Marriage of Chyczewski CA4/3

Filed 8/28/20 Marriage of Chyczewski CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of LINGYUN JIA and
JACEK G. CHYCZEWSKI.
LINGYUN JIA CHYCZEWSKI,
G057124
Respondent,
(Super. Ct. No. 11D003110)
v.
OPINION
JACEK G. CHYCZEWSKI,
Appellant.
Appeal from a judgment of the Superior Court of Orange County, James L.
Waltz, Judge. Affirmed.
Law Offices of Marjorie G. Fuller and Marjorie G. Fuller; Snell & Wilmer,
Todd E. Lundell and Jing Hua for Appellant.
Kaufman Steinberg LLP and Stephen J. Kaufman; Law Offices of Gregory
R. Ellis; Gregory R. Ellis and Peter H. Gold for Respondent.
INTRODUCTION
This is a high-asset divorce case with a corresponding level of vitriol. The
underlying facts establish that Jacek (Jack) and Lingyun Chyczewski operated a flooring
business both before and during their marriage. By the time the case came to trial in
2017, they had been separated for six years. During the marriage, Jack and Lingyun
worked extremely hard to build up the business and to make it the premier flooring
company on the “Tile Mile” in Anaheim. Nevertheless, when it came time to divide the
marital estate, Jack maintained it was all his.
Unquestionably, Jack owned the flooring business before marriage. The
court’s task was to determine whether and by how much the value of the business
increased during the marriage owing to community efforts. Likewise, the court had to
decide whether several pieces of real estate purchased during the marriage were
community property or Jack’s separate property.
The family court concluded that the increased value of the business during
the marriage was primarily due to community efforts and set an amount for this value,
with the remainder as Jack’s separate property. It also determined that the funds used to
purchase the real estate were commingled funds and thus the real estate was community
property. Finally, the court made a long-deferred determination that Lingyun was
entitled to retroactive spousal support. In addition, the court charged the community
$280,000 as its portion of the expenses incurred to clear one of the real properties of
inventory and debris after Jack sold it. Jack disputes all these decisions.
We affirm the judgment. The family court is entrusted with wide discretion
in a divorce case when choosing a method for valuing property. The court’s decisions
relating to the nature and value of the property seem to us to be supported by substantial
evidence, and we cannot find any abuse of discretion. Jack asks us, in effect, to retry the
2
case, substituting our judgment for the trial court’s, which we could not do even if that
judgment differed from the trial court’s.
1
FACTS
Jack and Lingyun’s marriage lasted a little over nine years. There were no
children.
It was undisputed that Jack owned a flooring business, Jolanta Tile, before
marriage. He imported materials used in the business – slate, ceramic tile, etc. – from
2
China. The parties agreed that the increase in business value would be calculated
between December 31, 2001, and December 31, 2010, dates closely approximating their
marriage and separation. The court valued the business at $814,000 as of the date of the
marriage, relying on evidence from Lingyun’s accounting expert. The value as of the
date of separation was $6,047,000, a number also supplied by Lingyun’s expert.
A central issue at trial was the extent to which Jolanta Tile had prospered
from the efforts of the community as opposed to outside factors such as a robust
economy. Lingyun contended community efforts were largely responsible for the
increase in value. Jack maintained the community efforts were minimal – and adequately
compensated; outside factors cause the increase in value. Jolanta Tile’s increased value
and the earnings, profits, and distributions made during the marriage from the business
were therefore his separate property.
Another issue was the disposition of six pieces of real estate or their
proceeds. During the marriage, Jack formed three limited liability companies, and each
company purchased a piece of property to be used in the business. In addition, Jack
purchased a residence in Yorba Linda in 2002, at which the couple lived during the
1
Jack’s appeal purportedly does not challenge the evidence or the trial court’s exercise of
discretion, but rather the court’s “legal conclusions and application of the law, and its refusal to follow the public
policy of California[.]”
2
Jack also owned some Chinese subsidiary companies that were involved in the flooring business.
For convenience, we will refer to all the premarriage companies as “Jolanta Tile.”
3
marriage. The residence was destroyed by fire in 2008. Jack also bought his mother a
condominium in Canada, which he sold when his mother died. Finally, before they were
married, Jack and Lingyun bought adjoining condos in Beijing. The source of the funds
to purchase all the properties was disputed.
After a 19-day trial, the court decided substantial community efforts
accounted for Jolanta Tile’s increased value. The court pointed to the punishing hours
both Jack and Lingyun devoted to the business. It also credited Lingyun, who is Chinese,
with playing a substantial part in its success, which depended in part upon transactions in
China. A trial exhibit showed the difference between the number of containers shipped
before and after Lingyun joined the business. She spoke Chinese; Jack did not. She was
familiar with Chinese customs and business methods, having worked in the industry for
years before marrying Jack. Perhaps most importantly, she was able to clean up after
Jack, whose business plan frequently involved delaying payments to Chinese suppliers or
“stiffing” them altogether. Lingyun was instrumental in placating the suppliers or finding
new ones upon which Jack could practice.
In keeping with his philosophy that everything was his, Jack had
commingled separate and community property funds in such a way that his separate
property was not traceable. The court found the community was inadequately
compensated for its efforts on behalf of Jolanta Tile during the marriage.
As to the real estate, the court determined that Jack had bought the marital
residence in Yorba Linda in 2002 using funds from the business. He took title to the
property as an unmarried man, even though he and Lingyun were married at the time.
The Canadian condo was also purchased with cash proceeds from the business. The three
properties owned by Jack’s limited liability companies had been purchased with
commingled funds and bank loans.
