Marriage of Jones CA4/3 ( 2014 )

Filed 1/10/14 Marriage of Jones CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of KIMBERLY M. and
FLETCHER JONES, JR.
KIMBERLY M. JONES,
G047724
Appellant,
(Super. Ct. No. 12D000041)
v.
OPINION
FLETCHER JONES, JR.,
Respondent.
Appeal from a judgment of the Superior Court of Orange County, Ronald
P. Kreber, Judge. Affirmed.
Kolodny & Anteau, Stephen A. Kolodny, Heidi L. Madzar; Steven E.
Briggs for Appellant.
Seastrom & Seastrom, Philip G. Seastrom; Wasser Cooperman & Carter,
Bruce Evan Cooperman; Greines, Martin, Stein & Richland, Robert A. Olson and Marc J.
Poster for Respondent.
* * *
Kimberly M. Jones filed a petition for dissolution of her 13-year marriage
to Fletcher Jones, Jr. Fletcher1 filed a response in which he agreed irreconcilable
differences existed. Later that year, he moved to bifurcate the trial on the status of the
marriage from the remaining issues. Kimberly opposed the motion, arguing the motion
should be denied because Fletcher did not comply with the preliminary disclosure
requirements of Family Code2 section 2337, subdivision (b). In the alternative, Kimberly
submitted approximately 30 conditions she contended should to be attached to
bifurcation. On November 29, 2012, the court granted bifurcation and issued a judgment
terminating the status of the marriage. It attached approximately 16 conditions to its
judgment. Kimberly appealed and contends the trial court abused its discretion in
concluding Fletcher’s financial disclosures met section 2337, subdivision (b)’s
requirements, and in granting bifurcation without additional conditions. We affirm.
I
FACTS
Kimberly and Fletcher were married in July 1998, and separated in
November 2011. They have three minor children. Kimberly filed for dissolution of their
marriage in early January 2012 alleging irreconcilable differences. Fletcher’s response
agreed there were irreconcilable differences. In June 2012, Fletcher filed a motion to
bifurcate the trial of the marital status from the remaining issues, including the division of
property, child and spousal support, and attorney fees and costs. He stated a number of
reasons for seeking bifurcation, including the possible detrimental effect continuation of
the marriage might have on any future investments he may make prior to a final
resolution of the remaining issues, that he wanted to move on with his life, and he desired
1We refer to the parties by their first names for ease of reading and to
avoid confusion.
2 All undesignated statutory references are to the Family Code unless
otherwise stated.
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to remarry. His application for bifurcation included a request for six statutory conditions
to be attached to the court granting his request. (See § 2337, subd. (c).)
About the same time he filed his motion for bifurcation, Fletcher served his
preliminary declaration of disclosure. (§ 2337, subd. (b).) The declaration exceeded 90
pages and listed assets and liabilities, partnerships and other interests, investments, and
included an expense and income statement. The preliminary declaration listed more than
25 pieces of real property in which one or both of the parties had an interest. These
properties are located in California, Nevada, Hawaii, Idaho, Illinois, and Mexico. It also
listed Fletcher’s car dealerships, a number of checking and savings accounts, credit union
accounts, boats, stocks, bonds or mutual funds, accounts receivable and unsecured notes,
and more than three pages of interests in partnerships or other business interests,
including interests in trusts. Without going into a great deal of detail, it appears
Kimberly’s attorney was correct when he said Fletcher is worth possibly hundreds of
millions of dollars.
Kimberly opposed bifurcation, arguing Fletcher’s preliminary declaration
of disclosure did not comply with section 2337. In the alternative, she requested the
court impose 31 conditions to bifurcation. The court granted bifurcation with
approximately 16 conditions. The details of the conditions imposed and those denied are
set forth in the discussion, below. In rejecting Kimberly’s contention that Fletcher’s
preliminary declaration of disclosure did not comply with section 2337, the court found
the declaration had been augmented to meet statutory requirements. Kimberly appealed.
II
DISCUSSION
The Legislature intends “‘that the dissolution of marriage should not be
postponed merely because issues relating to property, support, attorney fees or child
custody [are] unready for decision.’ [Citation.]” (Gionis v. Superior Court (1988) 202
Cal. App. 3d 786, 788.) “Severance of a personal relationship which the law has found to
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be unworkable and, as a result, injurious to the public welfare is not dependent upon final
settlement of property disputes. Society will be little concerned if the parties engage in
property litigation of however long duration; it will be much concerned if two people are
forced to remain legally bound to one another when this status can do nothing but
engender additional bitterness and unhappiness.” (Hull v. Superior Court (1960) 54
Cal. 2d 139, 147-148.) “Consistent with the legislative policy favoring no fault
dissolution of marriage, only slight evidence is necessary to obtain bifurcation and
resolution of marital status. On the other hand, a spouse opposing bifurcation must
present compelling reasons for denial.” (Gionis v. Superior Court, supra, 202
Cal.App.3d at p. 790.)
