Marriage of Escobedo

Filed 9/27/06 Marriage of Escobedo CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Calaveras)

----

Reggie O. Escobedo (Reggie) appeals the judgment and orders entered on November 26, 2003, March 24, 2005, March 25, 2005, and March 30, 2005 in the marriage dissolution action filed by Kathleen M. Escobedo (Kathleen).^[1] The record does not contain an order dated November 26, 2003, although a final judgment as to custody and visitation was entered on December 3, 2003, after a trial held on November 26, 2003. The trial court granted dissolution of marital status effective March 24, 2005, entered a written ruling after trial on March 30, 2005, and entered a final judgment entering the judgment of dissolution and incorporating the prior written ruling on April 25, 2005. As there is no order or judgment dated March 25, 2005 in the record, we assume the reference in Reggie’s notice of appeal to an order of such date was a typographical error and we will review the April 25, 2005 final judgment.

Reggie’s briefs on appeal, filed in pro per, raise issues regarding the trial court’s characterization of the real property owned by the parties, the award of a timeshare to Kathleen, the termination of Kathleen’s obligation to pay Reggie spousal support, the order requiring him to return to work, the failure of the trial court to find any misappropriation of funds or property by Kathleen, and an order granting an ex parte motion brought by Kathleen at the time of the custody trial. Reggie’s opening brief also contains headings concerning a “Subaru Loan,” Kathleen’s “Declaration of Disclosure,” “Lying/Perjury,” and “Inadequate Representation.” In his reply brief, Reggie requests additional relief regarding venue, custody, and reimbursement for community contributions to Kathleen’s education. We shall affirm the judgment.

BACKGROUND

Although Kathleen filed the petition for dissolution in this case on March 10, 2003, three days after the parties’ separation, the record on appeal begins with proceedings occurring in the beginning of December 2003. On December 1, 2003, because of inadequate service of the motion, the trial court continued a motion brought by Reggie regarding misappropriation of community funds by Kathleen. Reggie’s motion was later denied without prejudice.

On December 3, 2003, a final judgment as to custody and visitation was entered after a trial held on November 26, 2003. The trial court gave Reggie and Kathleen joint legal custody of their minor children, awarded physical custody to Kathleen, and prescribed visitation. There is no reporter’s transcript of the trial in the record on appeal. Further trial on the remaining matters was set, but then continued numerous times.

At a case management conference/trial setting held on January 31, 2005, Reggie wanted to reopen discovery. The minute order of the court states “[t]he Court gave [Reggie] the opportunity to produce a document to support his allegation that [Kathleen] has misappropriated community funds and the Court finds no appropriate document was produced.” The trial court advised Reggie to bring a motion to reopen discovery if he “believes there are grounds therefor.” No such motion was ever filed.

On March 24, 2005, a further request for continuance by Reggie was denied based on a finding of no good cause. A court trial was held on that date, at which Reggie and Kathleen were the sole witnesses.

On March 30, 2005, the trial court issued a written ruling after trial, which it later incorporated into the final judgment entered on April 25, 2005. In its ruling, the trial court ordered the real property located on Sugar Pine Road to be listed for sale at a price of no less than $285,000. The court found Reggie has a separate property interest in the property in the amount of $60,000 and is entitled to that amount from the proceeds of sale. The court determined the remaining proceeds of sale constitute community property to be divided between the parties after the remaining balance on the mortgage was paid, a community debt of $880.42 was paid, if still owing, and Kathleen was reimbursed for one half of her separate property payments on the mortgage, for one half of her payments on a community property credit card, and for one half of her payment of the parties 2002 federal and state taxes, offset by a reimbursement from Kathleen to the community of one half of her community property earnings received after separation. The court ordered Kathleen to be reimbursed from Reggie’s share of the community property proceeds for her payment of two separate property debts of Reggie, a doctor’s bill and a dentist’s bill.

