Marriage of Prokuski

Filed 6/13/06 Marriage of Prokuski CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Patrick Alderete, Commissioner.

Robert F. Carbone for Appellant.

Kilpatrick & White and Michael R. Kilpatrick for Respondent.

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INTRODUCTION

Appellant Duane Prokuski (Duane) appeals the trial court's characterization and valuation of certain assets in a lengthy dissolution proceeding. Respondent Sheila Prokuski (Sheila), Duane's former wife, asserts the court's rulings are supported by substantial evidence.^[1]

The parties filed numerous motions and orders to show cause (OSC's) in the course of the proceeding, as to mutual allegations of verbal and physical harassment, the purported transfer and destruction of community property, and violations of the court's interim orders. On appeal, the issues are limited to the court's valuation, or failure to value, particular assets. While we will address the factual and procedural history of this case, we will focus on the specific assets at issue on appeal: (1) the family residence on Zephyr Lane in Bakersfield; (2) another residence on Sandy Lane in Bakersfield; (3) a Cessna airplane; (4) a 1932 Dodge automobile; (5) silver dollars and coins; (6) two kayaks; (7) a MGA roadster; (8) Sheila's failed business, "What's New"; (9) their joint 2001 tax return and refund; (10) a World War II flight jacket, (11) a grand piano; (12) an "Anthony crane"; and (13) a Sea Train storage unit.

FACTUAL AND PROCEDURAL BACKGROUND

On May 20, 1969, Duane (born 1952) and Sheila (born 1953) were married. They had three children: Duane, Jr., Christina, and Chase. They lived in a single family dwelling on Zephyr Lane in Bakersfield. Duane was employed as a technician for Associated Press. Duane also had a machinery workshop on the Zephyr Lane property, with an extensive inventory of tools, machinery, and scrap parts. Duane had a side business of selling "odds and ends" and "[b]asically selling junk."

Sheila was a homemaker and raised their children. She also worked as a part-time bus driver for a private school, and operated a home decor business called "What's New."

The Petitions for Dissolution

On June 23, 2002, Duane and Sheila separated, and Duane moved out of the Zephyr Lane residence. At the time of separation, there were no minor children. Also at the time of separation, Duane and Sheila owned a single family residence on Sandy Lane in Bakersfield, a cabin on Posey Creek in Tulare County, and a commercial property on Chester Avenue in Bakersfield.

On October 10 and 18, 2002, Sheila and Duane, respectively, filed petitions for dissolution in the Superior Court of Kern County. The court consolidated the two petitions into one case; Duane was described as the petitioner, and Sheila as the respondent. Both Duane and Sheila were represented by counsel throughout the dissolution proceedings and on appeal. The matter was set for a contested trial on the characterization, division, and valuation of assets.

The Transmutation Documents

Duane and Sheila filed numerous motions and OSC's as to their mutual allegations of physical and verbal harassment, that each party was trying to transfer or destroy community and separate assets which belonged to the other party, and for contempt based on alleged violations of court orders through the destruction or removal of property.

In the course of these motions, Sheila introduced a series of documents which allegedly reflected that Duane transferred to her all his interests in their community property, both of which Duane allegedly signed on January 14, 1990: (1) a preprinted "Power of Attorney" form in Sheila's favor, and (2) a typed letter which declared that Duane released "all interests" in his personal possessions, real estate, vehicles, and unimproved property to Sheila. Both documents were notarized. Sheila also produced a document which Duane allegedly signed on April 30, 2002, which was a preprinted "Interspousal Transfer Grant Deed," granting his interest in the commercial property on Chester Avenue in Bakersfield to Sheila.

Sheila argued she was entitled to control all the community assets based on these documents. Duane admitted he signed the January 1990 documents, but claimed he signed them under coercion and duress.

At an evidentiary hearing, Sheila testified that she did not record the January 1990 documents until 2002, but testified that everything belonged to her and she relied upon these documents to sell the Zephyr and Sandy Lane properties, and the Posey Creek cabin, to her sister-in-law. Sheila also testified she continued to live in the Zephyr Lane residence after she sold the property. Sheila's sister-in-law testified she purchased the three properties from Sheila in September 2002, for $1 each.

The Court's Interim Orders

The court conducted pretrial evidentiary hearings on the parties' motions and OSC's, and issued a series of interim orders.

On October 16, 2002, the court imposed mutual property restraints on the parties, and ordered Sheila to move from the Zephyr Lane residence by December 15, 2002. Sheila was ordered to only take her personal property, items needed for her "What's New" home decorating business, a 1996 Ford F150 pickup, the trailer she used for her business, the master bedroom set, and half of the cookware, linens, and flatware.

On October 30, 2002, the court provided for Duane to have access to the Zephyr Lane property to use the "out building" and remove a trailer and tools on a particular day, but to stay 50 yards away from the residence. The court ordered Sheila not to go near Duane while he was on the property.

On November 20, 2002, the court restated its order of October 16, 2002, for Sheila to vacate the Zephyr Lane residence and only take specific property, and not to remove any tools, machinery, furniture, or other property. The court awarded Duane the temporary possession of the Zephyr Lane residence and the property thereon. The court imposed mutual property restraints as to both parties, and not to transfer, conceal, or dispose any property, whether real or personal, community or separate, pending further order of the court.

After Sheila moved from the Zephyr Lane property, Duane returned to the residence and maintained exclusive possession. Thereafter, Sheila lived in a trailer parked behind the store on Chester Avenue, and then she moved into the house on Sandy Lane. Sheila was granted exclusive use of the Chester Avenue commercial property.

