Opinion
G043080
09-22-2011
In re Marriage of DOAN THUY and TIEN MANH DINK DOAN THUY DINH, Respondent, v. TIEN MANH DINH, Appellant.
Law Offices of William J. Kopeny and William J. Kopeny for Appellant. Dawn E. Wardlaw and Craig Darling for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 04D003616)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Nancy A. Pollard, Judge. Affirmed in part, reversed in part.
Law Offices of William J. Kopeny and William J. Kopeny for Appellant.
Dawn E. Wardlaw and Craig Darling for Respondent.
Ex-husband Tien Manh Dinh (husband) appeals from a further judgment on reserved issues in a marital dissolution action, claiming the trial court wrongly awarded ex-wife Doan Thuy Dinh (wife) an equal community property share of certain real property and authorized excessive spousal support and child support awards. We reverse the judgment in part. The court committed legal error by basing its division of property on an alleged oral transmutation of husband's separate property into community property. Moreover, the court abused its discretion by awarding retrospective spousal support without identifying the relevant time period in which wife was entitled to spousal support.
FACTS
The parties married on July 26, 2000, and permanently separated March 2, 2004. They have a daughter, born in September 2002. Wife petitioned for dissolution of marriage on April 26, 2004. Wife remarried after the dissolution of her marriage to husband, although the date of her remarriage is not in the record.
A judgment dissolving the marriage was entered on August 17, 2004. But, with regard to all issues other than the dissolution of marriage, the court subsequently granted a motion to set aside the judgment (which had been based on a settlement agreement signed by the parties and was allegedly procured from wife through duress and/or fraud). The propriety of the trial court's order setting aside the initial judgment is not before this court on appeal.
Wife filed an amended petition for dissolution of marriage on October 20, 2006. This appeal is concerned with property division and support issues arising out of the amended petition. A trial occurred from July to November 2008 to resolve these issues (along with custody issues, which are not raised on appeal).
Husband's November 2008 Income and Expense Declaration
Husband was employed by Southern California Edison (SCE) as an information technology engineer. He earned $7,099.02 per month from SCE. Husband estimated his monthly rental property income as $230, while noting he earned $528 the previous month from his rental properties. Husband estimated his cash assets as $3,200, but labeled the value of all other real and personal property assets as "unknown." Husband estimated his total monthly expenses as $7,692.90 (including mortgage payments, car payments, credit card payments, household expenses, and all other expenses). Husband's prior income and expense declarations (January 2008, July 2008) featured similar figures.
Wife's November 2008 Income and Expense Declaration
Wife was not employed in November 2008, but was a licensed manicurist who last worked as such in August 2007, earning an undisclosed amount. Wife listed no income other than an unspecified "other" income of $1,000 per month. Wife claimed to own no cash or other liquid assets, and listed her real and personal property value as "unknown." Wife estimated her monthly expenses as $6,320 (including rent, car loan payments, other credit payments, and household expenses). Her new husband earned $6,500 per month.
Husband's Testimony Regarding 7271 Bourbon Lane
At the time of trial, husband resided alone in La Palma, California on Bourbon Lane (Bourbon Property). Husband purchased the Bourbon Property in 1998 and continued to be listed as the sole owner on the deed at all relevant times. Husband obtained the down payment to purchase the Bourbon Property ($54,200 down, $194,800 borrowed) from his own bank account, a $10,000 loan from his brother, and a $10,000 gift from his parents.
The mortgage payment on the Bourbon Property in 2002 was $1,216 per month. Husband denied that wife ever contributed separate property to pay the mortgage. Husband acknowledged receipt of several checks to him from wife in the amounts of $600 and $450 during the marriage.
