Opinion
E063531
10-12-2017
In re the Marriage of DOMINIC and BIBIAN EHIRIM. DOMINIC EHIRIM, Appellant, v. BIBIAN EHIRIM, Respondent.
Dominic Okechukwu Ehirim, in pro. per., for Appellant. Bibian Ehirim, in pro. per., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FAMRS1200537) OPINION APPEAL from the Superior Court of San Bernardino County. Teresa S. Bennett, Judge, and Diane I. Anderson, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Dominic Okechukwu Ehirim, in pro. per., for Appellant. Bibian Ehirim, in pro. per., for Respondent.
I. INTRODUCTION
After a 20-year marriage, Dominic and Bibian Ehirim separated in 2009, and appellant Dominic petitioned for divorce in 2012. The family court granted a judgment of dissolution, granted respondent Bibian primary physical custody of the parties' minor daughter, ordered Dominic to pay child support from January 2015 forward, ordered no spousal support for either party, and characterized and divided property between the parties. In a separate child support case initiated by the San Bernardino County Department of Child Support Services (DCSS), a child support commissioner ordered Dominic to pay child support for an earlier period (September 1, 2013 to December 31, 2014). On appeal, Dominic challenges numerous aspects of these rulings. He contends the court should have granted an annulment based on fraud; the court erred in determining custody, child support, spousal support, and reimbursement issues; the commissioner erred in determining child support; the court erred in dividing certain real and personal property; and both the commissioner and the court exhibited bias or prejudice against him. We reject each of these claims and affirm.
Consistent with the convention in marital dissolution cases, for clarity, we will refer to the parties by their first names. (E.g., In re Marriage of Baker (1992) 3 Cal.App.4th 491, 494, fn. 1.)
II. FACTS AND PROCEDURE
A. The Separate Child Support Case
The parties married in 1989 and separated in April 2009. At the time of separation, they had three daughters: Ki., nearly 18 years old; A., age 15; and Ke., age 8.
DCSS brought a child support case against Dominic (County of San Bernardino v. Dominic Ehirim, San Bernardino County Superior Court case No. CSKS1111646) apart from the instant dissolution matter. In May 2014, DCSS obtained an order for child support in the amount of $1,116 per month for Ke., the only child who was still a minor, plus arrears of $100 per month. The order was retroactive to September 1, 2013. In October 2014, DCSS filed a substitution of payee designating Bibian as the payee. B. Trial in the Dissolution Matter
Trial in the dissolution matter took place over the course of several days in June, August, September, October, and November 2014. Only Dominic and Bibian testified at trial.
Bibian was approximately 45 years old and Dominic was approximately 62 years old at the time of trial. She and Dominic met in Nigeria in or around 1988. Their families arranged her marriage to him against her wishes. She did not want to marry him and felt pressured into the marriage. Dominic asserted that she lied about her age and told him she was born in 1960. Bibian testified she was born in 1968, which was the date on her driver's license and passport.
The parties had a traditional marriage ceremony in Nigeria in 1989. Bibian immigrated to the United States in April 1990. Dominic sponsored her. She testified that when she arrived, she "quickly realized the nightmare." She characterized him as physically and emotionally abusive toward her from the first, but she did not have anywhere to go, having no family here apart from him. She felt forced into a church wedding in the United States and, again, did not want to marry him. She initially refused to have the wedding, but he threatened to kick her out of their home and let her "die on the street" unless she agreed to the wedding. Dominic denied committing domestic violence toward Bibian and said she fabricated the allegations "to get out of the marriage."
The first time Bibian called the police to report domestic abuse was in September 2007, though the abuse was constant from the time she arrived in the United States until they separated. Dominic testified to being arrested for allegations of domestic violence, but he did not know how the case was resolved. He denied pleading no contest to it and denied being on probation for it.
Bibian had a high school diploma when she came to the United States. She attended nursing programs at Chaffey College and Mt. San Antonio College from 1991 to 1998. She worked on and off during this time for a nursing home and packing computers in a factory. She graduated from the nursing program in 1998 and started working as a registered nurse in 1999. From 2003 to 2006, she went back to college and got a bachelor of science degree in nursing.
The parties purchased their first home in 1993 in Ontario, California (the Ontario home), and both their names were on the deed. Both parties were working during this time period. When they sold the Ontario home, they made a profit of approximately $60,000. They used that $60,000 as a down payment on their next home on Skyridge Lane (the Skyridge Lane property).
The parties had a Mercedes-Benz that Bibian sold in December 2007 for $10,000, and she deposited the proceeds into their joint checking account. Bibian purchased an Acura in November 2007 for $39,500. In June 2011, postseparation, she sold the Acura for $27,000 and purchased an Infinity for $45,000. She netted $10,000 from the sale of the Acura because it had a $17,000 lien on it.
When the parties married, Dominic bought Bibian a wedding ring, and later, they traded it in for a more expensive diamond ring. She did not know where the diamond ring was and did not wear it.
Bibian first purchased stock in 2007 through T. Rowe Price and Vanguard. She also opened a brokerage account with The Oakmark Funds. She sold the stock in the T. Rowe Price and Vanguard accounts in 2012 and used the proceeds to support their children because Dominic refused to pay child support. The Vanguard account netted approximately $39,000 and the T. Rowe Price account netted approximately $4,600. She took money on one occasion from their joint checking account to support the children. During the marriage, Bibian had Lasik eye surgery, which cost $2,900, and got braces, which cost $1,300.
Bibian sent money to her siblings and parents in Nigeria from time to time. For instance, she loaned one brother $2,000 to buy materials for his business. In 2001, she brought her mother to the United States. Over the years, she applied for visas for her mother and five other family members, which cost up to $250 per application. Dominic testified he "always" sent money to his relatives in Nigeria as well.
The parties' oldest child, Ki., was born with sickle cell anemia. When Bibian met Dominic, she did not tell him anything about her genetic type. She did not know she carried the sickle cell anemia trait until she was pregnant and was tested for it. Ki.'s condition may cause pain, and she was sometimes admitted to the hospital when she was experiencing symptoms. Bibian estimated that Ki. had been admitted to the hospital once every five to six years between birth and age 17. Ki. took a pain medication as needed. No one had ever applied for social security disability benefits for her. Ki. had completed high school and was attending college. She had to drop a class once because she was in the hospital.
Bibian said she eventually left Dominic because of the domestic abuse. She moved out of the Skyridge Lane property and took the two youngest daughters with her to a two-bedroom, rented apartment. Ki. chose to stay in the house with Dominic because she did not want to share one room with her sisters. After they separated, in September 2010, Bibian purchased a house on San Rafael Drive (the San Rafael Drive property) and made a down payment of approximately $125,000. She asked Dominic to sign a quitclaim deed for her new home, and in exchange she would sign the paperwork necessary for him to refinance the Skyridge Lane property, and Dominic agreed. The quitclaim deed granted the San Rafael Drive property to Bibian as her sole and separate property. Dominic testified she threatened to subject him to a "nasty divorce" if he did not sign the quitclaim deed. Bibian denied making this threat. Dominic refinanced the Skyridge Lane property and also took $25,000 in equity from the property to pay off community credit card debt.
Dominic traveled to Nigeria every six months or so for four to six weeks at a time. He had gone there in April and December 2013, each time for a month. Bibian had a flexible work schedule; since 2011, she had worked every other weekend and a few days during the week, for a total of three 12-hour shifts per week.