On December 11, 2002, the court ordered Duane to pay Sheila monthly spousal support of $1,089. The court further ordered the parties not to have any contact with each other unless in writing. The court reimposed mutual property restraints as to both parties, not to transfer, conceal or dispose of any property, whether community or separate, pending further court order.

On July 22, 2003, the court issued a wage assignment against Duane, based on Sheila's motion and evidence that Duane had failed to pay monthly spousal support.

On November 5, 2003, the court imposed mutual "stay away" orders, for the parties to stay 150 yards away from each other's residences, vehicles, and workplaces. The court also imposed mutual retraining orders on the parties' personal conduct, not to stalk, follow, molest, telephone, or destroy personal property of the other. Both parties were ordered to stay 100 yards away from the Posey Creek cabin, and not to remove any property from the cabin or permit or direct a third party to do so. Sheila was ordered to provide a list of all items she removed from the Zephyr Lane residence when she vacated the property in December 2002.

THE TRIAL EVIDENCE

On March 23, 24, and 29, 2004, and April 13, 27, and 28, 2004, the court conducted the trial on the contested petitions, property division, and pending OSC's for contempt. Duane and Sheila offered conflicting testimony as to every contested issue in this case. Their daughter, Christina, testified in support of Duane.^[2] Sheila's mother and sister-in-law testified in support of Sheila. Sheila also introduced the testimony of an appraiser as to the value of the workshop inventory. The parties testified about numerous items of property for purposes of division and valuation, but we will focus on those items which are relevant to the instant appeal.

The January 1990 Documents

As noted ante, Sheila introduced documents which Duane allegedly signed in January 1990, granting his power of attorney to Sheila and transferring all his assets to her. At the trial, Sheila testified as to the background of those documents. Sheila testified that in the early 1970's, they had problems in their marriage and a dissolution action was filed. In the course of the case, Sheila became angry when Duane transferred community assets to members of his family, including a 1932 Dodge. The trial court ordered Duane not to transfer any assets during the pendency of the case. Sheila testified they subsequently reconciled and dismissed the dissolution action.

Sheila testified that in January 1990, they were having problems in their marriage again and she suspected Duane was having an affair. Sheila was upset because she did not want Duane to start transferring assets again, as he previously did in the 1970's. Duane presented Sheila's mother with the power of attorney and asset transfer documents, the documents were already signed, and Sheila's mother gave her the documents. Duane told Sheila the documents would stop her from worrying about anything. Sheila testified Duane never revoked the assignments or again mentioned these documents. Sheila's mother similarly testified that Duane gave these documents to Sheila one day, without any discussion, and told Sheila that she would always be safe.

Sheila admitted in the course of the instant dissolution action, she relied on these documents to sell real properties for $1, in order to prevent Duane from taking the assets away from her. Hilaria Jackson, Sheila's sister-in-law, confirmed she purchased the Zephyr and Sandy Lane properties, and the Posey Creek cabin, from Sheila for $1 each. Ms. Jackson testified Sheila transferred the properties to her to get the assets out of Duane's name and prevent him from destroying the properties.

Duane testified he did not draft the January 1990 documents, but he signed them under coercion and duress to appease Sheila and get her off his back during their marital problems that year. Duane testified that Sheila threatened to take away the children and he would never see them again. Duane also testified that Sheila threatened to kill him. In June, July or August 1990, Duane reconciled with Sheila and decided to stay with her until all the children were 18 years old, but he still believed Sheila was going to kill him. When they reconciled, Duane told Sheila that he revoked his power of attorney. Duane also told Sheila to destroy the documents and he thought she destroyed them in 1990. Instead, Sheila kept the documents and tried to sell the community real estate for $1 in September 2002, after the initiation of the instant dissolution action. Duane also testified that while he might have signed certain documents in 1990, his signatures were forged on the documents introduced into evidence by Sheila.

The Condition of the Zephyr Lane Property

Also as noted ante, the court ordered Sheila to move out of the Zephyr Lane residence by December 15, 2002, and further ordered her to only take certain property when she moved out. At trial, the parties offered conflicting accounts of the condition of the residence when Sheila moved out. Duane testified that when he regained possession of the house, the rooms were trashed, holes were punched in the walls, and most of the community property and furnishings had been removed. Duane denied that he inflicted any damage to the property.

Christina testified that Sheila trashed the Zephyr Lane residence and took most of the contents. Sheila told Christina that she "was going to take about anything that--everything. She was going to get it all." "She was going to take everything" because "she worked for it."

Sheila denied that she damaged the Zephyr Lane residence or took property to which she was not entitled, but instead claimed Duane inflicted damage on the property. Sheila's sister-in-law testified she helped Sheila move from Zephyr Lane, and someone else trashed the residence while they were in the process of moving.

The Parties' Income and Employment Status

Duane testified he had been employed as a technician by the Associated Press for 28 years, but he believed his job was going to be phased out in seven or eight months. Duane testified his yearly salary was $45,000, but his "net" was $35,000.

Duane admitted he also received an expense allowance from Associated Press, and failed to disclose that allowance in his previous income and expense statements.

"Q. How come you have never disclosed this?

"A. Because it's not your business. It's not anybody's business. It's my company's business."

Duane admitted he earned income by selling scrap metal, steel, and machine parts, but he did not disclose such income on his income and expense statements because Sheila destroyed everything in his workshop and disabled the machinery so he could not make any money.

