Opinion
B293640
02-06-2020
In re the Marriage of MICHAEL CARTER and ELIZABETH CROSS. MICHAEL CARTER, Appellant, v. ELIZABETH CROSS, Respondent.
Stolar & Associates and Steven R. Stolar for Appellant. Holstrom, Block & Parke and Matthew Ray Bogosian for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BD508597) APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce Iwasaki, Judge. Reversed with instructions. Stolar & Associates and Steven R. Stolar for Appellant. Holstrom, Block & Parke and Matthew Ray Bogosian for Respondent.
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Michael Carter appeals from a judgment on reserved issues in dissolution proceedings against his former wife, respondent Elizabeth Cross, to the extent the judgment orders that he pay spousal support arrears. On appeal, the parties do not dispute that (1) there is a valid and enforceable prenuptial agreement between them, (2) the agreement is governed by Colorado law, (3) the agreement requires Carter to pay Cross spousal support of $5,000 per month (adjusted for inflation) beginning from the date Carter filed a petition for legal separation, (4) during some portion of the parties' period of separation, Carter made monthly deposits of $5,000 or more into one of the parties' joint bank accounts, (5) Cross used at least some of these funds to support herself during that time, and (6) during this same period, Carter also paid at least some of Cross's credit card bills and permitted her to live in his separate property ranch without charging her rent. Carter represents that his monthly deposits into the parties' joint account continued over a period of approximately eight years, and totaled $646,531, a figure supported by bank statements offered at trial. The trial court did not question the sufficiency or credibility of this evidence, but made no express factual findings as to the amount of Carter's deposits, finding instead that such deposits could not fulfill Carter's spousal support obligation as a matter of law. Specifically, the court concluded that, because the agreement defined the account into which Carter made the deposits as marital property subject to equal division between the parties upon dissolution, Carter's deposits could not constitute support payments to Cross alone. The court further characterized these deposits as "gifts."
At the request of this court pursuant to California Rules of Court, rule 8.224(d), Carter lodged trial exhibits 35, 39, 40, 41, 44, 45, 46, 47, 48, and 50. (See Cal. Rules of Court, rule 8.224(d) ["At any time the reviewing court may direct the superior court or a party to send it an exhibit."].)
Carter challenges the trial court's legal characterization of these deposits and its resulting refusal to treat them as fulfilling Carter's spousal support obligation during the approximately eight-year period in question.
Given the uncontradicted evidence that Carter did not intend the deposits as gifts, we disagree with the trial court's characterization of them as such. Further, although we agree with the trial court that the joint account into which Carter made the deposits constitutes marital property under the parties' prenuptial agreement, we conclude that the deposits nevertheless reflect Carter's substantial compliance with his spousal support obligations. The funds Carter made available to Cross—regardless of how he made them available to her, and whether that format of transmission was as envisioned by the agreement—were in the amount Cross "could reasonably have expected from the contract." (R. F. Carle Co. v. Biological Sciences, etc. (Colo.App. 1980) 616 P.2d 989, 992 (R. F. Carle).) Our conclusion that Carter substantially complied is further supported by the fact that Cross has never contended—either at the time Carter was making the deposits, at trial, or on appeal—that she was unable to access the full amount deposited for any reason, and that during the period of separation, Cross never indicated the deposits did not satisfy Carter's spousal support obligations, nor did she request Carter pay spousal support. Rather, she used at least some of the funds without complaint.
Cross argues that the trial court made no express finding as to the fact or amount of Carter's claimed deposits, and she further questions the sufficiency of the evidence to support such a finding. We disagree and conclude that the evidence in the record—the authenticity and accuracy of which Cross has never questioned—supports that Carter made these deposits in the amount he claims.
