Marriage of Hibbert CA2/7

Filed 12/8/20 Marriage of Hibbert CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re Marriage of SHARON B291518
and WINSTON HIBBERT.
(Los Angeles County
Super. Ct. No. LD073762)
WINSTON HIBBERT,
Petitioner and Appellant,
v.
SHARON WINSTON,
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Shirley K. Watkins, Judge. Affirmed as
modified.
Charles O. Agege for Petitioner and Appellant.
No appearance for Respondent.
___________________
INTRODUCTION
Winston Hibbert appeals from a family law judgment
adjudicating the parties’ date of separation, characterizing real
property as Sharon Hibbert’s separate property, and denying
Winston’s reimbursement claims. Winston contends that
substantial evidence does not support the trial court’s rulings and
that the trial court abused its discretion in admitting certain
evidence. We modify the judgment to correct two errors and
affirm.
FACTUAL AND PROCEDURAL HISTORY
A. Background
Winston and Sharon were married on October 6, 1987.1
They have two daughters, Princessa and Melissa, both adults.
On April 27, 2016, Winston filed a petition for dissolution of
marriage listing September 15, 2015 as the date of separation.
Sharon contended the date of separation was December 17, 2006.
Winston represented himself at the trial. Counsel represented
Sharon. The trial occurred on May 23, 2017, August 15, 2017,
December 26, 2017, and March 21, 2018.
Sharon worked for a trucking company driving a “big rig”
truck all over the United States. She was gone from home for
months at a time. Although Melissa and Sharon testified that
Winston earned money from illegal drug sales, Winston testified
that he worked as a handyman.
1 To avoid confusion, we refer to the parties by their first
names.
2
B. In Early 2007, Sharon and Melissa Move Across the
Street
Sharon, Winston, and Melissa resided in an apartment on
Vanowen Street in Van Nuys. Sharon testified that, on
December 17, 2006, Winston hit her in the face during an
argument, injuring her nose. Sharon testified that there was
blood “all over.” Melissa, who at the time was 11 years old,
testified that she heard her parents argue, saw Winston “chase
[Sharon] down the hallway,” and observed Sharon with “blood all
over her clothes and her face.” According to Sharon, because
Winston pointed a gun at her, telling her that “if you call the
police, you know, [he was] not going back to prison,” Sharon was
afraid to tell the police that she had an altercation with Winston.
Melissa went to the hospital with Sharon. Winston did not deny
that he struck Sharon.
According to Sharon, the domestic violence severed the
marriage. After the incident, she and Winston did not have
sexual relations, use the same bathroom, or have a meal together.
Further, according to Sharon, after the incident, she and Winston
did not celebrate Christmas together or go out as a couple. In
early January 2007, because of Sharon’s intent to end the
marriage, Melissa and Sharon vacated the apartment and moved
across the street to a house on the property of Mary Behmer, a
family friend. According to Melissa, Behmer permitted her and
Sharon to live rent-free in the back house on Behmer’s property
because Behmer was a family friend. Behmer lived in the front
house on the same property.
C. Winston Also Moves Across the Street
Sharon testified that Winston did not move with her and
Melissa to the back house on the Vanowen property. However,
3
Winston did live on the Vanowen property. Melissa and Sharon
testified that Winston “lived in the shed,” a separate structure on
the Vanowen property. Later in her testimony, when asked why
Winston was living in the front house with Behmer, Sharon
replied: “Because he didn’t have anywhere else to go. I didn’t
give him any permission to live in the front house. He just moved
in the front house.” Melissa testified that Sharon and Winston
never lived together in the same structure on the Vanowen
property.
Sharon testified, there were “two reasons why [Winston]
came over [to her home], he was supposed [to] take care of
Melissa because I was going to be working . . . and the next
reason was he was on parole, and [he] needed . . . an address so
his parole officer could come and visit him.” According to
Melissa, although Winston was supposed to take care of her when
Sharon was gone, “he wouldn’t really. I stayed with my friends
at the time.” Sharon also testified that Winston “didn’t” take
care of Melissa when she was gone, stating: “[Melissa] had to
move and go across the street . . . to her friend’s house.”
According to Winston, although he and Sharon planned to
move into the back house together, because “it was so small” and
“my daughter started to turn [into a] teenager,” he gave Sharon
and Melissa “the space” and he lived with Behmer in her house.
According to Winston, “we still go from back [house] to front
[house] and eat and drink from back to front just the same way.
