Garr v. Schmorleitz-Garr CA4/1 ( 2023 )

Filed 2/28/23 Garr v. Schmorleitz-Garr CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
DIRK B. GARR, D078683
Respondent,
v.
(Super. Ct. No. 18FL001100E)
ERIN SCHMORLEITZ-GARR,
Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Frank L. Birchak, Judge. Dismissed in part, affirmed in part, reversed in
part and remanded with instructions.
Erin Schmorleitz-Garr, in pro. per., for Appellant.
Dirk B. Garr, in pro. per., for Respondent.
INTRODUCTION
Erin Schmorleitz-Garr (Wife) appeals a judgment in the dissolution
proceedings regarding her marriage to Dirk B. Garr (Husband). Wife
1
contends the trial court erred by finding that: (1) she was not credible;
(2) certain real property was transmuted to Husband’s separate property;
(3) Husband did not breach his fiduciary duty when he liquidated his 401(k)
account for necessities of life; and (4) she was not entitled to attorney fees as
sanctions against Husband. She also contends the court was biased against
her. We reject these contentions.
Wife also contends the trial court erred by ordering that she reimburse
Husband for mortgage payments he made on his separate property during
her post-separation stay, under Family Code1 section 914, subdivision (b)(2),
and for health insurance premiums he paid for her and her adult child. We
conclude the trial court misapplied section 914, subdivision (b)(2), and
reverse the order awarding Husband reimbursement of $7,721.48. We
conclude the trial court’s order regarding health insurance premiums is an
interlocutory, non-appealable order and dismiss that claim for lack of
jurisdiction. We affirm the judgment in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married on April 11, 2016 and did not have any
children from the marriage. Less than two years later on January 30, 2018,
Husband filed a petition for dissolution of their marriage.2 On February 23,
Wife filed a response and asserted the parties’ date of separation was
January 23, 2018.
1 All further undesignated statutory references are to the Family Code.
2 During the proceedings, the parties were represented by counsel at
various times and at other times proceeded as self-represented litigants. At
trial, Wife was represented but Husband was not. In this appeal, both are
self-represented litigants.
2
Over three days, the trial court conducted a trial on the parties’
disputed issues, which included the date of separation, characterization and
division of property, spousal support, credits and reimbursements, and
sanctions pursuant to section 271. At the conclusion of trial, the court issued
a 27-page written statement of decision detailing its findings and orders.
The trial court found both parties had “significant credibility
problems.” It determined the parties’ date of separation was January 23,
2018, and dissolved their marriage as of March 10, 2020. Weighing the
factors under section 4320⎯and finding the marital standard of living was
lower middle class, the parties had not owned a home together, had
experienced housing instability throughout their marriage, and had not
accumulated significant assets⎯the court terminated jurisdiction over
spousal support upon Husband’s payment of a stipulated amount of $750 to
Wife.
The trial court determined the property at Starlight Way in Julian,
California (Starlight Way) was Husband’s separate property. It made further
orders, which we later discuss in detail, to divide personal property and
community debts; award or deny credits and reimbursements; and set
equalization payments. The net of the court’s orders resulted in Wife owing
Husband an equalizing payment of $3,197.65. Lastly, the court declined to
award section 271 sanctions to either party. On December 31, 2020, the court
entered a judgment of dissolution. Wife timely appealed.3
3 On February 15, 2023, the date of oral argument, Wife filed a request
that we take judicial notice of certain records or other documentary evidence,
consisting of 461 pages, that mostly involve matters that occurred after the
December 31, 2020 judgment being appealed or matters not first presented to
the trial court. We deny her request for judicial notice (RJN) for failure to
comply with well-established rules regarding the filing of an RJN. (See Evid.
3
DISCUSSION
I.
General Principles of Appellate Review
Our review of Wife’s contentions on appeal is limited by the standards
and presumptions that involve substantial deference to the trial court on its
discretionary decisions and its resolution of factual issues. We begin with the
cardinal rule that the judgment is presumed correct and all ambiguities are
resolved in favor of affirmance. (Jameson v. Desta (2018) 5 Cal.5th 594,
608−609 (Jameson).)
As the party seeking reversal, the appellant carries the burden to
overcome the presumption of correctness and show prejudicial error. She
must do so by providing an adequate record on appeal and presenting
argument and legal authority on each contention showing the trial court
erred. (Jameson, supra, 5 Cal.5th at pp. 608−609.) Although we appreciate
the challenges of appearing as a self-represented litigant, an appellant who
does so “is entitled to the same, but no greater, consideration” as any other
attorney or litigant on appeal and is required to follow the rules. (McComber
v. Wells (1999) 72 Cal.App.4th 512, 523 [“Although [appellant] is representing
herself in this appeal she is not entitled to special treatment and is required
to follow the rules.”].)
Code, §§ 452, subd. (d), 459, subd. (a); Cal. Rules of Court, rule 8.252(a);
People v. Preslie (1977) 70 Cal.App.3d 486, 494 [RJN should be filed before
briefs are due]; Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4
[postjudgment events or documents not proper matters for RJN]; Brosterhaus
v. State Bar of California (1995) 12 Cal.4th 315, 325 [reviewing court may
exercise discretion to deny RJN of matters not first presented to the trial
court].)
4
When a trial court has resolved a disputed factual issue, we review the
trial court’s finding for substantial evidence. (Winograd v. American
Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 (Winograd).) Under this
standard of review, we determine only “if substantial evidence exists to
support the [judgment] in favor of the prevailing party, not to determine
whether substantial evidence might support the losing party’s version of
events.” (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 581−582
(Schmidt).) Although substantial evidence is not synonymous with any
evidence or a mere scintilla of evidence, but is only evidence that is of
ponderable legal significance, reasonable in nature, credible, and of solid
value (Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005−1006), the
testimony of a single credible witness may constitute substantial evidence (In
re Marriage of Mix (1975) 14 Cal.3d 604, 614). We are required to accept all
evidence supporting the trial court’s judgment, completely disregard contrary
evidence, and draw all reasonable inferences from the evidence to support the
judgment. (Schmidt, at pp. 581−582.)