But Carter's substantial compliance with his spousal support obligations does not mean he is not obligated to pay Cross some amount. (See D.R. Horton v. Bischof & Coffman (Colo.App. 2009) 217 P.3d 1262, 1272 (D.R. Horton) ["substantial performance does not act as a complete bar to recovery"].) The record before us does not reflect what portion of the funds that Carter deposited Cross actually withdrew or otherwise used for her benefit. Given that any portion of these deposits Cross did not spend was subject to equal division between the parties upon dissolution, any such unspent amount cannot fairly be counted towards satisfying Carter's spousal support obligation, even if, by making the deposits, Carter substantially complied with his obligations.
Accordingly, we reverse the trial court's decision to the extent it awards Cross a specific amount of spousal support arrears. Upon remand, the trial court shall review Cross's withdrawals from the joint account in question to determine the amount that may be appropriately treated as spousal support.
In all other respects, we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
A. The Prenuptial Agreement
Carter and Cross married in 2004 in Colorado. The day before they married, the parties executed a prenuptial agreement (the PNA), which the court below has since adjudicated as valid and enforceable, a finding neither party challenges on appeal. The PNA provides that it "shall be governed by the laws of the State of Colorado," but expressly waives any rights regarding support payments or division of property—other than those set forth in the PNA—that exist under any applicable law.
As to spousal support payments, the PNA obligates Carter to pay Cross "spousal support or maintenance in the amount of $5,000 per month," to be adjusted each year for inflation, "upon the filing of a petition for dissolution of their marriage, legal separation or declaration of invalidity, and on each subsequent month thereafter" for a period of time determined by the length of the marriage. The PNA requires Carter to "create an irrevocable trust for the sole benefit of [Cross]," with sufficient funds to pay his spousal support obligations under the PNA.
More specifically, the PNA imposes this obligation if, as ultimately occurred, the parties separate and/or divorce after the death of Carter's mother.
As to the division of property upon dissolution of marriage, the PNA provides that "[t]here shall be no division of any separate property," and that "the net equity of any marital property will be divided equally between the parties." Separate property is defined via an exhaustive list of specific scenarios. Carter is the beneficiary of several trusts, the funds in and proceeds from which the PNA specifically identifies as Carter's separate property. Marital property is then defined as "all property acquired by either party or by both parties during the marriage which is not defined as separate property." The PNA further clarifies that separate property cannot be recharacterized as marital property unless and until the parties agree to such a change in writing, or "the parties place title [to the separate property] in both of their names as joint tenants with rights of survivorship." Once this occurs, "neither party by themselves shall be able to unilaterally change the character of such property back to separate property . . . unless both parties agree in writing." Finally, the agreement addresses the character of certain property in existence at the time the PNA was executed. Of particular note in connection with Carter's arguments on appeal is section A of Article VI of the agreement, which provides that "[t]he parties have established a joint household bank account from which the joint living expenses and payments of marital debt shall be paid" and that "[t]he monies either party may deposit into this account shall be considered to be joint monies and marital property."
Lists of the parties' joint and separate assets at the time the PNA was executed, including their joint bank accounts, are attached as exhibits to the PNA.
B. The Parties' Joint Bank Accounts
Carter and Cross used several joint bank accounts while married. They used one joint account for expenses associated with a ranch in Santa Ynez where they lived during a portion of their marriage (the joint ranch account). Carter's separate property trust purchased the Santa Ynez ranch for him after the parties were married. The schedule attached to the PNA, as well as testimony at trial, establish that the joint ranch account did not exist at the time the PNA was executed, and thus could not have been the account, referenced in section A of Article VI of the PNA, that "the parties ha[d] established" at the time they executed the PNA. Carter made the deposits at issue on appeal into this account.
The parties also used another joint account for their living expenses (the living expenses account). In the schedule of the parties' property attached to the PNA, the living expenses account is identified by an account number and described as being "[t]itled in joint tenancy between the parties."
The record does not reflect that there were any restrictions on either party's ability to withdraw funds from any of the joint accounts.
