Opinion
G058200
09-09-2021
In re Marriage of GREENBERG and GIFFORD. DANIEL STEPHEN GREENBERG, Appellant, v. CARLA GIFFORD, Respondent.
Daniel Greenberg, in pro. per., for Appellant. Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 13D007979, Julie A. Palafox, Judge. Affirmed.
Daniel Greenberg, in pro. per., for Appellant.
Law Offices of Lisa R. McCall, Lisa R. McCall and Erica M. Baca for Respondent.
OPINION
O'LEARY, P. J.
Carla Gifford and Daniel Stephen Greenberg married in October 1999 and separated after 13 years. At trial, the court determined the former couple's properties in Tennessee were quasi-community property. Daniel appeals from this judgment. He asserts the judgment rendered against his mother was void because she died after the matter was submitted, and the court lacked personal jurisdiction over her. Next, Daniel challenges the determination there was a community interest in the properties, and contends another judgment rendered against him constituted community debt. Daniel's claims have no merit, and we affirm the judgment.
We refer to the parties by their first names for clarity, as is customary in family law cases. (Pont v. Pont (2018) 31 Cal.App.5th 428, 431, fn. 1.)
FACTS
Carla and Daniel married in 1999 in Nashville, Tennessee and separated in 2013. During their marriage, the couple lived in Tennessee and eventually moved to California in 2010. The bulk of the marital estate was comprised of three real properties located in Nashville, Tennessee: Acklen, Sweet Cherry, and Blakemore (together, the “Tennessee Properties”). Carla asserted a community property interest in each of the Tennessee Properties because they were either acquired during the marriage or community funds used to finance and maintain the properties during marriage. Daniel and his mother, Marian Wise, alleged all three properties were their separate property, and thereafter became Marian's sole and separate property when Daniel transferred the properties to Marian after the parties separated.
Daniel failed to appear for trial. After the trial court appointed a guardian ad litem for him due to his disruptive behaviors, Daniel sent Marian to appear in his place as his power of attorney.
I. Acklen
Two years prior to the parties' marriage, Daniel and a third party, Adam Landa, purchased Acklen, a condominium, for $88,000. While Daniel asserted Marian gave or loaned him the money to buy Acklen, no competent evidence of a loan at the time of purchase was offered to support the loan's existence.
On May 10, 1999, Adam quitclaimed his one-half interest in Acklen to Daniel, and the parties married five months later, on October 30, 1999. Because Daniel acquired Acklen before the marriage, the trial court initially determined Acklen to be Daniel's separate property.
Once married, the parties lived in Acklen. They both worked and used community funds to pay for the property. During their marriage, Daniel and Carla refinanced Acklen, and used the funds to improve the property. In 2003, they bought a new home and rented Acklen. Daniel failed to offer any evidence supporting the loan amount at the time of purchase, the date of marriage, the date of separation, or the date of trial. Similarly, he failed to offer any evidence on the fair market value of Acklen on the date of marriage or the date of separation.
On April 30, 2014, after the parties separated, Daniel gave Marian a deed of trust on Acklen to secure a $700,000 promissory note. Within a few days, Marian recorded the deed in Tennessee.
At trial, neither party offered an appraisal report for Acklen. Carla testified the property's fair market value was $295,000 based on her contacts with Nashville realtors, neighborhood comparisons, her familiarity with the property, and Zillow. Marian testified the fair market value was $222,000 based on her personal knowledge as property manager and tax statements.
Both during marriage and after separation, Daniel was the managing spouse for Acklen. As the non-managing outspouse, Carla had no access to the records necessary to trace community property funds used for Acklen. Marian, representing Daniel as the managing spouse, offered 22 pages of miscellaneous scraps and records into evidence collectively as one exhibit, purportedly to prove Daniel's separate property interest in Acklen. The records were comprised of bank deposits, credit card statements, check registers, cancelled checks (some to Daniel with the word “loan” handwritten on them), and unmarked receipts. Many of the documents offered were not dated, many were handwritten, and most did not reference Acklen. Carla objected to the evidence, which the trial court sustained.