When an appellant challenges a trial court’s discretionary decision, it is
her burden on appeal to affirmatively show the decision was an abuse of
discretion. (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) Under this standard
of review, we will find a trial court abused its discretion only when its action
is arbitrary, capricious, or exceeds the bounds of reason. (In re Cortez (1971)
6 Cal.3d 78, 85.) In other words, we must conclude that under all the
circumstances, viewed most favorably in support of the decision, no judge
reasonably could have made that decision. (Estate of Sapp (2019) 36
Cal.App.5th 86, 104.)
An appeal is not a second trial. Under either standard of review, “[w]e
do not reweigh evidence or reassess the credibility of witnesses.” (Pope v.
5
Babick (2014) 229 Cal.App.4th 1238, 1246 (Babick).) “We are ‘not a second
trier of fact.’ ” (Ibid.) We defer to the trial judge’s resolution of factual issues
as he or she had the benefit of observing the demeanor of the witnesses and is
in a better position to assess credibility. (Johnson v. Pratt & Whitney
Canada, Inc. (1994) 28 Cal.App.4th 613, 622 (Johnson) [“Credibility is an
issue for the fact finder.”].)
II.
Trial Court’s Credibility Determinations
The trial court found both parties had “significant credibility problems.”
We therefore reject Wife’s erroneous assertion the court erred by finding
Husband was credible. As for Wife’s contention that the court erred in
finding her not credible, we have already explained, “[c]redibility is an issue
for the fact finder” (Johnson, supra, 28 Cal.App.4th at p. 622), and on appeal
“[w]e do not reweigh evidence or reassess the credibility of witnesses”
(Babick, supra, 229 Cal.App.4th at p. 1246). Wife has failed to present any
argument demonstrating the trial court’s credibility determinations were not
supported by substantial evidence. Instead, she essentially argues her
version of the events. This is inadequate to carry her burden on appeal. (See
Schmidt, supra, 44 Cal.App.5th at pp. 581−582.)
On the record before us, we conclude there was ample evidence to
support the trial court’s assessment of Wife’s credibility. After hearing three
days of evidence and observing Wife’s demeanor on the witness stand, the
court found Wife was not credible based on a number of events that
reasonably demonstrated a lack of candor. In a trial exhibit she presented,
Wife claimed under penalty of perjury that certain debts were community
obligations when the court found “her own documentation showed that they
were not incurred during the marriage” at all. The court also found Wife
6
willfully violated court orders and agreements reached by the parties, and it
weighed such conduct “as negatively affecting her credibility.” In a
stipulation dismissing a related domestic violence case,4 the parties agreed
the court would grant Husband “exclusive use and possession” of Starlight
Way. In another stipulation, the parties agreed to hire a specific appraiser to
value the property. In violation of the stipulated court order and without
Husband’s permission, Wife entered Starlight Way. She also brought a real
estate appraiser onto the property who was not the agreed-upon appraiser,
despite telling the court in a previous hearing that she would not be having
an appraisal done. Wife did not seriously dispute any of this. Instead, she
asserted she felt it was acceptable to enter the property because “she ‘knew
[Husband] was not there.’ ”
In sum, Wife has failed to demonstrate the trial court’s negative
assessment of her credibility was arbitrary, capricious or exceeds the bounds
of reason, nor has she demonstrated it lacked substantial evidence. There is
no error here.
4 Wife and Husband each filed a request for a domestic violence
restraining order (DVRO) against one another, on January 25 and February
14, 2018, respectively. Both requests were dismissed by the parties’
stipulation on May 24. According to the statement of decision, Wife alleged
Husband “threw her to the floor multiple times, choked her with both hands,
[and] hit her dog” on January 22, causing “bumps on her head and bruising to
her wrists, face, and neck,” and that previously on January 7, Husband
“yelled, berated her, slapped her, pushed her down, and threw her into a
wall.” Husband alleged Wife “hit him with lumber and threw rocks at him
resulting in bruising and cuts” and that “on multiple dates . . . she has yelled,
scratched, punched, and kicked him, as well as throwing rocks, bottles,
lumber, glasses, and mugs at him.”
7
III.
Transmutation of Starlight Way
Property acquired during marriage and before separation is community
property unless it is (1) traceable to a separate property source or
(2) acquired by gift or inheritance. (§§ 760 [“Except as otherwise provided by
statute, all property, real or personal, wherever situated, acquired by a
married person during the marriage while domiciled in this state is
community property.”], 770, subd. (a)(1), 771, subd. (a).) The spouse
asserting its separate character must overcome this presumption by a
preponderance of the evidence. (In re Marriage of Valli (2014) 58 Cal.4th
1396, 1399 (Valli); In re Marriage of Grinius (1985) 166 Cal.App.3d 1179,
1186.)
“Married persons may, through a transfer or an agreement,
transmute—that is, change—the character of property from community to
separate or from separate to community. [Citation.] A transmutation of
property, however, ‘is not valid unless made in writing by an express
declaration that is made, joined in, consented to, or accepted by the spouse
whose interest in the property is adversely affected.’ [Citation.] To satisfy
the requirement of an ‘express declaration,’ a writing signed by the adversely
affected spouse must expressly state that the character or ownership of the
property at issue is being changed.” (Valli, supra, 58 Cal.4th at p. 1400; see
§§ 850, 852.)
“[W]henever there is a transfer [of property] from one spouse to another
a rebuttable presumption of undue influence arises if the transaction gives
one spouse an unfair advantage over the other.” (In re Marriage of Kushesh
& Kushesh-Kaviani (2018) 27 Cal.App.5th 449, 456; In re Marriage of
Mathews (2005) 133 Cal.App.4th 624 (Mathews).) That is because under
8
section 721, subdivision (b), “spouses are subject to the general rules
governing fiduciary relationships that control the actions of persons
occupying confidential relations with each other. This confidential
relationship imposes a duty of the highest good faith and fair dealing on each
spouse, and neither shall take any unfair advantage of the other.” (In re
Marriage of Haines (1995) 33 Cal.App.4th 277, 287 (Haines); accord Mathews,
at p. 628.)
