Marr. of Burwell ( 2013 )


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  • Filed 11/21/13 (unmodified opn. attached)
    CERTIFIED FOR PARTIAL PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIFTH APPELLATE DISTRICT
    In re the Marriage of BECKY and GARY
    BURWELL.
    BECKY BURWELL,                                                        F064265
    Movant and Appellant,                                     (Kern Sup. Ct.
    No. S1501-FL-591767)
    v.
    ORDER MODIFYING OPINION
    CYNTHIA BURWELL,                                        AND DENYING PETITION FOR
    REHEARING
    Objector and Appellant.
    [NO CHANGE IN JUDGMENT]
    BY THE COURT:
    The opinion herein, certified for partial publication and filed October 31, 2013, is
    modified as follows:
    1.       On page 23, in the first full paragraph after the sentence beginning with “In
    this scenario…” add the following:
    The term life insurance policy at issue here also had a suicide clause
    whereby the insurer was not obligated to pay the proceeds if the insured
    committed suicide within two years of the policy date. In a petition for
    rehearing, Becky contends the reasoning we apply above with respect to
    premium caps and renewal rights should also apply to the suicide clause.
    We disagree.
    In our discussion of premium caps and renewal rights above, we
    acknowledge situations where the separate estate may appropriate the
    community’s contractual rights to obtain the policy proceeds. And, when
    one spouse appropriates a community asset for separate use, he or she must
    reimburse the community. (Marriage of 
    Elfmont, supra
    , 9 Cal.4th at p.
    1039 (conc. & dis. opn. of George, J.) Thus, it is the separate estate’s
    appropriation of a community asset (e.g., the renewal right, premium cap)
    that triggers the duty to reimburse. In contrast to the renewal right, the
    right to avoid payment of the proceeds in the event of suicide belongs to the
    insurer, not the community estate. (See Civ. Code § 1458 [“A right arising
    out of an obligation is the property of the person to whom it is due…”].)
    Thus, in the context of suicide clauses, the separate estate has not
    appropriated contractual rights belonging to the community.
    2.     On page 24, in the first paragraph after the sentence ending “… because
    there is an insufficient factual record” add a new footnote 21 with the following
    language:
    In her petition for rehearing, Becky argues that even under the test
    we announce in this opinion, there was substantial evidence the proceeds
    were entirely community property. Specifically, she contends there was
    substantial evidence Gary paid the final premium payment with community
    funds. We disagree.
    “ ‘Substantial evidence’ is evidence of ponderable legal significance,
    evidence that is reasonable, credible and of solid value. [Citations.]
    ‘Substantial evidence … is not synonymous with ‘any’ evidence.’
    … Speculation or conjecture alone is not substantial evidence.”
    (Roddenberry v. Roddenberry (1996) 
    44 Cal. App. 4th 634
    , 651.) Becky
    points to her declaration as substantial evidence that Gary paid the final
    premium payment on the policy with community funds, including the
    following quotation: “All premiums paid on the Reassure America Policy
    came either from the community property earnings of BCI or from the
    $2,800,000 of community property funds Mr. Burwell removed from BCI
    without my knowledge or consent.” The disjunctive wording of this
    statement implies what the very next sentence confirms: Becky did not
    know whether the funds Gary used to pay the premiums were community
    property. The next sentence of the declaration reads: “If Mr. Burwell
    commingled the $2,800,000 he misappropriated with his other earnings, the
    presumption is and must be that the community property in his possession
    was used to pay the community property premiums.” (Italics added.)
    2.
    Becky’s speculation that Gary might have commingled funds and her
    presumption he used those commingled funds to pay the premiums is not
    substantial evidence. On remand, Becky is free to produce any reasonable,
    credible, solid evidence that Gary paid the premiums with community
    property. She has not yet done so.
    3.    Subsequent footnotes are to be renumbered accordingly.
    This modification does not affect the judgment. The petition for rehearing is
    denied.
    ______________________________
    Poochigian, Acting P.J.
    WE CONCUR:
    ________________________________
    Franson, J.
    ________________________________
    Peña, J.
    3.
    Filed 10/31/13 (unmodified version)
    CERTIFIED FOR PARTIAL FOR PARTIAL PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIFTH APPELLATE DISTRICT
    In re the Marriage of BECKY and GARY
    BURWELL.
    BECKY BURWELL,                                                     F064265
    Movant and Appellant,                                 (Kern Sup. Ct.
    No. S1501-FL-591767)
    v.
    OPINION
    CYNTHIA BURWELL,
    Objector and Appellant.
    APPEAL from a judgment of the Superior Court of Kern County. Susan M. Gill,
    Judge.
    Bowman and Associates, Stacy H. Bowman; Klein, DeNatale, Goldner, Cooper,
    Rosenlieb & Kimball, Catherine E. Bennett, and Thomas V. DeNatale, Jr., for Objector
    and Appellant.
    Stephen Temko for Movant and Appellant.
    -ooOoo-
    
    Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
    certified for publication with the exception of parts III through IX of the Discussion.
    INTRODUCTION
    Are the proceeds of a term life policy community property or separate property of
    the spouse who pays the final premium? Our answer is an all too familiar one: it
    depends. We hold that the characterization “will depend on the … premium for the final
    term of the policy.” (Minnesota Mut. Life Ins. Co. v. Ensley (9th Cir. 1999) 
    174 F.3d 977
    , 983 (Minnesota Mut. Life Ins. Co.).) The effect of the rules governing
    characterization of term life insurance proceeds depends on multiple factors, including
    whether the policy contains certain contractual provisions, and the insurability of the
    insured spouse. The result is an unfortunately intricate methodology for allocating
    proceeds of term life insurance policies. Were we free to abandon community property
    jurisprudence and craft a simpler holding we might do so. We are not.
    Here, the trial court failed to make findings sufficient to determine proper
    characterization of the proceeds. Therefore, we vacate the court’s order, and remand for
    further factual findings and application of the rules we set forth herein.1
    FACTS
    In 1996, during the marriage of Becky J. Burwell2 and Gary J. Burwell, a term life
    insurance policy was purchased (hereafter the “term life policy” or “the policy.”) Gary
    was the insured and Becky was the named beneficiary until October 7, 2008.
    In September 2004, Becky petitioned for dissolution of her marriage with Gary.
    Automatic Temporary Restraining Orders
    Gary was served with a summons along with Becky’s petition. The summons
    contained a number of automatic temporary restraining orders (ATROs). (See Fam.
    1The parties’ remaining contentions do not alter this disposition. We discuss
    those contentions in the unpublished portion of our Discussion in parts III through IX.
    2 Because Becky, Gary and Cynthia Burwell are referenced in the record at one
    point or another by the same last name, we use their first names for clarity.
    2.
    Code, § 2040; Cal. Rules of Court, rule 5.50(b).) The ATROs included the following
    text:
    “Starting immediately, you and your spouse are restrained from: [¶] … [¶]
    “2.      cashing, borrowing against, cancelling, transferring, disposing of, or
    changing the beneficiaries of any insurance or other coverage
    including life, health, automobile, and disability held for the benefit
    of the parties and their minor child or children;
    “3.      transferring, encumbering, hypothecating, concealing, 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
    “4.      creating a nonprobate transfer or modifying a nonprobate transfer in
    a manner that affects the disposition of property subject to the
    transfer, without the written consent of the other party or order of the
    court. Before revocation of a nonprobate transfer can take effect, or
    a right of survivorship to property can be eliminated, notice of the
    change must be filed and served on the other party.”
    Gary Remarries
    A status-only judgment of dissolution was entered in August 2005, and the court
    retained jurisdiction over all other issues. In November 2006, 3 Gary married Cynthia
    Burwell (Cynthia).
    August 2008 Stipulated Judgment
    In August 2008, Gary and Becky stipulated to a “further” judgment resolving
    some property issues. Though the stipulated judgment indicates that “the parties have
    reached an agreement with regard to the division of their marital property,” five issues
    were explicitly reserved for a trial. One of the issues reserved for trial was “claims for
    breach of spousal fiduciary duty.”
    3   Both parties agree in their briefs that Gary married Cynthia in November 2006.
    3.
    The stipulated judgment, signed by both parties, also states:
    “16. Full Disclosure of Assets and Gifts. Each party has warranted
    to the other that he or she has no ownership interest in or claim to any
    property of any kind, other than the property described in this Further
    Judgment, and that he or she has not made, without the knowledge of the
    other, any gift or transfer of community property within the past five years
    for less than full and adequate consideration.
    “17. After-Discovered And Concealed Assets. If additional assets
    of a community property nature are subsequently discovered, the existence
    of which were in good faith unknown or forgotten by both parties, such
    assets shall be divided equally between the parties. All other after-
    discovered assets shall be divided as determined by a court of competent
    jurisdiction. This court specifically retains jurisdiction over all concealed or
    after-discovered assets.”
    The judgment also fixed the separation date at September 21, 2004.
    Change of Beneficiary
    On October 7, 2008, Gary changed the beneficiary on the term life policy from
    Becky to Cynthia. Gary had not listed the policy in his preliminary or final disclosure
    declarations in the dissolution action. (See Fam. Code, §§ 2104, 2105.)
    Trial on Reserved Issues
    The trial on reserved issues contemplated by the prior stipulated judgment
    commenced in June 2009 before Judge John Somers and continued over several months.
    Several issues were adjudicated at the trial. The most contentious issue involved a
    community-asset business called Burwell Concrete, Inc. (BCI). The court was tasked
    with deciding whether approximately $2.5 million in postseparation income from BCI
    was community income or Gary’s separate income. The trial also dealt with claims of
    breach of fiduciary duty.
    The court eventually issued its ruling on May 16, 2011. First, the court ruled that
    (1) BCI had been awarded to Gary on August 21, 2008, and (2) postseparation income
    from BCI prior to August 21, 2008, was community income.
    4.
    The court then ruled on the breach of fiduciary duty claims as follows:
    “[T]he court does not find a breach of fiduciary obligation in this case.
    There is no evidence that petitioner failed to meet her obligations of
    disclosure, or of good faith and fair dealing, in any way. Respondent’s
    [i.e., Gary’s] conduct is more problematic. Despite counsel’s best efforts,
    there were often significant delays or problems in the disclosure of relevant
    financial information.… The disclosure issues, while problematic, are not
    sufficient in the court’s view to establish breach of a fiduciary obligation in
    this case.”
    The court also ruled that Gary owed Becky (1) $105,195.49 in “back [spousal]
    support payments and interest”; (2) $125,000 in attorney fees; (3) $1,524,531 in
    reimbursements and credits for Becky’s portion of community property less $44,283.14
    in Gary’s reimbursements; and (4) $95,102 in previously ordered equalization payments.
    Gary’s Suicide and Becky’s Civil and Probate Actions
    In April 17, 2010, after trial had commenced, but before the court had issued its
    aforementioned ruling, Gary committed suicide. Shortly after Gary’s death, Becky filed
    a civil action to prevent the term life policy’s proceeds from going to Cynthia. Becky
    also filed a probate action seeking letters of administration for Gary’s estate.
    Becky moved to consolidate the civil action with the dissolution proceeding.
    Cynthia opposed consolidation. In her opposition papers, Cynthia argued that there were
    “no remaining issues left to be determined in the family law matter.” Her opposition
    papers further stated that she “is not a party to the action nor does she have any real
    interest in the outcome.” The court denied the motion to consolidate, but ordered the
    civil action stayed.
    Becky’s Motion Regarding the Insurance Policy
    Concurrent with her motion to consolidate, Becky filed a motion seeking
    adjudication of the insurance policy as an omitted asset. (See Fam. Code, § 2556.)
    Becky contended that she was entitled to 100 percent of the proceeds. She acknowledged
    5.
    that she was aware of the policy when it was purchased, but assumed Gary had let it
    lapse.
    Becky argued she was entitled to the proceeds under three legal theories. First,
    Gary’s purported change of beneficiary from Becky to Cynthia was void because it was
    made in violation of the ATROs. As a result, Becky was still the operative beneficiary
    under the policy. Second, Gary’s failure to disclose the insurance policy in his
    disclosures violated Family Code section 1101, and therefore the proceeds should be
    awarded entirely to Becky under subdivision (h) of that section. Third, the court retained
    jurisdiction over omitted community property assets under the August 2008 stipulated
    judgment. She argued she was entitled to half the proceeds as her share of the
    community asset. She also claimed the other half of the proceeds because they exceeded
    the amount of debt Gary owed her. These included amounts Gary allegedly owed her
    under the August 2008 stipulated judgment and “anticipated amounts [Gary] will owe
    [Becky] once Judge Somers makes his ruling [after the trial on reserved issues].” Becky
    subsequently filed a “Supplemental Memorandum of Points and Authorities” raising a
    fourth theory of recovery. In that filing, Becky argued that Gary’s purported change of
    beneficiary must be set aside as a fraudulent transfer under section 3439.04 of the Civil
    Code.
    Cynthia filed briefing in opposition to the motion and her counsel appeared at oral
    argument. She contended that the policy was Gary’s separate property. She also argued
    that to the extent the ATROs apply to separate property, they conflict with Family Code
    section 2010. Cynthia contended that section 2010 provides that “the court has no
    jurisdiction over a spouse[’]s separate property.”
    6.
    Court’s November 9, 2011, Order
    Judge Susan M. Gill ruled on the motion in an order dated November 9, 2011. 4 It
    is from this order that both parties appeal.
    The court found that Gary failed to disclose the policy and thereby violated his
    fiduciary duty to Becky. As a result, the policy was deemed an omitted asset and was
    “neither distributed in the Judgment on Reserved Issues, nor included in Judge Somers’
    ruling of April 1, 2010.” Therefore, the ATROs continued to apply to the asset, and
    Gary’s change of beneficiary to Cynthia “is void.”
    The court ruled that the policy was a community asset. The ruling contained no
    analysis of the characterization issue, but did cite to Estate of Logan (1987) 
    191 Cal. App. 3d 319
    , 326 (Logan) and In re Marriage of Gonzalez (1985) 
    168 Cal. App. 3d 1021
    , 1024-1026.
    The court ordered one-half of the $1 million proceeds distributed to Becky “as her
    share of this community property asset.” The court ordered that the remaining half of the
    proceeds “shall become part of [Gary’s] estate.” The order notes that Becky is a creditor
    of the estate “and the Probate Court must resolve the issue of what priority to give
    [Becky’s] creditor claims against [Gary’s] estate.”
    Postruling Filings Below
    Cynthia filed a notice of intent to move for a new trial, seeking an order “(1)
    setting aside the ruling signed on November 7, 2011, that awards one-half of the term life
    insurance proceeds to Becky [] and (2) granting [a] new trial.” (See fn. 6, post.)
    Cynthia also filed a notice of appeal from the November 9, 2011, order. Becky
    filed a notice of cross-appeal from the same order.
    The minute order cover sheet on the court’s letterhead is dated November 9,
    4
    2011. The attached ruling was on pleading paper and was dated November 7, 2011.
    7.
    Motions Filed on Appeal
    Cynthia filed a motion to augment the appellate record with an October 22, 2009,
    transcript of testimony from the trial on reserved issues. Becky opposed the motion to
    augment and requested that we strike certain portions of Cynthia’s opening brief
    referencing the transcript and certain portions of appellant’s appendix, volume II. Becky
    contends these documents pertained to the trial on reserved issues before Judge Somers
    and were not before Judge Gill when she issued the appealed order. We granted the
    motion to augment the record, but did not “resolve the transcript’s relevance to any issue
    on appeal or whether the court will consider the reporter’s transcript on review.” We
    previously deferred ruling on Becky’s motion to strike pending further order of this court.
    We now deny it.5 (See People v. 
    Preslie, supra
    , 70 Cal.App.3d at pp. 490-491.)
    Becky moved this court to dismiss Cynthia’s appeal for lack of standing. We
    previously deferred ruling on the dismissal motion. For the reasons explained below, we
    now deny that motion as well.
    5 Becky moved to strike portions of Cynthia’s opening brief that refer to exhibits
    Nos. 22, 22a, 23, 24 and 25 of appellant’s appendix, and the October 22, 2009, reporter’s
    transcript. She contends the exhibits and transcript are “not properly before” this court
    because they were not “before” Judge Gill when she issued the appealed order. Rather,
    they had been lodged earlier in the case during the trial on reserved issues before Judge
    Somers.
    The exhibits are properly before us. We may augment the record to include “[a]ny
    document filed or lodged in the case in superior court .…” (Cal. Rules of Court, rule
    8.155(a)(1)(A), italics added.) “By the explicit terms of the rule it is not a prerequisite to
    augmentation that the requested documents be offered or used on the trial or hearing
    below.” (People v. Preslie (1977) 
    70 Cal. App. 3d 486
    , 490.) Becky’s motion to strike
    portions of appellant’s appendix and opening brief is denied.
    8.
    DISCUSSION
    I.
    CYNTHIA IS A “PARTY” FOR PURPOSES OF APPELLATE STANDING
    In California, the right to appeal civil actions is statutory. (Jordan v. Malone
    (1992) 
    5 Cal. App. 4th 18
    , 21.) In order to exercise that statutory right, an appellant must
    have standing. (Ibid.)
    Appellate standing is conferred by section 902 of the Code of Civil Procedure.
    (Rao v. Campo (1991) 
    233 Cal. App. 3d 1557
    ; see Code Civ. Proc., § 902.) That statute
    provides, in relevant part, that “[a]ny party aggrieved may appeal .…” (Code Civ. Proc.,
    § 902.) By its plain language, Code of Civil Procedure section 902 limits appellate
    standing in two important ways. To have appellate standing, one must (1) be a party and
    (2) be aggrieved. (Ibid.; see also Conservatorship of Gregory D. (2013) 
    214 Cal. App. 4th 62
    , 67.)
    In her motion to dismiss, Becky argues Cynthia was not a “party” to the action
    below and therefore lacks standing. She does not contend Cynthia was not “aggrieved”
    by the order from which she ostensibly appeals.
    The general rule is that “only a party of record to the proceedings in the trial court
    may appeal.” (Newman v. Wells Fargo Bank (1996) 
    14 Cal. 4th 126
    , 131, fn. 5.) But, a
    party of record includes “ ‘one who takes appropriate steps to become a party of record in
    the proceedings.’ ” (In re Silvia R. (2008) 
    159 Cal. App. 4th 337
    , 345, fn. 3.) For
    example, when a person or entity moves to vacate a judgment pursuant to Code of Civil
    Procedure section 663, they become a “party” for purposes of appellate standing.
    (County of Alameda v. Carleson (1971) 
    5 Cal. 3d 730
    , 736 (Carleson).)
    The California Supreme Court held in Carleson that “one who is legally
    ‘aggrieved’ by a judgment may become a party of record and obtain a right to appeal by
    moving to vacate the judgment pursuant to Code of Civil Procedure, section 663.”
    