The trial court determined Daniel and Marian failed to offer competent evidence of any tracing of community and separate property funds paid toward Acklen. They failed to offer a Moore/Marsden calculation to the court, and the court did not have sufficient evidence to make its own calculation. (See In re Marriage of Marsden (1982) 130 Cal.App.3d 426; In re Marriage of Moore (1980) 28 Cal.3d 366.) The court confirmed the community had a substantial interest in Acklen, but the court could not value that interest. The court found Daniel had breached his fiduciary duty to Carla by failing to provide the court with the necessary evidence to determine the community's true interest in the property. The court awarded Carla 50 percent of Acklen, including rental profits, pursuant to Family Code section 1101, subdivision (g). The court determined Daniel's failure to provide a true accounting of his assets constituted good cause to order a special master to sell the property.
All further statutory references are to the Family Code, unless otherwise indicated.
II. Sweet Cherry
In 2003, the parties purchased Sweet Cherry, a single-family home, which they used as their family residence during the marriage. Carla maintained the parties used community savings and community funds obtained from a loan to purchase Sweet Cherry. Marian stated she loaned Daniel $60,000 for the Sweet Cherry down payment, making it Daniel's separate property. She offered the court a short-form promissory note dated April 24, 2003, in the amount of $60,000 with an illegible receipt attached from the Bank of Nashville as proof of her loan. Marian's proof also included her handwriting with the date of “4-23-13, ” a few months prior to the parties' separation. The trial court found the date of creation a few months prior to the parties' separation was suspicious.
Carla denied knowledge of any loan from Marian in 2003 for the Sweet Cherry purchase, or of any promissory note in 2003 when the property was purchased. Carla denied any knowledge of a loan in April 2013, just before the parties separated. Neither Carla's name nor her signature appeared on the promissory notes hand-dated April 24, 2003, or April 23, 2013. The court found Carla more credible on the issue of a loan for the purchase of Sweet Cherry.
Carla testified she and Daniel purchased Sweet Cherry for $305,000 in 2003, and made a $70,000 down payment. The court calculated a $235,000 mortgage. Neither party offered any evidence as to the mortgage balance on Sweet Cherry at the date of separation or the date of trial, and neither party submitted a valid appraisal for Sweet Cherry.
Daniel stated he executed a longer-form promissory note in Marian's favor for $60,000 on April 23, 2013. Neither Daniel nor Marian provided evidence of a history of payments on the promissory note from 2003 to trial, nor did they provide evidence the promissory note in 2003 was recorded.
On April 30, 2014, after separation and without Carla's knowledge or consent, Daniel gave Marian a deed of trust on Sweet Cherry. Marian recorded the warranty deed in Tennessee days later. Notwithstanding the warranty deed and title, the court determined Sweet Cherry to be quasi-community property, finding although Daniel claimed Marian gave him all the money to purchase and pay for Sweet Cherry, the evidence offered was weak, insufficient, and not credible.
Carla testified the property's value was $582,250, while Marian testified it was $402,000. Marian's value was based on her personal knowledge as property manager and tax statements. Carla based her value on her contacts with Nashville realtors, neighborhood comparable properties, and Zillow. The court found Carla more credible on Sweet Cherry's fair market value. The court deemed Sweet Cherry's value to be $582,250, and calculated at least $347,250 in equity, if not more, as the court had no information as to how much of the loan had been paid down since its purchase.
The trial court also determined the form of title to Sweet Cherry conflicted with the presumption that property acquired during marriage while domiciled outside California is quasi-community property. A warranty deed for Sweet Cherry stated Cecelia C. Meagher sold and transferred Sweet Cherry to Daniel. Although Daniel was married to Carla at the time they purchased Sweet Cherry, the deed failed to reflect Daniel's marital status. The court applied the quasi-community property principles to Sweet Cherry because it was acquired during the marriage while the parties were domiciled outside of California. The court determined Daniel failed to overcome the quasi-community presumption with credible evidence.
Ultimately, the trial court determined both Daniel and Marian not credible in their claim that Carla had no community property interest in the home purchased during the thirteen-year marriage and paid for with community funds. Daniel failed to provide the court with competent evidence of separate property funds used for the down payment, financing, and maintenance of Sweet Cherry. Carla, as the non-managing out-spouse, did not have access to the records necessary to trace community property funds used for Sweet Cherry. Marian, representing Daniel as the managing spouse, failed to offer any records necessary to establish a tracing other than the self-serving promissory note. The court deemed any payment Marian made on Sweet Cherry to be a gift to the community that did not change its quasi-community character.