As to Starlight Way, Husband introduced the following evidence: The
purchase was financed with a mortgage loan from a bank with only Husband
listed as the mortgagee. On November 14, 2017, the sellers executed a
“GRANT DEED” transferring Starlight Way to Husband, with Husband
taking title as “a Married Man As His Sole and Separate Property.” On
December 15, 2017, Wife signed an “INTERSPOUSAL GRANT DEED” before
a notary public. On December 18, 2017, both the Grant Deed and
Interspousal Grant Deed (deed) were recorded with the San Diego County
Recorder. The deed stated: Wife “HEREBY GRANTS to [Husband], a
Married Man as his sole and separate property” Starlight Way.
The trial court properly found Starlight Way was presumptively
community property because it was purchased during marriage in December
2017 and before the date of separation of January 23, 2018. The court found
the parties transmuted the property to Husband’s separate property with the
execution of the deed, and that Husband rebutted the presumption of undue
influence under section 721. Accordingly, the trial court determined
Starlight Way was Husband’s separate property.
Wife contends the trial court erred by finding the parties transmuted
Starlight Way to Husband’s separate property. She does not present any
argument to dispute that the deed satisfied the writing requirement for a
9
valid transmutation under section 852. We conclude in any event that
substantial evidence supported the trial court’s finding that it did. “ ‘Though
no particular terminology is required [citation], the writing must reflect a
transmutation on its face, and must eliminate the need to consider other
evidence in divining this intent.’ ” (In re Marriage of Bonvino (2015) 241
Cal.App.4th 1411, 1428.) The deed stated: “It is the express intent of [Wife],
being the spouse of [Husband], to convey all right, title and interest of [Wife],
community or otherwise, in and to [Starlight Way] to [Husband] as his sole
and separate property.” As such, it is an express declaration by Wife that the
character or ownership of the property at issue was being changed. (Valli,
supra, 58 Cal.4th at p. 1400; see §§ 850, 852.)
The focus of Wife’s challenge is her assertion that the trial court erred
in finding Husband had rebutted the presumption of undue influence under
section 721. She points to her own testimony that she was “forced to sign”
the deed to close the mortgage loan; that she signed it “under duress and
pressure” from Husband, who committed domestic violence against her5; that
she had experience in insurance (including selling homeowner insurance
policies) but “no expertise in financing, lending or real estate transactions”;
and that she is not “highly educated.” But as we have explained, Wife cannot
carry her burden of demonstrating reversible error by merely relying on her
own testimony that supports her version of the events. The trial court found
her testimony to be not credible, and our role is not to reweigh the evidence,
substitute our own inferences from the evidence, or make different
assessments of credibility. (Schmidt, supra, 44 Cal.App.5th at p. 582.) We
5 As noted, the parties dismissed their DVRO requests against each
other without any judicial finding of domestic violence. (See footnote 4, ante.)
10
must affirm the judgment if substantial evidence supports it, even if other
substantial evidence would have supported a contrary judgment or finding.
(Ibid.)
On that point, Wife fails to cite evidence and inferences favorable to the
trial court’s finding that Husband rebutted the presumption of undue
influence. When an appellant challenges the sufficiency of evidence to
support a finding, her opening brief must set forth all the material evidence
on that issue and cannot merely state facts favorable to her position.
(Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman &
Clark).) When an appellant’s opening brief states only favorable evidence
and ignores evidence supporting the finding, we may treat the substantial
evidence claim as waived and presume the record contains evidence to
support the trial court’s factual findings. (Delta Stewardship Council Cases
(2020) 48 Cal.App.5th 1014, 1072 (Delta Stewardship).)
Although we are not required to undertake an independent
examination of the record on appeal, our review of the record does reveal
substantial evidence supported the trial court’s finding. Here, this court’s
decision in Mathews, supra, 133 Cal.App.4th 624 is instructive. In Mathews,
a couple purchased a residence during marriage. To obtain a more favorable
interest rate on a mortgage, wife quitclaimed her interest in the residence to
husband, and the residence was acquired in his name alone. (Id. at p. 627.)
The quitclaim deed was validly executed and recorded. Wife acknowledged
the residence was acquired solely in the husband’s name but believed her
name would be added to the title at a later date. Throughout the marriage,
wife and husband both believed the residence was community property and
after the separation discovered title to the residence was in his name alone.
(Ibid.) We concluded these circumstances were sufficient to support a finding
11
that wife entered into the transaction freely, voluntarily and with a full
understanding of the quitclaim deed. (Id. at p. 631.)
We agree with the trial court’s observation that the circumstances in
this case are similar to those in Mathews.6 Here, the court found it
persuasive that Wife acknowledged she had “[a] greater understanding of the
process and financial matters,” that “part of the discussion [for executing the
deed] involved her bad credit,” and she understood “her name would not be on
title.” Wife’s own testimony supported the trial court’s findings. Wife agreed
it was accurate to state she had “a greater understanding of how to interact
with . . . real estate than [Husband].” She testified she was the person
“primarily involved in negotiating the purchase” of Starlight Way. She
admitted that the lender asked her to sign the deed because the loan would
not close if her name was on it because of her debt and credit score; Husband
did not tell her that he would not buy the house if she did not sign the deed,
but rather he would not be able to buy it unless she signed it; and she signed
the deed in order to close the loan transaction because she did not want to
lose the house and needed a place to live, and it would possibly be years
before she repaired her credit. Wife also acknowledged the only other person
in the room when she signed the deed was the notary public.
Viewing the evidence and drawing all reasonable inferences from the
evidence to support the trial court’s finding, we conclude there was
substantial evidence to support the finding that Husband demonstrated by a
6 We do not find Wife’s attempts to distinguish Mathews persuasive,
including her assertion that, unlike this case, Mathews did not involve
domestic violence. Although Wife asserts Husband was “aggressive and
abusive” toward her, there was no factual finding that either party
committed domestic violence because the parties agreed to dismiss their
respective requests for DVROs. (See footnote 4, ante.)
12
preponderance of the evidence that the transaction “ ‘was freely and
voluntarily made, and with a full knowledge of all the facts, and with a
complete understanding of the effect of the transfer.’ ” (Haines, supra, 33
Cal.App.4th at p. 296; Mathews, supra, 133 Cal.App.4th at p. 631 [concluding
the burden of proof of rebutting § 721’s presumption is by a preponderance of
the evidence].)
