the parties agreed “any real
property purchased [before marriage] would be owned by both
equally.” The trial court found instead that, “Inadequate
evidence was provided to support the existence of any agreement
as to the . . . equality in ownership of real property purchased
while cohabitating.” In the absence of clear and convincing
evidence to the contrary, the title presumption controls. Cebolla,
West Street and National Park Drive were Husband’s separate
property until each property was transmuted to the community.
(In re Marriage of Fossum (2011) 192 Cal.App.4th 336, 345,
quoting In re Marriage of Brooks & Robinson (2008) 169
Cal.App.4th 176,189, abrogated on other grounds by In re
Marriage of Valli (2014) 58 Cal.4th 1396, 1405.)
The fact that these properties were recharacterized
as community property through valid transmutations does not
defeat Husband’s reimbursement claim under section 2640; it is a
prerequisite to that claim. As our Supreme Court explained in
Walrath, “a reimbursement right under section 2640 only arises
once the property becomes community property.” (Walrath,
supra, 17 Cal.4th at p. 920.) After transmutation from separate
to community property, “section 2640 provides a right to
reimbursement upon dissolution for the spouse who contributed
separate property to [its] acquisition . . . .” (In re Marriage of
Weaver (2005) 127 Cal.App.4th 858, 865.) “Commingling of
separate and community property does not alter the status of the
12
separate property interest so long as it can be traced to its
separate property source.” (Cochran, supra, 87 Cal.App.4th at p.
1057.)
The question thus becomes whether Husband traced
his separate property contributions from Cebolla, West Street
and National Park Drive to Mission Ridge Road, Chrisanta and
Windsor Way. The trial court rejected all of Husband’s tracing
evidence, finding that it was “incomplete” in unspecified respects
and had unidentified “gaps.” We conclude this was error.
Mission Ridge Road. In 2013, the parties sold their
home on National Park Drive and used the proceeds to make the
down payment on the house on Mission Ridge Road. It is
undisputed that Husband purchased the National Park Drive
house in 2003, six months before the marriage, taking title as “an
unmarried man.” The deed of trust and closing statement from
that transaction document that Husband made a down payment
of $295,000. By definition, the funds Husband used for the down
payment were his separate property because they existed before
the marriage. (§770.)
The trial court found that the parties sold the
National Park Drive house in October 2013 and, “it does appear
that funds from that sale were used to purchase Mission Ridge;
however, the tracing is incomplete and community funds were
available, as discussed below.” It later noted, “While it is clear
that some funds from National Park were utilized for the
purchase [of the Mission Ridge house], there are gaps in the
tracing (admitted by expert Duerkson at trial) that cause the
court to characterize Mission Ridge as community property.”
Duerkson relied on recorded deeds and the escrow
closing statement to establish that Husband made a down
13
payment of $295,000 to acquire the National Park Drive house.
Because the down payment was made prior to the marriage,
those funds are Husband’s separate property. Similar documents
established that the 2013 sale of that property netted proceeds of
$641,625. The parties deposited those proceeds into their credit
union account and later withdrew $476,300 from the same
account to make the down payment on the Mission Ridge Road
house. This evidence adequately traced Husband’s separate
property contribution of $295,000 to the Mission Ridge Road
house.
Chrisanta: At trial, Husband sought reimbursement
for both the down payment made on the Chrisanta condominium
and the $203,769 used to pay off the mortgage on this property.
On appeal, Husband has abandoned his claim for reimbursement
of the down payment and seeks reimbursement only for his
separate property contribution to the funds used to pay off the
Chrisanta mortgage. He contends these funds are his separate
property because they were derived from the 2007 refinancing of
Cebolla. The trial court denied Husband’s section 2640 claim,
reasoning “[t]he mortgage on Chrisanta was paid off near the
time of the sale of Cebolla, so a complete and reliable calculation
is not available. This incomplete evidence requires this property
to be characterized as community property.”