Because Daniel failed to produce any evidence on the right to reimbursement for payments made toward Sweet Cherry since the date of separation, it considered the issue of potential reimbursements adjudicated. Daniel's failure to produce competent evidence to accurately value the community interest in Sweet Cherry served as another factor in the court's breach of fiduciary duty analysis against him. The court determined Daniel's failure to provide Carla with her share of the rents and profits from Sweet Cherry, failure to provide an accounting of the community's interests in Sweet Cherry, and intentional encumbrance of Sweet Cherry with a deed of trust in his mother's favor after date of separation and in violation of the automatic temporary restraining orders (TRO), were a breach of his fiduciary duty rising to the level of fraud, entitling Carla to 100 percent of the asset, including the rental profits under section 1101, subdivision (h). The court ordered the special master to receive the rental profits for Sweet Cherry and to provide a final accounting to the court for a final distribution.
The summons in a dissolution of marriage case contains a temporary restraining order restraining, in relevant part, the parties from “transferring, encumbering, hypothecating, concealing, or in any way disposing of, any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court, except in the usual course of business or for the necessities of life.” (§ 2040, subd. (a)(2)(A).)
III. Blakemore
In 2007, the parties purchased the condominium at Blakemore as a joint investment property with Marian. Carla testified the fair market value of Blakemore was $402,000 based on her contacts with Nashville realtors, neighborhood comparable properties, familiarity with the property, and Zillow. Marian testified Blakemore's value was $281,500 based on her personal knowledge and tax statements.
Carla testified the parties used community funds for payments on and improvements to Blakemore during the marriage. Marian testified she bought Blakemore on her own and put Daniel's name on it as her ‘“joint tenant.'” The only evidence Marian offered the court to prove her sole ownership was an escrow check receipt dated June 8, 2007, in the amount of $51,127.77, on which she hand-wrote ‘“2641 Blakemore.”' Neither Daniel nor Marian offered any other documents related to Blakemore's sale, acquisition, or mortgage payments. No documentary evidence as to the form of title for Blakemore at the time of purchase were offered into evidence. At some point, the parties rented Blakemore to a third party; Daniel failed to give Carla her share of the rents and profits.
On May 30, 2014, after separation and without Carla's knowledge or consent, Daniel conveyed all his rights, title, and interest in Blakemore to Marian. The court found Marian's testimony not credible about Blakemore being her sole and separate property. It also determined the escrow receipt insufficient to defeat the quasi community property presumption. Insufficient evidence was offered to determine the community's one-half quasi-community interest in Blakemore.
The trial court's judgment classified Blakemore as a tenancy in common, one-half to Marian and one-half to the community. Because Daniel and Marian failed to produce any evidence on the right to reimbursement for payments made on behalf of Blakemore since the date of separation, the court considered the issue of potential reimbursements adjudicated.
The trial court held Daniel's unilateral conveyance of Blakemore to Marian after the couple's separation was in violation of the TRO and a breach of his fiduciary duty to Carla rising to the level of fraud. It stated Daniel's failure to produce competent evidence to accurately value the community interest in Blakemore was also a breach. The court voided Daniel's quitclaim deed as a fraudulent conveyance. It awarded Carla 100 percent of the community's one-half interest in Blakemore pursuant to section 1101, subdivision (h).
Finding Marian and Daniel had colluded to deprive Carla of her rights, title, and interests to Blakemore, the court ordered a special master to sell the property, with Carla and Marian to equally share the proceeds subject to offset for special master fees. The court ordered the special master to receive the rental profits for Blakemore and to provide a final accounting to the court for a final distribution.
IV. Other Rulings
The trial court determined because Marian had title, possession, custody, claim and control over the Tennessee Properties, her joinder was indispensable and necessary to the enforcement of any judgment to be rendered. It further ruled Marian consented to the personal jurisdiction of the court by her conduct, and joinder of Marian would not offend the notions of due process, as she had appeared in the action and had been given multiple opportunities to be heard. She had presented herself in the action on at least five occasions during the trial, testifying on multiple occasions as a percipient witness in regard to the property interests subject to the jurisdiction of the court, and seeking affirmative relief with respect to personal ownership interests therein. Marian offered exhibits into evidence during the trial, including but not limited to the property deeds showing her sole ownership of the properties, lease agreements she had entered into, and a power of attorney over Daniel. She had also asked to appear in the trial as Daniel's attorney-in-fact and filed pleadings on his behalf.