Wife’s other arguments are also unavailing. She takes issue with the
trial court’s date of separation finding, asserting the court erred in finding
Husband gave notice of his intent to divorce her by a “text [message] in
September 2017.” Although she does not explain how that purported error
would affect the court’s transmutation finding, the court found the parties’
date of separation was January 23, 2018, not Husband’s asserted date of
September 2017.7 Wife does not contend there is insufficient evidence to
support the court’s finding; indeed January 23, 2018 was the separation date
Wife claimed to be true in her own pleadings. Regardless, we fail to see how
Wife’s argument on this point demonstrates an error in the court’s
transmutation finding.
Wife next argues the trial court erred in placing “great faith in
[H]usband’s integrity to tell the truth,” asserting for example that Husband
refused to provide his “financials” throughout the proceedings, he “falsified
taxes, income, receipts, rendering his declarations of disclosure defective,” he
7 In its statement of decision, the trial court explained its finding was
based on the fact that Husband was arrested on January 23, 2018 and “the
parties have not resided together since.” The court acknowledged Husband
“in good faith believed that he had been clear in his desire to terminate the
marriage before then” (italics added), but found “it would not have been clear
to the reasonable person that his conduct was consistent with the intent to
end the marriage.”
13
“committed perjury” in his testimony regarding the date of separation. But
again, we do not reweigh the trial court’s credibility determinations.
Although the court made no finding that Husband committed fraud in the
dissolution proceedings, Wife fails to explain how fraud in the dissolution
proceedings would even be relevant to the transmutation. She does not
assert fraud occurred in the transmutation, including for example in the
execution of the deed.
Finally, Wife asserts the trial court erred in tracing the down payment
on Starlight Way to Husband’s separate property. The court found Husband
used a $4000 loan on the 401(k) account for the down payment, but because
the loan was “significantly less than his separate property interest” in the
account and he paid back the loan with his separate property assets post-
separation, the court ruled “there was not a community interest from the
down[ ]payment.” Wife’s assertion of error, again, asks us to improperly
reweigh the evidence and merely advances her version of the events, while
ignoring evidence that supports the court’s factual findings. She also fails to
explain how this asserted error would affect the court’s finding that Starlight
Way was transmuted to Husband’s separate property.
In sum, we conclude substantial evidence supported the trial court’s
transmutation finding.
14
IV.
Reimbursements8
A. Husband’s Mortgage on His Separate Property Was Not a Debt Incurred
by Wife for Her Common Necessaries, Within the Meaning of Section
914, Subdivision (a)(2), and Reimbursement to Husband for the
Mortgage Payments Was Improper
On January 25, 2018, a temporary restraining order (TRO) was issued
against Husband for Wife’s protection. The TRO included a move-out order
requiring Husband to vacate Starlight Way. It also contained an order that
Husband continue to make payments on the mortgage for Starlight Way,
while Wife resided there during the pendency of the domestic violence case.
Notably, nothing in the record reveals the court reserved jurisdiction to later
reallocate the payment of the mortgage while the TRO was in effect. These
orders were continued at various times and remained in effect until May 24,
2018, when the parties stipulated to dismiss their respective TROs against
each other and requests for DVROs. Thus, the trial court found Wife had
exclusive use of Starlight Way from the date of separation on January 23,
2018 until May 24, 2018, at which point Husband resumed possession.
At trial, Husband asserted Wife owed him fair market rent for
Starlight Way during the five months she lived in the house post-separation,
8 Wife incorrectly refers to the trial court’s award of reimbursements as
“equalizing payments.” Equalizing payments are used in the specific context
of dividing community property. (See, e.g., In re Marriage of Andresen (1994)
28 Cal.App.4th 873, 880 [family law court has broad discretion in
determining how to effect an equal allocation of community property and
“may award one or more items of the property to one party and require that
party to make an equalizing payment to the other”].)
15
or Wife owed him for the rent he had paid9 on his rental as a result of his
non-possession of Starlight Way. The court agreed with Wife that Husband
was not entitled to either rent on Starlight Way or to reimbursement of his
rent, and denied his request.
However, the trial court treated Husband’s request “as a request for
reimbursement under . . . section 914, subdivision (a)(2)” for Wife’s “post-
separation use of his separate property.” Section 914, subdivision (a)(2),
provides that “a married person is personally liable for the following debts
incurred by the person’s spouse during marriage: [¶] . . . a debt incurred for
common necessaries of life of the person’s spouse after the date of separation
of the spouses.” (Italics added.) The court found “[t]he mortgage is a debt,”
and “[t]hat debt was paid⎯during the time period [Wife] used the property
post-separation⎯for [Wife’s] necessities of life, namely shelter.” It found
Husband paid a monthly mortgage payment of $1,930.37 during Wife’s post-
separation use of the property. The court then ordered Wife pay Husband a
reimbursement in the total amount of $7,721.48,10 under section 914,
subdivision (a)(2).
Wife asserts the trial court erred in awarding Husband the
reimbursement under section 914, subdivision (a)(2). We agree. As we shall
9 Husband requested an award of $400 per month, apparently for rent he
paid for an apartment from January 24, 2018 through May 31, 2018.
10 The court calculated the amount as follows: For Wife’s 8 days of use
from January 23 to January 31, 2018, it divided $1,930.37 by 31 and
multiplied by 8 for a pro rata share of $498.16. For February through April
2018, 3 months of mortgage payments totaled $5,791.11. For 23 days of use
from May 1 to May 23, it divided the monthly mortgage by 31 and multiplied
by 23 for a pro rata share of $1,432.21.
16
explain, the court’s decision was based on an erroneous application of section
914, subdivision (a)(2).
Section 914, subdivision (a), provides:
“Notwithstanding Section 913, a married person is personally
liable for the following debts incurred by the person’s spouse
during marriage:
“(1) A debt incurred for necessaries of life of the person’s spouse
before the date of separation of the spouses.
“(2) Except as provided in Section 4302, a debt incurred for
common necessaries of life of the person’s spouse after the date of
separation of the spouses.” (Italics added.)
