Marriage of Gutierrez ( 2020 )

Filed 5/6/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re the Marriage of MAYELA B291507
and ALBERTO GUTIERREZ.
______________________________ (Los Angeles County
MAYELA GUTIERREZ, Super. Ct. No. BD473221)
Respondent,
v.
ALBERTO GUTIERREZ,
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Frederick C. Shaller, Judge. Affirmed.
Holstrom, Block & Parke and Ronald B. Funk for
Appellant.
C. Athena Roussos for Respondent.
____________________
Father makes four appellate complaints about the family
court’s division of marital property.
First, from the value of the home awarded to Mother, the
court subtracted $171,099, which was the balance outstanding on
a home equity credit line. Father objects, saying his two
witnesses testified the lender wrote off the loan, leaving a
balance of zero, not $171,099.
Second, the court sanctioned Father for failing to make
proper disclosures about a different house. Father claims error
because the court made no finding Mother was unaware of this
other house.
Third, Father argues the court misinterpreted a 2008 court
order to sell a third property. The error, Father argues, was to
read the order as requiring him to act swiftly.
Fourth, Father complains about treatment of a Jeep, tools,
an all-terrain vehicle, and his watch.
We affirm. Citations are to the Family Code.
I
The parties are Mayela Gutierrez and Alberto Gutierrez.
We refer to them as Mother and Father to be concise and
respectful.
The trial court’s encyclopedic 69-page statement of decision
is a model of clarity and an emblem of judicial diligence. This
ruling reports Mother and Father married in 2001, had two
children, and separated in 2008. We add more facts as they
become pertinent.
II
We treat the four issues in turn.
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A
The first issue concerns house valuation. The question is
whether the court was right to subtract the outstanding balance
of a loan on a house. This boils down to whether the court could
reject two of Father’s witnesses as unreliable. We defer to the
family court’s credibility call.
The particular debate was whether Mother still owed
money on a home equity line of credit. The family court said yes,
in the sum of $171,099. The court therefore subtracted that sum
from the value of the house the court had awarded to Mother.
Father says this was error because the lender had written off the
loan entirely and the court should not have used this reason to
reduce the house value at all.
This dispute is purely factual. Father agrees we must
review for substantial evidence, which he rightly says is, “indeed,
a heavily deferential standard of review . . . .”
We recount some factual context.
The house is the former family residence in Hacienda
Heights. In 2006, the couple borrowed about $204,000 on this
house from Washington Mutual. The lender recorded a deed of
trust on this loan in 2006. When the couple separated in May
2008, Mother and the children stayed in the Hacienda Heights
house.
The value of the home dropped and Mother tried to modify
the terms of the mortgage and the line of credit. Then Mother
stopped all loan payments. Chase Bank took over both
Washington Mutual and, with it, the Hacienda Heights loan. A
collection agency then took over the loan and demanded Mother
pay $170,000 to pay it off. Mother lacked the money. Late
payments and penalties drove the balance up to $230,000.
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Mother again negotiated with the bank, began monthly
payments of $700 in 2011, and became current on both loans.
Father called two trial witnesses to support his claim the
loan had a zero balance because the lender had written it off.
Father’s first witness was Richardra Winder, a mortgage
bank research officer at Chase, who appeared as the person most
knowledgeable to discuss the line of credit.
Winder repeatedly claimed Chase had written off the home
equity line of credit.
Winder’s testimony had problems. She was unclear about
when the loan was charged off, saying it was “approximately
2009.” She was “not quite familiar” with whether Mother still
had been making loan payments. Winder could not explain why
Mother would still be making payments in 2013 if the lender
charged off the loan in 2009.
Winder’s problems continued. During Winder’s cross-
examination, counsel asked Winder about endorsements on
Mother’s loan payment checks. These endorsements revealed the
checks had been processed in Columbus, Ohio. Winder confirmed
Chase’s payment department indeed was in Columbus, Ohio.
Winder testified it was the bank’s policy to return any payments
after charging off an account. Winder could not explain why this
had not happened in Mother’s case. Winder could find no
documentation verifying Mother’s agreement to pay Chase $700 a
month on the line of credit.
In sum, Mother trapped Winder in a simple contradiction.
Winder persisted in claiming Chase had written off the loan. Yet
Winder effectively admitted Mother was still paying on the Chase
loan and Chase was still cashing her checks, which Chase would
not do if it had written off the loan.
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The second witness was Richard Mease, who was a tax
preparer and paralegal. Mease testified Father gave him
documents leading Mease to conclude the loan had been charged
off. Mease had never seen a case, however, where a borrower
continued making payments after a loan had been charged off.
The court rejected Winder’s and Mease’s testimony.
Winder could not explain why Mother continued to make
payments and Chase continued to accept those payments and
send her receipts for them. Mease’s testimony was speculative
and lacked a foundation.
While rejecting the testimony from Winder and Mease, the
court accepted Mother’s testimony she had negotiated a deal with
Chase to avoid foreclosure and she had continued to make
payments according to this renegotiation. The court found “no
doubt” the deed of trust securing the line of credit was still in
place. The court reasoned Mother’s fully-documented payment
history refuted Winder’s and Mease’s testimony.