A decision dissolving the marital status is reviewed under the substantial
evidence standard. (DeYoung v. DeYoung (1946) 27 Cal. 2d 521, 526.) Substantial
evidence supported the trial court’s decision. Kimberly’s verified petition alleged
irreconcilable differences and Fletcher’s declaration concurred in the presence of
irreconcilable differences. (§ 2333.) No valid purpose would have been served by
requiring the parties to stay married.
The Preliminary Declaration of Disclosure
Section 2337 authorizes the trial court to “sever and grant an early and
separate trial on the issue of the dissolution of the status of the marriage apart from other
issues.” (§ 2337, subd. (a).) Prior to granting bifurcation, the moving party must serve
with its notice of motion “[a] preliminary declaration of disclosure with a completed
schedule of assets and debts.” (§ 2337, subd. (b).) A preliminary declaration of
disclosure is signed under penalty of perjury (§ 2104, subd. (a)) and must “set forth with
sufficient particularity, that a person of reasonable and ordinary intelligence can
ascertain, . . . : [¶] (1) The identity of all assets in which the declarant has or may have an
interest and all liabilities for which the declarant is or may be liable, regardless of the
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characterization of the asset or liability as community, quasi-community, or separate. [¶]
(2) The declarant’s percentage of ownership in each asset and percentage of obligation
for each liability where property is not solely owned by one or both of the parties. The
preliminary declaration may also set forth the declarant’s characterization of each asset or
liability.” (§ 2104, subd. (c)(1),(2).)
Kimberly argues the trial court abused its discretion in concluding
Fletcher’s preliminary declaration of disclosure met section 2337’s requirements. She
does not, however, contend the termination of the marital status should be set aside. (See
In re Marriage of McLaughlin (2000) 82 Cal. App. 4th 327, 336 [failure to require
preliminary declaration of disclosure is not jurisdictional].) Rather, she contends the
matter should be remanded, Fletcher ordered to supply the missing information—the
current values of listed assets and the amounts of the debts—and that she be provided an
opportunity to seek additional conditions to the bifurcation once full disclosure has been
made.
Whatever the relative merit of Fletcher’s original preliminary declaration of
disclosure, the court found the declaration had been augmented to meet the requirements
of section 2337. Because Kimberly did not include the augmented information in the
record on appeal, we are unable to conclude the trial court erred in finding Fletcher’s
preliminary declaration of disclosure, as augmented, met the statutory requirements. “It
is the burden of appellant to provide an accurate record on appeal to demonstrate error.
Failure to do so precludes an adequate review and results in affirmance of the trial court’s
determination.” (Estrada v. Ramirez (1999) 71 Cal. App. 4th 618, 620, fn. 1.) This result
is required because the trial court’s judgment is presumed correct (Denham v. Superior
Court (1970) 2 Cal. 3d 557, 564) and the appellant bears the burden of establishing
prejudicial error (Lundquist v. Reusser (1994) 7 Cal. 4th 1193, 1213). Kimberly has not
carried her burden. Accordingly, we find the trial court did not err in finding Fletcher’s
preliminary declaration of disclosure sufficient.
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Conditions on Granting Bifurcation
Section 2337 lists a variety of conditions a court may impose in connection
with an order bifurcating the trial of the marital status from the remaining issues. (§
2337, subd. (c).) The trial court attached six statutory conditions to bifurcation.
Specifically, Fletcher was required to: indemnify Kimberly for any taxes, reassessments,
interest, and penalties imposed in connection with division of the community estate based
on the parties not being married at the time of the division (§ 2337, subd. (c)(1));
maintain health insurance on Kimberly and the children pending resolution of all other
issues (§ 2337, subd. (c)(2)); reimburse Kimberly from adverse consequences should the
termination of the marriage adversely affect Kimberly’s ability to probate homestead the
residence in which she resided at the time the marriage was terminated (§ 2337, subd.
(c)(3)); indemnify and hold Kimberly harmless from any adverse consequences should
the bifurcation result in a loss of her right to a probate family allowance prior to judgment
being entered on the remaining issues (§ 2337, subd. (c)(4); and indemnify Kimberly if
the early termination of the marriage results in a loss of retirement, survivor, deferred
compensation benefits (§ 2337, subd. (c)(5)) or social security benefits (§ 2337, subd.