    (Carleson, supra
    , 5 Cal.3d at p. 736.) As Becky argues in her motion, “Cynthia did not
    9.
    move to vacate the judgment under Code of Civil Procedure section 663.” But, Cynthia
    did file a motion seeking to “set aside” the subject order under Code of Civil Procedure
    section 657. 6 Thus, if the Carleson rule applies to any motion to vacate or set aside an
    order and is not limited to motions brought under Code of Civil Procedure section 663,
    then Cynthia would be a party of record for purposes of appellate standing. In
    accordance with the general rule that doubts as to standing are resolved in favor of the
    right to appeal (Apple, Inc. v. Franchise Tax Bd. (2011) 
    199 Cal. App. 4th 1
    , 13), we hold
    that the Carleson rule does apply here.
    For the reasons explained below, we view the Supreme Court’s reference to Code
    of Civil Procedure section 663 in Carleson 
    (Carleson, supra
    , 
    5 Cal. 3d 730
    ) as merely
    identifying one type of motion to vacate that will confer “party” status on the movant for
    purposes of appellate standing. In this context, we see no relevant distinction between a
    6  On its own motion, this court has augmented the record to include Cynthia’s
    notice of intent to move for a new trial. (See Cal. Rules of Court, rules 8.155(a)(1)(A),
    8.124(b)(1)(A), 8.122(b)(1)(D).) We notified the parties of our intent to augment the
    record in this manner and permitted the filing of objections. Becky (through counsel)
    filed a letter indicating that she did not have an objection to the augmentation. But, she
    advised this court of additional proceedings regarding the motion for new trial. The letter
    and its attachments indicate that after filing the notice of intent, Cynthia requested an
    extension of time to “file a Motion for New Trial.” The letter and its attachments further
    indicate that the court denied the request for an order extending time and that “no Motion
    for New Trial was ever filed.” Even if we were to consider this information, it is not
    relevant for purposes of determining standing.
    The notice of intention to move for a new trial is itself the motion for a new trial.
    (Code Civ. Proc., § 659, subd. (b).) Cynthia very well may have failed to file a
    memorandum of points and authorities or supporting affidavits or some other documents
    to support the motion. And, if true, that failure alone could have been grounds for denial.
    (See Cal. Rules of Court, rule 3.1600(b).) But for purposes of standing, we are concerned
    with whether Cynthia made the subject motion, not whether it was successful. That is,
    we are determining whether Cynthia took “ ‘appropriate steps to become a party of record
    in the proceedings’ ” (In re Silvia 
    R., supra
    , 159 Cal.App.4th at p. 345, fn. 3) not
    whether those efforts were meritorious.
    10.
    motion seeking to set aside a decree (Code Civ. Proc., § 663) and a motion seeking to
    “vacate[]” a “decision” (Code Civ. Proc., § 657). Thus, we believe the most faithful
    application of Carleson would permit an appeal here, where the appellant moved to set
    aside the judgment in the lower court.
    In support of its holding in Carleson, the Supreme Court cited to five cases:
    Eggert v. Pac. States S. & L. Co. (1942) 
    20 Cal. 2d 199
    , 201 (Eggert); In re Elliott (1904)
    
    144 Cal. 501
    (Elliott); In re Estate of Partridge (1968) 
    261 Cal. App. 2d 58
    (Estate of
    Partridge); In re Estate of Sloan (1963) 
    222 Cal. App. 2d 283
    (Estate of Sloan); and
    Butterfield v. Tietz (1966) 
    247 Cal. App. 2d 483
    (Butterfield). 
    (Carleson, supra
    , 5 Cal.3d
    at pp. 736-737.)
    In all of these cases, there was no indication that a person must file a motion
    seeking to vacate the judgment under a particular statute. To the contrary, in Estate of
    Sloan, the court described Eggert and other cases as holding that a party must “move to
    vacate or otherwise formally oppose the judgment appealed from below.” (Estate of
    
    Sloan, supra
    , 222 Cal.App.2d at p. 292, italics added.) Likewise, the remainder of the
    cases do not require the motion to vacate be made pursuant to any particular statute.7
    Thus, we view Carleson’s reference to Code of Civil Procedure section 663 as
    merely identifying the statute under which that case’s particular motion was brought. We
    do not view the statutory citation as limiting the scope of Carleson’s holding. 
    (Carleson, supra
    , 
    5 Cal. 3d 730
    .)
    7 See 
    Eggert, supra
    , 20 Cal.2d at page 201 (holding appellants lacked standing,
    and noting they had ample opportunity “to become parties of record by moving to vacate
    the orders to which they objected”); 
    Elliott, supra
    , 144 Cal. at pages 509-510 (a person
    can “make himself a party by moving to set aside such judgment or order”); Estate of
    
    Partridge, supra
    , 261 Cal.App.2d at pages 60-61 (“proper procedure” was to “move to
    set aside or vacate such order” (italics added.); 
    Butterfield, supra
    , 247 Cal.App.2d at
    pages 484-485 (“Ordinarily, if an appellant is not a party of record at the time of
    judgment or order from which appeal is taken, an appeal is not in order without first
    filing a motion to vacate the adverse ruling”).
    11.
    The Fourth District arrived at a similar conclusion in Shaw v. Hughes Aircraft Co.
    (2000) 
    83 Cal. App. 4th 1336
    (Hughes Aircraft). The Court of Appeal applied the
    Carleson rule where the appellant had moved for a judgment notwithstanding the verdict
    and for a new trial. (Hughes 
    Aircraft, supra
    , 83 Cal.App.4th at pp. 1342-1343.) In
    Hughes Aircraft, the appellant’s motions challenging the judgment below were brought
    under Code of Civil Procedures sections 629 and 657, not Code of Civil Procedure
    section 663. (Hughes 
    Aircraft, supra
    , at pp. 1342-1343.) Nonetheless, the court held that
    motions for judgment notwithstanding the verdict and a new trial are similar to the Code
    of Civil Procedure section 663 motion in Carleson, in that they “ask the trial judge to
    vacate a verdict or judgment and enter a new one.” (Hughes 
    Aircraft, supra
    , at p. 1343.)
    We agree with this approach, where reviewing courts determine the applicability of the
    Carleson rule by looking to the nature of the underlying motion, not its statutory basis.
    
