Chuang v. Chuang

Filed 3/8/07 Chuang v. Chuang CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County. Timothy Murphy, Commissioner. Affirmed.

Leo Pelletier & Wu and Miriam L. Wu, for Plaintiff and Appellant.

Bernard Beckker, for Defendant and Respondent.

_________________________

Jei Thong Chuang appeals from the courts judgment ordering him to pay spousal support to his ex-wife, Riri Shoji Chuang, and dividing their marital property. We affirm.

FACTS AND PROCEDURAL HISTORY

Jei Thong Chuang (Jei) and Riri Shoji Chuang (Riri) married in 1980 and filed for divorce in 2003. At the end of their marriage, they disagreed how to (1) divide their community assets of a home in San Marino, California and three apartments in Brazil, and (2) apportion a community debt of more than half-a-million dollars to Riris father. After a trial, the court awarded the apartments in Brazil to Jei and gave Riri the familys San Marino home. In addition, the court assigned to Jei as his responsibility repayment of $100,000 of the couples debt to Riris father, and assigned to Riri as her liability $450,000 owed to her father. Finally, the court ordered Jei to pay $750 in monthly support to Riri until she died or remarried. This appeal followed.

DISCUSSION

1. Division of Couples Real Estate

A court ordinarily must divide community property equally between ex-spouses, but may depart from an equal division to achieve substantial justice between the parties. (Fam. Code,  2550; In re Marriage of Steinberger (2001) 91 Cal.App.4th 1449, 1459.) Jei contends the court abused its discretion because it gave him as his share of marital property apartments in Brazil that neither he nor Riri owned, in effect giving him nothing. (In re Marriage of Gowan (1997) 54 Cal.App.4th 80, 88 [distribution of marital property reviewed for abuse of discretion].) We find the record shows otherwise.

Two apartments are in dispute, which the parties refer to as Apartments 601 and 602.[1] Jei claims a professional medical corporation of which he was a one-third shareholder had once owned Apartment 601.[2] He testified that the corporation sold the apartment to his father in 1989, and therefore neither he nor Riri owned it when they divorced more than ten years later. As proof of the sale, he introduced into evidence certified and notarized records from Brazil reflecting the sale in 1989 to his father.

Jei likewise claims Apartment 602 was not part of the marital estate, although, unlike Apartment 601, it once had been so. He testified he and Riri bought it in 1986. He also testified that he sold it with Riris consent to his 20-year-old nephew in 1993 who got the money to buy the apartment from Jeis father. As proof of the sale, Jei introduced certified and notarized Brazilian records reflecting the sale to his nephew. He also introduced a notarized power of attorney from Brazil attesting Riri appeared personally before a notary and appointed Jei as her attorney authorized to act on her behalf.

Riri testified she first learned Jei had sold the apartments when she received the Brazilian title documents during the dissolution proceedings. In addition, she denied having signed the power of attorney or consenting to the sale of the apartments.

Jei contends Riris testimony is not of the nature and solid value needed to overcome the evidentiary value of the documents from Brazil. He cites no authority, however, that compels a court to accept the validity of such documents even if notarized and certified over the testimony of a witness who disputes their veracity. Implicit in the courts division of the marital real estate was the courts conclusion there was something untoward about the purchase of the apartments by Jeis father and nephew, despite what the documents reflected. The trial courts resolution of the conflicting evidence about the sales of the apartments turned on Riris and Jeis credibility. By crediting the apartments to Jeis side of the marital property ledger, the court implicitly found Riri more credible than Jei. That credibility finding binds us. (People v. Barnes (1986) 42 Cal.3d 284, 303-304; In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.) Thus we find no abuse of discretion in the courts allocation of the marital real estate.

Jei also contends too much time has passed since the sales for Riri to challenge them years later. In support, he cites Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, for the proposition that a party must be timely in challenging a transfer to which the party did not consent. (Id. at p. 46.) His reliance in misplaced, however, because the portion of the Droeger courts discussion on which he relies did not establish any guidelines for determining timeliness. (Ibid.) Moreover, the decision did not address the effect of the challenging partys ignorance of the transfer in measuring timeliness. In short, other than his bald assertion that Riris challenge to the purported sale of the apartments is untimely, Jei cites no authority discussing what timeliness means from one situation to another. His reliance on Family Code section 1102, subdivision (d) does not further his argument. It applies to actions to set aside within one year property transactions that have been recorded in the county recorders office in the county where the land exists. The present action is not one to set aside a transaction; nor does Jei cite any support that the statue applies to foreign nations like Brazil.

2. Loans From Riris Father

Family Code section 2620 authorizes the trial court to divide the parties community debts. Riri and her father testified he had lent the couple money three times. The first loan was $100,000 in 1981 to help Riri and Jei buy their first apartment. Riri and Jei were to repay that loan when they sold the apartment. The second loan, also for $100,000, helped them in 1993 buy their home in San Marino. They were to repay that loan when they sold their home. The third loan was $366,000 in 1997 to cover living expenses and help pay for the education of Riri and Jeis two children at Johns Hopkins University. Riri and Jei were to repay that loan, too, when they sold their San Marino home.

