Marriage of Panzer CA2/ 7 ( 2014 )

Filed 5/7/14 Marriage of Panzer CA2/ 7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re the Marriage of MICHIYO and B245693
ERNEST PANZER.
(Los Angeles County
Super. Ct. No. KD080263)
ERNST K. PANZER,
Respondent,
v.
MICHIYO PANZER,
Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, H. Don
Christian, Temporary Judge. Affirmed.
Michiyo Panzer, in pro. per., for Appellant.
Swati S. Desai and Nisha Dandekar, for Respondent.
_________________________
Appellant appeals the judgment entered in her marital dissolution proceeding,
asserting breach of fiduciary duty by her former spouse, and alleging perjury and
concealment of assets. Appellant’s claims, however, find no support in the record.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL SUMMARY
Appellant Michiyo Panzer and respondent Ernst Panzer were married for
approximately thirty-five years before Ernst petitioned for dissolution of their marriage.1
Prior to trial, the parties successfully resolved most of the issues, leaving for trial the
disposition of the S-Corporation operated by Ernst during the marriage, the valuation of
certain gold coins, and the disposition of other, more minor assets.
On the day trial was to commence, Michiyo, then representing herself, asserted
that Ernst had hidden and failed to disclose assets, specifically profits from the
corporation earned during the marriage. The court took testimony from both parties,
received exhibits into evidence, and heard closing arguments from Michiyo and Ernst’s
counsel. In support of her claims of breach of fiduciary duty, Michiyo presented various
checks written by Ernst, and the first page of a series of the couple’s joint tax returns.
She presented no other documentation of the claimed undisclosed profits, and the court
found no violation of Family Code sections 721 or 1101. The court ordered the
disposition of the remaining property; as to the corporation and the coins, the judgment
required both to be appraised, sold, and the proceeds divided evenly between the parties.
Michiyo timely appealed.
DISCUSSION
The trial court made the required findings based on the evidence presented at the
trial. We review those findings for substantial evidence, considering it in the light most
favorable to the prevailing party, resolving all conflicts in favor of that party, and making
1 Because the parties share the same last name, we will refer to them by their given
names for convenience, and without intending any disrespect. (In re Marriage of Smith
(1990) 225 Cal. App. 3d 469, 475-476, fn. 1.)
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reasonable inferences to support the findings of the trial court. (In re Marriage of Rossi
(2001) 90 Cal. App. 4th 34, 40 (Rossi); In re Marriage of Balcof (2006) 141 Cal. App. 4th
1509, 1521 [power of reviewing court to determine whether the record contains
substantial evidence to support the result reached].)2
A. The Evidence at Trial
On appeal, Michiyo challenges the court’s ruling in three areas: undisclosed
income from the corporation, affecting its valuation; misappropriation of funds by Ernst
to purchase property in Borrego Springs; and inflated credit card balances in the
community credit cards. The evidence as to each issue was limited, and insufficient.
1. The S-Corporation
As to the corporate income, the only evidence presented at trial to demonstrate the
non-disclosure were tax returns, filed jointly, and signed by both parties. Michiyo
represented to the court, prior to testifying, that the income tax filings would be her only
proof. She calculated the undisclosed income based on an entry on each of the returns,
reporting the income; all that her testimony established, however, was that the first pages
of the parties’ joint tax returns showed the yearly profit for the S corporation. Michiyo
explained that, during marriage, Ernst had described those sums as “It’s just a figure, and
there is no profit at all.” However, she did not dispute that her own exhibits
demonstrated that the amounts in question were reported as income, on tax returns that
she signed. Ernst denied any misappropriation.
With respect to the current valuation of the corporation, the parties appear to have
stipulated, in a document not included in the record presented to this court, to an
independent broker valuing and attempting to sell the business. The court ordered this
after trial, and ordered that the proceeds be divided evenly. The court also retained
jurisdiction over this issue.
2 While we review for substantial evidence, where, as here, “the issue on appeal
turns on a failure of proof at trial,” the test is more precisely described as whether the
evidence compels a finding in favor of appellant as a matter of law. (See Dreyer’s Grand
Ice Cream, Inc. v. County of Kern (2013) 218 Cal. App. 4th 828, 838.)
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2.The Borrego Springs Property
The date of separation was July 1, 2010. The marital home was sold in October of
that year. A $60,000 corporate check dated September 14, 2010, was used for Ernst’s
purchase of property in Borrego Springs. Ernst took the position that he used the
proceeds of the sale of the family home for this purchase, and Michiyo presented no
evidence other than the check, contained in the exhibits, and Ernst’s own testimony.
There was no testimony establishing that the funds were not post-separation funds.
3. The Credit Card Balances
Ernst testified that, as of the date of separation, there was a balance of $15,957 on
an American Express card used by the community and of approximately $7,000 on a
community Capital One card. He admitted, on cross-examination, that he had no receipts
for the charges made. Michiyo presented no evidence concerning these balances.
B. Michiyo Failed to Demonstrate Non-Disclosure of Assets
Family Code section 7213 imposes on spouses a mutual fiduciary duty, which
includes the duty to disclose assets: “This confidential relationship imposes a duty of the
highest good faith and fair dealing on each spouse, and neither shall take any unfair
advantage of the other. This confidential relationship is a fiduciary relationship subject to
the same rights and duties of nonmarital business partners. . . .” Section 1101 provides
remedies for breach of that fiduciary duty. (§ 1101, subd. (h).)
Michiyo bases her arguments on appeal on two cases. In each of those cases,
Rossi, and In re Marriage of Feldman (2007) 153 Cal. App. 4th 1470 (Feldman), the court
awarded sanctions for non-disclosure. However, in each of those cases, the party seeking
relief made a significant factual showing, absent here, to justify that relief.
In Rossi, wife discovered she had won the lottery, filed for dissolution after
learning of her success, consulted with the lottery commission to determine how she
could avoid sharing proceeds with her husband, and used a different address for
communications concerning the winnings. She failed to disclose her winnings to her
3 All further references, unless otherwise noted, are to the Family Code.
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husband at the time she received them, or at any time during the dissolution proceedings.
(Rossi, supra, 90 Cal.App.4th at p. 41.) Under those circumstances, the court found that
section 721 had been violated and awarded relief under section 1100.
In Feldman, the court awarded sanctions under a different provision of the Family
Code. Nonetheless, the factual support for the finding of non-disclosure was strong:
husband failed to disclose an asset valued at one million dollars; the loan incurred to
purchase that asset; or any documents pertaining to the transactions. Moreover, when
asked, he affirmatively denied the existence of the loan. (Feldman, supra, 153
Cal.App.4th at p. 1482.) Husband further failed to disclose his purchase of a multi-
million dollar home, a 401(k) account, and the existence of new business entities. (Id. at
pp. 1483-1490.)
The circumstances here are vastly different. The evidence in this record
establishes no hidden assets, or other breach of duty. Michiyo’s primary concern appears
to be the valuation of the corporation; under her stipulation, and the judgment, that
valuation remains pending and subject to the continuing jurisdiction of the trial court. If
there are issues with respect to that sale, her remedy has been preserved by the judgment.
DISPOSITION
The judgment is affirmed. Respondent is to recover his costs on appeal.
ZELON, J.
We concur:
PERLUSS, P. J. SEGAL, J.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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