    (Carleson, supra
    , 
    5 Cal. 3d 730
    .)
    Here, Cynthia’s motion sought to “set[] aside the ruling signed November 7,
    2011 ...,” and was therefore a motion seeking to vacate the order for purposes of the
    Carleson rule. Contrary to Becky’s contention in her motion to dismiss, Cynthia is a
    “party” for purposes of appellate standing. (See 
    Carleson, supra
    , 5 Cal.3d at pp. 736-
    737.) 8
    Next, we address the characterization of term life insurance proceeds.
    II.
    THE POLICY PROCEEDS CANNOT BE CHARACTERIZED ON THIS
    FACTUAL RECORD
    Unless otherwise provided by statute, all property acquired during marriage while
    domiciled in California is community property. (Fam. Code, § 760.) One category of
    separate property is the “earnings and accumulations of a spouse … while living separate
    8   Becky’s motion to dismiss the appeal is denied.
    12.
    and apart from the other spouse, are the separate property of the spouse.” (Fam. Code,
    § 771, subd. (a).) But, “property attributable to community earnings must be divided
    equally when the community is dissolved.” (In re Marriage of Brown (1976) 
    15 Cal. 3d 838
    , 847-848 (Marriage of Brown), italics added.)
    Here, we must apply these principles to term life insurance proceeds.
    “Term life insurance policies typically contain two elements, dollar coverage
    payable in the event of death and a right to renewal for future terms without proof of
    current medical eligibility.” 
    (Logan, supra
    , 191 Cal.App.3d at p. 324.) “At the
    expiration of the term of years, the policy expires without retaining cash value.” (Ibid.)
    There is a split of authority in California regarding the characterization of term life
    insurance proceeds as community or separate property. (See In re Marriage of Spengler
    (1992) 
    5 Cal. App. 4th 288
    , 292-293 (Marriage of Spengler).) On one side is 
    Logan, supra
    , 191 Cal.App.3d at page 325.
    Logan decision
    In Logan, the First District held that term life insurance policies only remain
    community property after separation for as long as community funds are used to pay the
    premium. 
    (Logan, supra
    191 Cal.App.3d at p. 325.) Otherwise, if the insured remains
    insurable, the term policy is not a divisible community asset because “the policy is of no
    value and the community has fully received what it bargained for.” (Id. at pp. 325-326.)
    In dictum, Logan indicated that “[i]f the insured becomes uninsurable during the term
    paid with community funds, then the right to future insurance coverage which cannot
    otherwise be purchased is a community asset to be divided upon dissolution.” (Id. at
    p. 325.) In Marriage of 
    Spengler, supra
    , 
    5 Cal. App. 4th 288
    , the Third District agreed
    13.
    with the holding of Logan but disagreed with its dictum. (Marriage of 
    Spengler, supra
    ,
    at p. 293.)9
    Biltoft and Woodmen decisions
    Conversely, in Biltoft v. Wootten (1979) 
    96 Cal. App. 3d 58
    (Biltoft), the Fourth
    District held that proceeds from term life insurance “must be apportioned between
    community and separate property in the same ratio that the amount of premiums paid
    from community earnings bears to the amount of premiums paid from separate property.”
    (Id. at p. 62.) It rejected the notion “that no person has an interest in a term life insurance
    policy beyond the date the premium is due .…” (Id. at p. 61.) It disagreed with the
    argument that “each premium payment is a new contract,” citing Modern Woodmen of
    America v. Gray (1931) 
    113 Cal. App. 729
    (Modern Woodmen). 
    (Biltoft, supra
    , at p. 61.)
    With a few exceptions, we agree with Logan. The coverage and premium
    provisions of term life insurance policies “provide[] dollar coverage only for the specific
    term for which the premium was paid.” 
    (Logan, supra
    , 191 Cal.App.3d at p. 324.)
    Therefore, the characterization of the proceeds “will depend on the … premium for the
    9  Two Court of Appeal cases deal with a different issue: the valuation of a term
    life policy at the time of dissolution while the insured spouse is still alive. (In re
    Marriage of Lorenz (1983) 
    146 Cal. App. 3d 464
    , 466-468; In re Marriage of 
    Gonzalez, supra
    , 168 Cal.App.3d at p. 1025.) The Second District held a term life insurance policy
    was not divisible community property because it was “worthless” until its benefits were
    payable. (In re Marriage of 
    Lorenz, supra
    , 146 Cal.App.3d at pp. 466-468.) The Fourth
    District held term life insurance policies may have replacement value when the
    “ ‘insurability of the insured is lessened because of advancing age or declining health,
    and the existing policy cannot be cancelled or contains a guaranty of insurability.’ ” (In
    re Marriage of 
    Gonzalez, supra
    , 168 Cal.App.3d at p. 1025.) These cases are not directly
    on point. (See In re Marriage of Havins (1996) 
    43 Cal. App. 4th 414
    , 419, fn. 3.) Here,
    we are dealing with “the division of proceeds of the policy upon death,” not the division
    of the policy while the insured is still alive. (See ibid.) This distinction is important, as
    explained below. (See fn. 12, post.)
    14.
    final term of the policy.” (Minnesota Mut. Life Ins. 
    Co., supra
    , 174 F.3d at p. 983.)10
    When the final premium is paid solely with community property, “the proceeds of the
    policy are community property.” 
    (Logan, supra
    , 191 Cal.App.3d at p 321.) Conversely,
    when the separate estate pays for the final premium with no help from the community,
    the proceeds are a separate asset. (Id. at pp. 321, 325.)
    We believe Biltoft and Woodmen err in analyzing the relevant property interests at
    the wrong level of abstraction. That is, those opinions generally identify the property
    interest as the entire insurance policy. We believe the proper unit of analysis is the
    individual contractual rights conferred by the policy. As was said in an analogous
    context, “[t]he Court of Appeal’s … analysis rests on the erroneous legal assumption that
    [the asset] was … unitary and indivisible .… It is not.” (In re Marriage of Sonne (2010)
    
