Marriage of Bonner CA4/1 ( 2022 )

Filed 4/22/22 Marriage of Bonner CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of CANDY and
TERENCE BONNER.
D078148
CANDY BONNER,
Respondent, (Super. Ct. No. ED88462)
v.
TERENCE BONNER,
Appellant.
APPEAL from a judgment and postjudgment orders of the Superior
Court of San Diego County, Frank L. Birchak, Judge. Remanded for further
proceedings, and in all other respects affirmed.
Terence Bonner, in pro. per., for Appellant.
No appearance for Respondent.
In this marriage dissolution action involving Terence and Candy
Bonner, Terence1 appeals from (1) the trial court’s August 7, 2020 judgment
on reserved issues, which divided the parties’ community property and
awarded sanctions under Family Code section 271;2 and (2) the trial court’s
September 22, 2020 rulings on Terence’s postjudgment motions for a new
trial and to set aside and vacate the judgment.
Terence raises numerous issues, many of which we reject either
because Terence’s arguments are not meritorious or because Terence has
failed to sufficiently develop his arguments and provide the necessary
citations to the record and to legal authority.
However, as we will explain, Terence has identified three issues which
require that this matter be remanded to the trial court. First, there is an
apparent inconsistency in the trial court’s statement of decision with respect
to the amount of the equalization payment that Candy would be required to
pay to Terence, prior to taking into account the trial court’s award of
sanctions to Candy pursuant to section 271. Remand is required for the trial
court to resolve the inconsistency. Second, remand is required for the trial
court to rule on Terence’s request that he be reimbursed for his payment of
Candy’s automobile insurance after the date of separation. Third, the trial
court incorrectly believed that it lacked authority to terminate its continuing
jurisdiction over spousal support. On remand the trial court may decide
whether to exercise its discretion to do so. We accordingly remand for the
1 As is customary in family law matters, because the parties have the
same last name, we refer to them by their first names to avoid any confusion,
and we intend no disrespect by doing so.
2 Unless otherwise indicated, all further statutory references are to the
Family Code.
2
trial court to address those issues, and in all other respects we affirm the
judgment and the postjudgment orders.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Terence and Candy were married in March 1978. On August 30, 2012,
Candy filed a petition for dissolution, in which she alleged August 29, 2012,
as the date of separation. In January 2014, the trial court entered a
judgment of dissolution as to the parties’ marital status only.
Terence is retired from employment with an agency of the federal
government, where he worked from May 1978 until May 2010. Since
retirement, Terence has received a federal pension, but he did not share the
pension with Candy for the first two years after separation. In July 2014, in
response to a request filed by Candy, the trial court ordered Terence to pay
Candy half of his pension on a going forward basis.3 A domestic relations
order (DRO) was created to implement the division. Terence made direct
payments to Candy for her share of his pension until the pension
administrator started making payments to Candy in 2017.
Candy worked for the County of San Diego during the marriage, and
she retired in 2019. In 2019, Terence stipulated to a qualified domestic
relations order (QDRO) that divided Candy’s pension.
During the marriage, the parties purchased a house in El Cajon and a
house in Campo. After the date of separation until July 2013, the parties
lived together in the Campo house. After that date, Candy moved into the El
3 In August 2014, Terence appealed the order dividing his pension, which
this court addressed in a December 22, 2015 opinion, denying relief to
Terence. (In re Marriage of Bonner (Dec. 22, 2015, D066627) [nonpub. opn.].)
Terence filed an unsuccessful petition for writ of certiorari with the United
States Supreme Court. (Bonner v. Bonner (2016) 137 S.Ct. 577.)
3
Cajon house. The El Cajon house produced rental income during the parties’
entire separation, including when Candy resided in it.
On eight days between January 29, 2019, and February 11, 2020, the
trial court held a trial on reserved marital property issues, as well as on
Candy’s request for spousal support and both of the parties’ requests for an
award of attorney fees as a sanction under section 271. Among the
community property items at issue were: (1) the parties’ two real properties;
(2) the parties’ respective pensions; (3) Candy’s retirement account; and
(4) the parties’ debt. The parties also sought reimbursement for certain
payments they made from separate property funds during separation.
During the trial, Candy was represented by counsel, and Terence represented
himself.
In a 46-page statement of decision (the Statement of Decision), the trial
court made a series of orders concerning the division of the parties’
community property and the requests for reimbursement. In addition, the
trial court rejected Candy’s request for spousal support. The trial court also
ordered that Terence pay $37,500 of Candy’s attorney fees as a sanction
pursuant to section 271, to be paid at the rate of $250 per month. However,
the trial court reduced the amount of sanctions that Terence was obligated to
pay based on the amount of an equalization payment that it concluded Candy
owed to Terence, which it stated was $19,016.30. The trial court reserved
jurisdiction on several issues, including spousal support. It also ordered that
a new DRO for Terence’s pension be prepared to accurately reflect Terence’s
time of service attributable to his unused sick leave. The trial court ordered
that an expert be appointed to calculate the amount that Candy was
underpaid from Terence’s pension income under the prior version of the DRO.
4
A judgment on the reserved issues was entered on August 7, 2020, which
expressly incorporated the Statement of Decision.
Terence filed a motion for a new trial and a motion to set aside and
vacate the judgment, which the trial court denied.
Terence filed a notice of appeal from the judgment as well as from the
trial court’s order denying his postjudgment motions.4
II.
DISCUSSION
A. Terence’s Request for an Order Requiring That the Trial Court Approve
Additional Settled Statements
The appellate record submitted by Terence in connection with this
appeal contains 25 volumes of reporter’s transcripts plus eight settled
statements certified by the trial court. However, there were several oral
proceedings held during the course of the litigation for which no reporter’s
transcript or settled statement is available. Terence requests that we issue
an order requiring the trial court to approve settled statements for those oral
proceedings, followed by an opportunity for him to submit an amended
appellate brief.
We begin our analysis with the applicable legal provisions. When oral
proceedings in the trial court have not been reported, California Rules of
Court, rule 8.137 provides that appellants may elect in their designation of
the record on appeal to proceed by settled statement. (Cal. Rules of Court,
rule 8.137(b)(1).)5 After making that election, appellants must serve and file
a proposed settled statement in the superior court within 30 days. (Rule
8.137(c)(1).) Rule 8.137 sets forth further procedures to be followed regarding
4 Candy did not file a respondent’s brief.
5 All further rule references are to the California Rules of Court.
5
the settled statement, culminating in certification by the trial court. (Rule
8.137(h)(1).) In instances where an oral proceeding has been reported but
“any portion of the designated proceedings cannot be transcribed, the
superior court clerk must so notify the designating party in writing,” and the
party may then substitute a settled statement by filing a motion to do so, and
then proceeding as in Rule 8.137. (Rule 8.130(h).) “[T]he discretion of the
trial court to deny a request for a settled statement is limited: ‘When a
proper motion is made, it is the obligation of the parties and the court to work
together to prepare the settled statement. California law has long recognized
this obligation: a trial court may not “deprive a litigant of his right of appeal
by simply refusing to perform a plain duty.” ’ ” (Rhue v. Superior Court
(2017) 17 Cal.App.5th 892, 895.) “When a trial court denies the motion, . . . it
must provide reasons demonstrating a ‘ “justifiable excuse” why a settled
statement could not be produced using the established procedures.’ ” (Id. at
p. 896.)
Here, in designating the appellate record, Terence identified 58 oral
proceedings that took place between December 5, 2012, to September 22,
2020. Terence’s designation of the appellate record indicated that 29 of those
oral proceedings were not reported. Many of the unreported proceedings
were from resolution conferences, ex parte motions, hearings on fee waiver
requests, and hearings on discovery matters. Terence’s designation of the
appellate record did not indicate that he intended to proceed by settled
statement for any of the unreported proceedings.
On November 4, 2020, the clerk of the superior court issued an order
identifying the 29 oral proceedings that were not reported. The order stated
that a settled statement could be used in lieu of a transcript if Terence filed a
6
motion to use a settled statement within ten days in accordance with rule
8.130(h).
On November 16, 2020, Terence filed a motion to use a settled
statement for all of the proceedings that could not be transcribed. The
motion identified the 29 unreported oral proceedings, as well as four other
proceedings that were reported, but for which the court reporter’s notes had
been destroyed because more than five years had passed.
On December 24, 2020, the trial court issued an order on Terence’s
motion to use a settled statement. The trial court first addressed the request
for settled statements for the 29 unreported proceedings. As the trial court
explained, “[w]hen a proceeding has not been reported . . . the appellant must
file a proposed settled statement in superior court within 30 days after filing
its notice. (Rule . . . 8.137(c)(1).) For the 29 hearings that were not reported,
[Terence] has not filed any proposed settled statements as of December 24,
2020. The proposed settled statements were due December 17, 2020.”
Although it could have done so, the trial court did not expressly deny
Terence’s motion based on his failure to timely file proposed settled
statements for the 29 hearings. Instead, the court ruled as follows:
“For the unreported hearings before 10/25/17, the Court denies
[Terence’s] request for a settled statement. All of these
proceedings were presided over by a different judicial officer.
Because there was a different judicial officer presiding, this
judicial officer would be unable to settle any proposed
statements. This judicial officer’s analysis of those proceedings in
the context of . . . section 271 sanctions simply relied on the
orders and pleadings filed related to those hearings, not the
content of the oral proceedings. Therefore, what was relied on for
the consideration of those hearings—as to the impact on section
271 sanctions—is available to [Terence] through the documents
in the court file and a settled statement regarding oral
proceedings is unnecessary. The rulings from those hearings are
also not the subject of this appeal.
7
“Of the hearings that this judicial officer presided over, the Court
sees no possible relevance of the 8/27/18 Family Resolution
Conference. It is not a proceeding being appealed and the
purpose is not any formal orders, simply case management. It is
not a hearing referenced in the Court’s discussion of section 271
sanctions. The Court denies his request for a settled statement of
that hearing.
“The Court orders [Terence] to file proposed settled statements
on the 9 remaining hearings that were not reported within 30
days after the notice for this order is sent. These hearings are
from the following dates: 10/25/17, 12/11/17, 3/14/18, 4/5/18,
5/3/18, 5/17/18, 5/24/18, 11/7/18, and 12/19/18. . . . The Court
reserves on whether these hearings are relevant to the appellate
proceedings until the Court receives the properly filed proposed
statement with the statement of points the appellant is raising on
appeal.”
The trial court also addressed the four oral proceedings that were
reported but for which the court reporter’s notes had been destroyed due to
the passage of time.6 As to those proceedings, the trial court denied the
motion to proceed by settled statement:
“The rulings from those hearings are not the subject of this
appeal. None of these proceedings were explicitly cited in the
Court’s statement of decision. Each of these proceedings was
presided over by a different judicial officer, Commissioner White.
Commissioner White is no longer with the Court and is
unavailable. Because there was a different judicial officer
6 According to Terence, the oral proceedings that were transcribed but
for which the court reporter’s notes were destroyed were as follows:
(1) “Family Resolution Conference. (12/05/12)”; (2) “Hearing re: Candy’s
motions to divide Terence’s pension; to require Terence to seek employment;
to lift the stay of proceedings; and to lift the stay of discovery. (04/08/14)”;
(3) “Hearing re: Terence’s motion to reconsider the trial court’s employment
efforts order. (06/03/14)”; and (4) “Hearing re: Candy’s motion to compel
further discovery responses from Terence; and Terence’s motion to strike
portions of Candy’s pleadings. (09/04/14).”
