Marriage of Bernie

Filed 8/28/07 Marriage of Bernie CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. J. Michael McCoy, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Colleen Bernie, in pro. per., for Appellant.

Simon A. Housman for Respondent.

I. INTRODUCTION

Following a court trial, judgment was entered granting dissolution of the marriage between Marshall Bernie (Husband) and Colleen Bernie (Wife). Along with dissolving the marriage, the trial court determined that the family residence at 64896 Boros Court, Desert Hot Springs, California, was separate, nonmarital property belonging to Husband. In support of its determination, the court concluded that Husband did not make a premarital, oral agreement to give Wife the family residence in contemplation of marriage.

Wife appeals, claiming the trial court erred in: (1) not allowing her cross-examination on the grounds alleged for the dissolution of marriage; (2) not admitting certain evidence regarding a premarital promise between the parties; and (3) awarding the family residence to Husband without sufficient evidence. Having found no error, we affirm the entirety of the trial courts rulings.

II. PROCEDURAL AND FACTUAL BACKGROUND

A. Procedural Background

Husband filed a petition for dissolution of marriage in December 2001. In the petition, Husband requested confirmation as his separate property the family residence located at 64896 Boros Court. In 2004, in her schedule of assets and debts, Wife listed the family residence as community property, acquired during marriage. Later in 2004, Wife listed the family residence in her property declaration as community property that should be awarded to her in full.

B. Factual Background

In 1990, two years before the couples marriage, Husband purchased the family residence at 64896 Boros Court for Wife and her daughter to reside; however, the deed to the property listed only Husband as grantee. Husband and Wife married in 1992, and Husband adopted Wifes daughter in 1995. Following nine years of marriage, in December 2001 Husband filed for divorce. Eighteen months later, he served Wife with a copy of the petition for dissolution of their marriage.

In 1991, 1993, and 1997, Husband amended The Bernie Family Trust in order to gift the family residence to Wife upon his death. However, in December 2004, Husband once again amended his Trust. Husband removed Wife from The Bernie Family Trust entirely, and instead willed all his belongings to his three children. The record does not show that Wifes name was ever added to the deed to the family residence.

At trial, Wife claimed the family residence belonged to her. She testified that Husband had promised her the family residence, and she had relied on that promise. However, Husband testified that he was the sole owner of the family residence. Further, the family residence was the only thing [he] own[ed], and it was the only asset [he] had.

All other relevant facts will be discussed as they become pertinent to the subsequent discussion.

III. DISCUSSION

A. Cross-examination Regarding Dissolution of Marriage

Wife, representing herself at trial, attempted to cross-examine Husband concerning the reasons for the dissolution of their marriage. She asked, What are the irreconcilable differences? Husbands counsel objected on the ground that the question asked for a legal conclusion, and the court sustained the objection. She next asked, What is the reason for this divorce? Husbands counsel objected on the ground that the question was irrelevant, and the court sustained the objection. Wife then attempted to ask Husband if he had ever filled out any forms for marriage counseling, but Husbands counsel objected on relevancy grounds. Wife made an offer of proof stating that on the form that [Husband] filled out, it said that his greatest fear was outliving his money. The court, not persuaded, sustained the objection. Wife also asked Husband if [he] remember[ed] telling [her] that [he] [was] leaving because [he] had run out of money and [he] didnt know what to do[.] Husbands counsel objected on relevancy grounds, and the court sustained the objection. Finally, Wife asked Husband how long he had been on Darvocet or Vicodin. Once again, Husbands counsel objected on relevancy grounds, and the court sustained the objection. Wife made an offer of proof to the trial court only regarding the question referring to marriage counseling; she did not contest any of the other sustained objections.

Wife argues the trial court erred in not allowing her to inquire into the irreconcilable differences between her and Husband. Specifically, she claims that her line of questioning did not ask for a legal conclusion, or specific acts of misconduct, but asked for reasons why the marriage, taken as a whole, was past saving. Wife claims that a divorce would not have been granted had she been able to inquire into the reasons for the marriages dissolution.