    48 Cal. 4th 118
    , 127.)11 Similarly, a term life insurance policy is not a unitary and
    indivisible asset giving rise to a unitary and indivisible property interest. Rather, the
    relevant property interests are the individual enforceable contractual rights derived from
    the policy. (See Civ. Code, § 953; cf. Marriage of 
    Brown, supra
    , 15 Cal.3d at p. 845 [“a
    contractual right is … a chose in action, a form of property (see Civ. Code, § 953)”].)
    “An insurance policy is a contract between an insurer and an insured …, the
    insurer making promises, and the insured paying premiums, the one in consideration for
    the other, against the risk of loss .…” (Buss v. Superior Court (1997) 
    16 Cal. 4th 35
    , 44-
    10 In its characterization of the term life proceeds at issue, Minnesota Mut. Life
    Ins. 
    Co., supra
    , 
    174 F.3d 977
    relied heavily on Logan. (Minnesota Mut. Life Ins. 
    Co., supra
    , 174 F.3d at p. 983.) However, the case distinguishes Logan’s medical
    uninsurability exception. (Minnesota Mutual Life Ins. 
    Co., supra
    , at pp. 983-984.)
    11 In Marriage of 
    Brown, supra
    , 
    15 Cal. 3d 838
    , our Supreme Court held that the
    contractual right to receive pension payments was a form of property for dissolution
    purposes. Marriage of Brown held “the employee’s right to [pension] benefits is a
    contractual right, derived from the terms of the employment contract. [This] contractual
    right is … a form of property (see Civ. Code, § 953; [citation.]).” (Id. at p. 845, italics
    added.)
    15.
    45, citations omitted.) One of the insurer’s promises in a term life policy is the
    agreement to pay the policy proceeds if the insured dies between dates x and y. The
    payment of the subsequent premium is consideration for another promise from the
    insurer: to pay the proceeds if the insured dies between dates y to z. In other words, the
    “ ‘premium is the amount paid for … a certain period of coverage.’ ” (Troyk v. Farmers
    Group, Inc. (2009) 
    171 Cal. App. 4th 1305
    , 1324, italics added.)
    Each premium payment gives rise to an enforceable contractual right of coverage
    for an additional period of time. As premiums are paid over the life of the policy, distinct
    property interests in coverage for various periods of time arise. Of those distinct property
    interests, only one is worth anything in hindsight: coverage for the term during which the
    insured dies. 12 Thus, the relevant inquiry is who obtained the specific contractual right
    to coverage for the final term,13 and how. (Minnesota Mut. Life Ins. 
    Co., supra
    , 174 F.3d
    at p. 983 [characterization of proceeds “will depend on the … premium for the final term
    of the policy”].)
    12 Prior terms of coverage only lack value in hindsight (i.e., when it is certain the
    contingency has failed). Prospectively, all coverage terms have at least expected value.
    (But cf. In re Marriage of 
    Lorenz, supra
    , 
    146 Cal. App. 3d 464
    .) That is why it is
    important to maintain a distinction between cases involving the characterization of a term
    life policy while the insured is still alive (e.g., In re Marriage of 
    Lorenz, supra
    , 
    146 Cal. App. 3d 464
    ; In re Marriage of 
    Gonzalez, supra
    , 
    168 Cal. App. 3d 1021
    ), and cases
    involving the characterization of term life policy proceeds after the insured has died (e.g,
    
    Logan, supra
    , 
    191 Cal. App. 3d 319
    ; 
    Biltoft, supra
    , 
    96 Cal. App. 3d 58
    ). (See In re
    Marriage of 
    Havins, supra
    , 43 Cal.App.4th at p. 419, fn. 3.)
    13Our use of the phrases “final term” or “final coverage term” refers to the term
    during which the insured dies. We refer to the corresponding premium as the “final
    premium payment” or “final premium.” We recognize that when the insured does not die
    during the entire term of the overall policy, then even the final term has no substantive
    value. But that is not the situation here, so our use of these phrases presumes that the
    insured has died during a term of the policy.
    16.
    As we will explain, Biltoft and Woodmen’s misidentification of the relevant
    property interests leads to their erroneous characterization of the proceeds and the
    needless deaths of countless straw men.
    Biltoft and Woodmen first reject the argument that each premium payment does
    not create a new contract. They are correct to discredit this notion. The relevant
    “property” is not a unitary and indivisible interest in the entire policy contract, but in the
    individual enforceable contractual rights derived from it. (See Civ. Code, § 953; cf.
    Marriage of 
    Brown, supra
    , 15 Cal.3d at p. 845 [“a contractual right is … a chose in
    action, a form of property (see Civ. Code, § 953)”].) While each premium payment does
    not create a new contract, it does give rise to a new enforceable contractual right and thus
    a distinct property interest. By way of analogy, consider a one-year apartment lease.
    Each rent payment does not create a new lease, but paying January’s rent does not entitle
    a tenant to live there in October. 14
    Biltoft and Woodmen next assert “it would be unreasonable to hold that the
    payment of the premiums … would convert the entire proceeds .…” 
    (Biltoft, supra
    , 96
    Cal.App.3d at p. 61; 
    Woodmen, supra
    , 113 Cal.App. at p. 732.) This is true, as far as it
    goes. The separate estate’s subsequent payment of the premium does not “convert” the
    community’s “proceeds.” But the point is they were never the community’s proceeds to
    begin with. The proceeds belong to whomever the insurance company is contractually
    obligated to pay. In other words, the valuable property interest is the enforceable
    14  The rationale of Biltoft and Woodmen does lend itself well to other contexts
    where the community pays into an asset that retains cash value. For example, whole life
    insurance policies “provide both insurance and cash value accumulation.” (Chabner v.
    United of Omaha Life Ins. Co. (9th Cir. 2000) 
    225 F.3d 1042
    , 1045, fn. 1, italics added.)
    In that situation, the community is paying for dollar protection against a contingency and
    the right to a portion of the policy’s cash value accumulation. In that way, a whole life
    policy is more akin to a home mortgage than an apartment lease.
    17.
    contractual right to compel payment of the proceeds. (See Civ. Code, § 953; cf.
    Marriage of 
    Brown, supra
    , 15 Cal.3d at p. 845 [“a contractual right is … a chose in
    action, a form of property (see Civ. Code, § 953)”].) In this context, that contractual right
    is the coverage during which the insured dies. The community did not acquire this
    contractual right. Instead, the community paid for, and received in full, a different
    contractual right: the right to be paid upon a contingency that ultimately failed. The
    important aspect of this contractual right is not that it has been converted or appropriated
    by the separate estate (it has not). The pivotal attribute of the community’s interest is its
    complete lack of value. It does not entitle its holder to the policy proceeds and never
    will. The right to be paid if the insured dies between January 1 and 31 becomes forever
    worthless on February 1 if the insured is alive. That is how term insurance works.
    Even Logan briefly falls prey to this erroneous “conversion theory.” Logan states:
    “If, as is usually the case, the insured is insurable at the end of the term purchased with
    community funds, the renewed policy, that is, the term policy purchased by the payment
    of the premium with postseparation earnings which are separate property … changes
    character from community to separate property.” 
    (Logan, supra
    , 191 Cal.App.3d at
    pp. 324-325, italics added.) We disagree. The reason the community is not entitled to
    the proceeds is not because contractual rights have changed in character. It is because the
    separate and community estates have different contractual rights; one valuable and the
    other not. The community has the worthless right to payment upon a contingency that
    has failed. The separate estate has the valuable right to payment upon a contingency that
    has occurred. The point is “the community has fully received everything it bargained
    for” (id. at p. 325), not that the community’s rights have become separate property.
    These principles only bring us so far. It is clear that characterization of the
    proceeds as separate or community “will depend on the … premium for the final term of
    the policy.” (Minnesota Mut. Life Ins. 
    Co., supra
    , 174 F.3d at p. 983.) Complications
    18.
    arise when the separate estate uses a community asset to acquire the final term of
    coverage.
    “[I]t is … well established that, upon separation of the parties or dissolution of
    marriage, one spouse is not entitled to appropriate a community asset for his or her own
    use without reimbursing the community for the value of the appropriated asset.” (In re
    Marriage of Elfmont (1995) 
    9 Cal. 4th 1026
    , 1039 (conc. & dis. opn. of George, J.)
    (Marriage of Elfmont).) The community must be reimbursed to the extent it owns or has
    an interest in the contractual rights used by the separate estate to obtain the final coverage
    term. As explained, post, this concept is relevant where the insured spouse becomes
    medically uninsurable during a term paid for by the community.
    Medical Uninsurability and the Right of Renewal
    A person is medically uninsurable if they are “unable to obtain individual life
    insurance.” (
    Spengler, supra
    , 5 Cal.App.4th at p. 291.) A person may become
    uninsurable because of the condition of their health. (Cf. United States v. Ryerson (1941)
    
