Marriage of Feiger

Filed 3/11/10 Marriage of Feiger CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael P. Linfield, Judge. Affirmed.

Louis P. Dell for Appellant.

Thomasina M. Reed for Respondent.

Marlon Feiger (appellant) appeals from a marital dissolution judgment on reserved issues. Appellant contends that the trial court erred in awarding his former wife, Claudia Feiger Prada (respondent), $40,000 for misappropriation of respondents pearl necklace. Specifically, appellant contends that: (1) the evidence was insufficient to determine the value of the necklace, and (2) the court had no jurisdiction to award damages for conversion of the necklace. In addition, appellant contends that the trial court erred in refusing to allow him to present evidence in support of his request to amend the prior temporary spousal support award retroactively.

We affirm the judgment.

BACKGROUND

The parties were married on December 17, 2000, and separated on August 27, 2003. There are no minor children of the marriage. Appellant filed for dissolution of marriage on September 26, 2003. On December 30, 2003, respondent was awarded temporary spousal support in the amount of $1,316 per month.

Prior to trial, the parties settled certain issues at a settlement conference held on July 28, 2005. Spousal support was terminated as of August 1, 2005. On September 20, 2005, an order was filed providing that respondent was to buy out appellants interest in the real property. Trial was initially set for December 22, 2005, but was continued to December 23, 2005. On December 23, 2005, the parties stipulated that the trial was bifurcated as to marital status. Trial on the reserved issues was continued to April 7, 2006, and the judgment as to status only was signed and filed. The court continued the trial date to April 13, 2006 and ordered the parties to meet and confer and prepare joint trial documents.

On April 11, 2006, the parties filed a joint list of issues and contentions, witnesses and exhibits for trial on further issues. Among those issues were: issue no. 3, which concerned appellants request for modification and if so, whether support should be reduced retroactively; and issue no. 8, [m]isappropriation of respondents pearl necklace by [appellant]. The court ordered issues from the joint list to be tried by a referee under the authority of Code of Civil Procedure section 638. The court appointed the Honorable Keith M. Clemens, Judge Pro Tem (Retired), as referee to take testimony and evidence on these issues.

Several hearings took place before the referee. On April 14, 2008, the referee filed a statement of decision on numerous issues. On May 12, 2008, the court held a short cause trial on the last remaining issue of attorney fees, which was decided based upon written declaration.

Appellants request for statement of decision was filed on July 24, 2008. Appellant requested the factual and legal basis for the courts decision on a variety of issues, including appellants claim for retroactive modification of spousal support and respondents claim for and valuation of the misappropriated necklace.

After miscellaneous proceedings, the trial court issued its statement of decision on March 16, 2009. In that statement, the court explained its factual finding that appellant was bitter and resentful and has done everything possible to hurt [respondent]. The result of appellants negative attitude was a useless, unproductive and ultimately harmful prolongation of the litigation. Although the marriage lasted less than 3 years, the parties have been engaged in an acrimonious dissolution for almost 5 years. Because of appellants spiteful attitude, the court questioned appellants veracity.

As to appellants request for retroactive modification of spousal support, the court stated:

[Appellants] request for retroactive modification of spousal support was previously denied by Judge Lavin in a minute order entered July 19, 2004. That order stated that [appellants] request to amend [the spousal support] orders is denied without prejudice subject to [appellant] showing clear and convincing evidence that there was a representation made by [respondent] regarding spousal support. The Court interpreted that Minute Order as holding that [appellants] request to modify spousal support was not preserved for trial on April 13, 2006; rather, [appellant] would be allowed to bring another motion and such a motion, if brought, would be subject to a clear and convincing standard of proof. [Appellant] did not bring such a motion. Accordingly, the Court found that it had no jurisdiction to amend the previous order at trial.

Thus, the court held that appellants request for retroactive modification of spousal support was forfeited by his failure to bring a separate motion showing clear and convincing evidence of a misrepresentation made by respondent.