The Beijing condos had been purchased before the marriage. The court
awarded one each to Jack and to Lingyun. The court reasoned that Jack had bought his
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with his separate funds and Lingyun had bought hers with the salary Jack owed her (but
had not paid), which were her separate funds.
A site owned by one of Jack’s limited liability companies was used to store
Jolanta Tile inventory. The court charged the community with $280,000 of the expense
required for moving the inventory to another site after the property was sold. Jack
contends this amount was too low.
Finally, at the end of trial, the court awarded Lingyun $8,000 per month in
3
retroactive temporary spousal support between May 15, 2011, and March 14, 2016. Jack
disputes this award.
DISCUSSION
Jack has identified four main issues on appeal. He asserts that Jolanta
Tile’s increase in value was improperly calculated, and that the business and residential
properties purchased with the proceeds of the business are his separate property. He
disputes the amount the court allocated to the community for moving expenses. Finally,
he asserts that the court should not have awarded retroactive temporary spousal support
to Lingyun.
“The trial court’s findings on the characterization and valuation of assets in
a dissolution proceeding are factual determinations which are reviewed for substantial
evidence. [Citation.]” (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572.)
“‘In this regard, the court has broad discretion to determine the manner in which
community property is divided and the responsibility to fix the value of assets and
liabilities in order to accomplish an equal division. [Citations.] The trial court’s
determination of the value of a particular asset is a factual one and as long as that
determination is within the range of the evidence presented, we will uphold it on appeal.’
[Citation.]” (Ibid.).
3
Lingyun waived spousal support going forward.
5
A perusal of the court’s statement of decision reveals that the court based
its findings on the evidence presented at trial and specifically on the competing analyses
of the parties’ forensic accountants. It is replete with references to which party’s
evidence was more persuasive or whose testimony the court believed.
Because Jack bore the burden of proof on several issues, our substantial
evidence review of these issues differs from the standard we would use for an appealing
defendant, that is, someone who contended that the party with the burden of proof had
not borne it, after the trier of fact concluded it had. In this case, the party with the burden
of proof, Jack, contends that he did bear it, after the trier of fact concluded he did not.
“On appeal from a determination of failure of proof at trial, the question for the reviewing
court is “‘whether the evidence compels a finding in favor of the appellant as a matter of
law.’” [Citation.] Specifically, we must determine “‘whether the appellant’s evidence
was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to
leave no room for a judicial determination that it was insufficient to support a finding.’”’
[Citation.] We are also guided by the principle that the trial court’s judgment is presumed
to be correct on appeal, and we indulge all intendments and presumptions in favor of its
correctness.” (Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246 Cal.App.4th
761, 769 (Almanor).) That is a tougher row for an appellant to hoe.
Another overarching issue, in addition to the standard of review, is
credibility. While the trial court was unlikely to propose either Lingyun or Jack for the
Washington Cherry Tree Award for honesty, Jack’s truly remarkable lies eventually
convinced the court it would be hard pressed to take his uncorroborated word for
anything.4
Jack lied on his income tax returns, claiming to be single. While married,
he took title to the marital residence in 2002 in his own name as an unmarried man. He
4
In his opening brief, Jack allows as how his “credibility was somewhat lacking during the trial.”
This is a considerable understatement.
6
defrauded his suppliers. But the lie that topped them all – from the court’s point of view
– was the fraudulent insurance claim.
The Yorba Linda residence burned down in 2008, and Jack collected $1.8
million from the insurance company. Part of the money was intended to compensate for
the loss of some expensive silk embroideries Jack claimed had been destroyed in the fire.
He told the same story at trial, under oath. It turned out that the embroideries were not
5
destroyed; in fact, they were hanging on the wall in Jack’s residence. This is a fairly
spectacular trial development. The trial court allocated the embroideries to the insurance
company, as it had paid for them.
The combination of findings arrived at by the court after considering
conflicting evidence and determining credibility – calls we are bound to accept – makes
appellant’s burden Brobdingnagian whether we apply the substantial evidence or abuse of
discretion standard of review.
I. Increase in Business Value
The court found that the value of Jolanta Tile increased from $814,000 at
the date of marriage to $6,047,000 at the date of separation.6 It found that Lingyun’s
accounting expert was more reliable than Jack’s, and it did not find Jack’s attributions of
the increase to outside factors “persuasive.” The court also based its figures on its own
analysis of the data. Using the Pereira method, the court confirmed $4,720,180 to the
community as its interest in the business value and $1,326,620 to Jack’s separate
property. Jack’s side of the ledger therefore gets half of the community’s $4.7 million
plus his separate $1.3 million.
Jack makes two arguments regarding the valuation of the business. First,
he argues the increased value calculation was erroneous because Lingyun’s expert did not
5
The appellant’s appendix includes 95 trial exhibits. It does not, however, include any of the
exhibits cited by the court as showing “instances of [Jack’s] perjury.”
6
The court noted that one year after separation, Jack applied for a loan and told the bank his
business was worth $6,105,634.
7
7
base his analysis on Jolanta Tile’s fair market value. He committed a further error in
valuing Jolanta Tile’s main asset – its inventory – at booked value, rather than fair market
value.
Jack contends the court must use fair market value – the price a willing
buyer would pay to a willing seller – to determine the value of the business. He also
contends that using booked value for the inventory was error and that the court should
have used the Van Camp method rather than the Pereira method for valuing the increase
during the marriage because the inventory was Jolanta Tile’s main asset.