(c)(6).) Additionally, the court ordered Fletcher to indemnify and hold Kimberly
harmless from any tax liabilities should she not be able to claim “‘a stepped up’ basis” on
any property held by the parties at the time their marital status is terminated; pay
Kimberly’s health insurance for three years after final resolution of all other issues;
indemnify Kimberly for any loss of rights she might suffer under Probate Code sections
100 through 104, and 120, as a result of his death and the early termination of the
marriage; agree that any obligation imposed by the judgment terminating the marital
relationship may be enforced against his estate in the event he dies after entry of that
judgment; maintain the status quo on all life insurance policies pending final resolution of
all remaining issues; agree Kimberly is entitled to attorney fees and costs incurred by her
in an effort to enforce the provisions of the judgment in the event he breaches his
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obligations; agree the court reserves jurisdiction to award Kimberly damages from
Fletcher’s community or separate property for any breach of the judgment prior to
judgment being entered on all remaining issues, and in the event of his death, from his
estate; inform Kimberly, prior to entering into escrow, of the purchase of any real
property before entry of judgment on all remaining issues; abide by standard family law
restraining orders in effect and that he is prohibited from encumbering, selling, or
transferring any property pending judgment on the remaining issues; not to move to
reduce spousal support payable to Kimberly if the ground for the modification is based on
new expenses based upon his remarriage; and agree that the court maintains jurisdiction
over all other issues of the marriage.
Kimberly contends the trial court erred in not adding a number of
conditions she had proposed. She claims “[m]ost of the requested conditions are
designed to protect [her] interests with respect to the property division issues which have
yet to be resolved.” (Boldface omitted.) Her trepidation is that Fletcher would remarry,
creating a new community with concomitant evidentiary privileges in the new spouse
which could then be used to frustrate Kimberly’s discovery efforts. To that end, she
asserts the trial court should have required that prior to Fletcher obtaining a marriage
license, he must submit to her: 1) a written waiver from his intended spouse of her right
to assert privileges under Evidence Code sections 970, 971, and 980 in further
proceedings in the pending action, and that Fletcher consent to the new spouse being
joined in the pending action in superior court; 2) a written waiver from his intended
spouse of her right to claim any privilege in regard to Fletcher’s financial affairs,
including any separate or joint income tax returns they file subsequent to their marriage;
and 3) a written waiver from his intended spouse of her right to asset any privileges under
the California Constitution regarding privacy in Fletcher’s financial affairs and
transactions subsequent to their marriage. Additionally, Kimberly sought a condition
prohibiting Fletcher, in the event of remarriage, from asserting any privacy interest on
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behalf of himself or his new wife in connection with business or financial matters. She
also proposed that in the event the court was not inclined to require a spousal waiver
privilege, she should be provided an opportunity to depose the intended new wife prior to
any marriage. Lastly, she urged the trial court to require Fletcher to post a $10 million
certificate of deposit in the financial institution of her choosing as security for the
proposed indemnity provisions.
We review the trial court’s decision attaching conditions to the early
termination of the marital relationship for an abuse of discretion. (Gionis v. Superior
Court, supra, 202 Cal.App.3d at p. 790.) Aside from a trial court making a decision
without consideration of the appropriate law and facts (see People v. Downey (2000) 82
Cal. App. 4th 899, 912), an abuse of discretion exists only when the “decision is so
irrational or arbitrary that no reasonable person could agree with it” (People v. Carmony
(2004) 33 Cal. 4th 367, 377). In other words, an appellate court will not find an abuse of
discretion unless no judge could reasonably have made the same order. (In re Marriage
of Keech (1999) 75 Cal. App. 4th 860, 866.) Thus, the question is whether given the
extensive conditions the court placed on bifurcation, as well as the effect of Evidence
Code section 972, subdivision (g), the court abused its discretion in refusing to include
Kimberly’s additional proposed conditions. Using the applicable standard of review, we
find no abuse of discretion.
