Marriage of McCarden and Johnson CA2/1 ( 2022 )

Filed 12/20/22 Marriage of McCarden and Johnson CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re Marriage of McCARDEN and B310047
JOHNSON.
(Los Angeles County
Super. Ct. No. SD034570)
KHRISTA M. McCARDEN,
Appellant,
v.
ALTON TIMOTHY JOHNSON,
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lawrence P. Riff, Judge. Affirmed.
Law Offices of Lisa R. McCall, Lisa R. McCall, Erica M.
Baca for Appellant.
Alton Johnson, in pro. per., for Respondent.
——————————
Khrista M. McCarden appeals from a family law judgment,
challenging the judgment’s (1) real property division, (2) personal
property valuation, (3) child support orders, and (4)
reimbursement orders. We affirm the judgment.
BACKGROUND
We take the facts from the trial court’s statement of
decision on reserved issues.
Khrista and Alton Timothy Johnson were married in
December 2012 and separated 34 months later in September
2015.1 Their daughter was born in August 2015.
A. Accounts and Income
During the marriage the parties maintained six bank
accounts:
Khrista’s Citibank account ending in 2250 (Khrista’s
2250 account);
Alton’s Chase Bank account ending in 9346 (the 9346
account);
Alton’s Chase Bank account ending in 1057 (Alton’s
1057 account);
a Chase Bank account ending in 0539 owned by
California Coastal Assets II, an LLC whose sole member
was Alton (California Coastal Assets II 0539 account);
a jointly owned Chase Bank ending in 2532 (joint
account 2532); and
1
We will refer to the parties by first name for clarity, not
out of familiarity or disrespect.
2
a jointly owned Ally Bank account ending in 047
2
(joint Ally account 047).
Khrista was a law professor whose salary was paid in well-
documented increments. She deposited her salary into the 9346
account. Khrista periodically updated her income and expense
declaration, reflecting an income from 2016 to 2018 of around
$12,000 per month.
Alton was in the business of making speculative real estate
transactions, buying residential properties, and renovating and
selling them in short turnaround times. As part of this business,
Alton moved money around via various entities and through
various bank accounts, sometimes refinancing properties at the
eleventh hour to stave off an impending foreclosure. He derived
his income from the withdrawal and redirection of equity from
his properties. The trial court characterized this as a “ ‘living-
near-the-edge’ business existence.” Alton periodically updated
his income and expense declaration, reflecting an income of
around $2,000 per month from 2016 to 2018.
B. Real Property
Before the marriage, Alton separately owned real property
at four locations. During the marriage he sold three of these
properties and used the proceeds to buy property on Tuna
Canyon Road in Malibu.
1. Hillview
Alton acquired property at 4356 Hillview Drive in Malibu
in March 2012 (Hillview). The original mortgage was a $737,047
2
Another LLC, California Coastal Assets (not to be
confused with California Coastal Assets II), was Alton’s nominal
employer.
3
30-year fixed mortgage, with a monthly mortgage payment of
$3,465.87 and a monthly impounded mortgage total of $5,232.21
as of the date of marriage. Hillview was rented out during part of
the marriage.
Alton sold Hillview in November 2014 for $1.7 million,
depositing the net proceeds of $888,000 into the California
Coastal Assets II 0539 account. Alton later transferred these
proceeds into joint account 2532.
2. Ocean View 1
Johnson acquired property at 26608 Ocean View Drive in
Malibu in November 2012 (Ocean View 1).
During the marriage, mortgage payments on Ocean View 1
were made from the 9346 account.
The property sold nine months into the marriage, in August
2013, and the $432,000 in proceeds were deposited into Alton’s
1057 account.
3. Ocean View 2
Alton acquired property at 26616 Ocean View Drive in
Malibu in November 2012 for $450,000, with a $275,000
mortgage (Ocean View 2).
He refinanced the property, increasing the original trust
deed by $50,000, and took out a second trust deed for about
$100,000, bringing the total mortgages to $425,000. In
September 2014, Alton transferred Ocean View 2 to California
Coastal Assets II, LLC. During marriage, mortgage payments
were made on Ocean View 2 from the 9346 account.
