Marriage of Khan CA3 ( 2021 )

Filed 9/29/21 Marriage of Khan CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(San Joaquin)
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In re the Marriage of RIAZMIN and RIYAZ AHMED C092085
KHAN.
RIAZMIN KHAN, (Super. Ct. No.
STAFLDWC20180001201)
Respondent,
v.
RIYAZ AHMED KHAN,
Appellant.
Riyaz Ahmed Khan (Appellant) appeals from a trial court “judgment on submitted
issues,” wherein the trial court resolved numerous issues related to dissolution of the
marriage between Appellant and Riazmin Khan (Respondent). On appeal, Appellant
contends the trial court erred in finding the parties’ date of separation to be in February
2017, and in rejecting an interspousal transfer deed transferring the marital community’s
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interest in real property to Appellant as his sole and separate property. We find
substantial evidence in the record to support both of these decisions.
Appellant also contends the trial court abused its discretion by failing to “condemn
racism in the legal system.” The record does not support Appellant’s claim. We will
affirm the judgment of the court.
I. BACKGROUND
The parties were married on September 22, 2005. In 2017, Respondent filed a
marital dissolution petition alleging the date of their separation was February 12, 2017.
Appellant alleged their date of separation was several months later, in December 2017.
The parties litigated this issue at trial.
A. Trial
At trial, Respondent testified that on February 12, 2017, Appellant told her to get
out of the family home, it did not belong to her. She did not leave because she could not
afford to; however, she did move into a bedroom separate from Appellant. Several
months later, on June 3, 2017, Appellant tried to come into Respondent’s bedroom. She
refused to let him in. He accused Respondent of being unfaithful to him and threatened
to shoot her if she did not “tell him the truth.” He then sexually assaulted her. The next
day, as Respondent was trying to leave for their child’s soccer tournament, Appellant said
to their child that Respondent was a “bitch.” He told the child that he no longer wanted
her to play soccer and he wanted the child to burn her soccer cleats. Respondent said she
would drive the child to the soccer tournament. In response, Appellant got a
sledgehammer and smashed the windshield on Respondent’s car.
Appellant was subsequently arrested and in September 2017, he was convicted of
willful infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)). He was
sentenced to five years felony probation. Respondent also obtained an emergency
protective order, protecting her and the parties’ child from Appellant.
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Respondent continued to live in the family home until December 2017 because she
did not have enough money to leave. During that time, however, she and Appellant lived
in separate bedrooms and had no consensual sexual contact. During that time, they also
went to a family wedding together (along with their child and Respondent’s mother) and
attended their child’s soccer events together. Respondent’s intent to leave the marriage,
however, did not wane, and she believed her conduct reflected that intent.
While still living in the family home, Respondent had no access to money.
Respondent’s paychecks were deposited directly into the parties’ joint account and
Appellant would immediately move the money to another account. If Respondent needed
to buy anything, Appellant would give her cash or he would go with her and pay for the
purchase himself. Respondent never took money out of their joint accounts, she believed
Appellant would “hit” her if she did. Respondent, who during the marriage had earned a
degree in business administration, also was not permitted to ask questions about the
parties’ finances. Respondent thus had to terminate the direct deposit function on her
paycheck and borrow money from friends in order to acquire enough money to leave. By
December 2017, Respondent had accumulated enough money to move out, she took her
mom and the parties’ child with her.
Characterization of the family home as community or separate property was also
an issue at trial. The family home was purchased in 2010, though Respondent was not
present for the transaction. The deed to the house, dated April 27, 2010, indicated
Appellant took title to the home as “a married man as his sole and separate property.”
Respondent had not seen the April 27, 2010, deed until it was produced during the
discovery period prior to trial.