As to the pearl necklace, the court explained that it found respondent to be more credible than appellant:

[Respondent] was more credible than [appellant]. The Court believed [respondent] and found that [appellant] was either lying to the Court at trial and/or in his answer to the TRO on July 7, 2003. Based on documentary evidence, on [respondents] testimony at trial and on [appellants] testimony in opposition to the TRO, the Court found that [appellant] retrieved the pearl necklace when [respondent] was in Europe and never returned it to [respondent].

Further, the court found that appellant failed to object to respondents testimony regarding the value of the necklace, stating: The only evidence of the value of the necklace was provided by [respondent], without objection by [appellant], and was not controverted or contradicted by [appellant]. Thus, the court felt that any objection to the $40,000 value that the court placed on the necklace was forfeited.

Appellant filed this appeal on May 6, 2009.

DISCUSSION

I. Standards of review

The trial court has broad discretion to determine the value of marital assets based on the evidence. (In re Marriage of Duncan(2001) 90 Cal.App.4th 617, 631.) A trial courts decision regarding modification of a spousal support order is also reviewed for abuse of discretion. (In re Shaughnessy (2006) 139 Cal.App.4th 1225, 1235.) Absent a clear showing of abuse, the trial courts determinations of these matters will not be disturbed on appeal. In other words, the trial courts order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made. [Citations.] (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.)

Generally, when jurisdictional facts are not in dispute, whether a court has subject matter jurisdiction is a legal question subject to de novo review. (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 42.)

II. Pearl necklace

Respondent testified that, sometime before her mothers death in 1980, respondent acquired a saltwater pearl necklace that her father had given her mother. At the time of her marriage to appellant, she still had the pearl necklace. Respondent described the necklace as antique and very valuable.

Prior to leaving the country in June 2003, respondent took the necklace to Express Jeweler in Tarzana to be repaired. Before respondent returned to the country in August 2003, appellant went to the repair shop without respondents authorization and took the necklace. Despite numerous requests that appellant return the necklace, respondent never saw it again.

The trial court found that appellant retrieved the pearl necklace when [respondent] was in Europe and never returned it to [respondent]. In addition, on the basis of respondents testimony that she had received approximate values for the necklace of $50,000 - $53,000, the court set the value of the necklace at $40,000.

A. Value of necklace

At trial, respondent was asked whether she knew how much the pearl necklace was worth. In response, respondent indicated that she had gone to several different places to attempt to determine the value of the necklace. She went to Saks Fifth Avenue, where she found values of $50,000 - $53,000 for cultured pearls. She also went to a jewelry store in Encino on Ventura Boulevard and was told that a 14-inch saltwater necklace was worth between $58,000 and $70,000. At an online store called the Pearl Outlet, she saw a similar necklace selling for $52,150.

Under Evidence Code section 813, subdivision (a)(2), the value of property may be shown by the opinion of [t]he owner . . . of the property . . . being valued. Thus, respondents testimony was competent evidence of the value of the necklace.

Nevertheless, appellant argues that the trial courts valuation of the necklace had no factual basis. Appellant contends that the necklace was a type of property which the judge could not properly value without expert testimony. In her deposition, respondent stated that she was told that in order to assess the value of the necklace, the jeweler would need to evaluate the size of the pearls, the shine, and other things. Even with a picture, respondent had explained, a jeweler would not be able to value these things. Thus, appellant states, it was impossible for the trial court to asses the value of respondents pearl necklace.

As the trial court pointed out, appellant made no objection to respondents testimony regarding the value of the necklace. Appellate review of evidentiary error is forfeited in the absence of a timely objection in the trial court. (Estate of Butler (1988) 205 Cal.App.3d 311, 316-317.) The trial courts reliance upon respondents testimony was proper, and because of appellants failure to object, the trial court did not have the opportunity to consider the question of whether expert testimony was necessary. Thus, no reversible error occurred.