And she came over and sleep [in the front house] sometimes
also.” Winston testified that he and Sharon celebrated Christmas
together, stating that “we [were] home and we cook[ed] and [ate]
and all that.” Winston also testified that he and Sharon did
things together and people knew them as a couple. Winston
4
testified that, until September 2015, he and Sharon had a “loving
relationship” and a “marital relationship.”
D. Behmer Gifts the Vanowen Property to Sharon
On July 16, 2008, Ms. Behmer gifted the Vanowen property
to Sharon by quitclaim deed. The deed was recorded on
December 18, 2008. Prior to 2010, Sharon obtained a loan and
entered into a promissory note using the Vanowen property as
collateral. Sharon testified that she made the note payments
and that “[Winston] didn’t make payments on the [note] . . .
because [at] that time we weren’t together.” Sharon testified that
Winston “never worked . . . never paid a bill.”
Winston testified that he contributed to the promissory
note payments from the funds he earned working as a handyman.
Winston further testified that he worked as a caregiver for
Behmer “and that’s how Sharon’s name got on the house.”
Winston testified that his name was not on the title to the
property “because [he] didn’t have proper [immigration]
documents” to reside in the United States. Behmer died in 2010.
E. Sharon Sells the Vanowen Property and Purchases
the Woodcock Property
On August 5, 2015, Sharon sold the Vanowen property to
Deal Buys Corp. The deed was recorded on October 2, 2015. She
used the sale proceeds to repay the promissory note and to fund
the purchase of a new home at 11656 Woodcock Avenue in San
Fernando. Sharon also made a $2,000 down payment on the
Woodcock property.
Sharon took title to the Woodcock property as a single
woman and financed the balance of the purchase price with a
loan evidenced by as promissory note and secured by a deed of
trust on the property in her name alone. Sharon moved to the
5
Woodcock property in September 2015. Winston did not move to
the Woodcock property.
F. The $2,000 Down Payment for the Woodcock Property
The parties dispute the source of the $2,000 down payment
for the Woodcock property. However, they agreed that, at the
time Sharon sold the Vanowen property and contracted to
purchase the Woodcock property, Sharon obtained a loan of
$2,500 using a vehicle as collateral. They also agreed that,
although Winston “owned” the vehicle, title to the vehicle was in
Princessa’s name, and “a couple days before escrow was closed,”
Princessa transferred the vehicle’s title to Sharon. Sharon then
obtained the $2,500 loan.
According to Winston, because Sharon had to make a down
payment on the Woodcock property before she received the
Vanowen property sale proceeds, Sharon used $2,000 from the
loan’s proceeds as the initial down payment on the Woodcock
property. Sharon denied using the loan proceeds to purchase the
Woodcock property. Sharon testified that she gave the loan
proceeds to Winston “for stuff that he bought for his store.”
Sharon testified that the “car loan . . . was all part of getting
away from [Winston]” because Sharon “didn’t want to make an
enemy out of [Winston].” According to Sharon, she obtained the
loan because she “feared” Winston. Sharon did not repay the
loan, and the finance company repossessed the vehicle.
Winston testified that using his car as collateral was “the
closest [he] can explain . . . that we [were] together, transacting
all that.” Winston explained to the trial court that he did not
have documents to prove the parties did not separate until
September 2015 “because [he] never used to take part in the
paper transaction of business.” Winston testified that he never
6
had any joint accounts with Sharon “because [he] never [had]
proper documents for [living] here [in this country].”
G. Tax Issues and Storage Fees
According to Sharon, while she was living with Winston
before the domestic violence incident, she and Winston filed
“joint” income tax returns. However, after she moved to the
Vanowen property in early 2007, Sharon filed “single” tax returns
listing her status as “head of household.” Sharon later testified
that, beginning in 2007 and continuing through the date of trial,
she filed income tax returns listing her status as “married filing
separately.” After Sharon testified that they were true and
correct copies, the trial court admitted into evidence Sharon’s
2015 and 2016 income tax returns. On these returns, Sharon
listed her filing status as “married filing separately.” When
asked if he had an objection to the returns being admitted in
evidence, Winston responded that he did not believe that Sharon
“filed separately.” Winston never filed any tax returns.
Sharon asserted, then withdrew, a claim for
reimbursement of taxes she paid. Sharon’s counsel stated that
Sharon “made a mistake” raising a tax reimbursement issue
because the 2016 IRS levy for $18,951.43 was for the 2009 tax
year. There were no other tax claims raised at trial.