The trial court awarded Kathleen the timeshare owned by the parties, finding the value at the time of trial was substantially equivalent to the payments and dues she had paid since separation. The court awarded each party their own retirement account and each party the automobiles currently in their possession. The court ordered Kathleen to receive one of two trampolines or its value set at $400. The court stated as to these matters in particular, “the court has observed the demeanor and manner of the witnesses as well as the character and quality of their testimony. The court finds the [division of property] to be a substantially equal division of the assets. . . . Assuming arguendo that any division favors [Kathleen], it is offset by [Reggie’s] inexcusable neglect in caring for [Kathleen’s] antique dresser and bedroom set, [Kathleen’s] expenses in locating [Reggie] and their children, and [Reggie’s] loss of [Kathleen’s] silver cross with six opals - which the court finds unbelievable.”

The trial court terminated Kathleen’s spousal support obligation with the following comments: “This is a long-term marriage of over 13 years. On balance, the parties had a lower middle class standard of living during the marriage. There were periods when the family existed on public assistance and periods of employment. Each party had a vehicle and the primary asset of the community is the property at issue herein. The order after hearing of August 29, 2003 outlines the stipulation for temporary family support. Pursuant to the stipulation [Kathleen] has been paying [Reggie] $450 per month since July 1, 2003. The stipulated order also states: ‘Father ordered to return to work.’ [Kathleen] is now gainfully employed and has physical custody of the three minor children of the marriage, receives no child support from [Reggie], and has expenses exceeding her income. [Reggie] is a truck driver and member of the Teamster’s Union. When he worked full-time during marriage he was able to earn $23.00 per hour. [Reggie] has made no meaningful attempt to comply with the order that he return to work despite having had almost 20 months in which to do so. On cross-examination [Reggie] was evasive concerning the reasons for leaving his post separation jobs and concerning his attempts to secure employment. The court has further considered the factors relevant under Family Code section 4320 and terminates [Kathleen’s] family support obligation forthwith.”

The trial court ordered Reggie to pay Kathleen $5,000 from his proceeds of the sale of the real property as Family Code section 271 sanctions. The court found Reggie had frustrated the policy of the law to promote settlement of this litigation. Kathleen was required to hire an investigator to locate the children. Reggie failed to take reasonable steps to comply with the order he become employed and attempted to delay the proceedings upon unsupportable claims of financial misdeeds by Kathleen. The court found Reggie’s claimed ignorance of the location of items of personal property Kathleen wanted returned was “dissembling at best.”

We will refer to specific evidence and testimony provided by the parties at trial as needed in the discussion of the issues raised by Reggie.

DISCUSSION

I.

Prior to addressing Reggie’s contentions, it is helpful to set forth some rules regarding the scope of our review on appeal.

The trial court’s judgment is presumed to be correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is an appellant’s burden affirmatively to show otherwise by establishing prejudicial error via an adequate record, factual analysis, and argument including legal authority on each point made, with appropriate citations to the material facts in the record; otherwise, the point is forfeited. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)

An appellant must present each point separately in his/her opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made. (Cal. Rules of Court, rule 14(a)(1)(B)^[2]; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4; see also People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [reviewing court may disregard claims perfunctorily asserted without development].)

It is the burden of the party challenging a judgment on appeal to designate and provide as complete a record on appeal as necessary in order for us to assess the claimed error. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141; see rules 4 & 5.)

Where an appellant challenges the sufficiency of the evidence, the reviewing court must start with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant’s burden to demonstrate otherwise. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) An appellant’s brief must set forth all of the material evidence bearing on the issue, not merely the evidence favorable to the appellant, and it also must show how the evidence does not sustain the challenged finding; otherwise, the claim of insufficiency of the evidence is forfeited. (Id. at p. 881; Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.)

An appellant should be mindful that the reviewing court does not have the power to reweigh the evidence, to consider the credibility of witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. (Huang v. Board of Directors (1990) 220 Cal.App.3d 1286, 1294.) The test is “whether there is substantial evidence in favor of the respondent. If this ‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment will be affirmed.” (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 364, p. 414, italics omitted.)