The characterization of Chrisanta as community
property is necessary to Husband’s reimbursement claim; it does
not defeat the claim. (Walrath, supra, 17 Cal.4th at p. 920.) In
addition, no substantial evidence supports the trial court’s
finding that the Chrisanta mortgage was paid off “near the time
of the sale of Cebolla . . . .” To the contrary, the parties agree the
mortgage on Chrisanta was paid off in 2007 and that Cebolla was
14
refinanced in 2007 and then sold in 2011. The trial court failed to
make any findings on the question of whether Husband
adequately traced his separate property from Cebolla to the
Chrisanta mortgage payoff.
Under Walrath, Husband is entitled to be reimbursed
for separate property contributions he made to Cebolla if he
adequately traces those contributions to cash received in the
Cebolla refinancing and then to the repayment of the Chrisanta
mortgage. (Walrath, supra, 17 Cal.4th at p. 922.) Duerkson
determined that Husband’s separate property contributions to
Cebolla accounted for 72.5% of the loan proceeds received in the
2007 refinancing. His conclusion that funds from the Cebolla
refinancing were used to repay the Chrisanta mortgage was
based on a settlement statement from the refinancing. This
document shows cash received by the parties from the new loan.
A handwritten note attached to the settlement statement reads,
“paid off the office First Sec Thrift 281,014.” This note formed
the basis for Duerkson’s conclusion that funds from the Cebolla
refinancing were used to pay off the Chrisanta mortgage.
The trial court made no findings on the question of
whether this evidence adequately traced Husband’s separate
property contributions from the Cebolla loan proceeds to payment
of the Chrisanta mortgage. Consequently, we cannot infer
findings in favor of respondent. (Code Civ. Proc., § 634; Ruiz v.
County of San Diego (2020) 47 Cal.App.4th 504, 521 (Ruiz).)
Failure to make findings on a disputed issue is reversible error.
(Parker v. Contractors State License Bd. (1986) 187 Cal.App.3d
205, 211 (Parker).) We will remand the matter to permit the trial
court to make findings on the adequacy of Husband’s tracing and
15
the amount of any section 2640 reimbursement to which he is
entitled.
Windsor Way. The parties acquired the Windsor
Way house in 2011, through a section 1031 exchange after selling
the Cebolla house and the Kazan Street condominium. Because
both Cebolla and Kazan were Husband’s separate property before
their transmutation, Husband contends he is entitled to
reimbursement from equity in the Windsor Way property. The
trial court rejected this claim, finding that the parties purchased
Windsor Way “[as] an investment intended to benefit both
parties. Title was taken by the parties as “community property
with right of survivorship.” [Exhibit 415] The court finds that
the funds used for the purchase were commingled community and
separate property funds, and the testimony of expert Duerkson
did not adequately unravel them. The community had funds at
the time that could have been used for the purchase, and
community funds have been used for expenses [associated with
the property]. The court finds that Windsor Way is community
property.”
The characterization of the Windsor Way property as
community property does not defeat Husband’s claim for
reimbursement; it is a prerequisite for the claim. (Walrath,
supra, 17 Cal.4th at p. 920.) Similarly, the fact that separate and
community property interests have been commingled in an asset
does not defeat a reimbursement claim, if the separate property
interest “can be traced to its separate property source.”
(Cochran, supra, 87 Cal.App.4th at p. 1057.) We understand the
trial court’s statement that Duerkson “did not adequately
unravel” the separate and community property interests in
Windsor Way to be a factual finding that Husband did not
16
adequately trace his separate property contributions from
Cebolla and Kazan to Windsor Way. We conclude that finding is
not supported by substantial evidence.
The cash used to make the down payment on
Windsor Way came from the sale of Kazan and Cebolla, both of
which were, at one time, Husband’s separate property. Duerkson
calculated the separate property and community property
interests in each of these assets. He then relied on escrow closing
statements, recorded deeds and tax returns to trace Husband’s
separate property from Kazan and Cebolla through the asset
exchange company to the Windsor Way property.