A. Measure of Value
“Under [Family Code] section 2550, the court must divide the community
estate of the parties equally. In this regard, the court has broad discretion to determine
the manner in which community property is divided and the responsibility to fix the value
of assets and liabilities in order to accomplish an equal division. [Citations.] The trial
court’s determination of the value of a particular asset is a factual one and as long as that
determination is within the range of the evidence presented, we will uphold it on appeal.
[Citations.]” (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 631-632 (Duncan).)
Jack and Lingyun both had accounting experts who testified about the value
of Jolanta Tile as of the two dates upon which the parties agreed. The trial court found
Lingyun’s expert more reliable and considered Jack’s expert’s opinions the product of
“‘fuzzy assumptions’” and a desire to bolster Jack’s position. “In the exercise of its
broad discretion, the trial court ‘makes an independent determination of value based upon
the evidence presented on the factors to be considered and the weight given to each. The
trial court is not required to accept the opinion of any expert as to the value of an asset.’
7
Jack also contends that the starting figure, $814,000, is erroneous because if failed to take into
account the value of two of his Chinese subsidiaries, which were capitalized with $150,000 each before marriage.
The subsidiaries were capitalized in 1997 and 1999. There was no evidence of their value in 2001. Jack’s expert
valued them as of their date of incorporation, based on Jack’s word, but had no evidence of their value as of 2001.
The two subsidiaries were no longer operating as of December 2010. As noted above, the court did not regard
Jack’s word, standing alone, as reliable evidence.
8
[Citations.] Differences between the experts’ opinions go to the weight of the evidence.
[Citations.] Rather, the court must determine which of the recognized valuation
approaches will most effectively achieve substantial justice between the parties.”
(Duncan, supra, 90 Cal.App.4th at p. 632.)
Lingyun’s expert used a “going concern” value for the business because, as
he stated, the business was not sold or for sale. “[T]he determination of the value of
infrequently sold, unlisted, closely held stock is a difficult legal problem. Most of the
cases illustrate there is no one applicable formula that may be properly applied to the
myriad factual situations calling for a valuation of closely held stock. [Citation.] It is,
therefore, incumbent upon a court faced with such a problem to review each factor that
might have a bearing upon the worth of the corporation and hence upon the value of the
shares.” (In re Marriage of Hewitson (1983) 142 Cal.App.3d 874, 888.)
Jack’s reliance on In re Marriage of Cream (1993) 13 Cal.App.4th 81 to
support his position that the only permissible method for valuing Jolanta Tile was fair
market value ignores case law and misapprehends Cream. The court in that case did not
hold that fair market value was the only way to value a business. It held that the trial
court could not delegate its responsibility to determine fair market value. (Id. at p. 88.)
As to the choice of valuation methods, the court had this to say: “In our view, the fair
market value of a marketable asset in marital dissolution cases is the highest price on the
date of valuation that would be agreed to by a seller, being willing to sell but under no
obligation or urgent necessity to do so, and a buyer, being ready, willing and able to buy
but under no particular necessity for so doing. We restrict the use of this definition to
marketable assets because some marital assets are not marketable, but nonetheless may
have to be valued.” (Id. at p. 89, italics added.) That last is our case.
As numerous cases have held, the court has a broad duty to divide the
marital estate in the most equitable way possible. The court is permitted a wide latitude
in the methods it uses to do so. Using the going-concern value for a business that was in
9
fact a going concern – operated solely by Jack since separation and Lingyun’s consequent
expulsion – does not appear to us to abuse the court’s discretion in the selection of
valuation methods.
B. Value of Inventory
Both accounting experts agreed that Jolanta Tile’s inventory – which Jack
had built up over the years as part of his business plan – was the company’s main asset.
They differed in how to value it.
Jack’s expert steeply discounted the inventory because, Jack claimed, it was
“very old, decayed, and not saleable.” Lingyun’s expert valued the inventory at booked
value, that is, the value Jack ascribed to it on financial statements, federal tax returns, and
loan applications. The court refused to allow the discount and relied on booked value.
Jack argues that this was error.
The court explained its reasons for doing so at some length. The main
reason was that Jack had used booked value for the inventory when it suited his purposes
– getting loans, paying lower taxes – so it did not seem equitable to allow him to
substantially discount its value when his prior position worked against him. The court
pointed to multiple loan applications and tax returns since separation in which Jack
valued the inventory at booked value. Moreover, if it was true that the inventory had
been allowed to deteriorate in the years since separation (and the court was dubious,
given Jack’s poor credibility track record), that was Jack’s responsibility, since he had
exclusive control over the inventory.
Once again, Jack argues that fair market value is the only permissible way
to value the inventory and disputes the court’s choice of valuation. Jack’s method is
clearly not the only one. He used booked value when he was trying to borrow money,
and he told the government, under penalty of perjury, that the inventory was worth its
booked value when he filed Jolanta Tile’s tax returns. It was not an abuse of the court’s
discretion to hold him to these prior characterizations when it came to his divorce.
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C. Pereira or Van Camp
Jack disputes the trial court’s choice of the Pereira method of determining
Jolanta Tile’s increase in value during the marriage. Jack claims the court should have
8
used the Van Camp method, or at the very least, a hybrid of the two. We review the trial
court’s choice of apportionment method for abuse of discretion. (In re Marriage of
Dekker (1993) 17 Cal.App.4th 842, 852-853 (Dekker).) The trial court has broad
discretion to choose the formula that will best achieve substantial justice. (In re
Marriage of Brooks (2019) 33 Cal.App.5th 576, 590.)
“Pereira is typically applied where business profits are principally
attributed to efforts of the community. [Citations.] Conversely, Van Camp is applied
where community effort is more than minimally involved in a separate business, yet the
business profits accrued are attributed to the character of the separate asset. [Citation.]”
