Marriage of Brown
Filed 7/19/13 Marriage of Brown CA2/2
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
TWO
In re Marriage of JOAN M. and
DONALD V. BROWN JR.
B235887
(Los Angeles
County
Super. Ct.
No. ED039259)
JOAN M. BROWN,
Appellant,
v.
DONALD V. BROWN JR.,
Respondent.
APPEAL from
a judgment of the Superior Court
of
County.
J. Carlton Seaver, Judge.
Reversed and remanded with directions.
Joan M.
Brown, in pro. per., for Appellant.
No
appearance for Respondent.
___________________________________________________
In a marital dissolution, a former spouse challenges the
judgment following a trial on reserved issues.
Some of the court’s orders are supported by substantial evidence;
however, two of its rulings regarding (1) the value of a Harley-Davidson
motorcycle, and (2) the division of the parties’ knife collection are not
supported by the evidence. We reverse
the judgment and remand for further proceedings.
FACTS
In February
2008, Joan Brown petitioned to dissolve her 32-year marriage to Donald Brown,
Jr. They have no children. Donald responded to the petition in September
2008. A trial was sought on the issues
of spousal support and the division of property.
Joan
submitted an income and expense declaration to the court in January 2009. She declared that she is a 54-year-old
cosmetologist who last worked in 1995.
She lives on $550 in government benefits, less a Medicare payment of
$96. She has savings of $100 and
property worth $300,000. Her monthly
expenses (including mortgage and food) are $2,232. Joan estimated that Donald’s monthly income
is $1,415.
Joan and
Donald continued to live in the family home, which was for sale at a reduced
price due to its deteriorated condition and the accumulation of garbage, car
parts and junk that Donald collected over the years. Donald refused to pay any of the expenses
associated with the home, despite living in it.
Joan was forced to sell community and separate property to cover living
expenses.
The
parties’ home sold in February 2009 for $186,416. Donald refused to vacate the residence or
remove his belongings after escrow closed.
Further, Donald refused to make court-ordered monthly spousal support
payments. Donald received monthly Social
Security ($1,598) and worker’s compensation ($607), for a total of $2,205.
Joan filed
an updated income and expense declaration showing that her income has not
changed, but she received money from the sale of the family residence. Her monthly expenses had increased to $3,446,
almost half of which was rent for the family residence: Joan promised the buyers of the property that
she would stay and clean up the debris littering it. Joan worked hard to clean the property and
was obliged to hire laborers, at a cost of over $5,000, because Donald did not
assist her.
Joan
submitted a trial brief and exhibits listing community property such as
furniture, appliances, knives and cars.
She asked the court to order an appraisal for various collectibles, such
as books, magazines, model cars, Zippo lighters, comic books, and so on. She requested half of Donald’s pension. In response, Donald stated that he “is
legally blind, and neither party is capable of gainful employment.â€
On May 4, 2009, the court ordered the
parties to list for sale three classic cars; to either sell their guns and
split the proceeds or purchase them; to divide the knives among themselves; and
to divide the pension. Donald was
ordered to pay spousal support of $575 per month for one year and $478 per
month thereafter.
Joan paid
to advertise the three classic cars, but Donald refused to allow interested
parties to look at the vehicles. Joan
claimed that Donald possessed all of the parts needed to complete work on a
1947 Ford, and that he refused to meet to divide up the knives. Joan asked the court for help in carrying out
its order, or allow Donald to keep the disputed property and give her an
equalizing payment. For his part, Donald
requested a reduction in spousal support because he no longer receives worker’s
compensation. In December 2009, the
court reduced Donald’s support obligation to $364 per month.
In January 2010, Joan returned to
court to complain that Donald still refused to comply with the court’s order
and divide the community property or sell the classic cars. In February 2010, the court directed the
parties to sell the cars within 20 days, and to simply divide up the boxes
containing the knives without viewing their contents. The court vacated its order reducing spousal
support. Joan accepted offers for the cars,
but Donald refused to sign the titles to transfer ownership. On March 24, 2010, the court granted Joan’s
ex parte request and directed Donald to sign the titles within 48 hours; if
not, the court clerk was authorized to sign on Donald’s behalf.