Carter also held a bank account in his name only that the parties agree contained only his separate property funds (the separate property account). The deposits at issue on appeal used funds from this account.
C. The Parties' Conduct Following Carter's Petition for Separation
Carter filed a petition for separation in September 2008. During most of the almost 10-year period of separation that followed, Cross continued to live at the Santa Ynez ranch where the parties had lived together before separating. Carter never requested that Cross pay rent, and Cross never did so.
The parties appear to have had an amicable relationship while separated. For example, Carter gave Cross gifts and stayed overnight at the San Ynez property on occasion, sleeping in the same bed as Cross. The parties took occasional trips together, and jointly filed taxes until 2014. In 2014, Cross loaned Carter over $90,000.
1. Cross's credit card bills
Carter testified that he paid Cross's credit card bills during much of the eight-year period in question. The trial court did not question the sufficiency or credibility of this evidence, but also did not have occasion to make any express findings regarding how much of Cross's credit card bills Carter paid. Cross acknowledged that Carter "took care of" at least some of her credit card bills. Other testimony at trial reflects that these payments were between $2,500 and $10,000 per month.
2. Carter's deposits into the joint ranch account
Carter testified at trial that he set up a monthly automatic deposit of $5,000 from the separate property account into the joint ranch account beginning around the time he filed for separation in 2008, and that this continued until sometime in 2016. Carter further testified that he intended these payments as "support" for Cross, and that, in some months, he transferred additional funds from the separate property account into the joint ranch account for Cross's use. The trial court did not question the sufficiency or credibility of the evidence Carter offered at trial to establish that he made these deposits, but also did not make any express findings regarding the specific amount of the deposits.
Carter's testimony is unclear as to whether these payments began before June 2008, as Carter could not access bank statements predating that time. Carter's testimony acknowledges he made regular deposits from the separate property account into a joint account before he filed for separation in 2008, but it is unclear whether this testimony is referring to the joint ranch account or the joint living expenses account, deposits into both of which were at issue in the proceedings below. No other evidence in the record suggests deposits into the joint ranch account began before 2008, however. Nor did Cross raise this issue below, and she testified that she did not know when the deposits began.
Cross raises several arguments on appeal challenging the sufficiency of the evidence regarding the amount and fact of Carter's deposits. We find these arguments unpersuasive for the reasons we discuss in the Discussion ante, section A.
Although Carter did not tell Cross he was making these deposits or that they were intended as spousal support, as a joint owner of the account, Cross presumably had access to the account statements. At no point during the approximately eight years when Carter was making these deposits did Cross ever request Carter pay her spousal support, or indicate he was not fulfilling his spousal support obligations under the PNA.
Carter represents on appeal that his deposits into the joint ranch account between approximately June 2008 and December 2016 totaled $646,531, reflecting an average monthly deposit of roughly $7,104.74.
3. The parties' respective use of the joint ranch account
Cross testified that she paid at least some of her personal and living expenses during the first approximately eight years of the parties' separation using the monthly deposits Carter made into the joint ranch account and her credit cards (which, as noted, Cross acknowledged Carter at least partially paid on her behalf). Cross also testified, however, that she paid for living expenses using credit cards, and that she "use[d] [the joint ranch] account for the ranch"—that is, to pay for repairs and other expenses associated with maintaining the 10-acre property and preparing it for sale—and used the joint ranch account only "occasionally for her personal needs." Cross testified to having written "very few checks out of" the joint ranch account overall, although she identified no other funds she received between September 2008 and December 2016. Cross had a separate bank account beginning in 2009, but testified that she used it only to pay for expenses or repairs on two pieces of real estate the parties owned as joint tenants.