8
presiding, this judicial officer would be unable to settle any
proposed statements. This judicial officer’s analysis of those
proceedings in the context of . . . section 271 sanctions simply
relied on the orders and pleadings filed related to those hearings,
not the content of the oral proceedings. Therefore, what was
relied on for the consideration of those hearings—as to the impact
on section 271 sanctions—is available to [Terence] through the
documents in the court file and a settled statement regarding
oral proceedings is unnecessary.”
On January 28, 2021, Terence filed proposed settled statements for the
nine hearing dates identified in the trial court’s order.7 On March 22, 2021,
the trial court issued an order certifying the settled statements for all but the
May 17, 2018 hearing. The trial court explained, “For the unreported
hearing 5/17/18, the Court denies [Terence’s] request for a settled statement.
This was presided over by a different judicial officer, therefore this judicial
officer is unable to settle the proposed statements. This judicial officer’s
analysis of those proceedings in the context of section 271 sanctions simply
relied on the orders and pleadings filed related to those hearings, not the
content of the oral proceedings. Therefore, what was relied on for the
consideration of those hearings—as to the impact on section 271 sanctions—
is available to [Terence] without a settled statement. All other dates contain
an accurate summary.”
Terence contends on appeal that the trial court erred because it denied
his motion for a settled statement as to all but eight of the oral proceedings
that either were not reported or for which the court reporter destroyed the
7 Terence’s proposed settled statement for the May 17, 2018 hearing is
not in the appellate record, presumably due to the fact that, as we will
explain, the trial court declined to certify it.
9
notes.8 As a remedy, Terence requests that we order the trial court to
provide the missing settled statements and that we then permit him to file an
amended opening appellate brief.
We reject Terence’s challenge to the trial court’s orders denying the
settled statements because we do not have jurisdiction to consider it as part
of this appeal. The long-established rule is that “mandamus is the proper
and exclusive remedy when a trial judge refuses to settle a statement which
it is his duty to settle; that is to say, in a case where the moving party has
strictly and fully complied with the requirements of the statute in proposing
and presenting the statement for settlement. . . . [A] wrongful refusal to
settle a statement is not the subject of appeal, but is to be corrected by a writ
of mandate.” (Murphy v. Stelling (1903) 138 Cal. 641, 642-643 (Murphy),
citations omitted; see also 9 Witkin, Cal. Procedure (6th ed. 2022) Appeal,
§ 691, p. 722 [“The normal remedy of an appellant when the trial judge
arbitrarily refuses to settle a statement is mandamus.”]; Brode v. Goslin
(1910) 158 Cal. 699, 701 (Brode) [“the proper and exclusive remedy for such
wrongful refusal is mandamus to compel the settlement.”].)9
Terence cites Randall v. Mousseau (2016) 2 Cal.App.5th 929, in which
the court stated, “To preserve the issue of the denial [of a request for a settled
statement] for appeal, the appellant may seek writ review at the time of the
8 As we have noted, even without the hearings for which Terence seeks
to obtain settled statements, the appellate record does contain 25 volumes of
reporter’s transcripts plus the eight settled statements certified by the trial
court.
9 In Brode, supra, 158 Cal. 699, our Supreme Court discussed the trial
court’s refusal to settle a bill of exceptions. “The settled statement is a
modernized version of the bill of exceptions.” (9 Witkin, supra, Appeal, § 684,
p. 714.)
10
denial, or raise the denial in the opening brief on appeal.” (Id. at pp. 935-936,
italics added.) In support, Randall cited Western States Construction Co. v.
Municipal Court of San Francisco (1951) 38 Cal.2d 146, and Keller v.
Superior Court of Los Angeles County (1950) 100 Cal.App.2d 231. (Randall,
at p. 936.) However, the statement in Randall is dictum. Specifically, it was
unnecessary for Randall to decide whether a challenge to an order denying a
request for a settled statement may be raised in the opening appellate brief
because the appellant in Randall did not raise a challenge in her opening
appellate brief. (Ibid.) In addition, the two cases that Randall cited to
support its statement were writ proceedings (Western States, at p. 147; Keller,
at p. 231), and therefore neither of them say anything about whether an
appellant may properly challenge a trial court’s denial of a request for a
settled statement by simply including the issue in an opening appellate brief.
Significantly too, Randall’s statement that an appellant may raise the denial
of a request for a settled statement in an opening appellate brief is
inconsistent with our Supreme Court’s holding in Murphy that a writ of
mandamus is the proper approach to challenge such an order. (Murphy,
supra, 138 Cal. at pp. 642-643.) We are bound to follow our Supreme Court’s
precedent. (Auto Equity Sales, Inc. v. Superior Court of Santa Clara County
(1962) 57 Cal.2d 450, 455-456.)
Even if we were to follow Randall’s dictum that a trial court’s order
denying a request for a settled statement is cognizable on appeal, we would
nevertheless not have jurisdiction over such an appeal in this case because
Terence failed to file a separate notice of appeal from the trial court’s
postjudgment orders denying his requests for a settled statement. “ ‘Our
jurisdiction on appeal is limited in scope to the notice of appeal and the
judgment or order appealed from.’ [Citation.] We have no jurisdiction over
11
an order not mentioned in the notice of appeal.” (Faunce v. Cate (2013) 222
Cal.App.4th 166, 170.) “ ‘ “ ‘[W]here several judgments and/or orders
occurring close in time are separately appealable . . . , each appealable
judgment and order must be expressly specified—in either a single notice of
appeal or multiple notices of appeal—in order to be reviewable on appeal.’ ” ’ ”
(Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1007-
1008.) Here, Terence did not file a notice of appeal from the trial court’s
December 24, 2020 and March 22, 2021 postjudgment orders denying his
requests for settled statements, which were issued after he filed his notice of
appeal in this action.
Moreover, although “[a]n appellate court does have discretion to treat a
purported appeal from a nonappealable order as a petition for writ of
mandate, . . . ‘ “we should not exercise that power except in unusual
circumstances.” ’ ” (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1294.) This
case does not present unusual circumstances. Based on Terence’s appellate
briefing, we conclude that even if we were to order the trial court to certify
the settled statements sought by Terence, their presence in the appellate
record would not support a different outcome in this appeal. Terence’s
appellate brief extensively describes the facts that would have been included
in the settled statements that the trial court disallowed. Terence also refers
in detail to the expected content of the disallowed settled statements in
making several of his appellate arguments. He does this throughout his
appellate brief by using the citation “DSS,” to represent the “Denied Settled
Statement” when setting forth the content of those proceedings.10 In
10 Although the reference to the disallowed settled statement occurs
multiple times throughout the brief, most of the issues that Terence raises on
appeal do not depend on the disallowed settled statements, as they challenge
12
conducting our analysis, we have assumed that the disallowed settled
statements would include that content that Terence represents. However,
even in light of those facts, most of Terence’s appellate arguments are
without merit.11 Terence’s appellate challenges fail regardless of whether
settled statements were to be made available for the oral proceedings he
references in the course of his arguments.12
B. Terence’s Challenge to the Trial Court’s July 7, 2014 Order Dividing
His Pension
We next address Terence’s challenge to the trial court’s 2014 order
equally dividing his pension with Candy, which was subsequently confirmed
in the Statement of Decision and judgment.
orders based on the reported oral proceedings transcribed in the 25 volumes
of reporter’s transcripts that are in the appellate record plus the eight settled
statements certified by the trial court.
11 Moreover, it is far from clear whether Terence would be entitled to
relief even were we to treat his appeal as a writ. Most notably, at least for
those oral proceedings that Terence knew to be unreported, Terence did not
follow the proper procedures to obtain a settled statement because his
designation of the appellate record did not indicate that he would proceed by
settled statement, and he did not submit proposed settled statements within
30 days. (Rule 8.137(b)(1), (c)(1).) The superior court clerk sua sponte issued
an order allowing Terence to file a motion to proceed by settled statement
despite Terence’s procedural default in failing to elect to proceed by settled
statement for the 29 hearings that he knew to be unreported and in failing to
file proposed settled statements within 30 days. However, the clerk was not
required to do so.
12 For the same reason, even if the issue was properly before us on appeal,
Terence’s appellate challenge would lack merit because he has failed to
establish that the denial of his request for a settled statement was prejudicial
and caused a miscarriage of justice. (Code Civ. Proc., § 475; Cal. Const., art.
VI, § 13.)
13
On June 2, 2014, Candy filed a request that Terence be ordered to pay
past and future attorney fees, and also that a DRO be issued to allow her to
receive half of Terence’s pension. On July 7, 2014, the trial court ordered
that Terence pay attorney fees to Candy in the amount of $2,500, payable on
or before August 1, 2014. The trial court also ordered that Terence was to
immediately begin paying Candy one-half of any pension distribution he
received and that a DRO be prepared effectuating the division. The order
stated, “The court specifically reserves over the characterization and
distribution of these funds at a later date as either a property division, or as
and for additional attorney’s fees.” On October 9, 2014, the court issued a
DRO. Eventually, the Statement of Decision and judgment specified that the
pension distributions pursuant to the DRO were to be characterized as a
division of community property. The Statement of Decision explained: “The
division through the previous DRO was solely for the purpose of awarding
[Candy] her appropriate share of the community property.”13
Terence argues that the trial court should not have issued the 2014
order dividing his pension because the order had the effect of drastically
reducing his monthly income and left him unable to hire an attorney. As a
remedy, Terence asks that we order a new trial at which Candy is ordered to
pay his attorney fees. Terence also unsuccessfully raised the same issue in
his motion for a new trial, in which he argued that “[a] new trial should be
ordered to allow both parties to be represented by counsel, leveling the
playing field.”
13 Terence’s pension was ordered to be equally divided based on the
undisputed fact that the parties were married prior to the date when Terence
began his employment and that they were separated after Terence’s
retirement in May 2010.
14
We reject Terence’s argument. As the trial court properly explained in
the Statement of Decision, if the 2014 order dividing his pension left him
without the ability to hire an attorney, Terence was free to file a request that
Candy be ordered to pay attorney fees to him. As the trial court pointed out,
“Had [Terence] wished to make an argument requesting attorney’s fees under
. . . section 2030 once the pension was divided, he could have done so.”
Further, if that request was denied, Terence could have attempted to seek
relief from the denial of the request. However, Terence did not file such a
request, and Terence’s belated request for attorney fees in his motion for a
new trial and in this appeal, are untimely. Accordingly, we reject Terence’s
request that a new trial be ordered so that Candy can be required to pay
some of his attorney fees.
C. Terence’s Challenge to the Denial of His Request for a Fee Waiver in
2016
On June 8, 2016, Terence filed a request for a fee waiver, which the
trial court denied. After Terence filed a further request on July 14, 2017, the
trial court granted a fee waiver on October 2, 2017, retroactive to July 14,
2017.
Terence contends that the trial court erred in denying him a fee waiver
prior to October 2, 2017, but he presents no legal basis for his contention. He
simply contends in his argument heading that the denial was “[u]njustified.”
(Bolding omitted.)
We reject Terence’s challenge to the denial of the fee waiver because he
has failed to develop it. (United Grand Corp. v. Malibu Hillbillies, LLC
(2019) 36 Cal.App.5th 142, 153 (United Grand) [“ ‘In order to demonstrate
error, an appellant must supply the reviewing court with some cogent
argument supported by legal analysis and citation to the record.’ . . . We may
and do ‘disregard conclusory arguments that are not supported by pertinent
15
legal authority or fail to disclose the reasoning by which the appellant
reached the conclusions he wants us to adopt.’ ”].)
