Marriage of Duvigneaud CA2/4 ( 2016 )

Filed 8/15/16 Marriage of Duvigneaud CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re the Marriage of TERESA and
KIRBY DUVIGNEAUD.
B258016
TERESA DUVIGNEAUD, (Los Angeles County
Super. Ct. No. BD515779)
Respondent.
v.
KIRBY DUVIGNEAUD,
Appellant.
APPEAL from an order of the Superior Court of Los Angeles County.
Armen Tamzarian, Judge. Affirmed.
Kirby Duvigneaud, in pro. per., for Appellant.
No appearance for Respondent.
The proceedings below dissolved the marriage of appellant Kirby
Duvigneaud and respondent Teresa Duvigneaud. Appellant, who represented
himself below and continues to do so on appeal, contends the trial court erred in
denying his motion seeking credit for funds obtained from the sale of his separate
property in the division of the community estate, and that the court denied him due
process by cutting off his telephonic appearance before the hearing on his motion
concluded. We find no error or denial of due process. Accordingly, we affirm the
court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and respondent were married in October 1991. Appellant was in
prison when the couple married, and remains there.1 Shortly before the couple
married, appellant inherited a family home in Los Angeles. In 1996, the house was
sold.2
Respondent filed for dissolution of the marriage in 2009. In 2010, judgment
was entered. Appellant moved to set aside the judgment, and in May 2014, filed a
motion to modify the judgment to give him credit for his separate property.
To support his entitlement to reimbursement, appellant submitted an
agreement, signed by respondent, in which she stated she would deposit all of the
money from the sale of the house, after deducting closing costs and purchasing an
automobile, into a bank account or trust fund for his benefit. Appellant presented
evidence that only approximately $3,600 had been deposited into his prison
1
Appellant is serving a term of life imprisonment with the possibility of parole.
2
Appellant stated the house sold for $147,000. Respondent asserted in a
declaration that the proceeds of the sale were $92,800. We reconcile these figures by
presuming the $92,800 represented the amount remaining after deduction of commissions
and other sales costs, and repaying a loan taken out against the property to effect repairs.
2
account over the years. Appellant also presented evidence that respondent lived in
the house prior to its sale in 1996, although she had represented to the court that
she had not. Appellant estimated that after deduction of loans taken out to repair
the house, the cost of an automobile, and the amount put in his prison account, he
was entitled to a credit or reimbursement of $70,508.
In her opposition, respondent presented evidence that when appellant
inherited the house, it was in disrepair. In addition, the property taxes were
delinquent. There were tenants, but they moved out at the end of 1991, leaving the
house filthy and unlivable. The property was listed for sale “[a]s [i]s,” but
received no offers. Thereafter, respondent expended substantial amounts to bring
the property taxes up to date, to repair the premises, and for utilities and regular
maintenance.3 According to respondent, the funds to pay for upkeep and repairs
came from (1) monies borrowed from respondent’s grandmother; (2) a loan
obtained on the property; (3) separate funds respondent brought to the marriage;
and (4) respondent’s employment.
After the house was sold and the sales costs and home loan repaid,
respondent paid $20,500 to her grandmother for loans the grandmother had
provided. In addition, respondent purchased a car for $27,816. After discussions
with appellant, she used approximately $8,000 of the sales proceeds to lease an
apartment in Culver City in order to demonstrate that appellant, who was being
considered for parole that year, had a stable residence waiting for him. After
appellant’s parole was denied, respondent continued to live in the apartment,
paying rent of $1,100 per month. From 1997 to 1999, respondent was
3
Respondent presented evidence of having spent over $29,000 for home
improvements between 1992 and 1996 (when the house sold), including stucco, paint,
carpet, plumbing and a new roof. She also presented evidence of having spent over
$35,600 during that same period for property taxes, insurance, utilities, gardening and
monthly payments on the loan taken out for repairs.
3
unemployed, as she had quit her job so she could visit appellant on weekends and
focus on a business she had started.4 When visiting appellant, she stayed overnight
at a motel near the prison.5 In addition, during the marriage, she paid over $1,500
for collect calls from appellant and spent approximately $16,000 to send him
packages in prison. Appellant was denied parole again in 2000. By that time,
according to respondent, the funds from the sale of the house were depleted.
At the June 2015 hearing on appellant’s motion, respondent stated that she
not only spent all the money from the sale of the house, but also put herself into
debt, maintaining the house until it could be sold and paying for her living
expenses and the additional expenses related to appellant’s imprisonment. She
stated that she warned appellant they were going to be broke, and that he told her
to go ahead and spend the money. Appellant, who appeared telephonically,
expressed his understanding and agreement that the money respondent had
borrowed for repairs was to be repaid from proceeds of the sale of the house. He
denied agreeing to let respondent use the funds for personal or living expenses.
When the court attempted to halt appellant’s narrative, appellant refused to stop
talking.6 After several warnings that his actions would lead to revocation of his
telephonic privileges, the court disconnected the call.