On December 20, 2018, after the matter had been submitted, the trial court joined Marian in the case. The court resubmitted the matter, made rulings and orders following trial on remaining issues on July 30, 2019, and incorporated those rulings into a final judgment on December 10, 2019.
In his closing brief, Daniel asked the trial court to divide a “BRCM” judgment of $185,000 equally between the parties. The judgment related to a lawsuit arising out of Daniel's former employment with Broadcom. The court ruled the BRCM judgment to be Daniel's sole and separate obligation because he failed to offer any evidence during the trial the BRCM judgment was for a debt occurring during the marriage. The court found the BRCM judgment was not an unadjudicated liability because Daniel had knowledge of the judgment but failed to offer any evidence for the court to consider.
Because there was unequal access to crucial evidence to fully and fairly divide the parties' marital estate, the burden of proof of competent evidence, management, and accounting of the marital estate shifted to Daniel. Daniel failed to meet his burden of proof of competent evidence, management, and accounting of the marital estate.
The financial records Daniel produced at trial were “few, incomplete, selective, without foundation, inaccurate and non-responsive” to Carla's records request, and the records Daniel produced were “untrustworthy and stale.” Daniel's breach of fiduciary duty prevented Carla from establishing the community's interest in the marital assets and liabilities and continued after the parties' separated.
After listing the dozens of additional instances of Daniel's misconduct in breach of his fiduciary duty to Carla, the court determined, “Daniel's actions in managing the marital estate are not innocent. Daniel deliberately hid, transferred, or encumbered all the assets, intentionally misrepresented and concealed material facts and refused to provide Carla an accounting and records for the marital estate. These actions are clear and convincing evidence of ‘oppression, fraud and malice.' These actions fall squarely within the ambit of Civil Code section 3294 and section 1101(h).” (Fns. omitted.)
Civil Code section 3294 defines ‘“[f]raud'” as “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” When a breach of fiduciary duty rises to the level of fraud, remedies for breach of fiduciary duty “shall include, but not be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty.” (§ 1101, subd. (h).)
Daniel appealed from the July 30, 2019, rulings and orders. The trial court entered a final judgment on December 10, 2019. After Daniel's time to notice an appeal from the judgment expired, Carla moved to dismiss the appeal as from a nonappealable order. We denied the motion to dismiss, electing to treat the notice of appeal as if it was ‘“filed immediately after entry of judgment”' pursuant to California Rules of Court, rule 8.104, subd. (d)(2) and granted Daniel's motion to augment the record to include the final judgment, deeming the judgment part of the appellate record.
DISCUSSION
Daniel's issues on appeal can be divided into three categories. First, he asserts the judgment rendered against Marian was void because she died. Next, he makes various claims concerning the Tennessee Properties. Finally, he contends the BRCM judgment was community debt. None of his contentions have merit, and we affirm the judgment.
I. Marian
As an initial matter, Daniel requests we take judicial notice of Marian's death certificate, which lists her date of death as July 21, 2019, nine days prior to the entry of judgment. He cites, without support, that “[t]he Superior Court was made aware of this fact, but declined to place the matter on the record or vacate the judgment....” This misconstrues the record. It is true Daniel submitted a memorandum to the court raising several issues after trial, but he did so after he had already appealed from the court's judgment. In any event, “Evidence Code section 452 provides that judicial notice may be taken of official acts of the legislative, executive, and judicial departments of a state and of facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Accordingly, judicial notice may be taken of a death certificate. [Citation.]” (People v. Terry (1974) 38 Cal.App.3d 432, 439.)
Daniel contends the trial court lacked jurisdiction over Marian and a judgment against a dead person is void. We are not persuaded.
We see no reason why Marian's death would have precluded entry of judgment, which had already been submitted. (Code of Civ. Proc. § 669 [“If a party dies after trial and submission of the case to a judge sitting without a jury for decision or after a verdict upon any issue of fact, and before judgment, the court may nevertheless render judgment thereon”].) We need not reach the merits of this claim, however, because Daniel offers no authority to support his standing to bring a jurisdictional appeal on behalf of Marian, who is not a party to this appeal. Marian, not Daniel, was the party allegedly aggrieved by the trial court's orders. (In re J.T. (2011) 195 Cal.App.4th 707, 717.) An appellant ‘“lacks standing to raise issues affecting another person's interest.'” (Ibid.) We find no error.