(Dekker, supra, 17 Cal.App.4th at p. 853.)
We do not see an abuse of discretion in choosing the Pereira method. The
court recounted the various community components that went into making Jolanta Tile a
success, while finding Jack’s proffered explanations of “external factors” “not
persuasive.”
On appeal, Jack says that the court erred in attributing the increase in value
to community efforts when the real reason for Jolanta Tile’s increase in value was the
increase in inventory. Jack maintains that during the marriage, the inventory grew but
sales did not.
The court found that “Jack dominated and controlled all financial decision
making and he squeezed from the businesses its business earnings, profits and
8
The Pereira method is derived from Pereira v. Pereira (1909) 156 Cal. 1. It is typically applied
when the increase in business value is primarily attributable to community efforts. The court must allow a
“reasonable gain to the separate estate from the earnings properly allowable on account of the capital invested” (id.
at p. 7) to the separate property business. The rest is community property. The Van Camp method, so called from
Van Camp v. Van Camp (1921) 53 Cal.App. 17, applies when the profits during the marriage are attributed to
external factors, such as a return on investment, rather than to the community. (Id. at p. 29.)
11
distributions to buy more and more inventory, expand his business footprint and
operations in California and in China . . . .” The court also found that “[I]t was Jack’s
strategic plan and goal to ramp up (expand and grow) inventory. . . . During the robust
economy between 2000 and 2006, Jack and Lingyun sold a lot, and they reaped a lot of
profit, making possible the purchase of five properties. [¶] 1. Jack believed that if the
businesses had ample stock on hand, in the long run he would gain an industry advantage
over other sellers. Jack viewed his stock pile of inventory like stored cash, the inventory
adding to his prominence within the industry.”
Jack’s argument here assumes the inventory appeared like the gentle rain
from heaven that drops upon the place beneath. The court’s conclusion – the inventory
was paid for out of money obtained by Jolanta Tile from “a lot” of sales – makes far more
economic sense. And in turn, the court found that the sales volume during the marriage
was attributable mainly to community efforts. The court’s choice of the Pereira method
to calculate Jolanta Tile’s increased value did not abuse its discretion.
II. Character of Real Estate Acquired during Marriage
Jack disputes the characterization of five pieces of real estate, all acquired
during the marriage, as community property. Three of the properties were purchased for
business uses through three limited liability companies owned by Jack. The other two
properties were residential. Jack claims they are all his separate property because they
were purchased with a combination of separate property cash from Jolanta Tile (for down
payments) and separate property loans.
We start with some presumptions and principles. Property acquired during
marriage is presumed to be community property (Fam. Code, § 760), and the spouse who
wants it declared separate property bears the burden of overcoming the presumption. (In
re Marriage of Mix (1975) 14 Cal.3d 604, 610-611.) Likewise, commingled separate and
community property funds are presumed to be community funds, and it is the burden of
the spouse claiming separate property to trace the separate funds. “‘Where funds are paid
12
from a commingled account, the presumption is that the funds are community funds.
[Citations.] In order to overcome this presumption, a party must trace the funds
expended to a separate property source. [Citation.] This issue presents a question of fact
for the trial court and its finding will be upheld if supported by substantial evidence.’
[Citation.] When the trial court has found the funds to be community, the question on
appeal is whether substantial evidence supports that finding.” (In re Marriage of
Higinbotham (1988) 203 Cal.App.3d 322, 328.)
To prevail on this issue, Jack had to make two showings. First, he had to
show that the cash used for down payments or purchases was separate property cash.
Second, where applicable, he had to show that the lenders relied primarily on his separate
property when they made the loans.
A. Cash
It was undisputed that Jack owned Jolanta Tile before marriage to Lingyun.
The court, however, found that the community had not been adequately compensated
during the marriage for its efforts in making Jolanta Tile a success.9 “[S]ince income
arising from the [spouse’s] skill, efforts and industry is community property, the
community should receive a fair share of the profits which derive from the [spouse’s]
devotion of more than minimal time and effort to the handling of his separate property.”
(Beam v. Bank of America (1971) 6 Cal.3d 12, 17; see also Romanchek v. Romanchek
(1967) 248 Cal.App.2d 337, 342.)
The trial court also found that during the marriage Jack put everything in
one pot and made no effort to distinguish between community funds and separate funds.
In Jack’s mind, everything was his. Only during the divorce proceedings did Jack
9
On appeal, Jack argues that the parties stipulated that the funds used to buy the properties were his
separate property. The actual stipulation was that Jack’s accountant had traced the money to Jolanta Tile. That’s an
important difference. Lingyun did not stipulate that Jolanta Tile money was all Jack’s separate property, a decision
the trial court had to make.
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“retroactive[ly]” try to disentangle what belonged to the community from his separate
property.
At the very least, the finding that the community was inadequately
compensated means that the unpaid portion of its compensation went into the pot, along
with whatever separate property profits and distributions were also in it. When Jack used
Jolanta Tile funds to buy real estate, he was using both separate and community funds,
i.e., commingled funds, to make the purchase.
It was up to Jack to show that the cash he used to buy the real estate was
separate property funds, not commingled funds, and the court ruled that he had not
carried this burden. As stated above, if the court determines that a party with the burden
of proof has not carried it, we ask on review “‘“whether the appellant’s evidence was (1)
‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no
room for a judicial determination that it was insufficient to support a finding.’”’”
(Almanor, supra, 246 Cal.App.4th at p. 769.) Jack’s evidence does not meet these
requirements.