“[Father’s] argument that [Mother] is paying as a pure
volunteer strains credulity. It makes no common sense that the
bank would write off the balance of the [line of credit] and forgo
foreclosure proceedings when there is an asset with sufficient
[equity] that could be sold to satisfy the loan balance. Also, it
makes no sense that [Mother] would continue to pay $700 a
month on the obligation when allegedly no such obligation
existed.”
The court concluded a $171,099 obligation remained on the
Hacienda Heights home, which sum it subtracted from the
home’s value.
Substantial evidence supports this ruling.
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A court is entitled, of course, to reject testimony from
witnesses who tell a contradictory story.
If the lender truly had made a gift of $171,099 to Mother,
moreover, Mother logically would want authoritative assurance
from the entity holding a deed of trust on her home it was safe to
stop paying. There was no evidence like that.
The court thus had powerful reasons for rejecting Winder’s
and Mease’s testimony. (See In re Marriage of Mix (1975) 14
Cal.3d 604, 614.)
Father argues to us Winder repeated his assertion the loan
had been charged off “at least twenty-six times . . . .” This
mistakes quantity for quality.
Father’s first argument fails.
B
The second issue concerns Father’s breach of his fiduciary
duty to Mother. Father did not properly disclose a Rosemead
house in his preliminary and final declarations of disclosure. The
trial court sanctioned Father’s omission because it was “improper
concealment” in violation of section 1101, subdivision (g) and
section 271.
Sanctions orders are committed to the trial court’s
discretion, which we review with deference. (In re Marriage of
Davenport (2011) 194 Cal.App.4th 1507, 1524, 1531.) But we
independently review questions of law, and, under Feldman, that
is the review we apply here. (In re Marriage of Feldman (2007)
153 Cal.App.4th 1470, 1479 (Feldman).)
Father attacks the sanction order on one ground only,
which is that “a finding of concealment requires that the
aggrieved party not have knowledge of the allegedly concealed
asset . . . .” Father says this requirement springs from civil fraud
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cases like Boschma v. Home Loan Center, Inc. (2011) 198
Cal.App.4th 230, 248.
Under Feldman, Father’s argument is incorrect as a matter
of law. The Feldman case explained Sections 271 and 1101 do
not seek to redress civil injuries to a victim. Rather, they create
incentives for divorcing parties to be candid with each other and
the court. These sections look forward to spur good conduct, not
backward to right past wrongs. (Feldman, supra, 153
Cal.App.4th at pp. 1475–1480.)
To improve the efficiency of discovery and to lower the cost
of dissolution proceedings, the side with superior information
should disclose it fully and promptly. (In re Marriage of Brewer
& Federici (2001) 93 Cal.App.4th 1334, 1348.)
Couples dissolving their bonds thus must grasp the
importance of candor. They, and their attorneys, must
understand concealment will be costly and counterproductive.
Father in reply attempts neither to distinguish Feldman
nor to answer it with contrary case law.
Father’s second argument fails.
C
The third issue concerns “the Havasupai property.” The
court in 2008 ordered Father to sell this property and to split the
proceeds with Mother. Instead, Father kept all the money for
himself until the time of trial in 2015. Father protests (1) being
ordered to pay interest to Mother because Father’s payment was
tardy and (2) being denied reimbursement for his property tax
payments.
As background, the couple bought the Havasupai property
during their marriage for $135,000. On April 23, 2008, the trial
court ordered Father to list this Arizona real estate for sale and
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to split the proceeds with Mother. This order was to support
Mother and the minor children. Mother at the time was
complaining Father was not paying the community bills. She
needed money for herself, the children, and the payments on the
Hacienda Heights home.
Mother had primary custody of the children after the
couple separated, until 2012. After the parties separated, Father
stopped helping with household expenses. That caused Mother to
struggle financially, to default on loans, to renegotiate them, and
eventually to become current on them in 2010 or 2011. This
process affected her credit.
Father controlled the Havasupai property and was
responsible for selling it. He sold it in August 2011 but did not
mention the sale to Mother. He kept the proceeds. Only from
court records was Mother able to discover Father had listed or
sold the property.
Father claimed he sold the property for $38,000. He could
not corroborate this supposed sales price, which contrasted with
the $135,000 purchase price. Despite its “skepticism,” the trial
court had “no choice but to accept” Father’s testimony about the
sales price.
Father deposited $38,000 in his own bank account. He
admitted he did not pay Mother her share. He claimed the 2008
court order, which required “proceeds are to be divided equally by
the parties,” gave him latitude instead to pay community debts
he deemed pressing.
Father claimed he used the funds to pay property taxes on
the property and to pay joint credit cards. Father never
documented these claims.
8
The trial was in 2015. More than three years had elapsed
since Father got the $38,000 from the 2011 sale.
The family court awarded Mother a 50 percent share plus
interest of $7,761.37 on the sale proceeds that Father should
have distributed to her upon sale in August 2011. The court
calculated the interest to the date of its statement of decision,
which was September 2015. The court also awarded Mother a
reasonable attorney fee under sections 271 and 1101.