On the issue of the family home, there was also an interspousal transfer deed
executed by Respondent on May 25, 2010, and notarized by a notary public. Respondent
remembered Appellant taking her to sign a document, but she did not remember that this
was the document she signed. She did remember asking Appellant, in Hindi, what she
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was signing and he told her, “ ‘You as a wife, have full rights to the house.’ ” He did not
tell her that by signing this document, legally, the house would be his and his alone.
Appellant, on the other hand, testified that when he bought the family residence, he
“offered her to be part of the property” but she “declined it.”
B. Judgment
Following trial, the court issued a lengthy written “Judgment on Submitted
Issues.” The court ruled the parties’ date of separation was “February [1]2, 2017.”1 In
support of its ruling, the court found that in February 2017, Respondent moved out of the
parties’ bedroom and the parties began living “separate lives.” The court noted the
parties attended “one or two family weddings” with their child but “they did not do
anything to hold themselves out as a married couple, did not attempt to reconcile, did not
attend counseling, and did not share a bedroom.”
The court also found that Respondent had no experience with real property and
Appellant was solely responsible for the parties’ finances. Respondent did not
understand that by signing the interspousal transfer deed, she was transferring her interest
in the family home to Appellant; this was never explained to her. The court determined
there was “no doubt” that when Respondent signed the interspousal transfer deed, “she
did not do so with full knowledge of her rights.”
The court noted the family home was purchased with community property, and
there was no claim that separate property contributions were made. Appellant “provided
no testimony to support a legal finding that the house is separate property.” Thus, the
court concluded, the family home was the community property of the parties.
1The judgment includes a clerical error identifying the date of separation as February 2,
2017, rather than February 12, 2017.
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II. DISCUSSION
A. Date of Separation
Appellant contends the trial court “abused its discretion” in finding February 2017,
to be the parties’ date of separation. He argues the weight of the evidence established
that they continued to hold themselves out as a married couple until December 2017. We
disagree.
1. Legal Principles
Spouses are legally separated if (1) at least one spouse entertains the subjective
intent to finally end the marriage, and (2) there is objective evidence of conduct
demonstrating that intent. (Fam. Code, § 70; In re Marriage of Manfer (2006)
144 Cal.App.4th 925, 930.) “Simply stated, the date of separation occurs when either of
the parties does not intend to resume the marriage and [their] actions bespeak the finality
of the marital relationship.” (In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 451.)
Living in separate residences is no longer an indispensable prerequisite to establish the
date of separation. (Fam. Code, § 70, subd. (c).)
We review a trial court’s decision on the parties’ date of separation for substantial
evidence, indulging all legitimate and reasonable inferences to uphold the trial court’s
decision. (In re Marriage of Lee & Lin (2019) 41 Cal.App.5th 698, 702.)
2. Analysis
Between February 2017 and December 2017, the parties’ ceased to maintain the
habits and appearance of a married couple. (See In re Marriage of Lee & Lin, supra,
41 Cal.App.5th at p. 702.) In February 2017, Appellant told Respondent to get out of the
family home. Lacking the resources to leave, Respondent moved into a separate
bedroom, where she remained until December 2017, when she marshalled the resources
to move into her own place, and the parties never again had consensual sexual contact.
(See In re Marriage of von der Nuell (1994) 23 Cal.App.4th 730, 737.)
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Additionally, other than a family wedding or two, which they attended with their
child and Respondent’s mother, Appellant and Respondent did not attend social functions
together. (See In re Marriage of Baragry (1977) 73 Cal.App.3d 444, 447.) There also
was no evidence they vacationed together, went on a date, or participated in counseling in
an effort to reconcile after February 2017. (Ibid.)
This was not, as Appellant suggests, a couple that was simply having a rough
patch. From February until December 2017, Respondent’s intent to leave the marriage
never faltered. Thus, on this record, we find the evidence sufficient to sustain the trial
court’s finding that the parties’ date of separation was in February 2017.
B. The Family Residence
Appellant further contends the trial court abused its discretion in finding the
family residence to be community property. We disagree.