Furthermore, without good cause, an appellant may not use his/her reply brief to rectify oversights and deficiencies in his/her opening brief because this deprives a respondent of the opportunity to respond. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)

Finally, an appellant’s pro per status does not entitle him or her to exceptionally lenient treatment by the courts. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) While courts should be careful to avoid misunderstandings and explain legal jargon and procedures, “in propria persona litigants are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure.” (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.) A pro per party “is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.” (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)

II.

The Trial Court’s Characterization Of The Real Property

Reggie requests this court “review the character of my separate property and the offset involved[.]” Reggie goes on to discuss his claim that the real property involved in this case was his separate property under the terms of a prior divorce, that the bank required the property to be community property for subsequent refinancing, that the change in title was not a transmutation and no gift was intended, therefore, the property should have been characterized by the trial court as still being his separate property.^[3] Reggie relies principally on In re Marriage of Mahone (1981) 123 Cal.App.3d 17 and In re Marriage of Branco (1996) 47 Cal.App.4th 1621. We conclude no error has been shown.

Reggie introduced into evidence at trial a partial copy of the marital settlement agreement incorporated in his 1983 judgment of dissolution showing he was awarded the subject real property as part of the division of the community property he owned with his previous wife. In 1990 Reggie’s previous wife formally quitclaimed her interest in the property to Reggie and Kathleen, “husband and wife as joint tenants.” Thereafter the property was refinanced twice and both times the title was retained in the names of both Reggie and Kathleen. Reggie testified the value of the property at the time he married Kathleen and when they were both placed on the deed was $60,000.

This evidence shows the real property was Reggie’s separate property after his 1983 marriage dissolution. However, after his marriage to Kathleen, his former wife quitclaimed her interest to Reggie and Kathleen as joint tenants and when the property was refinanced, Kathleen was again put on the title with Reggie. The change in the form of title during Reggie’s marriage to Kathleen gives rise to the joint title presumption of Family Code section 2581.^[4] (In re Marriage of Weaver (2005) 127 Cal.App.4th 858, 865 (Weaver); In re Marriage of Neal (1984) 153 Cal.App.3d 117, 123-125 (Neal), disapproved on other grounds in In re Marriage of Buol (1985) 39 Cal.3d 751, 763, fn. 10.) Pursuant to section 2581, for purposes of division of the property on dissolution of marriage, the property is presumed to be community property, rebuttable only by written evidence to the contrary. (§ 2581; Weaver, supra, at p. 865.) There was no evidence of any writing showing Reggie was maintaining his separate property interest in the property.^[5]

Nevertheless, Reggie retained a claim for reimbursement under section 2640 for his traceable separate property contribution when the property was converted to joint tenancy form. (Weaver, supra, 127 Cal.App.4th at p. 865; Neal, supra, 153 Cal.App.3d at p. 124, fn. 11.) As Reggie testified the value of the property at the time of his marriage and when they were both placed on the deed was $60,000, substantial evidence supports the trial court’s order of reimbursement of Reggie for his separate property contribution in that amount.

The case of In re Marriage of Mahone, supra, 123 Cal.App.3d 17, a case decided before the enactment of section 2581 or its predecessor statutes (Stats. 1993, c. 219, § 111.7; former § 2580 enacted by Stats. 1992, c. 162, § 10, former Civ. Code, § 4800.1 added by Stats. 1983, c. 342, § 1), is inapposite. In Mahone, the wife had purchased one piece of real property prior to the marriage and had used separate property funds in the acquisition of two other properties during the marriage. (Mahone, supra, at p. 22.) The reviewing court stated that since title to the several real properties was placed in the name of both husband and wife as joint tenants, “a presumption arose that the property was held jointly, as purported in the deed.” (Id. at p. 23.) However, there was evidence submitted of an understanding between the parties that the property would not be truly owned as indicated in the deeds, that wife’s separate property contributions were not intended as a gift to husband. The reviewing court held wife was entitled to her separate property interest, but the community also had an interest in the property, and remanded the case for a determination of the separate and community interests, to be computed on a pro rata basis. (Id. at p. 24.)