II. Tennessee Properties
Daniel asserts several arguments in support of his contention that none of the Tennessee Properties are community property. He alleges the section 760 presumption does not apply because the Tennessee Properties were acquired while the parties were domiciled in Tennessee. He contends the trial court lacked power to appoint a special master to sell the Tennessee Properties. Finally, he claims because the Tennessee Properties were purchased and managed in Tennessee, there cannot be a breach of fiduciary duty. None of his contentions have merit, but we address each in turn below.
“We review the trial court's factual findings regarding the existence and character of the parties' property under the substantial evidence standard. The trial court's selection of what legal principles to apply is subject to de novo review. [Citation.]” (In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 1584.)
A. Application of California Family Law
Daniel asserts the trial court improperly applied the presumption contained in section 760 when it determined the Tennessee Properties were community property. We disagree.
We need not delve into the legal analysis of the presumption contained in section 760 because Carla concedes it does not apply: “Daniel correctly states the community property presumption under... section 760 applies to property acquired by a married person while domiciled in California. [S]ection 760 sets forth what is commonly known as the ‘community property presumption,' providing, ‘Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.'... It is undisputed the parties in this case acquired their Tennessee real property while domiciled in Tennessee.”
Carla further explains while section 760 does not apply, section 125 does. It defines “‘quasi-community property'” as property acquired by a married person while domiciled elsewhere, treating the property as community property if it would have been community property had the acquiring party been domiciled in California at the time of acquisition. (§ 125, subd. (a).) The court's application of the section 125 community property presumption was proper, as discussed in more detail below regarding each of the Tennessee Properties.
In addition to his claim the section 760 presumption is inapplicable, Daniel presents a broader argument the California Family Code should not apply. He suggests Tennessee law applies because the properties were in Tennessee and acquired by the parties while living there. Daniel ignores clearly established law providing that when parties move from a common law state to California and make California their marital domicile, the characterization of their property in a dissolution of marriage proceeding in California is determined under California law pursuant to normal choice of law rules. (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 505-506.) Other than simply citing to Tennessee law and stating it should apply, Daniel presents no other legal argument as to why we should ignore established choice of law precedent.
B. Community Property
Daniel contends the trial court improperly characterized the Tennessee Properties as community property. Not so.
i. Acklen
As for Acklen, the trial court determined, “Having acquired Acklen prior to the marriage, Acklen is Daniel's separate property.” Carla does not dispute this characterization. Instead, she contends the court correctly decided the community acquired a pro tanto interest in Acklen during the marriage because the parties used community funds during the marriage to pay for Acklen. Accordingly, the community had pro tanto interest in Acklen “in the ratio that the payments on the purchase price with community funds bear to the payments made with separate funds. [Citations.]” (In re Marriage of Moore (1980) 28 Cal.3d 366, 371-372.) Daniel failed to produce competent evidence that payments toward Acklen after the date of marriage were traceable to a separate property source.
For ease of reference we omit the trial court's capitalization of “ACKLEN” and replace it with “Acklen.”
The court also determined the community acquired an additional pro tanto interest in the property because the parties refinanced Acklen and used the funds to make improvements. The lender's intent doctrine provides where a lender extends credit and bank sourced funds are received during the marriage, the funds are presumptively community property unless a party submits evidence the lender primarily relied on the borrower's separate property. (In re Marriage of Grinius (1985) 166 Cal.App.3d 1179, 1186.) Daniel offered no such evidence.
Daniel fails to meaningfully address the pro tanto quasi-community interest in Acklen, instead citing to law defining separate property and analyzing the form of title. He also asserts the lender's intent doctrine “was rebutted as a matter of law because the moneys were reinvested in the separate property.” Daniel misses the mark. We have no basis to question the trial court's factual findings that Daniel, as the managing spouse for Acklen, failed to offer: an appraisal report for the property; evidence as to the loan amount at the time of purchase, date of marriage, date of separation, or date of trial; evidence of the fair market value; or competent evidence of any tracing of community and separate property funds used to pay for Acklen. Because Daniel offers no legal or factual support negating the substantial community interest in Acklen, we affirm the court's determination.
ii. Sweet Cherry
Daniel argues title to Sweet Cherry was held in his name alone, making it his separate property. It is true a warranty deed for Sweet Cherry indicated the property was sold and transferred from a third party to Daniel. But the deed did not reflect Daniel's marital status, even though he and Carla were married at the time of purchase. The trial court properly determined the manner in which title to the property was held did not determine its character.