First, Kimberly made no showing the rejected conditions were necessary to
protect her interests. She argues they are necessary because the early termination of the
marital status “may impact upon property division issues” and Fletcher’s remarriage
would establish “new evidentiary privileges and areas of confidentiality which could be
used to block [a] party in Kimberly’s position from obtaining full disclosure and
discovery of information . . . the disclosure of which . . . constitutes a significant part of
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Fletcher’s continuing fiduciary obligations to Kimberly.”3 The same can be said in every
situation wherein the court bifurcates the trial, resulting in termination of the marital
status prior to resolution of other issues. Aside from the fact that Kimberly failed to
demonstrate the necessity of these conditions, the Legislature has set forth a number of
specific conditions courts may impose in granting bifurcation. (§ 2337, subd. (c).) Those
requested by Kimberly are not among them. Granted, the court may also impose any
other condition it finds to be “just and equitable” (§ 2337, subd. (c)(10)), but the fact that
the Legislature has specifically set forth at least nine other permissible conditions and did
not include any of those sought by Kimberly, which again could apply in all cases, tends
to indicate the Legislature would not consider them “just and equitable” absent a showing
distinguishing a particular case from every other case involving bifurcation.
Additionally, Evidence Code section 972 weighs against the requests
concerning evidentiary privileges. Subdivision (g) of Evidence Code section 972
provides the marital privilege does not exist in “[a] proceeding brought against the spouse
by a former spouse so long as the property and debts of the marriage have not been
adjudicated, or in order to establish, modify, or enforce a child, family or spousal support
obligation arising from the marriage to the former spouse; in a proceeding brought
against a spouse by the other parent in order to establish, modify, or enforce a child
support obligation for a child of a nonmarital relationship of the spouse; or in a
proceeding brought against a spouse by the guardian of a child of that spouse in order to
establish, modify, or enforce a child support obligation of the spouse. The married
person does not have a privilege under this subdivision to refuse to provide information
relating to the issues of income, expenses, assets, debts, and employment of either
3 Kimberly asks that we take judicial notice (Evid. Code, § 452, subd. (d))
of the petition for dissolution of marriage Fletcher filed and the response filed by the
woman he married subsequent to the court terminating the marital status of Fletcher and
Kimberly. That there was a subsequent marriage and premarital agreement does not tend
to indicate the trial court erred in the present case. We therefore deny the request.
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spouse, but may assert the privilege as otherwise provided in this article if other
information is requested by the former spouse, guardian, or other parent of the child.”
(Italics added.) In this regard, it is noteworthy that Kimberly did not dispute the
representation of Fletcher’s attorney in the trial court to the effect that Kimberly and
Fletcher are party to three martial agreements making virtually all of Fletcher’s property
his separate property. Neither did she assert the agreements were unlawful. Thus, at the
time the court decided on appropriate conditions for bifurcation, division of the extensive
assets did not appear to be an overly complex issue. Indeed, if by virtue of the
agreements between the parties the vast majority of the property is deemed to be
Fletcher’s separate property, Kimberly’s need for the proposed conditions may in fact be
less compelling than one would expect in the majority of bifurcation cases.
This same fact—that the vast majority of the extensive holdings are
presumably Fletcher’s separate property—militates against requiring him to post a $10
million deposit as a condition of bifurcation, the money to be used to assure
indemnification required by other conditions. Our requirement that Fletcher post a $10
million bond as a condition of our lifting the automatic stay of the termination of the
marital status triggered by Kimberly’s appeal (Code Civ. Proc., § 923) does not mean,
contrary to Kimberly’s assertion, the trial court should have required Fletcher to post the
same amount as a condition of bifurcation. Unlike Kimberly’s request of the trial court,
the bond we required was not for the purpose of assuring Fletcher’s compliance with the
terms of conditions imposed on the bifurcation. Instead, our bond was to indemnify
Kimberly in the event our lifting the automatic stay at Fletcher’s request caused her any
harm during the appellate process. Moreover, the bond we ordered did not require
Fletcher to deposit $10 million in a financial institution, as did Kimberly’s proposed
condition.
For the same reasons stated above, neither did the court err in denying
Kimberly’s request to include the following conditions: 1) that section 721 would
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continue to govern the conduct of the parties pending final resolution of all remaining
issues; 2) that Fletcher must honor his fiduciary duties to Kimberly pending final
resolution of all remaining issues; and 3) that until judgment on all the remaining issues,
the parties will continue to be considered spouses under sections 1100 through 1103. In
addition, whether added as an express condition or not, both parties have a continuing
duty fiduciary duty to each other (§ 1100, subd. (e) [fiduciary duty remains “until such
time as the assets and liabilities have been divided by the parties or by a court”]) and
sections 1100 through 1103 sufficiently protect Kimberly’s interests. For example, the
remedy provided in subdivision (g) of section 1101 for a breach of the fiduciary duty
includes, but is not 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.”
Kimberly has not demonstrated the court abused its discretion in not adding
the above conditions to bifurcation. Consequently, we affirm.
III
DISPOSITION
The judgment is affirmed. Fletcher shall recover his costs on appeal.
MOORE, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ARONSON, J.
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