Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. Super. Ct. No. PROPS0700274, Cynthia Ann Ludvigsen, Judge.
David Masters, in pro per.; and Howard R. Hawkins for Petitioners and Appellants.
Joseph M. Masters, in pro. per., for Objector and Respondent.
OPINION
RAMIREZ, P.J.
Petitioners and appellants David Masters and Tina Mastramico (David) appeal from the trial court’s order sustaining the objections of objector and respondent Joseph Masters (Joseph) to David’s petition for letters of administration regarding the estate of their father, Phillip E. Mastramico, now deceased (Mastramico). Specifically, David argues that trial court erred when it found that it had no jurisdiction to probate Mastramico’s holographic will after it determined Mastramico’s domicile was in the State of Florida rather than San Bernardino County, California. As discussed below, we conclude that substantial evidence supports the trial court’s ruling.
Statement of Facts and Procedure
Mastramico died on December 13, 2006, in Atlanta, Georgia, while undergoing a heart operation. At that time, Mastramico was living in Ormond Beach, Florida in a 1997 mobile home that he had purchased for $89,300 in October of 2005 and moved to in December of 2005. The mobile home was located in a master-planned retirement community. Prior to moving to Florida, Mastramico had lived in a condominium unit in Riverside for about 10 years. In October or November of 2005, Mastramico sold the condominium and moved into David’s home in San Bernardino County for four to six weeks before moving to Florida. David testified that Mastramico returned to California on two occasions, in March and June 2006, to attend medical and dental appointments, attend to his real estate business, and visit family. On October 18, 2006, Mastramico listed the mobile home for sale for $119,915. David testified that Mastramico had an airline ticket to California dated December 22, 2006.
On March 29, 2007, David filed a petition for letters of special administration with general powers, along with proof of a holographic will. The holographic will was dated September 1, 2006. The will provided that Joseph and another brother, Michael, would receive $500 from Mastramico’s estate. The bulk of the remainder was to be divided equally among the three other siblings, David, Tina and Lisa Mastramico. On May 14, 2007, Joseph was added as an objector and a will contest ensued. After briefing and a number of procedural delays, the hearing on the petition took place on December 6, 2007. Both David and Joseph testified and a number of exhibits were entered into evidence.
David testified as to the following. Mastramico sold his home in Riverside County and moved to Florida in December 2005. In between, Mastramico lived with David for four to six weeks in San Bernardino County. Mastramico had visited church friends in Florida in the summer of 2005. They told him it was a great time to buy in Florida because prices were down, and that it would be a good place to make an investment. So, Mastramico bought a mobile home in a master-planned retirement community in the fall of 2005. Mastramico visited California in March and June of 2006 for medical and dental appointments, to tend to his real estate business, and to visit family. David visited Mastramico in Florida in August 2006. They discussed Mastramico returning to live in California. Mastramico had fixed up the mobile home and now wanted to sell it. David helped work on the mobile home during his visit. Mastramico did not have his mail switched to Florida. The mail would come to David’s address and he would bundle it together and mail it to Mastramico about every two weeks. Mastramico kept the following items of personal property at David’s house—a car, furniture, refrigerator, some other appliances, personal effects, all his tools, memorabilia and some clothing.
Although David testified that he visited his father in August of 2005, we assume he meant 2006 as the mobile home was not purchased until October of 2005.
Mastramico expressed to David that he wanted to move back to California so he could be close to David and his daughter Lisa who lived in Santa Cruz. Mastramico was a real estate broker. He listed the Florida mobile home with a real estate broker for $30,000 more than he paid for it a year earlier.
Mastramico also had a car in Florida, and kept clothing and furniture in Florida. Mastramico drove this car from Florida to the hospital in Atlanta, Georgia before he died. Mastramico’s heart doctor was in California, but he had gone for a consultation with a heart doctor in Atlanta at the request of another doctor he had seen in Daytona Beach, Florida. David decided to probate his father’s estate in San Bernardino County because his permanent residence was here rather than in Florida. David and his father had conversations about “selling the property, making the profit, returning to California.” Mastramico intended to fly back to California on December 22, 2006, stay with David for the holidays, and then look for a home to purchase in California. The value of the estate was approximately $130,000.