Specifically, Cross testified that she used the joint ranch account as a source of all "funds [she] used for spending money and for [her] entertainment and proper expenditures for household use" from 2008 to 2016. On appeal, Cross does not dispute Carter's characterization of this testimony as establishing that funds Carter deposited in the joint ranch account constituted Carter's sole source of support during this period, other than the payments Carter made on Cross's behalf to pay her credit card bills. Although Cross testified that "it was [her] understanding that living expenses were to be paid from the joint account," the context of this testimony is such that it is unclear whether she is referring to the joint ranch account (into which Carter made the deposits at issue) or the joint living expenses account. In any event, at other points in her testimony, Cross clearly testified that she used the joint ranch account for at least some living expenses.
Cross acknowledges the potential for income from "any rentals" on a piece of real property in Boulder, which the parties owned as joint tenants, but did not testify what amount of income, if any, she collected from this property, and does not contend on appeal that she utilized any such income for any purpose during the separation.
Carter utilized the joint ranch account as well during the parties' period of separation. He characterizes his use of the account as de minimis, although the information in the record regarding the extent to which he used the account appears to be incomplete. This limited information suggests that Carter used the account primarily to pay for expenses associated with the Santa Ynez ranch, where Cross (and not Carter) was residing at the time.
Specifically, trial exhibit 40 is a spreadsheet itemizing $31,760.14 of expenditures from the joint ranch account between May 2008 and September 2009 and between February 2016 and May 2016.
The record does not suggest—and Cross does not argue—that her access to the funds Carter deposited in the joint account was limited as a result of Carter's withdrawals from the joint account or for any other reason.
The court did not have occasion to make any express factual findings regarding the extent or nature of either party's use of the funds deposited in the joint ranch account. Nor did the court have occasion to make any findings regarding the balance of the joint ranch account at the time of dissolution.
D. The Proceedings Below
Carter filed a petition for dissolution of marriage in June 2009, and the court terminated the parties' marital status in a May 2018 bifurcated judgment. The parties stipulated to the validity of the PNA with certain exceptions, including the parties' disparate contentions regarding the validity and interpretation of Carter's spousal support obligations under the agreement. The court conducted a hearing on certain issues reserved for adjudication, including spousal support. The primary focus at this hearing was on issues not raised on appeal. Accordingly, we do not summarize the evidence related to these issues, or the court's resolution of them in its October 2018 judgment.
The portions of the judgment relevant to this appeal required that Carter pay Cross "spousal support until she dies or remarries, and that he establishes a trust for that purpose." As noted, the court did not discredit or question Carter's testimony and documentary evidence reflecting that he made monthly deposits into the joint ranch account during the relevant period, but rejected Carter's argument that these deposits and/or his paying Cross's credit card bills constituted payment of the spousal support obligation set forth in the PNA. The court concluded that the PNA defined all funds deposited in the joint ranch account as marital property, and that such funds therefore could not constitute spousal support received by and "belonging solely to [Cross]." The court noted that, to the extent the payments were not required by the PNA, they constituted gifts under California law.
Accordingly, the court determined that Carter was "liable for a past-due amount for the ten-year period [of separation] from September 2008 through August 2018 in the sum of $553,692." This amount reflected a credit for $120,000 in pendente lite spousal support the court had ordered Carter to pay in December 2016. Because the court resolved the issue of spousal support based solely on the court's legal characterization of the joint account and the deposits, the court did not have occasion to make findings regarding the specific amount of Carter's deposits, or the specific amount of Cross's withdrawals from the account.
Via a stipulation with opposing counsel below, Carter accepted that the total amount of spousal support the PNA required for the period in question was as reflected in the trial court's order, but argued, inter alia, that he was entitled to credits against that obligation, and/or that he had already paid the amount via his monthly deposits into the joint ranch account. The stipulation thus does not limit Carter's ability to raise these arguments on appeal.
The court ordered Carter to establish a trust for payment of spousal support, as required by the PNA, and noted that Carter's failure to do so was another basis on which to deny him any equitable relief he was seeking.
Carter appealed. On appeal, Carter challenges only the court's refusal to treat as spousal support his deposits into the joint ranch account during the approximately eight-year period in question. Carter does not challenge the court's ruling regarding Carter's payment of Cross's credit card bills, the court's determination that the PNA was valid and enforceable, or any other aspects of the judgment.