One of the business properties, discussed in more detail below, was
purchased in 2002. Jack argues that he bought this property so soon after he and Lingyun
were married that there was not enough time for the community portion of the earnings
and profits to reach a level to cover the cash down payment. His syllogism concludes the
cash must therefore have been separate property cash.
But the argument misses the point. It was not necessary for all of the down
payment to come from community funds. There was enough time for some of the cash to
be community earnings. It was therefore Jack’s job to distinguish the separate property
funds (from before the marriage) in the bank account from the community earnings from
the months following the marriage in the same bank account. If he could not do this, then
it was presumed that they were all community funds. The trial court held he had not done
14
this. Logic is admirable, but adequate tracing would have given him a better chance at
success.
One other real estate purchase for cash must be mentioned here. In 2004,
Jack bought a Canadian condominium for his mother during the marriage for cash from
Jolanta Tile. After his mother died, Jack sold the condo. The court held that the proceeds
of this sale were community funds, again because of commingling. This seems
unimpeachable.
B. Lender Intent
The other component of Jack’s burden for four of the properties is lender
intent. The three commercial properties and the marital residence were partly financed
through loans. Loans made during marriage are presumptively community funds. (In re
Marriage of Stoner (1983) 147 Cal.App.3d 858, 864.) Property secured by a loan
obtained during the marriage is ordinarily community property. (Bank of California v.
Connolly (1973) 36 Cal.App.3d 350, 375-376.) Property financed during marriage
through a spouse’s general credit is community property. (Id. at p. 375.) “In the absence
of evidence tending to prove that the seller primarily relied upon the purchaser’s separate
property in extending credit, the trial court must find in accordance with the
presumption.” (Gudelj v. Gudelj (1953) 41 Cal.2d 202, 210 (Gudelj), italics added).)10
The spouse contending that the lender relied on separate property has the burden of proof.
(Evid. Code, § 606.)
10
The court stated several times that it used the “primarily relied” standard of Gudelj, rather than
the “ relied solely” standard of In re Marriage of Grinius (1985) 166 Cal.App.3d 1179, 1187 (Grinius). In
discussing one of the properties, however, the court used the word “solely.” We understand this to be a mistake and
take the court at its word – it used “primarily relied” throughout.
According to the Grinius court, the “primarily relied” test of Gudelj represented a relaxation of the
standard of prior Supreme Court opinions. Grinius was a return to the earlier standard of sole reliance. (Grinius,
supra, 166 Cal.App.3d at p. 1187.)
15
1. 2300 E. Winston Road
One of Jack’s limited liability companies bought this property in 2002. He
paid the $1 million down payment with a combination of profits and cash distributions
from the business and a loan from his ex-wife. He borrowed $3.7 million from a private
investment group in July 2002. He refinanced the property in 2005.
The court found that Jack failed to prove lender reliance on his separate
property for repayment in the initial purchase. Jack’s ex-wife testified that she trusted
Jack and “business was good.” The witness for the investment group testified they relied
primarily on the desirable location of the property – it “was a property that we would
have liked to have owned” – along with “credit, income, location, . . . and . . . my feel for
Jack as an individual[.]”11 The size of the down payment was also a significant factor.
The trial court found that neither lender relied primarily on Jack’s separate property in
making the loans.
The court also found that the refinancing bank relied on Jack’s loan
application, in which he falsely claimed to be unmarried, and on his personal tax returns,
in which he also claimed to be single. The loan was secured by the property. The bank
was satisfied that cash flow from the business would be adequate to service the debt. The
bank made the loan commitment in June 2005, at which point Jack and Lingyun had been
married for more than two years.
In short, the trial court found that the lenders relied on a “combination of
factors, not one primary factor, those factors including profits and cash distributions, the
product of community efforts . . . Jack’s general creditworthiness, and the lender having
adequate recourse in the event of a default.” As Jack had the burden of proof, he must
11
The court found this witness, Robert Socci, not credible when he testified he did not know
whether Jack was married. On appeal, Jack argues the trial court tarred Socci with Jack’s lack of credibility brush.
We don’t see this. It seems to us the trial court assessed Socci’s credibility independently and decided his financial
interests were too closely aligned with Jack’s to make him an unbiased witness.
16
show that the evidence compelled a finding in his favor as a matter of law. (See
Almanor, supra, 246 Cal.App.4th at p. 769.) It did not.
2. 2250 E. Winston Road and 2260 E. Winston Road
These parcels were purchased by two of Jack’s limited liability companies
in 2004 with a combined loan application. Jack used a combination of profits and cash
from the business and a loan from Bank of America to purchase the properties. The deed
of trust for 2250 E. Winston was signed on December 28, 2004, a little over three years
after the marriage. The deed of trust for 2260 E. Winston appears to have been signed
12
about the same time.
After hearing testimony from the Bank of America representative who
handled the loan, the court concluded the lender relied on “a combination of factors
. . ., including Jack’s labor, skill, talent, a history of stable profits, and Jack’s personal
guarantee.” Jack was recognized as “the business owner . . . the financial guy . . . he runs
the show, and he gives the orders[.]” He was the company’s “driving force,” “making
Jolanta Tile successful.” The bank also looked favorably on the large down payment and
the below-market loan-to-value ratio of the two properties. Once again, the court found
Jack failed to carry his burden to show primary reliance on separate property, and we see
no basis for quarreling with that conclusion.
3. Yorba Linda residence
The Yorba Linda residence was acquired during the marriage,
notwithstanding the fact Jack again took title as an unmarried man. Jack claimed he used
his separate property funds, from his separate property business, as well as a bank loan, to
buy the house. The house burned down in 2008. The insurance company paid Jack $1.8
million to cover the loss. The court ordered the property sold in 2016; the sale netted
$314,930.