“[C]ommon necessaries [of life] are those that all families need (e.g.,
food, clothing, and shelter),” and depends on the circumstances of the
particular marriage. (Direct Capital Corp. v. Brooks (2017) 14 Cal.App.5th
1168, 1174 (Direct Capital).)
“Section 914 is an exception to the general rule that a married person’s
separate property is not liable for debts incurred by his or her spouse during
marriage.” (Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301,
309, italics added.) “It does not hinge on the separate or community nature of
the non[-]debtor spouse’s property, but instead ascribes liability to ‘a married
person’ for specified debts incurred by the debtor-spouse, with different
language for debts incurred pre- and post[-]separation.” (Direct Capital,
supra, 14 Cal.App.5th at p. 1172, italics added.)
As should be now clear, “the express terms of section 914 . . . governs
‘debts incurred by the person’s spouse.’ ” (CMRE Financial Services Inc. v.
Parton (2010) 184 Cal.App.4th 263, 268 (CMRE Financial), italics added.)
Thus, in Direct Capital, husband was held liable to a computer equipment
company for a $40,000 debt incurred by wife pre-separation, for an office
computer used in her law practice that generated community property
17
income. (Direct Capital, supra, 14 Cal.App.5th at pp. 1170, 1172.) The trial
court’s finding that “the debt was a community property obligation” under
section 914, subdivision (a)(1), was upheld on appeal. (Id. at p. 1171.) In
CMRE Financial, wife would ordinarily have been liable for hospital and
medical bills incurred by husband post-separation to the hospital’s assignee
under section 914. (CMRE Financial, at pp. 265−266.) But wife’s liability for
husband’s post-separation debt was discharged under section 916 when
judgment of dissolution was entered without express assignment to wife of
any liability for husband’s hospital and medical costs. (CMRE Financial, at
p. 269.)
Here, unlike in Direct Capital or CMRE Financial where the debtor-
spouse owed money to a third party creditor, Wife (the purported debtor-
spouse) incurred no debt whatsoever within the meaning of section 914. She
owed no one money. The mortgage was a debt incurred by Husband, and it
was incurred by him to finance his separate property, not to provide Wife with
shelter. Wife was simply staying at his house without paying rent. The trial
court expressly rejected Husband’s request that Wife pay him fair market
rent during her 5-month stay, but the court’s reimbursement award under
the guise of section 914 effectively ordered Wife to do just that. Moreover, if
Wife had incurred a debt for her common necessaries, section 914 makes
Husband liable for that community obligation. (See Direct Capital, supra, 14
Cal.App.5th at pp. 1171−1172.) And nothing in section 914 authorizes a
reimbursement to a spouse for a debt paid under the statute.11 By its
11 The trial court suggested its reimbursement award was “potentially . . .
equitable relief similar to a Watts credits for reimbursement of the fair
market value of [Wife’s] use of his separate property asset.” It then found
“the mortgage payment amount is credible evidence of the fair market value
18
express terms, section 914 simply did not apply in this case, and it was error
for the trial court to order Wife to reimburse Husband for a debt he incurred
to finance his separate property.
Judicial discretion is not unfettered. “The scope of discretion always
resides in the particular law being applied by the court, i.e., in the ‘ “legal
principles governing the subject of [the] action[.]” ’ ” (Nakamura v. Parker
(2007) 156 Cal.App.4th 327, 337.) If the court’s decision reflects “ ‘an
erroneous understanding of applicable law . . . the court has not properly
exercised its discretion under the law. . . . [A] discretionary order based on
an application of improper criteria or incorrect legal assumptions is not an
exercise of informed discretion and is subject to reversal.’ ” (Eneaji v. Ubboe
(2014) 229 Cal.App.4th 1457, 1463.) Because the trial court erred in its
application of section 914, subdivision (a)(2), and erroneously concluded it
had discretion under that statute to reimburse Husband for his mortgage
payments, we reverse the court’s reimbursement award to Husband of
$7,721.48. (See Eneaji, at p. 1463.) Because we reverse on this ground, we
of the property.” This is also incorrect. Known as “Watts charges,” when one
spouse has exclusive use of a community asset after separation, such as a
residence, the court can order that the spouse reimburse the community for
the value of the exclusive use. (In re Marriage of Watts (1985) 171
Cal.App.3d 366, 373−374.) A spouse who, after separation, uses earnings or
other separate funds to pay preexisting community obligations is entitled to
reimbursement called “Epstein credits.” (In re Marriage of Epstein (1979) 24
Cal.3d 76, 84−85.) So when a spouse makes payments on the community
residence that the other spouse was exclusively using post-separation, with
his separate funds after separation, he is entitled to reimbursement. (In re
Marriage of Jeffries (1991) 228 Cal.App.3d 548, 552−553.) Neither Watts
charges nor Epstein credits are available here because Starlight Way was
determined to be Husband’s separate property.
19
need not reach the merits of Wife’s other contentions of error as to the
reimbursement award.
B. The Order for Reimbursements to Husband for Payment of Wife’s and
Her Adult Child’s Health Insurance Premiums Was Interlocutory and Is
Not Appealable
Wife asserts the trial court erred by ordering her to reimburse
Husband for his payment of health insurance premiums that covered Wife
and her adult daughter from February through December 2018. Among
other reasons, she argues Husband was not entitled to reimbursement
because the evidence showed he intentionally cancelled health insurance
coverage for her and her daughter, in violation of the automatic temporary
restraining orders (ATROs) imposed upon commencement of the proceedings.
(§ 2040, subd. (a).)12 However, based on our review of the dissolution
judgment, we conclude the trial court’s order regarding Husband’s
entitlement to reimbursement for health insurance premiums for Wife and
12 Section 2040, subdivision (a), provides in part: “[T]he summons shall
contain a temporary restraining order: [¶] . . . [¶] (2)(A) [r]estraining both
parties from transferring . . . or in any way disposing of, any property, real or
personal, whether community, quasi-community, or separate, without the
written consent of the other party or an order of the court, except in the usual
course of business or for the necessities of life, and requiring each party to
notify the other party of proposed extraordinary expenditures at least five
business days before incurring those expenditures and to account to the court
for all extraordinary expenditures made after service of the summons on that
party. [¶] . . . [¶] (3) [r]estraining both parties from cashing, borrowing
against, canceling, transferring, disposing of, or changing the beneficiaries of
insurance or other coverage, including life, health, automobile, and disability,
held for the benefit of the parties and their child or children for whom support
may be ordered.” (Italics added.)