STANDARD OF REVIEW
To the extent that our analysis requires some consideration of factual issues, it does so only in the context of a mixed question of fact and law, the analysis of which primarily requires "critical consideration, in a factual context, of legal principles [here, the interpretation and application of PNA provisions] and their underlying values." (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888.) Our review of such questions is de novo. (Ibid.)
DISCUSSION
A. Cross's Arguments Regarding Evidence of Carter's Deposits
Cross raises several arguments regarding the sufficiency of the evidence and findings below to support many of Carter's contentions on appeal. We address Cross's arguments at the outset of our discussion because these arguments, if accepted, would affect our analysis of the issues Carter raises on appeal. We find each of these arguments unpersuasive, for reasons we explain below.
Cross first argues that the evidence in the record is insufficient to support that Carter made deposits all throughout the eight-year period, and/or that he made the specific amount of total deposits he references. Specifically, Cross notes that the joint ranch account bank statements contained in trial exhibit 41 do not reflect transfers throughout the entire period in question, but rather from May 2008 until September 2009 and June 2015 to March 2016, creating a gap of almost 6 years. Trial exhibit 35, however, contains bank statements from the separate property account, which reflect transfers from the separate property account into the joint ranch account during the six-year period not reflected in trial exhibit 41. Together, trial exhibits 35 and 41 support Carter's $646,531 figure. Cross never questioned, nor presented evidence undermining, the authenticity or accuracy of the bank statements Carter presented at trial. Further, when Cross was asked at trial whether, "consistently through 2008 through 2016, $5,000 a month was paid into [the joint ranch] account from the [separate property] account," she responded that "[i]f this statement [in trial exhibit 35] is correct, I would say yes."
Cross next challenges Carter's ability to rely on any specific total amount of deposits, absent an express factual finding of the trial court or related statement of decision. She argues that, because Carter failed to request a statement of decision or express findings "as to the total amount of deposits," Carter "waived the right to claim a particular amount of credit for any deposits made," and that this court may not accept that "any such deposits were made into a 'joint bank account' " under the doctrine of implied findings. As a preliminary matter, Carter raised below the argument he makes on appeal, and was not required to also request more specific factual findings in order to avoid forfeiting that argument. Cross's citation to the doctrine of implied findings is also misguided. Under this doctrine, "when parties waive a statement of decision expressly or by not requesting one in a timely manner, appellate courts reviewing the appealed judgment must presume the trial court made all factual findings necessary to support the judgment for which there is substantial evidence." (In re Marriage of Condon (1998) 62 Cal.App.4th 533, 549-550, fn. 11, citing In re Marriage of Arceneaux (1990) 51 Cal.3d 1130.) But the facts necessary to the trial court order include the fact that Carter made monthly deposits into a joint account—indeed, the court discusses the legal characterization of such deposits extensively. (See Procedural and Factual Summary ante, part C.2.) Moreover, the bank statements discussed above provide substantial evidence for that implied factual finding. Nothing precludes us from considering the unchallenged evidence presented at trial, including the collection of bank statements reflected in trial exhibits 35 and 41.
Finally, in her supplemental briefing, Cross also notes that joint ranch account statements offered at trial reflect that another accountholder was added to the account in 2015, and that the address of the account changed. She argues that "the existence of a third party on this account at some point during this period" means a "factual presumption" that funds "were deposited into a joint bank account during the entire period in question is unsupported by the evidence." But Cross did not question the credibility of the bank statements as evidence of Carter's deposits on this (or any other) basis during the proceedings below. Nor does Cross explain how an additional account holder in any way calls into question whether Carter made the deposits.
Thus, in analyzing Carter's arguments on appeal, we consider both that the trial court implicitly found that Carter made regular deposits into the joint ranch account during the entire period in question, as well as the substance of the uncontradicted evidence regarding the amount of these deposits that Carter offered at trial.