On April 1, 2002, wife provided husband with a check for $16,600. On April 8, 2002, husband paid his brother $6,000 as a partial repayment of the Bourbon Property loan. Husband also sent an April 8, 2002 check for $11,534.28 to a credit card company. Husband sent an April 24, 2002 check for $6,441.32 to another credit card company. Husband denied he told wife he would use $16,600 to pay off loans on the Bourbon Property and would put wife's name on the title in exchange. Husband claimed the $16,600 was to pay off credit card debt incurred by wife for $15,500 in cash advances she utilized (plus financing charges).
Husband denied wife ever asked him to put wife's name on the Bourbon Property title in 2002. But in 2003 and 2004, wife requested on multiple occasions (at the end, "a couple times a week at least") that husband put wife on the title to the Bourbon Property. Husband does not recall wife making an issue of ownership until after she filed a petition for dissolution of marriage in August 2003, which was subsequently dismissed by wife. "Only towards the end I [told her I] would consider it because I was being pressured so much and she was demanding and [it] really just caused a lot of arguments between us . . . ." Husband told wife he would consider changing the title if wife gained back husband's trust. During one fight, husband called the county clerk's office to see if they were open.
Husband's Testimony Regarding Other Real Properties
Husband owned (prior to June 2004) an interest in a property on Cornuta Avenue in Bellflower, California (Cornuta Property). The Cornuta Property was purchased November 7, 2002, and titled in the name of husband's brother and sister-in- law. But husband claimed he owned a 40 percent interest pursuant to an oral agreement with his brother. Husband contributed $23,647 to his brother (obtained from a home equity line of credit (HELOC) on the Bourbon Property) as part of the down payment on the Cornuta Property. The Cornuta Property had a cash flow of approximately $6,700 per month.
Husband owned (prior to April 2005) an interest in a property at on 119th Street, in Los Angeles, California (119th Street Property). The 119th Street Property was purchased October 29, 2002, and title was held solely by husband, "a married man, as his sole and separate property." Husband presented a waiver to wife to sign, which she did. For his $55,190 down payment, husband utilized money obtained from the HELOC on the Bourbon Property. Husband claims his share of the property was actually only 50 percent, because he orally agreed his brother owned the other half. The 119th Street Property had an approximate cash flow of $1,800 per month.
In June 2004, husband and his brother decided to consolidate their control in the 119th Street Property and the Cornuta Property, respectively. As husband owned $148,000 in the Cornuta Property and brother owned $111,000 in the 119th Street Property, brother paid husband the difference of $37,000 and the parties no longer maintained unwritten ownership interests in the Cornuta Property and the 119th St. Property.
In April 2005, husband sold the 119th Street Property and used the proceeds to make a down payment on a property located on Cochran Avenue, in Los Angeles, California (Cochran Property). The Cochran Property, as of the time of trial, was a "fully rented" "four-plex" from which husband received the rental income listed on his income and expense declaration. The Cochran Property was titled in the name of husband, "an unmarried man."
Husband also owned (in 2008) a 20 percent interest in a single family residence on Dunbar in Bellflower, California; husband's four brothers owned the other 80 percent and husband's parents lived (rent free) in the residence (Dunbar Property). It does not appear wife claimed or received any interest in the Dunbar Property.
Miscellaneous Husband Testimony
Wife initially filed for divorce in August 2003. Husband and wife reconciled shortly thereafter in September 2003. In an incident in September 2003, wife became angry, threw objects around the house, and cut up pictures with a knife — all while holding daughter. This incident followed a discussion in which wife demanded that her name be put on the title to the Bourbon Property.
A friend of husband testified in conformity with husband as to what occurred during this incident.
On March 2, 2004, after husband signed over title on a vehicle to wife, wife demanded $5,000 to start her own nail salon. Husband declined and wife began verbally and physically attacking husband. During the confrontation, wife attempted to grab a knife and husband stopped her by grabbing her hand. Police arrived and talked to the parties separately. Husband declined to "press charges," and he was subsequently arrested. But no criminal charges were ultimately filed against husband.