Sharon sought to recover $2,064.87 she paid for a storage
unit rental. She claimed that in 2015 the parties placed their
belongings in a storage unit and that “[Winston] promised to
make payments on one half [of the storage fees], and never did.”
Winston denied that there was an agreement to share the fees.
Winston testified that the rental of the storage unit was “proof
that we were still together with each other during all the sales of
the house. I am moving her things. Moving my things.”
7
H. The Trial Court’s Rulings
In its statement of decision, regarding Winston’s credibility,
the trial court found: “[Winston] is a convicted felon with
multiple convictions including relating to possession of controlled
substances with intent to sell, kidnapping and voluntary
manslaughter. [Winston] was found by the court to have little to
no credibility on key issues relating to the date of separation and
the two properties in dispute. The court finds credible the
testimony of [Sharon] that the primary source of [Winston’s]
‘earnings’ during marriage and post-separation has been the
illegal sale of drugs.”
Regarding the date of separation, in ruling for Sharon, the
trial court found: “I do find that [Sharon’s] explanation and
testimony is more credible than [Winston’s] on the issue of date of
separation. The date of separation in a marriage is not just
reflective of whether or not you are living in the same place. It is
whether you are holding yourself out to people as a married
couple, whether you consider yourself a married couple, whether
you consider yourself in a romantic, loving, close relationship of
husband and wife. I don’t believe that the evidence supports
[Winston’s] theory of the marriage. The court believes that this is
a marriage where even though they were living in close
proximity, and I believe that [Sharon] is doing a lot to help
[Winston] out. But they were not living as husband and wife.
And the court will find that the date of separation is December
17, 2006.”
In rejecting Winston’s claims regarding the Vanowen
property, the trial court ruled, “The court also considered the
evidence submitted on the [Vanowen property]. The court finds
that this property was transferred to [Sharon] post-separation in
8
a gift by Mary Behmer on 7/16/08. Petitioner has failed to meet
his burden of proving the community funds were used for the
purchase of the Vanowen property or that any community funds
were used to maintain or pay for expenses and taxes on the
property. Accordingly, the court finds that the Vanowen property
is [Sharon’s] sole and separate property with no reimbursement
to [Winston].”
In also denying Winston’s claims regarding the Woodcock
property, the trial court ruled, “the court has considered the
evidence submitted on the [Woodcock property]. The court finds
that the down payment for the Woodcock property was purchased
by [Sharon] after separation on 9/11/15 as a ‘single woman.’
Accordingly the burden was on [Winston] to trace the funds used
for the down payment. [Winston] has failed to meet his burden of
proving that community funds were used for the purchase[ ] of
the Woodcock property or that any community funds were used to
maintain or pay for expenses and taxes on the property.
Accordingly, the court finds that the Woodcock property is
[Sharon’s] sole and separate property with no reimbursements to
[Winston].”
Denying Sharon’s request for reimbursement of the storage
fees, the trial court ruled: “I have heard evidence from both
sides. And I do not find [Sharon’s] testimony that she made an
agreement with [Winston] to pay for half of the storage unit to be
credible. And therefore I’m going to deny [Sharon’s] request for
reimbursement on the storage unit.”2
2 Although the trial court denied Sharon’s claim for
reimbursement of the storage fees, the judgment stated that
Winston “shall be solely responsible for the cost of the storage
9
Although Sharon withdrew her tax reimbursement claim,
the trial court ruled: “Similarly, the court reserves jurisdiction
over the issues of income tax liability. Again, after multiple
continuances, neither party brought in the documents necessary
to establish the amount of tax liability as of the date of
separation and how much, if any, has been paid since.”3
Winston timely appealed.
DISCUSSION
A. The Trial Court Did Not Err in Finding the Date of
Separation Was December 2006
1. Applicable Law
Family Code section 771 classifies property acquired after
the “date of separation” as the acquiring spouse’s separate
property.4 As originally enacted, section 771 provided that “[t]he
earnings and accumulations of a spouse . . ., while living separate
and apart from the other spouse, are the separate property of the
spouse.” (§ 771, former subd. (a).) In 2016, the Legislature
substituted the clause “after the date of separation of the
spouses” for the clause “while living separate and apart from the
other spouse.”’ (§ 771, subd. (a).) At the same time, the
Legislature defined “date of separation”’ in a new section of the
Family Code: “‘Date of separation’ means the date that a
unit.” As Winston requests, we correct the trial court’s error in
the judgment.
3 Because Sharon withdrew the only tax claim presented at
trial, as requested by Winston, we also correct the trial court’s
error in reserving jurisdiction in the judgment regarding tax
liabilities.