According to Dominic, Bibian restricted Ke.'s access to his house and to Ke.'s sisters. Bibian also left Ke. (now 13 years old) alone while she was at work, let Ke. walk to school alone, took Ke.'s cell phone and iPad away, and slapped Ke. for not doing chores. Either Ki. drove Ke. to and from school, or Ke. would call Dominic for a ride, and Ke. went to Dominic's house after school every day. He further testified that he provided for all of the children, including buying school supplies, computers, telephones, and clothing.
Bibian testified she had left Ke. alone on three occasions because Ke. did not want to go to the babysitter's home and Bibian was working only eight-hour shifts. Although Bibian used to pay a babysitter to watch Ke., she now paid Ki. to watch her and pick her up from school. Bibian took care of Ke. on the days she was not working. She had taken Ke.'s cell phone and iPad away because she believed Ke.'s grades were suffering because of them. She spanked Ke. when she was younger, but not recently. Ke. had not spent the night at Dominic's home since the separation. Bibian did not prevent Ke. from spending the night there or from going to his house in general. She had asked Ke. whether she wanted to stay overnight, and Ke. did not.
Bibian's income and expense declaration indicated she earned approximately $9,300 per month on average, but Dominic insisted she earned approximately $10,000 per month and had the capacity to earn more. She earned approximately $64 per hour and worked 72 hours in a two-week period. She was able to work more than 80 hours per two-week period before they separated, but she no longer had that opportunity. Her employer began laying people off around 2012 and no longer permitted the remaining employees to work overtime. Dominic earned $8,630 per month as a transportation engineer for the State of California, where he had been employed since 1993. Both parties' income and expense declarations indicated that their monthly gross income exceeded their monthly expenses. Bibian had expenses of about $7,842, while Dominic had expenses of $7,888. Dominic wanted spousal support because Bibian earned more, and he had put her through school to become a registered nurse. She was a "head nurse" now, and he, meanwhile, had not advanced in his career. C. The Family Court's Statement of Decision and Final Ruling
The pertinent issues from the family court's comprehensive, 18-page ruling are as follows:
1. Request for Judgment of Nullity
The family court denied Dominic's request for a judgment of nullity. He had not adduced sufficient evidence that Bibian had committed fraud prior to the marriage. Bibian used her true date of birth on her documentation, and she was not aware that she carried the sickle cell anemia trait before their daughter was born with the condition. The court granted a judgment of dissolution rather than nullity.
2. Child Custody and Child Support
The court awarded the parties joint legal custody of Ke. The court found that although Ke. spent a significant amount of time with Dominic after school and on weekends, she did not stay overnight with him. The court determined Ke.'s best interests were served by the parties sharing joint physical custody, "with primary physical custody remaining with" Bibian. The court ordered the parties "to continue in their current share plan" and consider Ke.'s wishes to spend time at Dominic's home during the week, as well as any desire Ke. might have for overnight visits on alternating weekends. For purposes of calculating child support, the court used a timeshare of 85 percent for Bibian and 15 percent for Dominic.
As to child support, the court noted the May 2014 order of the commissioner in the child support case. It also noted Dominic had filed a request for order (RFO) to vacate that child support order. The court had conferred with the child support commissioner, and the two had determined that the commissioner should address Dominic's RFO at a hearing the following month. The court thus "transferred [Dominic's RFO] for adjudication."
Meanwhile, the court calculated guideline child support for January 2015 going forward. The court ordered support of $812 per month, payable by Dominic to Bibian. This was based on an income of $9,989 per month for Bibian (and a 36-hour work week) and $8,630 per month for Dominic. The court's order was prospective only, as it was deferring to the child support commissioner on the amount owing for the earlier time period covered by the commissioner's May 2014 order (September 1, 2013 to December 31, 2014).
3. Spousal Support
As to spousal support, the court found scant information in the record to illustrate the parties' standard of living during the marriage. Both parties had college degrees, and Dominic had long held a position as a transportation engineer. No evidence indicated which parent handled domestic duties that impeded promotions or education. Although Dominic supported Bibian while she obtained her degree and nursing credentials, he adduced insufficient evidence that this had hindered his ability to further his own education or career. Bibian was 45 or 46 years old, and Dominic was 62 or 63 years old, and the parties had been married for 20 years. Neither party proffered evidence of adverse medical conditions. The parties' income and expense declarations indicated they were each meeting their financial obligations, and Dominic had disposable income beyond his expenses. The court concluded neither party was entitled to spousal support from the other, but it retained jurisdiction over the issue.
4. Educational Expenses
The court denied Dominic's request for reimbursement of Bibian's educational expenses paid by the community. It apparently agreed with Bibian that the community had benefitted from her advanced education and increased income during the 20-year marriage. But to the extent Bibian had any outstanding student loans, the court ruled they were her sole and separate debt.
5. The Skyridge Lane Property
The court concluded the Skyridge Lane property was community property to be divided equally between the parties. Although the parties purchased the Skyridge Lane property during marriage, Dominic claimed $60,000 of the down payment constituted his separate property because it came from the sale of the Ontario home, and he claimed the parties purchased the Ontario home with his separate property. The court rejected this claim. It found that the parties had purchased the Ontario home with income earned during the marriage. No evidence showed that Dominic had acquired the Ontario home before the marriage. The funds used to buy the Ontario home were presumptive community property, and Dominic had not rebutted this presumption. His belief that his earnings during the marriage conveyed a separate property interest was misplaced.
The court also denied Dominic's claims for Epstein credits and Watts charges in connection with this property. Dominic had been living there and said he had made improvements to the house, but he failed to provide evidence of these costs or any mortgage payments and property taxes he had paid on behalf of the community. He also failed to provide any evidence of the rental value of the residence, which would allow the court to determine whether any mortgage payments he made exceeded that value. As such, the court had no way of calculating Epstein credits for his payment of community expenses or Watts charges for his exclusive use of the community property.
In re Marriage of Epstein (1979) 24 Cal.3d 76.
In re Marriage of Watts (1985) 171 Cal.App.3d 366.
In Epstein, the California Supreme Court recognized a spouse's right to reimbursement from community property for postseparation payment of community expenses from the spouse's separate property—so-called Epstein credits. (In re Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.App.4th 1252, 1280.) "Just as a spouse may have a reimbursement claim against the community for postseparation separate property payments on a community debt, the community may have a reimbursement claim for the value of one spouse's exclusive use of community property between the date of separation and the date on which the community no longer has an interest in the property—so-called 'Watts charges.'" (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2017) ¶ 8:855, pp. 8-312 - 8.313.)
6. The San Rafael Drive Property
The court found the San Rafael Drive property was Bibian's sole and separate property. She had purchased this property over one year after separation with a down payment of approximately $125,000. Dominic adduced no evidence to support his assertion that she used community property funds to purchase it. In addition, he signed a quitclaim deed conveying the property to Bibian as her sole and separate property, which the court admitted into evidence. Dominic claimed he felt forced into signing the quitclaim deed in exchange for Bibian signing necessary paperwork to refinance the Skyridge Lane property. The court, however, found no credible evidence that Dominic signed the quitclaim deed under duress.