In May 2010, Donald petitioned for
a division of property. In particular,
Donald declared that Joan sold firearms and ammunition worth over $14,000, and
he sought reimbursement for half that amount, and half the proceeds from the
sale of a motorcycle and other items.
The division of the knives had not been resolved: Donald claimed that Joan took all of the most
valuable knives and left him 105 inexpensive knives out of 357 knives in a
collection worth $15,000.
The court entered a
be relieved as her counsel. Joan
objected, saying that the only reason her attorney has not been paid is because
he failed to ensure her receipt of court-ordered spousal support. As a result, Joan was forced to live on $551
per month from Social Security. Though
trial was a month away, the court relieved Joan’s counsel from the case.
Joan (age
56) and Donald (age 65) appeared for trial in
income (SSDI) of $551 (Joan) and $1,500 (Donald). They divided the proceeds from the sale of
their house equally: each received
between $45,000 and $50,000, after costs.
They have spent the sale proceeds, and have no stocks, bonds or
retirement accounts.
Donald has not worked since his
employer went out of business in 1996.
Before his layoff, he was earning about $50,000 annually. He testified that he does not receive a
company pension. Donald admitted that he
has not been paying court-ordered spousal support to Joan because he spends all
of his $1,500 SSDI. Joan received a worker’s
compensation settlements decades ago that she used to purchase “stuff in the
house†and a motorcycle for Donald.
Joan questioned Donald about their
cars. He denied removing car parts from
their home, saying “I shared everything with you.†The parties purchased a 1947 Ford Tudor
during their marriage. During the
divorce, Joan paid Donald $3,500 for his one-half interest in the Tudor. Joan asserted that Donald “stripped the parts
off of it†and sold them after she paid him for the car. She described the vehicle as “a chassis with
wheels on it that you can roll around.â€
The car without the parts is worth $1,000, at best. Joan listed specific missing car parts, such
as hood hinges, hubcaps, an extra hood, an extra oval window for the back, and
window regulators that are not available for purchase elsewhere. Joan wanted Donald to buy the Tudor back from
her.
Joan made videotapes of Donald
allegedly taking the car parts. She
presented a written transcript with her narrative. The transcript was admitted into evidence,
along with photos of the derelict Tudor.
Donald informed the court that the “stolen†parts can be seen in the
photos that Joan took, saying “Everything appears to be here, your Honor.†Joan countered that the photos showed only
one car hood (unlike the two in the video) and missing spare fenders, as well
as the motor and transmission. The court
admitted into evidence a declaration from a man from Australia,
who purchased the Browns’ 1929 Ford Roadster.
He declared that he examined the 1947 Tudor at the home of the
automobile restorer, who showed him various spare parts and stated that Donald
had the engine and transmission.
Donald estimated that the value of
the Tudor is $4,000. He has not seen the
car for 15 years because someone else was rebuilding it. He stated that “everything that went to that
car was put in the back seat. The back
seat area was full of parts.†He denied
selling any parts, except for “two little tiny chrome strips†that he purchased
for $10 and gave away four or five years ago, during the marriage. He firmly denied giving boxes of car parts to
someone named Mr. Money.
The parties had tons of car and
motorcycle parts arrayed around their now-sold property, to the point that Joan
described it as a “junkyard.†Only
1 percent of those parts belonged to the Tudor: nearly all of the Tudor parts were with the
automobile rebuilder. When the parties
separated and prepared to sell the house, Donald sold the car parts and gave
Joan half of the proceeds over the course of six months. He assigned a minimal value to them.
The parties owned a 1929 Ford
Roadster they had purchased in 1980:
Joan paid Donald $5,000 for his one-half interest in the Roadster and
sold it for $10,000. The parties owned a
1966 El Camino, purchased in 1986: Joan
paid Donald $1,000 for his one-half interest in the El Camino and sold it for
$2,000. Donald refused to sign the pink
slips to transfer the vehicles, and Joan incurred legal fees because her lawyer
had to make multiple court appearances to compel Donald to sign off on the
transfers.
The parties acquired 23 firearms
during marriage. Donald estimated their
value at around $15,000. Joan sold most
of the firearms on consignment in 2007, and used the proceeds for living
expenses. Three guns were taken to the
police department because they included an illegal sawed-off shotgun and
MAK-90. The remaining weapons were two
black powder rifles and a Japanese sniper gun.