Duane also testified that he had fallen upon "hard times."

"Q. Now, you have testified that your life is not what it used to be, that you are actually getting shoes out of dumpsters because you have fallen on such hard times and you have no income?

"A. That's correct.

"Q. Are you still working for the Associated Press?

"A. Yes, I am."

Duane complained he received "absolutely nothing" from his paycheck because of the wage assignment. "I am living on nothing. I piddle around a little." "I dig in dumpsters." "I can show you dumpsters where you can get money."

"Q. There is money in dumpsters?

"A. Absolutely.

"Q. What, do you like get things and sell it or just happen to find cash?

"A. Right now you can walk for less than five minutes and I can show you money."

Duane requested the court to reduce the existing spousal support order, and testified to his belief that Sheila was capable of earning a living. Duane testified that Sheila worked the "entire time" of their marriage." She was a certified bus driver and was "one of the highest paid bus drivers in Bakersfield," and made "like $15 an hour." Sheila also operated "What's New," her home decorating business. Duane believed she made $45,000 from that business, based on "[t]he way I understand it from the information that was given to me at the time that she was running it." Duane also testified she made $500 a day from the business. Duane testified that Sheila always did the books and he did not actually know her income from the business, "but I know that she made some serious money."

Duane testified he purchased the Chester Avenue commercial property "so she could build her store there." "She had a Stockdale location and she worked out of her Sea Train [storage container] and her truck, and she also worked out of the Chester Avenue location." Duane admitted he had never been to the "Stockdale location." Duane believed she continued to operate the business from the Chester Avenue store after their separation.

Christina testified that Sheila continued to operate her "What's New" business from the Chester Avenue store after the separation, and Sheila conducted home decorating parties as recently as one year before the trial. Sheila used to have parties once a week. On previous occasions, Christina had been to parties where Sheila "made anywhere from a thousand to $1500."

Christina also testified that in the past year, Sheila traveled to St. Louis at least four times and said she needed to "get away from here." Sheila talked about investing in a barge or a boat in St. Louis. Sheila said she "was going to open a bar/restaurant hotel on the same boat," and also said she put a down payment on the boat during her most recent trip to St. Louis in February 2004. Christina testified Sheila had shown her photographs of the barge, which was rusty and not in good condition. "She said she was going to fix it up, not to drive but to make the business." Sheila told Christina she was going to live on the barge and run a casino with slot machines and poker machines. "My understanding is it has to be on the water to do the machines, but it can't be drove." Christina had not seen any documents transferring title to Sheila.

Sheila testified that she had a ninth grade education, she dropped out of school when she married Duane, and she stayed home to raise their children. During the marriage, she worked part-time as a bus driver for a private school, but that job ended five years ago, when the private school closed and her license lapsed. She was unable to obtain a license to drive a bus for a public school. Also during her life, she had worked at a Burger King and harvested crops. She did not have any computer or secretarial skills.

Sheila testified she "tried" to start a business called "What's New," and sold home accessories. She ran the business out of her truck and trailer, but she never made any money. She recently closed it and was left with about $2,000 in inventory. She sold the inventory for "pennies" at yard sales and swap meets, and made about $300. Sheila testified she never operated a business out of the Chester Avenue store, and denied that she conducted home parties after the separation. Her last home party was two years earlier, and she made about $400 or $500. Sheila testified that they bought the Chester Avenue building because Duane was going to start a machine shop there.

Sheila testified she had not worked for the last year, she had not looked for a job, and she did not have any career goals. "With everything that has been going on, and going through the counseling and trying to deal with everything, I just haven't done it. I've got to figure out what to do, what kind of job." She was going to counseling twice a week. Her standard of living had changed "[d]ramatically" since the separation. After she had to move out of Zephyr Lane, she lived for two years in her mother's small trailer, parked on the Chester Avenue property. She later moved to the Sandy Lane residence. She bought second-hand clothes and was unable to purchase all the groceries she used to. Sheila knew she had to earn a high school diploma at the adult school if she wanted to be retrained. "I don't even know what kind of a job to get, if I'm going to be able to go to school, what I'm going to do."

Sheila admitted that she had flown to St. Louis five times during the pendency of the dissolution proceeding, but her mother paid for the airplane tickets. She denied that she told anyone that she was going to operate a restaurant and hotel on a river barge, or that she put a $10,000 downpayment on a barge. She did not have a conversation with Christina or anyone else about such a business. "I have discussed a lot of different things about moving, but I haven't discussed anything with my daughter at all."

"Q. Have you looked into purchasing a river barge?

"A. I've looked at a river barge. I have not looked into it, no."

She went to St. Louis to "get away from the garbage here and what I was having to be involved in here," and stayed with her mother's friends.

"Q. And you indicated to some of your family members that you were interested in looking for a bake-and-bar?

"A. That was a joke between my grandson and me. We were playing around and we started joking about stuff like that. That's when he came up with 'Cookie' as a nickname."

Helen Hobert, Sheila's mother, testified that Sheila did not have a store, and she last gave a home show two years ago. Hobert testified Sheila traveled to St. Louis because Hobert wanted her to get away "from this garbage where she can relax and try to get her mind at peace for a while." Sheila stayed with Hobert's friend while she was in St. Louis. Hobert testified Sheila had never talked about buying a barge to run a bar in St. Louis or on the Mississippi River, and had never shown her any photographs of a barge.