The petition estimates the value of the estate at $193,000.
Joseph testified as to the following. Regarding the death certificate, his sister Tina was “the informant” who stated that Mastramico’s residence at the time of his death was his mobile home in Florida. Joseph had done a computer search and found no indication that Mastramico owned any real estate in San Bernardino County. Joseph was not aware that Mastramico had ever lived in San Bernardino County, other than visits with David. Joseph had not spoken with his father for five to ten years, although Mastramico had visited Joseph’s wife about six months before he died. When Joseph’s sisters Tina and Lisa called him to say that Mastramico had died on the operating table, they mentioned that he did not have a will. Tina later called Joseph asking for help to find a probate lawyer in Florida. Joseph referred Tina to a probate lawyer in Florida and she did speak with the lawyer. However, Tina did not hire the lawyer to probate the estate in Florida. Joseph believed that San Bernardino County was the only place where this probate case was filed.
The following Petitioner’s exhibits were placed into evidence and included in the record on appeal.
Exhibit 1 – Contract for sale and purchase of the Florida mobile home, dated October 1, 2005. Mastramico paid $89,300 in cash.
Exhibit 2 – Exclusive right of sale agreement, dated October 18, 2006, showing Mastramico listed the Florida mobile home for sale for $119,915 with Triangle Realty.
Exhibit 3 – IRS Form 1040 ES (estimated tax payment vouchers) showing Mastramico’s address as David’s San Bernardino County address. Undated, but the vouchers are for payments due June 15 and September 15, 2006 and January 16, 2007.
Exhibit 4 – Undated postcard from Riverside County Registrar of Voters asking for address confirmation for Mastramico. His residence address is listed as his condominium in Riverside. His mailing address is listed as David’s San Bernardino County home.
Exhibit 5 – Sam’s Club membership renewal form dated February 22, 2007, showing a renewal date of May 19, 2007. The mailing address is David’s San Bernardino County home. Mastramico listed as the cardholder. A Mary Rosario and a “Company Card” are said to be included with Mastramico’s membership.
Exhibit 6 – AAA membership renewal bill showing an expiration date of December 14, 2006. Mastramico’s address is listed as David’s San Bernardino County home.
Exhibit 7 – Evidence of automobile insurance from Farmers Insurance Group in Mastramico’s name showing the address of the Riverside condominium. The effective dates are April 5, 2006 through November 20, 2006.
Exhibit 8 – California Department of Motor Vehicles vehicle registration renewal notice showing a due date of January 8, 2006, for a 1997 Lincoln. No name or address are shown.
Respondent’s Exhibits 9, 10, and 13-15 are not part of the record on appeal. They are listed in the Index of Exhibits as: Exhibit 9 – Certified copy of death certificate of Phillip Mastramico; Exhibit 10 – Grand Deed, recorded 11-30-05, Riverside condominium; and Exhibits 13-15 – Aerial photograph, Florida property.
After taking the matter under submission, the court denied the petition on December 7, 2007. The court ruled that Mastramico had “never been a resident of or domiciled in San Bernardino County. He stayed with his son for several weeks after selling his Riverside home in 2005 and before moving to the state of Florida. He received mail at and stored personal belongings at his son’s San Bernardino County home, but never resided there. [¶] At the time of his death, decedent was a resident of and domiciled in the State of Florida.”
Discussion
David contends the trial court erred when it found that San Bernardino County did not have jurisdiction to probate Mastramico’s will because Mastramico was a resident of and domiciled in Florida, rather than in San Bernardino County. Specifically, David argues that the trial court should have found jurisdiction under Probate Code section 7051, based on Mastramico’s domicile. In the alternative, David argues the trial court should have found jurisdiction under section 7052, based on personal property Mastramico owned in San Bernardino County.
