Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. IND059083. Lawrence W. Fry, Judge.
Judith Votino Freels, in pro. per., for Appellant.
La Quinta Law Group and Timothy L. Ewanyshyn for Respondent.
OPINION
Gaut, J.
Judith Votino Freels (wife) appeals from a judgment entered following a trial on the reserved issues of child custody and property distribution. Wife argues the trial court improperly disregarded stipulated facts and relied on contradictory trial evidence provided by Rick Vernon Freels (husband) to prove certain real property assets were his separate property. Wife also asserts that the trial court erred in failing to award her all of the assets under Family Code section 1101, subdivision (h). As to child custody, wife argues the trial court abused its discretion in awarding husband primary physical custody of husband and wife’s only child.
All further statutory references are to the Family Code unless otherwise indicated.
We reject wife’s contentions and affirm the judgment.
1. Factual and Procedural Background
Husband and wife met around 1983 and lived together before marrying in April 1997. Their only child, J.F., was born in July 1997. In February 1999, husband filed for dissolution. Husband filed an amended petition for divorce in August 2003. In September 2004, the trial court entered an order of dissolution of husband and wife’s marriage, reserving determination of the issues of child custody and property division.
In August 2005, the trial court conducted a hearing to determine the date of separation of the parties. The trial court issued a detailed statement of decision ruling that the date of separation was November 15, 2002.
In November and December 2006, the child custody and property issues were tried. Due to posttrial motions, the court did not issue its final ruling and enter judgment until June 12, 2007, and July 12, 2007, respectively. Wife appeals the July 12, 2007, judgment with regard to the trial court’s custody and property findings and orders.
2. Reliance on Evidence Inconsistent with Stipulated Facts
Wife contends that the court improperly relied on trial testimony by husband that was inconsistent with the stipulated facts. We disagree.
A. Stipulated Facts
Prior to trial of the property distribution issues, the parties agreed to admit into evidence as true and uncontroverted the following stipulated facts.
On March 26, 1990, husband purchased Lot 183, located at 68160 Calle Cerrito, in Desert Hot Springs (Calle Cerrito property) for $9,000, with title in husband’s name, as a single man.
A home, which was built on this lot, became husband and wife’s family residence.
Husband had several bank accounts in his name, which are identified by alphabetical letters “A” through “G” to protect his privacy. After the parties married in 1997, husband deposited $4,541.99 into account G in November or December 1999.
In March 2000, husband transferred $24,194.36 from account G to account E.
On September 1, 2000, there was $19,668 in account E.
On September 25, 2000, husband received a partial inheritance distribution of $43,473 from his mother’s estate. That same day, husband opened a new account in his name, account D, and deposited his $43,473 inheritance.
In October 2000, husband purchased a Ford Explorer for $15,500, using his inheritance money in account D.
On November 20, 2000, husband withdrew $5,450 from account E. This money was from husband’s earnings received between February 1999 and November 20, 2000. On that same day, husband used the $5,450 to pay for a portion of the down payment for the purchase of Lot 573 in Desert Hot Springs (Verbena property). Husband purchased the Verbena property for $51,264. On November 20, 2000, wife signed an interspousal transfer grant deed, transferring her interest in the Verbena property to husband, “a married man as his sole and separate property.” Escrow closed on the purchase and the grant deed was recorded on November 27, 2000. Title to the property was held in husband’s name, as “a Married Man as his sole and separate property.”
Prior to June 18, 2001, there was approximately $558 in account E. On June 18, 2001, husband received the balance of his inheritance from his mother in the amount of $95,933.59. On or about that same day, husband deposited this sum in account E.
On August 10, 2001, husband withdrew $70,490 from account E. On August 14, 2001, husband used the money to purchase Lot 64 (Quinta property). The grant deed was recorded that same day. Husband purchased the property for $72,603. Title to the property was taken in husband and wife’s names, as “Husband and Wife, as Joint Tenants.”
On September 18, 2001, husband sold the Verbena property for $104,389. The grant deed named the grantor, or seller, of the property as “Rick Freels, a Married Man as his Sole and Separate Property.” On September 17, 2001, husband received $91,000 from the sale of the Verbena property. That same day, husband deposited $10,000 into account A. Husband used the remainder of the sales proceeds, $81,000, to open an account at an unknown financial institution (account UA). No other money was deposited into that account.
The recorded grant deed indicates the sale was earlier. Husband signed the grant deed on August 21, 2001, and the deed was recorded on September 14, 2001.
On November 8, 2001, husband deposited $54,547 from the unknown financial institution into account C.