D. Terence’s Challenge to the Appointment of a Discovery Referee in 2016
On June 9, 2016, the trial court issued an order appointing a discovery
referee pursuant to Code of Civil Procedure section 639, subdivision (a)(5).
The order stated that the referee’s fees were to be paid equally by the parties
and included a finding that neither party had established an economic
inability to pay. However, the trial court did indicate that the parties could
seek the referee’s recommendation as to how to allocate the referee’s fees
between them. Terence did not participate with the discovery referee.
According to Terence, the reference was withdrawn after the trial court
granted Terence’s request for a fee waiver in October 2017, and thereafter the
parties’ discovery disputes were handled by the trial court.
Terence contends that the trial court “erred by allocating the discovery
reference fees on a pro rata basis in the face of compelling evidence that
Terence could not afford to pay for his household’s basic needs and the court
fees, much less discovery reference fees.” We reject Terence’s argument
because he has failed to establish that any purported error by the trial court
was prejudicial or constituted a miscarriage of justice. (Code Civ. Proc, § 475;
Cal. Const., art. VI, § 13.) Further, Terence has failed to identify any remedy
that he seeks on appeal even were we to conclude that the trial court erred.
E. Terence’s Challenge to the Trial Court’s Discovery Orders
Terence explains that he filed four motions to compel discovery between
August 7, 2017, and September 17, 2018. Terence prevailed on some of the
issues raised in those motions.
We understand from the argument heading of Terence’s appellate brief
that he contends “the trial court erred by failing to compel Candy to fully and
16
accurately disclose all of her assets and liabilities.” (Capitalization and
bolding omitted.) However, the text of Terence’s brief fails to set forth any
specific discussion as to how the trial court’s discovery rulings were
erroneous. We accordingly reject Terence’s challenge to the trial court’s
discovery rulings because the argument is not sufficiently developed. (United
Grand, supra, 36 Cal.App.5th at p. 153.)
F. Terence’s Challenge to the Trial Court’s Ruling on the Adequacy of
Candy’s Final Declaration of Disclosure
Prior to trial, Terence filed a motion to compel, in which he argued that
Candy had not provided adequate information in her final declaration of
disclosure (§ 2105). The trial court held a hearing on November 7, 2018, at
which it ruled that Candy was not required to provide any additional
disclosure. The trial court’s minute order denying Terence’s motion stated,
“[a]lthough the court finds [Terence’s] declarations of disclosure are more
detailed than [Candy’s], given the case history, extensive discovery and
documentation provided, and the appointment of a special master that was
not cooperated with, the court finds [Terence] did not meet the burden of
proof and denies his motion to compel.” Further, apparently because Candy’s
final declaration of disclosure stated that her trial brief set forth all of the
relevant facts within her knowledge, the trial court ordered that “[Candy’s]
trial brief is adopted as true and correct under oath, and will be held to.”
In a brief argument, Terence states that “[n]one of the reasons cited by
the court justify denying Terence’s motion to compel further declaration of
disclosure responses from Candy.” He also concludes by stating that the trial
court’s ruling “deprived [him] of information that he needed and was legally
entitled to for settlement purposes and trial.” However, Terence fails to
develop his argument by addressing any of the grounds given by the trial
court for its ruling, and he fails to identify any specific way in which he was
17
prejudiced by the trial court’s ruling. Accordingly, we reject the argument as
insufficiently developed. (United Grand, supra, 36 Cal.App.5th at p. 153.)
G. Terence’s Contention That the Trial Court Failed to Consider Candy’s
Credibility
Describing several instances during the litigation that he views as
casting doubt on Candy’s credibility, Terence makes the sweeping argument
that the trial court “failed to factor Candy’s lack of credibility into its
findings, orders and judgment.”
We reject Terence’s argument on two grounds. First, it is insufficiently
developed and lacks the necessary specificity, as it refers indiscriminately to
all of the trial court’s “findings, orders and judgment.” Second, throughout
the Statement of Decision, the trial court repeatedly made credibility
determinations regarding both Terence and Candy. That discussion
demonstrates, contrary to Terence’s contention, that the trial court
understood it was required to make credibility determinations as the finder of
fact, and it did so with respect to both of the parties. To the extent Terence
disagrees with those credibility determinations, that disagreement is not a
ground for reversing the judgment. “ ‘We may not reweigh the evidence and
are bound by the trial court’s credibility determinations.’ ” (In re Marriage of
Ciprari (2019) 32 Cal.App.5th 83, 94.)
H. Terence’s Contention That the Dollar Amounts Set Forth in the
Statement of Decision Are Irreconcilable
Referring to the Statement of Decision, Terence states that because the
trial court did not itemize the credits awarded to each party, the judgment is
unclear. Terence gives a single example, explaining that “the court’s
judgment stated that Terence would have been entitled to an equalization
payment of $19,016.30 if it had not imposed $37,500 in section 271 sanctions
against him, but this figure is irreconcilable with the other amounts
18
articulated in the court’s judgment.” Terence refers to the following language
in the Statement of Decision: “The Court orders [Terence] pay $37,500 in
sanctions under . . . section 271. $18,483.70 in attorney’s fees are to be paid
directly to [Candy’s] counsel . . . . The other $19,016.30 is satisfied from
[Terence’s] share of community assets that would have otherwise resulted in
an equalization payment. . . . [¶] . . . Neither party owes the other an
equalization payment. Without the award of sanctions under section 271,
[Candy] would have owed [Terence] $19,016.30. But the Court has applied
that amount to the sanctions award under section 271.” Terence contends
that it is unclear how the trial court arrived at the figure of $19,016.30.
We agree with Terence’s assessment. In the course of the 46-page
Statement of Decision, the trial court identifies numerous credits for both
Candy and Terence, all of which should logically inform the total amount of
the equalization payment that Candy would owe Terence prior to the
imposition of sanctions. However, when we total all of those credits, we are
unable to understand the basis for the trial court’s statement that Terence
would be entitled to an equalization payment of $19,016.30. Either the trial
court committed a mathematical error, or there is some other error in the
Statement of Decision (such as an inadvertently omitted credit or a
typographical error) that would explain the inconsistency. We are unable, on
appeal, to figure out how the inconsistency should be resolved.
The trial court based its order that Terence pay $18,483.70 in
attorney’s fees to Candy’s counsel on the assumption that Candy would have
owed an equalization payment of $19,016.30. However, the order for Terence
to pay $18,483.70 would be erroneous if Candy’s equalization obligation
(based on the credits identified in the Statement of Decision) did not, in fact,
total $19,016.30. As it currently stands, the judgment is internally
19
inconsistent and unclear as to the parties’ financial obligations toward each
other. Therefore, we remand to the trial court with directions that it
(1) resolve the inconsistency by clarifying how it arrived at the conclusion
that Terence would be entitled to an equalization payment of $19,016.30
prior to the application of the sanctions award, and (2) in the course of doing
so, correct any figures in the Statement of Decision that it discovers to be
inaccurate, and amend the judgment accordingly.
I. Terence’s Challenge to the Trial Court’s Finding Regarding the Date of
Separation
The Statement of Decision includes a finding that the date of
separation is August 29, 2012. The trial court stated, “The Court finds
[Candy] credible about informing [Terence] of her desire to end the marriage
and that her actions from August 29, 2012, onward—such as filing the
petition the next day—were consistent with that expressed desire.”
Although Terence’s response to the petition for dissolution alleged that
the date of separation was September 11, 2012, and he assumed during his
closing argument at trial that the date of separation should be the date
Candy filed the petition for dissolution (i.e., August 30, 2012), he now argues
that the trial court should have found the date of separation to be August 27,
2012, or earlier. Citing evidence he put forth for the first time in his motion
for a new trial, Terence contends that Candy began expressing her intention
to end the marriage “about a year before she filed for divorce.” Terence did
not present that evidence during the trial, although he could have done so.
Terence also points to the fact that, on August 27, 2012, Candy withdrew
funds from the parties’ joint bank account to pay an attorney to file her
August 30, 2012 petition for dissolution.
Under the Family Code, “ ‘[d]ate of separation’ means the date that a
complete and final break in the marital relationship has occurred, as
20
evidenced by both of the following: [¶] (1) The spouse has expressed to the
other spouse the intent to end the marriage. [¶] (2) The conduct of the spouse
is consistent with the intent to end the marriage.” (§ 70, subd. (a).) “ ‘ “The
ultimate question to be decided in determining the date of separation is
whether either or both of the parties perceived the rift in their relationship as
final. The best evidence of this is their words and actions.” ’ ” (In re
Marriage of Lee & Lin (2019) 41 Cal.App.5th 698, 701.) “The date of
separation is a factual issue established by a preponderance of the evidence.
We review the trial court’s determination for substantial evidence . . . .” (Id.
at p. 702.)
Substantial evidence in the record supports the trial court’s finding
that August 29, 2012, is the date of separation, as that is the day before
Candy filed the petition for dissolution. Terence has not identified any
evidence presented during the trial that would preclude such a finding.
Although he focuses on the date of August 27, 2012, because that is when
Candy withdrew money from the community bank account, he has not
pointed to any evidence that he was aware of the withdrawal at the time, and
thus he has not shown that Candy’s conduct on that date would necessarily
have “expressed to the other spouse the intent to end the marriage.” (§ 70,
subd. (a).)
J. Terence’s Challenge to the Trial Court’s Division of the Rental Income
from the El Cajon House
During the period of separation, the parties received rental income
from the El Cajon house, which the tenants paid to Candy. Candy paid
almost all of the mortgage and property taxes on the El Cajon house after
separation.
The trial court ruled with respect to the rental income as follows:
“[Terence] requested reimbursement for the rents received during the period
21
of separation that were paid directly to [Candy]. Rents on community
property are community property. (Boyd v. Oser (1944) 23 Cal.2d 613, 615.)
But the mortgage, insurance, and taxes for the property were community
debts. From August 2013 onward, the rent received for the El Cajon
property—based on [Terence’s] own testimony . . . —was less than the
mortgage and associated fees. Community funds are presumed to be used to
pay community debts. (In re Marriage of Cochran (2001) 87 Cal.App.4th
1050, 1058 [(Cochran)].) Therefore, those rents are presumed to have gone to
pay the community debt and [Terence] is not entitled to reimbursement of the
rents since the debt exceeded the rent.” For the period before August 2013,
when the rent received was more than the mortgage and associated fees, the
trial court calculated Terence was entitled to his half of the amount
remaining after payment of those expenses, for a total of $4,799.35.
Terence takes issue with the trial court’s reference to Cochran, which
stated that “[u]nder the family expense presumption, ‘in the absence of other
evidence, living expenses are presumed to have been paid out of community
property rather than separate property . . . .’ ” (Cochran, supra, 87
Cal.App.4th at p. 1058.) Terence points out that the family expense
presumption is commonly used in a different context, namely to trace
whether separate property remains in a comingled account or was used to
make an investment. (E.g., Beam v. Bank of America (1971) 6 Cal.3d 12, 20-
21; Cochran, at p. 1058.) Terence argues that because the authority cited by
the trial court is inapplicable, he should be reimbursed for half of the entire
rental income.
We reject Terence’s argument. Regardless of whether Cochran is
apposite authority, the trial court’s ruling was premised on a simple concept.