In December 2014, Alton used part of the $888,000 in
proceeds from the Hillview sale to pay off the Ocean View 2
mortgage.
4
In January 2015, California Coastal Assets II sold Ocean
View 2, receiving $849,000 in sale proceeds that were put into the
California Coastal Assets II 0539 account.
The parties’ tax returns showed a $199,808 increase in cost
basis for Hillview, $148,471.10 for Ocean View 1, and $314,253
for Ocean View 2, which Khrista testified reflected capital
improvements made with community funds. However, the trial
court expressly discredited this testimony.
4. Swenson
Some time before the marriage, Alton bought what the
parties refer to as the “Swenson” property (Swenson). During the
marriage, Alton paid down $109,836 of the principal on the
Swenson mortgage from the 9346 account.
5. Tuna Canyon
In 2015, Alton transferred $500,000 and $350,000 from the
California Coastal Assets II 0539 account to the joint Ally
account 047, funds that had resulted from the Hillview and
Ocean View 2 sales, respectively.
In August 2015 (during the marriage), Alton used newly
transferred funds in the joint Ally account 047 to make a
$497,668 down payment on Tuna Canyon, taking out a $1 million
mortgage. The joint Ally account 047 thereafter had a $356,196
balance.
In November 2018, Alton sold Tuna Canyon, without
Khrista’s knowledge, for $2.1 million, yielding proceeds of
$192,674.64. Alton transferred the proceeds to an account owned
by his mother, along with $100,000 from the joint Ally account
047, also without Khrista’s knowledge.
5
C. Engagement Ring
Alton bought Khrista an engagement ring. He testified the
ring originally appraised for $62,000, but to obtain an $80,000
insurance policy, Alton persuaded the jeweler to appraise the
ring for $80,750. The court characterized Alton’s maneuvering
with respect to the ring as “potential insurance fraud” and
“strong-arming.”
When Khrista became pregnant, her fingers swelled to the
point that she could not wear the ring, so Alton took it for
safekeeping. Khrista never saw it again.
D. Child Support
During divorce proceedings, the Los Angeles County Child
Support Services Department (CSSD) opened a case to calculate
child support. On May 17, 2016, the CSSD filed a notice
regarding payment of support, and on January 31, 2018, filed a
stipulation and order on child support, reserving retroactive
jurisdiction.
E. Trial
On October 23, 2015, Khrista petitioned for dissolution and
Alton petitioned for legal separation. The cases were
consolidated, and Alton’s petition was deemed to be his response
to the dissolution case. The parties thereafter engaged in almost
five years of what the court characterized as “grossly
disproportionate” litigation in a “ceaseless conflict” over which
the parties were “plainly . . . impoverishing themselves.”
As pertinent here, Khrista contended: (1) Tuna Canyon
was community property; (2) the engagement ring was worth
$100,000; (3) Alton breached his fiduciary duty by transferring
funds to his mother; and (4) Khrista was entitled to retroactive
child support, which could be determined only by CSSD.
6
The matter was tried over the course of seven days in
department C-77 of the Los Angeles Superior Court, the
Honorable Lawrence Riff, Judge presiding. The court issued a
tentative decision and proposed statement of decision, to which
Khrista filed objections, and on August 13, 2020, issued a
statement of decision on reserved issues. Below, we will discuss
evidence presented at trial as it becomes pertinent. The court
issued its final judgment on October 13, 2020.
The judgment found that Khrista failed to meet her burden
of proof that the community had an interest in the five real
properties described above, and awarded the entire sales
proceeds of Tuna Canyon to Alton as his separate property. The
court alternatively awarded Alton those sales proceeds pursuant
to Family Law Code section 2640 on the ground that the
$498,000 down payment was traceable to Alton’s separate funds,
and the proceeds were insufficient to fully reimburse him for this
payment.