B. Carter's Deposits Did Not Constitute Gifts
We agree with Carter's argument that the deposits in question do not constitute "gift[s]." Under both California and Colorado law, a gift requires "voluntary intent on the part of the donor to make a gift." (Jaffe v. Carroll (1973) 35 Cal.App.3d 53, 59; Coxwell v. Forster (Colo. 1957) 314 P.2d 302, 303 ["requirements for a valid gift inter vivos" include "that there be a clear and unmistakable intent on the part of the donor to make the gift"].) Carter testified that he intended the deposits as "support," and the parties' contemporaneous conduct (specifically, Cross not asking for Carter to pay spousal support owed under the PNA) is consistent with this testimony. The case on which the trial court relied in reaching a contrary conclusion, See v. See (1966) 64 Cal.2d 778, stands for the proposition that "[i]n the absence of an agreement to the contrary, the use of . . . separate property by a husband for community purposes is a gift to the community." (Id. at p. 785.) But Carter did not make monthly deposits into the joint account "for community purposes"—rather, he did so with the intention of paying Cross spousal support. Nor does anything in the record suggest the money deposited was actually used for community purposes. Thus, Carter's monthly deposits cannot fairly be classified as gifts under California or Colorado law.
C. Funds in the Joint Ranch Account Are Marital Property under the PNA
Under the PNA, separate property may become marital property by "plac[ing] title [to the separate property] in both of [the parties'] names as joint tenants with rights of survivorship." Under California law, "an account payable on request to one or more of two or more parties is treated as a joint [tenancy] account . . . even though no mention is made of any right of survivorship[,] unless the terms of the account or deposit agreement otherwise provide." (Estate of O'Connor (2017) 16 Cal.App.5th 159, 165, quoting Cal. Law Revision Com. com., Deering's Ann. Prob. Code (2004 ed.) foll. § 5302, p. 624, italics omitted; see Fin. Code, § 1402 ["multiple-party account[s]" are governed by Probate Code sections, including section 5302]; see, e.g., Estate of Gaines (1940) 15 Cal.2d 255, 260 ["The joint tenancy cards signed by the parties with reference to . . . the bank accounts would, standing alone, be sufficient to create joint tenancies, that is, joint interest with right of survivorship to the whole."].) The statutorily presumed joint tenancy nature of and right of survivorship in a joint account may be rebutted only by "clear and convincing evidence of a different intent." (Prob. Code, § 5302, subd. (a); Cal. Law Revision Com. com., Deering's Ann. Prob. Code (2019 ed.) foll. § 5302, p. 654; see Estate of O'Connor, supra, 16 Cal.App.5th at p. 166.) It is not necessary for the account to be "described as a 'joint tenancy' or mention[ ] any right of survivorship" in order for this presumption to apply. (Cal. Law Revision Com. com., Deering's Ann. Prob. Code (2019 ed.) foll. § 5302, p. 654.)
Although the parties agreed that Colorado law would control the "validity, interpretation, construction, effect and enforceability of [the PNA], as well as the rights waived or retained by [the PNA]," this choice of law provision does not require application of Colorado law to determine whether a California bank account is held in joint tenancy.
The joint ranch account was held by "Michael Carter or Elizabeth Cross" until 2015; in 2015 and 2016, a third individual's name was added to the account as well. The evidence does not suggest—and Cross does not contend—that Cross had anything less than full withdrawal rights on the account throughout the eight-year period in question. The record contains no evidence—let alone clear and convincing evidence—that the parties did not intend the joint ranch account to be held in joint tenancy with right of survivorship. Thus, under California law, the joint ranch account and all monies contained therein are presumed to be property held in joint tenancy with right of survivorship by both Carter and Cross. (See O'Connor, supra, 16 Cal.App.5th at pp. 166-168 [account application which listed mother as the primary joint owner and daughter as the secondary joint owner of the accounts was sufficient to create joint tenancy with right of survivorship].) Therefore, Carter "place[d] title" to the funds he claims reflected spousal support payments "in both of [the parties'] names as joint tenants with rights of survivorship" when he deposited the funds in the joint ranch account. Under section B of Article IV of the PNA, this transformed the funds deposited into marital property, subject to equal division between the parties upon dissolution.
