Adler v. Superior Court CA4/1 ( 2021 )

Filed 4/8/21 Adler v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
YANINA ADLER, D075033
Petitioner, (Super. Ct. No. DN181729)
v.
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
MARK J. ADLER,
Real Party in Interest.
ORIGINAL PROCEEDING in mandate. Patti Ratekin, Commissioner.
Appeal dismissed. Petition granted in part and remanded with directions.
Yanina Adler, in pro. per.; Ball Law Corporation and Jonathan S. Ball
for Appellant.
Higgs Fletcher & Mack, John Morris and Rachel E. Moffitt for
Respondent.
In this dissolution action, the trial court found the premarital
agreement (PMA) signed by Yanina Adler and Mark Adler (together, the
parties) was enforceable. Yanina appeals from the subsequent bench trial on
reserved issues arguing that the trial court erred in determining her claims
for: (1) reimbursement of income tax payments; (2) recalculation of the
benefits paid at the termination of a defined benefit pension plan that the
parties created for themselves; and (3) reimbursement of the salary she
earned at the parties’ corporation. Yanina’s appeal is dismissed and we
exercise our discretion to treat the appeal as a petition for writ of mandate.
We conclude that the trial court committed a legal error by requiring
nontaxable transfers of money between spouses be treated as taxable income
in determining whether either party was entitled to reimbursement of income
tax payments. We otherwise reject Yanina’s arguments.1 Accordingly, we
grant the petition for writ of mandate in part and remand the matter to the
trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
We forego a detailed recitation of the facts and instead briefly
summarize the factual history of the parties’ relationship. The
discussion provides additional background related to the specific claims
at issue in this proceeding.
Mark is a physician with his own medical practice and equity
interests in various health-related businesses, such as WebMD, Inc.
(WebMD), where he served on the board of directors. Yanina has a
Ph.D. in physiology and was the CEO of her own biotech startup
company. The couple started dating in 1999. Mark had one prior
marriage and Yanina had two prior marriages. Each party has two
children, but no children together.
1 Mark’s motion to strike Yanina’s oversized reply brief is denied.
2
Before their marriage, the parties, each represented by separate
counsel, negotiated a PMA. At this time, Yanina was employed as the
program director in the gene therapy division at a medical school and
earned approximately $60,000. Mark earned approximately $500,000
from his medical practice. The PMA preserved the separate property
status of the assets each party owned before the marriage as well as
each party’s earnings during the marriage. Both parties waived
spousal support. The parties married in November 2001.
In December 2001, the parties formed MDNA, Inc. (MDNA).
MDNA performed consulting services for Mark’s medical group, who
was MDNA’s only paying client. Initially, the parties were 50 percent
shareholders in the corporation. In 2006, Yanina became the 95
percent shareholder, and Mark the 5 percent shareholder. MDNA paid
salaries to Mark and Yanina and reported these salaries on W-2 forms.
In late January 2015, Mark petitioned for dissolution of the
marriage. The trial court granted Yanina’s motion to bifurcate the case
to first resolve her challenges to the validity of the PMA and then
decide the issues of property division and reimbursement. On January
23, 2018, the court entered its “[j]udgment on bifurcated issue” finding
that the parties’ PMA was valid.
On August 24, 2018, after considering the parties’ trial briefs,
nine days of testimony, and written closing arguments, the trial court
issued its statement of decision for the second phase. On August 28,
2018, the court entered its “[j]udgment on reserved issues” which,
among other things, reserved jurisdiction to carry into effect its order
regarding the parties’ income taxes, and division of the parties’
furniture and furnishings should the parties not be able to agree. On
3
October 25, 2018, Yanina, now in propria persona, filed her first notice
of appeal from the August 28, 2018 judgment.
On February 26, 2019, the court entered its statement of decision
on reserved issues after trial to address prevailing party status,
attorney fees, costs, and sanctions. On April 17, 2019, the court
entered its “[j]udgment on reserved issues (FINAL).”2 Therein, the
court ordered that Mark contribute $500,000 to Yanina’s attorney fees
based on his “ability to pay for legal representation of both parties.”
The court deemed Mark to be the “prevailing party” and awarded him
$700,000 in attorney fees. The trial court also sanctioned Yanina
$10,000 under Family Code section 271. That same day, Yanina filed
her second notice of appeal from the February 26, 2019, statement of
decision on reserved issues.
On July 30, 2019, the court held a hearing and issued findings
and an order that, among other things, stated it would adopt the report
of Mark’s expert on the income tax issue unless Yanina’s expert
presented an evaluation of the tax issue within 30 days. This order
also awarded certain furniture and furnishings to Mark.
On November 4, 2019, the trial court issued an order stating that
it resolved Yanina’s motion regarding the division of household
furniture and furnishings at the July 30, 2019 hearing. As to income
taxes, the court stated that it provided a mechanism for resolution of
this issue at the July 30, 2019 hearing and that “the order of July 30,
2019 controls the tax issue.” The court also declared Yanina to be a
vexatious litigant.
2 We refer to the April 17, 2019 judgment as the “April judgment.”
4
DISCUSSION
I.
Appealability
“California is governed by the ‘one final judgment’ rule which
provides ‘interlocutory or interim orders are not appealable, but are
only “reviewable on appeal” from the final judgment.’ [Citation] The
rule was designed to prevent piecemeal dispositions and costly multiple
appeals which burden the court and impede the judicial process.”
(Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292-1293.) “The
existence of an appealable judgment is a jurisdictional prerequisite to
an appeal” which we are obligated to review. (Id. at p. 1292.)
In her reply brief, Yanina contends for the first time that the trial
court has not yet issued an appealable final judgment that resolved all
claims. She asserts we should dismiss this appeal without prejudice
and instruct the trial court to enter a final judgment that resolves all
claims in this litigation so that she may appeal from that final
judgment. She argues that the court’s April judgment is not appealable
because it did not finally resolve her income tax reimbursement claim
or the division of household furniture and furnishings.3 Mark urges—
for reasons of efficiency, economy, and fundamental fairness—that this
appeal proceed and be resolved on its merits. He argues that this
outcome can be achieved consistent with the law through any one of
three separate analyses, including treating the appeal from the April
interlocutory judgment as a petition for writ of mandate. In her
response to Mark’s supplemental brief, Yanina does not object to the
3 We requested and received from Mark a supplemental letter brief
on this issue. We also accepted an unsolicited response from Yanina.