The court found that the second appraisal Alton received of
Khrista’s engagement ring, for $80,750, was unreliable as to the
ring’s value, and the cost of acquisition and first appraisal were
more reliable indicators of the value. It thereupon found the ring
was worth $62,000 (which it awarded to Khrista).
The court denied Khrista’s request for child support
retroactive to December 29, 2015, and ordered her to pay Alton
$409 per month going forward. Finally, the court made
reimbursement orders and found that Khrista failed to prove
Alton breached a fiduciary duty.
Khrista timely appealed.
7
DISCUSSION
Khrista contends (1) the court’s award of child support and
findings regarding Tuna Canyon and the engagement ring were
unsupported by substantial evidence, (2) the court lacked
jurisdiction to award child support, and (3) the court abused its
discretion in failing to order retroactive child support, failing to
find Alton breached a fiduciary duty, and issuing certain
reimbursement orders.
A. Tuna Canyon
Khrista contends no substantial evidence supported the
court’s finding that Tuna Canyon was Alton’s separate property,
and she should have been awarded a community interest of one
half of the $192,674.64 realized from its sale. We disagree.
Property acquired before marriage is separate property.
(Fam. Code, § 770, subd. (a)(1).)3
Property acquired during marriage is presumed to be
community property. (§ 760.) This is a rebuttable presumption
affecting the burden of proof, and may be overcome by “tracing
the source of funds used to acquire the property to separate
property.” (In re Brace (2020) 9 Cal.5th 903, 914; In re Marriage
of Weaver (2005) 127 Cal.App.4th 858, 864.)
The community property presumption may be overcome by
direct tracing. “ ‘[S]eparate funds do not lose their character as
such when commingled with community funds in a bank account
so long as the amount thereof can be ascertained. Whether
separate funds so deposited continue to be on deposit when a
withdrawal is made from such a bank account for the purpose of
3
Undesignated statutory references will be to the Family
Code.
8
purchasing specific property, and whether the intention of the
drawer is to withdraw such funds therefrom, are questions of fact
for determination by the trial court.’ ” (In re Marriage of Mix
(1975) 14 Cal.3d 604, 612.)
The community property presumption may also be
overcome by considering family expenses. We presume that
“family expenses are paid from community funds. [Citations.] If
at the time of the acquisition of the property in dispute, it can be
shown that all community income in the commingled account has
been exhausted by family expenses, then all funds remaining in
the account at the time the property was purchased were
necessarily separate funds.” (In re Marriage of Mix, supra, 14
Cal.3d at p. 612.)
“ ‘If funds used for acquisitions during marriage cannot
otherwise be traced to their source and the husband who has
commingled property is unable to establish that there was a
deficit in the community accounts when the assets were
purchased, the presumption controls that property acquired by
purchase during marriage is community property.’ ” (In re
Marriage of Mix, supra, 14 Cal.3d at p. 612.)
Finally, the community property presumption may be
overcome by “recapitulation of the total community expenses and
income throughout the marriage.” (See v. See (1966) 64 Cal.2d
778, 783.) Like exhaustion, this method, instead of looking at
what the family’s expenses were at a given point in time, allows a
separate property proponent to show that, over the course of the
marriage, community expenses exceeded community income.
However, this method is only allowed if records are not available
through no fault of the party claiming the separate property. (In
re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 330.)
9
Whether the community property presumption has been
overcome is a question of fact for the trial court, and must be
supported by substantial evidence. (In re Marriage of Mix, supra,
14 Cal.3d at p. 611.)
“ ‘Substantial evidence . . . is not synonymous with “any”
evidence.’ Instead, it is ‘ “ ‘substantial’ proof of the essentials
which the law requires.” ’ [Citations.] The focus is on the
quality, rather than the quantity, of the evidence. ‘Very little
solid evidence may be “substantial,” while a lot of extremely weak
evidence might be “insubstantial.” ’ ” “The ultimate test is
whether it is reasonable for the trier of fact to make the ruling in
question in light of the whole record. [Citation.] ‘A formulation
of the substantial evidence rule which stresses the importance of
isolated evidence supporting the judgment, . . . risks misleading
the court into abdicating its duty to appraise the whole record.’ ”
(Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651-
652.)