Jei testified the first time he heard that Riris father had provided the money as loans was after he filed his petition for dissolution of the marriage. He notes that a loan involves giving money to another with an expectation of repayment. (Civ. Code,  1912.) Jei contends there was no substantial evidence Riris father gave Jei and Riri the money expecting repayment. Instead, according to Jei, he gave the money to them as a gift. In support of the money having been a gift, he cites several facts. First, Riri and her father had no documents, such as promissory notes, which usually accompany a loan. Also indicative of a gift, according to Jei, Riris father charged no interest for the money he gave them. In addition, Riri admitted her father never directly asked Jei to repay the money. Indeed, Riri and her father did not even agree on the amount of the largest loan: she testified it was $355,000, he testified it was $366,000. And finally, Jei testified his father gave the couple money as a gift to help them buy their first apartment in 1980, and there was no obvious reason for Riris father to be any less generous toward the couple when he gave them $100,000 at that time, too. And, when the couple sold that apartment in 1994, they did not return $100,000 to Riris father, although at trial the father claimed repayment on sale was one term of the loan. This, argued Jei, cast doubt that there was any such loan. (See Burkle v. Burkle (2006) 141 Cal.App.4th 1029, 1036-1038 [triable issue whether father had loan or gift to daughter where father had not previously described money as loan, and father offered no documentary evidence of the terms of the purported loan].)

Whether Riris father expected repayment the three times he gave Riri and Jei money was a disputed factual question. (Civ. Code,  1912 [loan is money given with expectation of repayment].) Central to answering that question was each witnesss credibility. Implicit in the trial courts order deeming the money to have been loans was its finding that Riri and her father were more credible than Jei in testifying about the money they got from Riris father. That credibility finding binds us. (People v. Barnes, supra, 42 Cal.3d at pp. 303-304; In re Marriage of Balcof, supra, 141 Cal.App.4th at p. 1531.) Accordingly, substantial evidence supported the courts finding that the money was a community debt.

Jei contends enforcing the loans violates the Statute of Frauds, which provides that a contract to be performed more than one year in the future is enforceable only if put in writing and signed by the parties. (Civ. Code,  1624, subd. (a)(1).) In support, he cites Lacy v. Bennett (1962) 207 Cal.App.2d 796, which analyzed the one-year requirement. (Id. at p. 800) In Lacy, the contract was a loan to plant nut trees. The borrower promised to repay the loan when the trees turned a profit and because nut trees require several years to bear fruit, the loan would not be repaid within one year. The Lacy court found that a contract which expressly states performance will occur beyond one year, or where the contracts subject matter makes performance within one year impossible, triggers the Statute of Frauds writing and signature requirement. (Ibid.) The Lacy courts application of the Statute of Frauds was narrow, however. It explained that any ambiguity in the timing of the contracts performance released the contract from the statute. For example, an oral contract for a long term loan was enforceable because repayment within one year was possible, even if improbable, since nothing about long term prevented repayment within one year. (Id. at pp. 800-801.) Likewise with repayment of the loans from Riris father, because each was to be repaid on an as can basis and when Riri and Jei sold certain property: their first Brazilian apartment for the $100,000 loan in 1981, and their San Marino home for the second $100,000 and the $366,000 loan for living and educational expenses. Because repayment of these loans was possible, even if improbable, within one year, Jeis reliance on Lacy is misplaced. Hence, he does not show that enforcing the loans violates the Statute of Frauds.

3. Spousal Support Order

The court ordered Jei to pay Riri $750 per month in spousal support until she either remarried or died. Family Code section 4320 establishes multiple criteria to guide a court in calculating the amount of monthly support a formerly married person might owe an ex-spouse. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 303-304.) The statutes reference point for weighing the criteria is the marital standard of living. (In re Marriage of Zywiciel (2000) 83 Cal.App.4th 1078, 1081; Hogoboom & King, Cal. Prac. Guide: Family Law (The Rutter Group 2006),  6:838, pp. 6-302.6 to 6.302.7.) Jei contends the court abused its discretion in ordering support because it did not consider his purported inability to pay. (In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 161 [spousal support order reviewed for abuse of discretion].)

The record contains sufficient evidence to show the court did not abuse its discretion in ordering Jei to pay $750 in monthly support. Jei had been a physician in Brazil, where he had maintained his wife and children in prosperous comfort, including private education for the children. Jei was not licensed to practice medicine in America, but had instead been working as a pastor after earning two post-graduate theological degrees in the mid-1990s before he and Riri separated. In contrast to Jeis pursuit of his chosen professions, Riri had been a homemaker in both Brazil and the United States since marrying Jei in 1980. And although she had a pharmacy degree from her native Japan, she could not find work as a pharmacist in the United States because her English was poor.

After separating from Riri, Jei lost his pastoral position because his church did not allow unmarried pastors. He testified that in the two years since losing his job, he had not found a position with another church and therefore had no income. Despite his claim of recent poverty, the record permitted the trial court to infer Jei had an untapped capacity to earn given his education, training, and experience. (In re Marriage of Reynolds (1998) 63 Cal.App.4th 1373, 1378 [The capacity to earn standard may only be applied where there is evidence of the ability, opportunity, and willingness to work.].) In addition to his ability to earn, other statutory criteria reinforced the trial courts support order. Family Code section 4320 provides that among the factors a court may consider in addition to the marital standard of living are the duration of the marriage and the balance of hardships to the parties. (Fam. Code,  4320, subds. (b)-(l).) Staying at home to raise the couples children, Riri had not worked outside the home in decades. Jei, on the other hand, had three post-graduate degrees, successfully pursued one profession, and until separating from Riri, been gainfully employed in a second profession. We thus find the court did not abuse its discretion in finding Jei capable of paying $750 in monthly support to Riri.

DISPOSITION

The judgment is affirmed. Respondent to recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

BOLAND, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

[1] The court also awarded to Jei what the parties call Apartment 92, but he and Riri have agreed to its disposition outside of this appeal and thus it is not before us.

[2] Jei claims Riris respondents brief concedes that the corporation owned Apartment 601. His citation to her brief shows no such concession. Instead, her brief merely notes that appellant testified the corporation owned the apartment.