Section 852, subdivision (a), provides a “transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” “To show an agreement changing the character of property from separate to community, or community to separate, the requirements of the transmutation statutes must be met. If the form of title to property changes the character of the property without meeting the requirements of section 852, then the title presumption of Evidence Code section 662 does not apply. [Citation.]” (In re Marriage of Bonvino (2015) 241 Cal.App.4th 1411, 1429 (Bonvino).) The requirements of the transmutation statute were not met here because no express declaration was made, joined in, consented to, or accepted by Carla that changed the character of the real property from community to separate. The trial court properly determined the character of the property did not change.
Daniel also asserted Sweet Cherry was his separate property because Marian loaned him $60,000 for the down payment. The trial court found Daniel's evidence on this issue suspicious and found Carla more credible. We will not reweigh the court's credibility determinations on appeal. (Do v. Regents of University of California (2013) 216 Cal.App.4th 1474, 1492.)
Finally, Daniel argues the California court lacked jurisdiction to resolve the validity of the promissory notes, citing Rozan v. Rozan (1957) 49 Cal.2d 322, 330 to assert ‘“a court of one state cannot directly affect or determine the title to land in another.'” Daniel omits the next sentence, in which the Rozan court clarified, “It is well settled, however, that a court, with the parties before it, can compel the execution of a conveyance in the form required by the law of the situs and that such a conveyance will be recognized there.” (Ibid.) Because the California court had jurisdiction to divide the parties' quasi-community property and debts pursuant to section 125, it had the ability to determine whether the alleged promissory notes between Daniel and Marian were community property.
iii. Blakemore
Daniel states he and Marian purchased Blakemore as an investment property in 2007. Daniel explains he quitclaimed his interest in the property to his mother on May 30, 2014. He neglects to include the facts Carla and Daniel used community funds to purchase the one-half interest in Blakemore and used community funds to pay for and make improvements to the property during their marriage. At trial, Daniel failed to submit evidence demonstrating Blakemore's form of title at the time of purchase. The only evidence showing Blakemore's form of title was the conveyance of the property from Daniel to Marian on May 30, 2014, after the date of separation, without Carla's knowledge, and in violation of the temporary restraining order. In any event, even assuming the property was titled in Daniel's and Marian's names alone, as discussed above, the title presumption would have been inapplicable because there was no evidence of a valid transmutation. (Bonvino, supra, 241 Cal.App.4th at p. 1429.)
Daniel also asserts Blakemore “vested in [Marian's] estate, ” pursuant to Tennessee law. He claims, “the conveyance would have to be challenged in Tennessee.” Daniel provides no controlling authority to support why Tennessee law should govern. We find no error.
C. Appointment of Special Master
Daniel concedes California courts may appoint a special master to sell real property in another state. He argues, however, Tennessee law has rejected this California authority. Daniel's contention again misses the mark.
The trial court relied upon the well-established principal of comity between the states. Even though a California court lacks jurisdiction to render a decree affecting title to land in another state, “[i]t is well settled... that a court, with the parties before it, can compel the execution of a conveyance in the form required by the law of the situs and that such a conveyance will be recognized there.” (Rozan v. Rozan (1957) 49 Cal.2d 322, 330.) Since the property owners were subject to the personal jurisdiction of the trial court, it had the power to order the parties to convey title and possession of land anywhere. Courts at the situs of the land may be relied upon to enforce the decree under principles of res judicata or comity. (See Tomaier v. Tomaier (1944) 23 Cal.2d 754, 760.) The judgment does not purport to exercise jurisdiction over the Tennessee properties, but rather properly exercises personal jurisdiction over Daniel and Marian to comply with its orders. (Phelps v. Kozakar (1983) 146 Cal.App.3d 1078, 1085 [“a court with personal jurisdiction over the parties can compel them to execute a conveyance in the form required by the law of the situs”].) Daniel fails to demonstrate any error with the court's appointment of a special master to facilitate the sale of the Tennessee Properties.