The Value of the Zephyr Lane Property

Duane testified he wanted to keep the Zephyr Lane property and offered various opinions as to the property value. Duane testified that he obtained a comparative market analysis of the property, and the value was $92,821 without any debt.

On further examination, Duane testified that his personal estimate of the property's value was between $200,000 to $250,000, "because I built the home and I know what I paid for the land and I know what the land is going for today and what it would take to rebuild that home and bring it back." He disagreed with Sheila's opinion that the property was worth $450,000.

Duane admitted that in November 2003, he filed a disclosure form which stated the property was worth $193,000, and explained that figure was just a tentative estimate. Duane also admitted that he testified the fair market value was $92,821, but there was "a document that reflects that." Duane testified that "I think that we need to get it appraised. I really think so."

Sheila testified that she was told by experts the property was worth $450,000 to $500,000. "The property--in the surrounding area there is a house that sold for 350 two doors down. Our place is three times that size with the swimming pool and his shop, and it has to be worth more than the property two doors down." Sheila testified her opinion was based on a competitive market analysis she obtained from a local realtor. Sheila also believed the Zephyr Lane property should be appraised.

Neither Duane nor Sheila introduced an appraisal into evidence.

The Workshop and Inventory

Victor Nikols, a certified appraiser, testified as an expert for Sheila as to the value of the inventory in the Zephyr Lane workshop. Nikols had conducted close to 200 appraisals of machinery and equipment in the past 10 years.

Nikols testified the value of all the equipment owned by Duane and Sheila when they separated was close to $125,000. Nikols spent an entire day in November 2002, examining and inspecting the equipment and materials in the workshop. He researched the fair market value of the various machines, based on "'as is but operable' condition[s]," by checking the serial numbers on the equipment against various trade publications. He often checked the value of a particular piece in multiple publications before he reached his conclusion. He also considered the condition of various machines, which were incomplete or inoperable. Nikols admitted that in his appraisal, he described the collector of the equipment as a "'bottom feeder' and that this stuff was basically 'mostly junk.'"

Duane disputed Nikols's testimony, and claimed that nearly every machine in his workshop was inoperable, missing significant parts, and only used for scrap. "I get a lot of it out of dumpsters and I get a lot of it from scrap junk piles for ten cents a pound," and "… I can take two broken pieces and make one good one out of it." Duane only purchased one piece of equipment at an auction, and the rest was purchased "for pennies on a dollar and in scrap piles." Duane testified that over the years, he probably spent about $10,000 to purchase all the machine parts and scrap metal which was currently in his workshop. Duane did not present any expert testimony to contradict Nikols's opinion.

Sheila believed the inventory of the workshop was worth more than Nikols's opinion. She testified that Duane bought various tools, machines, and equipment parts, and "I know what he did with them, that he bought and sold machinery. I know when he brought stuff in he would triple it, got more on his money than he paid." She complained the machine shop "consumed" his life.

The Value of the Sandy Lane Property

Duane testified that he had a comparative market analysis done for the Sandy Lane property, and it was worth $90,000 with debt of $8,000 or $9,000. Duane also testified that he just received a letter that the property was in foreclosure because Sheila was not making the payments.

Sheila testified the property was worth $80,000 with debt of $9,000. Sheila testified that she obtained a property profile from a realtor, and she believed Sandy Lane was worth $179,000, with an $8,000 encumbrance. Sheila intended to sell the property if it was awarded to her.

Neither Duane nor Sheila introduced an appraisal into evidence.

The 1932 Dodge

Duane testified that he possessed a 1932 Dodge classic automobile, it was given to him when he was 14 or 15 years old, and it was his separate property. He disagreed with Sheila's belief the vehicle was worth $15,000 because "it's not worth that volume of money. It needs to be restored."

Sheila testified that they bought the 1932 Dodge together at a wrecking yard, after they were married. Duane worked at the wrecking yard to pay it off, and then they brought the car to Zephyr Lane in 1967 or 1968. "He drove it into where it's located now. So it ran. He drove it in. We used to drive it as our car. He had the inside done. It needs to be, you know, loved and taken care of." Sheila had recently checked on the value of antique cars, and testified the Dodge was worth $15,000 in its current state of restoration.

Sheila further testified that when Duane filed for dissolution in the early 1970's, he transferred the Dodge's ownership to his sister. Sheila introduced a court document from that dissolution proceeding, in which the court ordered Duane not to transfer or dispose of any community property in his possession, "'particularly the 1932 Dodge.'"

The MGA Roadster

Duane testified he obtained a 1959 MGA roadster in a trade for a Volkswagon Carmen Ghia, which was worth $1,000. Duane testified he "completely restored" the roadster and it was "about a ten-thousand-dollar automobile," but he needed to put in the engine and paint the car. "It's almost there. It's almost restored." Duane testified Sheila possessed the roadster and it should be awarded to her. Duane acknowledged his trial brief stated the roadster was worth $7,500, and if the brief "says $7500, then that's what it's worth." Duane testified he never gave the roadster to Sheila as a gift. Instead, they built it together during the marriage.

Sheila testified she possessed the roadster, and Duane gave it to her four years ago. "It was in the summertime. He just gave it as a gift." Sheila wanted the roadster and Duane said, "'[h]ere. It's not together. I don't have any motor or anything like that for it.'" Sheila believed she could get $700 or $800 for the roadster in its current condition.

The Cessna Airplane

Duane testified he bought a 1946 Cessna 140 airplane for parts and paid $1,500 for it, "and that's what it's worth." Duane testified the airplane was not operable, it was in pieces when he bought it, the wings were damaged, and he used it for parts. "Some of the parts have been taken. That's what they're worth now. And she has the logbooks and everything on the airplane, and so it really has no value until it's restored and the rest of the parts get returned."