4 Undesignated statutory references are to the Family Code.
10
complete and final break in the marital relationship has
occurred, as evidenced by both of the following: [¶] (1) The
spouse has expressed to the other spouse his or her intent to end
the marriage. [¶] (2) The conduct of the spouse is consistent
with his or her intent to end the marriage.” (§ 70, subd. (a).) In
enacting section 70, the Legislature expressly abrogated the
holding in In re Marriage of Davis (2015) 61 Cal.4th 846 that “the
Legislature intended the statutory phrase ‘living separate and
apart’ to require both separate residences and accompanying
demonstrated intent to end the marital relationship.” (Id. at
pp. 863–864; § 70, subd. (c).)
The “date of separation” definition added by section 70 is
consistent with case law interpreting and applying former section
771. (In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 928;
In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 451; In re
Marriage of von der Nuell (1994) 23 Cal.App.4th 730, 736.) In
In re Marriage of von der Nuell, the court explained that a
separation under section 771 “requires not only a parting of the
ways with no present intention of resuming marital relations, but
also, more importantly, conduct evidencing a complete and final
break in the marital relationship.” (In re Marriage of von der
Nuell, at p. 736.) “‘[T]he date of separation occurs when either of
the parties does not intend to resume the marriage and his or her
actions bespeak the finality of the marital relationship. There
must be problems that have so impaired the marriage
relationship that the legitimate objects of matrimony have been
destroyed and there is no reasonable possibility of eliminating,
correcting or resolving these problems.’” (In re Marriage of
Manfer, at p. 930.)
“‘The ultimate question to be decided in determining the
11
date of separation is whether either or both of the parties
perceived the rift in their relationship as final. The best evidence
of this is their words and actions. The husband’s and the wife’s
subjective intents are to be objectively determined from all of the
evidence reflecting the parties’ words and actions during the
disputed time in order to ascertain when during that period the
rift in the parties’ relationship was final.’” (Ibid., italics omitted;
accord, In re Marriage of Hardin, supra, 38 Cal.App.4th at
pp. 451-452.) Section 70, subdivision (b), provides: “In
determining the date of separation, the court shall take into
consideration all relevant evidence.” (See In re Hardin, at p. 452
[“[a]ll factors bearing on either party’s intentions ‘to return or not
to return to the other spouse’ are to be considered”].)
B. Standard of Review
“On appeal, we presume the judgment is correct. “‘All
intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown’” by the appellant.” (In re Marriage of
Ciprari (2019) 32 Cal.App.5th 83, 93-94; accord, In re Marriage of
Arceneaux (1990) 51 Cal.3d 1130, 1133.) “‘In general, in
reviewing a judgment based upon a statement of decision
following a bench trial, ‘‘any conflict in the evidence or reasonable
inferences to be drawn from the facts will be resolved in support
of the determination of the trial court decision. [Citations.]’”
[Citation.] In a substantial evidence challenge to a judgment, the
appellate court will ‘consider all of the evidence in the light most
favorable to the prevailing party, giving it the benefit of every
reasonable inference, and resolving conflicts in support of the
[findings]. [Citations.]’ [Citation.]” We may not reweigh the
evidence and are bound by the trial court’s credibility
12
determinations. [Citations.] Moreover, findings of fact are
liberally construed to support the judgment.’” (In re Marriage of
Ciprari, at p. 94; accord, Estate of Young (2008) 160 Cal.App.4th
62, 75-76.)
“‘The substantial evidence standard applies to both express
and implied findings of fact made by the superior court in its
statement of decision rendered after a nonjury trial.’” (In re
Marriage of Ciprari, supra, 32 Cal.App.5th at p. 94; accord, SFPP
v. Burlington Northern & Santa Fe Ry. Co. (2004) 121
Cal.App.4th 452, 462.) “‘The court’s statement of decision is
sufficient if it fairly discloses the court’s determination as to the
ultimate facts and material issues in the case.’” (In re Marriage
of Ciprari, at p. 94; accord, Golden Eagle Ins. Co. v. Foremost Ins.
Co. (1993) 20 Cal.App.4th 1372, 1380.) ““‘Where [a] statement of
decision sets forth the factual and legal basis for the decision, any
conflict in the evidence or reasonable inferences to be drawn from
the facts will be resolved in support of the determination of the
trial court decision.’”” (In re Marriage of Ciprari, at p. 94; accord,
In re Marriage of Ruelas (2007) 154 Cal.App.4th 339, 342,
disapproved on other grounds in Conservatorship of O.B. (2020)
9 Cal.5th 989, 1010, fn. 7.)
Here, Sharon testified that she permanently separated
from Winston after he violently attacked her in December 2006.
