Marriage of Valdez

Filed 9/26/07 Marriage of Valdez CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

In this marital dissolution proceeding, Norman J. Valdez, Jr. (Norman) appeals from the trial courts judgment dividing marital property.[1] We conclude that the courts rulings are supported by substantial evidence, and affirm the judgment.

facts

The parties married on May 10, 1991, and have four minor children. The couple separated in late 2003, and Karen M. Valdez (Karen) filed a petition for dissolution of the marriage on February 28, 2005. Judgment of dissolution was entered April 14, 2006. The court awarded physical custody of the children to Karen, with visitation by Norman, and fixed monthly child support by Norman. Property division issues were reserved, and judgment on those reserved issues was entered on July 21, 2006. Norman now appeals, and raises numerous challenges to the courts division of marital property.

discussion

A. Separation date

Norman contends that the trial court improperly set the parties separation date as December 7, 2003. The separation date is significant because it dictates the character of property. (In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, 1158.) A spouses earnings while living separate and apart from the other spouse are separate property, not community property. (Fam. Code,  771, subd. (a).) Norman argues that the correct separation date is November 10, 2003, and that the courts selection of a later date has deprived him of over $7,000.

Two factors are relevant to determining the date of separation. First, at least one spouse must entertain the subjective intent to end the marriage; second, there must be objective evidence of conduct furthering that intent. [Citations.] Simply stated, the date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship.  (In re Marriage of Norviel, supra, 102 Cal.App.4th at pp. 1158-1159, italics in original.) Marriages may experience many rifts and reconciliations; legal separation occurs only when there is  a complete and final break in the marital relationship.  (In re Marriage of Hardin (1995) 38 Cal.App.4th 448, 451.) The date of separation is a question of fact for the trial court, and resolution of that question must be affirmed on appeal if supported by substantial evidence. (In re Marriage of Norviel, supra,at pp. 1157-1158.)

The evidence supports the trial courts finding that the parties separated on December 7, 2003. On that date, Norman returned from military service in Utah and went to live in his fathers home instead of the family home. Normans conduct furthered the parties intent to divorce, which was discussed between them by telephone on November 24, 2003.

Norman posits November 10, 2003 as the separation date because that was the approximate date when Karen opened a separate checking account. Evidence of a separate checking account is far from conclusive evidence of a complete and final break in the marital relationship. While Karen opened a separate bank account, she also maintained a joint account with Norman and continued to deposit her paychecks in that joint account. Karens testimony also undermines Normans claim that Karen firmly intended to separate by November 10, 2003, when she opened a separate account. According to Karen, the parties discussion on November 24 was we need to go to counseling or we need to get a divorce, and Norman replied fine, Ill give you a divorce. Karens November 24 offer to attend marriage counseling suggests that the rift in the parties relationship was not final as of November 10.

Additional evidence supporting the courts determination of the later date of December 7 as the separation date is found in the parties provisional child support agreement executed in January 2004. The parties agreement, freely signed by Norman, initially states: As of December 7, 2003, Norman Joseph Valdez Jr. was no longer residing in the family home. It is true, as Norman argues on appeal, that this statement in the parties child support agreement does not entirely exclude the possibility that the separation was subsisting [a]s of December 7, 2003 but actually started earlier. However, the statement does suggest that the parties recognized December 7 as a significant date in the dissolution of the parties marriage. That conclusion is reinforced by another statement in the same document, which Norman disregards. The latter statement provides: Since Norman is leaving [for military deployment] without divorce papers filed both Norman and Karen are free to see other people, since becoming separated on December 7, 2003 without legal holdings of the marriage. (Italics added.) We conclude that the evidence in its totality supports the trial courts determination that the date of separation was December 7, 2003.

We also reject Normans argument that the court was required to accept November 10, 2003 as the date of separation because the parties stipulated to that date. Early in the proceedings, the court discussed with the parties various dates that could constitute the date of separation and Karen agreed to allow amendment of her petition for dissolution to allege November 10, 2003 as the date of separation, instead of December 10, 2003, as she originally alleged. Contrary to Normans claim on appeal, the trial court was not required to accept the separation date alleged in Karens amended petition.

[T]he court is bound to consider all relevant evidence in resolving separation date contests [citation]. Consequently, recitals in the pleadings or a marital settlement agreement are probative but not conclusive on the issue. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2006) 8:114, p. 8-37, italics omitted.) Pleaded separation dates can be approximations selected without careful consideration, as seems to be the case here. (In re Marriage of Umphrey (1990) 218 Cal.App.3d 647, 657, fn. 2.) In adjudicating the parties actual separation date, the court must take into account the entire picture in light of the evidence before it. The pleadings and [any] settlement agreement constitute but one part of that picture. (Id. at p. 657.) The trial court here properly looked beyond the pleadings to the totality of the evidence in determining the separation date.

B. Property division

The court awarded Karen the family mobile home and her retirement plan. The court awarded Norman his military retirement plan and $4,584 reimbursement from Karen for personal travel expenses she took from a joint bank account. The court also allocated specified community debts of about $12,000 to Norman. The parties separately agreed to the division of vehicles and small personal items of property.

Norman contends that the property division was not equal, and particularly complains that the trial court undervalued the mobile home it awarded to Karen by accepting her opinion that the mobile home was worth $20,000. Norman argues that the mobile homes fair market value was $40,000, based on listings advertising mobile homes for sale.