12
The signature page is missing from the record.
17
The court found that the funds used to purchase the house either came from
earnings, profits, and distributions attributable to community efforts or were commingled
funds, the separate character of which was lost. The court also held that Jack failed to
prove lender intent because (1) he lied to the lender in stating he was unmarried and (2)
he failed to prove the lender relied on his separate property when extending credit. Thus
the bank loan was community property. Our analysis here is the same as it was for the
Winston Road property.
III. The Beijing Condominiums
We deal with this issue separately because these properties were acquired
before marriage. The presumptions and evidence thus differ from the presumptions and
evidence relating to the community nature of the other properties.
Before their marriage, Jack and Lingyun each executed a contract to buy a
condo in Beijing in their respective names. They used one for an office and the other for
a residence while they did business in China. Lingyun testified the down payment to
purchase her condo came from unpaid salary owed to her by Jack. Jack said he did not
know that one unit was in Lingyun’s name and that both units were his separate property.
The court did not believe Jack.
Payments on the condos were made between 2000 and 2010, when the
balance was paid in full. As with the other real estate purchases, the court found Jack had
failed to provide adequate tracing to establish that his separate property made these
payments.
The court decided that when title vested in 2010 – after the balance of the
purchase price was paid off – it related back to the original signing of the contract in
2000. Relying on the presumption of title of Evidence Code section 662, the court
18
awarded the condo in Jack’s name to him as his separate property and the condo in
13
Lingyun’s name to her as her separate property.
On appeal Jack does not distinguish between the funds used for the down
payment and any payments before December 2001 (pre-marriage) and the funds used to
pay off the balance after December 17, 2001. But the funds used to make the down
payment could not have been community funds because Jack and Lingyun were not yet
married. And the payments made during the marriage, the court held, were not
adequately traced to Jack’s separate property. We have already dealt with the deficiency
of Jack’s tracing.
Ultimately the court relied on the presumption of Evidence Code section
662 to find that Lingyun held title to her condo. Jack has not explained how he has
overcome the presumption.
IV. Moving Expenses14
A property owned by one of Jack’s limited liability companies had been
used to store Jolanta Tile inventory as well as what the court variously described as
“‘stuff’ and ‘debris’ probably having zero to de minimis value,” “‘other stuff,’” and
“junk.” The parcel was sold, and the inventory and the “other stuff” had to be moved off
of the 10-acre site.15 Part of the material was going to be stored in a warehouse next door
(on property owned by another of Jack’s limited liability companies), and part of the
material was going to the Jolanta Tile showroom a mile away. The parties agreed Jack
13
Evidence Code section 662 provides, “The owner of the legal title to property is presumed to be
the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.”
14
The court ruled on this issue on June 13, 2018, in a ruling separate from the issues dealt with in
the statement of decision.
15
Jack sold the real estate sometime in 2017, without notifying Lingyun or the court, and entered
into a one-year lease with the buyer. Escrow closed on July 27, 2017, and Jack continued to use the parcel for his
separate property business. The court ruled on June 21, 2017, that the parcel was community property and ordered it
sold, only to learn it was, in effect, already sold. At that point, the best the court could do was to secure the proceeds
of the sale in an attorney trust account, as the court had “zero confidence that Jack will cooperate and pay to
Lingyun the equalization due under this comprehensive ruling[.]”
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would be in charge of clearing the site, and the community would be charged with a
16
portion of the costs involved.
The court faced a difficult task in calculating the community portion of the
moving costs. Jolanta Tile’s inventory was “a substantial factor in calculating the
increased value of Jack’s separate property business during the marriage,” that is,
between the end of 2001 and the beginning of 2011. From the date of separation to the
resolution of the divorce (between 2011 and 2018), Jack had been operating the business
as his separate property and presumably buying inventory with Jolanta Tile money. In
essence, the court had to figure out how much it would cost to move the community
inventory (accumulated between 2002 and 2010) and how much it would cost to move
Jack’s separate property inventory (accumulated between 2011 and 2018). Or, to put it
another way, how much of the total cost to move all the inventory should the community
pay for?17 As the court explained, this was not an issue that usually came up in family
law cases, and it was operating without a “playbook” or a “road map.”
The court heard various estimates of the cost to clear the site. Lingyun
suggested various amounts for total removal of the inventory, at one point estimating the
community charge as $214,006. She also declared, based on past experience, that she
thought the inventory could be moved for less than $200,000. Jack wanted $717,692 for
the job, exclusive of an amount that he believed he should be compensated for overseeing
it. An outside contractor wanted $1.2 million. So far as we can tell from the record,
these latter two estimates were for the total amount. As stated above, the court had to
16
The court had initially thought about hiring an outside company to clear the site, but decided, on
reflection, it would be better for Jack to handle it, as the inventory was, at this point, his property. Also Jack would
be cheaper because the outside company would have to make a profit.
17
The court determined that Jack should pay for moving the “other stuff,” i.e., non-inventory, since
it was solely his decision to store it on the site.
The court also had to estimate the cost of “sift[ing] and sort[ing] inventory, separating the good
and saleable inventory from decayed inventory, and re-stacking and bundling the ‘good’ inventory within new
pallets . . . and then re-organizing the saleable inventory within the warehouses on the other side of the chain link
fence.” These activities benefited only Jack’s separate property business, and their costs could not be charged to the
community.
20
determine how much of the total should be charged to the community, based on how
much community inventory was still on the site after six years.