Sharon moved her residence to separate from Winston. Although
Winston lived close by, Sharon perceived the rift in their
marriage as final. According to Sharon and Melissa, Sharon
never lived with Winston again. Sharon testified that, after
December 2006 domestic violence incident, she did not have
sexual relations with Winston, use the same bathroom as
Winston, or eat a meal with Winston. Sharon testified that the
13
parties did not hold themselves out as a married couple.
Although Winston testified that he and Sharon had a
“loving relationship” through September 2015 and did not
separate until Sharon sold the Vanowen property, the trial court
found Sharon’s “explanation and testimony more credible than
[Winston’s].” Indeed, the trial court found Winston “to have little
to no credibility on key issues relating to the date of separation.”
Winston does not address the trial court’s adverse credibility
findings. Rather, he recites his testimony supporting his
September 2015 date of separation. However, “[w]e are ‘not a
second trier of fact.’” (Orozco v. WPV San Jose, LLC (2019) 36
Cal.App.5th 375, 391; see Western States Petroleum Assn. v.
Superior Court (1995) 9 Cal.4th 559, 571 [“‘[w]hen two or more
inferences can be reasonably deduced from the facts, the
reviewing court is without power to substitute its deductions for
those of the trial court’”]; Hawkins v. City of Los Angeles (2019)
40 Cal.App.5th 384, 393 [credibility is the exclusive province of
the trier of fact]; Sav-On Drug Stores, Inc. v. Superior Court
(2004) 34 Cal.4th 319, 334 [“‘questions as to the weight and
sufficiency of the evidence, the construction to be put upon it, the
inferences to be drawn therefrom, the credibility of witnesses . . .
and the determination of [any] conflicts and inconsistencies in
their testimony are matters for the trial court to resolve’”]; In re
Marriage of Meegan (1992) 11 Cal.App.4th 156, 162 [“[c]redibility
is a matter within the trial court’s discretion”].)
Under these circumstances, the trial court reasonably
concluded that, even though Sharon was “doing a lot to help”
Winston, “they were not living as husband and wife.”
Accordingly, substantial evidence supported the trial court’s
finding that the date of separation was December 17, 2006.
14
C. The Trial Court Did Not Err in Awarding the
Vanowen and Woodcock Properties to Sharon Without
Reimbursement to Winston
1. Applicable Law and Standards of Review
a. Characterization
A spouse’s time, skill, and labor are community assets and
his or her earnings during marriage are community property, but
“after the date of separation” earnings and accumulations of a
spouse “are the separate property of the spouse.” (§§ 760, 771,
subd. (a).) “The trial court must characterize the property for
purposes of this division as separate, community, or quasi-
community.” (In re Marriage of Sivyer-Foley & Foley (2010) 189
Cal.App.4th 521, 525-526; accord, In re Marriage of Rossin (2009)
172 Cal.App.4th 725, 732; In re Marriage of Haines (1995) 33
Cal.App.4th 277, 291.) “The characterization of property as
community or separate can be determined by the date of
acquisition, the application and operations of presumptions, or by
whether the spouses have transmuted the property.” (In re
Marriage of Sivyer-Foley & Foley, at p. 526; accord, In re
Marriage of Rossin, at p. 732.)
“‘Perhaps the most basic characterization factor is the time
when property is acquired in relation to the parties’ marital
status.’” (In re Marriage of Rossin, supra, 172 Cal.App.4th at
p. 732; see Marriage of Lehman (1998) 18 Cal.4th 169, 177
[“[w]hat is determinative of characterization is . . . a single
concrete fact−time”]; In re Marriage of Buol (1985) 39 Cal.3d 751,
757, [“‘[t]he status of property as community or separate is
normally determined at the time of its acquisition’”].) “The
character of the property as separate or community is fixed as of
the time it is acquired; and the character so fixed continues until
15
it is changed in some manner recognized by law, as by agreement
of the parties.” (In re Marriage of Rossin, at p. 732.)
“‘Allegations . . . that legal title does not represent beneficial
ownership have . . . been historically disfavored because society
and the courts have a reluctance to tamper with duly executed
instruments and documents of legal title.’” (In re Marriage of
Haines, supra, at p. 294; accord, Weiner v. Fleischman (1991) 54
Cal.3d 476, 489.)