It is immaterial that the joint ranch account is not the " 'joint household bank account from which the joint living expenses and payments of marital debt shall be paid' " that the PNA explicitly characterizes as marital property. The general definition of marital property discussed above sufficiently establishes that funds contained in the joint ranch account, regardless of their source, are marital property. The agreement need not specifically address the joint ranch account for this to be the case.
D. Carter's Deposits Nevertheless Reflect Substantial Compliance with the PNA's Spousal Support Provisions
Although we agree with the trial court's legal characterization of funds in the joint ranch account as "marital property" under the PNA, we disagree that this characterization ends the inquiry into Carter's spousal support obligations.
Under Colorado law, which the parties agree applies to the interpretation and enforcement of the PNA, a party who substantially completes a contractual obligation may be deemed in compliance with the contract. (See Newcomb v. Schaeffler (Colo. 1955) 279 P.2d 409, 412 (Newcomb).) In this context, "[s]ubstantial compliance . . . means that although the conditions of the contract have been deviated from in trifling particulars not materially detracting from the benefit the other party would derive from a literal performance, he has received substantially the benefit he expected." (Id.; accord, Reynolds v. Armstead (Colo. 1968) 443 P.2d 990, 991.) "Although most often invoked in connection with building contracts, the doctrine of substantial compliance may be applicable to other types of contracts." (R. F. Carle, supra, 616 P.2d at p. 991.)
We need not and do not consider whether this doctrine might generally apply to spousal support obligations arising under Colorado or any other state law, because the parties here unequivocally agreed that the PNA would exhaustively outline all rights and duties regarding spousal support, to the exclusion of any rights and duties that might otherwise arise under applicable law. The question presented to this court is thus one of contractual interpretation and enforcement, rather than one involving the application of laws governing spousal support.
The "benefit [Cross] could reasonably have expected from the contract" in terms of spousal support was that $5,000 a month, adjusted for inflation, be made available to her. (R. F. Carle, supra, 616 P.2d at p. 992.) The trial court implicitly found that Carter made monthly deposits into the joint ranch account during the period in question. Carter represents, and unchallenged evidence presented at trial supports, that these deposits totaled $646,531 between approximately June 2008 and December 2016, reflecting an average monthly payment of $7,104.74 ($646,531 divided by 91 months). The trial court's calculation of Carter's inflation-adjusted spousal support obligation for this period—the accuracy of which neither party challenges on appeal—is thus less than the amount Carter apparently deposited in the joint ranch account over those approximately eight years. Namely, the trial court concluded (1) that the total amount of spousal support payable from September 2008 through December 2016 was $553,692, and (2) that Carter's inflation-adjusted monthly spousal support obligation in 2018 was $6,284 per month. Thus, Carter's deposits substantially confer the benefit Cross reasonably could expect under the agreement.
Cross argues that the contract required spousal support be disbursed through a separate property trust fund, rather than by depositing it into a joint account. But the absence of these "trifling particulars" required by the contract does not "materially detract[ ] from the benefit" conferred. (Newcombe, supra, 279 P.2d at p. 412.) Nor does it detract from the benefit conferred on Cross that Carter made withdrawals from the account, because nothing in the record suggests that the joint nature of the account or Carter's use thereof prevented Cross from accessing the amount owed her under the PNA. Indeed, Cross does not raise any such argument on appeal, and the record does not suggest that this was the case.
