In re Marriage of Gurney and Kalcheim CA2/4

Filed 5/14/13 In re Marriage of Gurney and Kalcheim CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re the Marriage of B235406
DEIRDRE DELANEY GURNEY and
MITCH KALCHEIM. (Los Angeles County
Super. Ct. No. BD338904)
DEIRDRE DELANEY GURNEY,
Respondent,
v.
MITCH KALCHEIM,
Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Donna Fields Goldstein, Judge. Affirmed in part, reversed in part, and remanded.
Kalcheim Law Group and Mitch Kalcheim, in pro. per.; Greenberg Glusker
Fields Claman & Machtinger and Norman H. Levine for Appellant.
Law Offices of Mark Vincent Kaplan, Mark Vincent Kaplan and Jeannette
L. Flynn for Respondent.
Mitch Kalcheim (Kalcheim) appeals from the judgment entered in this
dissolution action with his former wife, Deirdre Delaney Gurney (Gurney).
Kalcheim raises a number of challenges to the trial court‟s findings. We find most
of his contentions unmeritorious. However, we conclude that the trial court erred
in awarding Gurney prejudgment interest and in failing to credit Kalcheim for
taxes he paid on post-separation distributions from a company he helped found and
manage. We therefore reverse the award of prejudgment interest and the award of
Gurney‟s portion of Kalcheim‟s post-separation distributions and remand for the
trial court to redetermine the award to Gurney. We otherwise affirm.
BACKGROUND
The parties began living together in July or August of 1992 while they were
in law school. They married on June 8, 1996, and the trial court found that they
separated on October 31, 2000. Gurney filed a petition for dissolution of marriage
on January 31, 2001.
The trial court issued a Final Statement of Decision on May 10, 2011, and
final judgment was entered on July 19, 2011. Kalcheim timely appealed.
The following assets were at issue in this case.
1. Kalcheim’s Law Practice
Kalcheim started a law practice in December 1998. Gurney graduated from
law school but never practiced or completed the bar.
2. Property in Laughlin, Nevada
In late 1998, Kalcheim‟s stepfather, Stanley Heller, arranged for Kalcheim
to take title to property in Nevada through a foreclosure sale. Kalcheim executed a
$200,000 promissory note in favor of Heller on November 30, 1998. At trial,
Gurney estimated the property to be worth $2 million.
2
Gurney testified that the Nevada property was a gift to her and Kalcheim
from Kalcheim‟s mother and stepfather. She testified that, after the property was
purchased, she had no involvement with the property other than to give one or two
tax bills to Heller for him to pay. After the divorce proceedings commenced,
Gurney learned that the property was going to go into foreclosure for unpaid taxes
of approximately $70,000. She paid half of the $70,000, which represented about
three years of unpaid taxes.
Kalcheim did not include the Nevada property in his April 2001 declaration
of disclosure of assets. He testified that he had forgotten about his interest in this
property. He listed the property in a January 2003 schedule of assets, but he wrote
that he owed $125,000 in back taxes and did not include a fair market value
because he had been told it could not be determined. He testified that Heller and
someone named Albert Grossman told him that the property was worth little to
nothing.
While the parties were attempting to settle this case, Kalcheim told Gurney
the property was worthless because there was no way to provide electricity and
water, so the property could not be developed. He also told Gurney she “could
have it,” but it would be a liability to her. Kalcheim subsequently told Gurney that
the property had been a separate property gift to him alone.
Kalcheim also pressed Gurney to quitclaim the property to him, saying that
the divorce would be settled if she did. In 2003, Kalcheim told Gurney that if she
did not quitclaim the property, he would create a false promissory note showing
that the property belonged to Heller.
Kalcheim and Heller sued Gurney and her counsel in Nevada, seeking to
quiet title to the property in Heller‟s name. The Nevada court ruled that the
property was community property and ordered that title be recorded in Kalcheim‟s
and Gurney‟s names.
3
3. Westmark and Denvest
In 1999, Kalcheim and Gurney, with Heller‟s help, began a business to
invest in Danish mortgages. The business was composed of Westmark Capital, an
investment fund, and Denvest, which was the managing general partner of
Westmark. Kalcheim and Heller jointly managed Westmark through Denvest.