The record fails to support Normans claim that the court valued the mobile home at $20,000. The court awarded the mobile home to Karen without stating the homes fair market value, and Norman failed to request a statement of decision asking the court to specify its valuation of assets or method of calculation. (Code Civ. Proc.,  632; In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1274.) Without valuations assigned to the mobile home and other significant assets, like the parties retirement plans, there is no basis for Normans assertion that the mobile home was undervalued and the property division unequal. Normans speculation on appeal about the valuations assigned to various assets is no substitute for a court statement of decision.

In any event, even if we credit Normans claim that the court valued the mobile home at $20,000, that valuation is supported by substantial evidence. The mobile home was built in 1973 or 1978, and the parties agreed that they paid $20,000 for the mobile home when they purchased it in 1993 or 1994. Karen testified that, in her opinion, the mobile homes current value at the time of trial was $20,000. It is well-settled that the owner of property is qualified to give his [or her] opinion of its value. (Evid. Code,  813, subd. (a)(2).) (In re Marriage of Hargrave (1985) 163 Cal.App.3d 346, 351.) Norman concedes that Karens testimony was entitled to consideration but argues that the trial court should have favored contrary valuation evidence Norman presented, namely, Internet listings of allegedly comparable mobile homes for sale at $40,000. But a trial court, in the exercise of its discretion and evaluation of witness credibility, is entitled to accept an owners valuation over other evidenceeven a qualified real estate appraisers testimony. (Ibid.) Moreover, Norman mistakenly relies upon mobile home listings to support his valuation. Offers to sell property are inadmissible to prove a propertys value. (Evid. Code,  822, subds. (a)(2) & (b); see Mears v. Mears (1960) 180 Cal.App.2d 484, 505, disapproved on another point in See v. See (1966) 64 Cal.2d 778, 785-786.) Actual sales of comparable property, not offers to sell (which may be inflated), are competent evidence of fair market value. (Evid. Code,  816.) The trial court was thus free to accept Karens valuation of the property, and to reject Normans sale listings.

C. Claimed credits

Norman claims that the property division should have included an Epstein credit of $9,329 to reimburse him for payments he made on community debts from his separate property earnings. (In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85.) Norman also claims that Karen should have paid him a Watts charge of $8,500 for her post separation exclusive use of the family home. (In re Marriage of Watts (1985) 171 Cal.App.3d 366, 374.)

The trial court did not abuse its discretion in denying Normans claims. The trial court found that community debt payments, and use of the family home for Karen and the children, was in lieu of formal child support orders that would have required a higher rate of contribution from Norman. The court found that the parties intended, as part of their provisional child support agreement, that Karen retain use of the family home and Norman make certain payments on community obligations. The court also noted that Norman received room, board, and other benefits from military service that had not been imputed as income to Norman in determining Karens entitlement to child support. The court properly declined Normans claims in setting an overall equal community property division.

D. Alleged breach of fiduciary duty

The parties executed a provisional child support agreement in January 2004, just before Norman left for Iraq to serve with the Army National Guard. The parties agreed that Karen would have full legal and physical custody of the parties four children until Normans return from active duty, when the parties would proceed with dissolution proceedings. The parties further agreed: Karen will write a check out of the joint account for $1,000 on the 2nd and 16th of each month for child support of the children. . . . Any other extra expenses that are needed for the children will also come out of the joint account shared by Norman and Karen. Ex[ample]. Half of any medical or dental bills.

Norman asserts that he honored the parties agreement and had his paychecks (which were his post separation separate property) deposited directly into the parties joint account from January to September 2004. Norman claims that Karen violated the January 2004 agreement, and breached the fiduciary duty owed between spouses, by withdrawing amounts in excess of the agreed child support. (Fam. Code,  721.)

The trial court considered, and rejected, Normans claim. The court found no material breach of the agreement. The court did find some travel expenditures inappropriate[] and ordered them reimbursed to Norman in the amount of $4,584. The court found all other expenditures appropriate, noting that Karen was entitled under the terms of the parties agreement to withdraw $2,000 monthly in child support, plus any other amounts for extra expenses that are needed for the children. Karen was also entitled to access the joint account to withdraw amounts she deposited from her own paychecks and other separate property sources.

Norman disputes the courts findings, and argues that Karen made unauthorized expenditures of $13,224 from the parties joint account. Norman has failed to prove his point on appeal. His calculation is founded on comparing the total amount withdrawn from January to August 2004, with the amount Karen was entitled to withdraw as monthly child support and her separate earnings. The calculation is not reliable evidence that Karen misspent funds. The calculation fails to account for amounts on deposit from Karens earlier paychecks; for Karens deposits in addition to her paycheck; for extra expenses needed for the children that Karen was entitled to withdraw; and for the travel expenses that were withdrawn but reimbursed. Any ambiguities in the evidence or uncertainties in the calculations are construed in favor of the judgment because the judgment is presumed correct and it is Normans burden, as the appellant, to affirmatively demonstrate error. (Crummer v. Zalk (1967) 248 Cal.App.2d 794, 796-797.) On this record, we are unable to find any misappropriation of funds.

disposition

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Reardon, Acting P.J.

_________________________

Rivera, J.

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[1] Given the parties shared last name, we refer to them by their first names to avoid confusion.