    312 U.S. 260
    , 262.) Sometimes, a person who becomes medically uninsurable may
    nonetheless continue existing coverage by virtue of a contractual right to renew their
    policy. (Marriage of 
    Elfmont, supra
    , 9 Cal.4th at p. 1034.) This is referred to as the
    “right of renewal.” (Ibid.)
    The right of renewal is an enforceable contractual right and a property interest.
    (See Civ. Code, § 953; see also Marriage of 
    Brown, supra
    , 15 Cal.3d at p. 845 [“a
    contractual right is … a chose in action, a form of property (see Civ. Code, § 953)”].)
    The community initially purchased this right of renewal, and maintained it for a period of
    time through subsequent premiums. The right of renewal is therefore, at least in part,
    community property. (Fam. Code, § 760.)
    When the insured spouse becomes medically uninsurable during the community’s
    terms of coverage, his or her separate estate can only acquire subsequent terms of
    coverage by appropriating the community’s contractual right to renew. By definition, the
    19.
    uninsurable spouse would be unable to continue coverage without it. Thus, the
    acquisition of the final coverage term is dependent on both the separate estate’s payment
    of premiums and the community’s renewal right. Both the separate and community
    estates are contributing towards the purchase of subsequent coverage terms (including the
    all-important final coverage term). The community’s contribution is represented by the
    premiums it has paid over the life of the policy, which are the funds expended to acquire
    and retain the renewal right. Once the premiums are paid solely by separate funds, it is
    the separate estate that is maintaining the renewal right. Given the joint effort of
    community and separate assets in acquiring the relevant asset (i.e., the final coverage
    term), the proceeds obtained therewith must be apportioned. “[I]t is … well established
    that, upon separation of the parties or dissolution of marriage, one spouse is not entitled
    to appropriate a community asset for his or her own use without reimbursing the
    community for the value of the appropriated asset.” (Marriage of 
    Elfmont, supra
    , 9
    Cal.4th at p. 1039 (conc. & dis. opn. of George, J.).)15
    This view is consistent with dicta from the Supreme Court’s decision in Marriage
    of Elfmont. In discussing term life insurance, the Supreme Court stated: “To provide for
    a former spouse’s participation in [the] proceeds, when premium payments from
    15 Marriage of Spengler is distinguishable on this point. Marriage of Spengler
    dealt with an “employment-related group term life insurance policy .…” (Marriage of
    
    Spengler, supra
    , 5 Cal.App.4th at p. 290.) In Marriage of Spengler, the court held that
    the renewal right “was a mere expectancy rather than a contingent property interest”
    because the right “depended not only on continued employment by husband but also on
    continued offering of the plan by the employer.” (Id. at p. 298.) An expert had testified
    that “any group term life insurance policy can be terminated by the employer at any time,
    with 30 days notice.” (Ibid.) Thus, “the prospect of renewal of the policy by the
    employer was a beneficence to which the husband had no enforceable right.” (Id. at
    p. 299.)
    Here, there is no provision for unilateral termination of the policy by the insurer.
    Nor do we find any analogous provision that would render the contractual right a mere
    expectancy.
    20.
    community funds have purchased policy renewal rights necessary to keep the insurance
    in force, may well be appropriate.” (Marriage of 
    Elfmont, supra
    , 9 Cal.4th at p. 1034.)
    In this situation, where the insured spouse becomes uninsurable during a term paid
    for by the community, the proper apportionment of the proceeds is “between community
    and separate property in the same ratio that the amount of premiums paid from
    community earnings bears to the amount of premiums paid from separate property.”
    
    (Biltoft, supra
    , 96 Cal.App.3d at p. 62.)16
    Premium Caps
    There is another scenario wherein the separate estate could appropriate the
    community’s contractual rights. Over time, a spouse may remain insurable but become
    more expensive to insure “because of advancing age or declining health.” (In re
    Marriage of 
    Gonzalez, supra
    , 168 Cal.App.3d at p. 1025.)17 That is why some term
    insurance policies, like the policy at issue here, provide for a cap on premiums during a
    particular period of time. With a cap provision, the premium for a particular term may
    not solely reflect actuarial considerations relative to the insured’s likelihood of dying
    during that term. The price may be “artificially” low in accordance with the premium
    cap. The cap has value when the premiums would otherwise exceed the maximum it
    allows.
    The cap itself is a contractual right to be charged premiums at or below a
    maximum amount. Both the separate and community estates have paid premiums to
    16 To this we would add that the premium-paying spouse should be credited with
    half of the final premium payment. While the Biltoft method addresses the separate and
    community estates’ relative contributions towards the renewal right, there is no
    recognition of the separate estate’s unique contribution to the final coverage term by
    paying the final premium.
    17 Sometimes, this is referred to as “lessened” insurability. (Ibid.) While this
    diction conflicts with the arguably binary nature of insurability, it is a convenient term
    and we employ it here.
    21.
    maintain this contractual right. Thus, if the insured spouse renews the policy
    postseparation, and the premiums would have been higher without the premium cap, the
    insured spouse has necessarily appropriated property which the community acquired and
    helped maintain.18
    As noted ante, the characterization of the proceeds as separate or community “will
    depend on the … premium for the final term of the policy.” (Minnesota Mut. Life Ins.
    