5
matter proceeding as long as we are able to resolve all issues on their
merits.
As detailed in the factual and procedural background, the trial
court entered “[j]udgment on bifurcated issue” after the first trial
phase. After the second trial phase, the court entered a “[j]udgment on
reserved issues” which reserved jurisdiction to resolve the parties’
dispute regarding income taxes and the division of household furniture
and furnishings. On February 26, 2019, the court entered its
statement of decision after trial on reserved issues to decide prevailing
party status, attorney fees, and sanctions.
The court then entered the April judgment stating that the
“judgment here fully incorporates by this reference the Court’s
judgment filed on August 28, 2018 and the Court’s statement of
decision and ruling after trial on reserved issues filed on February 26,
2019, and is the final judgment of this Court.” (Italics added.) Thus,
the April judgment expressly incorporated the August 28, 2018,
judgment (the August 2018 judgment) which ordered the parties to
prepare a list of furniture and furnishings claimed to be community
property. If a dispute existed over the character of an item, the person
claiming the property is separate property was ordered to provide their
evidence to the other party through counsel and the court reserved
jurisdiction to resolve the dispute. The court also ordered the parties to
meet and confer regarding their income taxes and created a process to
resolve the issue. The court also reserved jurisdiction over the income
tax issue. On April 17, 2019, Yanina, in propria persona, filed her
second notice of appeal from the February 26, 2019, statement of
decision and ruling on reserved issues. Thereafter, the court’s July 30,
6
2019 order after hearing stated the court would adopt the report of
Mark’s expert on the income tax issue unless Yanina’s expert presented
an evaluation of the tax issue within 30 days. On November 4, 2019,
the trial court issued an order stating that it resolved the income tax
issue at the July 30, 2019 hearing.
“ ‘In “determining whether a particular decree is essentially
interlocutory and nonappealable, or whether it is final and
appealable . . . [i]t is not the form of the decree but the substance and
effect of the adjudication which is determinative. As a general test,
which must be adapted to the particular circumstances of the
individual case, it may be said that where no issue is left for future
consideration except the fact of compliance or noncompliance with the
terms of the first decree, that decree is final, but where anything
further in the nature of judicial action on the part of the court is
essential to a final determination of the rights of the parties, the decree
is interlocutory.” ’ ” (In re Marriage of Corona (2009) 172 Cal.App.4th
1205, 1216.)
The April judgment incorporated the August 2018 judgment. The
August 2018 judgment left two issues unadjudicated—household
furnishings and income taxes. The August 2018 judgment provides
that the parties are to attempt to agree on a resolution of each of these
items, and if not, the court would resolve these issues in some future
order. The subsequent April judgment incorporated by reference the
August 2018 judgment, but did not adjudicate the household
furnishings and income tax issues left open in the August 2018
judgment. Rather the April judgment, by incorporating the August
7
2018 judgment, contemplated further judicial action in the event the
parties could not agree.
Where, as here, a trial court decides most issues and creates a
procedure to determine some remaining issues, reserving jurisdiction to
resolve any resulting disputes, appellate courts have concluded that the
“judgment” was interlocutory and not final. For example, in Maier
Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494(Maier), a dispute arose between plaintiff and its insurance carrier
regarding whether plaintiff’s insurance policy covered the property
where a fire occurred. (Id. at pp. 495-496.) In a reformation action, the
trial court entered judgment reforming the policy to include the
disputed property. (Id. at p. 496.) The judgment required the parties
to follow procedures prescribed in the policy to determine the amount of
the loss, but further provided that “if the parties are unable to agree on
the amount of said loss, and further Court action is necessary, the
Court retains jurisdiction” to adjudicate the amount of loss and enter
judgment for that amount. (Id. at p. 497.) The Court of Appeal
dismissed the purported appeal because the “judgment” contemplated
further judicial action necessary to a final determination of the parties’
rights. (Id. at pp. 498, 500.) In Yeboah v. Progeny Ventures, Inc. (2005)
128 Cal.App.4th 443 (Yeboah), in adjudicating certain contract claims,
the trial court entered a judgment providing that an accounting firm
would conduct audits, and any disputes relating to the accounting
would be referred to a special master. (Id. at pp. 446-447.) The Court
of Appeal held this judgment was not final and not appealable because
it was only a “ ‘provisional determination of some or all issues in the
cause.’ ” (Id. at p. 448.)
8
Similar to Maier, supra, Cal.App.2d 494 and Yeboah, supra, 128
Cal.App.4th 443, the April judgment is not a final appealable judgment
because it did not resolve the household furnishing and income tax
issues and contemplated further judicial action on these issues in the
event the parties could not agree. “However, (1) under unusual
circumstances, and (2) where doing so would serve the interests of
justice and judicial economy, an appellate court may use its discretion
to construe an appeal as a petition for writ of mandate.” (Mon Chong
Loong Trading Corp. v. Superior Court (2013) 218 Cal.App.4th 87, 92.)
In Olson v. Cory (1983) 35 Cal.3d 390 (Olson), the California
Supreme Court determined that it was appropriate to treat an appeal
as a petition for a writ of mandate when “the issue of appealability was
far from clear in advance,” the records and briefs included the
necessary elements for a petition for a writ of mandate, there was
nothing to indicate that the trial court would appear separately or
become more than a nominal party, and dismissing the appeal rather
than exercising the court's discretion to reach the merits would be
“ ‘ “unnecessarily dilatory and circuitous.” ’ ” (Id. at p. 401.)
All the elements articulated in Olson, supra, 35 Cal.3d 390 are
present here. This is not a case where the issue of appealability was
clear in advance. In fact, the trial court contributed to the confusion by
expressly labeling the April judgment its “final” judgment in the matter
when it was not final. Additionally, the merits of the issues raised by
Yanina have been fully briefed, there is no indication that the trial
court would appear separately or become more than a nominal party,
and failing to reach the merits of the issues raised would be needlessly
9
dilatory. As a result, we dismiss Yanina’s appeal and exercise our
discretion to treat the appeal as a petition for a writ of mandate.
II.
General Legal Principles
We review the trial court’s conclusions of law after a bench trial
de novo and its factual findings for substantial evidence. (Thompson v.