20
her adult child was not a final order. Rather, it was an interlocutory order
and thus non-appealable.13
An appealable order or judgment is essential to appellate jurisdiction
and an order or judgment is not appealable unless expressly made so by
statute. (Griset v. Fair Political Practices Commission (2001) 25 Cal.4th 688,
696–697 (Griset); Allabach v. Santa Clara County Fair Assn. (1996) 46
Cal.App.4th 1007, 1010.) Code of Civil Procedure section 904.1, subdivision
(a), sets forth those judgments and orders that are appealable, stating in
relevant part: “An appeal . . . may be taken from any of the following: [¶]
(1) From a judgment, except an interlocutory judgment, other than as
provided in paragraphs (8), (9), and (11)[.]” To be appealable, a judgment or
order generally must be “final” and not “interlocutory.” (Code Civ. Proc.,
§ 904.1, subd. (a)(1); Griset, at p. 698.)
The test whether a judgment or order is final and appealable is as
follows: “ ‘[W]here no issue is left for future consideration except the fact of
compliance or noncompliance with the terms of the first decree, that decree is
final, but where anything further in the nature of judicial action on the part of
the court is essential to a final determination of the rights of the parties, the
13 Because this issue was not raised by either party in the briefing on
appeal, we issued an order requesting the parties submit supplemental letter
briefs addressing the question of whether Wife’s appeal as to the court’s order
regarding the health insurance premiums should be dismissed as non-
appealable. We also requested that the parties submit a copy of any order
issued by the Superior Court after December 31, 2020 addressing and/or
deciding any request by Husband for reimbursement of the health insurance
premiums, and to address whether we should take judicial notice of any such
order. We have received and considered the parties’ supplemental briefs. We
have not been advised by either party that the trial court made any further
orders on this matter since its December 31, 2020 judgment.
21
decree is interlocutory.’ ” (Griset, supra, 25 Cal.4th at p. 698, italics added;
cf. Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304 (Sullivan) [to
be appealable, judgment or order must be final in that it leaves no issue to be
determined]; Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443,
448 (Yeboah) [order directing an accounting is interlocutory and non-
appealable if further judicial action is required after the accounting is
ordered].) “An interlocutory order or judgment has two characteristic
features: It is not final for purposes of appeal, and is also not final in the
trial court, when it may be modified after further evidence or law has been
considered.” (Yeboah, at p. 449.)
At trial, Husband had requested reimbursement for payments he made
for health insurance and dental insurance coverage for Wife and Wife’s adult
child. He presented evidence he paid a monthly amount of $465.96 for health
insurance and a monthly amount of $20.08 for dental insurance, and that he
paid a total of $5,346.66 for 11 months from February to December 2018.
However, the trial court found this was “the entire cost for [Husband] plus
family.” Because it had no evidence of what portion of the health insurance
premiums was attributable to coverage for Wife and her adult child, the court
did not make any order of reimbursement. Instead, it made only an initial
finding that Husband’s payment of health insurance premiums for coverage
of Wife and her adult child was not in lieu of spousal support and Husband
would be entitled to reimbursement for that portion of his premium
payments attributable to that additional coverage.
It then reserved jurisdiction over the reimbursement of health insurance
premiums, for 90 days after final judgment, to allow Husband to file a
request for order with documentation of the proportional break-down of the
payments. Only then would the court presumably finally decide whether to
22
award Husband reimbursement and the amount of any such reimbursement
award. If Husband failed to file a request for order with documentation
within the 90-day period, jurisdiction would expire.
Because on the face of its order the court contemplated further judicial
action, the order was interlocutory only and not a final, appealable order.
(Code Civ. Proc., § 904.1, subd. (a)(1); Griset, supra, 25 Cal.4th at p. 698;
Sullivan, supra, 15 Cal.4th at p. 304; Yeboah, supra, 128 Cal.App.4th at
p. 448.) Therefore, to the extent Wife appeals the order in the December 31,
2020 judgment regarding health insurance reimbursement, we dismiss her
appeal of that claim for lack of jurisdiction to consider a non-appealable
order.14
V.
401(k) Account
At trial, Wife asserted Husband liquidated the entire balance of a
401(k) account in violation of his fiduciary duty to her and the ATROs. The
trial court found the evidence had established Husband accessed the funds
for “necessities of life,” an exception under section 2040, subdivision (a)(2)(A),
and declined to find that he breached his fiduciary duty. However, the court
also found the 401(k) account had “a significant community interest” and
Wife was entitled to her share of that community property interest. It
determined the appropriate date for valuation of the account was time of
trial, or July 31, 2020, and ordered the parties to hire an expert, at
Husband’s expense, to calculate what the value of the account would have
14 We note that if and when the trial court issues an order after December
31, 2020 regarding health insurance reimbursement, that postjudgment
order may constitute an appealable postjudgment order pursuant to Code of
Civil Procedure section 904.1, subdivision (a)(2).
23
been on that date “were it not emptied” and what portion belongs to the
community. The court reserved jurisdiction over the selection of the expert
and the division and distribution of the asset, as well as how it affects other
equalizing payments.
Wife asserts the trial court erred in its finding that Husband liquidated
his 401(k) plan account for necessities of life and that he did not breach his
fiduciary duty. She incorrectly requests we apply a de novo standard of
review. (Winograd, supra, 68 Cal.App.4th at p. 632 [when a trial court has
resolved a disputed factual issue, we review the court’s finding for substantial
evidence].) She argues, without any citations to record support, that
Husband failed to present evidence he provided her with the required notice
of at least five business days before incurring any proposed extraordinary
expenditures and an accounting of those expenditures. And the court erred
in crediting Husband’s testimony he withdrew the funds for necessities of life,
because Husband is untrustworthy for a host of reasons, including because he
has a “clear pattern of hiding assets.”