The corporate papers for Denvest were filed between June and October 1999, and
Denvest began receiving investors‟ funds in October 1999. Heller, the primary
investor in Westmark, initially invested between $1 million and $1.2 million.
Kalcheim received seven of the twelve Denvest shares because the business was
his idea, and Heller received five of the twelve shares, which were split among his
other children and stepchildren. Heller did not keep any shares, instead giving one
share each to his children.
Kalcheim testified that Denvest earned a management fee of 20 percent of
Westmark‟s profit and that his seven shares were worth approximately 54 percent
of Denvest. He explained that, during the first year Denvest was in business, his
role was to learn from Heller, but that his role had grown so that he was working
for Denvest on a daily basis on matters that included making the investment and
borrowing decisions.
4. Gurney’s $290,000 Settlement of Sexual Harassment Lawsuit
In March 1999, Gurney received a $290,000 settlement in an action for
sexual harassment and constructive discharge. Gurney‟s brother died during the
litigation, so she and Kalcheim agreed that she should settle the case in order to
have money to help care for her brother‟s family. Gurney testified that she put the
funds in a Citibank account so they could be invested in Denvest. She thought the
money was going to be invested in Danish mortgages.
4
5. ALM Account and Homer Travel
At some point before Gurney received her settlement funds, Kalcheim
opened an account at ALM, a bank in Denmark. The parties disputed what their
agreement was regarding how to invest Gurney‟s settlement funds, but the trial
court found that they agreed to place the funds in the ALM account, to be invested
in Westmark once the fund was started.
On January 11, 2001, shortly before Gurney filed this action, Kalcheim
transferred $75,000 from the ALM account to Homer Travel, a corporation owned
by Heller that invested in Danish mortgages. The parties did not dispute whether
the transfer occurred, but they disputed whether they received consideration for the
transfer. Kalcheim testified that they received $75,000 worth of Danish mortgages
and bonds in exchange, citing a January 15, 2001 statement from ALM. Heller did
not recall the transfer. The trial court found that Kalcheim did not produce
credible evidence that they received Danish mortgages in exchange for the transfer.
DISCUSSION
“The trial court has broad discretion to determine the manner in which
community property is divided, although, absent an agreement, it must be divided
equally. [Citations.] Accordingly, we review the trial court‟s judgment dividing
marital property for an abuse of discretion. [Citations.] In addition, we review the
trial court‟s factual findings regarding the character and value of the parties‟
property under the substantial evidence standard. [Citations.] Ultimately we
review characterization issues independently because they are a mixed question of
fact and law involving application of the law to facts. [Citations.]” (In re
Marriage of Sivyer-Foley & Foley (2010) 189 Cal.App.4th 521, 526.) Although
the court‟s factual findings are reviewed for substantial evidence, “[t]he trial
5
court‟s selection of what legal principles to apply is subject to de novo review.
[Citation.]” (In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 1584.)
“„“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; . . .” [Citations.]‟ [Citations.]” (In re Marriage
of Klug (2005) 130 Cal.App.4th 1389, 1398 (Klug).)
“„“„When a finding of fact is attacked on the ground that there is no
substantial evidence to sustain it, the power of an appellate court begins and ends
with the determination as to whether there is any substantial evidence, contradicted
or uncontradicted, which will support the finding of fact. [Citations.] [¶] When
two or more inferences can reasonably be deduced from the facts, a reviewing
court is without power to substitute its deductions for those of the trial court.‟”‟
[Citation.]” (In re Marriage of Guo & Sun (2010) 186 Cal.App.4th 1491, 1497
(Guo).) “Appellate courts „do not reweigh evidence or reassess the credibility of
witnesses. [Citation.]‟ [Citation.]” (In re Marriage of Balcof (2006) 141
Cal.App.4th 1509, 1531 (Balcof).)
Kalcheim challenges a number of the trial court‟s findings and
determinations. We address the issues seriatim.