The court charged the community $280,000 as its portion of the expenses to
move the inventory. Jack now argues that the court improperly based its amount on its
own experience, rather than on the evidence, and the final number was arbitrary, with no
evidentiary support.
The court had ample evidence upon which to base its estimate of the
community’s responsibility for moving the inventory. Lingyun estimated that job could
be done for somewhere between under $200,000 and $319,000. She also pointed out
components of Jack’s estimate that were either due to his mismanagement or improperly
charged to the community. She estimated that between zero and 40 percent of the
inventory on the site in 2018 was community inventory.
Jack’s estimate was clearly inflated, as much of it paralleled the estimate of
the independent contractor, who had to build a profit and some cushion into his final
figure. The court was also wary of Jack’s figures, in light of its assessment of his
credibility.
In short, contrary to Jack’s contention, the court based its final figure on all
the evidence before it. It was essentially being asked to estimate the cost of erecting a
yurt on Mars with three fairly unreliable bids. The number it arrived at was not pulled
out of the air but took into account the many aspects of the project as well as the several
estimates presented to it. Although it was on the low end of the estimates, it was not as
low as some of the numbers Lingyun put before the court. We see no basis for second-
guessing it.
Jack also argues the judge improperly based his decision solely on his own
experience rather than on the evidence. The record does not support this argument. The
judge explained that he had worked at a lumber yard during college. Because of this
work experience, he had a greater insight into the details of moving products than would
21
someone without this experience. It enabled him to knowledgeably discuss such topics as
shrink-wrapping and pallets with the contractor who had given the $1.2 million estimate
for the job. It also made the judge sensitive to the likelihood Jack would use the move as
an opportunity to “improve” his separate-property inventory at the community’s expense
and alert to forestall any such attempt. And it helped him evaluate whether costs were
being inflated.
But the judge’s college experience could not have helped him to decide
how much to charge the community. This decision involved, first, determining a
reasonable cost for the entire job and then, second, estimating the percentage of that cost
that could be attributed to moving community-property inventory, as distinct from
separate-property inventory and “other stuff,” and as distinct from “improving” the
separate-property inventory by getting rid of the unsalable portion and repackaging and
reorganizing the saleable portion. Driving a forklift in a lumber yard in college could not
have helped with this decision and we find nothing in the record to indicate the judge
improperly applied it.
Moreover, Jack is estopped from objecting on appeal to the judge’s
bringing his life experience to bear on the moving expenses issue. After explaining his
college job in the lumber yard, the judge stated, “I thought it was necessary to tell you
what is my life’s experience so that you can ask questions to challenge me and push me
back that those life’s experiences are or are not applicable here.” Rather than object,
Jack’s counsel stated, “I actually think your life experiences will actually shorten the
testimony because I won’t have to go into such areas in depth, . . .” In short, Jack was all
for using life experience until the experience did not go his way. (See In re Marriage of
Ilas (1993) 12 Cal.App.4th 1630, 1639-1640 [invited error].)
By setting the community charge for moving expenses at $280,000, the
court implicitly decided that a significant amount of inventory accumulated between
2002 and 2010 (i.e., community property inventory) was not still present on the site. The
22
appellant must show error (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th
814, 822), and Jack has not shown that this assessment was out of the range of
reasonableness, given the various estimates and explanations the parties provided to the
court.
Finally, Jack objects to having the expense of cleaning up the “other stuff”
charged to him alone. He argues the court decided the parcel was community property,
so the community should have to pay for cleaning up the non-inventory “junk” as well as
for moving the inventory.
The reason the court found the parcel was community property is that it had
been acquired during the marriage with presumptively community property funds. The
reason the community was charged with part of the cost of clearing the parcel is that
some of the inventory stored there was, presumably, community-property inventory, that
is, inventory bought during the marriage.
But there was no evidence as to where the “other stuff,” aka “junk,” came
from, or when it arrived, or who, if anyone, paid for it. It played no part in the valuation
of the business. And it was Jack’s decision, as part of his singlehanded management of
the business, to store the “junk” on the property.18 The court did not abuse its discretion
in placing the cost for removing it on Jack.
V. Retroactive Temporary Spousal Support
Jack argues the court lacked jurisdiction to award retroactive temporary
spousal support because Lingyun allowed a motion for this support, made in May 2011,
to go off calendar. If she wanted retroactive support, he says, she had to make a motion
to restore the May 2011 motion to the calendar. Instead, she filed a new motion, on
February 23, 2015. In effect, Jack contends that by filing a new motion instead of
18
Lingyun testified that during the marriage, when she worked at Jolanta Tile, debris was discarded
frequently and not allowed to accumulate. This evidence supports the court’s conclusion Jack was responsible for
the presence of significant amounts of “other stuff” on the site.
23
moving to restore the former one, Lingyun waived or forfeited any right to retroactive
support between May 2011, when Lingyun filed her first request for spousal support, and
February 2015, when she filed the second request. Jack also disputes the monthly
amount the court awarded, arguing the court did not make a finding in the statement of
decision that he had the ability to pay.
The trial court dealt with the retroactivity issue in the course of ruling on a
motion in limine. The court noted the history of Lingyun’s requests for temporary
spousal support. An order to show cause for temporary spousal support was issued on
May 3, 2011, with a hearing date in June. The hearing on this order was continued
multiple times, under the originally assigned judge, between 2011 and 2014.
In June 2014, the case was transferred to a new judge, who eventually tried
the case. There was, by this time, a significant backlog of issues to be decided, including
Lingyun’s temporary spousal support. The court advanced these issues to “today” (June
13, 2014) and temporarily ordered them off calendar “subject to restoration at the T[rial]
S[etting] C[onference].”