The family court noted Father’s request for reimbursement
of $3,578 for taxes paid on the Havasupai property after
separation and before its sale. The court wrote that whether
reimbursement should be ordered, and if so, in what amount, was
within the court’s discretion under the cases of In re Marriage of
Epstein (1979) 24 Cal.3d 76, 84–85 and In re Marriage of
Hebbring (1989) 207 Cal.App.3d 1260, 1272.
The family court wrote the governing rule was whether it
would be unfair or unreasonable for the party that made the
payment to expect reimbursement. The court ruled “it would be
both unfair and unreasonable to expect the community or
[Mother] to reimburse [Father] for tax expenses on the property
while at the same time and continuing for over three years
[Father] has deprived [Mother] of the use of the money he should
have tendered to her under the court’s 2008 order.” The family
court repeated Mother’s complaint Father had put her into
financial duress by not supporting her or the children after
separation.
On appeal, Father presents two arguments. In the trial
court, he had another argument. He said he used the sales
proceeds to pay property taxes on the property and to pay joint
9
credit cards. Father has apparently given up that line of
argument on appeal.
Rather, Father first argues the April 27, 2008 court order
did not require him to act immediately. Therefore, Father
claims, it was an abuse of discretion for the trial court to have
made up timing deadlines and to have created a “phantom
provision” requiring prompt action.
This first argument errs.
It was reasonable for the trial court to use the context of
the proceedings to interpret the 2008 order. Mother had custody
of the children and was struggling financially. The couple had an
illiquid asset that could be sold and divided to help alleviate the
pressing situation.
Father’s proposed interpretation of the order, by contrast,
is unreasonable: that the 2008 order envisioned him selling the
Havasupai property in secret, keeping proceeds entirely for
himself until Mother discovered what he had done, and then
paying Mother her share only upon a further order of the court.
Parties to a marital dissolution must act in good faith. If
there is legitimate uncertainty about a court order, the proper
response is to seek the court’s clarification, not to “interpret” the
order in a self-serving and unreasonable way and then cover your
tracks.
There was no legitimate uncertainty here. The family
court’s interpretation of the 2008 order was entirely logical.
Father’s second complaint is about taxes he paid on the
Havasupai property. Father maintains the trial court abused its
discretion by denying Father’s request for reimbursement of
$3,578 that Father paid in property taxes after separation.
10
Whether Father paid these taxes remains in some doubt.
As we have noted, the family court heard testimony about
Father’s lack of documentation for these supposed tax payments.
But the family court’s statement of decision assumed Father did
pay and then denied reimbursement on equitable grounds.
On appeal, Father does not challenge the family court’s
equitable powers under In re Marriage of Epstein, supra, 24
Cal.3d at pp. 84–85 and In re Marriage of Hebbring, supra, 207
Cal.App.3d at p. 1272.
Rather, the nub of Father’s cursory appellate argument is
the family court misinterpreted the 2008 order about the
Havasupai property. According to Father, the court
misinterpreted the order by setting a deadline on the sale and
distribution that was not in the original order, thus creating
what Father again calls a “phantom order.”
In other words, Father’s second argument merely repeats
his first, which failed. Repeating a faulty argument does not
rescue it.
There was no abuse of discretion about the Havasupai
property.
D
The balance of Father’s appeal consists of scattered
complaints about specific assets. Substantial evidence supported
each ruling.
Mother sold a 2002 Jeep for $6,000, but Father claimed it
was worth $20,440 because it was a more valuable Jeep model
called a Rubicon. The trial court noted Jeep did not make the
Rubicon in 2002. Father did not mention this fact in his opening
brief.
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Father claims Mother kept his tools worth $20,000 to
$30,000. The trial court noted a receipt signed by all movers,
who were Father’s brother and his friends. The receipt stated
this group recovered all tools from Mother’s garage. The trial
court also noted Father offered no proof about the character or
value of these tools. Father’s opening papers omit this
substantial evidence, which supports the trial court’s treatment
of the tools.
Father contends the trial court abused its discretion by
accepting Mother’s report she sold an old all-terrain vehicle for
$500. Father claimed it was worth $3,900. The court accepted
the sale price of $500 as the right measure of value. Father’s
argument on appeal apparently is the trial court erred by
accepting “the sales proceeds as the appropriate value . . . .”
Father offered no support for his competing valuation, which
seems plucked from the air.
Father suspects Mother has his watch. The court ruled no
evidence showed what became of this watch. Apparently Father
lost it. Father’s opening brief cites no evidence Mother has it.
The trial court did not abuse its discretion about the watch.
Father’s opening brief states: “Also, [Father] contended
that [Mother] had earned money through her sister’s jewelry
business.” Father does not include citations or otherwise pursue
this point. The same problem plagues his unsupported assertion
that the “cumulative effect” of trial court errors prejudiced him.
Father has forfeited these points.
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DISPOSITION
We affirm the judgment and award costs to Mayela
Gutierrez.
WILEY, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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