    Co., supra
    , 174 F.3d at p. 983.) In the case of lessened insurability, the final premium
    obligation is met by the joint effect of (1) the funds expended by the separate estate to
    pay the premium and (2) the “discount” embodied in the premium cap, which is a partial-
    community asset. Thus the community should receive a fraction of the proceeds based
    on two factors: (1) the community’s role in maintaining the contractual right to a
    premium cap; and (2) the premium cap’s role in the separate estate’s acquisition of the
    final term of coverage. That fraction would be calculated as follows:19
    (percentage of total premiums paid by community)
    x (effective premium discount for final term of coverage)
    (actual premium paid for the final term of coverage)
    + (effective premium discount for final term of coverage)
    For example, consider the following hypothetical. The community pays 50
    percent of the premiums over the life of a policy. Without the premium cap, the insured
    18In this situation, the insured spouse is not wholly dependent on the community’s
    contractual rights as in the case of complete uninsurability. Rather, the insured spouse is
    appropriating the community’s property and thereby receiving what is effectively a
    discount on premiums.
    19 The numerator is the percentage of premiums paid by the community
    throughout the life of the policy multiplied by the premium discount the separate estate
    received by virtue of the premium cap when it purchased the final term of coverage. The
    denominator is the entire premium discount received by the separate estate by virtue of
    the premium cap when it purchased the final term of coverage plus the actual amount
    paid for the final premium. The premium discount would likely need to be established by
    expert testimony.
    22.
    spouse would have had to pay $1,000 for the premium for the final coverage term.
    However, because of the premium cap, the insured spouse only had to pay a $400
    premium for the final coverage term.
    50% x $600           $300            3
    $600 + $400          $1,000         10
    In this scenario, the community would be entitled to three-tenths, or 30 percent, of
    the proceeds.
    Summary
    In sum, the proper characterization of term life insurance proceeds depends on a
    number of factors. The proceeds are entirely community when the final premium is paid
    solely with community property. 
    (Logan, supra
    , 191 Cal.App.3d at p. 321.) The
    proceeds are entirely separate property when: (1) a separate estate has paid the final
    premium with separate funds; and (2) the insured spouse was insurable at the end of the
    last term paid for by community funds; and (3) either (a) the insured spouse’s health was
    such that he or she could have purchased a comparable policy at a comparable price when
    the separate estate began paying the premiums, or (b) the policy did not contain a
    premium cap when the separate estate began paying the premiums. The proceeds are part
    community and part separate where (1) the separate estate has paid the final premium
    with funds that are part community and part separate; or (2) the insured spouse has
    become medically uninsurable before he or she began paying the premiums with separate
    property; or (3) the insured spouse could not have purchased a comparable policy at a
    comparable price when he or she began paying the premiums with separate property. 20
    (See appendix A, post.)
    20We understand this holding is burdensome. But “the claim of … administrative
    burden surely cannot serve as support for an inequitable substantive rule .…” (Marriage
    of 
    Brown, supra
    , 15 Cal.3d at p. 849.) While we wish a simpler holding were possible,
    we believe it is compelled by the application of community property principles to the
    23.
    We cannot apply these principles to the proceeds at issue here because there is an
    insufficient factual record. To determine which characterization and/or apportionment
    method applies, there must be findings of fact on (1) whether Gary paid the
    postseparation premiums with (a) separate funds, (b) funds attributable to his community
    estate with Becky, or (c) funds attributable to his community estate with Cynthia (or
    some combination); (2) if Gary paid the premiums with separate funds, whether he was
    medically insurable when he began doing so; and, if so, (3) whether Gary could have
    purchased a comparable policy at a comparable price when he began paying premiums
    with separate funds (and if not, how much more expensive would the premiums have
    been without the premium cap).
    We therefore vacate the order adjudicating the policy proceeds. We remand for
    the trial court to make these factual findings, and to apply the law as expressed in this
    opinion to the facts so found.
    None of the parties’ remaining contentions alter this disposition, as we will now
    explain in the unpublished portion of the opinion.
    III.
    WE CANNOT RESOLVE BECKY’S CLAIM ON CROSS-APPEAL THAT SHE IS
    ENTITLED TO 100 PERCENT OF THE PROCEEDS AS THE SOLE VALID
    BENEFICIARY ON THE FACTUAL RECORD BEFORE US
    There are a number of contentions that Becky raises on cross-appeal that we
    cannot address given that we remand for reconsideration of the characterization issue.
    Becky claims she is entitled to 100 percent of the proceeds because she is the effective
    beneficiary on the policy. She argues that while Gary purported to change the
    various iterations of term life policies. Presumably, the Legislature is free to eschew
    these tenets and provide for a simpler methodology for allocating term life insurance
    proceeds. Until such a time, existing community property principles must govern.
     See footnote, ante, page 1.
    24.
    beneficiary from Becky to Cynthia, that designation was void because it violated the
    ATROs. (See Fam. Code, § 2040.) She also contends the designation is independently
    void because it was a fraudulent conveyance. (See Civ. Code , §§ 3439.04, 3439.07,
    subd. (a)(1).) As explained post, we cannot determine whether Becky is entitled to 100
    percent of the proceeds on these theories.
    Under the principles outlined in section II, ante, it is possible that Gary and
    Cynthia’s community estate has an interest in the insurance proceeds. If so, then Cynthia
    may have a right to some of the proceeds even though Gary’s change of beneficiary from
    Becky to Cynthia was voided by the trial court. Cynthia’s interest in the proceeds “may
    not be defeated by a gift of the policy proceeds to a third party named as beneficiary”
    without her consent. (See Life Insurance Co. of North America v. Cassidy (1984) 
    35 Cal. 3d 599
    , 605.)21 “The surviving spouse is therefore entitled to set aside his or her
    community share in life insurance proceeds even where the decedent spouse designated
    another person as beneficiary. [Citations] This rule applies to term life insurance
    policies .…” (Emard v. Hughes Aircraft Co. (9th Cir. 1998) 
    153 F.3d 949
    , 955-956,
    abrogated on other grounds by Egelhoff v. Egelhoff (2001) 
    532 U.S. 141
    .)
    Thus, the resolution of Cynthia’s claim to 100 percent of the proceeds must await
    proper characterization of the proceeds.
    IV.
    WE CANNOT RESOLVE CYNTHIA’S CLAIM THAT EVEN IF THE PROCEEDS
    MUST BE SPLIT, SHE SHOULD RECEIVE HALF
    Cynthia claims that even if the trial court properly split the proceeds between Gary
    and Becky, it should have awarded Gary’s share to Cynthia. We cannot reach this claim
    21 On the unusual facts of this case, Becky is the “third party” in that she is not a
    party to Gary and Cynthia’s marriage.
       See footnote, ante, page 1.
    25.
    either. If the proceeds were property of Gary and Cynthia’s community estate, then
    Cynthia herself is entitled to at least a portion of the proceeds. (See Prob. Code, § 100,
    subd. (a); see also part III, ante.) But if the proceeds are entirely property of Gary and
    Becky’s community estate, then Cynthia may not be entitled to the requested relief
    because the trial court voided the change of beneficiary. Therefore, this issue may need
    to be considered on remand depending on the ultimate characterization of the proceeds.
    We note that the parties, in their opening appellant’s briefs, do not challenge the
    trial court’s finding that Gary violated the ATROs, nor its ruling that the change of
    beneficiary from Becky to Cynthia is void. Those rulings remain intact on remand. The
    trial court will determine the practical effect of those rulings, if any, once it characterizes
    the policy proceeds.22
    V.
    THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY LEAVING BECKY’S
    CREDITOR CLAIM AGAINST GARY’S ESTATE TO THE PROBATE COURT
    As an alternative argument, Becky claims the trial court should have awarded her
    100 percent of the proceeds because she was entitled to 50 percent for her portion of the
    community’s interest and 50 percent as a creditor of Gary’s estate. The family court did
    22 In her reply brief, Cynthia contends Becky is estopped from asserting Gary
    violated the ATROs because “in her previous litigation conduct, she claimed the term life
    policy was Gary’s separate property.” A threshold requirement for the application of
    collateral estoppel is that “the issue sought to be precluded from relitigation must be
    identical to that decided in a former proceeding.” (Lucido v. Superior Court (1990) 
    51 Cal. 3d 335
    , 341.) The issue of characterizing the funds used to pay the life insurance
    premiums is not identical to the issue of whether Gary violated the ATROs in changing
    the beneficiary on that policy. Collateral estoppel does not apply here. Similarly,
    estoppel by conduct requires a representation or concealment of material facts “ ‘to a
    party ignorant, actually and permissibly, of the truth .…’ ” (Hill v. Kaiser Aetna (1982)
    
    130 Cal. App. 3d 188
    , 195.) There is no evidence that this element was satisfied.
       See footnote, ante, page 1.
    26.
    award Becky 50 percent as a member of the community, but left it to the probate court to
    adjudicate Becky’s creditor claim. Becky claims it was error for the court not to award
    her “the balance of the policy to offset [her] existing judgment.…”
    First, we note that this particular issue may become moot depending on
    proceedings following remand. However, if on remand the court again arrives at the
    conclusion that Becky is entitled to less than all of the proceeds, then this issue will
    remain relevant. Therefore, we discuss it briefly. (Cf. Code Civ. Proc., § 43.)
    Becky’s postjudgment motion to adjudicate the life insurance proceeds was
    brought under Family Code section 2556. That section requires the court to “equally
    divide” omitted or unadjudicated community assets, “unless the court finds upon good
    cause shown that the interests of justice require an unequal division of the asset .…”
    (Fam. Code, § 2556.) Because the trial court equally divided the asset, it necessarily did
    not find upon good cause shown that the interests of justice require an unequal division of
    the asset. Instead, the court determined that Becky was entitled to 50 percent of the
    proceeds. It left the adjudication of Becky’s claim to the remainder of the proceeds on a
    debtor-creditor theory to the probate court. We find no abuse of discretion.
    The family court would have likely violated due process if it had simply awarded
    the proceeds to Becky as a creditor without proper notice to other claimants against
    Gary’s estate. (See Tulsa Professional Collection Services, Inc. v. Pope (1988) 
    485 U.S. 478
    , 490.) Moreover, Becky provided no evidence to the trial court regarding the priority
    of her debt vis-à-vis other creditors. (See Prob. Code, § 11420.) It was appropriate for
    the family court to have the probate court determine the resolution of Becky’s claims as a
    creditor of Gary’s estate.
    27.
    VI.
    DISCLOSURE REQUIREMENTS ARE SET BY STATUTE, NOT THE
    FORMAT OF A JUDICIAL COUNCIL FORM
    Cynthia argues that Gary did not improperly fail to disclose the policy during the
    dissolution proceeding. She contends that the judicial council form for disclosures (Form
    No. FL-142), only contemplates disclosure of life insurance policies with a cash
    surrender value. And, because the policy had no cash surrender value, Gary’s failure to
    “specify” the term life policy was “consistent” with the form.
    Disclosure requirements are set by statute, not by the format of judicial council
    forms. (See Fam. Code, §§ 2104, 2105.) The statutes require disclosure of “all assets in
    which the declarant has or may have an interest … regardless of the characterization of
    the asset … as community … or separate.” (Fam. Code, § 2104, subd. (c)(1), italics
    added.) The format of a judicial council form does not change statutory requirements for
    a particular filing. (Cf. People ex rel. Dept. of Transportation v. Superior Court (1992) 
    5 Cal. App. 4th 1480
    , 1484 [“ ‘Adoption of Official Forms for the most common civil
    actions has not changed the statutory requirement that the complaint contain “facts
    constituting the cause of action” ’ ”].)
    Even if the form’s wording had been determinative, Cynthia’s argument fails. At
    most, the form’s language regarding cash surrender value suggested the policy should not
    be listed in that particular section. But the form also had a section entitled “Other
    Assets.” In sum, the form does not prohibit the listing of life insurance policies with no
    cash surrender value, and the Family Code requires it. (See Fam. Code, § 2104,
    subd. (c)(1).) We see no basis for disturbing the trial court’s finding that Gary violated
    disclosure requirements.
       See footnote, ante, page 1.
    28.
    VII.
    FAMILY CODE SECTION 1101 SANCTIONS
    On cross-appeal, Becky contends that she should have been awarded 100 percent
    of the proceeds due to Gary’s failure to disclose. (See Fam. Code, § 1101, subd. (h).) As
    the court found, Gary failed to disclose the term life policy and thereby violated his
    fiduciary duty.
    When the court finds a breach of fiduciary duty, the remedies “shall include, but
    not be limited to, an award to the other spouse of 50 percent, or any amount equal to 50
    percent, of any asset undisclosed … in breach of the fiduciary duty .…” (Fam. Code,
    § 1101, subd. (g).) When the breach “falls within the ambit of Section 3294 of the Civil
    Code,” the remedies “shall include, but not be limited to, an award to the other spouse of
    100 percent, or an amount equal to 100 percent, of any asset undisclosed .…” (Fam.
    Code, § 1101, subd. (h).)
    Here, the trial court did find that Gary breached his fiduciary duty by “fail[ing] to
    disclose the … policy pursuant to Family Code sections 2104 and 2105.” However, it
    awarded only 50 percent of the asset to Becky. Thus, the court impliedly found that
    Gary’s breach did not fall within the ambit of section 3294 of the Civil Code.
    We review findings regarding “oppression, fraud, or malice” (Civ. Code, § 3294)
    under the “ ‘substantial evidence’ ” standard of review. (In re Marriage of Rossi (2001)
    