7. Gifts to Family Members in Nigeria
The court found that, during the marriage, both parties made significant monetary gifts to extended family members in Nigeria, both with and without each other's knowledge. Each party sent approximately $50,000 over the years. The parties did not owe the community reimbursement for these gifts, or if they did, they would each owe an equal amount, with $25,000 to be placed on each side of the marital balance sheet.
8. Vehicles
The court confirmed the Infinity as Bibian's sole and separate property and a BMW and Honda as Dominic's sole and separate property. The parties had sold the Mercedes-Benz during marriage and presumably used the proceeds for community purposes. The court impliedly rejected Dominic's claim that Bibian had kept these sale proceeds and should reimburse the community for the claimed market value of the Mercedes-Benz ($18,000). It explained that the Mercedes-Benz was no longer a marital asset and declined to issue any orders regarding the alleged value or reimbursement. But postseparation, Bibian sold the Acura purchased during marriage. She netted $10,000 from this sale and thus owed Dominic $5,000 for this asset.
9. Bank Accounts
The court confirmed to each party the bank accounts in his or her own name. Neither party proffered evidence of the balance of each account at the time of separation, and, as a consequence, the court could not determine whether any equalization payment was needed. But it retained jurisdiction over the issue, should either party later request that the court divide the accounts at the time of separation. D. Posttrial Proceedings in the Child Support Case
The family court filed its final statement of decision in the dissolution matter in February 2015. At a hearing in March 2015, the child support commissioner set aside the May 2014 child support order, based on Dominic's RFO. The RFO does not appear in the record. But based on the commissioner's comments, she granted the RFO because Dominic did not appear at the May 2014 hearing. He was out of the country and had tried to continue the hearing. The commissioner was unaware of these efforts at the time and had entered the May 2014 order in his absence. Had the commissioner been aware, she probably would have continued the hearing. When the commissioner announced that her tentative decision was to set aside the May 2014 order, Bibian's counsel argued the commissioner should still rule on the child support due retroactively for the pertinent period. The commissioner agreed and continued the matter to "reestablish a support order." The commissioner "retain[ed] and reserve[d] retroactivity to September 1st, 2013." She also granted DCSS's oral motion to consolidate the dissolution case and the child support case and designated the dissolution case as the master file.
At the next hearing in May 2015, Dominic noted for the record that he was objecting to the commissioner's hearing the child support case, and he would be exercising his right to have a judge review the commissioner's decision. The commissioner determined that she was going address child support for the period September 1, 2013 through December 31, 2014, but she again continued the matter for a determination of the precise amount.
At the continued hearing in June 2015, the parties stipulated to the commissioner hearing the matter. The commissioner ordered support of $1,276 per month for September 1, 2013 to December 31, 2013, and support of $1,374 per month for January 1, 2014 to December 31, 2014. She based the order on a timeshare of 99 percent with Bibian and 1 percent with Dominic for the pertinent time period. Bibian had indicated that Ke. visited with Dominic approximately 1 percent of the time. The family court had determined that he had timeshare of 15 percent when it calculated child support for January 2015 forward. The commissioner did not find Dominic's assertion of a 50/50 timeshare to be credible: "Here's what I have, Mr. Ehirim. I have her indication to the Court of the visitation. I have your indication to the Court of the visitation. What I am finding is that your representation that there was a 50 percent visitation during the time period in which this Court needs to address this support order is not credible. From a 1 percent to a 15 percent to a 50 percent, the numbers are not credible. [¶] So, Mr. Ehirim, it's just simple. I have not given much weight or credibility to your position."
Dominic filed an RFO to reconsider the commissioner's order. He also styled his RFO a "Notice of Objection" and requested a rehearing before a judge, rather than the commissioner. The commissioner denied the request for a rehearing before a judge because he had stipulated to the commissioner hearing the matter at the June 2015 hearing. The commissioner ruled the request was therefore untimely. The commissioner also denied the request to reconsider the child support order because Dominic had not demonstrated that any new facts, law, or circumstances applied to the case.
III. DISCUSSION
A. No Error in Denying an Annulment
Dominic contends the court should have annulled the marriage because Bibian perpetrated fraud. He asserts that she did not want to marry him and did so only to immigrate to the United States and attain an education. He also asserts that she knew she had the sickle cell anemia trait and did not tell him, and she lied about her age, saying she was eight years older than her true age. We conclude the court did not err.
A court may enter a judgment of nullity if one spouse induced the consent of the other through fraud, unless the innocent spouse afterward freely cohabitates with the other as his or her spouse with full knowledge of the facts constituting fraud. (Fam. Code, § 2210, subd. (d).) Courts should grant an annulment on the basis of fraud "only 'in an extreme case where the particular fraud goes to the very essence of the marriage relation.'" (In re Marriage of Meagher & Maleki (2005) 131 Cal.App.4th 1, 3.) "The test in all cases is whether the false representations or concealment were such as to defeat the essential purpose of the injured spouse" in entering into the marriage. (Douglass v. Douglass (1957) 148 Cal.App.2d 867, 868-869.)
All further statutory references are to the Family Code unless otherwise indicated.
The type of fraud sufficient to rescind an ordinary civil contract does not suffice in marriage cases. (In re Marriage of Meagher & Maleki, supra, 131 Cal.App.4th at pp. 6-7.) "[A]nnulments on the basis of fraud are generally granted only in cases where the fraud related in some way to the sexual or procreative aspects of marriage." (Id. at p. 7.) Thus, an annulment may be proper when, at the time of marriage, one spouse conceals an intent to never engage in sexual relations, conceals an intent to never live with the other spouse, conceals a pregnancy by a third party, conceals his or her sterility, or conceals an intent to continue a relationship with a third party. (Ibid.)
We review the family court's decision whether to annul a marriage under the substantial evidence standard of review. (In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, 756, disapproved on another ground by Ceja v. Rudolph & Sletten, Inc. (2013) 56 Cal.4th 1113, 1126.) We presume the judgment is correct and the record contains evidence to sustain every factual finding. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.) The appellant has the burden of demonstrating otherwise. (Boeken v. Philip Morris, Inc., supra, at p. 1658.) We ask only whether there is substantial evidence in the record, contradicted or uncontradicted, to support the family court's findings, not whether there is evidence to support different findings. (In re Marriage of Fregoso & Hernandez (2016) 5 Cal.App.5th 698, 703; In re Marriage of Gonzalez (1976) 57 Cal.App.3d 736, 745.) We also assume in favor of the findings below the existence of every fact that the family court could have reasonably deduced from the evidence. (In re Marriage of Gonzalez, supra, at p. 745.) The testimony of even one witness, whether a party or not, may constitute substantial evidence. (In re Marriage of Fregoso & Hernandez, supra, at p. 703.) We do not reweigh the evidence or reassess witnesses' credibility. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.)
Here, the court concluded that Dominic had not shown fraud by Bibian sufficient to annul rather than dissolve the marriage. Substantial evidence supported this conclusion. Bibian testified she did not know she carried the sickle cell anemia trait until she was pregnant with Ki. and was tested for it. Even if she did know prior to the marriage and concealed it, Dominic knew she carried the trait after Ki. was born, and he continued to cohabitate with Bibian as husband and wife for many years afterward.