Asimos (2016) 6 Cal.App.5th 970, 981.) Under the substantial evidence
standard of review “findings of fact are liberally construed to support
the judgment and we consider the evidence in the light most favorable
to the prevailing party, drawing all reasonable inferences in support of
the findings. [Citation.] [¶] A single witness’s testimony may
constitute substantial evidence to support a finding. [Citation.] It is
not our role as a reviewing court to reweigh the evidence or to assess
witness credibility. [Citation.] ‘A judgment or order of a lower court is
presumed to be correct . . ., and all intendments and presumptions are
indulged in favor of its correctness.’ [Citation.] Specifically, ‘[u]nder
the doctrine of implied findings, the reviewing court must infer,
following a bench trial, that the trial court impliedly made every
factual finding necessary to support its decision.’ ” (Ibid.)
“A party who challenges the sufficiency of the evidence to support
a finding must set forth, discuss, and analyze all the evidence on that
point, both favorable and unfavorable.” (Doe v. Roman Catholic
Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218 (Doe).)
The party challenging the court’s ruling has a “fundamental obligation
to this court, and a prerequisite to our consideration of their challenge”
(Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 737-738), is
to “set forth the version of events most favorable to [respondent]”
10
(ibid.). “The duty to adhere to . . . procedural rules grows with the
complexity of the record.” (Western Aggregates, Inc. v. County of Yuba
(2002) 101 Cal.App.4th 278, 290.)
Additionally, “ ‘ “[i]t is the duty of a party to support the
arguments in its briefs by appropriate reference to the record, which
includes providing exact page citations.” ’ [Citation.] Because ‘[t]here
is no duty on this court to search the record for evidence’ [citation], a
reviewing court may disregard any factual contention not supported by
a proper citation to the record.” (Grant-Burton v. Covenant Care, Inc.
(2002) 99 Cal.App.4th 1361, 1379 (Grant-Burton); see also Nwosu v.
Uba (2004) 122 Cal.App.4th 1229, 1246 [noting that the California
Rules of Court require factual assertions to be supported by citations to
the record].)
III.
Reimbursement of Income Taxes
A. Additional Background
Paragraph 6.1 of the PMA provides that the parties “intend to
establish a joint [savings and joint checking] account,” and that “[f]unds
deposited in those accounts shall be community property,” with no right
of reimbursement to funds deposited into these accounts. Paragraph 14
of the PMA regarding income tax returns provides:
“The parties probably will file joint income tax
returns. Neither the filing of such joint tax returns
nor the payment of taxes shall create or be deemed to
create any community property interest in any assets
of either party or any interest of one party in the
property of the other party. If the parties file a joint
tax return, each party should pay the percentage of the
joint tax that he or she would have paid of the total
tax that would have been paid by both if each had
11
filed a separate tax return and paid their own taxes
on such returns. In other words, the percentage the
party’s separate tax liability bears to the combined
separate liabilities shall be applied to the joint
liability. The parties may determine any other
appropriate allocation of the joint tax liability and/or
joint tax refund to which they mutually agree. The
parties may also determine an appropriate allocation
of the tax preparation fees. Neither party shall have
a right to reimbursement for any alleged payment of
the other’s taxes on a joint tax return.” (Italics
added.)
In its proposed statement of decision, the trial court noted that it
allowed testimony on whether paragraph 14 of the PMA was
ambiguous. It ultimately found paragraph 14 ambiguous regarding the
“right to reimbursement for any alleged payment of the other’s taxes on
a joint return.”
In its August 2018 judgment on reserved issues the court directed
the parties to meet and confer “to determine whether this provision [of
the PMA] was complied with by each party paying their share of the
joint tax liability.” If the parties could not resolve the issue, the parties
were directed as follows:
“If they are unable to agree they shall mutually agree
on a tax preparer to prepare separate returns and
ascertain what each parties’ separate tax liability
would have been. If either party failed to pay their
representative share of the taxes, those taxes shall be
reimbursed to the community. The funds
deposited into the joint account shall be
treated as community property income and
each party shall claim one half of those funds
on their separate property return, the payments
from the joint account shall be equally divided
between the parties.” (Bolding added.)
12
The court reserved jurisdiction over this order. Yanina and
Mark’s counsel exchanged numerous meet and confer letters
attempting to resolve the income tax issue. In his final letter, Mark’s
counsel agreed to retain Brian Brinig, the court’s Evidence Code section
730 expert, “to accomplish the tasks required by the [c]ourt’s order
[regarding the income tax issue], provided that the fees for his service
are shared equally.” Ultimately, Mark filed a declaration stating that
the parties were unable to resolve the income tax issue and that Yanina
did not respond to the suggestion to retain Brinig. Mark also filed a
report prepared by Anna Addleman. The Addleman report concluded
that Mark was entitled to reimbursement of income taxes totaling
$59,031 from Yanina. Mark then filed a request for order, asking the
trial court to adopt Addleman’s findings and award him just over
$59,031 on the tax reimbursement issue.
In its order after the July 30, 2019 hearing, the trial court
tentatively adopted the conclusions set forth in Addleman’s report with
the caveat that if Yanina wanted Brinig to evaluate the tax issue
addressed by Addleman, Yanina must pay Brinig to complete that
evaluation within 30 days of July 30, 2019. If Brinig did not complete
his report within 30 days, the Court will “adopt[ ] the recommendations
of Ms. Addleman and judgment of $59,031 against [Yanina] in favor of
[Mark] shall enter.”
Yanina did not timely comply with the court’s directive; rather,
she filed a response stating that the conclusion she owed Mark almost
$60,000 for taxes was an “outrageous abuse of accounting.” She also
asked the trial court to sanction Mark in the amount of $60,000 for
“lying and delaying this case.” Mark opposed Yanina’s requests. In its
13
November order, the court stated that it provided a mechanism for
resolving the income tax issue at the July 30, 2019 hearing and that
“the order of July 30, 2019 controls the tax issue.”4
B. Analysis
Yanina contends that the bolded sentence in the court’s instructions
commanding that funds deposited into a joint account be treated as
community property income and that each party claim half of such deposits
on their separate property return, constitutes legal error because it created
taxable income where none existed.5 She argues that the transfer of money
by either her or Mark from one of their separate property accounts into a
joint checking or savings account is not taxable income under the Internal
Revenue Code (IRC) because each party already possessed the money in his
or her separate property account.