Here, Khrista’s claim on Tuna Canyon derives from her
income deposited into the 9346 account, thusly:
Tuna Canyon was purchased with a $497,668 down
payment from the joint Ally account 047;
That account was funded with $850,000 from the California
Coastal Assets II 0539 account;
The California Coastal Assets II 0539 account was funded
by proceeds from the Hillview, Ocean View 2 and Ocean View 1
sales;
Hillview, Ocean View 2 and Ocean View 1 were originally
separate property, but mortgage payments and an alleged
$199,808 in capital improvements for Hillview and $314,253 for
Ocean View 2 (and an uncertain amount for Ocean View 1) were
10
paid during the marriage from the 9346 account. (The Ocean
View 2 mortgage was also paid down with proceeds from the
Hillview sale.)
Khrista argues that because her income went into the 9346
account, which funded Hillview, Ocean View 2 and Ocean View 1,
the sales of which funded the California Coastal Assets II 0539
account, which was used to fund the joint Ally account 047, with
which Tuna Canyon was purchased, her income can be traced to
Tuna Canyon, rendering it community property.
However, Khrista testified that her income, all of which
was deposited into the 9346 account, also supported the family,
and Alton testified (and the trial court credited) that Khrista’s
contribution was insufficient to meet all the family’s living
“concurrent” expenses. It was undisputed that Alton’s regular
earnings, if any, were modest at best, and thus his contribution to
the family’s living expenses, if any, was correspondingly modest.
Based on this evidence, the court found that “this couple, during
their short marriage, lived a lifestyle that required the
exhaustion of Khrista’s paycheck on family expenses when
deposited into commingled accounts.”
This evidence supported the court’s finding that all
community income in the commingled 9346 account was
exhausted by family expenses. There was thus a deficit in the
community portion of the account whenever contributions were
made to Hillview, Ocean View 2 and Ocean View 1, and when
Tuna Canyon was purchased, and all funds remaining in that
account at the time of those contributions and that purchase were
necessarily separate funds. The court’s conclusion that Tuna
Canyon was Alton’s separate property is thus supported by
substantial evidence.
11
Khrista entirely ignores this evidence and the court’s
finding that living expenses exhausted community funds. She
recites the evidence presented at trial that was in her favor,
asserts as fact several conclusions that the court expressly
rejected (for example that an increased basis as reflected in tax
returns reflects capital improvements paid for with community
funds), and invites us to draw inferences contrary to those the
trial court drew from the totality of the evidence.
For example, Khrista sets forth in detail each property’s
purchase and sale price, mortgage, rent, and cost of
improvements; traces the movement of money between various
accounts (and Alton’s mother); details, her and Alton’s respective
incomes; and argues that because property expenses were
substantial and Alton’s income negligible, no separate property
income was available to pay property expenses, and any such
expenses must have been paid for with community funds. But
this ignores two contrary findings the court made: (1) Alton
derived income from the withdrawal and redirection of equity
from his properties; and (2) living expenses exhausted Khrista’s
income. Khrista makes no attempt to refute these findings, and
does not contend they were unsupported by evidence.
These findings, which were based on Alton’s and Khrista’s
testimony, supported the court’s characterization of Tuna Canyon
as separate property.
Relying on Higinbotham, Khrista argues Johnson was
precluded from using the recapitulation tracing method to rebut
the community property presumption because he made no
attempt to show that pertinent records were unavailable. The
point is irrelevant because Johnson did not use that method. The
recapitulation method considers whether community expenses
12
exceeded community income over the course of the marriage.
Here, Johnson showed, and the court credited, that the family’s
expenses exceeded community funds month-to-month.4
B. Engagement Ring
Khrista contends no substantial evidence supported the
court’s valuation of her engagement ring at $62,000 rather than
$100,000. We disagree.
In marital dissolution proceedings, property is divided
according to its fair market value. The fair market value of
personal property is the price a willing buyer would have paid to
a willing seller assuming there is no pressure on either one to
buy or sell, and the buyer and seller are fully informed of the
condition and quality of the property. (Rev. & Tax. Code, § 110.)