Husband maintained automobile insurance on his motor vehicles throughout the marriage, but listed wife as an excluded driver. Husband claimed this was required by the insurer as a condition of issuing the insurance because of wife's poor driving record. "I tried to put her on at the beginning and she was rejected and so I purchased insurance for her through another company." Husband cancelled this second policy in June 2003 when wife sold her car, but wife then had an accident in December 2003 (when she was uninsured) in one of husband's cars.
Husband paid $80,000 to wife as a total settlement of the initial dissolution petition — actually, about $76,000 because he unilaterally deducted "some credit card debt that she incurred and a couple other things . . . ." Husband claimed the entire $80,000 as a deduction on his 2004 income tax return, but has not sought to amend his tax returns at any point to reflect the order setting aside the prior dissolution judgment. Husband utilized his Bourbon Property HELOC to fund $40,000 of this settlement.
Wife's Testimony
Wife arrived in the United States in 1989 when she was 17 years old. She has taken some courses in English since arriving. Wife utilized an interpreter to testify at trial.
Wife claimed she obtained $15,500 in cash advances from credit cards to buy an automobile for $8,000, and she returned the remaining $6,600 to husband. "In April 2002 I [wrote a check] that would repay to his family for the [Bourbon] Property . . . $16,000." The $16,000 came from wife's savings from before she married. Part was cash wife had hidden in her clothes drawer. A larger portion ($13,500) was from another separate bank account wife maintained. But subsequent testimony by wife muddles this story because wife acknowledged there was no money in this account as late as December 2001. Husband "said if I sign the check to help his family then he would add my name into the house deed but he didn't do it." Wife conceded she did not claim an interest in the Bourbon Property in her first dissolution petition filed in August 2003. Nor did wife claim an interest in the Bourbon Property in her March 2004 dissolution petition.
Husband subsequently testified this would have been impossible because the car was actually purchased the previous year.
While husband testified about $16,500 given to him by wife, wife's testimony uses the number $16,000. Our recitation of the facts reflects this inconsistency, but the $500 difference plays no role in our analysis.
With regard to the waiver wife signed on the 119th Street Property: "He didn't explain. He told me just to sign it so he could purchase a house. We went for notarization." "He said I had bad credit. If I didn't sign, he couldn't buy the house." Wife did not understand she was waiving her right to claim an ownership stake in the 119th Street Property. Husband and his brothers never allowed wife to listen to their discussions pertaining to investment properties.
With regard to an incident in February 2004: Husband "got into my room and he hit me. And then my child cry and then he left the room. He got into the living room and I heard the breaking of stuff, breaking of the things in the house, the noise of breaking of the things in the house. [¶] . . . [¶] And he pulled me . . . into the bedroom and locked me in the closet in the dressing closet." Wife disavowed husband's description of a September 2003 incident.
With regard to the incident in March 2004: After returning home to get $5,000 for the nail store, wife "quarrel[ed] with [husband's] mother, [and husband] beat [wife] up. I use the telephone to call the police. He pull up the telephone line. . . . I told [the police] it was [husband] who did not want me to make phone calls and then he was arrested." "He pulled my hair and hit my head into the window because I was so hurt."
Wife received about $76,000 from husband after the dissolution of marriage.
Judgment
The court entered judgment on November 6, 2009. The court attached a lengthy statement of decision addressing each of the "reserved issues" decided at the trial. We quote this document in relevant part.
We exclude discussion of child custody, retirement plan division, vehicles, and attorney fees as husband has not raised issues on appeal with regard to these issues.
"The Court finds the credibility of both parties somewhat questionable. However, there were times through the Trial the Court did believe some of the evidence as truthful." "[T]he Court orders that both parties shall have joint legal custody of [daughter] and [wife] shall have primary physical custody."