Candy received community property rental income, but Candy also paid
22
community property debt in the form of the mortgage and property taxes for
the community’s El Cajon house. The community property rental income and
the community’s expenses for the El Cajon house offset each other.
Therefore, for the period starting August 2013, there was no community
property rental income remaining after the payment of the community’s
mortgage expense with which Terence could be credited. For the period
before August 2013, Terence is entitled to half of the rental income that
remained after the payment of the mortgage and associated expenses on the
El Cajon house, not half of the entire rental income.
K. Terence’s Challenge to the Trial Court’s Denial of His Postjudgment
Motions Regarding the Inclusion of Accrued Sick Leave in Dividing
Candy’s Pension
On February 11, 2019, the court issued a QDRO for Candy’s pension,
which was based on a stipulation of the parties. The QDRO awarded Terence
“fifty percent (50%) of the accumulated contributions and service credit
attributable to [Candy’s] period of service between the date of marriage and
the date of separation (the ‘Community Period’), including those related to
any purchased service credit earned by [Candy] during the Community
Period.” It is undisputed that Candy had not retired at the date of
separation, as she did not retire until 2019. In the Statement of Decision, the
trial court stated: “[Candy’s] pension was obtained mostly during marriage.
The Court confirms that characterization of the pension as a community
property asset. A QDRO was already prepared. The Court affirms that
QDRO.”
In his motion for a new trial and motion to set aside the judgment,
Terence argued for the first time that the trial court should have considered
during trial whether to amend the QDRO to make sure Terence is receiving
his share of any part of Candy’s pension that was based on unused sick leave
23
that Candy converted to service credit upon her retirement. In support
Terence cites In re Marriage of Moore (2014) 226 Cal. App.4th 92. Terence
explains that he raised the issue for the first time in his postjudgment
motions because the Statement of Decision discussed the issue of Terence’s
2,911 hours of sick leave, which added 17 months of service when he retired
prior to separation. Specifically, the trial court ordered that a new DRO be
prepared for Terence’s pension to correct an error in how the previous DRO
was worded so that the community was credited with the 17 months of
service credit.14 After noticing the trial court’s discussion of the issue
regarding his own pension, Terence argued in his postjudgment motions that
the trial court should issue an order accomplishing “the division of [Candy’s]
additional service credit resulting from her unused sick leave that was
converted at the time of her retirement.”
Terence contends that the trial court erred in denying him relief in his
postjudgment motions based on “the principles articulated in In re Marriage
of Moore.” Terence is correct that under In re Marriage of Moore, the
community has an interest in sick leave accumulated prior to separation
when that sick leave is applied to obtain service credit at retirement. (In re
Marriage of Moore, supra, 226 Cal.App.4th at p. 107 [“the community has no
interest in accrued sick leave except when benefits are paid during the
marriage or upon retirement to the extent earned during the marriage” (italics
added)].) Thus, if Candy had any sick leave at the time she retired that was
accrued prior to the parties’ August 29, 2012 separation, any service credit
she obtained with that sick leave would be credited to the community. As we
14 Specifically, the Statement of Decision explained, “Because the
phrasing ‘creditable service’ was not used in the initial DRO, the federal
Office of Personal [sic] Management deemed the pro-rata share not to include
the sick leave. ([S]ee 5 C.F.R. § 838.623.)”
24
will explain, however, Terence’s appellate challenge fails because Terence
improperly raised the issue for the first time in his postjudgment motions,
and he presented no meritorious ground for relief in those motions.
Initially, we note that Terence failed to present any argument or
evidence at trial regarding Candy’s accrued sick leave. Accordingly, the
record contains no suggestion either: (1) that Candy had any unused sick
leave accrued prior to August 29, 2012, that she used to obtain service credit
when she retired, or (2) that if she did receive such service credit, Terence is
not already receiving pension distributions under the QDRO reflecting that
service credit. The QDRO for Candy’s pension specifically states that
Terence would get 50 percent of the “service credit attributable to [Candy’s]
period of service between the date of marriage and the date of separation,”
including any “purchased service credit earned by [Candy] during the
Community Period.” In contrast, the DRO for Terence’s pension did not
include any language regarding service credit earned during the marriage. If
Terence had any doubt about whether the QDRO properly divided Candy’s
pension, he should have raised it before he stipulated to the QDRO in 2019,
or at the latest, during trial and prior to the trial court’s entry of a judgment
affirming the QDRO.
Terence contended for the first time in his motion for a new trial that
he was entitled to relief with respect to Candy’s accrued sick leave based on
the ground of “[a]ccident or surprise, which ordinary prudence could not have
guarded against.” (Code Civ. Proc., § 657, subd. (3).) The trial court properly
denied relief. “ ‘ “Surprise” as a ground for a new trial denotes some
condition or a situation in which a party to an action is unexpectedly placed
to his detriment. The condition or situation must have been such that
ordinary prudence on the part of the person claiming surprise could not have
25
guarded against and prevented it. Such party must not have been negligent
in the circumstances.’ ” (Hata v. Los Angeles County Harbor/UCLA Medical
Center (1995) 31 Cal.App.4th 1791, 1806; see also Kauffman v. De Mutiis
(1948) 31 Cal.2d 429, 432 [the terms “accident” and “surprise” have
“substantially the same meaning”].) The record contains no suggestion that
any circumstance, apart from his own possible negligence, prevented Terence
from raising the issue prior to stipulating to the QDRO or during his trial
presentation.
In addition, Terence argued that he was entitled to an order setting
aside the judgment on the issue of Candy’s accrued sick leave. (Code Civ.
Proc., § 663.) In this context, that remedy would be available only if Terence
established an “[i]ncorrect or erroneous legal basis for the decision, not
consistent with or not supported by the facts.” (Id., § 663, subd. (1).) As we
have explained, no evidence was presented at trial to establish that any sick
leave Candy accrued prior to separation was converted to service credit upon
retirement, or that if it was, the QDRO failed to properly take into account
those service credits. The trial court therefore properly denied the motion to
set aside the judgment, as Terence did not establish that the judgment
concerning the QDRO for Candy’s pension was contrary either to the law or
to the facts presented at trial.
L. Terence’s Challenge to the Order Regarding the Payments to Preserve
the Survivor Annuity Benefit in Terence’s Pension
Terence’s pension includes a survivor annuity benefit that will be paid
to Candy upon Terence’s death. As a premium for that benefit, the pension
administrator deducts a monthly amount from Terence’s pension
disbursement. (5 U.S.C. § 8339(j)(1), (4).) The trial court ordered that as of
the date it issued the judgment, Candy would have the responsibility to pay
26
for the full cost of the survivor annuity benefit.15 However, prior to the date
of judgment, the parties would equally share in the cost. The trial court
explained that it was holding the parties equally responsible for the cost of
preserving the survivor annuity benefit prior to the judgment pursuant to
section 2610, subdivision (a). The trial court stated, “In order to preserve the
asset until the final characterization the payment of the survivor benefit
annuity was necessary. Therefore, it is appropriate to require [Terence] to
share in that cost up to the date the judgment becomes final and the asset is
fully divided.”
The trial court also explained that although it intended to equalize the
cost of the survivor annuity benefit that the parties paid prior to the
judgment, it did not have credible information about the amounts the parties
had paid. It accordingly reserved jurisdiction on the issue: “The Court
therefore reserves jurisdiction over payments made for the survivor benefit
annuity over that time period until 120 days after the judgment becomes
final. Either party may file a request for order within that time to provide
additional proof of how the survivor annuity reduction was withdrawn, the
total amount of payments from date of separation until the date the judgment
becomes final, and who paid how much during that time.”
The trial court relied on section 2610, subdivision (a) for its order that
the parties equally pay the cost of the survivor annuity benefit prior to the
issuance of the judgment. Under that provision, “the court shall make
15 Specifically, the trial court stated, “The Court terminates its ongoing
order from April 5, 2018, ordering [Terence’s] obligation to pay one-half of the
survivor benefit as of now, but the Court reserves jurisdiction to award
reimbursement to [Candy] up to the date this judgment becomes final, if
either party raises the issue of equalization of the survivor benefit reductions
in future litigation filed within 120 days of the judgment becoming final.”
27
whatever orders are necessary or appropriate to ensure that each party
receives the party’s full community property share in any retirement plan,
whether public or private, including all survivor and death benefits,
including, but not limited to, any of the following: [¶] (1) Order the
disposition of retirement benefits payable upon or after the death of either
party in a manner consistent with Section 2550. [¶] (2) Order a party to elect
a survivor benefit annuity or other similar election for the benefit of the other
party, as specified by the court, when a retirement plan provides for that
election . . . .” (§ 2610, subd. (a).)
Terence contends that the trial court did not have the authority under
section 2610, subdivision (a) to order the prejudgment cost of the survivor
annuity benefit to be paid equally by the parties. Specifically, according to
Terence, “[s]ince an irrevocable election had already been made to provide a
survivor annuity benefit to Candy, there was no need for the court to order an
election of such benefit, and it never did so. Section 2610 does not address
which party pays the cost of such benefit, so the court’s reliance upon such
statute to require Terence to pay part of its cost is misplaced.”
We reject Terence’s argument. “Generally speaking, a trial court’s
division of the community interest in retirement rights ‘ “will not be
interfered with on appeal unless an abuse of discretion is shown. The
criterion governing judicial action is reasonableness under the circumstances.
The method adopted may vary with the facts in each case.” ’ ” (In re Marriage
of Cooper (2008) 160 Cal.App.4th 574, 580.) Section 2610, subdivision (a)
does not limit the orders that the trial court may make in the interest of
equally dividing the community portion of pension benefits. Instead, the trial
court may, in its discretion, “make whatever orders are necessary or
appropriate to ensure that each party receives the party’s full community
28
property share in any retirement plan.” (§ 2610, subd. (a), italics added.)
Under this provision, it was a reasonable exercise of discretion for the trial
court to require the parties to equally share in the cost of the survivor
annuity benefit pending final judgment. (Cf. In re Marriage of Smith (2007)
148 Cal.App.4th 1115, 1128 [the trial court did not abuse its discretion under
section 2610 by ordering the pension holder to pay a portion of the premium
for his former spouse to receive a survivor benefit]; 2 Turner, Equitable
Distribution of Property (4th ed. 2021) Specific Types of Property, § 6:46
[“Where survivor benefits are divided, it is entirely reasonable to require the
nonowning spouse to assume a proportional share of the cost. Thus, the
parties should share in any reduction of the owning spouse’s normal
retirement benefits which arises from election of survivor benefits.”].)16
Terence also takes issue with the trial court’s conclusion that it did not
have credible evidence about the amounts the parties paid for the survivor
annuity benefit after the date of separation. Terence sets forth certain
figures in his appellate brief and argues that the trial court should have
accepted them. We are not persuaded. The Statement of Decision provides a
detailed explanation for why, based on the formula that the federal pension
administrator uses to calculate the cost of survivor annuity benefit, the
figures that Terence presents do not appear to be correct. The trial court has
specifically reserved jurisdiction to allow the parties to submit further
information. As the trial court’s ruling on the issue is not a final judgment on
16 In the Statement of Decision, the trial court stated that it could also
have relied on section 4360 in making the order equally dividing the
prejudgment cost of the survivor annuity benefit, but that the applicability of
section 4360 was “irrelevant” because it was basing its order on section 2610.