1. Lawsuit Settlement Funds
Kalcheim contends that the trial court erred in awarding the entire amount of
Gurney‟s sexual harassment settlement to her. He argues that the court erred in
failing to distinguish between claims that accrued before marriage and those that
accrued during the marriage, and that the court erred in failing to count Gurney‟s
post-marriage lost wages as community property. He submitted into evidence
Gurney‟s employment discrimination complaint, which alleged that she was
6
employed by the company from August 17, 1995 to December 5, 1996, and that
she was subjected to sexual harassment from her first week of employment to her
final day. The parties married on June 8, 1996.
Relying on Klug, supra, the trial court found that the cause of action arose
prior to marriage because the events forming the basis of her claims occurred, “for
the most part, prior to marriage.” The court further found that the interest of
justice required the proceeds to be assigned to Gurney pursuant to Family Code
section 2603.1 We conclude that the trial court did not abuse its discretion in
awarding the entire amount to Gurney.
As the trial court reasoned, most of the events forming the basis of her
claims occurred prior to marriage. Moreover, to the extent that any of the events
occurred during marriage such that the proceeds could be characterized as
community property, the statute provides in pertinent part that “[c]ommunity estate
personal injury damages shall be assigned to the party who suffered the injuries
unless the court . . . determines that the interests of justice require another
disposition.” (§ 2603, subd. (b).) Thus, under section 2603, the settlement
proceeds were properly awarded to Gurney.
Kalcheim also challenges the court‟s finding that the settlement funds should
not have been used for living expenses, which should have been paid from
Kalcheim‟s separate Citigold account. Whether the settlement funds should have
been used for living expenses, however, is not pertinent because, as stated above,
section 2603 provides for the entire settlement to be awarded to Gurney.
2. Management of Settlement Proceeds
1
All further statutory references are to the Family Code unless otherwise specified.
7
Kalcheim challenges the court‟s finding that he was obligated to invest the
settlement funds in Westmark and supervise the funds as a fiduciary. The court
noted that the parties disputed how the settlement funds would be invested in 1999
and found Gurney‟s testimony credible. The court thus found that the parties had
agreed that the settlement funds would be placed in the ALM account and then
invested in Westmark when the fund was started. The court further found that
Kalcheim breached his fiduciary obligations to Gurney by investing the settlement
funds in the ALM account rather than Westmark.
Kalcheim argues that Westmark was not in existence when they received the
settlement funds and that there was no evidence that the ALM account was an
imprudent investment, pointing out that he had invested his own assets in ALM.
He also argues that Gurney knew that part of her money was in the ALM account
and that she was lying when she testified that she believed all her money was
invested in Denvest.
In substance, Kalcheim‟s argument is that he managed Gurney‟s settlement
funds to the best of his ability and with Gurney‟s permission, pointing out that he
invested the funds in the same manner that he invested his own and community
property. The trial court found that Kalcheim breached his fiduciary duty by
spending part of the money on the couple‟s living expenses and by failing to invest
the money in Westmark, contrary to Gurney‟s expectations. The question on
appeal is whether there is “any substantial evidence, contradicted or
uncontradicted, which will support the finding of fact.” (Guo, supra, 186
Cal.App.4th at p. 1497.) We conclude that the evidence is sufficient to support the
trial court‟s finding.
First, we note that we may not revisit the trial court‟s credibility
determinations on appeal. (Balcof, supra, 141 Cal.App.4th at p. 1531.) The trial
court found Gurney‟s testimony throughout the trial “generally credible” and
8
Kalcheim‟s to be “lacking credibility in many respects.” We therefore do not
address Kalcheim‟s argument that Gurney was lying when she testified that she
believed her money was invested in Denvest.
As to Kalcheim‟s argument that Westmark was not in existence at the time
Gurney received her settlement funds, a document used to impeach Heller showed
that investors were being solicited to invest in Westmark in April 1999.2 Gurney‟s
lawsuit was settled in March 1999. The record thus indicates that Westmark was
being formed around the same time as Gurney‟s sexual harassment lawsuit was
being settled.