On March 26, 2002, husband transferred $11,500 from account C to account A. The following day husband withdrew $7,067 from account A and used the money to purchase a vacant lot, Lot 164, for $6,520. The grant deed stated that title was transferred to “Rick Freels, a Married Man as His Sole and Separate Property.”
On May 21, 2002, husband withdrew $6,520 from account C. The following day he used the money as part of the down payment for the purchase of a vacant lot, Lot 166, which was purchased for $7,120. The grant deed stated title was transferred to him as “a married man, as his sole and separate property.” On May 18, 2004, husband sold Lot 166, which had a house on it.
On September 27, 2002, wife signed an interspousal transfer deed, recorded on November 15, 2002, transferring her interest in the Quinta property to husband, “a married man as his sole and separate property.”
On November 15, 2002, husband closed escrow and sold the Quinta property for $125,750. The grant deed showed title passing from “Rick Freels, a Married Man as his Sole and Separate Property” to the buyer. On December 6, 2002, husband deposited $100,025 from the sale into account F. Account F was opened that same day with the property sales proceeds.
On October 31, 2005, the trial court ruled husband and wife’s date of separation was November 15, 2002.
B. Discussion
Wife argues that, even if there was evidence presented at trial establishing that certain stipulated facts were untrue, the trial court nevertheless was bound by the stipulated facts and was required to base its decision on them. We disagree.
Where the evidence presented at trial included both stipulated facts and trial testimony, the trial court was not required to accept as true and solely rely on stipulated facts, which were refuted by credible trial testimony: “‘While it is entirely proper for the court to accept stipulations of counsel that appear to have been made advisedly, and after due consideration of the facts, the court cannot surrender its duty to see that the judgment to be entered is a just one, nor is the court to act as a mere puppet in the matter.’” (California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658, 664, quoting City of Los Angeles v. Harper (1935) 8 Cal.App.2d 552, 555.)
According to the stipulated facts, husband purchased a $15,500 Ford Explorer in October 2000, with inheritance funds from account D. A month before, husband had opened account D and deposited $43,473 in inheritance funds into the account. In November 2000, husband purchased the Verbena property for $51,264. Husband claimed at trial he used the entire $43,473 to purchase the Verbena property but, according to the stipulated facts, there would only have been $27,973 left in account D.
Based on husband’s trial testimony, the trial court disregarded the stipulated fact regarding the Ford Explorer purchase and found that husband used his entire $43,473 inheritance to purchase the Verbena property. Husband testified at trial that the stipulated fact, that he purchased a Ford Explorer with inheritance money in October 2000, was incorrect. Husband explained that he purchased the Ford Explorer in June 2001. He provided bank statements showing he did not withdraw $15,500 from account D in September, October, or November 2000. He also provided a bank statement showing he purchased the Ford Explorer on June 25, 2001. The bank statement indicated the money for the Ford Explorer was not paid from account D.
This evidence presented at trial was sufficient to support the trial court’s ruling that husband used the entirety of his $43,473 inheritance to pay for the Verbena property, with the remainder of the purchase price paid with community property funds. The trial court, as trier of fact, properly exercised its discretion in determining that certain stipulated facts presented at trial were not true and thus appropriately disregarded such facts, which husband established were incorrect. Husband provided substantial evidence refuting the stipulated facts by presenting contradictory, credible testimony and documentary evidence establishing that husband did not use any of his $43,473 inheritance to purchase the Ford Explorer.
The trial court accordingly did not commit reversible error in disregarding stipulated facts with regard to the Ford Explorer purchase. Wife has not specified any instances in which the trial improperly disregarded stipulated facts.
3. Comingling Separate Property with Community Property
Wife argues husband comingled his separate property inheritance money with community property such that tracing his separate property interest was not possible. Wife therefore asserts that all the marital property was community property. We disagree. Husband provided sufficient evidence supporting the trial court’s findings awarding husband separate property interests in the Verbena and Quinta properties and Lots 164 and 166.
Wife correctly states in her opening brief that there is a presumption that the property acquired during husband and wife’s marriage is presumed to be community property. (§ 760.) “A basic rule of a community property system is that all property acquired during marriage is community property unless it comes within a specific exception; the major exceptions to the basic community property rule are those relating to separate property. [Citation.] Thus, there is a general presumption that property acquired during marriage by either spouse other than by gift or inheritance is community property unless traceable to a separate property source. [Citation.]” (In re the Marriage of Haines (1995) 33 Cal.App.4th 277, 289-290 (Haines); see also § 760.)