Terence contends that section 4360 is not applicable. We need not reach the
issue because the trial court plainly stated that its ruling did not depend on
the applicability of section 4360.
29
the issue, Terence does not challenge an order that is ripe for decision on
appeal. Terence may apply to the trial court upon remand with credible
figures showing the amount the parties paid for the survivor annuity benefit
so that the trial court can equalize the parties’ payments.
M. Terence’s Challenge to the Trial Court’s Calculation of How Much He
Should Be Credited for the Income Tax He Paid on Candy’s Share of
His Pension Income
The trial court ruled that Terence should be reimbursed for the income
tax that he paid on Candy’s share of his pension income from 2012 to 2014,
prior to the DRO. However, the trial court explained that “[Terence’s]
numbers and requested amounts are inaccurate and not credible.” The trial
court therefore conducted its own calculations “by taking the gross pension
amount, treating the parties as married filing jointly, applying the standard
deductions, and using the Federal and California income tax rates. [Fn.
omitted.]” The trial court explained that it would use the rate for the lowest
tax bracket to calculate the income tax paid on the pension income. The trial
court explained it was exercising its discretion in this manner “in large part
because [Terence] made unilateral decisions about the debt forgiveness and
when to take it.”
Based on its calculations, the trial court concluded that, after deducting
the income tax that it determined Terence to have paid on Candy’s share of
the pension, the total amount that Terence owed Candy for her share of
Terence’s pension income from 2012 to 2014 was $62,931.35.
Terence takes issue with the trial court’s rejection of his calculations of
the income taxes he paid on Candy’s share of his pension income. Terence
explains that his 2014 tax return is in the record, as it was submitted by
Candy as a trial exhibit. Based on that tax return, Terence attempts to
justify the calculations that he submitted at trial and argues that the trial
30
court erred by ignoring relevant evidence. Terence seeks either a new trial
on the issue or an order requiring the appointment of an expert to calculate
the income tax he paid on Candy’s share of his pension income. As we will
explain, we reject Terence’s argument.
The trial court explained why it found Terence’s calculations to be
erroneous and not credible. “[Terence] lists taxation rates of 9.6% and 21%.
He does not explain the basis for using these percentages. They are not the
federal income tax rates combined with the California income tax rates. The
numbers also are applied to an amount already reduced by tax payments and
so [Terence] is requesting double credit for the payments. Even if the Court
were to use his base numbers, [Terence’s] math is simply wrong. He had
material calculation errors for the pro-rata share for 1/2/13, 2/1/13, 3/1/13,
3/29/13, and 1/2/14.”
Terence’s appellate argument is based on the presence of his 2014 tax
return in the record. Based on that document, he attempts to demonstrate
that he had a sound basis for the 2014 figures that he presented at trial. We
understand Terence’s argument, but we are not persuaded that the trial
court erred in rejecting Terence’s figures and conducting its own calculations
for the income tax Terence paid in 2012, 2013, and 2014 on Candy’s share of
his pension income. Regardless of whether Terence is now able to explain the
basis for the 2014 figures he presented at trial, Terence did not do so at trial.
Thus, the trial court properly rejected Terence’s calculations. Moreover, even
if Terence is now able to explain the basis for his calculations regarding the
2014 tax year, he does not address the other problems cited by the trial court
regarding the figures that Terence set forth during the trial or the other two
years of tax returns that are not in the record.
31
We accordingly conclude that because the trial court did not have
reliable evidence regarding the amount of income tax Terence paid on
Candy’s share of his pension income from 2012 to 2014, the trial court was
well within its discretion to rely on its own calculations rather than to accept
Terence’s assertions regarding those amounts.
N. Terence’s Challenge to the Trial Court’s Calculation of the Amount
Candy Is Entitled to for Her Share of Terence’s Pension During the First
Two Years After Separation
Terence makes a brief and undeveloped argument regarding the trial
court’s determination that Candy should be credited for $62,931.35 as a
reimbursement for her half of Terence’s pension that Terence failed to share
with her during the first two years after separation. Terence argues, “[The
trial court’s calculations] ignore the fact that Terence paid more than half of
the gross amount of his pension from September 2014 through March 2017
because he was required by the court to pay half of the net amount of his
pension until Candy began receiving her pro rata share directly from [the
pension administrator], and fail to credit him for that difference. Ignoring
the extra amounts that Terence paid in subsequent years resulted in an
unequal division of that community asset which favored Candy.” Terence
says nothing more on this issue.
We do not address the argument because it is undeveloped and does not
contain any citation to the record. (United Grand, supra, 36 Cal.App.5th at
p. 153.) “We are not required to scour the record in search of support for a
party’s factual statements and may disregard such unsupported statements.”
(Harshad & Nasir Corp. v. Global Sign Systems, Inc. (2017) 14 Cal.App.5th
523, 527, fn. 3; see also Rule 8.204 [a party’s brief must “[s]upport any
reference to a matter in the record by a citation to the volume and page
number of the record where the matter appears”].)
32
O. Terence’s Challenge to the Selection Process for the Expert the Trial
Court Ordered to Be Appointed
To calculate the amount that Candy was underpaid from Terence’s
pension income after the DRO was issued, the trial court ordered an expert to
be appointed pursuant to Evidence Code section 730. The trial court set forth
the following procedure for selecting the expert: “[Candy] shall propose three
names to [Terence] no later than 30 days after the judgment becomes final.
[Terence] is to choose one of those three names within two weeks of receiving
the names. If [Candy] does not choose a name within 30 days after the
judgment becomes final [Terence] shall select the expert. If [Terence] does
not choose a name within two weeks of receiving the three names, then
[Candy] gets to select a name from the three names. The parties are to split
the costs equally.”
Terence challenges the selection procedure specified by the trial
court.17 He argues that “Such process greatly favors Candy, and is
unwarranted under the circumstances. . . . Both parties have an equal
interest in having a qualified, unbiased expert perform such calculations.”
According to Terence, “[a] fair and equitable selection process would allow
each party to nominate three experts, and if the parties cannot agree on one
of those experts, would require each party to submit one name to the court,
which would make the final selection from those two names.”
Terence has not established a basis for reversing the trial court’s order.
“Under Evidence Code section 730, it is well settled ‘that a trial court has
17 In the trial court, Terence raised the issue in his motion to set aside the
judgment. “Since both parties were underpaid for the other’s unused sick
leave that was converted to service credit, the Court’s determination that
[Candy] should select the names of three experts to perform such calculations
is not consistent with or not supported by the facts, and is legally incorrect or
erroneous. The parties should mutually select the expert.”
33
discretion in the appointment and selection of expert witnesses.’ ” (Hulbert v.
Cross (2021) 65 Cal.App.5th 405, 417.) Here, in light of the long and
contentious history of this litigation, it was reasonable for the trial court to
set forth a process for choosing an expert that will be self-executing and will
give both parties a role in the selection process. Terence’s proposed approach,
in contrast, would require the expenditure of additional court resources in
deciding between the parties’ proposed experts and would further prolong
this already lengthy litigation. The trial court did not abuse its discretion.
P. Terence’s Challenge to the Ruling Regarding Candy’s Entitlement to
$3,000 in Separate Property Funds She Deposited in the Community
Bank Account
At trial, the evidence showed that Candy deposited $75,000 of separate
funds into the community bank account in April 2011, but it was depleted by
Terence’s use of those funds to pay community expenses without her
knowledge and contrary to her expectation.
As to Candy’s request that she be reimbursed for the $75,000 in
separate property funds, the trial court explained, “[Terence] acknowledged
using [Candy’s] separate property that was deposited into a joint checking
account to pay community bills during marriage. The Court finds that he did
not seek [Candy’s] permission before doing so or receive her permission.” The
trial court stated that it was unable to trace Candy’s separate funds to the
acquisition of any item in the community property estate that it could award
to Candy. Nevertheless, the trial court awarded $3,000 to Candy based on
the following reasoning: “The Court also considered whether these payments
could be viewed as payments of community debts reimbursable under
. . . section 914. For such payments to be reimbursable, there must be
community funds available and not used. (. . . § 914, subd. (b).) On April 18,
2019, [Terence] testified that there was a $3000 balance in the account the
34
[separate property] funds were deposited into after the community bills were
paid. [Candy] is entitled to reimbursement of those $3000 under . . . a theory
it was [Candy’s] remaining separate property . . . .”
Terence challenges this ruling. He argues, “The court erroneously
found that ‘[o]n April 18, 2019, [Terence] testified that there was a $3000
balance in the account the funds were deposited into[,] after the community
bills were paid.’ . . . In fact, Terence testified that ‘[o]n the date of separation
there was $281.12 in the parties’ joint checking account, and $13.92 in the
parties’ joint savings account, for a total of $295.04.’ . . . The parties’ joint
bank account statement for that period corroborates his testimony.”
As we will explain, we reject Terence’s argument. The trial court relied
on section 914, subdivision (b). As relevant here, under that provision a
spouse may obtain reimbursement for using separate property to pay a
spouse’s necessaries of life before separation if “separate property is so
applied at a time when nonexempt property in the community estate or
separate property of the person’s spouse is available but is not applied to the
satisfaction of the debt.” (§ 914, subd. (b).) In such a case, “the married
person is entitled to reimbursement to the extent such property was
available.” (Id.) Thus, Candy would be entitled to reimbursement under
section 914, subdivision (b) if she could show that some of her $75,000 in
separate property was used to pay Terence’s necessaries of life prior to
separation at a time when community funds or Terence’s separate funds were
also available.
The trial court premised its ruling on Terence’s trial testimony on April
18, 2019. Terence testified that in 2011, approximately $200,000 was
deposited into the parties’ community account, and that $75,000 of those
funds were Candy’s separate property funds. According to Terence, in that
35
year, “[r]oughly $197,000 was paid out of that.” That leaves $3,000 in
community funds at the end of the year that were not paid out. Based on this
testimony, substantial evidence supports a finding that in 2011, $75,000 of
Candy’s separate property funds were used to pay community expenses, but
$3,000 of community funds remained, which could have been used to pay at
least some of those expenses. Under section 914, subdivision (b), Candy is
entitled to reimbursement in the amount of $3,000.
Q. Terence’s Challenge to the Ruling Denying Reimbursement for Half of
the Cost of Groceries
For the period after separation until July 2013, the parties lived in the
Campo house, during which Terence paid many of the parties’ expenses. For
this time period, the Court awarded Terence half of the amounts he identified
“related to the costs of the mortgage, property taxes, special assessment,
property insurance, earthquake insurance, satellite TV, electricity, water, cell
service, and landline phone service,” all of which it found to be credible.
Candy was accordingly ordered to pay $11,590.49. However, the trial court
rejected Terence’s claim for reimbursement for the purchase of groceries
during that time period. The trial court stated, “The Court did not find
[Terence’s] claims for groceries to satisfy his burden of proof that [Candy]
should be required to split those costs.” Terence argues he should be
reimbursed for half of his claimed $500 in monthly expenditures on groceries
and household supplies. He states that otherwise, “[t]he court’s order would
result in an unequal division of the community estate and would essentially
provide Candy with an unjustified form of spousal support, and therefore
should be vacated.”