As to Bibian's reasons for the marriage, she testified she did not want to marry Dominic but felt pressured into it by their families, who arranged it. Dominic would have us infer that because she went through with the unwanted marriage and immigrated to the United States, she must have intended only to come here and educate herself at his expense. Regardless of Bibian's reasons for entering the marriage, and whether she concealed those reasons, Dominic did not show a fraud relating to the sexual or procreative aspects of marriage. Nor did he show this was an extreme case where her purported fraud defeated the essential purpose of the relationship. To the contrary, the parties had a 20-year marriage and three children together. Whatever her initial reasons were for marrying him, she remained in the relationship for many years and attempted to fulfill her marital duties. This case is factually distinguishable from cases in which the alleged immigration fraud defeated the very purpose of the marriage, such as In re Marriage of Liu (1987) 197 Cal.App.3d 143. There, the court found evidence that the wife's motive in entering the marriage was to obtain a "green card," but also that the marriage deteriorated quickly and the parties separated soon after the wife arrived in the United States, the parties never consummated the marriage, they never cohabitated as husband and wife, and the wife therefore never intended "to perform her marital duties." (Id. at pp. 147-148, 156.) The same cannot be said of this marriage.
As to whether Bibian misrepresented her age, even assuming for the sake of argument that she did so, Dominic failed to show how this misrepresentation affected "'the very essence of the marriage relation.'" (In re Marriage of Meagher & Maleki, supra, 131 Cal.App.4th at p. 3.) Consequently, he did not demonstrate that it was the type of fraud sufficient to annul the marriage. B. No Error in Awarding Primary Physical Custody to Bibian, Approximating the Timeshare Between the Parties, or Calculating Support Based on Bibian's 36-hour Work Week
Dominic contends (1) it is in Ke.'s best interest to share physical custody equally, (2) the court's 85 percent/15 percent timeshare is unjustified, and (3) the court should have calculated child support based on a 40-hour work week plus overtime for Bibian. We also reject these contentions.
A court should make custody orders based on the best interest of a child. (§ 3020, subd. (a).) The court's primary concern in determining the child's best interest should be the child's health, safety, and welfare. (§§ 3011, subd. (a), 3020, subd. (a).) The court should also consider the nature and amount of contact with each parent. (§§ 3011, subd. (c).) In allocating custody and visitation between two parents, the court should address "the child's need for continuity and stability by preserving established patterns of care and emotional bonds." (§ 3040, subd. (d).) "[T]he paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining ongoing custody arrangements." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32-33.)
Among other things, the court should also consider any history of abuse by one parent against the other parent. (§ 3011, subd. (b)(2).) But the court did not find that domestic violence occurred. The statement of decision noted Bibian's testimony but found that the court had "no documented evidence of domestic violence," and the court expressly declined to find domestic violence occurred, referring instead to the "alleged" domestic violence. The court's ruling is consistent with section 3011, subdivision (b), which states: "As a prerequisite to considering allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence." (§ 3011, subd. (b)(3).)
"Equal division of a child's time between the parents is not the hallmark of joint custody. . . . [T]he primary focus must be what is best for the child, not what is best for the parents." (In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1515-1516.) Moreover, no preference or presumption for or against joint physical custody exists. (§ 3040, subd. (c).) Rather, the court and the family have "the widest discretion" to choose a parenting plan in the best interest of the child. (§ 3040, subd. (c).)
We review the court's custody orders for abuse of discretion. (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest' of the child." (In re Marriage of Burgess, supra, 13 Cal.4th at p. 32.)
In this case, no abuse of discretion appears. Contrary to Dominic's assertion, the law does not require that children spend equal time with both parents. The court determined that it was in Ke.'s best interest to "continue" the current share plan and ordered primary physical custody to "remain[] with" Bibian. It is apparent the court intended to preserve the established arrangement for the sake of continuity and stability, consistent with the directive of the Family Code. (§ 3040, subd. (d).) Although Ki. picked up Ke. and took her to Dominic's home after school, Bibian testified she took care of Ke. when she was not working, and Bibian worked only three days a week. Ke. had not spent the night at Dominic's home since the separation in 2009—five years before trial in this matter. Additionally, Dominic took month-long trips to Nigeria twice a year. In light of these facts, the court reasonably concluded that Bibian was the primary caretaker, and it was in Ke.'s best interest to maintain that status quo.
Dominic suggests Ke. is not safe with Bibian, or that Bibian is abusive, because she took Ke.'s cell phone away, slapped her, and left her alone at home. He also asserts she intentionally prevented Ke. from spending time at Dominic's home. When Bibian testified, she had an answer for each of these accusations: she took Ke.'s cell phone away because it was distracting her from school work; she had spanked Ke. when she was younger but not recently; she had left Ke. home alone on only three occasions, when she was working eight-hour shifts; and she had never prevented Ke. from going to Dominic's home. The court reasonably determined these facts did not show that Bibian was abusive or that Ke. was unsafe in her custody. Dominic essentially reargues the evidence, but we have no power to reweigh conflicting evidence on appeal or reassess the witnesses' credibility. That was the province of the family court. (In re Marriage of Balcof, supra, 141 Cal.App.4th at p. 1531.)
Dominic also has not demonstrated error with respect to the court's timeshare of 85 percent/15 percent for purposes of child support. Like the custody determination, we review a child support determination for abuse of discretion. (In re Marriage of Schlafly (2007) 149 Cal.App.4th 747, 753.) The timesharing factor is part of the rigid algebraic formula in the Family Code for calculating guideline child support. (§ 4055, subds. (a), (b)(1)(D); DaSilva v. DaSilva (2004) 119 Cal.App.4th 1030, 1033.) The family court must approximate the percentage of time the parent will have primary physical responsibility for the child, which is distinguishable from primary physical custody. (§ 4055, subd. (b)(1)(D); DaSilva v. DaSilva, supra, at p. 1033.) The two are not necessarily interchangeable. Physical responsibility may include time when the child is not in the physical custody of either parent. (DaSilva v. DaSilva, supra, at p. 1033.) For instance, the timesharing imputed to a parent may include the time the child spends in child care, at school, or visiting relatives, so long as the parent is responsible for the child during that time. (In re Marriage of Katzberg (2001) 88 Cal.App.4th 974, 981.) In apportioning physical responsibility, the focus should be on practical, day-to-day realities, such as who transports the child, who responds to medical or other emergencies, who pays for incidental school expenses, and who participates in school-related functions. (DaSilva v. DaSilva, supra, at pp. 1034-1035.)
Here, Dominic does not distinguish between physical responsibility and physical custody to explain why the court erred in approximating the timeshare percentages. He simply argues the court should have ordered "50/50 custody" because of his evidence that Bibian was "abus[ive]" toward Ke. But we have already rejected his custody argument. We presume the court's timeshare ruling was correct, and Dominic has the burden of overcoming this presumption. (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133; Spitler v. Children's Institute International (1992) 11 Cal.App.4th 432, 442.) This he has failed to do.
Finally, Dominic has not shown the court should have based Bibian's income on a 40-hour work week plus overtime, rather than her actual 36-hour work week. In calculating guideline child support, the court has discretion to impute income to a parent based on that parent's "earning capacity." (§ 4058, subd. (b); In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 927.) Earning capacity has three elements: ability, opportunity, and willingness to work. (In re Marriage of Everett (1990) 220 Cal.App.3d 846, 860.) When either ability or opportunity is lacking, use of the earning capacity standard is inappropriate. (Ibid.) Opportunity is lacking in this case. Several years before the trial, Bibian worked 80 hours or more per two-week period, but her employer had conducted lay-offs and no longer offered overtime starting around 2012. C. No Error in Declining to Order Adult Child Support for Ki.