Under section 2581, evidence of an oral agreement that property held in joint form is still the separate property of one spouse is not adequate to rebut the joint title presumption. A spouse making a traceable separate property contribution retains, however, a right to reimbursement for such contribution. (§ 2640.) The trial court’s decision is consistent with these statutes.

In In re Marriage of Branco, supra, 47 Cal.App.4th 1621, the community acquired an interest in the wife’s separate property home when the wife’s original mortgage was paid off in full with proceeds from a community property loan. (Id. at p. 1627.) The reviewing court remanded for a computation of that interest. (Id. at pp. 1629-1630.) At the time of trial, title to the property was apparently held in wife’s name only and not held jointly. (Id. at p. 1624 & fn. 2.) Branco does not assist Reggie in this case.

Reggie has not shown any error in the trial court’s ruling regarding the real property.

III.

Division of Timeshare

Reggie’s entire argument under the heading “Time Share to be divided” consists of the following: “Value of $10,000.00 and shares to count for. Return of extra monies from community into her pension fund.” Reggie includes no citations to the record, no argument explaining his point(s), and no authorities to support his claim. Since the trial court’s judgment is presumed to be correct (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133; Denham v. Superior Court, supra, 2 Cal.3d at p. 564) and the burden is on Reggie to demonstrate error by adequate argument with supporting authorities and citations to the record (Maria P. v. Riles, supra, 43 Cal.3d at p. 1295), we do not consider the issue on this appeal. (In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 278.)

IV.

Spousal Support And The Order To Return To Work

Under an argument headed “Spousal Support” and an argument headed “Order to return to work (support),” Reggie complains about the trial court’s termination of Kathleen’s obligation to pay him spousal support. Reggie characterizes the trial court’s action as “wrongfully” ordering him back to work, alleges he did return to work as ordered, and that Kathleen’s income has increased substantially since separation. Reggie has not met his burden to show any error in the trial court’s termination of Kathleen’s temporary spousal support obligation and failure to order permanent spousal support.

The order of the trial court requiring Reggie to return to work is not contained in the record on appeal, although judicial notice of it was taken at trial. We have no basis to question the trial court’s statement in its ruling that a “stipulated” order, dated August 29, 2003, ordered Reggie to return to work as part of the order requiring Kathleen to pay temporary spousal support. As the order was entered pursuant to stipulation or agreement by the parties, Reggie cannot now complain the court wrongfully ordered him to return to work.

Substantial evidence supports the trial court’s finding Reggie did not make a meaningful attempt to comply with the order. The evidence showed Reggie was a truck driver for the Teamsters Union, previously making $23 an hour. Reggie admitted he was able to work as a truck driver after the stipulated order was entered, but he obtained employment for only a few months between that time and the time of trial, a period of almost 20 months. His efforts to obtain work were limited to checking in with the union once a month. The trial court found he “was evasive concerning the reasons for leaving his post separation jobs and concerning his attempts to secure employment.” We will not disturb the trial court’s findings on credibility. (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1056 [all issues of credibility are for the trier of fact].)

Nor does the fact Kathleen’s income substantially increased after separation require reversal of the trial court’s determination regarding support. “[A] disparity in income, standing alone, does not justify an award of spousal support. [Citation.]” (In re Marriage of Zywiciel (2000) 83 Cal.App.4th 1078, 1081.)

The trial court’s ruling indicates the court considered the factors relevant under section 4320 before terminating Kathleen’s obligation to pay family support. Once a trial court considers all the applicable factors under section 4320, it’s decision as to spousal support rests within its broad discretion and will be reversed on appeal only for an abuse of discretion. (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93; In re Marriage of Smith (1990) 225 Cal.App.3d 469, 479-480.) Reggie has not shown the trial court abused its discretion in terminating Kathleen’s obligation to pay spousal support.

V.