The community property presumption, which affects the burden of proof, is rebuttable and thus “can be overcome by the party contesting community property status. [Citation.] Since this general community property presumption is not a title presumption, virtually any credible evidence may be used to overcome it, including tracing the asset to a separate property source, showing an agreement or clear understanding between parties regarding ownership status and presenting evidence the item was acquired as a gift. [Citation.]” (Haines, supra, 33 Cal.App.4th at p. 290.)
Section 2581 provides another presumption applicable to the division of property at the time of marital dissolution or legal separation: “For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted by either of the following:
“(a) A clear statement in the deed or other documentary evidence of title by which the property is acquired that the property is separate property and not community property.
“(b) Proof that the parties have made a written agreement that the property is separate property.”
As explained in Haines, supra, 33 Cal.App.4th at page 290, this presumption “meant the party contesting community property status bore the burden of producing sufficient rebuttal evidence showing different ownership interests. [Citation.] The burden of proof for the party contesting community property status is by a preponderance of the evidence. [Citations.]”
There is also the general common law presumption in favor of title, codified in section 662. (Haines, supra, 33 Cal.App.4th at p. 291.)
Wife contends husband failed to provide evidence that enabled the court to trace his use of separate property, inheritance money, to acquire the Verbena and Quinta properties and Lots 164 and 166. The trial court found that because wife executed an interspousal transfer deed, the properties were his separate property. The trial court, however, reimbursed wife for her share of community property funds contributed to the purchase of the Verbena and Quinta properties. We conclude there was sufficient evidence to support the trial court’s findings and division of property.
We begin with the Verbena property. As discussed in the preceding section, there was sufficient evidence presented at trial establishing that husband used all of his initial inheritance distribution of $43,473 to pay for the Verbena property. Only $7,790 in community property funds were used to pay for the property and title was in husband’s name, as his sole property. Since wife signed an interspousal transfer deed at the time of the purchase of the property, any community property interest she may have had in the property was transferred to husband. Under section 2581, subdivision (b), the trial court thus properly found that the Verbena property was husband’s separate property and appropriately found, through tracing, that wife was entitled to one-half of the $7,790 in community property funds contributed to the property purchase.
The evidence presented at trial further established that Lots 164 and 166 were purchased from the Verbena property sales proceeds. According to the stipulated facts, husband sold the Verbena property and deposited the $91,000 in sales proceeds in two new accounts. Husband deposited $10,000 in account A and $81,000 in account UA.
Husband then deposited $54,547 from account UA into account C; and transferred $11,500 from account C to account A. From account A, husband then withdrew $7,067 and purchased Lot 164. From account C, husband withdrew $6,520 and purchased Lot 166. Since Lots 166 and 164 were purchased with separate property proceeds from the sale of the Verbena property and title was solely in husband’s name, as separate property, the trial court appropriately found that the two lots were also husband’s separate property.
Lastly, with regard to the Quinta property, husband used his inheritance to purchase the Quinta property. According to the stipulated facts, upon receiving the balance of his inheritance, amounting to $95,933.59, he deposited it in account E, which only contained $558 at the time. Approximately two months later, husband withdrew $70,490 from account E and used the money to purchase the Quinta property. Although title was in husband and wife’s names, as joint tenants, wife later signed an interspousal transfer deed, transferring her interest in the property to husband, as his sole and separate property. The trial court thus properly found that the property became husband’s separate property under section 2581, subdivision (b).
The trial court also appropriately determined that wife was entitled to one-half of the community property funds of $2,113 contributed to the purchase of the Quinta property. The sum of $2,113 was the difference between the purchase price and husband’s $70,490 payment from his inheritance.
4. Application of Section 1101
As discussed above, rather than finding the Verbena and Quinta properties and Lots 164 and 166 were community property, the trial court ruled the properties were husband’s separate property and reimbursed wife for her community property share of the community property funds contributed to purchasing the properties.
Wife contends this constituted reversible error. She claims she should have been awarded all of the assets because husband failed to provide her with sufficient disclosure of her ownership interest in the Verbena and Quinta properties when he requested her to sign the interspousal transfer deeds for the properties. Wife argues that this constituted fraud and breach of fiduciary duty, thereby entitling her under section 1101, subdivision (h), to all of the assets. (See In re Marriage of Rossi (2001) 90 Cal.App.4th 34, 40-43 (Rossi).)
Section 1101, which provides: “(a) A spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse’s present undivided one-half interest in the community estate, including, but not limited to, a single transaction or a pattern or series of transactions, which transaction or transactions have caused or will cause a detrimental impact to the claimant spouse’s undivided one-half interest in the community estate. [¶] . . . [¶] (h) Remedies for the breach of the fiduciary duty by one spouse, as set forth in Sections 721 and 1100, when the breach falls within the ambit of Section 3294 of the Civil Code shall include, but not be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty.”