"CHILD SUPPORT: Based on the attached Dissomaster printouts . . . ," the court awarded: (1) $1,253 per month from December 1, 2007 to July 31, 2008; (2) $1,205 per month from August 1, 2008 through November 30, 2008; and (3) $1,050 per month from December 1, 2008 through daughter's graduation from high school or reaching age 19. "Father shall maintain the minor child on his existing medical/dental insurance as provided through his place of employment. Each party shall pay 50% of any and all health care expenses incurred on behalf of the minor child that are not covered by said insurance . . . ." "Each party shall be responsible for one-half of any costs of day care necessary to allow either party to work."
"SPOUSAL SUPPORT: [¶] . . . The Court finds [wife] has remarried prior to Trial, therefore the issue of a prospective order for spousal support is now moot and the Court terminates the Court's jurisdiction over the issue of spousal support in the future to either party. However, the Court finds that pursuant to the prior, now set aside order, the parties agreed to and did act on their agreement that [husband] pay to [wife] the sum of $80,000.00 in spousal support. The Court further finds [husband] paid to [wife] the sum of $76,121.63 reflecting the balance after an offset of $3,878.37 which the Court did not recognize as a valid offset. In 2004, [husband] deducted the sum of $80,000.00 from his income tax gross income, receiving a tax benefit for the deduction of $80,000.00. At the time of Trial, [husband] had not amended his 2004 tax returns."
"As to the factors contained in Family Code Section 4320, the Court finds and considers the following: The substantial difference in the earnings of the parties. [Husband] had annual earnings of $71,443.00 in 2002 and $72,531.00 in 2003 as reflected on the parties' joint returns. [Wife] was listed as a housewife. [Husband] has remained continuously employed with SCE and has a degree in computer science. [Wife] has a high school education and did not work while she was pregnant during their marriage and after the birth of their child. She has a license as a manicurist and she testified that the most she ever earned in any given month was approximately $2,500.00. There is a history of domestic violence in this marriage, with [husband] being arrested at one time, but not prosecuted. [¶] . . . Therefore, the Court finds that the actions of the parties and the benefit received by [husband] make it appropriate that the Court find the payment of $76,121.63 was paid by [husband] to [wife] as and for a spousal support buyout and makes this the order of the Court."
"BOURBON LANE/EAST 119th STREET PROPERTIES: [¶] . . . The Court finds that the tracing of funds by [wife] to [husband] in the amount of $16,000.00 in April 2002 was sufficient. The Court finds credible the testimony of [wife] that this $16,000.00 was paid by [wife] in reliance on the word of [husband] that by repaying the $16,000.00 down payment loan from [husband's] parents, and [wife's] payment of $600.00 equal to V of the monthly mortgage payment and [wife's] driving [husband] to the 'place to sign documents to add her name to title' only to find that the offices were closed on Saturdays gives credence to [wife's] theory that she is entitled to an interest in this real property."
"[Husband's] acceptance of the money for the down payment reimbursement and the monthly payments in view of the extreme differences in the parties' incomes constitutes an execution of the agreement by the parties. There is no deed to show an interest in [wife]. Nevertheless, the Court finds that [wife] is entitled to a 50% interest in this property as her community interest in said property. The Court further finds [husband] breached his fiduciary duty to [wife] by failing to put her name on the title to this property during marriage in consideration for his receipt of $16,000.00 from [wife]. Counsel for the parties are ordered to set a hearing on the issue of valuation and division of this asset. [¶] . . . The Court finds [husband's] testimony that the $16,000.00 was to replace monies [wife] had withdrawn in [husband's] name not to be credible."
"Since [wife] is due sums from her interest in the Bourbon property, any funds or HELOC on said property and the funds that would flow therefrom result in a constructive trust for said benefits held by [husband] for the benefit of [wife]. [Wife] is entitled to a 50% interest in the [119th Street Property]. She is also entitled to one-half of the proceeds from the rental income of this property. [Wife's] execution of the Interspousal Deed . . . is to be set aside based upon the Delaney/Haines holdings. The Court finds that [wife] was unaware of the consequences of her signing away her property rights, and her signing the interspousal Deed immediately following the birth of the parties' child would lead the Court to believe her contention and allegation that this signing was a breach of husband's duty to her and was signed under undue influence. The property was and is held in the name of [husband] alone. The Court refutes [husband's] testimony that his brother owned any interest without a deed in the name of the brother."