Yanina also argues that the Addleman report adopted by the trial
court, among other things, failed “to calculate each party’s separate tax
liability for any year” and “calculated each party’s taxable income
incorrectly.” She contends that the mechanism set forth by the trial court
should be vacated with instructions that “the trial court to provide a
4 Yanina moved to augment the record to include the reporter’s
transcripts for the July 30 and November 4, 2019 hearings. Mark notes
that these hearings took place after Yanina filed her notices of appeal,
but does not object to including them in the record in this proceeding
because they provide additional information regarding the issues on
appeal. We denied the motion without prejudice to the filing of a
request for judicial notice because the materials postdate the appealed-
from judgments. On February 19, 2021, Yanina filed another motion to
augment, alternatively, to take judicial notice of the same transcripts.
In the interest of justice, the motion to augment is granted.
5 We refer to the bolded sentence as the challenged provision.
14
replacement that is free of legal error, more clear and hopefully less
susceptible to abusive manipulation.”
Mark disagrees with Yanina’s interpretation of the challenged
provision. He contends that the court did not “create taxable income” for
either party within the meaning of the IRC because the parties already paid
their taxes. Rather, he asserts that the court merely established a process to
resolve whether the parties complied with the PMA. Ultimately, Mark
submitted expert evidence on the subject; Yanina submitted nothing; and the
trial court adopted Addleman’s report in an order entered after the April
judgment. Mark contends that Yanina’s multiple challenges to Addleman’s
report are moot because she did not appeal the “postjudgment” order
adopting Addleman’s report.
Paragraph 14 of the PMA provided that, if the parties filed a joint
income tax return, the parties were required to “pay the percentage of
the joint tax that he or she would have paid of the total tax that would
have been paid by both if each had filed a separate tax return and paid
their own taxes on such returns.” Consistent with this paragraph, the
court’s August 2018 “[j]udgment on reserved issues” ordered that
separate returns be prepared to ascertain what each parties’ separate
tax liability would have been and, if either party failed to pay their
representative share of the taxes, to reimburse those taxes to the
community. The court required that the reimbursed taxes be deposited
into the joint account, and the challenged provision ordered that these
funds “be treated as community property income and each party shall
claim one-half of those funds on their separate property return. . . .”
Yanina contends that the trial court committed legal error by requiring
that reimbursed funds be treated as “community property income” to then be
15
reported on the parties separate property returns because it created taxable
income where none existed. We agree. The parties had already paid the
income tax. The only issue before the court was whether one of them paid too
much (according to the provisions of the PMA) and was, therefore, entitled to
reimbursement. Accordingly, the order is erroneous in two respects, by
(1) mischaracterizing any reimbursement as “income” when it is not, and (2)
directing such income be reported on separate property returns when the
parties had already filed a joint return paying the tax.
Taxable income is defined as “gross income minus the deductions
allowed by this chapter. . . .” (26 U.S.C. § 63, subd. (a).) Gross income is
defined as “all income from whatever source derived, including (but not
limited to) the following items: (1) Compensation for services, including fees,
commissions, fringe benefits, and similar items; (2) Gross income derived
from business; (3) Gains derived from dealings in property; (4) Interest;
(5) Rents; (6) Royalties; (7) Dividends; (8) Annuities; (9) Income from life
insurance and endowment contracts; (10) Pensions; (11) Income from
discharge of indebtedness; (12) Distributive share of partnership gross
income; (13) Income in respect of a decedent; and (14) Income from an
interest in an estate or trust.” (26 U.S.C. § 61, subd. (a).)
Reimbursed taxes, essentially a transfer of money between spouses,
does not qualify as taxable income under the IRC. Accordingly, the trial
court erred by treating reimbursed taxes as community property income and
requiring that the parties then report this “income” on separate property
returns. Mark seeks to avoid this conclusion by arguing that the court did
not create taxable income because the parties already paid their taxes for
every year of their marriage. This argument, however, ignores that portion of
the court’s order requiring that reimbursed taxes “be treated as community
16
property income” and requiring that each party “claim one-half of those funds
on their separate property return.” This portion of the court’s order
anticipates that the reimbursed taxes be declared as taxable income on the
parties’ future separate tax returns.
Although Mark does not acknowledge this result in his respondent’s
brief, his counsel did so in a letter to Yanina. After setting forth the
challenged provision, the letter noted that Mark deposited “substantial”
funds into the parties joint account and that “[t]he Court’s order requires you
to accept, as community property income [and] claim one-half of that amount
on your separate return. The result of doing so creates a substantial tax
liability for you, which you must then reimburse to the community. The
circumstances do not, as you contend, result in any reimbursement to you.”
Thus, as Mark previously recognized, the challenged provision created
income and required that Yanina pay taxes on this income. The challenged
provision constitutes an error of law because reimbursed taxes constitute a
transfer between spouses that does not qualify as income under the IRC.
Accordingly, we vacate paragraph 32 of the April judgment and remand the
matter to the trial court for further proceedings regarding the income tax
issue.
Yanina also challenges the Addleman report adopted by the trial court
arguing, among other things, that Addleman failed to follow the court’s
directions set forth in paragraph 32 of the April judgment. Because
Addleman purportedly followed the court’s directives in paragraph 32 of the
April judgment in preparing her report we vacate that part of the August 30,
2019 order after hearing adopting Addleman’s report and that portion of the
November 4, 2019 order after hearing regarding the income tax issue. This
17
moots Yanina’s remaining arguments regarding the correctness of
Addleman’s report.
Nonetheless, for the benefit of the parties on remand, we note that
paragraph 32 of the April judgment required that a tax preparer “prepare
separate returns and ascertain what each parties separate tax liability would
have been.” Addleman’s report does not state that she followed this directive.
Rather, it recites that Addleman followed the instructions of Mark’s counsel
to “Determine if MARK is due a reimbursement from YANINA related to tax
payments made from 2009 to 2015.” In answering this question, Addleman
“relied upon historical financial information provided to [her] firm,” not
newly-created separate returns as directed by the trial court. Additionally,
Addleman’s report allocated the joint tax liability according to the
“percentage of taxable income after deductions” rather than basing it on
“what each parties’ separate tax liability would have been” as specified in the
PMA and directed by the trial court in the April judgment.
IV.
Recalculation of Plan Benefits
A. Defined Benefit Plan Basics
“A defined contribution plan provides an individual account for
each participant in the plan. It provides benefits to a participant
largely based on the amount contributed to that participant’s account.”
(Internal Revenue Service (IRS), Publication 560: Retirement Plans for
Small Business (2011), p. 12.) “A defined benefit plan is any plan that
is not a defined contribution plan. Contributions to a defined benefit
plan are based on what is needed to provide definitely determinable
benefits to plan participants.” (Ibid.) To establish a defined benefit
18
plan, an enrolled actuary determines the funding levels. (IRS,
Choosing a Retirement Plan: Defined Benefit Plan (2020), p. 1.)