Section 1100 pertains to a spouse’s management and control of community property and section 721 defines a spouse’s fiduciary obligations to his or her spouse in connection with transactions between spouses. Subdivision (b) of section 721 provides that, “in 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. This confidential relationship is a fiduciary relationship subject to the same rights and duties of nonmarital business partners . . ., including, but not limited to, the following:
“(1) Providing each spouse access at all times to any books kept regarding a transaction for the purposes of inspection and copying.
“(2) Rendering upon request, true and full information of all things affecting any transaction which concerns the community property. Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of community property transactions.
“(3) Accounting to the spouse, and holding as a trustee, any benefit or profit derived from any transaction by one spouse without the consent of the other spouse which concerns the community property.”
Wife argues husband breached his fiduciary duty to her under section 1101 by asking her to sign the interspousal deeds without full disclosure and never told her the nature or effect of the interspousal transfer deeds, other than that they were needed to purchase other property. Husband testified, however, that when wife signed the interspousal transfer grant deeds, on both occasions he gave her a copy of the deed to review and asked her to sign it without coercing her to do so. Wife thus had the opportunity to read each deed and indicated a willingness to sign the deeds because she knew husband had used primarily his inheritance to purchase the properties.
The Verbena interspousal transfer grant deed was signed before escrow closed on the purchase. Wife signed the Quinta interspousal transfer grant deed about a year after husband purchased the property and a month and a half before close of escrow on husband’s sale of the Quinta property.
Wife argues she did not knowingly sign the deeds since she was merely a housewife and did not know anything about real estate. This is refuted by husband’s testimony that wife had taken a two- to three-week real estate course and had also attended two years of college. Husband testified he believed wife knew what she was signing and was willing to sign the deeds because husband had used his inheritance to purchase the properties. At the time, there was no anger or hostility between the parties. Husband did not exert any pressure on wife to sign the deeds.
In addition, there was insufficient evidence of fraud necessary under Family Code section 1101, subdivision (h), to support exemplary damages under Civil Code section 3294. Civil Code section 3294 provides that “(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”
In determining whether there was sufficient evidence to support exemplary damages under Civil Code section 3294, “[w]e review factual findings of the family court for substantial evidence, examining the evidence in the light most favorable to the prevailing party. [Citation.] . . . Because Civil Code section 3294 requires proof by ‘clear and convincing evidence’ of fraud, oppression, or malice, we must inquire whether the record contains ‘“substantial evidence to support a determination by clear and convincing evidence . . . .”’ [Citation.]” (Rossi, supra, 90 Cal.App.4th at p. 40.)
The record here supports the trial court’s findings of an absence of fraud, oppression or malice. There is no evidence husband coerced wife into signing the deeds or used fraud. On the other hand, there is evidence wife was fully capable of understanding the consequences of signing the interspousal transfer deeds, had an opportunity to review the deeds before signing them, and knowingly and voluntarily signed them. We thus reject wife’s contention that the trial court should have awarded her the whole value of the Verbena and Quinta properties, as well as Lots 164 and 166, under section 1101.
5. Child Custody
This is wife’s second appeal on the issue of child custody. In wife’s first appeal (case No. E036332), wife argued the trial court’s June 2004 order awarding husband primary physical custody of J.F. was an abuse of discretion. This court affirmed the trial court’s ruling.
In the instant appeal, wife challenges the trial court’s judgment entered on July 12, 2007, awarding the parties joint legal custody, with primary physical custody awarded to husband. Wife’s opening brief fails to provide any points and authorities, citations to the record, or case law supporting her contention. Wife merely states in the issues on appeal section and conclusion of her opening brief that the trial court should award her and husband “50/50” legal and physical custody of J.F. Wife also has not filed a reply brief responding to husband’s argument that wife waived or, rather, forfeited her objection by failing to provide proper argument in her appellate brief regarding the issue of child custody.
Wife thus has forfeited her challenge to the child custody order. “‘[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]’ [Citations.] This principle is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence. [Citation.]” (People v. Stanley (1995) 10 Cal.4th 764, 793; see also Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119 (Berger).)
We will not develop wife’s arguments for her and, therefore, decline to reach the issue of child custody. (Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1; see also Berger, supra, 163 Cal.App.3d at p. 1119.) Because wife fails to provide any analysis or argument in support of her challenge to the child custody order, the contention is not properly raised and we will not consider it on appeal. (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 366, fn. 2.)
6. Disposition
The judgment is affirmed. Husband is awarded his costs on appeal.
We concur: Ramirez, P. J., Miller, J.