Opinion
G056685
04-30-2020
Estate of JOHN A. THOMAS, Deceased. LINDA L. THOMAS, Petitioner and Appellant, v. KATHRYN THOMAS et al., Objectors and Appellants.
Law Offices of Michael Leight and Michael Leight for Objectors and Appellants. Murtaugh Treglia Stern & Deily, John P. Deily, James C. Harvey and Thomas N. Fay for Petitioner and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00711762) OPINION Appeal from an order of the Superior Court of Orange County, Kim Garlin Dunning, Judge. Affirmed. Law Offices of Michael Leight and Michael Leight for Objectors and Appellants. Murtaugh Treglia Stern & Deily, John P. Deily, James C. Harvey and Thomas N. Fay for Petitioner and Appellant.
INTRODUCTION
This is a one-issue appeal and a one-issue cross-appeal. Kathryn Thomas and Steven Thomas appeal from an order finding that their mother, Linda Thomas, was married to their late father, John Thomas. Linda cross-appeals from a subsequent order finding that certain pieces of property were John's separate property.
John died in 2014. His will, executed in 2003, directed that Linda receive nothing.
The case was tried in two phases. The first phase was tried to a commissioner, who found that Linda was either legally married to John or that she was his putative spouse. The commissioner prepared a statement of decision after the hearing. The second phase, tried to a judge, resulted in a finding that Linda deeded three of seven disputed pieces of property to John, and therefore they were his separate property. The judge also issued a statement of decision regarding the disposition of the property issues. A different judge signed the final spousal property order.
We affirm the final spousal property order. Appellants Kathryn and Steven failed to carry their burden to show error as to the decision regarding Linda's marital status, and Linda did not show error with respect to the pieces of property found to be John's separate property.
FACTS
John was in the oil business. He and Linda had seven children. Linda helped out in her husband's business in a general way, but her main occupation was that of housewife. During the marriage, the couple acquired over 100 pieces of property.
John died in March 2014. His will, executed in 2003, purposely omitted Linda, while acknowledging the marriage. Linda filed a spousal property petition in May 2014, claiming to be John's surviving spouse. She filed an amended petition in June 2016 claiming to be a surviving spouse or, in the alternative, a putative spouse. Kathryn, Steven, and their brother John, Jr., filed objections to Linda's amended petition, alleging, among other things, that Linda was neither a spouse nor a putative spouse.
Linda's entitlement to community property was tried in two phases. During phase one, which dealt with her marital status, Linda testified that she and John were married in Tijuana in 1956 at the age of 16, having first tried unsuccessfully to marry in Las Vegas. A marriage certificate and a receipt from a Tijuana attorney for services rendered were admitted into evidence.
The parties engaged competing experts on Mexican law to opine on whether the marriage was valid under that law. The court determined that Linda's expert, who testified that it was valid, was more persuasive.
Both experts agreed that the marriage certificate admitted into evidence appeared to be authentic. The court so found.
But even if the marriage was not valid under Mexican law, the court found that Linda had a good faith and reasonable belief that she and John were married. Thus she was a putative spouse. The court also found Linda to be a credible witness. A statement of decision, signed by the judicial officer, was issued on February 9, 2017.
Appellants' brief includes both long quotations from the experts' testimony and summaries of other testimony from the first hearing. Appellants did not, however, file a reporter's transcript of that hearing in this appeal. As a result, they have violated California Rules of Court, rule 8.204(a)(1)(C), which requires every statement of fact to be supported by a reference to "the volume and page number of the record where the matter appears." (See also Cal. Rules of Court, rule 8.124(b)(3)(B).) In accordance with the usual penalty attending on rule violations, we have disregarded statements made in the brief that lack support in the record and material that should not have been included. (See Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1440, fn. 2; Roman v. BRE Properties, Inc. (2015) 237 Cal.App.4th 1040, 1054.)
In addition, many "citations to the record" purporting to support "facts" are actually citations to contentions made in one of appellants' trial briefs. "A trial brief is not evidence, it is argument." (In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 591.)
The phase two hearing took place on March 12, 2018. The purpose of this hearing was to adjudicate the status (community property or John's separate property) of seven of the numerous pieces of property acquired during the marriage. The court determined that three of the properties were John's separate property.
A spousal property order was filed on January 30, 2019. A different judge signed the order. Kathryn and Steven have appealed from the ruling on Linda's marital status, and Linda has cross-appealed from the court's determination of separate property status for the three properties.
DISCUSSION
I. The Appeal - Putative Spouse
Kathryn's and Steven's main argument is that the evidence of Linda's and John's marriage was inadmissible and insufficient to support the trial court's finding of a valid marriage. We would review claims of error in the admissibility of evidence for abuse of discretion. (In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 653.) A claim of insufficient evidence to support a trial court's decision invokes the substantial evidence rule: "[W]e examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference. [Citation.] We accept all evidence favorable to the prevailing party as true and discard contrary evidence. [Citation.]" (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.) Kathryn and Steven also argue that Linda failed to comply with the laws of both Mexico and of California, thereby invalidating the marriage.