A defined benefit plan consists of three documents, the adoption
agreement, the basic plan document,6 and a trust document. “A ‘basic
plan document’ is the portion of a plan containing all the non-elective
provisions applicable to all adopting employers.” (IRS, Revenue Proc.
2005-16, Pt. I, § 4.03, p. 7.) “An ‘adoption agreement’ is the portion of
the plan containing the options that may be selected by an adopting
employer.” (Id. at § 4.04.) A “controlled group” is defined as “two or
more businesses which are owned 80 percent or more by five or fewer
shareholders or members, depending on the form of the entity.”
IRC section 415 limits the benefits that a qualified defined
benefit plan may provide. (26 U.S.C. § 415, hereinafter IRC 415.) To
qualify as a defined benefit plan, the plan must not pay benefits which
exceed the limitation of subsection (b) of IRC 415. (IRC 415(a)(1)(A).)
IRC 415(b)(1) provides that “[b]enefits with respect to a participant
[will] exceed the limitation of this subsection if, when expressed as an
annual benefit . . ., such annual benefit is greater than the lesser of—
(A) $160,000, or (B) 100 percent of the participant’s average
compensation for his high 3 years.”
B. Additional Background
MDNA established the “MDNA, Inc. Defined Benefit Pension
Plan” (the Plan) effective January 1, 2003, and amended the Plan on
January 1, 2012. On March 5, 2012, the parties approved the adoption
agreement and trust agreement. The adoption agreement had check
6 The basic plan document is also referred to in the record as the
“base plan document.”
19
boxes to define a participant’s compensation under the Plan. The box
checked by the parties defined compensation as “Wages, Tips and other
Consideration Box on Form W-2, . . . .”
MDNA also created the “MDNA, Inc. Retirement Trust” (the
Trust). The parties, as trustees of the Trust, had “exclusive authority,
discretion, and responsibility for the management and control of the
assets of the Trust Fund in accordance with the provisions of the
Plan. . . .”
MDNA retained Employee Benefits Consultants (EBC) as a third-
party administrator to provide actuarial services and prepare its
annual tax filings. Effective January 1, 2013, the Plan retained San
Diego Pension Consultants (SDPC) to replace EBC. SDPC received the
adoption agreement and the trust agreement from EBC. SDPC never
obtained the basic plan document.
The Plan assets consisted of two Schwab accounts, one for each
party. An enrolled actuary calculated the annual contributions to the
Plan under a formula. The parties accrued benefits under the Plan
based on several factors, including the benefit formulas in the basic
plan document, and the Plan participants’ age, compensation, and time
until retirement.
In August 2014, the parties in their capacity as directors of
MDNA, signed an agreement to terminate the Plan effective September
1, 2014. A benefit election form allows a participant to elect what form
of payment they would like to receive, such as a one-time lump sum or
an annuitized payment. In October 2014, the parties signed benefit
election forms showing a maximum lump-sum distribution of
$2,140,387 for Mark and $883,974 for Yanina. The parties also signed
20
substantial owner benefit waiver forms (waiver form). The purpose of
the waiver form is to waive benefits to the extent the Plan is
underfunded.7 This is done as a precaution because the actual amount
to be distributed is not known until the money is actually moved. In
the event of an underfunding the parties cannot obtain their maximum
benefits and must negotiate a resolution.
At the time of distribution, the Plan was underfunded and the
parties were required to waive benefits. James Peterson, the third-
party administrator for SDPC, testified that in an underfunding
situation the parties decide who is going to absorb how much
underfunding and stated that it is common to have the ultimate
distribution be in a ratio to the amounts listed as their maximum
amount. SDPC is not involved in this decision.
In calculating Mark’s benefit formula, SDPC considered Mark’s
self-employment income for years 2010, 2011, and 2012, which was his
highest compensation for three consecutive years. The Plan ultimately
paid $775,900 in benefits to Yanina and $2,056,000 to Mark. These
amounts equaled the balances in the two Schwab trust accounts.
Accordingly, Yanina waived $108,074 in benefits because this sum
constituted the difference between what her benefit formula was at the
time of distribution and the value of her earmarked Schwab account.
Yanina argued in her trial brief that the benefits received were
improperly calculated using compensation that did not match the
parties’ W-2 income from MDNA. As a result, Yanina claimed she was
shorted approximately $271,000 plus interest since Plan distribution.
7 When a defined benefit plan is underfunded the parties must
waive benefits or the company must contribute more money.
21
In her closing argument, Yanina specified that the dispute concerned
Mark’s “self-employed income.”
At trial, Mark’s expert witness testified regarding retirement
benefits and taxation of those benefits. Yanina’s expert witness
testified regarding defined benefit plan regulations and the data
utilized in calculating the parties’ Plan benefits.
The trial court rejected Yanina’s fraud claim and concluded that
Yanina did not meet her burden of proving that her Plan benefits were
improperly calculated. The court found that all Plan calculations were
done in conjunction with the different plan administrators including
the concept of backing into compensation,8 neither party directed the
Plan or the use of certain income. Without the basic plan document,
the court could not determine whether Mark’s sole proprietorship
income had been improperly included; thus, the court concluded that
Yanina had failed to prove her claim. The court noted that the Plan
operated under the premise that the contributions were legal and that
Mark’s sole proprietorship had adopted the Plan. The court also found
the parties agreed that contributions to the Plan would be 75 percent
for Mark and 25 percent for Yanina (the percentage breakdown) and
that Yanina never objected to the percentage breakdown contributions
to the Plan.
8 Backing into compensation involves an actuary calculating the
best way to allocate money between a pension plan and salaries to
achieve the desired retirement benefit amount. Peterson and both
experts testified that backing into compensation is very common.
22
C. Analysis
Yanina claims the court erred in denying her request to recalculate the
Plan benefits because Mark’s sole proprietorship earnings were improperly
considered as compensation and eliminating these earnings would result in
higher benefits to her and reduce Mark’s benefits. Yanina first argues that
the Plan’s adoption agreement defined compensation to be W-2 income from
MDNA and excluded Mark’s sole proprietorship earnings. She claims that
the missing basic plan document was irrelevant to whether Mark’s sole
proprietorship income was properly included to calculate the Plan benefits.