The trial court is vested with broad discretion in ruling on the admissibility of evidence. [Citation.] [T]he courts ruling will be upset only if there is a clear showing of an abuse of discretion. [Citation.] (Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431 (Tudor Ranches).) A court may exclude evidence if the evidences probative value is substantially outweighed by the probability that its admission will waste the courts time, or create undue prejudice to a party. (Evid. Code,  352.) Also, reversal is warranted only if the trial courts error would result in a more favorable outcome for appellant. (Tudor Ranches, supra, at pp. 1431-1432; Vorse v. Sarasy (1997) 53 Cal.App.4th 998, 1013.)

As a general rule, we will not review the trial courts decision to exclude evidence unless the appealing party made an offer of proof to the trial court regarding the evidence. (In re Mark C. (1992) 7 Cal.App.4th 433, 443-444; Helfend v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 17-18; seeEvid. Code, 354.) An offer of proof must consist of material that is admissible, it must be specific in indicating the purpose of the testimony, the name of the witness and the content of the answer to be elicited. [Citation.] (In re Mark C., supra, at p. 445.) The record shows that Wife did not make an offer of proof to the trial court regarding any of the sustained objections except for the objection regarding the marriage counseling form; thus, we will review the courts ruling only with regard to that proffer of evidence.

Family Code^[1]section 2310 lists irreconcilable differences as one of two grounds for dissolving a marriage. Irreconcilable differences are those grounds which are determined by the court to be substantial reasons for not continuing the marriage and which make it appear that the marriage should be dissolved. ( 2311.) In determining the existence of irreconcilable differences, the trial court may not consider evidence of specific acts of misconduct. ( 2335.)

The trial court could decide, without abusing its discretion, that Wifes question, do you remember filling out a form for the counselor? did not go to deciding whether the parties marriage was past saving. (In re Marriage of Walton (1972) 28 Cal.App.3d 108, 118-119.) Wifes offer of proof, that Husband feared running out of money, did not persuade the trial court that the line of questioning would lead to any evidence that would help decide the issue of the dissolution of marriage. Instead of telling the court why the question would elicit a response with any probative value, Wifes offer of proof consisted only of what she expected Husband to say in response to the question. We are not provided with any reason why the filling out of a counseling form would help the trial court decide whether to dissolve the parties marriage.

We also find that if the trial court had erred, the error would be harmless. The evidence at trial clearly shows that Husband met his burden in seeking dissolution of his marriage: Husband disapproved of Wifes gambling addiction; Wife argued that Husbands daughters by another marriage tried to sabotage her marriage, and Wife even stated during trial, in response to the trial courts admonition to Husband and Wife to stop interrupting each other, Thats why were getting a divorce. The trial court had plenty of substantial as opposed to trivial or minor reasons for finding that irreconcilable differences justified dissolving the parties marriage. (In re Marriage of Walton, supra, 28 Cal.App.3d at p. 118.)

The trial court did not abuse its discretion in sustaining the objection to Wifes question. We affirm the trial courts decision to dissolve the parties marriage pursuant to section 2333.

B. Evidentiary Rulings Regarding Husbands Promise to Gift the House

1. Exclusion of Declarations of Wifes Relatives

During Wifes cross-examination of Husband, she attempted to introduce three declarations from her mother, father and uncle stating that Husband had promised to give her half of the proceeds from the family residence. Husbands attorney objected to the introduction of those declarations as inadmissible hearsay. Wife argued that her mother, father and uncle could not make it to the trial, but they had signed the declarations under the penalty of perjury. The court sustained the objection, ruling that the declarations were inadmissible hearsay evidence. Wife argues that the trial court erred in excluding the signed declarations. She claims they should have been admitted into evidence as admissions by a party-opponent under Evidence Code sections 1220-1227.

We review the trial courts evidentiary rulings under an abuse of discretion standard. (Tudor Ranches, supra, 65 Cal.App.4th at p. 1431.) Further, a reversal is not warranted unless the error would result in a more favorable result for the appellant. (Id. at pp. 1431-1432; Vorse v. Sarasy, supra, 53 Cal.App.4th at p. 1013.)