Donald testified that Joan packaged
their knife collection and he received three boxes from his attorney. The knife collection contained 364 knives and
he received only 92, some of which are inexpensive novelty pieces. Joan sold her knives for $2,200.
Joan purchased a Harley-Davidson
motorcycle for Donald in 1983 for $4,000, with money she received as worker’s
compensation. Unlike cars, motorcycles
increase in value over time; however, Joan described it as being “in rotten
condition†because it was improperly stored.
Joan testified that she sold the motorcycle in 2009 for $3,500. Moments later, she corrected herself after
looking at a bill of sale and stated that the price was $3,000.
The parties had a collection of
eight Zippo lighters that each cost over $45 and came in decorative boxes. They have appreciated in value. Donald last saw them in a room of the family
residence that was being packed by two movers and videotaped by Joan. Donald said he had “no clue†where they
are. The court asked Joan point-blank,
“Where are the Marjorie Petty [Zippo] lighters?†Joan answered, “I have no idea which ones
were which. I never even looked at all
of them.†She was vague about their
number and location.
Donald asked the court to terminate
his spousal support obligation because “I’m financially strapped. I have no money.†When the court pointed out that Joan is “more
strapped than you,†Donald replied, “No comment.†The court found that the parties had a low
standard of living and indicated that it was going to award spousal support to
Joan, who has no marketable skills. Both
parties are disabled and have not worked for some time. Donald is almost legally blind.
The trial
court issued a judgment on reserved issues on August 12, 2011. It ordered Donald to pay Joan monthly spousal
support of $300. With respect to
disputed property: (1) the court
rejected Donald’s claim that the order to sell the three automobiles was
unfair; (2) any funds Joan received as worker’s compensation in the 1970’s were
used to purchase community property (such as a motorcycle and furniture), and
the property had to be equally divided; (3) most of the couple’s firearms were
sold before they separated and the funds were used for community purposes, but
the three remaining guns were awarded to Donald; (4) the parties failed to comply
with the court’s order to divide the knives equally, and Donald received only
72 of the 364 knives. The court found
the fair market value to be $2,742, and Donald is entitled to knives worth $829
or to cash in that amount; (5) the court found that neither party is obligated
to the other for jewelry taken from a safe; (6) there is insufficient evidence
to support a finding that Joan is obligated to Donald for a missing dashboard;
(7) Donald must deliver certain plates and VCR tapes to Joan, and Joan must
deliver the Zippo lighters to Donald; and (8) Joan must make an equalizing
payment of $2,579 to Donald. Joan
appeals from the judgment.
DISCUSSION
1. Appeal and Review
Joan filed
a timely appeal from a judgment after trial.
An appeal may be taken from an orders directing the performance of an
act, the payment of money, or awarding spousal support. (In re
Marriage of Skelley (1976) 18 Cal.3d 365, 368-369.) The judgment is reviewed under a substantial
evidence standard. “‘“‘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. [ ] When two or more inferences can
reasonably be deducted from the facts, a reviewing court is without power to
substitute its deductions for those of the trial court.’â€â€™â€ (In re
Marriage of Guo & Sun (2010) 186 Cal.App.4th 1491, 1497.)
2. Personal Property
a. Automobile Parts
Testimony
was received about the parties’ three classic cars. The judgment states, “The Court previously
ordered that Respondent sell to Petitioner three automobiles
. . . . Respondent argues
that the order was unfair, that it did not recognize the significant value of
the vehicles and the spare parts associated with those vehicles accumulated
over the years, and that . . . the spirit of the order was not fully complied
with. Notwithstanding those claims, the
Court finds no reason to vacate or modify its prior order. The Court orders Respondent to sign any pink
slips conveying the vehicles to Petitioner on presentation by Petitioner to the
extent Respondent has not done so already.â€
Donald
testified that he never took any parts to the 1947 Tudor except for two tiny
chrome strips that he purchased for $10.
He denied giving boxes of car parts to a third party and maintained that
“everything that went to the car was put in the back seat.†Joan accuses Donald of lying. She videotaped Donald while he was clearing
out the attic and claims that among the detritus were 1947 Ford parts such as a
speedometer and cables. Assuming that
the parts belonged to the Tudor, there is no admissible evidence showing what
happened to those parts after they were removed from the house.