Misappropriation of Community Funds

Reggie continues to assert on appeal, as he did at trial, that Kathleen misappropriated community funds. In a disjointed argument, Reggie appears to complain about the procedural handling of his efforts to bring this issue before the trial court. He cites to numerous pages of the clerk’s transcript containing his trial briefs and copies of financial documents without any reference showing these matters were introduced as evidence and explained at trial or how his trial briefing is relevant to the issue raised on appeal. He includes statements of purported facts that are not supported by the record; for example, that the purchase price of the real property at the time of the custody trial in 2003 was $200,000, that someone’s sister is a real estate agent, that “papers” were not disclosed, and that there were false statements in the declaration of attorney fees. He does not show the evidence admitted at trial established any misappropriation of community funds by Kathleen. We note the trial court did order Kathleen to reimburse the community out of the proceeds of the sale of the real property for one half of her community property earnings received after separation.

Reggie has not met his burden on appeal to establish trial court error.

VI.

December 3, 2003 Order Granting An Ex Parte Motion of Kathleen

Reggie challenges an order granting an ex parte motion of Kathleen made by the trial court after the 2003 custody trial. The record on appeal does not contain Kathleen’s motion, proof of service, any of the papers submitted in support of the motion or any of the evidence submitted to the trial court on the motion. We are left in the dark as to even the subject matter, much less the substance, of the motion. We have no way of determining if the matter is reviewable on this appeal. It is Reggie’s responsibility as appellant to ensure an adequate record for review is provided to this court. His failure to do so requires his claim to be resolved against him. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296.)

VII.

Subaru Loan

Under a heading entitled “Subaru Loan” Reggie discusses Kathleen’s actions regarding bank accounts and payments apparently related to a car loan for the 1997 Subaru awarded to her as part of the property division in this case. Reggie then goes on to complain about a number of items in Kathleen’s declaration of disclosure. Reggie’s discussion is unsupported by references to the record of the trial, does not tie the various alleged factual matters to any claim of legal error by the trial court, and fails to contain any meaningful analysis with legal authority. Reggie has once again failed to meet his appellate burden to demonstrate error by adequate argument with supporting authorities and citations to the record. (Maria P. v. Riles, supra, 43 Cal.3d at p. 1295.)

VIII.

Declaration of Disclosure

Reggie contends Kathleen’s declaration of disclosure was incomplete and contained false statements, but he “got in trouble for it.” Reggie claims his responsive pleadings were ignored and he was sanctioned because of Kathleen’s “lies and prestige.”

Reggie has not established by the record on appeal that Kathleen’s declaration of disclosure was incomplete or contained false statements and the record reflects Kathleen was awarded sanctions pursuant to section 271 based on a showing that Reggie had frustrated the policy of the law to promote settlement of this litigation. Specifically, the trial court noted Kathleen was required to hire an investigator to locate the children, Reggie failed to take reasonable steps to comply with the order that he become employed, he attempted to delay the proceedings upon unsupportable claims of financial misdeeds by Kathleen, and his claimed ignorance of the location of items of Kathleen’s personal property was “dissembling at best.” We find no error in the trial court’s ruling. We remind Reggie it is the exclusive province of the trial court to determine the credibility of witnesses. (In re Marriage of Cochran, supra, 87 Cal.App.4th at p. 1056.)

IX.

Lying and Perjury

Reggie contends Kathleen lied at a case management hearing held on January 31, 2005. He claims he asked for a reporter’s transcript of that day, but it was not supplied to him. He claims Kathleen perjured herself and the trial court allowed it. There are several problems with Reggie’s contentions.

First, it is Reggie’s obligation to ensure an adequate record is provided to support his claims. (Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296.) If a reporter’s transcript was not provided, he should have pursued the matter by seeking to have the omitted transcript included in the record (rule 12(b)) or if no transcript was available, he should have proceeded by settled or agreed statement regarding the proceedings at the hearing. (Rule 4(g); Ketchum v. Moses, supra, 24 Cal.4th at pp. 1140-1141.)

Second and more fundamentally, as we have already stated several times, we do not review the credibility of witnesses. Credibility is a matter to be determined by the trial court. (In re Marriage of Cochran, supra, 87 Cal.App.4th at p. 1056.)