“[W]e review the trial court’s factual findings regarding the
character and value of the parties’ property under the substantial
evidence standard.” (In re Marriage of Sivyer-Foley & Foley,
supra, 189 Cal.App.4th at p. 526; accord, In re Marriage of
Rossin, supra, 172 Cal.App.4th at p. 734.) “‘“The finding of a trial
court that property is either separate or community in character
is binding and conclusive on the appellate court if it is supported
by sufficient evidence, or if it is based on conflicting evidence or
upon evidence that is subject to different inferences.”’” (In re
Marriage of Klug (2005) 130 Cal.App.4th 1389, 1398.) “‘But de
novo review is appropriate where resolution of “‘the issue of the
characterization to be given (as separate or community property)
. . . requires a critical consideration, in a factual context, of legal
principles and their underlying values, [such that] the
determination in question amounts to the resolution of a mixed
question of law and fact that is predominantly one of law.’’” (In re
Marriage of Walker (2012) 203 Cal.App.4th 137, 152; accord, In re
Marriage of Rossin, supra, 172 Cal.App.4th at p. 734.) Although
the court’s factual findings are reviewed for substantial evidence,
“[t]he trial court’s selection of what legal principles to apply is
subject to de novo review.” (In re Marriage of Ettefagh (2007) 150
Cal.App.4th 1578, 1584.)
16
b. Reimbursement
Section 2640, subdivision (c), provides: “A party shall be
reimbursed for the party’s separate property contributions to the
acquisition of property of the other spouse’s separate property
estate during the marriage . . . .” (Italics added.) The party
claiming a reimbursement has the burden of proving his or her
entitlement to the reimbursement. (In re Marriage Ciprari,
supra, 32 Cal.App.5th at p. 101; accord, In re Marriage of
Cochran (2001) 87 Cal.App.4th 1050, 1057-1058.)
“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.’””
(Almanor Lakeside Villas Owners Assn. v. Carson (2016) 246
Cal.App.4th 761, 769; accord, Eisen v. Tavangarian (2019) 36
Cal.App.5th 626, 647; Juen v. Alain Pinel Realtors, Inc. (2019) 32
Cal.App.5th 972, 978; Dreyer’s Grand Ice Cream, Inc. v. County of
Kern (2013) 218 Cal.App.4th 828, 838.)
““‘Specifically, the question becomes 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.””” (Patricia A. Murray Dental Corp. v. Dentsply
Internat., Inc. (2018) 19 Cal.App.5th 258, 270; accord, Petitpas v.
Ford Motor Co. (2017) 13 Cal.App.5th 261, 302-303.) “‘Where, as
here, the judgment is against the party who has the burden of
proof, it is almost impossible for him [or her] to prevail on appeal
by arguing the evidence compels a judgment in his [or her] favor.
That is because unless the trial court makes specific findings of
fact in favor of the losing plaintiff, we presume the trial court
found the plaintiff’s evidence lacks sufficient weight and
17
credibility to carry the burden of proof. [Citations.] We have no
power on appeal to judge the credibility of witnesses or to
reweigh the evidence.’” (Patricia A. Murray Dental Corp., at
p. 270; accord, Bookout v. State of California ex rel. Dept. of
Transportation (2010) 186 Cal.App.4th 1478, 1486.)
2. Vanowen Property
Winston argues “that he was sole care giver of Ms.
Behmen” and that Sharon’s “name alone was always in their
transactions because he was an undocumented alien.” Therefore,
the trial court’s finding that the Vanowen property was Sharon’s
separate property “is clearly unsupported by a [sic] substantial
evidence.” Winston is incorrect. Substantial evidence supported
the trial court’s characterization of the Vanowen property as
Sharon’s separate property. The trial court’s ruling was also
legally sound.
Sharon acquired the Vanowen property two years after the
date of separation. If “unrelated to the community,” a spouse’s
acquisition of property after the date of separation is the
acquiring spouse’s separate property. (In re Marriage of
Stephenson (1984) 162 Cal.App.3d 1057, 1085.) Winston has not
shown any connection between the Vanowen property and the
community. Given that the parties moved to the Vanowen
property after the date of separation, any efforts Winston
expended to care for Behmer were not the community’s efforts.
They were his separate efforts. (§ 771, subd. (a).) Therefore, the
Vanowen property was Sharon’s separate property. (In re
Marriage of Lee & Lin (2019) 41 Cal.App.5th 698, 700-701
[“property acquired after the date of separation [is] the acquiring
spouse’s separate property”]; § 752 [“[e]xcept as otherwise
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provided by statute, neither spouse has any interest in the
separate property of the other”].)