Specifically, the seller’s final settlement statement
from the September 2011 sale of Kazan shows that sales proceeds
of $306,525 were transferred to the asset exchange company, to
facilitate a section 1031 exchange. That same month, the parties
also sold Cebolla. Duerkson testified that $6,707 in net proceeds
from the sale of Cebolla were also transferred to the asset
exchange company. On September 7, 2011, $251,261 from the
same asset exchange company was used to make the down
payment on Windsor Way.5 Duerkson established that the asset
exchange company held proceeds from the sale of Kazan and
Cebolla and then transferred those funds to make the down
payment on Windsor Way. This testimony adequately traced
Husband’s separate property to Windsor Way. The trial court
5Husband’s reimbursement claim decreased by about
$20,000, from $272,000 to $251,261, because Duerkson reviewed
a buyer’s final settlement statement showing a payment that did
not come from the intermediary. Duerkson assumed those funds
came from the community, rather than Husband’s separate
property, because he could not trace the source of the funds.
17
erred when it rejected Husband’s reimbursement claim based on
inadequate tracing.
Vanguard IRA. Before the marriage, Husband’s IRA
was in his name alone. There is no evidence pre-marital
contributions to the IRA came from any source other than his
income. Duerkson used account statements and tax returns to
document contributions made to the IRA both before and after
the marriage. He presumed all contributions made before
marriage were Husband’s separate property and all contributions
made after marriage were community property. As a result of
these calculations, Duerkson allocated 56% of the IRA to
Husband’s separate property and the remaining 44% to
community property. He allocated returns according to the same
proportionate shares.
Duerkson concluded that, as of 2019, the balance in
the Vanguard IRA was $501,451. Based on his analysis of
contributions made before and after marriage, Duerkson
allocated $277,487 of the balance to Husband’s separate property;
the remaining $223,964 was allocated to community property.
In compliance with the status only judgment, one-
half of the entire Vanguard IRA was transferred to Wife’s rollover
IRA. Duerkson opined that Husband was entitled to
reimbursement of his separate property interest, requiring a
payment from Wife of $138,744.
The trial court’s statement of decision did not
mention the Vanguard IRA. The judgment on reserved issues
made no specific findings relating to the asset, except that it
“denie[d] [Husband’s] separate property allocation claim” with
respect to the rollover IRA in Wife’s name.
18
Husband contends the trial court erred because it
failed to make any factual findings on his claim that he was
entitled to a reallocation of the Vanguard IRA to account for his
separate property interest. Wife contends the status only
judgment was a final decision on the division of the IRA.
Alternatively, she contends Husband failed to prove the amount
of his separate property.
We reject Wife’s contention that the status only
judgment finally determined her interest in the Vanguard IRA.
The judgment expressly states that the court reserves jurisdiction
over the division of property and that it divided the IRA to
“preserve the ability of [Husband] to defer distribution of his or
her community interest on the death of the IRA owner.” The
status only judgment was not a final judgment on the division of
the Vanguard IRA.
We further conclude the trial court erred when it
failed to make findings regarding Husband’s separate property
contributions to the Vanguard IRA. (Parker, supra, 187
Cal.App.3d at p. 211.) Because the trial court made no express
factual findings on this issue, we cannot infer facts in support of
the judgment. (Code Civ. Proc., § 634; Ruiz, supra, 47
Cal.App.4th at p. 521.) We will remand the matter to permit the
trial court to make findings on Husband’s separate property
interest in the Vanguard IRA and the appropriate division of that
account.
DISPOSITION
The judgment on reserved issues is reversed with
respect to the Mission Ridge Road, Windsor Way and Chrisanta
Drive properties and the Vanguard IRA. On remand, the trial
court is instructed to calculate the parties’ separate property and
19
community property interests in these assets and to award
section 2640 reimbursement consistent with this opinion.
Appellant is awarded his costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
20
Colleen K. Sterne, Judge
Superior Court County of Santa Barbara
______________________________
California Appellate Law Group, Charles Kagay and
Robert A. Roth, for Appellant.
Griffith & Thornburgh and John R. Rydell II, for
Respondent.