    90 Cal. App. 4th 34
    , 40.) We review a trial court’s implied findings of fact under the
    substantial evidence test as well. (Smith v. Adventist Health System/West (2010) 
    182 Cal. App. 4th 729
    , 739.)
    While Gary failed to disclose the policy on his disclosure declarations, he did state
    at his deposition: “I think I have a million-dollar policy.” Becky contends this “was not
       See footnote, ante, page 1.
    29.
    enough” because Gary had a duty to “augment his disclosures and to be strictly
    transparent.” We agree that Gary’s deposition testimony did not bring him into
    compliance with disclosure requirements under the Family Code. (See Fam. Code,
    §§ 2104, 2105.) But a 100 percent award under subdivision (h) requires finding a breach
    of fiduciary duty and oppression, fraud or malice. (Fam. Code, § 1101, subd. (h); Civ.
    Code, § 3294, subd. (a).) Gary’s deposition testimony is relevant to the latter
    determination. While Gary’s deposition testimony did not preclude the trial court’s
    finding that he had breached his duty of disclosure, it similarly did not preclude the trial
    court from finding that the same breach was not a result of oppression, fraud or malice.
    To the contrary, Gary’s deposition testimony is substantial evidence supporting that
    implied finding. Therefore, we will not disturb it on appeal.
    VIII.
    STATUTE OF LIMITATIONS WAS NOT RAISED BELOW
    Cynthia claims Becky’s motion to adjudicate the proceeds was barred by the
    statute of limitations. However, she failed to raise this issue below. It is clear that when
    a party fails to raise the expiration of the statute of limitations in the trial court, “such a
    waiver cannot be overcome on appeal even if the undisputed facts demonstrate that a
    timely challenge would have been meritorious as a matter of law.” (Poster v. Southern
    Cal. Rapid Transit Dist. (1990) 
    52 Cal. 3d 266
    , 273, fn. 3; see also In re Marriage of
    Hanley (1988) 
    199 Cal. App. 3d 1109
    , 1121.)
    IX.
    JUDICIAL ESTOPPEL WAS NOT RAISED BELOW
    Cynthia claims Becky is judicially estopped from claiming the proceeds are
    community property. Cynthia did not raise this argument below. “As a general rule,
       See footnote, ante, page 1.
       See footnote, ante, page 1.
    30.
    ‘issues not raised in the trial court cannot be raised for the first time on appeal.’
    [Citations.] On a number of occasions, however, appellate courts have … permitted a
    party to raise belatedly ‘a pure question of law which is presented on undisputed facts.’
    [Citations.]” (Sea & Sage Audubon Society, Inc. v. Planning Com. (1983) 
    34 Cal. 3d 412
    ,
    417.)
    “Only when the issue presented involves purely a legal question, on an
    uncontroverted record and requires no factual determinations, is it appropriate to address
    new theories.” (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 
    52 Cal. App. 4th 820
    ,
    847 (Mattco Forge, Inc.) Judicial estoppel is not such an issue. “A trial court’s
    determination on the issue of estoppel is a factual finding ....” (In re Marriage of Dekker
    (1993) 
    17 Cal. App. 4th 842
    , 850.) Because the estoppel determination is factual, we
    cannot address it as a new theory on appeal. (See Mattco Forge, 
    Inc., supra
    , 17
    Cal.App.4th at p. 850.)
    While Cynthia styles this argument as judicial estoppel in her opening brief, her
    counsel raised a similar but distinct contention at oral argument. She contends that Judge
    Somers had made an implied finding that the policy was separate property when he
    purportedly ordered Gary to reimburse Becky for premium payments. Even if we were to
    address this contention on its merits, it fails. The evidence Cynthia cites from the trial
    before Judge Somers pertains to reimbursements for various premiums paid from 2005 to
    2008. Gary died in April 2010. As we explained above, the characterization of term life
    insurance proceeds “will depend on the … premium for the final term of the policy.”
    (Minnesota Mut. Life Ins. 
    Co., supra
    , 174 F.3d at p. 983.) A threshold requirement for
    the application of collateral estoppel is that “the issue sought to be precluded from
    relitigation must be identical to that decided in a former proceeding.” (Lucido v. Superior
    Court (1990) 
    51 Cal. 3d 335
    , 341.) Even if the evidence cited by Cynthia and offered
    before Judge Somers properly raised the issue of whether the 2005 to 2008 premiums
    were paid with separate or community funds while Gary was alive, that issue is not
    31.
    identical to the one relevant here: the proper characterization of the policy’s proceeds
    once Gary died in 2010. Collateral estoppel does not apply.
    Moreover, Cynthia’s estoppel argument assumes Becky claimed the policy was
    Gary’s separate property before Judge Somers. The record before us is not so clear.
    Before Judge Somers, Becky acknowledged that Gary was permissibly withdrawing
    $20,000 from BCI, and giving $10,000 of that sum to her. But, she alleged that Gary
    began taking out more than the agreed-upon $20,000 per month from BCI. Believing the
    income generated by BCI was a community asset, Becky asked Judge Somers to
    reimburse her in connection with the amounts Gary withdrew in excess of the agreed-
    upon $20,000 per month. Thus, Becky’s response to Cynthia’s estoppel argument on
    appeal is that she “made claims for payments made by the business that she believed
    were of a personal nature and not business related” and when she “could not identify the
    payment as business related, she simply included it in her list of items.” (Italics added.)
    For example, Becky listed her claims for reimbursement in an exhibit offered
    before Judge Somers. Under the heading “Excess Amounts Paid to or for the Benefit of
    Gary J. Burwell from Burwell Concrete During Calendar Year 2007,” Becky listed a
    $10,000 transfer Gary allegedly made on January 8, 2007. Through one of Gary’s
    exhibits, it is shown that the $10,000 was credited to an account from which multiple
    payments were made including a term life policy premium payment. Becky’s claim for
    reimbursement does not list the premium payment as a line item, only the $10,000
    transfer which Gary apparently used for many purposes, including paying the premium.
    On this record, we cannot find the character of policy proceeds was an issue litigated
    before Judge Somers or that Becky took inconsistent positions vis-à-vis the character of
    the policy.
    32.
    DISPOSITION
    The trial court’s order that the “term life insurance policy was a community asset
    of the parties” is vacated. The matter is remanded for further evidentiary proceedings to
    determine the proper characterization and distribution of the term life insurance policy
    proceeds in accordance with this opinion.
    _____________________
    Poochigian, Acting P.J.
    WE CONCUR:
    _____________________
    Franson, J.
    _____________________
    Peña, J.
    33.
    APPENDIX A
    34.