4
Respondent stated she had started the business in order to show the parole board
that appellant had a job waiting for him if released. The business never made money and
was eventually closed. In 1999, respondent got a job with a department store.
5
During this period, appellant was housed in Tehachapi. Respondent estimated she
spent $2,270 for motel expenses (43 nights at $52.97 per night), $1,290 for gasoline, and
$1,720 for food and drink.
6
Referring to prior proceedings, the court stated at the beginning of the hearing:
“Let me just say preliminarily, last time we had a bit of a problem with our hearing. So if
I say to you, sir, that you need to stop talking, you need to stop talking immediately. [¶]
If that doesn’t occur, we will disconnect the phone call, and you will no longer participate
in the hearing; is that perfectly clear?” Appellant responded “Yes.”
4
In ruling on the motion, the court stated that it found respondent’s testimony
credible. It found that the parties had agreed that respondent could spend
appellant’s separate funds for expenses to maintain and repair the house and for
certain community expenses. Accordingly, it denied appellant’s request to modify
the judgment to give him credit for his separate property. This appeal followed.
DISCUSSION
A. Conduct of Hearing
Appellant contends the trial court denied him due process when it cut off his
telephonic appearance at the hearing after he interrupted the court and refused to
stop talking.7 We find no due process violation.
California Rules of Court, rule 3.670, permitting parties to appear at civil
hearings telephonically, is not applicable to family law cases. (See Cal. Rules of
Court, rule 3.670(b); Advisory Committee Comments to Cal. Rules of Court, rule
3.670.) Nonetheless, an indigent prisoner has a federal and state constitutional
right to meaningful access to the courts to participate in a civil proceeding, which
may require the court to permit telephonic appearances at hearings in order to
ensure such access. (Yarbrough v. Superior Court (1985) 39 Cal. 3d 197, 203-207;
Jameson v. Desta (2009) 179 Cal. App. 4th 672, 678; Apollo v. Gyaami (2008) 167
Cal. App. 4th 1468, 1482; Wantuch v. Davis (1995) 32 Cal. App. 4th 786, 792.) “A
trial court is to exercise its ‘sound discretion’ in determining the appropriate
7
No respondent’s brief was filed. Appellant filed a motion contending respondent
was in default and that he was entitled to the relief requested in his brief. The rule we
follow when no respondent’s brief is filed “is to examine the record on the basis of
appellant’s brief and to reverse only if prejudicial error is found. [Citations.]” (Votaw
Precision Tool Co. v. Air Canada (1976) 60 Cal. App. 3d 52, 55; accord, Carboni v.
Arrospide (1991) 2 Cal. App. 4th 76, 80, fn. 2.) Accordingly, we deny appellant’s motion.
5
method by which to ensure meaningful access to the court. [Citation.] ‘The
exercise of the trial court’s discretion will not be overturned on appeal ‘unless it
appears that there has been a miscarriage of justice.’ [Citation.]’” (Jameson v.
Desta, supra, 179 Cal.App.4th at p. 678, quoting Wantuch v. Davis, supra, 32
Cal.App.4th at p. 794.)
Here, the court permitted appellant to appear telephonically as long as he
adhered to acceptable rules of conduct. Appellant did not abide by the agreed rules
and lost the telephonic privileges granted him by the court for a portion of the
hearing. Appellant had time to argue and state his position prior to being
disconnected, and the court took action only after appellant repeatedly ignored its
orders. We cannot say the court abused its discretion by choosing to withdraw
appellant’s telephonic privileges at that point.
Moreover, we find no prejudice. The court was familiar with the parties and
the issues. Their positions were clear from the evidence and declarations filed with
appellant’s moving papers and respondent’s opposition. Neither party presented
any new matters of significance at the hearing. Appellant was permitted to speak
for some time after respondent presented her position and prior to being
disconnected for failing to abide by the court’s directives. Once the court had
heard from both sides, it decided the motion on the merits. Notably, appellant’s
brief fails to identify any additional evidence or argument he would have proffered
had he been permitted to continue. Under these circumstances, we would find any
error on the part of the court harmless.
B. Appellant’s Right to Credit or Reimbursement
Appellant represents himself in this appeal. A litigant appearing in propria
persona is “held to the same restrictive rules of procedure as an attorney” and is
“entitled to the same, but no greater, consideration than other litigants and
6
attorneys [citations].” (Nelson v. Gaunt (1981) 125 Cal. App. 3d 623, 638-639;
accord, County of Orange v. Smith (2005) 132 Cal. App. 4th 1434, 1444.) On
appeal, a trial court’s order is presumed correct, and it is up to the appellant to
demonstrate error based on the record. (In re Marriage of Falcone & Fyke (2008)
164 Cal. App. 4th 814, 822.) The appellant must “present[] legal authority on each
point made and factual analysis, supported by appropriate citations to the material
facts in the record . . . .” (Keyes v. Bowen (2010) 189 Cal. App. 4th 647, 655.) “It is
the appellant’s responsibility to support claims of error with citation and authority;
this court is not obligated to perform that function on the appellant’s behalf.