Duane wanted to keep the Cessna. Duane disagreed with Sheila's belief the Cessna was worth $8,000, and testified the Cessna would only be worth that much if it was restored. "[S]he took some of the parts--it's probably worth, like it is, maybe a thousand dollars." Duane introduced a photograph of the plane. "It was in an accident. It had flipped. It cartwheeled. Both wings are damaged. This is what's left of the instrumentation. I have restored the instruments on it ...."

Sheila testified Duane paid $1,000 for the Cessna and it was in a "state of disrepair," but Duane told her it was worth $8,000.

The Grand Piano

Duane testified there was a black grand piano in the Zephyr Lane house, which had been worth $2,000, but Sheila "has that and it has been destroyed." "I understand that it was turned on its side, and I'm under the impression that when she turned that piano that the harp warped and its no longer usable."

Christina testified Sheila removed furniture and the grand piano from the Zephyr Lane house. Christina testified the piano was now at her uncle's house.

Hilaria Jackson, Sheila's sister-in-law, testified she helped Sheila move a piano from the Zephyr Lane property, but it belonged to Sheila's son, Chase, rather than to Sheila.

Sheila testified the piano belonged to Chase and she did not take the piano. Chase called Sheila's brother and made arrangements for him to move it from the Zephyr Lane residence.

Silver dollars and Coins

Duane testified there were 16 pounds of silver hidden in the walls of the Zephyr Lane residence, and brought a sample into court. "Well, those are called 'World Trade dollars,' and that's how you negotiate when you move silver and gold and stuff like that, and I know there was 16 pounds in jars in the wall because that's what I got." The silver was worth whatever was the fair market value of silver.

Christina testified that after Sheila moved out of Zephyr Lane in December 2002, she saw Sheila in possession of a jar full of silver dollars. Christina borrowed Sheila's truck and saw the jar of silver dollars rolling around in it.

Sheila testified she had no idea what Duane was talking about when he mentioned "world track dollars" or a silver dollar collection worth $2,500. "There was a penny collection at the bottom of the grandfather clock," with one $25 certificate.

Hilaria Jackson testified she did not know anything about a silver coin collection, and did not move any coins out of Zephyr Lane.

Sheila testified they had a jar of silver in the house, but Duane put it away and she had no idea where it was. "He had hidden it. And there wasn't silver dollars. It was troy ounces of silver. They're worth about a dollar fifty, maybe two bucks apiece, whatever the silver price is." "There was probably ten, maybe twenty. It was a small fruit jar, and whatever silver is an ounce is what they're worth. Not all that much. Silver is not that much now." Sheila did not take the silver.

The 2001 Tax Refund

Duane testified Sheila always did their books and the tax returns, and he had no idea how she completed the documents. Duane testified that Sheila filed their 2001 tax return, forged his signature, obtained their 2001 tax refund, and refused to return any money to him. "My daughter signed it."

Christina also testified about her parents' tax return for 2001:

"Q. Now, were you ever shown or presented with a 2001 tax return that was your parents' tax return?

"A. Yes, ma'am.

"Q. And did your mother ask you to sign your father's name to that tax return?

"A. Yes, ma'am. [¶]…[¶]

"Q. And at your mother's direction did you sign that 2001 tax return?

"A. Yes.

"Q. Did you also sign the refund check when your mother presented it to you?

"A. Yes, I did."

Christina believed the refund check was for $3,500, and she did not get any of the money.

"Q. Did your mother say what she was going to do with the money?

"A. No.

"Q. Did your father tell you that he didn't get any of that money?

"A. No, he didn't."

Sheila did not offer any testimony about the 2001 tax return and refund.

The parties stipulated that tax returns had not yet been filed for 2002 and 2003, and they would cooperate to file the returns.

The "Sea Train" Container

Duane testified that Sheila kept the inventory for her home decorating business inside a "Sea Train" container that was on the Zephyr Lane property. Duane testified that Sheila was ordered not to remove any items from the Zephyr Lane property when she moved out, but the Sea Train container "ha[d] been moved."

Sheila did not testify about the Sea Train container.

The Kayaks

Duane testified there were two kayaks in his possession but they belonged to his son, Chase, and he bought the kayaks for Chase "so he could play at the lake."

Sheila testified the two Hobie kayaks were community assets and worth $200 to $300 each. Sheila testified that she did not take the kayaks from the Zephyr Lane house, but that Chase took the kayaks because "[t]hey're his," and then testified that she currently had the kayaks in storage.

The Court's Order

On July 21, 2004, the court issued a minute order ruling on the contested petition and pending OSC's. The court found the parties' testimony "incredible" and relied on the testimony of other witnesses and the documentary evidence. The court found the January 1990 documents were null and void, because Duane signed them under undue influence and later revoked the powers. In addition, Sheila breached her fiduciaries duties when she tried to sell the community assets for $1.

The court divided and valued numerous community assets. The Zephyr Lane residence was awarded to Duane and valued at $420,000. The Sandy Lane residence was awarded to Sheila, and valued at $90,000 with a $10,000 credit to Duane for his separate property contribution. The kayaks were given to Duane and valued at $500. A Cessna 140 airplane was awarded to Duane and valued at $8,000. The 1932 Dodge was awarded to Duane and valued at $15,000. Duane also received all tools and equipment on the Zephyr property, valued at $200,000. "Silver dollars/coins" were awarded to Sheila, with the value "unknown."