Dominic asserts the court overlooked support for Ki. and should have declared her disabled, presumably so that Bibian would have to pay for her support. We are also unpersuaded by this contention.
Parents have an equal responsibility to maintain a child of any age "who is incapacitated from earning a living and without sufficient means." (§ 3910, subd. (a).) So-called adult child support for disabled children protects the public from the burden of supporting people whose parents are able to support them. (In re Marriage of Drake (2015) 241 Cal.App.4th 934, 940.) Courts should resolve the question of "sufficient means" in terms of the likelihood that the child will become a public charge. (In re Marriage of Cecilia & David W. (2015) 241 Cal.App.4th 1277, 1286.) "The term 'incapacitated from earning a living' (§ 3910[, subd.] (a)) means 'an inability to be self-supporting because of a mental or physical disability or proof of inability to find work because of factors beyond the child's control.'" (In re Marriage of Drake, supra, at p. 940.) Courts must not focus solely on the adult child's conditions; they must consider the child's ability to find work or become self-supporting in light of such conditions. (In re Marriage of Cecilia & David W., supra, at p. 1286.) "Vocational evidence likely will be necessary to meet these standards." (Id. at p. 1288.)
Although the statement of decision did not expressly mention support for Ki., Dominic did not object below to this omission, and we therefore imply a finding against adult child support. (In re Marriage of Arceneaux, supra, 51 Cal.3d at pp. 1133-1134; In re Marriage of Neal (1984) 153 Cal.App.3d 117, 126-127, disapproved on another ground by In re Marriage of Fabian (1986) 41 Cal.3d 440, 451 fn. 13.) We review the court's determination on adult child support for abuse of discretion. (In re Marriage of Drake, supra, 241 Cal.App.4th at p. 939.)
While the record here includes evidence about Ki.'s condition—sickle cell anemia—and hospitalizations, Dominic did not show she would be unable to find work or support herself with the condition. To the contrary, she attended college, could drive, and cared for her younger sister, a job that Bibian compensated her for. No evidence showed Ki. was receiving disability benefits. Without any citations to the record, Dominic asserts Ki. is constantly dropping out of school, has other conditions such as insomnia and depression, is mentally and emotionally disabled, and cannot do routine physical things. Dominic's unsupported assertions are not evidence, and we are entitled to disregard such assertions. (Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1267.) We see no error in failing to order adult child support for Ki. D. No Error in the Child Support Order Covering September 1, 2013 to December 31, 2014
Dominic charges the child support commissioner with numerous errors in her posttrial order setting forth support for September 1, 2013 to December 31, 2014. He argues we should reverse the order because: (1) he objected to the commissioner's acting as a temporary judge, a judge did not ratify the commissioner's order, and a judge was required to hear the matter "de novo"; (2) the doctrine of laches bars Bibian from seeking support for this time period; (3) the doctrines of res judicata or collateral estoppel barred the commissioner's order; (4) the commissioner arbitrarily based support on a timeshare of 99 percent with Bibian and 1 percent with him; (5) the commissioner improperly based her order on evidence filed in the dissolution action; and (6) the commissioner exhibited a pro. per. bias and gender bias against him. None of these arguments have merit.
The counties must maintain local child support agencies that have responsibility for enforcing child support obligations. (§ 17400, subd. (a).) Cases filed by a local child support agency are referred to a child support commissioner for hearing. (§ 4251, subd. (a); County of Orange v. Smith (2002) 96 Cal.App.4th 955, 961.) The commissioner shall act as a temporary judge unless the local child support agency or another party objects. (§ 4251, subd. (b).) If a party objects, the commissioner may still hear the matter and make findings of fact and a recommended order. (§ 4251, subd. (c).) A judge then ratifies the recommended order within 10 days, unless either party objects to the recommended order, or the recommended order is in error. (Ibid.) In either case—an objection or an error—the judge shall issue a temporary order and schedule a de novo hearing within 10 court days. (Ibid.) Thus, to perfect the right to de novo review by a judge, a party "must object to a commissioner twice (before and after the commissioner rules in the case) . . . ." (County of Orange v. Smith, supra, at p. 961; accord, Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 18:521a, p. 18-160 ["It is not enough to object to the commissioner's findings and recommendation. The right to a de novo judicial review is perfected only if there was also an objection to the commissioner acting as a temporary judge before the hearing . . . ."].)
Here, Dominic was not entitled to have a judge ratify the commissioner's child support order or conduct a de novo hearing. Although he objected to the commissioner hearing the matter at the May 2015 hearing, at the next hearing in June 2015, when she determined the amount of support, Dominic stipulated to the commissioner acting as a temporary judge. He therefore failed to perfect his right to ratification and de novo review by not objecting before and after the order. Dominic contends he did object before the order—in May 2015. But his stipulation in June 2015 gave consent to the commissioner acting as a temporary judge. He essentially waived his earlier objection. Dominic also accuses DCSS and Bibian's counsel of conspiring to have him sign the stipulation. The record contains no evidence that Dominic unwillingly signed the stipulation.
Dominic further asserts that the commissioner should not have heard the child support issue in May and June 2015 because DCSS dismissed the case and then refiled it. He maintains that Bibian influenced DCSS to dismiss the case in favor of seeking child support in the dissolution matter, and she should not have gotten another "bite at the apple" with the commissioner. It is unclear what Dominic means when he says DCSS dismissed and refiled the case. DCSS obtained an order of support in May 2014. It filed a substitution of payee designating Bibian as the payee in October 2014. In December 2014, Dominic filed the RFO to set aside the May 2014 order of support. The family court declined to rule on that RFO and felt the commissioner should rule on it instead. The commissioner only heard the issue because Dominic—not DCSS—filed the RFO to set aside the May 2014 order. At the same time the commissioner granted the RFO and set aside the May 2014 order, she scheduled a further hearing to "reestablish a support order" for the pertinent time period. The commissioner clearly explained to Dominic that she needed to "look to see whether or not there should be an order entered, and if so, how much it should be. That's the part that needs to continue." Dominic fails to proffer any convincing reason why the commissioner was barred from redetermining support for September 1, 2013 through December 31, 2014, when the family court's order governed only January 2015 and later.
Laches is not a defense to Dominic's obligation to pay child support. The court may consider "the defense of laches only with respect to any portion of the [child support] judgment that is owed to the state." (§ 291, subd. (d); In re Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1177.) Dominic owes the support payments here to Bibian, not the state.
Neither is res judicata nor collateral estoppel a valid defense here. The doctrine of res judicata precludes parties from relitigating a cause of action on which a court has already rendered a final determination. (Warga v. Cooper (1996) 44 Cal.App.4th 371, 377.) Any cause of action the court necessarily decided in the previous litigation is conclusively determined as between the parties and their privies. (Ibid.) The related doctrine of collateral estoppel precludes relitigation of issues—as opposed to causes of action—argued and decided in prior proceedings. (Boblitt v. Boblitt (2010) 190 Cal.App.4th 603, 610.) Dominic asserts the family court's final ruling on child support precluded the commissioner from later ruling on child support. He is incorrect. The family court expressly ruled that its order was prospective only—that is, for January 2015 and forward. It also expressly deferred to the commissioner on support for the earlier time period. The family court's ruling contained no final determination on support for the period covered by the commissioner's ruling. Res judicata or collateral estoppel did not preclude the commissioner from ruling on issues the family court had not actually decided.