"COCHRAN PROPERTY: [¶] . . . Since this property was acquired in October 2004 by way of a 1031 exchange transaction involving the 'sale' of [the 119th Street Property], [wife] is entitled to one-half of the new monthly cash flow and one-half of the value, which sums are to be determined at a future hearing to be set by counsel for the parties."
"CORNUTA PROPERTY: [¶] . . . The Court finds that [wife] is entitled to one-half of the monthly cash flow during the period of time that [husband] owned an interest in this property (approximately November 7, 2002 through June 16, 2004), which sums are to be determined at a future hearing to be set by counsel for the parties. In addition, [wife] is entitled to one-half of the amount [husband] received upon the 'sale' of his interest in this property to his brother. [Husband] testified that he received the sum of $37,000.00. Therefore, [wife] is entitled to the sum of $18,500.00 for her interest in this property."
DISCUSSION
Husband contends the court committed four distinct errors. We address each of husband's contentions in turn, reviewing issues of law de novo and issues of fact for substantial evidence. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1421.)
Award of 50 Percent Interest in Bourbon Property
Husband first argues the court erred by awarding wife a 50 percent interest in the Bourbon Property, both because there was no writing transmuting the property from separate property to community property and because there was not substantial evidence to support wife's explanation for how she obtained an interest in the Bourbon Property. Wife's story was somewhat implausible with regard to both where she obtained $16,000 and what oral representations were made between husband and wife. But we will not interfere with the trial court's credibility determinations. On the other hand, we conclude the court erred in its application of the law to the facts it found to be true and we therefore reverse the court's award of a 50 percent interest in the Bourbon Property to wife.
"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." (Fam. Code, § 760.) "Each spouse owns a one-half interest in all community property." (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1102 (Benson).)
All statutory references are to the Family Code, unless cited otherwise.
"Separate property of a married person includes all of the following: [¶] (1) All property owned by the person before marriage. [¶] (2) All property acquired by the person after marriage by gift, bequest, devise, or descent. [¶] (3) The rents, issues, and profits of the property described in this section. [¶] (b) A married person may, without the consent of the person's spouse, convey the person's separate property." (§ 770.) "Except as otherwise provided by statute, neither husband nor wife has any interest in the separate property of the other." (§ 752.) Clearly, prior to the parties' marriage, the Bourbon Property was the separate property of husband.
"The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof." (Evid. Code, § 662.) Husband is still listed as the sole title owner of the Bourbon Property. Thus, going into trial, there was an evidentiary presumption that the Bourbon Property was still husband's separate property.
"[M]arried persons may by agreement or transfer, with or without consideration, . . . [¶] . . . [¶] [t]ransmute separate property of either spouse to community property." (§ 850, subd. (b).) "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." (§ 852, subd. (a).) "The express declaration must unambiguously indicate a change in character or ownership of property. [Citation.] A party does not 'slip into a transmutation by accident.'" (In re Marriage of Starkman (2005) 129 Cal.App.4th 659, 664.)
The writing requirement of section 852, subdivision (a), "was intended to remedy problems which arose when courts found transmutations on the basis of evidence the Legislature considered unreliable. . . . [¶] There is no question that the Legislature intended . . . to invalidate all solely oral transmutations." (Estate of MacDonald (1990) 51 Cal.3d 262, 269.) Section 852, subdivision (a), is not simply a statute of frauds and is not subject to traditional statute of frauds exceptions, such as partial performance. (Benson, supra, 36 Cal.4th at p. 1100 [rejecting attempt to enforce alleged oral transmutation].) Nor may parties utilize the doctrine of equitable estoppel to prove an oral transmutation through "extrinsic evidence" and thereby avoid the writing requirement of section 852, subdivision (a). (In re Marriage of Campbell (1999) 74 Cal.App.4th 1058, 1062-1065.)