1. Legal Principles
“Except as otherwise provided by statute, all property, real or personal, wherever
situated, acquired by a married person during the marriage while domiciled in this state is
community property.” (Fam. Code, § 760.)
“A rebuttable presumption of undue influence arises when one spouse obtains an
advantage over another in an interspousal property transaction.” (In re Marriage of
Mathews (2005) 133 Cal.App.4th 624, 630; see In re Marriage of Haines (1995)
33 Cal.App.4th 277, 297 (Haines); Fam. Code, § 721.) “The presumption of undue
influence is regularly applied in marital transactions in which one spouse has deeded
property to the other, as in Haines. In such cases, it is evident one spouse has obtained an
advantage—the deeded property—from the other.” (In re Marriage of Burkle (2006)
139 Cal.App.4th 712, 730.)
“ ‘ “When a presumption of undue influence applies to a transaction, the spouse
who was advantaged by the transaction must establish that the disadvantaged spouse’s
action “was freely and voluntarily made, with a full knowledge of all the facts, and with a
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complete understanding of the effect of’ the transaction.” [Citation.]’ (In re Marriage of
Lund (2009) 174 Cal.App.4th 40, 55.) The advantaged spouse must show, by a
preponderance of evidence, that his or her advantage was not gained in violation of the
fiduciary relationship. (Haines, supra, 33 Cal.App.4th at p. 296.) ‘ “The question
‘whether the spouse gaining an advantage has overcome the presumption of undue
influence is a question for the trier of fact, whose decision will not be reversed on appeal
if supported by substantial evidence.’ ” [Citation.]’ (Lund, at p. 55.)” (In re Marriage of
Fossum (2011) 192 Cal.App.4th 336, 344.)
2. Analysis
There can be no doubt that Appellant was advantaged by Respondent signing an
interspousal transfer deed, transferring her interest in the family home to Appellant. It
was, therefore, Appellant’s burden at trial to overcome the presumption that Respondent
signed that document as a result of undue influence. (Haines, supra, 33 Cal.App.4th at
p. 296.) There is substantial evidence he failed to overcome that presumption. (In re
Marriage of Fossum, supra, 192 Cal.App.4th at p. 344.)
Appellant controlled the parties’ finances, to the point where Respondent feared
physical violence if she took money out of their accounts on her own. Appellant did not
permit Respondent to ask questions about their finances. And, although they were
looking for a home together, Appellant ultimately purchased the family home when
Respondent was not present.
Appellant took title to the home as a married man but as his “sole and separate
property,” but never shared those documents with Respondent. Appellant subsequently
took Respondent to sign an interspousal transfer deed, transferring all her interest in the
home to Respondent; she did not understand what she was signing. And, while
Respondent may be smart and educated, that is not, as Appellant suggests, evidence that
she understood how an interspousal transfer deed works. Respondent even asked
Appellant, in Hindi, what she was signing. Rather than be honest with her, Appellant
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told Respondent not to worry, that she “had full rights to the house.” Obviously, this was
not true.
In sum, on this record, we find sufficient evidence that Appellant failed to
overcome the presumption of undue influence on Respondent in executing the
interspousal transfer deed. As a result, there is sufficient evidence to sustain the trial
court’s decision to characterize the family home as community property.
C. Failure to Condemn Racism
Appellant contends “the trial court abused its discretion when it failed to condemn
racism in the legal system.” The record does not support his contention. The comment
that Appellant attributes to Respondent’s trial counsel was made outside the presence of
the court. And, when Appellant’s concern was brought to the court’s attention, the court
addressed the issue directly with counsel, and counsel accepted the court’s direction
without incident or argument. Thus, there is no evidence on this record, that the court
failed to act to preserve the integrity and impartiality of the judicial system. (See Pinter-
Brown v. Regents of Univ. of Cal. (2020) 48 Cal.App.5th 55, 87.)
III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
ROBIE, J.
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