[Citation.]” (Id. at p. 656.)
In his brief on appeal, appellant’s sole substantive contentions are that
respondent lied about certain matters and that the court “violate[d] fundamental
fairness” by allowing her to obtain an “unfair financial gain” based on “‘false
evidence’” and “‘perjured testimony.’” Specifically, he claims that at an earlier
point in the litigation, respondent falsely claimed that she never lived in the house,
and that the money from its sale “was put on [appellant’s] books at different
intervals . . . .” Appellant misperceives the role of the appellate court. We do not
make independent credibility determinations, but are bound by the credibility
determinations of the trial court. (See, e.g., People v. Lee (2011) 51 Cal. 4th 620,
632 [“‘Conflicts and even testimony which is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial judge
or jury to determine the credibility of a witness and the truth or falsity of the facts
upon which a determination depends. [Citation.] We resolve neither credibility
issues nor evidentiary conflicts.’”]; In re Marriage of Duffy (2001) 91 Cal. App. 4th
923, 931 [“This court views the entire record in the light most favorable to the
prevailing party . . . . We must resolve all conflicts in the evidence and draw all
reasonable inferences in favor of the findings”].)
7
Moreover, it is clear that the matters about which appellant claims
respondent lied had no impact on the trial court’s determination. Prior to the
hearing, respondent presented detailed evidence establishing where the funds from
the sale of the house went. The evidence established that although only
approximately $3,600 of the sales proceeds were deposited directly into appellant’s
prison account, the bulk of the funds -- nearly $65,000 -- went to reimburse lenders
or the community for the costs of repairing and maintaining the property prior to
the sale. Another $27,816 was spent on a car, an expense appellant approved as set
forth in his moving papers. Other significant amounts -- approximately $17,500 in
total -- were spent on expenses personal to appellant -- sending him packages of
food and goods in prison and paying for his collect calls from prison. Finally,
respondent established that she rented the apartment in Culver City with
appellant’s agreement at a cost of thousands of dollars in order to establish that he
had stable housing at a time when he was being considered for parole. Any
remaining funds were spent on respondent’s continued rent on the apartment in
Culver City and the expenses of traveling to visit appellant on weekends. The
court thus had all the information necessary to determine whether appellant was
entitled to a credit or reimbursement for use of his personal property for
community expenses or respondent’s personal living expenses.
Appellant’s contention that respondent lived in the house prior to its sale
was not germane to any issue before the court. A spouse’s entitlement to
reimbursement for the use of separate property funds for community expenses or
respondent’s personal living expenses is governed by Family Code section 914 or
Family Code section 2640. Under section 914, subdivision (a) of the Family Code,
a married person is responsible for debts incurred for the common necessaries of
life of the person’s spouse, whether they are living together or separately, subject
to a claim for reimbursement under the following circumstances: “If separate
8
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, the married person is entitled to reimbursement to the
extent such property was available.” (Fam. Code, § 914, subd. (b).) Under section
2640, subdivision (b) of the Family Code, unless there is a written agreement
specifying otherwise, at the time of the division of the community estate, each
party “shall be reimbursed for [that] party’s contributions to the acquisition of
property of the community property estate to the extent the party traces the
contribution to a separate property source.”
Family Code section 914, subdivision (b) does not apply. Appellant does
not contend, and our review of the record does not establish, that at the time
respondent was apparently using funds derived from the sale of appellant’s
separate property to pay her living expenses, there was “nonexempt property in the
community estate or separate property of [respondent] [] available but [] not
applied . . . .” Respondent stated in her declaration that she used up her separate
funds from before the marriage and the salary from her employment to repair and
maintain the house prior to the sale, and that from 1997 to 1999, she was
unemployed.8 Nor does appellant contend that he presented evidence sufficient to
enable the court to trace funds from the sale of his separate property to any
community property held at the time of the dissolution for purposes of establishing
a right to reimbursement under Family Code section 2640, subdivision (b). (See In
re Marriage of Cooper (2016) 247 Cal. App. 4th 983, 997 [“The question of
whether a spouse ‘has adequately traced an asset to a separate property source is a
question of fact for the trial court, and its finding must be upheld if supported by
8
The documentary evidence provided by respondent established that repairs and
maintenance costs totaled nearly $65,000, but the loans taken out to effect repairs totaled
only approximately $42,000.
9
substantial evidence’”]; In re Marriage of Feldner (1995) 40 Cal. App. 4th 617, 625
[“[Family Code] section . . . requires the paying spouse to trace contribution to a
separate property source. If the paying spouse simply sits back and does nothing,
there will be no reimbursement”].) Accordingly, appellant failed in his burden to
demonstrate error in the trial court’s determination that he was entitled to no credit
or reimbursement.
DISPOSITION
The order is affirmed. As respondent made no appearance, no costs are
awarded.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
EPSTEIN, P. J.
COLLINS, J.
10