Evidence Code section 1200 defines hearsay as evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter asserted. Unless the hearsay evidence falls within the confines of a hearsay exception defined in the Evidence Code, the evidence is inadmissible at trial. (Evid. Code,  1200.) Evidence Code section 1220 provides that if the declarant is a party-opponent in the action, his/her statement may be introduced against him/her at trial regardless of the hearsay rule. Also, Evidence Code section 1225 provides that a statement of the declarant whose right, title or interest in property is at issue may be introduced against him/her at trial regardless of the hearsay rule. Finally, evidence that consists of multiple levels of hearsay is admissible if each level meets the requirements of a hearsay exception. (Evid. Code, 1201.)

Wifes claim fails because the declarations consisted of two different levels of hearsay and she only applied an applicable hearsay exception to the first level of hearsay in her appeal. As to the first level of hearsay, Wife correctly argues that Husbands statements were admissible as admissions by a party-opponent under Evidence Code sections 1220 and 1225.

As to the second level of hearsay, the declarations containing Husbands statements were hearsay evidence of what Wifes relatives said. (Evid. Code,  1200.) The declarations consisted of statements made by Wifes relatives and were offered to prove what Wifes relatives had to say regarding Husbands promise to give Wife the family residence. A person seeking to introduce hearsay evidence based on the unavailability of a witness has the burden of showing that the declarant is unavailable. (See People v. Winslow (2004) 123 Cal.App.4th 464, 471; Evid. Code,  240.) Unavailability means that the attendance of the witness is relatively impossible and not merely inconvenient. (1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay,  22, p. 702.) Wifes showing was insufficient to establish the witnesses unavailability. The trial court did not abuse its discretion in excluding the declarations as evidence at trial. (Evid. Code, 1200.)

2. Exclusion of Testimony of Wifes Mother

On the second day of trial, while Wife cross-examined Husband during his case-in-chief, the court excluded as hearsay the declaration of Wifes mother. A month later, on the fourth day of trial, Wife attempted to call her mother as a witness to testify as to the contents of the declaration which the court did not allow into evidence on the second day of trial. This occurred during Wifes case-in-chief. Husbands counsel objected that the mother was not on the witness list.^[2] The court sustained the objection, noting that the parties had already met to exchange witnesses and confirm trial dates so both parties could prepare for trial accordingly.

Wife claims that the trial court erred in not allowing the mother to testify. She reasons that the mothers testimony would rebut Husbands testimony regarding the family residence, so the mother did not need to be on the witness list.

We review the trial courts evidentiary rulings for an abuse of discretion. (Tudor Ranches, supra, 65 Cal.App.4th at pp. 1431-1432.) Riverside Countys trial rules and procedures for family law require that each party submit [a] list of witnesses and a short statement as to what they will testify to at the time of the Trial Readiness Conference. (Super. Ct. Riverside County, Local Rules, rule 5.0053(2)(d).)

Wifes contention fails to persuade this court. First, Wife does not cite any authority for her proposition. It is the responsibility of appellants to cite authority to support their contentions, even if they are representing themselves on appeal. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.) Second, Wife does not deny that she violated rule 5.0053 (2)(d) of the Superior Court of Riverside County Local Rules in failing to submit her mothers name and a description of the mothers testimony to the court. The trial court may have shown more leniency toward Wife had she offered a valid excuse for failing to notify the court and opposing counsel until right before the fourth day of trial, which occurred a month after the third day of trial. (See Davis v. Chew (1979) 95 Cal.App.3d Supp. 13, 16-17 [where court did not grant defendants request to add his wife to the witness list because defendant did not show any grounds of mistake, inadvertence, surprise or excusable neglect in not originally including her on the witness list].)

Wife also fails to show how her mothers testimony would differ from evidence provided in Wifes case-in-chief. Rebuttal testimony is evidence addressed to the evidence produced by the opposite party and does not include mere cumulative evidence of the plaintiffs case[-]in[-]chief. (Edgar v. Workmens Comp. App. Bd. (1966) 246 Cal.App.2d 660, 665.) Wifes argument throughout trial consisted of showing that Husband promised to give Wife the family residence. Wife suggests that her mothers testimony would state that same conclusion, thus making the mother a nonrebuttal witness.

Having found that the trial court acted within its discretion in refusing to allow the mothers testimony, we find no error.