Further, Evidence Code section 662 establishes that the
“owner of the legal title to property is presumed to be the owner
of the full beneficial title” and that “[t]his presumption” can be
“rebutted only by clear and convincing proof.” (See In re
Marriage of Haines, supra, 33 Cal.App.4th at p. 297 [“[s]ection
662 establishes a rebuttable presumption in favor of title”]; see
generally Conservatorship of O.B., supra, 9 Cal.5th at p. 1011
[clear and convincing standard of proof requires “substantial
evidence from which a reasonable fact finder could find it highly
probable that the fact was true”].) Winston failed to offer
evidence of an agreement with Behmer or Sharon by which he
was supposed to own the Vanowen property. Even accepting
Winston’s testimony that he cared for Behmer, there was no
evidence that Behmer transferred the Vanowen property to
Sharon because of his efforts; only Winston’s conclusion that his
efforts resulted in Behmer’s transfer to Sharon. Winston failed to
rebut the presumption of title. (See In re Marriage of Brooks &
Robinson (2008) 169 Cal.App.4th 176, 189 [“[t]he presumption
[arising from the form of title] can be overcome only by evidence
of an agreement or understanding between the parties that the
title reflected in the deed is not what the parties intended”],
disapproved on other grounds in In re Marriage of Valli (2014) 58
Cal.4th 1396, 1405; accord, In re Marriage of Fossum (2011) 192
Cal.App.4th 336, 345; see generally Conservatorship of O.B.,
supra, 9 Cal.5th at pp. 1011-1012 [when reviewing the clear and
convincing standard of proof, “the court must view the record in
the light most favorable to the prevailing party below and give
appropriate deference to how the trier of fact may have evaluated
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the credibility of witnesses, resolved conflicts in the evidence, and
drawn reasonable inferences from the evidence”].)
As the trial court reasonably found, the Vanowen property
is Sharon’s separate property. (In re Marriage of Fossum, supra,
192 Cal.App.4th at p. 344 [“Under the ‘form of title’ presumption,
the description in a deed as to how title is held presumptively
reflects the actual ownership status of the property. [Citation.]
. . . Accordingly, absent a showing to the contrary, the status
declared by the instrument through which a party acquired title
will control”].)
As to Winston’s claim for reimbursement for promissory
note payments he allegedly made on the Vanowen property,
Sharon denied that Winston made any such payments. Thus,
Winston’s evidence was not uncontradicted and unimpeached.
Therefore, Winston did not meet his burden on appeal because
the evidence does not compel a finding in his favor as a matter of
law. (Juen v. Alain Pinel Realtors, Inc., supra, 32 Cal.App.5th at
p. 978; Almanor Lakeside Villas Owners Assn. v. Carson, supra,
246 Cal.App.4th at p. 769.)
Finally, even if there was a factual basis for Winston
having made note payments on the Vanowen property, he has not
shown they were made with community funds. While Winston
testified he worked as a handyman, the trial court found the
“primary source of [Winston’s] ‘earnings’ . . . post-separation has
been the illegal sale of drugs.” Whatever the source, he would
have used his separate property earnings to make the note
payments on Sharon’s separate property after the date of
separation. (§ 2640 [reimbursement for separate property
contributions to the other party’s separate property only “during
the marriage”]; cf. § 2626 [“[t]he court has jurisdiction to order
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reimbursement in cases it deems appropriate for debts paid after
separation but before trial”].)
3. Woodcock Property
Winston contends that Sharon “took a car title loan on a
community property car for $2,500 and put down $2,000 towards
the down payment on the Woodcock house.” Therefore, Winston
contends “the Woodcock property clearly[ ] should have been
found by the court to be community property.” Winston’s
argument lacks merit.
Sharon purchased the Woodcock property over nine years
after the date of separation with her separate property funds, the
sale proceeds from the Vanowen property. Sharon also made a
$2,000 down payment to purchase the property and took out a
loan secured by a deed of trust on the property. Sharon holds
title to the property. Winston maintained that Sharon used
community property to purchase the Woodcock property because
she obtained the $2,000 down payment from a “car title loan on a
community property car.” Sharon agreed that she obtained the
$2,500 loan, but she testified that the loan had “nothing to do
with the Woodcock property.” The trial court found Sharon more
credible than Winston. (See In re Marriage of Oliverez (2019) 33
Cal.App.5th 298, 319 [““‘[t]he trier of fact is the sole judge of the
credibility and weight of the evidence’””]; accord, In re Marriage
of Greenberg (2011) 194 Cal.App.4th 1095, 1099; see In re
Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 979 [“As
the trier of fact in this case, the trial judge was the exclusive
judge of the credibility of the evidence. [Citation.] In that role,
the judge may reject any evidence as unworthy of credence, even
uncontradicted testimony’’].) Under the circumstances, because
the uncontradicted and unimpeached evidence does not support
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Winston’s claim, Winston has not met his burden on appeal.