As we have explained in resolving Wife’s other contentions, such
arguments cannot overcome the presumption of correctness and fails to show
reversible error. Though she asserts Husband failed to provide her with the
required notice, she does not point us to where in the record on appeal we
would find evidence to support her contention, or that she requested the trial
court to find that Husband failed to provide her with the required notice, or
that she requested the trial court provide her relief for the alleged notice
violation. Her failures result in waiver and forfeiture of the contention. (Cal.
Rules of Court, rule 8.204(a)(1)(C); WFG National Title Ins. Co. v. Wells
Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 894; Baxter v. State Teachers’
Retirement System (2017) 18 Cal.App.5th 340, 378.)
24
Wife’s opening brief states only favorable evidence to her and fails to
acknowledge evidence and inferences favorable to the trial court’s finding
that Husband accessed the 401(k) funds for necessities of life. (Foreman &
Clark, supra, 3 Cal.3d at p. 881 [an appellant’s opening brief must set forth
all the material evidence on that issue and cannot merely state facts
favorable to her position].) As such, we may treat Wife’s substantial evidence
claim as waived and presume the record contains evidence to support the
trial court’s factual findings. (Delta Stewardship, supra, 48 Cal.App.5th at
p. 1072.)
Again, although we are not required to undertake an independent
examination of the record, we note the trial court’s statement of decision does
reference Husband’s failure to provide Wife with the required five-day notice.
The court found Husband did not violate the ATROs or his fiduciary duty
when he withdrew funds from the 401(k) account, but it viewed his failure to
notify Wife five days before the liquidation “as something that would justify
sanctions.” As we discuss later, the court declined to sanction either party for
what it determined was sanctionable conduct by both. Thus the court
considered, but rejected, an appropriate remedy for Husband’s violation of
the notice requirement and Wife presents no argument or authority to
establish the court’s ultimate resolution of the violation was an abuse of
discretion.
Finally, the trial court, sitting as the sole trier of fact, was entitled to
credit Husband’s testimony that he needed the funds for necessities of life.
We do not reweigh the court’s credibility determinations. (Babick, supra, 229
Cal.App.4th at p. 1246 [“We do not reweigh evidence or reassess the
credibility of witnesses.”].) Here, the court accepted Husband’s testimony
that the continued payments of the insurance premiums for Wife and her
25
adult child “increased the [already existing] financial strain” on him after the
parties separated, and that his involuntary loss of work (whether he was
fired or laid off) “ma[de] it credible that he did not [have] other financial
means to maintain the necessities of life.” Husband’s testimony alone
constitutes substantial evidence to support the court’s finding and requires us
to affirm the finding. (Schmidt, supra, 44 Cal.App.5th at pp. 581−582; In re
Marriage of Mix, supra, 14 Cal.3d at p. 614.)
VI.
Section 271 Sanctions
Each party had requested attorney fees as sanctions under section 271
against the other. Husband requested $5,687.50; Wife requested $33,674.75.
The court denied both requests. Wife asserts the court erred in denying her
request for fees against Husband. We review a court’s decision whether to
award sanctions under section 271 for abuse of discretion. (In re E.M. (2014)
228 Cal.App.4th 828, 850.) “The imposition of sanctions under section 271 is
committed to the sound discretion of the trial court. The trial court’s order
will be upheld on appeal unless the reviewing court, ‘considering all of the
evidence viewed most favorably in its support and indulging all reasonable
inferences in its favor, no judge could reasonably make the order.’ ” (Ibid.)
We conclude Wife has failed to demonstrate any abuse of discretion in the
court’s denial of her request for section 271 sanctions against Husband.
The trial court denied both parties’ request for sanctions because it
found that imposition of sanctions against either party would impose an
undue financial burden on both Husband and Wife. Section 271, subdivision
(a), provides “[t]he court shall not impose a sanction . . . that imposes an
unreasonable financial burden on the party against whom the sanction is
imposed.” (Italics added.) In asserting error, Wife fails to address the court’s
26
finding that imposition of Wife’s requested $33,000 in attorney fees against
Husband would impose an unreasonable financial burden on him. Although
this omission alone is a basis to reject her contention, we see no abuse of
discretion in the trial court’s decision. At the time of trial, the court had
found Husband was unemployed and receiving unemployment compensation,
he had $150 in his bank accounts and more than $24,000 in debt, and he did
not have the ability to pay spousal support. On this record, the trial court’s
finding that a sanction of $33,000 would impose an unreasonable financial
burden on Husband is not arbitrary, capricious or outside the bounds of
reason.
But even if sanctions would not impose an undue financial burden, the
trial court stated it would not award sanctions to either party because of both
parties’ conduct in the litigation. The court explained it would examine “ ‘the
entire record’ ” to determine whether to impose sanctions, and that it
“view[ed] this as not just looking at the overall behavior of one party in the
context of the entire case, but also to include a comparison of the behaviors of
each party.” The court then found that both Husband and Wife had engaged
in conduct that frustrated the promotion of settlement and cooperation,
including for example:
Both parties violated various court orders⎯Husband “chained the toilet
shut in the Starlight [Way] property while temporary restraining orders were
in place and [Wife] was exercising a majority of possession of the property,”
which the court found to be “absolutely egregious conduct” by Husband. Wife
violated the stipulation resolving the mutual restraining orders by entering
the property after an agreement giving Husband exclusive use and control,
and by “surveilling” Husband. Although the “stipulation was to prevent the
risk of future domestic violence or abuse between the parties,” Wife
27
“drastically minimize[d] the severity” of her conduct. Because the court
viewed her conduct “as potentially criminal,” it advised Wife of her Fifth
Amendment privilege against self-incrimination at the hearing on Husband’s
request for a new restraining order.
Both parties failed to timely file their final declarations of disclosure,
resulting in delays. Both parties’ property declarations contained
“inconsistencies” about the purchase date of Starlight Way and the value of
other items. But specifically, the trial court found Wife’s testimony, live or by
declaration, on her requests for reimbursements for debts to be “false.” And
although the court found Husband did not violate the ATROs or his fiduciary
duty when he withdrew funds from the 401(k) account, the court viewed his
failure to notify Wife five days before the liquidation “as something that
would justify sanctions.”