There is no writing in the record capable of serving as a valid transmutation of the Bourbon Property. Thus, there was no transmutation of the Bourbon Property from husband's separate property into community property. The mere fact that wife performed on the alleged oral agreement to transmute the character of the Bourbon Property (by delivering $16,000 to husband) is irrelevant to the question of whether a transmutation occurred. "A contrary view would threaten to resurrect the 'easy transmutation' rule that the Legislature repudiated when it enacted section 852 . . . ." (Benson, supra, 36 Cal.4th at pp. 1107-1108.)
Wife claims, however, that the court's finding of breach of fiduciary duty by husband allowed the court to deem the Bourbon Property to be community property. "Subject to subdivision (b), either husband or wife may enter into any transaction with the other, or with any other person, respecting property, which either might if unmarried." (§ 721, subd. (a).) "[I]n transactions between themselves, a husband and wife are subject to the general rules governing fiduciary relationships which 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. . . ." (Id., subd. (b).) "When an interspousal transaction advantages one spouse, '[t]he law, from considerations of public policy, presumes such transactions to have been induced by undue influence.' [Citation.] 'Courts of equity . . . view gifts and contracts which are made or take place between parties occupying confidential relations with a jealous eye.'" (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 293-294 (Haines).)
Here, the court was entitled to find wife had separate property she had saved before the marriage. The court also was entitled to find wife kept this money hidden in a clothes drawer and in a separate bank account. Moreover, the court was entitled to find husband utilized wife's separate property to pay off debt on his separate property.
But, the court was not entitled to find husband violated his fiduciary duty under section 721, subdivision (b), by not completing a transaction to transmute the Bourbon Property. Wife "does not seek to undo a transmutation that was so grossly onesided and unfair as to be the product of undue influence under section 721[, subdivision] (b). [Citation.] [She] instead invokes these principles to establish a transmutation that fails to comply with the terms of section 852[, subdivision] (a) . . . . However, absent a transmutation that otherwise satisfies section 852[, subdivision] (a), there is no basis for applying the presumption of undue influence under section 721[, subdivision] (b)." (Benson, supra, 36 Cal.4th at p. 1112.) There was no transmutation of the Bourbon Property regardless of whether the court believed wife's testimony and/or found husband's conduct to be dishonest.
This is not a case like Haines, supra, 33 Cal.App.4th 277, where the court held the presumption of undue influence (§ 721, subd. (b)) trumped the presumption of title (Evid. Code, § 662) in dissolution of marriage disputes. The lack of a transmutation of separate property to community property in this case does not raise a presumption of undue influence.
In essence, the court found husband enriched himself at wife's expense and punished him without regard to the harm suffered by wife. A more suitable remedy in these circumstances is reimbursement of wife for her separate property contributions to the Bourbon Property. (See § 2640, subd. (c) ["A party shall be reimbursed for the party's separate property contributions to the acquisition of property of the other spouse's separate property estate during the marriage, unless there has been a transmutation in writing . . . or a written waiver of the right to reimbursement"].)
Section 2640 was amended in 2004 to add subdivision (c). Prior to 2004, at least one case had held that section 2640, subdivision (b), did not allow for reimbursement of separate property contributions to separate property, but instead authorized reimbursement only for separate property contributions to community property. (In re Marriage of Cross (2001) 94 Cal.App.4th 1143, 1147-1148 (Cross).) As we are remanding this case for a new trial, we need not reach the question of whether section 2640, subdivision (c), is retroactively applicable to wife's payment of $16,000 to husband in 2002. Nor need we decide whether another legal theory could provide the same remedy in this case even if section 2640, subdivision (c), is not retroactive.