Here, the undisputed evidence showed that the
engagement ring was first appraised at $62,000. This supported
the trial court’s finding that the ring was worth $62,000.
Khrista argues the first appraisal was an unreliable
“scintilla of evidence,” and the only reliable evidence comprised
the second appraisal, for $80,000, and Alton’s declaration that
the ring was worth $100,000.
Evidence reliability is the trial court’s province. We may
not make reliability determinations on appeal.
4
In his respondent’s brief, Johnson argues without citation
to the record that Khrista sought bankruptcy protection to
forestall the judgment in this case. He does not argue (nor does
Khrista) that any such filing deprives us of jurisdiction to hear
this appeal. Absent a record citation the argument, whatever it
is, is forfeited.
13
C. Child Support
As noted above, the trial court denied Khrista’s request for
child support retroactive to December 29, 2015, and ordered her
to pay Alton $409 per month going forward.
1. Jurisdiction
Khrista first argues the trial court lacked jurisdiction over
child support because the court was divested of jurisdiction by
subdivision (a) of section 4251, which obligated the superior court
to provide sufficient commissioners to hear child support claims
(called Title IV-D cases) and states that such claims “shall be
referred for hearing to a child support commissioner.” She
argues the trial court was also divested of jurisdiction by Los
Angeles Superior Court Local Rule 5.24(b) (Local Rule 5.24),
which provides that child support claims “shall be filed” in Title
IV-D courtrooms. We disagree with both arguments.
The superior court has jurisdiction in proceedings under
the Family Code. (§ 200.) “There is but one Los Angeles Superior
Court.” (People v. Dependable Ins. Co. (1988) 204 Cal.App.3d
871, 874; Cal. Const., art. VI, § 4.) “ ‘The jurisdiction of causes is
vested by the constitution in the [superior] court, not in any
particular judge or department thereof.’ ” (Magallan v. Superior
Court (2011) 192 Cal.App.4th 1444, 1453.) “ ‘Transferring a
cause for trial or disposition from one of those departments to
another does not effect a change or transfer of the jurisdiction of
that cause; that remains at all times in the court as a single
entity.’ ” (Id. at pp. 1453-1454.)
Section 4251 and Local Rule 5.24 effect an administrative
redistribution of court business amongst court departments. An
administrative redistribution of court business does not deprive
any department of jurisdiction.
14
2. Retroactive Child Support
At trial, Khrista made a claim for child support retroactive
to 2016, i.e., for the years 2016, 2017, and 2018. She supported
her 2016 claim with DissoMaster calculations which assumed
that capital gains Alton listed on his 2015 tax return constituted
5
disposable income. For example, Alton’s monthly income in 2016
was zero, in 2017 was approximately $2,567, and in 2018 was
approximately $3,000, but Khrista calculated 2016 support based
on Alton’s capital gains of $108,814 (reflected on his 2015 return
but applicable to 2016). For her 2017 claim, Khrista offered a
commercial loan application in which Alton declared his monthly
income was $22,000, which the court stated it “might be inclined
to hold Alton to” had there been evidence as to Khrista’s income
during 2017.
No party submitted tax returns for either party for 2017 or
2018, from which the court inferred the returns would not have
assisted Khrista’s position. (See Evid. Code, § 412.)
The court thereupon found there was insufficient credible
evidence to make a guideline child support modification, partly
because Alton reinvested his capital gains, rendering them
unavailable for support, and partly because Khrista’s
DissoMaster assumptions set forth in her proposed statement of
5
“DissoMaster is a computer software program widely used
by courts to set child support and temporary spousal support.”
(Namikas v. Miller (2014) 225 Cal.App.4th 1574, 1578, fn. 4.)
The goal is to calculate support that comports with the uniform
child support guideline, sections 4050-4076, or “guideline
support.”
15
decision were too speculative. It therefore declined to award
retroactive child support.
Khrista contends the court abused its discretion in finding
insufficient evidence supported her DissoMaster calculations.