Gurney testified that she put the funds in a Citibank account so they could be
invested in Denvest. Her understanding was that her money was being invested in
Danish mortgages. She also testified that she frequently heard Kalcheim tell others
that her money was invested in Denvest. Gurney‟s mother, Anne Delaney,
testified that she and her husband invested in Denvest, and that Kalcheim told her
that Gurney‟s settlement funds also would be invested in Denvest. Delaney
testified that she and her husband invested in Denvest in October 1999 and sold the
investment in 2007, by which time the investment had tripled in value.
Gurney stated that she learned through these proceedings that Denvest was
started later, so that her money in an ALM account, which was managed in the
same way as Denvest, “seemed to grow proportionately with Denvest.” Her
understanding was that her money was invested in the ALM account, which was
“doing the same thing” as Denvest. She stated that no other property was invested
2
The document was entitled, “Confidential Offering Memorandum,” and Heller
admitted that it was the offering memorandum that they used to solicit investors, and that
it was dated April 30, 1999.
9
in the ALM account with her settlement funds and that, other than her settlement
funds, they always commingled their money in a Citibank account.
Kalcheim testified that $154,690 of Gurney‟s settlement funds were invested
in an ALM account that he opened in 1998 with separate property he received from
a $200,000 settlement after he was bitten by a dog. The trial court found that the
couple used the other $135,000 for living expenses, and Kalcheim does not contest
that finding on appeal.
Kalcheim explained at trial that money was not invested in Denvest, which
was only the managing partner of Westmark and did not take investments. He
further testified that he never invested community funds in Westmark and never
would have done so because participants in Westmark paid a management fee for
his expertise in managing the fund, so “why would I pay a management fee to
another entity if I‟m managing it anyway.” Gurney points out that Denvest
employed a professional manager, and that she would have had the benefit of
professional management had her funds been invested in Westmark.
Although Kalcheim points to evidence contradicting Gurney‟s testimony, on
appeal we review the record for evidence supporting the trial court‟s finding,
whether contradicted or uncontradicted. (Guo, supra, 186 Cal.App.4th at p. 1497.)
The record indicates that Gurney thought Kalcheim was investing her entire
settlement fund in Westmark, but, unbeknownst to her, $135,000 was used for the
couple‟s living expenses, and $154,690 was invested in ALM but never moved to
Westmark. The record also indicates that Delaney‟s investment in Westmark
tripled from 1999 to 2007. Despite the contradictory evidence cited by Kalcheim,
we conclude that there is evidence to support the trial court‟s findings that the
parties agreed to invest the settlement fund in Westmark and that Kalcheim
breached his fiduciary duty to Gurney by failing to do so and by using part of the
fund for living expenses.
10
3. Homer Travel
Kalcheim contends that the trial court‟s conclusion that he transferred
$75,000 from the ALM account to Homer Travel without consideration is not
supported by the evidence.
During trial, Kalcheim testified that the couple received $75,000 worth of
Danish mortgages and bonds in exchange for the transfer and submitted a January
15, 2001 statement from ALM. The trial court asked Kalcheim numerous
questions about the statement, which was difficult to understand because it was
from a Danish bank. The court asked Kalcheim where the statement showed a
$75,000 transfer of mortgages or bonds from Homer Travel, and Kalcheim pointed
out a deposit of 598.842 Danish krone (DKK), which converted at the time to
$75,000. The court asked about the use of a period instead of a comma if the
amount was 598,000, and Kalcheim explained that was the practice in Denmark.
Kalcheim also pointed out where the conversion rate from Danish krones to U.S.
dollars was found on the statement. Kalcheim answered more questions, but the
court concluded that the document did not “on its face” show that the couple
received consideration for the $75,000 transfer.
On appeal, Kalcheim relies on an April 2001 statement from ALM that
shows a deposit of bonds in the amount of 386.350 DKK, plus an amount of
226.865 DKK in an account. The sum of these two amounts equals 613,215 DKK,
which Kalcheim asserts to be approximately $75,000. The problem, however, is
that this indicates a deposit of only 386.350 DKK, and it does not indicate the
January 15, 2001 deposit of 598.842 DKK that Kalcheim testified about at trial.