We reject Terence’s argument because it fails to address the trial
court’s reason for denying his reimbursement claim for the grocery
expenditures: his failure to satisfy his burden of proof. The only evidence
36
that Terence cites for his contention that he spent $500 per month on
groceries are the income and expense declarations he and Candy filed in
2013, both of which listed an estimated monthly cost of $500 for “groceries
and household supplies.” “ ‘The trier of fact is the sole judge of the credibility
and weight of the evidence . . . .’ ” (In re Marriage of Greenberg (2011) 194
Cal.App.4th 1095, 1099.) Absent more specific proof of the actual amounts
paid for groceries during the relevant time frame, the trial court was within
its discretion to conclude that the estimates in the income and expense
declarations provided insufficient credible evidence to support Terence’s
contention that he paid $500 per month on groceries and should be
reimbursed for half of that amount.
R. Terence’s Challenge to the Ruling Denying Him Reimbursement for
Half of the Expenses of the Campo House After Candy Moved Out
The trial court ruled that Terence was responsible for the full amount
of expenses attributable to the Campo house after Candy moved out starting
August 2013, including the mortgage, taxes, and insurance. Terence
contends that he should have been reimbursed for half of those payments
because they were for community debts.
The trial court explained that although it had discretion to order
reimbursement in cases it deemed appropriate for pre-existing community
debts paid after separation but before trial (§ 2626; In re Marriage of Epstein
(1979) 24 Cal.3d 76, 83) (i.e., “Epstein credits”), it would not do so based on
the following principle: “[A]s to at least one category of assets—a community
asset being used by one spouse between separation and trial—no
reimbursement should be ordered unless the amount of the debt payment
greatly exceeds the value of the use of the asset. Thus, reimbursement will
usually not be ordered for payments on obligations on the family home made
by the spouse remaining in the home.” (Hebbring v. Hebbring (1989) 207
37
Cal.App.3d 1260, 1271 (Hebbring).) The trial court also cited In re Marriage
of Stallworth (1987) 192 Cal.App.3d 742, 751. Terence argues that those
cases do not apply because “[b]oth of those cases dealt with situations where
only one party used the community’s only real property. In this case, each
party lived in one of the community’s two real properties.” Terence points out
that the trial court did not require Candy to bear the mortgage and
associated expenses for the El Cajon house, and that it should have ordered
the same with respect to the Campo house.
We apply an abuse of discretion standard of review. (In re Marriage of
Oliverez (2019) 33 Cal.App.5th 298, 318.) The trial court has “broad
discretion” when determining whether to award Epstein credits. (Hebbring,
supra, 207 Cal.App.3d at p. 1272.)
Terence has not established that the trial court abused its discretion.
The situation of the El Cajon house is different from the situation of the
Campo house because, as we have explained, there was community rental
income from the El Cajon house while Candy lived there. The trial court
determined that those community funds were presumed to have been used to
cover the community’s cost for that income-producing property. Thus, it is
reasonable for the trial court to have treated the two properties differently
and to arrive at the conclusion that Terence would not be reimbursed for the
mortgage and associated expenses of the Campo house, but that the expenses
for the El Cajon house were to be covered by the income it produced.
S. Terence’s Challenge to the Trial Court’s Ruling That Candy Did Not
Have to Reimburse Half of the Cost of the Telephone Service for Their
Adult Children
With respect to Terence’s claim for reimbursement of his payment of
community expenses from the date of separation to July 2013, the trial court
ruled, “The Court does not find that [Candy] should reimburse the costs of
38
phone service for the adult children. Any dispute [Terence] has with the
adult children, is with the adult children, not [Candy].” Terence argues that
“[t]he wireless telephone expenses were community debts since the account
had been a family plan paid for by the community.”
Terence has not established that the trial court abused its discretion by
declining to reimburse him for the expenses attributable solely to his adult
children’s cell phones. The trial court reasonably could have concluded that
the amounts Terence paid from his separate property to benefit his adult
children did not amount to the payment of community debts or the common
necessaries of life for either of the parties. (§§ 914, 2626.) Accordingly,
Terence is not entitled to reimbursement from the community for his
payment of those amounts.
T. Terence’s Challenge to the Ruling Regarding His Payment of Candy’s
Health Insurance and Automobile Insurance Premiums
Terence makes two challenges to the trial court’s failure to award him
reimbursement for his payment of Candy’s insurance premiums.
First, Terence sought reimbursement for the health insurance
premiums that he paid for Candy in 2013. Terence contends he paid a total
of $2,411.76 for Candy’s health insurance premiums. The trial court ruled,
“[Terence] requested reimbursement for the cost of covering [Candy] on his
health insurance post-separation. Given that [Terence] did not pay spousal
support and failed to provide [Candy] her portion of the pension, the Court
views these payments as really based on [Terence’s] duty to support [Candy]
and should not be reimbursed under Epstein. The Court views this as
different from the bills paid in relation to [Candy] remaining in the residence
based on the nature of insurance payments being covered under section
2040.” Terence argues that “[t]he court mistakenly relied on section 2040”
because “[t]hat section address [sic] the continuation of, inter alia, insurance
39
policies, but does not address which party is responsible for the payment of
premiums for such coverage.”
Terence does not dispute the trial court’s decision to analyze the health
insurance premium payments using the principles applicable to Epstein
credits. (Epstein, supra, 24 Cal.3d at p. 83.)18 However, he contends that
under the principles applicable to Epstein credits, he should have been
reimbursed. As we have explained, the trial court has broad discretion in
deciding whether to provide Epstein credits for postseparation community
expenses paid from separate funds. (Oliverez, supra, 33 Cal.App.5th at
p. 318; Hebbring, supra, 207 Cal.App.3d at p. 1272.) As relevant here,
Epstein states that reimbursement may be denied “ ‘where the payment . . .
constituted in reality a discharge of the paying spouse’s duty to support the
other spouse . . . .’ ” (Epstein, supra, 24 Cal.3d at pp. 84-85.) As the trial
court explained, the payment of the health insurance premiums were in lieu
of support during the period when Terence failed to share his pension income
with Candy. The trial court therefore reasonably exercised its discretion to
deny reimbursement on that basis.
Terence also contends that the trial court “erred by failing to address
Terence’s entitlement to reimbursement for post-separation auto insurance
premiums that he paid for Candy.” Terence cites to a trial exhibit, in which
he listed those payments and sought reimbursement for them. Specifically,
as he did in the trial court, Terence seeks reimbursement in the amount of
18 We therefore do not consider whether the health insurance premiums
could be analyzed as a debt incurred for common necessaries of life of the
person’s spouse after the date of separation under section 914, subdivision
(a).
40
$2,086.60.19 In his objection to the trial court’s tentative statement of
decision, Terence objected that the trial court had failed to rule on his
reimbursement request: “[Terence] objects to the Court’s failure to address
his entitlement to reimbursement for the costs that he paid for the portion of
post-separation automobile insurance premiums attributable to [Candy], as
well as its failure to reimburse him for such expenses.”
The trial court did not address the issue in its final Statement of
Decision. We therefore may not imply findings on the issue. (Code Civ. Proc.,
§ 634 [“When a statement of decision does not resolve a controverted issue, or
if the statement is ambiguous and the record shows that the omission or
ambiguity was brought to the attention of the trial court either prior to entry
of judgment or in conjunction with a motion under [Code of Civil Procedure]
[s]ection 657 or [Code of Civil Procedure section] 663, it shall not be inferred
19 In his January 7, 2020 revised amended trial brief at pages 12 and 13,
Terence stated, “[Terence] should receive credit for half of the $497.31 that he
paid in automobile insurance premiums for the parties’ shared use of a
community vehicle from the date of separation through April 2013, resulting
in a credit to him of $248.65. [Terence] should receive credit for two-thirds of
the $2,756.93 that he paid in increased automobile insurance premiums after
[Candy] purchased a new vehicle for her exclusive use from May 2013
through August 2014, resulting in a credit to him of $1,837.95. ([Terence’s]
insurance premiums decreased by two-thirds after [Candy] was dropped from
his policy in September 2014.) [Terence’s] total credits for automobile
insurance premiums should be $2,086.60.” In his specification of principal
controverted issues filed after trial, Terence included the following items:
“32. Whether [Terence] should be reimbursed for half of the cost of the post-
separation vehicle insurance premium payments that he paid while the
parties’ [sic] shared the use of a vehicle until he purchased his own vehicle in
May 2013, and if not, why not. [¶] 33. Whether [Terence] should be
reimbursed for all of the costs of providing [Candy] with automobile
insurance after he purchased his own vehicle in May 2013, and if not, why
not.”
41
on appeal . . . that the trial court decided in favor of the prevailing party as to
those facts or on that issue.”].)
We direct that on remand the trial court should expressly rule on
Terence’s request for reimbursement arising from his payment of Candy’s
automobile insurance premiums.
U. Terence’s Challenge to the Trial Court’s Failure to Reimburse Him for
Half of His Payment of the Real Estate Appraisal in 2018
The trial court ordered a real estate appraisal to be performed in 2018.
Terence was ordered to pay for the cost, “subject to reallocation.” Terence
contended in his trial brief that he paid $800 for the appraisal.
Terence’s appellate brief makes the following assertion: “Despite
Terence’s request for a determination regarding the reallocation of such costs,
the court never ruled on such matter.” He argues “it was error for the court
not to reallocate the costs of the appraisals equally.”
Terence has failed to develop his argument by providing any citation to
the record regarding his payment of the appraisal costs or a request for
reallocation. Accordingly, we reject the argument as insufficiently developed
and unsupported by the necessary citations to the record. (United Grand,
supra, 36 Cal.App.5th at p. 153.)
V. Terence’s Payment of Community Debt in the Amount of $63,272.80
Terence points out that the trial court found that he paid $63,272.80 in
community debt. It appears that the trial court intended that Terence would
be reimbursed for half of that payment, which would be $31,636.40.
However, as Terence correctly points out, the trial court did not expressly
order reimbursement. Further, because as we have explained, it is unclear
how the trial court calculated Terence’s entitlement (before the imposition of
sanctions) to an equalization payment of $19,016.30, we are unable to
determine on appeal whether, in fact, the trial court credited Terence with
42
$31,636.40 for his payment of the community debt. Therefore, we direct that
on remand, in examining how it arrived at the amount of the equalization
payment that Candy owed to Terence, the trial court shall confirm that
Terence has been credited with $31,636.40 and shall adjust the equalization
payment if no such credit was given.
W. Terence’s Payment of $20,000 of Separate Property Funds in 2009 to
Satisfy a Community Debt
Terence states that in 2009, he paid $20,000 of separate property
inheritance funds to his son for the purpose of reimbursing the son for his
payment of Terence and Candy’s community debts. In an undeveloped
argument that fails to provide a citation to the trial court’s ruling on the
issue, Terence contends that the trial court erred in failing to reimburse him
for half of the $20,000.
The trial court ruled on the issue as follows: “[Terence] claims he made
a separate property payment of $20,000 on community debts from his
inheritance. This occurred before the date of separation. It appears that
inheritance was deposited into the one of the parties’ sons accounts, not into
a joint account. The funds therefore were not comingled and therefore
remained separate property. Testimony supports that it was for the payment
of a loan obtained during the marriage. For reimbursement under . . . section
914, subdivision (b), there would need to be a showing that it was ‘applied at
a time when nonexempt property in the community estate or separate
property of the person’s spouse is available but is not applied to the
satisfaction of the debt . . . .’ ( . . . § 914, subd. (b).) The evidence did not
address the existence or non-existence of other community funds available to
satisfy the debt. Therefore, [Terence] did not meet his burden of proof to
receive reimbursement for that payment.”