C. Sufficiency of the Evidence in Awarding the Family Residence to Husband

The trial court not only granted Husbands request for dissolution of his marriage to Wife, but also awarded Husband the family residence in full. In ruling that the family residence went to Husband, the court found the following: Husband purchased the family residence in January 1990, two years and 11 months before the parties married; Husband sold his business for $500,000 in April 1990, two years and seven months before the parties married; the parties married in December 1992; Husband moved into the residence in 1995; Husband never placed Wifes name on the deed; Husband never executed any writing transferring his interest in the residence to Wife; Wife did not provide any evidence the community made any contribution toward the down payment, payments for improvements, and/or payments reducing the principal of the loan used to purchase or improve the residence; and Husband did not promise, in contemplation of marriage, to give Wife the house with no strings attached. Thus, the court held, pursuant to section 850, that there was no agreement or transfer regarding [Husbands] interest in the residence. Further, pursuant to section 2640, the court held that the community was not entitled to any reimbursement related to the family residence.

Wife claims that the court lacked sufficient evidence to award Husband the family residence. Wife does not argue with the trial courts determination that the family residence was separate, nonmarital property belonging to Husband. Wife, instead, claims that under Marvin v. Marvin (1976) 18 Cal.3d 660 (Marvin), the court erroneously found that Husband had made no premarital promise to give her the family residence. For the sake of this appeal, we need not decide whether a premarital promise actually existed.

In Marvin, supra, 18 Cal.3d 660, this states highest court determined how to divide property purchased before marriage, but during a domestic partnership. For instance, if a couple purchased a house and lived together for seven years as a couple, then married, and then divorced a year later, the partner whose name was not on the deed should still get credit for contributing to the purchase of the house for the seven years before the couple married. (Watkins v. Watkins (1983) 143 Cal.App.3d 651, 652-653.) The court in Marvin held, The provisions of the Family Law Act do not govern the distribution of property acquired during a nonmarital relationship; such a relationship remains subject solely to judicial decision. . . . In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case. (Marvin, supra, 18 Cal.3d at p. 665, italics added; Cal. Rules of Court, rule 5.104.)

[A]ppellate review of the sufficiency of the evidence is governed by the substantial evidence rule. (In re Marriage of Duffy (2001) 91 Cal.App.4th 923, 931, superseded by statute on other grounds as stated in In re Marriage of Walker (2006) 138 Cal.App.4th 1408, 1425.) Substantial evidence is evidence of ponderable legal significance. (In re Marriage of Duffy, supra, at p. 931.) We review the entire record in the light most favorable to the trial courts judgment and resolve all conflicts in favor of the trial courts ruling. (Ibid.; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)

This appeal is not the correct setting for determining Wifes Marvin claim. In her pleadings, Wife never made a Marvin claim towards the family residence, instead arguing that the family residence was community property. Thus, the trial court made a determination as to the family residences character only as it related to the parties marriage according to sections 850 and 2640. In Marvin, the court made clear that premarital property rights are outside the scope of family law, and instead are determined by judicial decision. (Marvin, supra, 18 Cal.3d at p. 665; Cal. Rules of Court, rule 5.104; see also Watkins v. Watkins, supra, 143 Cal.App.3d at pp. 652-653 [the wife filed separate civil action for breach of an implied or express contract concerning premarital property rights, which was consolidated with husbands petition for dissolution of marriage].) Since Wife concedes that Husband paid for the entirety of the family residence before the parties marriage, the trial court had substantial evidence in ruling that the family residence belonged to Husband under sections 850 and 2640.

We note that the trial court gratuitously found that Husband did not make a premarital promise to give Wife the family residence with no strings attached. The

trial courts determination was unnecessary in determining ownership of the family residence in a family court setting. (See Marvin, supra, 18 Cal.3d at p. 665.)

IV. DISPOSITION

The Judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

KING

J.

MILLER

J.

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^[1] All further statutory references will be to the Family Code unless otherwise noted.

^[2] Wife did not submit a witness list to the court. However, the court allowed Wife to verbally submit a witness list before the start of trial. The oral list did not include Wifes mother.