11
In addition, this is not the January 2001 statement that was discussed at
trial.3 Gurney points out that the April 2001 statement was admitted into evidence
by stipulation as to foundation only. We conclude that Kalcheim has failed to
establish that the trial court erred in finding that there was no consideration given
for the $75,000 transfer.
4. Interest Award
Kalcheim contends that the trial court erred in ordering him to pay Gurney
10 percent annual interest on the total amount he pays her. We agree.
The court awarded Gurney 50 percent of the value of Kalcheim‟s law
practice, plus simple interest of 10 percent per year.4 In awarding interest, the
court relied on In re Marriage of Watts (1985) 171 Cal.App.3d 366 (Watts) and
“common sense,” stating that Kalcheim had had the sole use of this asset for nine
years. In Watts, the trial court found that the husband had the use of the family
residence and his medical practice between the date of separation and the date of
3
Kalcheim contends that the trial court was confused about the exhibit on which he
relied to explain the transfer to Homer Travel. It is true that the court mistakenly cited
Exhibit HH, rather than Exhibit II, when it stated that it found Kalcheim‟s testimony
regarding the transfer of the $75,000 non-credible. As Kalcheim points out, Exhibit HH
was a 1999 ALM statement introduced during testimony about the deposit of Gurney‟s
settlement proceeds. The court‟s mistaken citation to Exhibit HH does not establish that
the court was confused when it found Kalcheim‟s testimony non-credible. The transcript
indicates that the court was not confused about which exhibit Kalcheim was relying on
during his testimony. The court examined and questioned Kalcheim regarding Exhibit II,
the January 2001 statement, and found that it did not support his claim.
4
In addition, the court awarded “10% simple interest” on Gurney‟s share of each of
the post-separation distributions Kalcheim received from Denvest, on the $875,115 award
for the court‟s estimate of the amount Gurney would have received on her $290,000
settlement had it been invested in Westmark, and on $121,750 that Gurney owed
Kalcheim for three notes she executed.
12
trial, two years later, but concluded it did not have authority to require him to
reimburse the community. On appeal, the court held that the trial court did have
authority to reimburse the community for the value of the husband‟s exclusive use
of community assets between separation and trial. (Watts, supra, 171 Cal.App.3d
at p. 374.)
Watts does not address the award of interest. It merely required the husband
to reimburse the community for the value of his exclusive use of the community
assets following separation.
Gurney relies on Patrick v. Alacer Corp. (2011) 201 Cal.App.4th 1326(Patrick), in which the wife sued her husband‟s separate property corporation, its
directors, trustees, and trust beneficiaries following his death in 2003. The trial
court found that she had a community property interest in the company‟s increased
value during the marriage and awarded her one-half of the increased value, plus
prejudgment interest. The appellate court stated that “„[p]rejudgment interest is
awarded to compensate a party for the loss of the use of his or her property.‟
[Citation.]” (Id. at p. 1344.) The court relied on Civil Code section 3288, which
provides: “In an action for the breach of an obligation not arising from contract,
and in every case of oppression, fraud, or malice, interest may be given, in the
discretion of the jury.” The court thus upheld the award of prejudgment interest,
citing the plaintiff‟s loss of the use of a community property interest for several
years. (Id. at pp. 1344-1345.)
Patrick did not involve a marriage dissolution proceeding, but an action
following the husband‟s death against his corporation. The trial court‟s award of
interest in Patrick thus was based on Civil Code section 3288. The trial court here
13
did not indicate the basis for the award of interest or for the amount awarded.5
Gurney has not pointed to any provision in the Family Code that authorizes the
award of interest at the time the court divides the community assets, and
independent research has not indicated such authority. To the contrary, caselaw
suggests otherwise.6 (See Roy v. Roy (1938) 29 Cal.App.2d 596, 606 [overturning
the trial court‟s award of prejudgment interest on an award of assets in a divorce
action, stating that “[t]he allowance of such interest is not supported by pleading,
evidence or finding, and the interest provided by law for judgments would not
attach until judgment was entered”].) We therefore reverse the trial court‟s award
of interest on the amount Kalcheim owed Gurney.