Somewhat strangely, wife did not argue at trial that payment of the Bourbon Property mortgage with community property (such as husband's salary) during the marriage resulted in a community interest arising as to a portion of the Bourbon Property. "Where community funds are used to make payments on property purchased by one of the spouses before marriage 'the rule developed through decisions in California gives to the community a pro tanto community property interest in such property in the ratio that the payments on the purchase price with community funds bear to the payments made with separate funds.' [Citations.] This rule has been commonly understood as excluding payments for interest and taxes." (In re Marriage of Moore (1980) 28 Cal.3d 366, 371-372 (Moore).) "The formula gives recognition to the economic value of any loan proceeds contributed toward the purchase of the property. Where . . . the loan was extended before marriage and was based on separate assets, it is a separate property contribution." (In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 437 (Marsden).)
It may be wife deemed her potential interest under Moore/Marsden to have been too small to concern herself with. Husband purchased the Bourbon Property for $249,000 ($54,200 down payment, $194,800 loan) in December 1998. Given that the parties were married for only about four years, the amount of principal paid down on the loan during these years was likely insubstantial in comparison with husband's initial contribution. But on remand, the court may consider Moore/Marsden community property contributions, alongside wife's separate property contributions, if any, in reaching an appropriate property division. The Bourbon Property issue is not an all or nothing proposition.
Other Property Awarded to Wife
The court also erred in awarding wife a 50 percent share in husband's other separate real properties. This error derived from the court's initial error in finding a transmutation of the Bourbon Property. Wife did not have a 50 percent interest in the Bourbon Property. Husband was entitled to use his equity in the Bourbon Property to speculate in other real properties. Wife's separate property contributions and/or community contributions to the Bourbon Property do not entitle her to an equal share in every subsequent investment by husband. We express no opinion as to whether wife might establish on remand an interest in the other properties through a theory other than one premised upon an oral transmutation of the Bourbon Property.
Child Support Award
Husband contends the child support award was improper because it was based on husband having available all of his investment income, which was reduced by the court's award of half of husband's real property interests to wife. Husband does not otherwise challenge the merits of the child support order. We have reversed the rulings with regard to husband's separate property. Thus, we have no basis to inquire into the amount of child support awarded by the court. We note that child support obligations may be modified at any time. (§ 3651, subd. (a).) Thus, depending on the outcome of the remaining disputed issues on remand, the parties may seek modification of the child support award.
Spousal Support Award
Finally, husband claims wife should not be allowed to keep the $76,126.23 she received from husband as an attempted settlement of wife's initial dissolution petition. The court simply allowed wife to keep this money (even though the settlement was set aside) as a spousal support "buyout."
"In a judgment of dissolution of marriage . . . the court may order a party to pay for the support of the other party an amount, for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage . . . ." (§ 4330, subd. (a), see also § 4320.) "Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon . . . the remarriage of the other party." (§ 4337.) A spousal support award is reviewed for abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283.)
The court abused its discretion in its award of spousal support. The court appropriately cited factors set forth in section 4320 and engaged in some analysis of these factors. Furthermore, the court correctly acknowledged the remarriage of wife ended any potential prospective obligation of husband to provide spousal support. But there is no finding as to when this remarriage occurred (and when, therefore, the obligation to pay spousal support ended). It is impossible to say whether a payment of $76,126.23 in spousal support was appropriate. The court failed to identify the time span at issue; thus, the court could not have been exercising its discretion in setting a just and reasonable amount. For example, if wife remarried one year after the parties' separation, the spousal support award would nearly equal husband's yearly earnings. Instead of carefully analyzing the issue, the court characterized the $76,126.23 payment as a "spousal support buyout," even though the settlement initially would have resulted in a final settlement of all dissolution issues (not just spousal support issues). We reverse the spousal support award.
DISPOSITION
The judgment is reversed in part and remanded for a new trial as to issues of real property division and retrospective spousal support. The judgment is otherwise affirmed. Husband shall recover costs incurred on appeal.
IKOLA, J. WE CONCUR: MOORE, ACTING P. J. ARONSON, J.