The court ordered Duane to pay monthly spousal support to Sheila of $1,000, and found Sheila relied upon Duane to support the family while she raised the children, and she was unemployed and did not have any current opportunities for education or employment. The court found Duane had the ability to pay support, given his earning abilities and continued employment. Finally, the court found there was insufficient evidence to find Sheila in willful contempt of the court's previous orders.

Posttrial motions

On September 16, 2004, Duane filed a notice of "INTENT TO MOVE TO SET-ASIDE ORDER AND/OR TO VACATE AND ENTER DIFFERENT ORDER OR TO RECONSIDER THE CURRENT RULING AND TO DISPOSE OF MISSED ASSETS." This notice and motion was supported by numerous exhibits, including an appraisal of the Zephyr Lane and Sandy Lane properties, photographs of the Cessna, and an Internet valuation of a 1931 Dodge.

Duane argued the court did not properly value various assets and the court's valuations were not supported by the trial evidence. Duane complained the court's valuation of the Zephyr Lane residence was inflated and improperly included the workshop. Duane also complained that while the court valued the Sandy Lane property at $80,000, Sheila had just sold it for $160,000. Duane also asserted the Dodge was his separate property, the Cessna was inoperable and just a wreck, the kayaks belonged to his son, and the court should have assigned a value to the silver dollars. Duane also argued the court failed to account for the MGA roadster, a grand piano, Sheila's "What's New" business, a World War II flight jacket, and an Anthony crane and Sea Train storage unit on the Posey Creek property.

In addition, Duane attached an article from the Bakersfield Californian, dated August 24, 2004, by a columnist who happened to drive by a "Divorce sale" in an old shop on Chester Avenue. The columnist wrote that two women were in the shop. One woman was in her 50's, and said she was getting divorced and that "'he tried to teach me a lesson'" after 35 years. The woman said her husband had been a good provider, and if he had "stuck to what he was good at it, she probably wouldn't have had any quarrel with him." The columnist asked what she was going to do:

"'I'm cashing out,' she said. 'I bought a ship in Missouri.' [¶] Not a boat, but a ship with five stories. She planned to live on the top and have a hotel and a restaurant on the other floors."

The columnist stated that an older woman was also present, but he never mentioned their names. He purchased some bowls and plates and left. "I felt as if I had gotten my money's worth. For less than $3, I'd gotten the goods and learned a lesson, besides."

Duane also attached an advertisement from the Bakersfield Californian which stated: "DIVORCE SALE, LAST SALE--FINAL--NEW STUFF!" at an address on Chester Avenue. Duane included documentation representing the advertisement was paid for by Helen Hobert (Sheila's mother), and ran on August 27 to 29, 2004.

Duane relied on the newspaper advertisement as evidence that Sheila conducted the "Divorce sale" at the Chester Avenue property, the newspaper columnist happened to stop in and write about the sale, and Sheila admitted that she was going to run a hotel and restaurant in Missouri, refuting her trial testimony in which she denied she had any plans to purchase a ship and run a hotel. Duane argued such newly discovered evidence refuted Sheila's trial testimony, that she was unable to find a job and had no plans, and the court's spousal support ruling on her inability to work.

On October 8, 2004, Sheila filed opposition to Duane's motion. Sheila argued Duane could not bring such a motion because the judgment had not been filed, he should have addressed the "missed assets" in his earlier motions, and the court's ruling on the division and valuation of assets was supported by substantial evidence. Sheila objected to the documentary exhibits attached to Duane's motion, and argued such evidence should have been presented at the contested hearing and could not be raised after the ruling.

On October 19, 2004, the court heard argument on Duane's motion to set aside. Sheila objected to Duane's motion as untimely, and argued Duane failed to properly move for a new trial. Duane acknowledged the judgment had not been filed and his motion was not for a new trial, but he was just trying to be expedient by raising objections to the court's division and valuation orders. Sheila replied it was too late for Duane to ask the court to consider assets which he failed to raise at trial, and Duane could not present appraisals for the court to now consider. Duane argued the court was obliged to reconsider its orders, particularly as to the missed assets. Duane also asserted the collection of silver coins was worth $4,000, and Sheila maintained possession of the coins.

The court stated that it would file the judgment and take Duane's pending motion under submission, and let the parties know whether it would consider the motion on the merits.

The Judgment of Dissolution

On October 21, 2004, the court filed the judgment of dissolution terminating marital status. The court filed a lengthy opinion which restated the findings from the July 21, 2004, minute order, and addressed the contested property issues. The court made specific findings as to the credibility of the parties:

"… The Court heard extensive testimony and received into evidence a significant number of exhibits. The testimony of the Parties on many of the issues before the Court such as income and acquisition of various assets can at best be described as incredible leaving the Court to consider the testimony of other witnesses on the same issues and the documentary evidence."

The court rejected the validity of the documents which Duane signed in January 1990:

"The Court finds there is a presumption that when there is an interspousal transfer of property and it appears that one spouse has taken advantage of the other and undue influence caused the transfer. In this case the Court finds it so and further that there was no explicit intent of [Duane] to transfer Zephyr Lane, Sandy Lane, and Posey properties was shown. What [Duane] did with the property was to attempt to placate [Sheila], not necessarily save a marriage. The Court finds that the document was vague as to express the intent of [Duane] on the transfer of the property. With the exception of the 'Chester Avenue' property the Court finds there was no interspousal transfer of property."