5. Denvest
Kalcheim contends that the trial court erred in valuing Gurney‟s interest in
Denvest. The court found that Denvest was created during marriage but that no
community property was invested in Westmark, which was created around April
1999 and funded in October 1999. The funds were managed by Heller, Kalcheim,
and Jens Schmidt, who received a management fee of 5 percent of Westmark‟s net
interest income. The court found that Denvest was worth $150,000 at the time of
trial, and that all of this was community property.
5
The “statutory interest rate” of 10 percent that expert Stephan Wasserman testified
about presumably is that found in Code of Civil Procedure section 685.010. That section,
however, addresses the accrual of interest on the principal amount of a money judgment
that remains unsatisfied. (See, e.g., In re Marriage of Cordero (2002) 95 Cal.App.4th
653 [addressing the accrual of 10 percent interest on unpaid spousal support payments].)
The interest awarded here was prejudgment, not postjudgment.
6
The only authority we located was the general provision of section 2553 that
“[t]he court may make any orders the court considers necessary to carry out the purposes
of this division.”
14
Kalcheim argues that the court erred in valuing Denvest at the time of trial
rather than the time of separation, pointing out that Gurney asked the court to value
Denvest as of the date of separation. The trial court valued Denvest at the time of
trial, stating that “[a]ny earlier date of valuation was waived by not moving for
such different date under . . . § 2552(b).”
The Family Code provides that “the court shall value the assets and
liabilities as near as practicable to the time of trial.” (§ 2552, subd. (a).) However,
“[u]pon 30 days‟ notice by the moving party to the other party, the court for good
cause shown may value all or any portion of the assets and liabilities at a date after
separation and before trial to accomplish an equal division of the community estate
of the parties in an equitable manner.” (Id., subd. (b).) Under section 2552, “the
trial court has considerable discretion to divide community property in order to
assure that an equitable settlement is reached. [Citation.] „As long as the court
exercised its discretion along legal lines, its decision will be affirmed on appeal if
there is substantial evidence to support it.‟ [Citation.]” (In re Marriage of Nelson
(2006) 139 Cal.App.4th 1546, 1550.)
Kalcheim did not move to value Denvest as of the date of separation. The
court accordingly did not abuse its discretion in valuing Denvest as of the time of
the trial. (See In re Marriage of Hargrave (1985) 163 Cal.App.3d 346, 355
[concluding that the referee correctly valued property as of the time of trial where
the wife failed to move for valuation at the time of separation under former Civil
Code section 4800, subdivision (a)].)
In addition to the valuation of Denvest, the court awarded Gurney an interest
in Denvest distributions that Kalcheim received post-separation. The court stated
that Denvest received 20 percent of Westmark‟s net income as a management fee
and that, post-separation, Kalcheim received $574,578 in management fees from
Denvest. The court reasoned that, in order to treat the fees as management fees, it
15
needed to find that Kalcheim‟s “effort was more than minimal” pursuant to In re
Marriage of Dekker (1993) 17 Cal.App.4th 842 (Dekker). Kalcheim contends that
all of the distributions were to compensate him for his post-separation management
services and so should have been awarded to him as his separate property.
Relying on testimony by Heller and Gurney‟s expert, Stephan Wasserman,
the court found that attributing all seven of Kalcheim‟s shares to his management
efforts would result in an excessive management fee. The court thus found that
two of Kalcheim‟s seven Denvest shares were for his management efforts and the
remaining five shares were for his ownership interest, reasoning that Heller took
five shares for his ownership interest, and that this represented a “generous”
management fee of 16.6 percent of Denvest‟s income. The court thus
characterized two-sevenths of the gross distributions as Kalcheim‟s separate
property and the remainder as community property. The court awarded Gurney 10
percent interest on her portion of the distributions.
Kalcheim argues that he was entitled to retain the post-separation income he
earned from Denvest because it was based solely on his management of the fund.