43
Terence makes no argument addressing the ground upon which the
trial court based its ruling. Specifically, he makes no attempt to point to any
trial evidence showing that community funds were available to satisfy the
debt he paid with his $20,000 in separate property. We conclude that
Terence has therefore failed to establish that the trial court erred.
X. Terence’s Challenge to the Trial Court’s Failure to Reimburse the
Community for the Funds Candy Withdrew Shortly Before the Date of
Separation
On August 27, 2012, two days prior to the date of separation, Candy
withdrew $6,660 from community bank accounts. The trial court rejected
Terence’s argument that Candy should reimburse the community for that
amount. As the trial court explained, “The withdrawal was August 27, 2012.
This is before the date of separation . . . therefore [Terence] is not entitled to
reimbursement.”
Terence argues that the trial court’s ruling should be reversed because
Candy’s withdrawal of the funds “was not even remotely beneficial to the
community” and “[u]pholding the court’s ruling would encourage parties to
withdraw all of the funds from community bank accounts in advance of filing
for dissolution of marriage.” Terence has cited no authority to support his
argument or to suggest that the trial court improperly relied on the date of
separation in making its ruling. We accordingly reject Terence’s argument on
the ground that it is insufficiently developed and is not supported by
adequate legal authority. (United Grand, supra, 36 Cal.App.5th at p. 153.)
Y. Terence’s Challenge to the Trial Court’s Order Regarding Spousal
Support
The trial court ruled on Candy’s request for spousal support by deciding
that support was not warranted. The trial court explained that if legally
permitted to do so, it would terminate jurisdiction over any further spousal
support order, but it was not authorized to do so. Therefore, the trial court
44
retained jurisdiction. Specifically, the trial court stated, “Based on . . .
section 4336 and the length of this marriage, the Court does not view itself as
having the ability to terminate jurisdiction at this time. The Court does
however find that the evidence shown at trial is that each party has the
ability to meet their needs at this time. (See In re Marriage of Morrison
(1978) 20 Cal.3d 437, 453.) This is based on the distribution of the pension
funds and both parties retiring. If this Court viewed itself as having the
authority to terminate spousal support jurisdiction at this time, it would.
The Court is making a finding under . . . section 4322 that [Candy] has
sufficient separate estate for her own proper support. The Court is therefore
setting spousal support at $0. [Candy] would need to show significant
changed circumstances in the future for any spousal support to be awarded.”
Terence contends that the trial court erred in failing to terminate
jurisdiction over spousal support. Terence argues, “Section 4336 clearly and
unambiguously authorizes courts to terminate jurisdiction over spousal
support in cases of long-term marriages.” He also contends that “[t]he facts
in this case support and favor termination of jurisdiction over spousal
support.”
We agree with Terence that there is no statutory provision that
prevents a trial court from expressly terminating continuing jurisdiction over
spousal support if it determines that such an order is warranted. Section
4336, subdivision (a) states, “Except on written agreement of the parties to
the contrary or a court order terminating spousal support, the court retains
jurisdiction indefinitely in a proceeding for dissolution of marriage or for legal
separation of the parties where the marriage is of long duration.” This
statute “is clear and unambiguous in providing two mechanisms for divesting
the court of its jurisdiction over spousal support issues in cases of long-term
45
marriages. The parties may agree to such termination, or the court may
order it. In either case, only specific language of termination will divest the
court of its fundamental jurisdiction.” (In re Marriage of Ostrander (1997) 53
Cal.App.4th 63, 65-66.) Thus, the trial court was mistaken in stating that it
did not have “the authority” to terminate jurisdiction over spousal support.
On remand, the trial court shall decide whether to exercise its discretion to
make an express order terminating jurisdiction over spousal support. We
express no opinion on how the court should exercise its discretion.
Terence also takes issue with one of the findings made by the trial
court during its analysis of the factors used to decide whether to order
spousal support. Specifically, the trial court stated that Terence “has some
ability to pay spousal support.” Terence contends that the evidence does not
support that finding. We do not reach Terence’s challenge because it does not
present a justiciable controversy. (Wilson & Wilson v. City Council of
Redwood City (2011) 191 Cal.App.4th 1559, 1573 [describing justiciability
requirements for appeal].) Currently, there is no spousal support order in
place because the trial court ruled in favor of Terence, finding that no spousal
support order was warranted. If the trial court decides to retain jurisdiction
over spousal support and then makes a future order requiring Terence to pay
support, any such order will necessarily be based on findings on that future
date about Terence’s financial situation at that time, not on the trial court’s
finding in 2020. Terence may bring a future challenge regarding such a
finding if it becomes necessary to do so.
Z. Terence’s Challenge to the Award of Sanctions Against Him
The trial court imposed sanctions on Terence pursuant to section 271 in
the amount of $37,500.
46
Section 271, subdivision (a) gives a trial court the authority to “base an
award of attorney’s fees and costs on the extent to which the conduct of each
party or attorney furthers or frustrates the policy of the law to promote
settlement of litigation and, where possible, to reduce the cost of litigation by
encouraging cooperation between the parties and attorneys.” (§ 271, subd.
(a).) “The purpose of section 271 is ‘ “to promote settlement and to encourage
cooperation which will reduce the cost of litigation.” [Citation.]’ . . . ‘Family
law litigants who flout that policy by engaging in conduct that increases
litigation costs are subject to the imposition of attorneys’ fees and costs as a
sanction.’ ” (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1176, citation
and footnote omitted.)
“ ‘The imposition of sanctions under section 271 is committed to the
sound discretion of the trial court. The trial court’s order will be upheld on
appeal unless the reviewing court, “considering all of the evidence viewed
most favorably in its support and indulging all reasonable inferences in its
favor, no judge could reasonably make the order.” ’ ” (Sagonowsky v. Kekoa
(2016) 6 Cal.App.5th 1142, 1152 (Sagonowsky).) “ ‘We will not interfere with
the order for sanctions unless the trial court abused its broad discretion in
making it.’ ” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,
828.)
The trial court devoted several pages of the Statement of Decision to
explaining the instances of Terence’s conduct during the course of the
litigation that formed the basis for the sanctions award. The trial court
specifically reviewed Terence’s conduct with respect to (1) filing numerous
requests for orders and ex parte requests; (2) filing requests for
reconsideration or to set aside prior orders, which often failed to allege why
Terence could not have earlier raised the issue; (3) failing to participate with
47
the discovery referee and delaying in participating with a forensic expert;
(4) filing two ex parte requests within a week of the same ex parte request
being denied; (5) resolving $51,105 of debt without first notifying Candy and
taking unilateral action to cancel automobile insurance, which the trial court
viewed as violating the temporary restraining orders imposed under section
2040 related to insurance and extraordinary expenditures; (6) failing to share
his pension with Candy for two years, resulting in litigation of the issue; and
(7) engaging in “multiple behaviors that drastically lengthened the trial,”
including lengthy pauses during his testimony, repeatedly attempting to
reargue rulings he did not like, and presenting cumulative testimony. The
trial court’s conclusion was that “[o]verall, the Court finds that [Terence]
engaged in more behavior than [Candy] that frustrated ‘the policy of the law
to promote settlement of litigation and, where possible, to reduce the cost of
litigation by encouraging cooperation between the parties and attorneys.’ ”
However, the court noted that in setting the amount of sanctions, “the Court
took into consideration the cost of [Candy’s] behavior to [Terence] and the
delays caused by her conduct.”
Terence takes issue with the trial court’s characterization of his
conduct as warranting sanctions. Among other things, he argues that
(1) many of his requests for orders or motions for reconsideration were legally
justified; (2) Candy engaged in more time-consuming and unnecessary motion
practice than he did; (3) he was justified in refusing to participate with the
discovery referee; (4) the trial court misunderstood the nature of his repeated
ex parte applications; (5) his cancellation of the community debt did not
technically violate the temporary restraining order against unilateral acts
under section 2040 because cancelling debt is not an “expenditure”; (6) for
several reasons, his failure to share his pension with Candy for two years did
48
not warrant sanctions; and (7) his behavior that lengthened the trial was
understandable because he was self-represented.
We understand Terence’s arguments, but we conclude that they do not
present a basis for reversal of the trial court’s sanctions order. It is not our
role as an appellate court to determine, in the first instance, whether
sanctions are warranted. Further, an appellate challenge to a sanctions
order is the wrong forum in which to relitigate the merits of motions,
arguments, and filings that Terence presented in the trial court. “ ‘ “The
appropriate test for abuse of discretion is whether the trial court exceeded the
bounds of reason. When two or more inferences can reasonably be deduced
from the facts, the reviewing court has no authority to substitute its decision
for that of the trial court.” ’ ” (In re Marriage of Rosevear (1998) 65
Cal.App.4th 673, 682.) The trial court was in the best position to evaluate
whether, taken as a whole, Terence’s conduct frustrated the policy of
promoting settlement and unnecessarily increased the cost of litigation.
Here, the trial court provided an extensive and informed discussion, in which
it set forth the basis for its conclusion that Terence had engaged in conduct
that warranted the imposition of sanctions. Although Terence disagrees with
the trial court’s characterization of his conduct, he has not established that
“ ‘ “no judge could reasonably make the order.” ’ ” (Sagonowsky, supra, 6
Cal.App.5th at p. 1152.)
In challenging the sanctions order, Terence also takes issue with the
trial court’s statement that “[t]he fees claimed by [Candy] ($73,000) seem
realistically tied to the complexity and length of this case.” As we understand
Terence’s argument, he contends that at least some of the attorney fees
incurred by Candy should not have been included in the sanctions award.
The argument fails because, under section 271, a trial court is not limited in
49
the type of attorney fees incurred by the other party that it can award as
sanctions. (See In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1226
[“a sanctions award under section 271 need not ‘be limited to the cost to the
other side resulting from the bad conduct’ ” and “does not require a
correlation between the sanctioned conduct and specific attorney fees”].)
Further, Terence’s argument fails because the trial court awarded Candy far
less than the full amount of the $73,000 in attorney fees that the trial court
found she incurred. Thus, even were we to agree with Terence that some of
the attorney fees were unnecessary and should not have been awarded under
section 271, the trial court’s award of $37,500 is consistent with that position.
Finally, Terence argues that the sanctions order should be reversed
because it places an unreasonable financial burden on him. (See § 271, subd.
(a) [“The court shall not impose a sanction pursuant to this section that
imposes an unreasonable financial burden on the party against whom the
sanction is imposed”].) The argument lacks merit. The trial court ensured
that its sanctions order would not place an unreasonable financial burden on
Terence by ordering that Terence may pay the sanctions in monthly
increments of $250. Although Terence argues that he has “other considerable
debts” that he is also obligated to pay, he has not shown that it would pose an
unreasonable financial burden for him to make payments on the sanctions
award in the amount of $250 per month while still making payments toward
his other debts.
AA. Terence’s Challenge to the Ruling on His Request for Sanctions
Pursuant to Section 271
The trial court also considered Terence’s request that Candy be ordered
to pay him $12,000 in attorney fees as sanctions pursuant to section 271. The
trial court declined to do so, but it explained that it had reduced by $7,500
the amount that it would have otherwise awarded to Candy as sanctions
50
under section 271 because of Candy’s conduct during the litigation that
frustrated the policy of settlement. Terence challenges the trial court’s ruling
on several grounds.