Fortunately we need not involve ourselves in the intricacies of Mexican law or in disputes about the admissibility of various pieces of evidence. The court found that even if the marriage was invalid under Mexican law, Linda was nevertheless a putative spouse, with a good faith belief that she was validly married. The court based this finding on the marriage certificate and on the spouses' subsequent behavior - living together, holding themselves out as husband and wife, raising seven children together, filing tax returns as a married couple. In addition, the court found Linda to be a credible witness on this subject.
Kathryn and Steven argue that the Mexican marriage certificate was inadmissible and insufficient as proof of Linda's marriage. The court based its finding of authenticity on expert testimony. Whether the certificate was actually authentic is irrelevant; the point is that Linda thought it was, in good faith.
Family Code section 2251 provides in pertinent part: "(a) If a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that the marriage was valid, the court shall: [¶] (1) Declare the party or parties, who believed in good faith that the marriage was valid, to have the status of a putative spouse." "Good faith was a question of fact that depended on all the circumstances leading up to and surrounding the invalid marriage, and a party's state of mind when entering the marriage was key." (Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1122 (Ceja).) The belief is measured by a subjective standard. (Id. at p. 1128.) Reasonableness is only one factor in assessing a spouse's good faith belief that the marriage was valid. (Id. at p. 1126.)
Appellants rely in large part on In re Marriage of Vryonis (1988) 202 Cal.App.3d 712, which Ceja expressly disapproved on the issue of an objective standard for a good faith belief. (Ceja, supra, 56 Cal.4th at p. 1126.) "Indeed, a reasonable person test would make it markedly more difficult to extend the civil benefits of marriage to those parties most in need of the putative spouse doctrine and its protection, namely, those innocents whose youth, inexperience, or lack of education or sophistication contributed to an honest belief in the validity of their marriages." (Ibid.)
We defer to the trial court's findings as to credibility (see Estate of Young (2008) 160 Cal.App.4th 62, 76), and as to questions of fact we employ the substantial evidence standard. (Estate of Goldberg (1962) 203 Cal.App.2d 402, 411-412.) As stated above, the court had ample evidence upon which to base its conclusion that Linda honestly believed herself to have been validly married in Mexico.
There is another basis for affirming the ruling on Linda's marital status. Kathryn and Steven have not supplied this court with a reporter's transcript of the hearing. "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]" (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
Having failed to provide a reporter's transcript of the phase one hearing as part of the record on appeal, Kathryn and Steven are precluded from arguing that the evidence of Linda's status as a putative spouse was insufficient.
II. The Cross-Appeal - the Property
After the phase two hearing, the court ruled that three disputed pieces of property were John's separate property, as follows:
• A residence in Huntington Beach, presently occupied by Kathryn and purchased by John (Residence);
• Two lots on Garfield Street in Huntington Beach, where family oil operations were conducted (Lots 8 & 9);
• Three lots on Garfield Street in Huntington Beach, also part of family oil operations (Lots 1, 2, & 3).
With respect to all three pieces of property, Linda argues in essence that Kathryn and Steven failed to present sufficient evidence to rebut the presumption of undue influence established by Family Code section 721. The trial court held they had overcome the presumption as to these three categories of property. "The question 'whether the spouse gaining an advantage has overcome the presumption of undue influence is a question for the trier of fact, whose decision will not be reversed on appeal if supported by substantial evidence.' [Citations.]" (In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 737.)
The trial court referred to the evidence upon which it based the finding that the presumption had been overcome. The properties were primarily business properties, which were John's bailiwick, and Linda could not recall being coerced, pressured, or cheated by John with respect to financial dealings. In addition, Kathryn testified that Linda did not want to be a part of the oil and gas aspects of the family business because of her fears of being involved in contamination lawsuits.
This testimony raises the question of which spouse was in fact disadvantaged by the transfer of these properties.
The marriage seems to have conformed to a familiar pattern of a bygone era - the husband was the breadwinner, while the wife's primary responsibility was the home and the children. Linda referred to this pattern in her testimony. "[W]ork came first with him [i.e., John], I know that, and then his family, his children, me." Nothing in the record indicated that Linda objected to this division of labor or that she sought any involvement in the business. The court had substantial evidence upon which to base its decision regarding undue influence.
A. Residence
The court found that Linda had signed an Interspousal Transfer Grant Deed under the following typewritten statement: "It is the express intent of the grantor, being the spouse of the grantee to convey all right title and interest of the grantor, community or otherwise in and to the herein described property to the grantee as his/her sole and separate property." The grant deed was executed on May 9, 1996, and recorded on May 14. The court found that this writing satisfied the requirements of Family Code section 852. As stated above, the presumption of undue influence had been rebutted.