B. Jurisdiction to award damages for conversion of the necklace

Appellant argues that the trial courts jurisdiction over separate property is quite limited. Appellant quotes Marriage of Braud (1996) 45 Cal.App.4th 797, 810, in which the court explained that the trial court may characterize disputed assets as being separate or community, may confirm separate property to the owner spouse, and to the extent permitted by statute, may order reimbursement from the community to a partys separate estate. However, the Braud court specified unless the parties otherwise agree, the courts jurisdiction over separate property extends no further. (Ibid.)

Appellant does not dispute the courts finding that the necklace was respondents separate property. However, appellant disputes the trial courts authority to award damages for conversion. Appellant claims that any award should have been limited to reimbursement from appellants share of community property, which, he claims, was $15,533.13.

As respondent points out, the parties stipulated that Misappropriation of [respondents] pearl necklace by [appellant] was one of the issues that the trial court should decide. On April 11, 2006, prior to trial, the parties again specified in their joint list of issues and contentions, witnesses and exhibits for trial on further issues, that misappropriation of the pearl necklace was an issue to be decided by the trial court. Respondent set forth her contention that appellant stole the pearl necklace, a gift from her mothers estate, shortly before the separation. Thus, the parties agreed to the courts jurisdiction over this issue. Even under the case relied upon by appellant, jurisdiction is proper under these circumstances. (Marriage of Braud, supra, 45 Cal.App.4th at p. 810 [unless the parties otherwise agree, the courts jurisdiction over separate property extends no further (italics added)]; see also In re Marriage of Saslow (1985) 40 Cal.3d 848, 865-866 [permissible for trial court to render judgment on disputed issue of premarital transactions where parties had voluntarily submitted the matter to the court]; In re Marriage of Gagne (1990) 225 Cal.App.3d 277, 285 [trial court did not err in deciding issue of a premarital loan because both parties voluntarily submitted to the jurisdiction of the family law court on this issue].)

Appellant cites In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1275 (Hebbring) for the proposition that reimbursement from community property is the only remedy available to the family law court -- not damages. However, in Hebbring, the Court of Appeal let stand the trial courts order that the husband reimburse the wife for his destruction of her separate property jewelry, which he had taken and thrown into the sea. (Ibid.) The court explained, [h]aving found the destroyed jewelry to be [wifes] separate property, the court simply required [husband] to reimburse her for its value from his share of the community property. (Ibid.)

Contrary to appellants position, his share of community property was not limited to $15,533.13. Appellant was awarded $175,000 as his share of the family residence. Thus, the $40,000 awarded to respondent as reimbursement for the pearl necklace could be deducted from appellants share of the community property an action permissible under Hebbring. No error occurred.

III. Request to retroactively modify spousal support

Appellant argues that the trial court erred in refusing to allow him to present evidence at trial in support of his prior request to retroactively amend the spousal support order.

On July 19, 2004, the trial court denied appellants request to amend the spousal support order without prejudice subject to [appellant] showing through clear and convincing evidence that there was a misrepresentation made by respondent regarding spousal support orders. The issue was not specifically reserved for trial at that time. Spousal support was terminated in August 2005. At the April 2006 trial, the trial court interpreted the July 19, 2004 order as requiring a separate motion including clear and convincing evidence of a misrepresentation.

A separate motion is the proper way to seek modification or reconsideration of a court order such as the July 19, 2004 order denying modification of spousal support. Code of Civil Procedure section 1008 allows a party to file an application seeking reconsideration, modification, revocation, or amendment of a prior order based on new or different facts, circumstances, or law. (Code Civ. Proc., 1008, subds. (a), (b).) Appellant filed no such motion. The trial court did not err in refusing to allow evidence on this issue at trial.

DISPOSITION

The judgment is affirmed. Appellant shall pay the costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_________________________, J.

CHAVEZ

We concur:

___________________________, Acting P. J.

DOI TODD

___________________________, J.

ASHMANN-GERST

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