This is true, she argues, because her salary was always
undisputed, as Alton’s income and expense declarations
frequently listed her income as being around $12,500 per month.
We disagree.
California has a strong public policy in favor of adequate
child support, which is expressed in statutes embodying the
statewide uniform child support guideline. (§§ 4050-4076; In re
Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.) The child
support guideline “seeks to place the interests of children as the
state’s top priority.” (§ 4053, subd. (e).) In determining child
support under the guideline, courts must adhere to certain
principles, such as “[a] parent’s first and principal obligation is to
support the parent’s minor children according to the parent’s
circumstances and station of life.” (Id. at subd. (a).) “The
guideline takes into account each parent’s actual income and
level of responsibility for the children.” (Id. at subd. (c).)
“Children should share in the standard of living of both parents.
Child support may therefore appropriately improve the standard
of living of the custodial household to improve the lives of the
children.” (Id. at subd. (f).)
To implement these policies, courts must calculate child
support in accordance with the mathematical formula set forth in
the guideline. (In re Marriage of Cheriton, supra, 92 Cal.App.4th
at p. 284.) A trial court may not depart from the guideline except
in special circumstances. (Ibid.; see §§ 4052, 4053, subd. (k).)
16
Here, Khrista based her 2016 claim for child support on
calculations that assumed Alton’s capital gains, which he
reinvested, constituted disposable income. But “the types of
income specified in the [Family Code] consist of money that the
support obligor actually receives, and do not include unrealized
increases in the value of assets.” (In re Marriage of Pearlstein
(2006) 137 Cal.App.4th 1361, 1372.) The guideline formula
calculates child support based on net disposable income, not
assets. (In re Marriage of Loh (2001) 93 Cal.App.4th 325, 332.)
Regarding her 2017 and 2018 claims, for her own income
Khrista apparently relied on statements made by the parties
during the litigation, and failed to provide either paystubs or tax
return information. The court was entitled to conclude that party
statements did not constitute data points upon which to base
support obligations. (See In re Marriage of Riddle (2005) 125
Cal.App.4th 1075, 1080 [court entitled to consider a W-2 to be
better evidence of income than a party’s income and expense
declaration].)
We therefore conclude the trial court acted within its
discretion in finding insufficient evidence supported Khrista’s
claims for retroactive child support.
Khrista argues the income and expense declarations were a
good enough foundation for child support. But the trial court
concluded otherwise, and we may not reweigh the evidence.
3. Prospective Child Support
The court awarded Alton prospective child support as of
January 1, 2019, based on his factual inputs for the 2019
DissoMaster attached to his proposed statement of decision.
Khrista argues this constituted an abuse of discretion because
Alton’s DissoMaster calculation “was based on IEDs, just like
17
Khrista’s.” No citation to the record supports this claim, which
we therefore deem to be forfeited.
D. Reimbursement Orders
The court found Khrista removed $7,000 from the 9346
account and $90,000 from the joint Ally 047 account, which funds
were Alton’s separate property because of the family expense
exhaustion method of tracing described above. It ordered Khrista
to reimburse Alton $97,000 for these withdrawals. The court
further found that Alton was not obligated to reimburse Khrista
$25,000, for one-half of the $50,000 he withdrew from the 9346
account on September 30, 2019, three days after the date of
separation.
Khrista argues these orders constituted an abuse of
discretion because the accounts contained community funds. For
reasons set forth above, we disagree. We therefore affirm the
orders.
E. Breach of Fiduciary Duty
Khrista claimed at trial that Alton breached fiduciary
duties to her by encumbrancing and selling Tuna Canyon without
her knowledge. The court rejected the claim. Khrista argues
that based on the community property nature of Tuna Canyon,
the court abused its discretion.
Because substantial evidence supported the court’s finding
that Tuna Canyon was Alton’s separate property, we affirm the
order denying Khrista’s breach of fiduciary duty claim.
18
DISPOSITION
The judgment is affirmed. Respondent is to recover his
costs on appeal.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
BENKE, J.*
*
Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, Division One, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
19