We agree with the trial court’s conclusion that Yanina failed to prove that
Mark’s sole proprietorship income should have been excluded in calculating
the Plan benefits.
The parties’ adoption agreement defined compensation under the Plan
as “Wages, Tips and other Consideration Box on Form W-2, . . . ” Yanina’s
expert witness testified that gross wages from only MDNA as reflected on
W-2 forms could be considered as compensation under the Plan. He also
stated that the missing basic plan document contained “boilerplate”
provisions and that the adoption agreement contained all discretionary
provisions.
Mark’s expert witness disagreed. She did not believe that only W-2 tax
forms could be considered under the adoption agreement for compensation.
She opined that Mark’s earned income could properly be considered under
the adoption agreement and that earned income could be included when
calculating Mark’s benefit formula. She testified that SDPC properly
included Mark’s self-employment income for tax years 2010 to 2012 as
compensation under IRC 415 when calculating the parties’ final benefits and
23
that every reputable third-party plan administrator would include earned
income in such a circumstance.
Mark’s expert explained that IRC 415 provides that benefits must be
calculated from compensation received from all members of a controlled
group of corporations. She stated:
“So what that means is if there are two corporations
that are owned similarly—so if Mark Adler owned
two corporations, then you must include his
compensation from both corporations when
calculating his benefits under [IRC] 415. In this
particular case, Mark Adler, as an individual, in tax
terms, is called Mark Adler, a sole proprietorship. He
himself has self-employment income. So—and that’s
the same as earned income. Even though it came
from WebMD, Inc., he was paid as an independent
contractor. And, therefore, he is considered self-
employed for purposes of that income. And so as an
individual, a sole proprietor, he owned a hundred
percent of himself, of his own business. And he
owned a hundred percent of MDNA because there is
attribution between spouses, which means he is
deemed to own everything his spouse owns. So,
therefore, he owns a hundred percent of his sole
proprietorship and a hundred percent of MDNA.
And, therefore, both sources of income—so the income
on his self-employment tax return and the income
from MDNA must be—or can be considered for
compensation under the [IRC] 415 limits.”
Mark’s expert further explained that the basic plan document cannot
be inconsistent with the IRC. “When you read [IRC] 415 and its regulations
with specific reference to [IRC] 414, all compensation from controlled group
members must be included when determining the [IRC] 415 limit.” Thus, she
concluded that Mark’s sole proprietorship income must be included along
with W-2 tax form income from MDNA. She stated that Yanina’s expert
24
witness did not consider a controlled group for a sole proprietorship. He only
considered WebMD and whether that would be a controlled group. She
further explained that the sole proprietorship and MDNA are in a controlled
group and that the definition of compensation is expanded when there is a
controlled group. Accordingly, Mark’s earned benefit was not limited to just
the benefit calculated using his compensation from MDNA, but it also
included Mark’s sole proprietorship compensation.
Peterson explained that the adoption agreement only allows a person to
check a box, such as “ ‘I am choosing W-2.’ ” The basic plan document might
then list a number of items that could be considered W-2 compensation. He
stated that W-2 income refers to generic IRS defined type of compensation
and is not limited solely to looking at a W-2 form. With respect to the Plan,
Peterson stated that SDPC does not take the term “ ‘W-2’ ” to mean just
wages or salary; rather, the term is a generic reference to the type of
compensation chosen. Thus, the adoption agreement and basic plan
document needed to be consulted to determine if the definition of
compensation in the Plan was limited to W-2 compensation. SDPC, however,
never received the basic plan document.
Peterson testified that the basic plan document and adoption
agreement work together and that the basic plan document “absolutely”
addressed compensation, stating “[i]t is going to have an expanded definition
of what the terms used in the adoption agreement refer to or are bound by.”
Peterson explained that the adoption agreement and basic plan document
contain a combination of different potential components that could otherwise
be considered compensation for plan purposes. Peterson agreed it “could be a
possibility” that the Plan might use only W-2 income to calculate the pension
benefit “depending on the full definition” of compensation. Accordingly, if
25
SDPC had the basic plan document, Peterson expected to see clarification of
other components of compensation either included or excluded from the
“ ‘term W-2 compensation.’ ”9
In summary, the testimony of Mark’s expert witness and Peterson
support the trial court’s conclusions that no error occurred by including
Mark’s sole proprietorship income in calculating the Plan benefits and that
the missing basic plan document was fatal to Yanina’s position.
Yanina next contends that Mark’s sole proprietorship could not
contribute to the Plan without formally adopting it, which it did not do. On
this issue, the trial court agreed that Mark’s sole proprietorship did not sign
the adoption agreement, but noted that the experts disagreed as to whether
this was required under the IRC. The evidence supports this finding.
Mark’s expert witness disagreed with the testimony of Yanina’s expert
witness that, to permissibly include income from another company, the other
company needed to sign a formal adoption of the Plan, sign the adoption
agreement, or be included on the section of the adoption agreement that said
controlled group. Rather, where, as here, a controlled group member is a sole
proprietorship—“you do not have to formally sign the adoption agreement in
order to have your compensation included for [IRC] 415 plan purposes. [¶]
Instead, it’s just the action of a sole proprietor. He doesn’t have to have a
board resolution. He just has to say, I’ll have my earned income included.
9 During trial, Yanina’s counsel attempted to authenticate a
generic basic plan document that her expert witness obtained from the
document’s creator. Yanina’s expert witness believed that the basic
plan document he received was consistent with the document the
parties used in 2012. However, questioning by Mark’s counsel revealed
that the adoption agreement the parties executed could only be used
with basic plan document number “01” and the generic basic plan
document that Yanina’s expert obtained was number “02.”
26
And by the documentation that I reviewed, the fact that his earned income
was included in the calculations through the advice of all the experts was
enough to satisfy me that the sole proprietorship had adopted and agreed to
have the earned income included.” The trial court found the testimony of
Mark’s expert witness to be more credible and it is not within our province to
reassess witness credibility or reweigh the evidence.
Yanina also argues that no agreement existed to allocate Plan benefits
75 percent for Mark and 25 percent for Yanina. Even if there were, Yanina
claims this percentage breakdown would have violated the Plan terms and
jeopardized its tax-advantaged status.
