Marriage of Otiniano and Bowden

Filed 6/9/06 Hutchison v. Corrie CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Sidney Corrie, Jr., as Trustee (the Trustee) of the Carole L. Corrie Revocable Trust (the Corrie trust), appeals from a judgment on a bifurcated jury and court trial finding in favor of respondent Murray N. Hutchison on his complaint for partition and on his action for declaratory relief on the issues of rent and the cost of landscaping. The Trustee contends that the trial court committed evidentiary errors and made comments reflecting bias against him before the jury. He also argues that: (1) The court erred in determining that he could not recover rent from Hutchison; (2) the Corrie trust was responsible for half of the landscaping cost; and (3) he was required to post a bond pending appeal. We affirm.

I. FACTUAL BACKGROUND

Hutchison and Carole Corrie began a dating relationship in early 1998. Hutchison subsequently learned that Corrie had colon cancer but that it was in remission. In May 1998, the cancer returned. Hutchison and Corrie did not believe that the cancer would be terminal and became engaged in June 1998. They were married on November 1, 1998. Corrie paid half the cost of her wedding ring. Hutchison signed a prenuptial agreement prepared by Corrie's attorney in order to protect Corrie's separate property. Corrie had a net worth of approximately $8 to $10 million.

Prior to getting married, Hutchison and Corrie decided to purchase a lot together and build a home. Corrie suggested that they purchase a lot on Alamo Springs Court, in a development owned by her ex-husband, the Trustee. They purchased the lot in early 1999, funding the purchase with their separate property on a 50-50 basis. Hutchison sold his home in Danville and used the proceeds to pay for his half interest in the lot. They obtained a construction loan in the amount of $850,000; and when the construction was complete, they paid off the loan by taking out a mortgage. Overrun costs on the construction were paid from their separate accounts.

The property was initially held by Hutchison and Corrie as joint tenants. Corrie had advised the title company that that is how she wished to hold title. They subsequently decided after the construction of their home was complete to hold title as tenants in common with Hutchison and the Corrie trust each owning an undivided half interest in the property. This change in title was in accordance with the prenuptial agreement.

Corrie died on March 31, 2001. That same day, the Trustee went to Hutchison's home and requested Corrie's financial papers and records. The day after Corrie's funeral, the Trustee moved all of Corrie's personal belongings out of Hutchison's home. Hutchison retained Corrie's wedding ring, telling the Trustee that Corrie wanted his daughter to have it. He also kept one of Corrie's nightgowns. In May 2001, he obtained a partial copy of the Corrie trust document.

Hutchison remained in the Alamo home until August 31, 2004. During the period that he had sole occupancy of the property, he paid all of the property taxes and maintenance, insurance, and minor upkeep expenses on the property. Hutchison and the Corrie trust continued to each pay half of the mortgage payments.

The jury found that Hutchison did not obtain his separate property interest in the Alamo Springs residence by exercising undue influence over Corrie. It further found that he had not wrongfully retained possession of her wedding ring. The court heard evidence on the remaining issues between the parties, namely whether both Hutchison and the Corrie trust were jointly responsible for the installation of landscaping on the property; whether Hutchison was required to pay rent; and the respective responsibilities of the parties as to the property taxes, homeowners' associations dues, insurance and mortgage interest payments. The court determined that Hutchison was a surviving cotenant of the Alamo Springs residence and that the Trustee had failed to establish Hutchison wrongfully possessed the property. The court also found that both parties were liable for landscaping the property under the covenants, conditions and restrictions relating to the property since improving the property was an obligation of ownership, not possession.[1] The court further found that Hutchison was entitled to partition of the property. The court ordered that the property be sold and appointed a referee to oversee the sale of the property. The Corrie trust timely appealed the court's order. The court thereafter issued an order requiring that the Corrie trust post a bond as a condition to staying the order to partition and sell the property.

II. DISCUSSION

The Trustee contends that the trial court erred in excluding evidence that Hutchison cohabited with his fiancée after Corrie's death in the Alamo Springs property and subsequently remarried. We conclude that the trial court properly excluded the evidence.

It is well settled that under Evidence Code section 352, the court has broad discretion to exclude evidence â€