The court found the Zephyr and Sandy Lane properties, and the Posey Creek cabin, were community property. The Chester Avenue property was Sheila's separate property, based on the parties' agreement and the 2002 Interspousal Transfer Grant Deed.

"The Power of Attorney granted to [Sheila] was revoked by the words and/or actions of [Duane] in addition to the actions taken by [Sheila] in attempting to exercise the Power violated her first fiduciary duty to [Duane] and said transfers are null and void."^[3]

The court ordered Duane to pay Sheila $1,000 in monthly spousal support, and made specific findings as to Sheila's ability to earn income.

"The Parties married at a very young age and appeared to have started their lives together with nothing. During the marriage [Duane] earned most of the income while [Sheila] raised their children and worked to supplement their income. [Duane] at the end of the marriage earned about $50,000 per year employed with the Associated Press and finding wealth in dumpsters while [Sheila's] highest rate [of] pay was $14 per hour as a bus driver. Neither Party appears to have received a high school diploma. At present [Sheila] is unemployed having attempted a business enterprise and failed. [Sheila] appears to have allowed any opportunities for education or job training to languish while she raised the children to maturity and [Duane] explored his career and money making opportunities. [Duane] appears to have been very successful in his pursuits given the amount of assets that have been acquired. During the marriage the family took vacations, regularly went out to dinner, and appeared to have enjoyed a middle income lifestyle. A lack of a diploma and marketable skills would make the re-training of [Sheila] a long term project in order that she become able to maintain her marital lifestyle previously enjoyed. [Duane] has not only demonstrated his ability to provide previously but has gathered materials and equipment to begin a new line of employment. Given [Duane's] earning abilities he would have no problem paying spousal support. Until [Sheila] has re-training or other opportunities to develop marketable skills [Sheila] would be limited to a $14 per hour job such as she had and thus not be able to meet the standard of living enjoyed during marriage. Both Parties appear in good health and offer nothing to indicate otherwise, neither has health insurance. [Duane] is approximately 56 of years of age and [Sheila] approximately 50 years of age."

The court divided and valued numerous community assets.^[4] The Zephyr Lane property, including the workshop, was awarded to Duane and valued at $420,000. The kayaks were awarded to Duane and valued at $500. The Cessna 140 was awarded to Duane and valued at $8,000. The "1932 Dodge (Brother's Car)" was awarded to Duane and valued at $15,000. The equipment and tools in the Zephyr Lane workshop were awarded to Duane and valued at $200,000.

The Sandy Lane property was awarded to Sheila; the court noted the fair market value was $90,000, with an encumbrance of $10,000, for a value of $80,000. The Posey Creek cabin was awarded to Sheila and valued at $160,000. A "Silver Dollar/Coin Value" was awarded to Sheila with "unknown" value. The court found the Chester Avenue property was Sheila's separate property, and that Duane disclaimed any interest in the asset. The court also found several assets had been gifted to Sheila during the marriage and consisted of her separate property, including a sewing machine, a grandfather clock, rocking chair, potbelly stove, and other items.

The court ordered Duane to pay Sheila $207,030, to equalize the division of community property assets and obligations. The court also ordered Dune to pay $10,000 of Sheila's attorney's fees, based on the length of trial and tactics of both parties.

Finally, the court addressed Duane's pending OSC's against Sheila for contempt:

" ... [T]he Court finds that while the actions of the Parties are less than admirable the evidence does not meet the burden of proof to prove up a contempt. The Court finds that there was a lawful Order but further finds the Order was too general, ambiguous, and vague on the definition of 'Personal Effects' and the evidence of [Sheila's] specific knowledge of the parameters of the Order was insufficient to find willful contempt."

Also on October 21, 2004, the notice of entry of judgment was filed.

Postjudgment Motions

On October 29, 2004, Duane filed a motion for new trial and/or reconsideration.^[5] Duane argued there was insufficient evidence to support the court's characterization and/or valuation as to Zephyr Lane, Sandy Lane, the Cessna airplane, the 1932 Dodge automobile, the silver dollar collection, the kayaks, and the workshop's equipment and tools.

As to Zephyr Lane, Duane submitted an appraisal of the property, which was completed in June 2004, and stated the property was worth $285,000. Duane argued such documentary evidence was more credible than Sheila's opinion on the property's value. Duane claimed he belatedly submitted the appraisal because he was "taken completely by surprise" by the court's valuation of the property at $420,000. Duane also submitted the Bakersfield Californian's newspaper column and advertisement about the "Divorce Sale," and again asserted that Sheila was the woman quoted in the story, and her statements about buying a ship in Missouri demonstrated her ability to support herself, contrary to the court's findings on that issue. Finally, Duane asserted that he would present "newly discovered evidence" consisting of the testimony of Chase and Alexandra Prokuski, as to their knowledge of Sheila's prior false statements in this case.

Also on October 29, 2004, Duane filed a motion for the court to divide omitted and/or missed assets, to value divided assets, to clarify its ruling of July 21, 2004, to further rule on his prior OSC's for contempt, and for a statement of decision on all controverted issues. Duane asserted the court failed to properly divide and/or value the Zephyr Lane furnishings, the 1959 MGA Roadster, the grand piano, Sheila's business, the 2001 tax refund, a World War II flight jacket, an "Anthony crane," a Sea Train storage shed, and the silver dollars. Duane claimed Sheila removed all the furnishings from Zephyr Lane, including the grand piano and his father's World War II flight jacket. As to the jacket, Duane asserted his father gave it to him, it was his separate property, and it should be returned to him; in the alternative, Duane proposed for the court to award the jacket to Sheila with a value of $10,000. Duane further claimed that he had stored an "Anthony crane" on the Posey Creek property, he received it as a gift, it was worth $500, and court failed to award the asset to either party. Duane also claimed that a Sea Train storage container was on the Posey Creek property, he used it for storage on that property, and it was worth $500.