Substantial evidence supported the trial court’s conclusion that the
parties agreed to the percentage breakdown.10 Based on the documentation,
the parties’ actions from 2003 to 2014, and the final benefit distribution,
Mark’s expert opined that the parties had an understanding from the outset
of the Plan that (1) the benefits would not be equal and (2) the ratio would be
roughly three-to-one. Documents showed that the parties roughly split their
contributions to the Plan 75 percent and 25 percent. The parties’
contributions into the Plan were roughly in the ratio of three-to-one, and the
benefits received by the parties at final distribution were consistent with this
formula. Yanina, as a Plan trustee, had access to the Plan’s two Schwab
accounts during the marriage. One of her fiduciary duties as a trustee was to
ensure the accuracy of any contributions to the Plan.
When asked if the three-to-one ratio should also exist where there is an
underfunding, Mark’s expert witness explained that the rough three-to-one
10 Yanina discussed none of this evidence in her opening brief in
violation of her duty to discuss and analyze all evidence. (Doe, supra,
177 Cal.App.4th at p. 218.)
27
ratio existed in the ultimate dollar amount received and that each party had
simply waived down to the assets in their Schwab accounts and that the
assets in the Schwab accounts were roughly three-to-one. She viewed this
fact pattern as being consistent with the parties’ understanding over the
years. Notably, she saw no documentation before 2014 where Yanina
questioned her compensation figures or benefit calculations and was unaware
of any complaints by Yanina during the existence of the Plan regarding the
benefit calculations.
We also reject Yanina’s argument that this percentage breakdown
would have violated the Plan terms and jeopardized its tax-advantaged
status. In support of this argument, Yanina relies on IRS documents to
conclude that any agreement by the parties would have violated their
fiduciary obligations as trustees of the Trust. Yanina, however provided no
analysis showing how these documents support her arguments. “Mere
suggestions of error without supporting argument or authority other than
general abstract principles do not properly present grounds for appellate
review.” (Department of Alcoholic Beverage Control v. Alcoholic Beverage
Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078.) Accordingly, we
treat the contention as waived. (Ibid.)
Finally, Yanina claims that she never waived her right to recalculation
of the Plan benefits and argues that the trial court erroneously relied on
possible adverse tax consequences as a reason to deny her claim for
recalculation. Because we reject Yanina’s contention that she is entitled to
recalculation of the Plan benefits, we need not address these contentions.
28
V.
Salary Reimbursement
A. Additional Background
In their PMA, the parties agreed that all “earnings, income,
employee benefits, and retirement benefits resulting from Yanina’s
personal services, skill, effort and work during the marriage” shall
remain her separate property. Mark specifically acknowledged “that,
except for this Agreement, the earnings and income resulting from
Yanina’s personal services, skill, effort and work throughout their
marriage would be community property, and, that by this Agreement,
such earnings and income during their entire marriage are constituted
her separate property.”
The parties expressed the intent to create joint checking and
savings accounts and agreed that “[f]unds deposited in those accounts
shall be community property” and neither party had “any right to be
reimbursed for funds he or she deposits into those accounts.”
Regarding living expenses, the parties agreed:
“7.1 The parties, in entering into this Agreement,
have not created an exact formula by which each
party shall contribute to their mutual living
expenses. However, each party may contribute to the
joint checking account provided for in Paragraph 6
above from which the mutual living expenses may be
paid. So long as Yanina is not employed, it is
anticipated Mark shall provide the monies for
the parties’ mutual living expenses.
“7.2 The parties agree that when either of them
contributes any of his or her separate income or
property, as defined in this Agreement, to their
family living expenses in order to achieve or maintain
the standard-of-living desired by them, the party so
29
contributing shall have no right thereafter to seek
reimbursement for any part of such contributions
unless otherwise hereafter expressly agreed between
them in writing and that such contribution shall not
otherwise affect the terms and conditions of this
Agreement.” (Bolding added.)
In her trial brief, Yanina sought reimbursement for her separate
property wages that Mark placed into his account. Yanina alleged that
“[Mark] controlled and usurped [her] wages and corporate profits by . . .
exercising dominion over her separate property wages for spending on
mutual expenses which he was supposed to fund per [the] PMA
[Paragraph] 7.1.” Yanina requested an “accounting and reimbursement
of [her] separate property wages earned from 2003 to 2013 with
prejudgment interest.”
Brinig determined that Yanina received total compensation of
$447,000 during the marriage. Of the $447,000 gross, he concluded
that $141,800 was deposited into community accounts, $36,286 was
deposited by someone into Mark’s separate account, and $234,000 was
not traceable into separate property accounts. Regarding the
untraceable money, Brinig told to court to not “infer anything
suspicious” and stated that he simply did not have the detailed payroll
records needed to trace this money.
Regarding the $36,286 deposit into Mark’s separate account,
Brinig found that two days after this deposit, $10,000 was removed
from Mark’s separate account and deposited into a joint account; 20
days later, another $20,000 was removed from Mark’s account and
deposited in a joint account; and two weeks after that, another $10,000
was removed and deposited into the couple’s joint account.
30
The court’s statement of decision noted Yanina’s testimony that
her MDNA salary was never placed into her separate property accounts
and that she sought $477,000 plus 10 percent prejudgment interest for
all wages paid to her during the time she worked for MDNA. The court
found Yanina’s position to be “unreasonable” because it “assume[d] that
she had no obligation to contribute to the community expenses
including her children’s living expenses.” The court concluded that on
December 31, 2007, $36,286.67 of Yanina’s wages had been deposited
into Mark’s separate property account, but shortly thereafter, Mark
transferred $40,000 to the parties’ joint accounts. The court found this
transaction to be “de minimis.” Regarding the remainder of Yanina’s
allegedly missing salary, the court rejected Yanina’s testimony that she
had no control over the joint accounts and that Mark directed that her
paychecks be deposited into the parties’ joint accounts.
B. Analysis
Yanina argues that denial of her MDNA salary reimbursement claim
defied reason and is unsupported by any substantial evidence. We conclude
that substantial evidence supported the denial of Yanina’s reimbursement
claim.
After noting that Yanina received no child support during the entirety
of the marriage, the court rejected Yanina assertion that she had no
“obligation” to contribute to community expenses. The court found that
Yanina’s position unreasonably assumed she need not contribute to
community expenses which included her children’s living expenses, college
tuition of at least $150,000, a Jaguar given to her son, funds contributed to
her defined benefit plan, or any of her expenses.