Family Code 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."
B. Lots 8 & 9
John acquired this property as "a married man as his sole and separate property" by grant deed dated July 20, 1976. Linda's quitclaim deed for this property - to John "her husband as his sole and separate property" - is dated June 9, 1976. Both the grant deed and the quitclaim deed were recorded on the same day - August 24, 1976. The court found that the date of recording controlled.
Linda argues that the quitclaim deed was ineffective because she had no interest in the property at the time she signed the deed. John had not yet acquired the property, so she had nothing to convey to him in June 1976.
The facts of this case strongly resemble the facts of MacKay v. Darusmont (1941) 46 Cal.App.2d 21 (MacKay). In that case, the husband opened an escrow to buy a piece of property on April 24, 1937. That same day, the wife put a deed into escrow quitclaiming the property to her husband, "a married man as his sole and separate property." Escrow closed and both the quitclaim deed and the grant deed conveying the property to the husband "as his separate property" were recorded on May 13, 1937. (Id. at p. 23.)
Later the wife claimed that she had a community property interest in the property. The court disagreed. "[The wife] placed her quitclaim deed in escrow and permitted it to be used in connection with the acquisition of this lot by MacKay for the very purpose of enabling him to acquire it as separate property. None of the papers in the escrow were to be used until the escrow was closed in accordance with the instructions, which were to the effect that the property was to be conveyed to MacKay as his separate property. The effective date of the papers was when they were recorded and the quitclaim deed was placed in escrow with the intention that it should apply to and be used in connection with the acquisition of this very property as the separate property of MacKay. MacKay had no interest in the property until the escrow was closed and, whatever the appellant's interest in the property was, it was then conveyed by her to MacKay with the specific provision that it was to be his separate property." (MacKay, supra, 46 Cal.App.2d at pp. 25-26.)
Likewise here, Linda executed a quitclaim deed conveying her interest in Lots 8 and 9 to "her husband as his sole and separate property." This quitclaim deed and the grant deed conveying the property to John were both recorded on August 24, 1976. Under MacKay, Linda's interest in the property was then conveyed by her to John with the specific provision that it was to be his separate property.
C. Lots 1, 2, & 3
John acquired a 75 percent interest in this property by grant deed on March 6, 1981. Linda quitclaimed her interest in this property to John on the same date. Both the grant deed and the quitclaim deed were recorded on June 9, 1981. Linda had an interest in the property as of March 6, which she quitclaimed to John. Thus the 75 percent interest in Lots 1, 2, and 3 became John's separate property.
On May 24, 1993, the person who owned the other 25 percent of this property transferred his interest to John. The grant deed recited that John acquired the property as "a married man as his sole and separate property." A handwritten notation on the deed stated that the transfer was an inter-family transfer for no consideration, and it appears that no documentary transfer tax was due. There is no evidence in the record about any transfer to John of Linda's interest in this newly-acquired portion of Lots 1, 2, and 3.
The statement of decision had one sentence regarding the 1993 acquisition: "By that time, the properties were John's separate property."
Kathryn and Steven argue that Linda's 1981 quitclaim deed applied to the entire property, not just John's 75 percent. So when John acquired the rest of the property in 1993, Linda had already transferred her interest to him.
Neither John nor Linda had an interest in the 25 percent owned by someone else in 1981. So Linda could not have transferred any interest in this portion of the property to John in 1981.
Interpretation of a written instrument is a question of law, and we are not bound by the trial court's decision on this issue. (See Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866.) The goal is to give effect to the purpose of the instrument. (Id. at p. 865.)
The deed recites that the property was transferred without consideration. Property transferred without consideration is a gift. (See Golden State Water Co. v. Casitas Municipal Water Dist. (2015) 235 Cal.App.4th 1246, 1255.) Under Family Code section 770, subdivision (a)(2), gifts made after marriage are the separate property of the donee spouse. The recitation in the deed itself that the grant was made to John "a married man as his sole and separate property" dispels any possible uncertainty as to whether the gift was intended to benefit the community or John alone.
Family Code section 2581 establishes a presumption that property acquired during marriage is community property, but this presumption applies to division of property upon dissolution of marriage or legal separation. --------
III. The Order
Appellants argue that the spousal property order must be reversed because it was signed by a judge other that the commissioner who heard phase one and the judge who heard phase two. Both the commissioner and the judge signed and filed statements of decision, fully adjudicating all controverted issues. The mere entry of the order based on these decisions is a ministerial act, which may be directed by the court. (See Hayward Union High School Dist. v. Madrid (1965) 234 Cal.App.2d 100, 114-115.) It is not necessary that the judge or the commissioner sign the final order.
DISPOSITION
The final spousal property order of January 30, 2019, is affirmed. The parties are to bear their own costs on appeal. The request for judicial notice is denied.
BEDSWORTH, J. WE CONCUR: O'LEARY, P. J. ARONSON, J.