He also contends that he paid taxes on all his earnings, but the court did not reduce
the amount to be paid to Gurney or credit him for the taxes he paid. He also points
out that Gurney requested only her community property share of the management
fees for the year 2000, yet the trial court awarded fees from 2000-2007. We agree
with Kalcheim‟s contention that the court should have credited him for the taxes he
paid on the distributions.
Section 771 provides that “[t]he fruits of a spouse‟s postseparation efforts
and skill are his or her separate property [citations]. Therefore, where a
community asset increases in value because of a spouse‟s efforts after separation
(e.g., a [community property] business operated after separation), the increase must
be apportioned between the community and separate estates. [Citations.]”
16
(Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2012) ¶
8:350, p. 8-88; § 771, subd. (a).) Apportionment is required when “more than
minimal” effort is devoted to the business. (Dekker, supra, 17 Cal.App.4th at p.
851.)
“[I]n valuing the corporate earnings and spouse‟s salary with regard to a
community business operated after separation, „the apportionment formulas of
Pereira v. Pereira (1909) 156 Cal. 1 [. . .] and Van Camp v. Van Camp (1921) 53
Cal.App. 17 [. . .], must be applied in reverse . . . . [T]he court must use whichever
formula it deems appropriate. If the court chooses the Pereira approach, it “would
allocate a fair return of the increase to the community property and the excess
would be the husband‟s separate property.” [Citation.] If the court chooses the
Van Camp approach, it “would determine the reasonable value of husband‟s
services (less the draws or salary taken) and allocate this additional sum, if any, to
husband as his separate property and the balance of the increase to community
property.” [Citation.]‟ [Citation.]” (In re Marriage of Hargrave, supra, 163
Cal.App.3d at p. 356.)
“[C]ourts have not developed a precise standard in choosing between
Pereira or Van Camp, but have endeavored to adopt that formula which is most
appropriate and equitable under the circumstances. [Citation.] The court is not
bound to adopt a predetermined percentage as a fair return on separate business
capital, nor need it limit the community interest to a salary as reward for a spouse‟s
efforts, but may select whichever formula will effect substantial justice between
the parties. [Citation.]” (Dekker, supra, 17 Cal.App.4th at p. 853.)
Here, the trial court did not abuse its discretion in deciding that two-sevenths
of Kalcheim‟s distributions were based on his management and five-sevenths were
not. Although Kalcheim cites testimony that contradicts the court‟s finding, again,
17
we review the record only for evidence that supports the finding. (Balcof, supra,
141 Cal.App.4th at p. 1531.)
The court relied on the testimony of Heller and Wasserman in finding that
attributing all seven shares to management efforts would result in an excessive
management fee. Heller testified that Kalcheim solicited investors, drafted
documents, approved investments, and managed the portfolio with him. He and
Kalcheim did not directly earn management fees, but Denvest earned a
management fee of 20 percent of Westmark‟s net income.
Wasserman testified that Kalcheim was entitled to reasonable compensation
for the services he performed for Denvest after separation, but that whether
Kalcheim actually did manage Denvest was a contentious issue. Wasserman stated
that he and William Mowrey, Kalcheim‟s forensic accountant, agreed that one
percent of the assets under management was a reasonable management fee.
According to Wasserman, this percentage meant that Kalcheim should have
received about $100,000 in management fees from 2001 to 2007, the post-
separation period. Wasserman‟s testimony is sufficient to support the trial court‟s
determination that two-sevenths of the $574,578 in distributions constituted a
reasonable management fee for Kalcheim‟s post-separation work for Denvest.
Kalcheim also contends that the trial court erred in failing to take into
account the taxes he already had paid on the Denvest distributions. The record
supports Kalcheim‟s contention.
Wasserman worked with Mowrey on the valuation of Kalcheim‟s law
practice and Denvest. Wasserman testified that, in determining the community
property interest in the post-separation distributions, he subtracted $265,169 in
taxes from the $574,578 total distributions, resulting in $309,409 in net
distributions. Mowrey also testified that the community interest in the Denvest
distribution was subject to the taxes Kalcheim paid. However, Schedule 3, which
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Wasserman prepared and on which the court relied to determine Gurney‟s interest
in the distributions, was based on the total amount of $574,578, not the net after-
tax amount.