We do not reweigh the
testimony that all of the Tudor parts were with the car. Conversely, the court disbelieved Joan’s
speculation that the parts were transferred to “Mr. Money.†The declaration from the Australian gentleman
has no probative value as it is pure hearsay.
Substantial evidence supports the trial court’s order.
b. Knives
Donald
testified at trial that he received 92 of 364 knives in the parties’
collection. In a declaration filed in
May 2010, Donald stated that he received 105 knives out of 357 in the
collection. In both instances Donald
complained that his part was largely comprised of cheap novelty items. Neither Donald’s testimony at trial nor his
2010 declaration supports the trial court’s finding that Donald received only
72 knives. As a result, the court’s
calculation that Donald is entitled to either the missing knives or cash from
Joan of $829 is unsupported by the record.
The trial court must revisit the division of the knives on remand.
Joan
initially testified that she sold the Harley-Davidson motorcycle for
$3,500. Moments later, she told the
court that she had the bill of sale in her hands and the receipt showed a sale
price of $3,000. The court replied, “Got
it. Okay. Thank you.â€
The order lists a sale price of $3,500 and Joan was ordered to pay
Donald one-half of that. It is unclear
whether the court simply failed to note the correction or had some other reason
for selecting the higher figure. The
price of the motorcycle must be resolved on remand. d. Zippo Lighters
Donald
testified that he had “no clue†where his Zippo lighters are located, and Joan
was evasive when the court asked her where they were. As a result, the court directed Joan to
return the Zippo lighters to Donald. The
video showing some person in the house packing the lighters is
meaningless: it does not tell the trial
court or this court where the box containing the lighters ended up. Joan now claims that Donald wrongly accused
her of taking the lighters. At trial,
Joan did not assert that Donald was in possession of the lighters. The trial court chose to credit Donald’s
testimony that he did not have the lighters, and discredited Joan’s evasive
answer. The court’s order directing Joan
to return the lighters to Donald is supported by substantial evidence.
3. Pension Plan
At trial,
Joan did not present any evidence showing that Donald receives a company
pension. The trial court only had
Donald’s uncontradicted testimony that he receives no private pension
money. On appeal, Joan argues that
Donald “blatantly lied.†She now
attempts to submit new evidence in the form of a letter dated February 21,
2012, regarding Donald’s pension.
We cannot consider on appeal any
material that was not presented to the trial court. Clearly, a letter dated six months after the
trial and judgment was not before the trial court and is not part of the record
on appeal.
appeal for finding that Donald receives a pension that Joan is entitled to
share. On remand, Joan may present the
trial court with evidence that Donald failed to disclose a source of income and
ask the trial court to enter a Qualified Domestic Relations Order (QDRO)
directing payment of half of Donald’s pension to Joan.
4. Social Security Benefits
Joan makes an indecipherable
argument about Donald’s Social Security being subject to spousal support. The trial court did, in fact, direct Donald
to pay Joan $300 per month in support from his SSDI benefits, inasmuch as this
is the only income that Donald testified he receives. As stated in section 3, ante, the trial court can consider on remand the existence of a
pension from Donald’s employer (if any), and Donald’s spousal support
arrearages in connection with any equalizing payment it ordered Joan to make.
DISPOSITION
The
judgment is reversed and the case is remanded for the trial court to rule anew
on the issues of the division of the knives and the price of the
motorcycle. On remand the trial court
may consider new evidence, if any, that Donald receives a pension from his
former employee that he failed to disclose at trial, and Joan’s interest in the
pension. In all other respects, the
judgment is affirmed. Respondent to bear
costs on appeal.
NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN,
P.J.
We concur:
ASHMANN-GERST,
J.
FERNS,
J.*
_________________________________________________________________
* Judge
of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California
Constitution.
name="_ftn1" title="">[1] We
deny Joan’s request to augment the record with extraneous material that was not
presented to the trial court. Only the
properly marked trial exhibits lodged with this court were considered.
name="_ftn2" title="">[2] Joan
should contact the Social Security Administration to discuss her right to
receive Social Security retirement benefits based on her status as Donald’s
wife for
32 years.