On February 23, 2015, Lingyun filed a request for order for spousal support
with a hearing date in April. She stated in her declaration that Jack had been paying her
$3,000 per month, per an agreement entered into in July 2011, but he had ceased these
payments in December 2014. She added, “I have no other source of income. . . . Since
our agreements were all oral with no supporting order I am now in a position where I am
forced to file a Request for Order to obtain spousal support from [Jack].” The hearing
was continued by stipulation to June, and Jack was ordered to pay Lingyun $3,000 in
April and May. The hearing was continued again, by stipulation, to August, and Jack
was ordered to continue paying $3,000 per month until further order of the court.
On July 31, 2015, an order to show cause for contempt was issued because,
according to Lingyun, Jack had failed to make all but one of the support payments
ordered in April 2015. The matter was set for hearing on October 2, 2015.
24
On March 14, 2016, the court held a hearing on several matters, mostly
dealing with trial. The order stated, “The Court establishes pendente lite spousal support
of $10,000 commencing 3/15/16 payable 1/2 on the 1st and 1/2 on the 15th of each
month. This is a perspective [sic] order and the Court reserves on retroactivity.” The
record does not reflect any objection by Jack to this reservation.
Jack argues that once Lingyun’s first request for support went off calendar,
“[t]here was no longer a filing to which the date of retroactivity could apply, and no
jurisdiction to award support until a new request was made.” Jack supplies no authority
for this argument. Case law is to the contrary.
In In re Marriage of Dick (1993) 15 Cal.App.4th 144, the court explained
the difference between temporary and permanent spousal support, noting that while the
Legislature placed a limit on how far back a retroactive order for permanent support
could reach, it placed no such limit on retroactivity for temporary support. The court
concluded a retroactive award could precede the date upon which a spouse actually filed
an order to show cause for support. (Id. at pp. 165-166.) Therefore, even if Jack’s
argument about the effect of a motion’s going off calendar is correct – and it is not – the
court would still have authority to award temporary spousal support from a date
preceding the filing of the request.
Jack also claims that Lingyun failed to follow proper procedure, thereby
waiving a claim to retroactive spousal support. He relies on the Superior Court of Orange
County Local Rules, rule 705(D), which requires a 90-day notice to restore an off-
calendar motion to the court’s calendar, notice Lingyun did not provide.
The rule in question states: “Continuance Policy [¶] The initial hearing
date for a request for order hearing may be continued one time by telephonic notice to the
clerk of the assigned department. Parties must be prepared to represent to the clerk that
opposing parties have been contacted and consented to the continuance. Once a new
hearing date is received, the party contacting the clerk must give written notice of the
25
new hearing date to the opposing party. [¶] A second or subsequent continuance of the
hearing date will require the attendance of the parties and a showing of good cause. In
the event that the second or subsequent continuance is denied, the request for order may
go off calendar if the parties cannot proceed. A request for order which has been ordered
off calendar may be restored to the court’s calendar by written application and, if such
application is made within ninety (90) days, the initial filing date will be deemed the
filing date for purposes of determining the commencement of child and/or spousal
support.”
The local rule does not apply to this situation. It applies to continuances
requested by parties and states what may happen if a second or subsequent request for
continuance is denied. If a second or subsequent request is denied, and if the parties
cannot proceed, the court may take the request for order off calendar. So far as the record
before us indicates, however, the requests for continuances were never denied, so the rule
was never activated. Moreover, the crucial continuance, the one that took place in June
2014, was ordered by the court. It was not requested by the parties.
The cases cited by Jack to support this argument – all of which deal with
modifying support orders – have no application to this case. (See In re Marriage of
Williamson (2014) 226 Cal.App.4th 1303; In re Marriage of Freitas (2012) 209
Cal.App.4th 1059; In re Marriage of Gruen (2011) 191 Cal.App.4th 627.) The
Legislature has enacted statutes specifically dealing with modifications of support orders.
(Fam. Code, §§ 3603, 3651.) These do not apply to support orders issued for the first
time.
The real issue here is the trial court’s ability to control its docket. (See
Walker v. Superior Court (1991) 53 Cal.3d 257, 267; Moyal v. Lanphear (1989) 208
Cal.App.3d 491, 497.) Faced with multiple issues that had been hanging fire in some
cases for years, the court set about handling the backlog as expeditiously as possible. It
set dates for the most pressing matters and postponed the rest of them to the trial setting
26
conference. It was the court, not Lingyun, that took the matters “off calendar” – that is,
decided not to hear them on that day – while carefully maintaining them for decision at a
future date. Jack has no cognizable complaint about this.
VI. Statement of Decision
Jack’s argument regarding the deficiency of the statement of decision
regarding his ability to pay is similarly lacking in merit. He argues, not that he cannot
pay, but that the statement of decision failed to give the evidentiary basis for the court’s
determination that he had the ability to pay.
Jack cites no authority for the idea that a statement of decision is
prejudicially deficient because it does not include the evidentiary basis for a finding
about his ability to pay. A statement of decision does not deal with evidence, but rather
with ultimate facts. (See In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 736, fn.
15; In re Marriage of Garrity & Bishton (1986) 181 Cal.App.3d 675, 686-687,
superseded by statute on other grounds; Estate of Hudspeth (1964) 225 Cal.App.2d 759,
765; Code Civ. Proc., § 634.) In light of the 19 days spent on a trial that was, by and
large, concerned with nothing but money, we think the court had ample evidence of
Jack’s finances upon which to base a reasonable conclusion about his ability to pay.
27
DISPOSITION
The judgment is affirmed. Respondent is to recover her costs on appeal.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.
28