Marriage of Holton

Marriage of Holton

Filed 5/12/06  Marriage of Holton CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  Ben T. Kayashima, Judge.  (Retired Judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)  Affirmed.

            Law Offices of P. Timothy Pittullo and P. Timothy Pittullo for Appellant.

            Rowley & Rinaldelli and Daniel W. Rinaldelli for Respondent.

            This is an appeal by Frank D. Holton (hereafter husband) from a judgment on reserved issues in the dissolution of his nearly 25-year marriage to Tinette Holton (hereafter wife).  Husband raises two issues in this appeal:  that the trial court erred in finding the parties had agreed to value Holton Mold and Engineering, a community property business, on the date the parties separated rather than on the date closest to trial; and that the trial court erred in charging husband with the fair rental value of the family residence for the 73 months in which he had exclusive possession of the home.  We conclude that the trial court did not err.  Therefore we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

            Husband and wife separated on February 1, 1998, after 24 years and five months of marriage.  At the time of their separation, husband operated a community property business called Holton Mold and Engineering.  Husband continued to operate the business for several years after the parties' separation.  Husband also remained in the family home when he and wife separated, and eventually husband obtained court orders giving him exclusive possession of that residence.

            The parties could not agree on various aspects of the division of their community property estate.  Trial on those reserved issues, which included the characterization, valuation, and distribution of several community property assets, occurred in September 2003, more than five years after the dissolution petition had been filed.

In March 2002, wife filed a motion to set February 1, 1998, the date upon which the parties separated, as the date upon which to value Holton Mold & Engineering.  In that motion, wife asserted that the parties had agreed to value the business as of the date of their separation, and that the agreement had occurred in the context of obtaining a valuation of the business from Greg Wiebe, a court-appointed valuation expert.  To support her claim that the parties had agreed to the date of separation as the valuation date, wife submitted various letters, attached as exhibits to her motion, in which the parties addressed the issue.  That correspondence reflects that, in response to an inquiry from Mr. Wiebe, husband's attorney suggested a valuation date of either the date of separation, or December 31, 1999, which presumably would be the date closest to trial, which then was set for January 2000.  In a letter to Mr. Wiebe dated February 4, 2000, husband's attorney stated that he and wife's attorney had agreed to the date of separation as the valuation date â€