Dominic's assertion that the child support commissioner arbitrarily determined the timeshare percentages also fails to persuade us. The commissioner made clear that she based her ruling on the parties' respective statements, and it found Dominic lacking in credibility. We are not a "'second trier of fact'" and may not "rework" credibility issues on appeal. (In re Marriage of Balcof, supra, 141 Cal.App.4th at p. 1531.)
Dominic also challenges the commissioner's order as unsupported by evidence because she relied on documents filed in the dissolution action. He suggests this was improper because the documents were not on file in the child support case in September 2013, the "relevant time." He also says DCSS "conspired" with Bibian and the commissioner to consolidate the cases so that the commissioner could use the documents from the dissolution action. But the law allows for courts to consolidate two or more cases in which an obligor owes an obligee child support or reimbursement arrearages, and it likewise permits consolidation when two actions involve a common question of law or fact. (Fam. Code, § 17408, subd. (a); Code of Civ. Proc. § 1048, subd. (a); Cal. Rules of Court, rule 5.365.) Dominic's conclusory assertions of a conspiracy do not demonstrate the commissioner erred in consolidating the dissolution action and the child support case. Moreover, he has not cited any authority showing the commissioner could not rely on the record in the dissolution action, once she consolidated the two cases. He has the burden of overcoming the presumption that these rulings were correct on appeal. (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133.)
Finally, Dominic challenges the commissioner's order as "oppressive, discriminatory and prejudicial" because she exhibited gender and pro. per. bias against him. His brief is devoid of any citations to the record supporting such accusations of bias. Nevertheless, we have reviewed the entire record on appeal and see no evidence that the commissioner was improperly biased. The fact that the commissioner found Bibian more credible and ruled against Dominic does not conclusively establish bias, as our justice system routinely requires triers of fact to make credibility judgments and courts to rule in favor of one party or the other. Dominic's unsupported assertions of bias do not require reversal. E. No Error in Denying Spousal Support
Dominic asserts the court disregarded the law and the evidence when it denied him spousal support, as he is unable to maintain the preseparation standard of living, and Bibian now lives "a lavish lifestyle," while he is "drowning in debt." We disagree the court erred.
Spousal support is not mandatory in dissolution proceedings. (In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 161.) The family court must determine whether spousal support is appropriate based on the "facts and equities" of each case, "after weighing each of the circumstances and applicable statutory guidelines." (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93.) The family court has broad discretion to determine spousal support, and we will not reverse absent an abuse of that discretion. (Ibid.) "'Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders.'" (Ibid.) We will reverse only if no reasonable judge would have made the same order. (In re Marriage of Rome (1980) 109 Cal.App.3d 961, 964.)
The court may order spousal support based on the standard of living during the marriage, taking into consideration a number of factors. (§ 4330, subd. (a).) These factors include, among other things: whether each party's earning capacity is sufficient to maintain the standard of living during marriage; whether the supported party's earning capacity was impaired by periods of unemployment during which the supported party devoted time to domestic duties; whether the supported party contributed to the education of the supporting party; the ability of the supporting party to pay spousal support; the needs of the parties based on the standard of living during the marriage; the obligations and assets of each party; the ability of the supported party to engage in gainful employment; the duration of the marriage; the age and health of the parties; and the goal that the supported party should be self-supporting within a reasonable period of time. (§ 4320, subds. (a)-(h), (l).)
The family court's order of no spousal support was well within its broad discretion. The statement of decision plainly described the factors the statute required the court to weigh and that it did, in fact, consider. (§ 4320.) The court appeared to weigh heavily that, while Bibian earned approximately $1,300 more per month than Dominic, both parties were educated, gainfully employed, and had money to meet their nearly equal monthly expenses. Dominic, in particular, had long worked as a transportation engineer, and there was no evidence that his support for Bibian's education during marriage had hindered his ability to advance in his own career. Thus, to the extent courts should consider the goal that the supported party be self-supporting within a reasonable period, Dominic was already self-supporting. Additionally, he does not dispute the court's finding that the record contained scant evidence of the standard of living during marriage. For instance, while the parties submitted declarations regarding their postseparation income and expenses, there was very little information about income and expenses during the 20-year marriage. The standard of living is the reference point against which the court weighs all other circumstances. (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 484.) Even assuming Bibian now has a lavish lifestyle, as Dominic characterizes it, he does not show that he enjoyed this lavish lifestyle as the standard of living during marriage. Especially given the scant proof of a reference point, we cannot say no reasonable judge would have made this same order. F. No Error in Denying Reimbursement for Bibian's Educational Expenses
Dominic contends the court should have reimbursed the community for Bibian's educational expenses incurred during marriage. He argues the parties were not married long enough for the community to have benefitted from her education. Dominic again fails to carry his burden of demonstrating error.
"The community shall be reimbursed for community contributions to education or training of a party that substantially enhances the earning capacity of the party." (§ 2641, subd. (b)(1).) "The reimbursement right is limited to cases where the earning capacity of a party is substantially enhanced. This limitation is intended to restrict litigation by requiring that the education or training must demonstrably enhance earning capacity and to implement the policy of the section to redress economic inequity." (Cal. Law Revision Com. com., 29D West's Ann. Fam. Code (2004 ed.) foll. § 2641, p. 604.) Accordingly, there must be some evidence that the education has, in fact, demonstrably enhanced the earning capacity of the other party. (In re Marriage of Graham (2003) 109 Cal.App.4th 1321, 1325-1326.) The court should not presume that professional degrees—such as legal, medical, dental, or accounting degrees—result in a substantially enhanced earning capacity as a matter of law. (Id. at pp. 1324-1326.) As one leading treatise puts it, "[e]vidence comparing 'before and after' salaries and earnings will be imperative . . . ." (Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 8:819, p. 8-301.)
Furthermore, the reimbursement shall be reduced or modified when the community has substantially benefited from the education of the party. (§ 2641, subd. (c)(1).) A rebuttable presumption exists "that the community has substantially benefitted from community contributions to the education or training made more than 10 years before the commencement of the proceeding." (Ibid.) Unless the party seeking reimbursement overcomes this presumption, "reimbursement is limited to contributions made during the preceding ten years to minimize proof problems as well as potential inequity." (Cal. Law Revision Com. com., 29D West's Ann. Fam. Code, supra, foll. § 2641, p. 604.) At the same time, there is a rebuttable presumption that the community has not substantially benefitted from contributions made fewer than 10 years before the proceeding. (Ibid.)
Here, we cannot say the court erred in denying reimbursement for Bibian's educational expenses. Two separate periods of education are at issue. She went to school from 1991 to 1998 to become a registered nurse in 1998, and then went back to school from 2003 to 2006 to earn her bachelor of science degree in nursing. As for Bibian's bachelor of science degree, Dominic's claim fails on the threshold inquiry for reimbursement. The reimbursement right is limited to cases where the education or training substantially enhances the earning capacity of the party. Did the bachelor of science degree substantially enhance Bibian's earning capacity, when she was already a registered nurse? We cannot say, and neither could the trial court, because there was no evidence of how her earning capacity might have changed. Bibian did say the bachelor of science degree increased her earnings, but she did not say by how much. If we do not presume that professional degrees substantially enhance one's earning capacity as a matter of law, we cannot presume Bibian's bachelor of science in nursing degree enhanced her earning capacity as a matter of law. Moreover, there was no proof of how much the community contributed to this degree, with the exception of Dominic's property declaration, which estimated the degree had a "fair market value" of $100,000. He did not explain how he arrived at that estimate or otherwise substantiate it.