31
Yanina first argues the trial court erred because she had no
“obligation” under the PMA to contribute to community expenses. The term
“obligation” “has many wide and varied meanings. It may refer to anything
that a person is bound to do or forbear from doing, whether the duty is
imposed by law, contract, promise, social relations, courtesy, kindness, or
morality.” (Black’s Law Dict. (11th ed. 2019) p. 1292, col. 1.) Thus, the word
is ambiguous. As a threshold matter, the court did not find that Yanina had
a “legal,” “contractual,” or “promissory” obligation to contribute to the parties’
community expenses. Accordingly, the court necessarily found that Yanina’s
obligation was a matter of social relations, courtesy, kindness, or morality.11
In their PMA, the couple agreed as follows regarding their living
expenses, “each party may contribute to the joint checking account provided
for in Paragraph 6 above from which the mutual living expenses may be paid.
So long as Yanina is not employed, it is anticipated Mark shall provide the
monies for the parties’ mutual living expenses.” (Italics added.) The italicized
language shows that although Yanina had no contractual obligation under
the PMA to contribute to community expenses, the couple expected that if
employed during the marriage, she might voluntarily contribute to mutual
living expenses.
It is undisputed that Yanina contributed to the couple’s mutual living
expenses. Yanina testified that MDNA was her only paid employment during
11 A party may file objections to a proposed statement of decision.
(Cal. Rules of Court, rule 3.1590(g).) Here, the court’s proposed
statement of decision and statement of decision contained the same
language regarding Yanina’s “obligation” to contribute to community
expenses. Although Yanina objected to the court’s proposed statement
of decision, she never sought clarification of the meaning of this word.
(Code Civ. Proc., § 634 [parties have a duty to bring any ambiguities in
the statement of decision to the trial court’s attention].)
32
the marriage. The court’s expert determined that Yanina received total
compensation during the marriage of $447,000 and that $141,800 of this
amount was deposited into community accounts. The court’s expert could not
trace $234,000 of Yanina’s total compensation into separate property
accounts. Accordingly, we will assume that these funds were also deposited
into the couple’s joint accounts.
The critical question is whether Yanina voluntarily deposited these
funds into the couple’s joint accounts or whether Mark forced her to do so.
On this issue, the trial court rejected Yanina’s testimony that she had no
control over the joint accounts and that Mark directed that her paychecks be
deposited into the parties’ joint accounts. Substantial evidence supports this
conclusion.
Yanina argues she had no control over the joint accounts, but cited no
evidence supporting this assertion and we have no obligation to search the
record looking for such evidence. (Grant-Burton, supra, 99 Cal.App.4th at
p. 1379.) In contrast, Mark testified that Yanina had “complete” access to the
joint account statements during the marriage, including online access and
that she reviewed the accounts “regularly.” He estimated that Yanina wrote
over 95 percent of the checks during the marriage.
Mark testified that Yanina was MDNA’s CEO and that she handled
the check ledger for the corporation. She also set up the payroll service,
including its distribution and choose the account to which her paycheck was
deposited. Mark denied Yanina’s claim that he required her to deposit her
MDNA paychecks into a joint account.
Yanina admitted that Mark placed his salary into their joint checking
account to pay day-to-day expenses for them and their four children. During
the divorce she discovered that her MDNA paychecks were never deposited
33
into her personal accounts. Instead, her paychecks were deposited into the
couple’s joint checking account. Regarding her MDNA salary, Yanina
testified:
“I did not make a decision where it was being
deposited. I actually didn’t really know where it
went. And nobody asked me whether I agree that it
would be deposited into the joint account. [¶] My
understanding was that Mark is doing the best he
can to keep the company operational and that
whatever is going to be of benefit will be divided
equal.”
Yanina’s testimony shows she did not know where her MDNA
paychecks were deposited and did not learn they had been deposited into the
couple’s joint accounts until the divorce. Thus, according to Yanina, Mark did
not force her to deposit her paychecks into joint accounts and she did not
voluntarily do so, but rather, over the course of the marriage, she simply did
not know where her paychecks went.12
The court also concluded that $36,286 of Yanina’s salary had been
deposited by someone into Mark’s separate account, but found this “de
minimis.” The record supports this conclusion. The court’s expert noted that
12 The court disbelieved Yanina’s testimony that she had no control
over the parties’ joint accounts and that Mark directed that her
paychecks be deposited into the joint accounts. Yanina asserts this
conclusion necessarily implies that she willingly allowed, or
affirmatively chose, to deposit her paychecks into either a joint account
or into one of Mark’s separate property accounts. She contends this
implied finding is unreasonable and incredible.
The court found neither party credible. The court’s conclusion
regarding Yanina’s credibility, however, does not “necessarily” imply
that she voluntarily chose to not deposit her paychecks into her
separate accounts. Rather, as we indicated, Yanina testified that she
did not know where her MDNA paychecks were deposited.
34
two days after this deposit, $10,000 was removed from Mark’s separate
account and deposited into a joint account; 20 days later, another $20,000
was removed from Mark’s account and deposited in a joint account; and two
weeks after that, another $10,000 was removed and deposited into the
couple’s joint account.
In a confusing argument, Yanina asserts that the trial court committed
legal error by denying her MDNA salary reimbursement claim because she
made contributions to the Plan from her total wages and received a $775,900
payout from the Plan in 2014. The portions of the statement of decision cited
by Yanina to support this contention do not support her assertion that the
trial court denied her salary reimbursement claim based on her subsequent
Plan payout. Rather, as we discussed, the court rejected her reimbursement
request because the court did not believe her claim that Mark directed that
her salary be deposited into the parties’ joint accounts.
In summary, the record supports the trial court’s conclusions and we
decline to second-guess the trial court’s credibility findings.13 (Lenk v. Total-
Western, Inc. (2001) 89 Cal.App.4th 959, 968 [reviewing court must defer to
the trier of fact’s credibility determinations].)
13 We acknowledge Mark’s assertion that Yanina’s MDNA wages
were actually his property because they existed due to his earnings.
This contention, however, does not impact our analysis of this issue.
35
DISPOSITION
The appeal is dismissed. Let a peremptory writ of mandate issue
vacating: (1) paragraph 32 of the court’s April judgment addressing income
taxes; (2) that portion of the August 30, 2019 order after hearing adopting
Addleman’s report; and (3) that portion of the November 4, 2019 order after
hearing regarding the income tax issue. The matter is remanded to the trial
court for further proceedings on the income tax issue. Each party is to bear
his or her own costs in this proceeding. OR Respondent is entitled to his
costs.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DATO, J.
36