On November 8, 2004, Duane filed declarations in support of his new trial motion from his son and daughter-in-law, Chase and Alexandra Prokuski. Chase declared he was 18 years old and in the Marine Corps, and testified on Sheila's behalf at trial. Chase declared he provided truthful testimony but Sheila led him to believe that Duane had been abusive to her, and going to financially and emotionally ruin her. "Thus, I kept silent regarding things my mother did in violation of the court's order ...." Chase declared that he would testify that he was present when Sheila admitted she damaged property in the Zephyr Lane workshop, she removed Duane's property from the house, he was present when she removed property from the Posey Creek cabin, and he was unaware that Sheila was subject to a court order not to remove property. Chase also declared that Sheila showed him photographs of "the 'ship' she either purchased or intends to purchase in Louisiana and we have discussed what improvements she plans on making to the ship so that she can operate it as a business." Chase declared Sheila had "gone to great lengths to mislead and misrepresent the true facts in this matter" to the detriment of Duane and the other children.

Alexandra Prokuski, Chase's wife, declared Sheila told them that Duane was physically and emotionally abusive to her, and they believed her. Sheila convinced Chase and Alexandra to help her remove property from Zephyr Lane and Posey Creek, and Sheila admitted she knew the court ordered her not to remove property. Alexandra declared that she saw Sheila remove specific property, including the grand piano, the kayaks, and "[t]wo metal boxes full of coins." Alexandra declared she would have avoided testifying for Duane at the trial because Sheila's influence and coercion made it unlikely she would have been a cooperative or reliable witness to the facts. Alexandra had discovered that Sheila lied about things, and she was now willing to testify.

On December 13, 2004, Sheila filed opposition, and again argued the court's rulings were supported by substantial evidence, and Duane had waived any complaints about alleged "missed assets" because he failed to raise these issues during the trial. Sheila also asserted that Duane obtained an appraisal of Zephyr Lane before the court's ruling herein, but failed to disclose it because he wanted to obtain the property at a lesser value. Sheila requested the court strike the declarations of Chase and Alexandra Prokuski as inadmissible hearsay, and strike all of the exhibits submitted by Duane in support of his motion. Sheila submitted her own appraisals. On December 14, 2004, Sheila filed further opposition.

Hearing on New Trial Motion

On December 15, 2004, the court conducted a hearing on Duane's motion for new trial. The court noted that Duane filed a motion for new trial, reconsideration, a request for clarification, and consideration of omitted assets.

Duane asserted the court made some mistakes in valuing assets, particularly the Zephyr Lane property, the workshop inventory, the Cessna airplane, and the 1932 Dodge. The court also failed to consider particular assets, such that a new trial should be granted.

Sheila acknowledged that on October 29, 2004, Duane filed a notice of intent to file new trial motion, but argued Duane failed to timely file the supporting declarations of Chase and Alexandra Prokuski. Sheila asserted Duane failed to satisfy his burden of proof to challenge the court's valuations of the assets.

The court noted that Sheila had attached an appraisal to her opposition, prepared on October 19, 2004, after the court issued the ruling in this case, and Sheila failed to introduce such evidence at the trial. The court also clarified the contested issues in Duane's pending motions:

"And we are basically talking about the evaluations of the equipment and the property on Zephyr, the characterization of the Dodge, and the evaluation of the Cessna and the quote, unquote 'coin collection,' whatever that is. [¶]…[¶] Also the household furnishings and the evaluation of the Sandy Lane property."

The parties concurred with the contested issues and the court took the matter under submission.

Denial of New Trial Motion

On December 20, 2004, the court issued a ruling on Duane's pending motions. The court noted that Duane filed a motion on September 16, 2004, to reconsider or set aside the court's ruling of July 21, 2004. The court denied that motion without comment or analysis.

The court next noted that Duane filed a motion for new trial pursuant to Code of Civil Procedure section 1008 or, in the alternative, to modify the court's judgment pursuant to sections 657 and 659.

"… [Duane] offers that due to the insufficiency of the evidence to support the characterization and valuation of specific property and newly discovered evidence his rights will be substantially affected. The Request for New Trial pursuant to CCP Section 1008 is denied."

The court addressed Duane's objections to the court's valuation of particular assets.

"The expert testimony on the value of the equipment provided by the witness Mr. Nicolas [sic] was introduced by [Sheila]. [Duane's] credibility on this issue and others was in question as he testified his finances were of no one's business but his own. At one point he testified that he purchased some items and at other times he testified that he was paid to haul away the same items. To further diminish the value or importance of property items [Duane] testified that they belonged to others yet no witnesses were presented to claim the items. In short, the Court did not believe [Duane]."

The court noted both Duane and Sheila testified as to their opinions of the value of the Zephyr Lane property. Duane testified he was willing to accept $225,000 as the property value. "As to value [Sheila's] testimony was more credible." However, the court modified the valuation of the Zephyr Lane property:

"The Court does find that an error was made in the calculations regarding the values of the above properties in that the Court in calculating the values included the 'shop' in both the equipment and resid