D. Fiduciary Duty Claims
Daniel claims, without any California legal support, “there was no fiduciary duty owed to [Carla] while they were domiciled in Tennessee and the trial court erred in basing its decision, at least in part, on [Daniel's] failure to meet that standard in Tennessee.” We are not persuaded.
As discussed above, California law applies to this action. In order to preserve and protect community and quasi-community assets and liabilities, section 2100, subdivision (c), requires a full and accurate disclosure of all assets and liabilities in which one or both parties have or may have an interest must be made in the early stages of a proceeding for dissolution of marriage. Moreover, each party has a continuing duty to immediately, fully, and accurately update and augment that disclosure to the extent there have been any material changes. (§ 2100, subd. (c).) “Taken together, these Family Code provisions impose on a managing spouse affirmative, wide-ranging duties to disclose and account for the existence, valuation, and disposition of all community assets from the date of separation through final property division. These statutes obligate a managing spouse to disclose soon after separation all the property that belongs or might belong to the community, and its value, and then to account for the management of that property, revealing any material changes in the community estate, such as the transfer or loss of assets. This strict transparency both discourages unfair dealing and empowers the nonmanaging spouse to remedy any breach of fiduciary duty by giving that spouse the ‘information concerning the [community's] business' needed for the exercise of his or her rights... And most importantly for present purposes, in a trial where community assets are missing, these statutory duties of disclosure and accounting serve to shift the burden of proof on missing assets to the managing spouse.” (In re Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.App.4th 1252, 1270-1271.)
Because there was unequal access to crucial evidence to divide the estate fully and fairly, the burden of proof of competent evidence, management and accounting of the marital estate properly shifted to Daniel. Once the burden has shifted, the starting point for the breach of fiduciary duties analysis is section 721, which states, “spouses are subject to the general rules governing fiduciary relationships that control the actions of persons occupying confidential relations with each other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and neither shall take any unfair advantage of the other.” It further provides that accountability for the management of the community assets is a fundamental aspect of fiduciary duties owed between spouses. (§ 721, subd. (b)(2).) Section 1101 then creates a right of action and specific remedies for the breach of fiduciary duty between spouses. (§ 1101, subd. (a) [“A spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate, including, but not limited to, a single transaction or a pattern or series of transactions, which transaction or transactions have caused or will cause a detrimental impact to the claimant spouse's undivided one-half interest in the community estate”].)
The trial court determined Daniel was the managing spouse. It documented how Daniel withheld information and documents pertaining to the community's property and assets. He failed to provide Carla with requested records, did not appear for trial, and the financial records submitted at trial on his behalf were “untrustworthy and stale.” Daniel not only failed to meet his burden at trial, but also breached his duties to Carla in the management and accounting of their marital estate. This excerpt from the trial court sums it up well, “In conclusion, Daniel's actions in managing the marital estate are not innocent. Daniel deliberately hid, transferred or encumbered all the assets, intentionally misrepresented and concealed material facts and refused to provide Carla an accounting and records for the marital estate. These actions are clear and convincing evidence of ‘oppression, fraud and malice'.” Daniel fails to demonstrate any error with the trial court's determination he breached his fiduciary duties.
For ease of reference, we omit the trial court's capitalization of the parties' names.
III. BRCM Judgment
Daniel claims during the trial, he submitted “a judgment in the principal sum of $185,000 that had been obtained against him by his employer during the marriage.” The record does not support his assertion.
Daniel contends he did “all that is necessary to show that the judgment was community debt, ” and the trial court improperly determined he ‘“failed to offer any evidence during the trial of a BRCM judgment.”' In support of his argument, Daniel cites to a memorandum he submitted on September 5, 2019, which is stamped as “Received.” The memorandum attached, among other things, the BRCM judgment against Daniel for $185,000. Daniel overlooks the fact that by September 5, 2019, the trial in this matter had already been completed, the matter submitted, and indeed Daniel had already filed a (premature but ultimately permitted) appeal. Because Daniel failed to offer the BRCM judgment into evidence at trial, we cannot consider it on appeal. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1 [“As a general rule, documents not before the trial court cannot be included as a part of the record on appeal”.) The court correctly determined the BRCM judgment was Daniel's sole and separate obligation.
DISPOSITION
The judgment is affirmed. Appellant's request for judicial notice is granted. Respondent shall recover her costs on appeal.
WE CONCUR: BEDSWORTH, J., MOORE, J.