(Juen v. Alain Pinel Realtors, Inc., supra, 32 Cal.App.5th at
p. 978; Almanor Lakeside Villas Owners Assn. v. Carson, supra,
246 Cal.App.4th at p. 769.)
Accepting that the $2,500 vehicle title loan was the source
of the $2,000 payment, Winston’s claim also fails because there
was no evidentiary foundation to support a community property
car’s involvement in the transaction. Although the parties agreed
that Winston “owned” the vehicle, Winston does not cite to
evidence showing that the vehicle was a “community property
car.” There was no evidence as to when he acquired the vehicle,
the source of funds used to acquire the vehicle, or why the
vehicle’s title was in Princessa’s name. Accordingly, the trial
court reasonably concluded that Winston “failed to meet his
burden of proving that community funds were used for the
purchase[ ] of the Woodcock property or that any community
funds were used to maintain or pay the expenses and taxes on
the property.”
D. The Trial Court Did Not Abuse Its Discretion in
Admitting Sharon’s Tax Returns
Winston argues that the trial court erred in admitting into
evidence Sharon’s 2015 and 2016 tax returns because of “the
glaring lack of foundation and authentication for said tax
returns.” We review a trial court’s evidentiary rulings for abuse
of discretion. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-
447; Pannu v. Land Rover North America, Inc. (2011) 191
Cal.App.4th 1298, 1317.)
Sharon offered the returns to show her “married filing
separately” status for the 2015 and 2016 tax years. Based on
Sharon’s testimony that the returns were copies of her filed tax
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returns, the trial court admitted the documents. Because
Winston did not object to their admission, he forfeited the
argument that the returns were not properly authenticated.
(Evid. Code, § 353, subd. (a); SCI California Funeral Services,
Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 563-
565; Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 726; see
also In re Marriage of E. & Stephen P. (2013) 213 Cal.App.4th
983, 991, disapproved on other grounds in Conservatorship of
O.B., supra, 9 Cal.5th at p. 1010, fn. 7.)
Even if Winston did not forfeit the argument, a document is
authenticated when sufficient evidence has been produced to
sustain a finding that the document is what it purports to be
(Evid. Code, § 1400). “As long as the evidence would support a
finding of authenticity, the writing is admissible. The fact
conflicting inferences can be drawn regarding authenticity goes to
the document’s weight as evidence, not its admissibility.”
(Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 321; accord, People
v. Goldsmith (2014) 59 Cal.4th 258, 267; Kinda v. Carpenter
(2016) 247 Cal.App.4th 1268, 1288-1289.) The trial court was
within its discretion in admitting the documents.
Further, any error in admitting the documents was
harmless because Winston cannot demonstrate prejudice.
Sharon’s credible testimony supported the December 2006 date of
separation as did Melissa’s testimony. The trial court found that
Winston’s testimony was not credible. (Evid. Code, § 353, subd.
(b); In re Marriage of Goddard (2004) 33 Cal.4th 49, 56 [“the
presumption in the California Constitution is that the ‘improper
admission or rejection of evidence . . .’ is subject to harmless error
analysis and must have resulted in a ‘miscarriage of justice’ in
order for the judgment to be set aside. (Cal. Const., art. VI,
23
§ 13.)”]; Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village
Square Venture Partners (1997) 52 Cal.App.4th 867, 884
[“[p]rocedural defects which do not affect the substantial rights of
the parties do not constitute reversible error”]; see also Code Civ.
Proc., § 475 [“[t]he court must, in every stage of an action,
disregard any error, improper ruling, instruction, or defect, in the
pleadings or proceedings which, in the opinion of the court, does
not affect the substantial rights of the parties”].)
DISPOSITION
The judgment is modified: to delete the sentence, “The
court reserves jurisdiction over income tax liability,” on page two
at paragraph 2(e), and correct the final sentence in the sixth
paragraph on page two of the attachment to the judgment, so it
states, “Sharon shall be solely responsible for the cost of the
storage unit.” As modified, the judgment is affirmed.
DILLON, J.
We concur:
PERLUSS, P. J. SEGAL, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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