As to Bibian's earlier education ending in 1998, we will assume for the sake of argument that she substantially enhanced her earning capacity by becoming a registered nurse, when she previously held only a high school diploma. Even so, this education occurred more than 10 years before the parties separated in 2009. The community presumptively benefitted from her enhanced earning capacity during this extended period when she worked as a nurse, and Dominic does not explain how he overcame this presumption. The court was thus entitled to deny reimbursement for this also. G. No Error in Characterizing Real and Personal Property and Adjudicating Related Reimbursement Claims
Dominic argues the court erred in dividing up nearly every asset.
1. General Legal Principles
Generally, there is a rebuttable presumption that all real and personal property acquired by spouses during marriage is community property. (§ 760; In re Marriage of Haines (1995) 33 Cal.App.4th 277, 289-290.) This includes earnings derived from a spouse's "time, skill, and labor." (In re Marriage of Harrison (1986) 179 Cal.App.3d 1216, 1226.) A party may overcome the community property presumption by tracing the property to a separate property source. (In re Marriage of Haines, supra, at pp. 289-290.) Separate property includes the property owned by a person before the marriage, all gifts and bequests acquired by the person during marriage, and "[t]he earnings and accumulations" of a person after the date of separation. (§§ 770, subd. (a), 771, subd. (a).) "Accumulations" means any property a person acquires and retains, except for property obtained with community funds. (In re Marriage of Wall (1972) 29 Cal.App.3d 76, 79.) Thus, broadly speaking, the most important factor in characterizing property as community or separate is the time of its acquisition. (In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 732.) Another factor is the operation of various presumptions, such as those arising from the form of title. (Ibid.) "It is well settled in California that income produced by an asset takes on the character of the asset from which it flows. Thus, rents, issues and profits are community property if derived from community assets, and separate property if derived from separate assets." (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 851.) We review the factual findings underpinning a property characterization for substantial evidence. (In re Marriage of Rossin, supra, at p. 734.)
2. The San Rafael Drive Property
Bibian acquired this property approximately one year and five months after the parties separated. She holds title in her name without Dominic, as he executed a quitclaim deed making it her sole and separate property. These facts constituted substantial evidence that the San Rafael Drive property was Bibian's separate property.
Dominic contends the court erred because there is "no doubt" she used community funds for the down payment. He argues that Bibian's 401(k) account went from $235,000 in 2007 to $99,000 in 2009, and the $125,000 she put down on the San Rafael Drive property must have made that difference. As evidence of this decline in value, he cites a chart that appeared in her 401(k) plan statement in 2012. But the document shows no such thing. The chart actually shows a steady increase in the account's value from 2008 to 2012, not any sort of decline from 2007 to 2009. He also argues she must have used the proceeds of her Vanguard and T. Rowe Price accounts, which constituted community funds, for the down payment. Even assuming these accounts constituted community property, the evidence that she sold the stock in these accounts shows sales in 2012—two years after she made the down payment. These sales could not have been the source of the down payment. Moreover, Bibian testified she used the stock proceeds to support the children, since Dominic had not been paying child support.
Dominic also claims Bibian induced his consent to the quitclaim deed through fraud and relies on Civil Code section 1572. He asserts that Bibian did not disclose she was investing $125,000 of community funds in the property, and if she had, he would not have signed the quitclaim deed. He further asserts that she reneged on a promise to remove her name from title to the Skyridge Lane property. Dominic has not persuaded us that the court should have found fraud in the inducement.
The parties' consent to a contract is an essential element of the contract. (Civ. Code, § 1550, cl. (2).) Consent to the contract must be free. (Id., § 1565, cl. (1).) Apparent consent to a contract is not free when obtained through actual or constructive fraud, among other things. (Id., §§ 1571, 1567, cls. (1), (3).) Dominic relies on actual fraud, which includes "[t]he suppression of that which is true, by one having knowledge or belief of the fact," or "[a] promise made without any intention of performing it." (Id., § 1572, cls. (3), (4).) Bibian acknowledged that she did not tell Dominic where the property was or how much it was worth, although the quitclaim deed itself would have disclosed the address of the property. He testified she did not disclose that she was investing community property in the house. But as we have explained, he failed to show the down payment consisted of community funds. Unless that was true, there was no suppression of a truth. As for Bibian's purported reneging on a promise to remove her name from the Skyridge Lane property, he cites no evidence of such a promise. He testified that, when she asked him to sign the quitclaim deed, he said he would not unless she removed her name from the Skyridge Lane property. When asked how Bibian responded to that, he said she threatened him with a "nasty divorce." This response was no promise to do as he asked. The evidence showed that she promised to sign paperwork to refinance the Skyridge Lane property, not remove her name from the deed.
Dominic additionally claims Bibian induced his consent through the threat to subject him to a nasty divorce. Bibian denied making this threat, and the family court, as the trier of fact, was permitted to resolve this conflicting evidence in Bibian's favor. Furthermore, it is unclear what legal authority he relies on to show that a threat of a nasty divorce would defeat consent. An appellant must support claims of error with reasoned argument and legal citations. (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1207.)
3. The Skyridge Lane Property
Dominic argues the court should have reimbursed him the $60,000 down payment for the Skyridge Lane property. He asserts the money is traceable to his separate property—it was the profit from the sale of the Ontario home, and the parties purchased the Ontario home with his separate property of $10,000. He also urges us to order Epstein credits for his payment of the mortgage, homeowners association dues, and maintenance costs since the parties separated. We conclude the court did not err in these respects.
First, Dominic did not properly trace the $60,000 down payment to a separate property source. A party may be reimbursed for his or her contributions to the acquisition of community property to the extent the party traces the contributions to a separate property source. (§ 2640, subd. (b).) Whether the party claiming a separate property interest has adequately traced to a separate property source is a question of fact, and we will uphold the family court's ruling if supported by substantial evidence. (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1057-1058.) Substantial evidence supported the court's ruling here. The parties purchased the Ontario home several years after they married and held title jointly. The home was presumptively community property not only because they acquired it during marriage, but also because the parties held title in joint form. (§ 2581.) Even if Dominic used his earnings after marriage to purchase the Ontario home, those earnings were presumptively community property as well. Because the Ontario home was community property, any profits derived from the sale of it also constituted community property. And, Dominic did not rebut the community property presumption. His conclusory assertion that the Ontario home's down payment came from his separate assets is no rebuttal. Oral testimony alone does not establish the separate property status of disputed funds. (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 823.) When the community property presumption applies, direct tracing of funds to a separate property source requires reference to specific written records showing the source of the funds. (Ibid.) Accordingly, the $60,000 derived from the sale of the Ontario home was community property, and the court did not err in declining to reimburse Dominic for this.