Finally, Reggie’s attack on the trial court for “allowing” Kathleen’s perjury is baseless and inappropriate, doing nothing to advance his appellate argument. (See Lazzarotto v. Atchison, T. & S.F. Railway Co. (1958) 157 Cal.App.2d 455, 462.)

X.

Inadequate Representation

Although Reggie represented himself at trial, he complains of inadequate representation. He complains that several exhibits and documents were inadequately explained. He contends he was unprepared for trial because he relied on the trial being continued based on actions taken by an attorney he had retained for the purpose of seeking a continuance. Reggie has not shown any trial court error.

XI.

Issues Raised In Reply Brief

In addition to addressing some of the issues raised in his opening brief, Reggie’s reply brief contains numerous references to new factual claims, unsupported by references to the record and coherent legal argument. In the section of his reply brief entitled “Legal Argument” Reggie simply refers to a number of statutes without discussing their application to this case. In his conclusion, Reggie requests additional relief regarding venue, custody, and reimbursement for community contributions to Kathleen’s education.

An appellant may not, without good cause, use his/her reply brief to rectify oversights and deficiencies in his/her opening brief because this deprives a respondent of the opportunity to respond. (Garcia v. McCutchen, supra 16 Cal.4th at p. 482, fn. 10; Neighbours v. Buzz Oates Enterprises, supra, 217 Cal.App.3d at p. 335, fn. 8.) We will not reach the new matters raised by Reggie’s reply brief, which in any event, may not be reviewable on this appeal and also have not been presented in a manner sufficient to allow appellate review.

DISPOSITION

The judgment is affirmed. Kathleen is awarded her costs on appeal. (Cal. Rules of Court, rule 27(a).)

CANTIL-SAKAUYE , J.

We concur:

NICHOLSON , Acting P.J.

HULL , J.

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^[1] As is customary in family law proceedings, we will refer to the parties by their first names (see In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2); no disrespect is intended.

^[2] All subsequent references to rules are to the California Rules of Court.

^[3] Reggie also includes references in his argument to the trial court allowing Kathleen to buy a separate property house, his belief community funds were used to purchase the property, his belief “another rental” would have been possible, and Kathleen’s desire “to move out when her land owner was already occupying the lower level of a two story house.” Reggie’s lack of substantive argument and failure to cite to the record regarding these statements leaves us with no idea what he is talking about or how it relates to his contention regarding the characterization of the real property at issue. We conclude Reggie has forfeited any claim with respect to these matters. (In re Marriage of Nichols, supra, 27 Cal.App.4th at pp. 672-673, fn. 3; Kim v. Sumitomo Bank, supra, 17 Cal.App.4th at p. 979.)

Reggie also inserts a comment in his argument regarding the real property that Kathleen “acquired higher education through the community that was generated by separate funding, refinancing of $30,000 and separate gift from passing of father of approximately $20,000.00.” Again, these comments are not followed with any substantive argument or references to the record. Indeed, these comments are not supported by the evidence given at trial, which we have reviewed. When Reggie was specifically questioned about the funding of Kathleen’s education, Reggie testified at trial the community did not pay for her education. He testified it was funded by her student loan, although he also claimed he received some inheritance money when his father died and that such money “went to the necessities of our family,” which was “the same thing” as using it to pay for her education. He may have also written one or two checks to her schools, but he was not sure. Kathleen testified the money obtained from refinancing was originally intended for building on the real property, but was mostly used to satisfy a lien from a lawsuit that Reggie had from his old job. There was no testimony that any money from refinancing was used for Kathleen’s further education. The record does not support Reggie’s assertions on appeal.

^[4] Hereafter, undesignated statutory references are to the Family Code.

^[5] The trial court was not required to credit Reggie’s testimony that it was an accident or mistake for his former wife to quitclaim her interest to both Reggie and Kathleen as joint tenants or that he and Kathleen had an agreement the property would still be his separate property despite the joint form of title, which was just used for the purpose of refinancing as required by the bank. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632 [as long as the trier of fact does not act arbitrarily, it may reject in toto the testimony of a witness, even if the witness is uncontradicted].) In any event, such testimony is not sufficient to rebut the joint title presumption under section 2581.