The trial court expressly understood its finding that each party had
engaged in conduct frustrating the promotion of settlement and cooperation
“does not preclude an award to either party,” but it viewed “the parties’
behaviors as cancelling each other’s conduct out.” For that reason, the court
in its discretion declined to award either party sanctions. In asserting error,
Wife ignores the evidence supporting the trial court’s findings regarding her
own conduct, and discusses only evidence she believes is favorable to her
version of the events. Wife again overlooks the principles that constrain our
review. She reargues the facts and ask us to reweigh the evidence and
credibility determinations, including by recasting the trial court’s finding of
her false testimony or violations of court orders as simply “Wife’s mistakes.”
28
We conclude Wife has failed to demonstrate any abuse of discretion by the
court here.15
VII.
Asserted Judicial Bias
Although Wife’s opening brief does not expressly set forth a separate
contention that the judgment must be reversed because of trial court bias,
her brief included tangential and conclusory assertions, intermingled with
her contentions of error, that the trial court was biased against her or in
favor of Husband. By way of example, Wife asserts: the trial court’s citation
of testimony that the deed was required by the loan officer to close the loan
showed the court’s bias against her; the court’s questioning of her at trial was
“prosecutorial, with a specific end in mind,” and it was “specifically looking
throughout the trial to impeach [her]”; the court showed its bias in favor of
Husband by advising him, as a self-represented litigant, regarding
15 Elsewhere in her opening brief, Wife asserts the trial court erred in not
awarding her attorney fees as a sanction because Husband failed to provide
“taxes and basic financial documents,” including the couple’s 2017 tax return.
And for that reason, the court erred when it awarded her an equalizing
payment of $251 for 2017 taxes “based on [H]usband’s incomplete
documents.” To the extent this is separate contention of error, Wife fails to
explain how the asserted error is a basis for reversal of the equalizing
payment to her. On that basis, we reject it.
At trial, Husband “described” a 2017 tax return of $502 and provided
an unsigned copy of the 2017 tax return. The trial court determined the tax
return was community property and awarded Wife her one-half interest of
$251. Wife did not take a position in the trial court on what amount she was
owed, if different than the $251. On appeal, Wife does not challenge the
amount of the equalizing payment awarded to her; she only contends the trial
court should not have relied on Husband’s “incomplete documents.”
Husband’s testimony and the unsigned copy of the 2017 tax return was
substantial evidence to support the trial court’s determination.
29
procedures for filing a proof of service, but not advising her that a motion to
compel was required to obtain a finding regarding his discovery violations.
We conclude Wife has waived or forfeited any claim of judicial bias by
not filing a motion to disqualify the trial court pursuant to Code of Civil
Procedure section 170.3, or otherwise timely raising or objecting to the
purported bias in the proceedings below. In Moulton Niguel Water Dist. v.
Colombo (2003) 111 Cal.App.4th 1210, the court concluded the appellants had
failed to “preserve their claim of judicial bias for review because they did not
object to the alleged improprieties and never asked the judge to correct
remarks made or recuse himself.” (Id. at p. 1218.) Here too, Wife, who was
represented by counsel at trial, was required to object “at the earliest
practicable opportunity.” (Code Civ. Proc., § 170.3, subd. (c)(1).) She did not.
Because Wife failed to object below and never asked the trial judge to correct
any improper remarks or recuse himself, she has failed to preserve the claim
for appeal. (Moulton, at p. 1218; In re Steven O. (1991) 229 Cal.App.3d 46,
53−55.)
We further conclude that, under the principles of appellate review we
have previously explained, Wife has waived or forfeited any claim of judicial
bias by: (1) making only conclusory and/or speculative assertions of judicial
bias, and that are, for the most part, unsupported by citations to the record;
and (2) not presenting any substantive legal analysis showing any prejudicial
bias by the trial court. (Jameson, supra, 5 Cal.5th at pp. 608−609.) Although
Wife cites certain canons for judicial conduct regarding integrity,
independence, fairness, impartiality, and diligence, she does not present any
substantive legal argument showing the trial court violated any of those
canons. Rather, she only cites certain findings by the court with which she
disagrees.
30
Also, to the extent Wife asserts the trial court showed its bias by
finding Husband more credible and his evidence more persuasive and/or by
making findings and decisions adverse to her, she does not show it acted
outside the normal function of a trial court in considering and weighing the
evidence admitted at trial and making findings of fact based on the evidence.
“The mere fact that the trial court issued rulings adverse to [Wife] on several
matters in this case, even assuming one or more of those rulings were
erroneous, does not indicate an appearance of bias, much less demonstrate
actual bias.” (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th
665, 674; see also, Blakemore v. Superior Court (2005) 129 Cal.App.4th 36,
59–60 [mere erroneous rulings do not show appearance of bias].) Likewise,
“[m]ere expressions of opinion by a trial judge based on actual observation of
the witnesses and evidence in the courtroom do not demonstrate a bias.”
(People v. Guerra (2006) 37 Cal.4th 1067, 1111 (Guerra).)
Finally, to the extent Wife asserts that she was denied her
constitutional right to due process because of the trial court’s alleged bias,
she has the burden to show such bias was so prejudicial that it deprived her
of a fair, as opposed to a perfect, trial. (Guerra, supra, 37 Cal.4th at p. 1112.)
Wife must demonstrate she was denied her right to a fair trial and, in
particular, show that the trial court’s alleged bias was so great that it became
constitutionally intolerable. (People v. Freeman (2010) 47 Cal.4th 993, 1001.)
We have reviewed the record on appeal. Contrary to Wife’s assertions, the
record demonstrates Wife received a fair trial by an impartial and unbiased
court.
DISPOSITION
The appeal is dismissed to the extent Wife challenges the December 31,
2020 order regarding Husband’s request for reimbursement of health
31
insurance premiums he paid. The judgment is reversed to the extent it
awards Husband $7,721.48 as reimbursement for Wife’s post-separation use
of the Starlight Way property, and the judgment is otherwise affirmed. The
matter is remanded to the trial court with directions to recalculate the
balance of equalization payments consistent with this opinion.
DO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DATO, J.
32