1. Probate Code Section 7051
Probate Code Section 7051 provides in its entirety: “If the decedent was domiciled in this state at the time of death, the proper county for proceedings concerning administration of the decedent’s estate is the county in which the decedent was domiciled, regardless of where the decedent died.” David contends that Mastramico’s domicile was in San Bernardino County, rather than in Florida.
The Probate Code does not itself define “domicile.” However, the Elections Code defines domicile as “that place in which his or her habitation is fixed, wherein the person has the intention of remaining, and to which, whenever he or she is absent, the person has the intention of returning. At a given time, a person may have only one domicile.” (Elections Code § 349, subd. (b).) This is consistent with the common law definition of domicile: “‘the one location with which for legal purposes a person is considered to have the most settled and permanent connection, the place where he intends to remain and to which, whenever he is absent, he has the intention of returning, but which the law may also assign to him constructively... it includes both the act of residence and an intention to remain; a person may have only one domicile at a given time....’” (In re Marriage of Archuleta (2002) 101 Cal.App.4th 1415, 1419-1420, citing Smith v. Smith (1955) 45 Cal. 2d 235, 239.)
Standard of Review
The question of a person’s domicile is normally a mixed question of law and fact. That is, where there is conflicting evidence, as opposed to stipulated and uncontradicted facts, a reviewing court will uphold the findings of the trial court if supported by substantial evidence. (Estate of Katz (1944) 66 Cal.App.2d 687, 689; Noble v. Franchise Tax Board (2004) 118 Cal.App.4th 560, 567.) Here, the facts are not stipulated, and therefore, we review the record to see if it shows substantial evidence supporting the trial court’s ruling.
The facts supporting the trial court’s ruling are as follows. Mastramico purchased and lived in a mobile home in Florida for about the last twelve months of his life. He owned no real property in San Bernardino. Mastramico never established a residence or even his own address in San Bernardino County. Mastramico stayed at the home of his son David in San Bernardino County during a six-week interval between selling his former residence in Riverside County and moving to his new residence in Florida. Mastramico’s daughter Tina, who is a party to this appeal, reported Florida as his residence to the maker of his death certificate. Tina initially sought to probate the estate in Florida.
We do not view this as an open-and-shut case. This is because the evidence shows that Mastramico had entered a period in his life where his place of residence was in a transitory state. During the course of about twelve months, Mastramico sold his home of ten years in Riverside, lived in his son’s home in San Bernardino County for six weeks, moved to a mobile home he had purchased in Florida, and then put the mobile home up for sale, allegedly with the intent to return to California. However, in reviewing the law and evidence, we are mindful of the two prerequisites to establishing a domicile— the act of residence and the intent to remain. We agree with the trial court that Mastramico’s six-week stay with David in San Bernardino County was only temporary, and was not an act of residence. Thus, David does not establish the first pre-requisite for a finding of domicile. As for intent, even if the trial court fully credited David’s testimony that his father always intended to return to California to purchase a home and establish a new residence here, there is no evidence whatsoever that Mastramico intended to return specifically to San Bernardino County, other than for a short stay with David while looking for a permanent home. Thus, of the two domiciles urged by the parties in this case, Mastramico at least had performed the act of residence in Florida, whereas he had not in San Bernardino. Therefore, substantial evidence supports the ruling of the trial court that Mastramico’s domicile was not in San Bernardino County.
In the alternative, David contends the trial court should have found that it had jurisdiction over this probate matter under Probate Code section 7052, subdivision (b). This provision states that “if the nondomiciliary decedent did not die in this state, any county in which property of the nondomiciliary decedent is located” has jurisdiction over the estate. However, David did not raise this issue in the trial court—not in the petition or accompanying points and authorities, not in the trial brief, and not during the December 6, 2007, hearing. Issues not properly raised in the trial court will not be considered on appeal. An appellate court will not consider issues not raised in the trial court; to do so would be unfair to the trial judge and the adverse party by allowing the party to take advantage of an error that could easily have been corrected at the trial. (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.) David has therefore waived this issue.
Disposition
The ruling of the trial court is affirmed. Appellant shall bear his own costs on appeal.
We concur: RICHLI, J. MILLER, J.