Our conclusion that Carter substantially complied with his spousal support obligations is also supported by the fact that Cross never claimed otherwise at any point during the eight-year period she was using the deposited funds. Had Carter not been making available to Cross the amount required by the PNA, it stands to reason Cross would have communicated this to Carter, made clear she did not view the deposits as satisfying Carter's PNA obligations, requested additional support, and/or requested support in a different form. She did not. Rather, she used at least a portion of the funds without complaint or additional request, which is entirely consistent with the parties understanding that Carter's deposits substantially complied with his spousal support obligations.
E. Nevertheless , the Record Does Not Support That Carter's Substantial Compliance Fully Discharged His Spousal Support Duties Under the PNA
That Carter substantially complied does not insulate Carter from any further obligations with respect to spousal support during the approximately eight-year period in question. "[S]ubstantial performance does not act as a complete bar to recovery . . . . Rather, the [other party] may still be entitled to some damages." (D.R. Horton, supra, 217 P.3d at p. 1272 [error to instruct the jury that substantial performance was a complete bar to recovery]; see Use Note 3 to CJI-Civ. 4th 30:12 ["The fact that one may have rendered substantial performance does not mean that that party has not breached the contract and is not, therefore, liable for any damages."].) Namely, a party who has substantially complied with a contract may still be required to put the other party in the position it would have enjoyed, had performance been exactly as contracted for.
Here, the evidence presented at trial does not reflect how much of the funds deposited in the joint ranch account during the relevant period Cross actually withdrew or otherwise used. Nor does it reflect how much of the funds withdrawn or otherwise used were for the purpose of maintaining Carter's separate property ranch in a manner that did not also benefit Cross. Given that any portion of these deposits Cross did not spend was subject to equal division between the parties upon dissolution, (see Discussion ante, part B) such unspent amounts cannot fairly be counted towards satisfying Carter's spousal support obligation, even if, by making the deposits, Carter substantially complied with those obligations.
Although the statements from the joint ranch account in the record reflect electronic withdrawals and debit card purchases for a portion of the period in question, neither this, nor any other evidence in the record indicates which of these withdrawals and/or other charges were made by Cross.
In this respect, it is significant that our analysis is based on substantial performance, rather than on a theory that the parties modified the PNA through their conduct. Under the latter theory, no further basis for recovery would exist. We may not rely on any modification by conduct, however, because the PNA expressly prohibits modification by the exact type of conduct that ultimately took place. Although, under Colorado law, a requirement that modifications be in writing may itself be modified through conduct (see Cordillera Corp. v. Heard (Colo.App. 1978) 592 P.2d 12, 14), the PNA appears to have much more specifically contemplated and rejected the exact type of modification by conduct that would otherwise arise on the current record, and we cannot interpret the contract to so directly reject the parties' stated intent. Thus, although Carter's conduct "abundantly show[ed] that [the deposits] were given by [Carter] and accepted by [Cross] in lieu of [payments into a separate property trust,] which the contract . . . called for," this did not modify Carter's spousal support obligations under the PNA. (Wheelock v. Hondius (Colo. 1924) 222 P. 404, 407 [acceptance by defendant of note in lieu of cash expressly required by agreement modified the agreement to allow the note to satisfy contractual obligation].)
The trial court did not have occasion to make findings regarding the extent of Cross's withdrawals from the joint ranch account during the relevant period, or the extent to which any of those withdrawals were solely or primarily for the benefit of Carter's separate property ranch. Therefore, additional fact-finding on these points is necessary in order to determine the amount of spousal support Carter still owes for the period in question.
DISPOSITION
The judgment is reversed to the extent it awards Cross a specific amount of spousal support arrears. Upon remand, the trial court shall make the necessary findings regarding the extent and purpose of Cross's use of the deposited funds, and reduce the amount of spousal support arrears previously awarded by the total amount of withdrawals Cross made for her own benefit.
In all other respects, we affirm.
Appellant shall recover his costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J. We concur:
CHANEY, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------