Gurney contends that Kalcheim did receive credit for his payment of income
taxes, but the citation she provides does not support her contention. She cites
Wasserman‟s testimony that he reduced the valuation of Denvest for taxes, but this
was for the $150,000 valuation of Denvest, not for the value of the distributions
that Kalcheim received post-separation. Kalcheim‟s post-separation distributions
from Denvest are a different asset from that discussed in Wasserman‟s testimony,
and his subsequent testimony regarding the post-separation distributions indicates
that the taxes Kalcheim had paid should have been deducted in calculating
Gurney‟s interest in the post-separation distributions.
The calculation of Gurney‟s interest in Kalcheim‟s post-separation
distributions should have taken into account the taxes Kalcheim already paid on
the distributions. We therefore set aside the trial court‟s award of $324,738 to
Gurney and remand for the court to redetermine the proper amount, taking into
account the taxes Kalcheim already paid on the distributions.
6. $30,000 Payment from Kalcheim’s Mother
Kalcheim contends that the trial court erred in awarding Gurney half of a
$30,000 payment he received from his mother for supervising the remodeling of an
apartment she owned in New York. The court characterized the $30,000 as
community property, saying that Kalcheim described it as “profit from the sale of
his mother‟s condominium since he helped sell it.”
Kalcheim argues that the trial court should not have treated the $30,000
deposit as a separate asset of the couple‟s because the uncontradicted evidence was
that he deposited it in the couple‟s community property ALM account. The trial
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court found that Kalcheim failed to present evidence of the $30,000 deposit
because the statement he provided was in Danish, and he did not provide any
translation of the document. The court also found that Kalcheim‟s testimony
regarding the $30,000 was “less than candid,” stating that he “testified that he
received these funds, then that he did not, then that they were for work he did on
the property sold, then for something else.”
Kalcheim testified that when his mother sold the apartment, she gave him
$30,000 because he helped supervise construction work that was done on the
apartment. He deposited the $30,000 in the parties‟ ALM account. He later
testified that part of the $30,000 was repayment for money he had spent for the
renovation and part of it was a gift. He also testified that he did not disclose the
$30,000 separately because it was on other income documents or tax returns. He
received the payment in 2003 or 2004. Gurney‟s counsel read an excerpt of
Kalcheim‟s deposition testimony, in which he stated that he received nothing from
the sale of the property, but Kalcheim stated that the deposition was taken before
he received the payment.
The record supports the trial court‟s findings. Kalcheim‟s testimony
regarding the reason for the payment was inconsistent, and the court reasonably
found Kalcheim‟s testimony that he deposited the $30,000 in the ALM account
was not credible. We may not revisit the court‟s credibility findings regarding
Kalcheim‟s testimony and, although there may be contradictory evidence, on
appeal we do not have the authority to substitute our deductions for those of the
trial court. (Guo, supra, 186 Cal.App.4th at p. 1497.)
7. Attorney Fees
Kalcheim‟s final contention is that the trial court erred in awarding attorney
fees to Gurney. The court indicated in its Final Statement of Decision that it would
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award attorney fees to Gurney on the basis that Kalcheim breached his fiduciary
duty to Gurney under section 1101, subdivision (a). However, Gurney points out
that the attorney fees and sanctions issues were bifurcated from the property issues
on the first day of trial. The court therefore did not order the payment of attorney
fees in the decision that is on appeal. Because Kalcheim did not file a notice of
appeal from the order of attorney fees, we are without jurisdiction to consider it.
(Cal. Rules of Court, rule 8.100; Code Civ. Proc., § 906.)
DISPOSITION
The trial court‟s award of interest on the amount Kalcheim owes
Gurney and its award of $324,738 as Gurney‟s portion of Kalcheim‟s post-
separation distributions from Denvest are reversed, and the matter is remanded for
the trial court to redetermine the amount Kalcheim owes Gurney. In all other
respects the judgment is affirmed. Each side to bear its own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J. MANELLA, J.
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