First, Terence contends that the trial court erred in arriving at $7,500
as the amount by which it would reduce the sanctions award against him. He
contends the amount should have been higher if the trial court properly
considered all of Candy’s conduct during the litigation that Terence views as
frustrating the policy of settlement and unnecessarily increasing the cost of
litigation. Terence devotes three pages of his appellate brief to listing the
various events during the litigation that he contends the trial court should
have considered.
We reject the argument. The trial court made clear in the Statement of
Decision that it had thoroughly considered the litigation conduct of both
parties. Having done so, the trial court identified instances of Candy’s
conduct that it believed violated the policies underlying section 271. These
included Candy’s aggressive trial strategy, which caused trial delays, her
focus on issues related to infidelity despite the trial court’s repeated
admonitions that California is a no-fault state, and her conduct regarding her
final declaration of disclosure. Without any specific evidence to the contrary,
we presume that the trial court considered the additional instances of
conduct that Terence identifies as sanctionable but that it disagreed with
Terence’s characterization of that conduct. Based on the broad discretion
afforded to the trial court in determining whether to award sanctions under
section 271, we cannot conclude that “ ‘ “no judge could reasonably make the
order.” ’ ” (Sagonowsky, supra, 6 Cal.App.5th at p. 1152.)
Second, Terence requested sanctions in the amount of $12,000 for the
attorney fees incurred by his attorney Denny Kershek, but the trial court
51
concluded that Terence had not established the reasonableness of those fees.
The trial court explained, “Based on the record before it, this Court does not
find $12,000 in fees a reasonable amount for the work the Court has evidence
of Mr. Kershek performing. Mr. Kershek substituted in October 1, 2014. He
substituted out March 24, 2016. On October 8, 2014, Mr. Kershek filed a
notice of lodgment for 3 documents, these totaled 13 pages: an unredacted
version of [Terence’s] declaration (5 pages), a letter sent to [Candy] 9/30/14 (4
pages), and a proposed DRO (4 pages). These are the only documents Mr.
Kershek filed with the court other than substitutions of counsel. The DRO
was prepared by attorney Corey Schechter not Mr. Kershek. Mr. Schechter’s
fees appear reasonable for the work performed. Mr. Kershek appeared at
eight hearings. These hearings were either Family Resolution Conferences or
Request for Order hearings on the same request, continued multiple times. It
is definitely possible that work was conducted that would justify $12,000, but
such work is not demonstrated in the record before the Court.” Terence does
not attempt to show that, during trial, he presented evidence justifying Mr.
Kershek’s fees. Therefore, we conclude that Terence has not met his burden
to show that the trial court erred in ruling that Terence had not established
the reasonableness of Mr. Kershek’s fees.
Finally, Terence contends that because he was self-represented for
most of the litigation, the trial court should have awarded him the costs he
incurred during the litigation, including his travel expenses, just as it would
have awarded those costs if incurred by an attorney. The trial court rejected
that argument on several grounds. First, it explained that Terence cited
inapposite case law that did not arise under section 271, and that an award of
sanctions under section 271 must be tied to attorney fees and costs. Next, the
trial court explained that it would not award travel costs under section 271,
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even if they were incurred by an attorney. The trial court’s decision is
consistent with the relevant case law. (In re Marriage of Erndt and
Terhorst (2021) 59 Cal.App.5th 898, 904 [a self-represented attorney litigant
may not recover attorney fees in the nature of sanctions under section 271
because sanctions must be tethered to attorney fees and costs]; Menezes v.
McDaniel (2019) 44 Cal.App.5th 340, 351 [a party’s travel costs are not
attorney fees or costs that may be awarded as sanctions under section 271].)
Just as important, however, the trial court explained that even if Terence’s
costs as a self-represented litigant could form the basis for a sanctions order
under section 271, it had concluded based on the parties’ conduct during the
course of the litigation that an award of sanctions in Terence’s favor was not
warranted. The trial court was within its discretion to deny such an award
based on its evaluation of the parties’ conduct, regardless of whether
Terence’s costs as a self-represented litigant might be awarded in different
circumstances.
AB. Terence’s Challenge to the Trial Court’s Ruling Regarding the Parties’
Unsecured Community Debt
The Statement of Decision addressed the parties’ unsecured debt from
their credit cards as follows: “The Court finds [Terence] credible in alleging
$78,575.48 in unsecured debt obtained during the marriage on the Discover,
American Express Costco and American Express Optima cards. The parties
will split those debts equally. [Terence] requests the Court order that if one
party takes action to restart the statute of limitations on those debts, that
party shall be solely liable for the debt. He cites no authority for this request
and provides no explanation of how this would be an equal division of the
debt, which as the Court noted above—in his favor—is a requirement under
California law. The Court maintains jurisdiction related to the enforcement
of the division of the debts and reimbursements for those debts.”
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Terence challenges this ruling, contending that it is “unsupported by
the facts and erroneous.” Although Terence’s argument is unclear, we
understand him to be contending that, instead of equally dividing the debt,
the trial court should have ruled that any party who takes action to restart
the statute of limitations on any of the debt should be responsible for the
entire amount of that debt.
We need not reach this issue as it is not ripe for adjudication. The trial
court reserved jurisdiction “related to the enforcement of the division of the
debts and reimbursements for those debts.” Therefore, if an issue arises in
the future due to any action by Candy that restarts the statute of limitations
on any of the parties’ debt, Terence may assert in the trial court any
argument he has for reimbursement.
AC. Terence’s Contention That the Trial Court’s Order Regarding the Aljoa
Trailer Was Unclear
The Statement of Decision contains a ruling on how the parties’ Aljoa
trailer was to be handled. “The Court orders the Aljoa trailer to be sold.
[Terence] is to convey the trailer to [Candy] within 3 weeks of the judgment
becoming final. [Candy] has one year from that date to sell the trailer. The
proceeds from the sale are to be equally divided between the parties. The
Court retains jurisdiction over enforcement of judgment in regards to the
trailer, including failure to convey or sell the trailer in the time frames.”
Terence contends that the trial court’s order was unclear as to whether
in stating that Terence was to “convey” the trailer to Candy, the trial court
meant that Terence was responsible for the cost of physically moving the
trailer to Candy’s location. In context, we understand the court to have
ordered that Terence was to convey title of the trailer to Candy so that she
could then undertake efforts to sell it, not that he was to pay to physically
move it. That interpretation is consistent with the trial court’s use of the
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word “conveying” in the Statement of Decision in referring to the El Cajon
and Campo houses.
We note, moreover, that the trial court reserved jurisdiction over the
issue of the trailer. Therefore, if either party determines that the Statement
of Decision leaves open any outstanding issue with respect to the trailer, the
parties may apply to the trial court for relief.20
AD. Terence’s Contention That He Did Not Receive a Meaningful Hearing on
His Postjudgment Motions
After the trial court entered judgment, Terence filed a motion for a new
trial (Code Civ. Proc., § 657) and a motion to set aside and vacate the
judgment (Code Civ. Proc., § 663). Terence contends that the trial court
“failed to give proper consideration to such motions, including failing to afford
Terence a meaningful hearing regarding them.” He specifically takes issue
with (1) the trial court’s statement at the hearing on the motions that it
would give Terence “a brief time” to argue; (2) the fact that the trial court did
not let Terence interrupt while it was delivering its ruling on the motions;
and (3) the trial court’s reference to the Statement of Decision in explaining
its basis for denying relief on several of the issues presented in the
postjudgment motions.
Terence has not established any deficiency in the hearing on the
postjudgment motions. The reporter’s transcript of the hearing on the
posttrial motions shows that Terence was given a reasonable amount of time
to argue. Terence himself chose to present a very limited argument, in which
he (1) relied on his motion papers for one of the motions, stating that he did
20 As the issue may arise on remand, we note that in his appellate
briefing, Terence has taken the position that if Candy pays to physically
move the trailer, she may later “deduct such costs from the proceeds of the
sale,” just as she would deduct other costs of restoring the trailer.
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not want to waste the court’s time; and (2) raised only a single issue
regarding the other motion, stating that he had nothing additional when the
trial inquired whether he had any further comments. Moreover, despite the
trial court’s reference to the Statement of Decision during its ruling on
several of the issues presented, the trial court clearly considered the merits of
the postjudgment motions and whether they met the standard for
postjudgment relief.
AE. Terence’s Challenge to the Order Requiring Him to Pay Waived Court
Fees
In 2017, the trial court issued an order waiving Terence’s payment of
his court fees and costs.
Government Code section 68637, subdivision (e) provides, “If a
judgment is entered in a family law case, the trial court shall consider, based
on the information in the court file, whether a party’s circumstances have
changed so that it is reasonable to require a party who received an initial fee
waiver to pay all or part of the fees that were initially waived. In making
this determination, the court shall use the criteria for eligibility set forth in
[Government Code] [s]ection 68632.” (Gov. Code, § 68637, subd. (e).)
On August 11, 2020, after judgment was entered, the trial court issued
an order requiring Terence to pay $3,588 in previously waived costs and fees.
The order stated that Terence was to make payment in the amount of $75 per
month starting on December 1, 2020. Terence moved to set aside the order.
In September 2020, the trial court denied Terence’s motion to set aside the
order, but it extended until August 2021 the commencement date for the
monthly payment of $75. In denying the motion, the trial court explained
that since the fee waiver was issued, Terence had paid off his car and his
mortgage and had begun to receive additional income from Candy’s pension,
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which the trial court calculated was “about $2,000 a month net positive.”
Moreover, Terence had at least $300,000 in assets.
Terence contends that the trial court erred in determining that his
circumstances had changed. Terence makes a vague argument that he
should not have been ordered to pay the waived fees because his “income
barely exceeded his expenses.” We reject Terence’s argument for several
reasons. First, Terence does not provide any citation to the record to support
his contention about his financial condition. Next, Terence does not attempt
to address the reasons that the trial court gave in September 2020 for
denying his motion to set aside the order, and thus he does not show that the
trial court erred. Finally, even though Government Code section 68637,
subdivision (e) states that the court shall use the “criteria for eligibility set
forth in [Government Code] [s]ection 68632” when deciding whether a party’s
circumstances have changed so that it is reasonable to require them to pay
waived fees, Terence makes no attempt to identify those criteria or to show
how the criteria apply to his situation. In sum, Terence’s argument fails
because he has not adequately developed it and he has not provided the
necessary citations to the record and to legal authority. (United
Grand, supra, 36 Cal.App.5th at p. 153.)
DISPOSITION
This matter is remanded to the trial court for the following proceedings:
First, with respect to the equalization payment that Candy would have owed
to Terence prior to the imposition of section 271 sanctions, the trial court
shall resolve an inconsistency between (a) the mathematical sum of the
specific individual monetary amounts identified throughout the Statement of
Decision as credits to either party, and (b) the total amount of $19,016.30
identified as the equalization payment that Candy would have otherwise
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owed to Terence. In so doing, the trial court shall (1) confirm that it has
included a credit of $31,636.40 reflecting Terence’s payment of community
debt; (2) correct any errors that it discovers with respect to the figures set
forth in the Statement of Decision; and (3) amend the judgment accordingly.
Second, the trial court shall rule on Terence’s request for reimbursement of
the auto insurance premiums he paid for Candy. Third, the trial court shall
decide whether to exercise its discretion to make an express order
terminating jurisdiction over spousal support.
In all other respects, the judgment and the trial court’s postjudgment
orders are affirmed. To the extent Terence has incurred costs on appeal that
are not covered by the fee waiver ordered November 20, 2020, he shall bear
those costs himself.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
DATO, J.
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