Second, Dominic did not establish his entitlement to Epstein credits. As we explained previously (ante, fn. 4), Epstein credits refer to a party's right to reimbursement when he or she uses separate property funds to pay community expenses postseparation. (In re Marriage of Prentis-Margulis & Margulis, supra, 198 Cal.App.4th at p. 1280.) Conversely, a party who exclusively uses community property—such as a house—postseparation must reimburse the community for the use of the property. (In re Marriage of Watts, supra, 171 Cal.App.3d at pp. 373-374.) Courts refer to this reimbursement to the community as Watts charges.
"Epstein does not mandate full reimbursement in all cases, but allows the trial court discretion to order reimbursement in an amount that is equitable." (In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1272.) Courts consider a variety of factors in determining Epstein credits, including the rental value of the property that the party was exclusively using and whether the party's payments substantially exceeded the rental value. (In re Marriage of Feldner (1995) 40 Cal.App.4th 617, 624-625; In re Marriage of Tucker (1983) 141 Cal.App.3d 128, 136.) In other words, courts consider the extent to which the Watts charges offset the Epstein credits.
Here, we cannot quarrel with the family court's ruling that Dominic did not establish his entitlement to Epstein credits. He cites to his income and expense declaration to show the amount of the monthly mortgage payment, property tax payment, homeowners association dues, and maintenance costs. But his recitation of these amounts in his declaration did not show that he had actually paid these expenses. He did not submit bank records, statements, or receipts, for instance. More importantly, he proffered no evidence whatsoever of the rental value of the Skyridge Lane property, which the court needed to determine whether his Epstein credits exceeded his Watts charges for his exclusive use of the property. Given this limited evidence, we refuse to hold the court should have speculated as to the amount of Epstein credits and uphold the court's denial of these credits.
4. Vehicles
Dominic challenges the court's rulings regarding the Mercedes-Benz and the Acura. The court ruled the Mercedes-Benz was sold during the marriage and declined to issue any orders regarding the alleged value or reimbursement. Dominic acknowledges the Mercedes-Benz was community property when it was sold in 2007, but he asserts Bibian sold it without his consent below market value and kept the proceeds for herself. He contends the market value was $18,000, not the $10,000 she received for it, and Bibian should reimburse the community for the full $18,000. The court rejected these claims when it declined to order any reimbursement at all from Bibian. Substantial evidence supported this ruling. Bibian said she deposited the proceeds in the parties' joint checking account. As the trier of fact, the court was entitled to credit Bibian's testimony and reject Dominic's testimony regarding the disposition of these funds. And, while one spouse may not dispose of community personal property for less than fair and reasonable value without the written consent of the other spouse (§ 1100, subd. (b)), Dominic presented no evidence—other than his conclusory assertion—that Bibian could have sold the car for $18,000. The court was also entitled to reject Dominic's unsubstantiated valuation of the vehicle.
As to the Acura, we also reject Dominic's claims. The court ruled that, because Bibian had sold this community asset postseparation and had netted $10,000, she owed Dominic half that amount. Even though she sold the car for $27,000, the court credited Bibian's testimony that the car had an outstanding lien against it for $17,000. Dominic maintains Bibian provided no evidence of the lien. But again, the court had the power to weigh and credit Bibian's testimony. The testimony of even one witness may constitute substantial evidence. (In re Marriage of Fregoso & Hernandez, supra, 5 Cal.App.5th at p. 703.)
5. Bank and Brokerage Accounts
Dominic contends the court should have divided equally the proceeds from the parties' bank accounts and Bibian's brokerage accounts at T. Rowe Price, Vanguard, and The Oakmark Funds. He cites to her income and expense declaration and other documents in the record showing the balances of these accounts after the parties separated, in either late 2009 or 2012 through 2014. His argument misses the mark. The court did not rule that it would never divide the community property funds in these accounts. Rather, it ruled that it had no evidence of these account balances at the time of separation in April 2009, and it could not, therefore, determine what equalization payments might be necessary. It expressly retained jurisdiction over the issue, in the event that a party could show the value of these accounts at the time of separation and request a proper division. Given that postseparation earnings and accumulations are separate property (§ 771, subd. (a)), and the court had no way of determining how much of these balances represented postseparation versus preseparation earnings and accumulations, we cannot say the court erred.
6. Gifts to Family Members in Nigeria
Dominic contends the court ignored Bibian's "investments" in her Nigerian family's businesses and her payment of educational or immigration expenses for family. He argues the community should be reimbursed over $250,000 for these things. He arrives at this amount in part by valuing certain family businesses. For instance, he claims that because Bibian loaned one brother $2,000 to start his business, the entire business should be a community asset valued at $150,000. He values another brother's business at $100,000, and contends this is also a community asset because she gave him $1,900 for business materials.
Contrary to Dominic's assertion, the court did not ignore this issue. It determined both parties had a practice of making significant monetary gifts to family members in Nigeria throughout the marriage, and neither party owed the community reimbursement. Dominic does not dispute the court's finding that he also made significant monetary gifts to family members offsetting Bibian's gifts. As well, he cites no authority for the proposition that her gifts constituted investments entitling the community to the entire value of the family businesses, nor does he substantiate his inexpert valuations of the businesses. We decline to conclude the court erred.
7. Bibian's Jewelry and Medical Expenses
Lastly, Dominic argues Bibian should reimburse the community for her braces, her Lasik eye surgery, and her diamond ring, all paid for during the marriage. As to the ring, although it was presumptive community property, Bibian did not have the ring and did not know where it was located. If she did not retain the community property, she need not reimburse the community for it. As to the medical procedures, upon marriage, spouses assume a mutual obligation to support one another, whether with community property or separate property. (See v. See (1966) 64 Cal.2d 778, 784.) Furthermore, there is no right to reimbursement for family expenses during marriage. (Id. at pp. 784-785.) Dominic cites no authority for the notion that Bibian should reimburse the community for medical expenses—even for elective procedures—incurred during marriage. We find no reversible error here. H. No Bias or Prejudice
Similar to the accusations he levels at the child support commissioner, Dominic contends the family court exhibited pro. per. and gender bias and prejudice based on national origin. His evidence of pro. per. bias is that the court allowed Bibian's counsel to start opening statements, allowed counsel to submit motions late, and scheduled trial days around conflicts in counsel's schedule. We have reviewed the entire record and see no indication of pro. per. bias in these decisions or any other. The court displayed courtesy toward Bibian's counsel and Dominic alike and had to make routine decisions that sometimes favored Bibian and sometimes favored Dominic. This is no basis to reverse the judgment.
His evidence of discrimination is that the court allowed Bibian's counsel "to make bigoted statements and make fun of [his] 'heavy accent,'" and when Dominic confronted counsel about the comments, "the court backed him up" and also said it had a hard time understanding Dominic. There were three instances during trial when Bibian's counsel or the court asked Dominic to repeat himself because they either could not hear him or could not understand what he had said, and they explained that they were having difficulty because of his accent. To call this bigotry and prejudice, however, is groundless. There was no "making fun" of Dominic, only an explanation as to why counsel or the court could not understand him. If counsel was going to represent Bibian to the best of his abilities, and the court was going to follow the evidence, they needed to understand what Dominic was saying. We see no discriminatory animus behind these isolated comments.
Finally, Dominic's evidence of gender bias is that the court gave Bibian's testimony and evidence more weight than his. But as we have explained, the court's resolution of disputed credibility issues and conflicting evidence in favor of one party over the other was proper and does not offer any reason to reverse the judgment.
IV. DISPOSITION
The judgment is affirmed. Bibian shall recover her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. CODRINGTON
J.