Opinion
A113272
12-8-2006
In re the Marriage of JOSE and AGUEDA GAVIRIA. JOSE GAVIRIA, Respondent, v. AGUEDA GAVIRIA, Appellant.
Agueda Gaviria, also known as Sunilda Medina (Agueda), appeals from the denial of her motion for a new trial and motion to vacate the judgment in a marital dissolution matter which divided the sale proceeds from the family residence. She contends a new trial should have been granted because: (1) the court refused to strike direct testimony provided by respondent Jose Gaviria (Jose) in late-served trial declarations; (2) Joses evidence and argument at trial varied from his discovery responses; (3) evidence did not support the characterization of a certain loan as Joses separate property obligation; and (4) the court erred in calculating the communitys interest in proceeds from the sale of the parties residence. Agueda also contends the court should have granted her motion to vacate the judgment. We will affirm.
I. FACTS AND PROCEDURAL HISTORY
The parties were married on June 18, 1995 and separated on October 20, 2003. On November 13, 2003, Jose petitioned for dissolution of the marriage.
On June 17, 2005, the trial court issued a trial scheduling order (TSO), which set trial for September 6, 2005, on financial accounting and custody and visitation issues. The TSO provided that all direct testimony be submitted in the form of written declarations, subject to cross-examination, to be filed and exchanged not later than 10 court days before trial, if personally delivered, or 15 court days before trial if served by mail. The TSO warned that failure to comply would "constitute good cause to exclude evidence or testimony at trial and/or to make adverse inferences or findings of fact against the non-complying party." (Bold omitted.)
Jose and Agueda each filed and served declarations. Jose filed his declaration and the declaration of Ignatius Young, his expert witness regarding valuation of the family home, on August 23, 2005. Agueda filed her declarations on the same date. Agueda filed a proof of service indicating personal delivery to the office of Joses counsel on August 23, 2005. The record provided to us does not include a proof of service for Joses declarations, but declarations submitted in the trial court by Aguedas counsel indicate that he actually received the declarations on August 25, 2005. Agueda objected to the court receiving or considering Joses declarations on the grounds that they were untimely and that the experts declaration was substantively defective. She alleged that the delay in service deprived her of adequate time before trial to refute statements in the declarations.
On August 26, 2005, Aguedas counsel filed "Objections to Declarations of Jose Gaviria and Ignatius Young" in which he objected to service as untimely, and objected to the substance of Youngs declaration, evidencing the fact that he had reviewed both declarations by that date. He later submitted a declaration in support of his motion to vacate judgment and motion for new trial in which he states that he received the declarations in his office on "September 25, 2005" but this clearly appears to be a typographical error in light of counsels earlier statement.
Although nothing provided to us contains the courts ruling with respect to Aguedas objections, the record does reflect that the trial date was continued from September 6, 2005, to September 13, 2005, upon the agreement of both parties.
A. TRIAL
Trial commenced on September 13, 2005. In addition to the declarations submitted in lieu of direct testimony, the court allowed cross-examination, heard live testimony and received documentary evidence. The evidence included the following.
In April 1994, prior to the date of their marriage, Jose purchased a home for $158,000, making a down payment of $ 2,887 and obtaining a loan for $155,113. Title was issued in the names of Jose and a friend, Enrique Fidel Pastor, but was later transferred to Jose as his sole property. Thereafter title remained at all times in Joses name only. Both parties (and the trial court in its judgment on reserved issues) refer to a "refinance[]" of the original deed of trust on the property, which apparently occurred at the time that Enrique Pastor was removed from title. There is nothing in the record presented here to establish the date of this transaction, or its terms, but Aguedas declaration contends that it occurred after the date of marriage.
Agueda alleged that she and Jose had cohabited since 1990, and Jose did not dispute this. Their first child was born on June 22, 1991.
The register of actions indicates that Agueda submitted in evidence an escrow settlement statement (exhibit F) and escrow closing instructions (exhibit G-2), which we can only assume must have related to the refinancing transaction. Those exhibits were apparently later returned to trial counsel after the judgment was entered, but they have not been made part of the appellate record.
As previously noted, the parties married on June 18, 1995. During the marriage, Jose also obtained a line of credit, in his name only, secured by the house. Consistent with all prior transactions, the loan and escrow documentation for the line of credit, including the junior deed of trust, were in Joses name alone.
The entire balance on the line of credit ($70,509.12) was paid from Joses share of the proceeds on sale of the house.
Principal payments were made on the first deed of trust note both before and after the date of marriage, and presumably during the marriage on the refinanced obligation as well. The house was sold in July 2005. The sales price of $525,000 generated the net amount of $304,688.74. The primary financial issue at trial was how this sum was to be allocated between Jose and Agueda.
The principal balance on the first deed of trust note (which we presume is the result of the refinance transaction) was $116,534.36 at the time of the sale. No explanation is given for the difference between this amount, and the amount of the original purchase money mortgage ($155,113).
Jose claimed a separate property interest in the home based on his down payment, premarital loan reduction payments, and pro rata allocation of appreciation. Agueda, on the other hand, asserted that Jose had no separate property interest because the down payment came from monies that they had pooled while cohabiting prior to the marriage, and that all payments toward loan principal—both before and after the date of marriage—came from joint funds. Alternatively, she argued, that the refinancing of the mortgage obligation on the property created a community obligation that increased the communitys pro tanto interest in the residence pursuant to In re Marriage of Branco (1996) 47 Cal.App.4th 1621 (Branco).
At the conclusion of the September 13th hearing, the parties were allowed to submit written argument on the property issues, and both sides did so. The matter was continued for further hearing (on custody and visitation issues and attorney fees claims). The court also gave the parties until October 28, 2005 to submit additional declarations if they wished to do so.
B. TRIAL COURT JUDGMENT
On November 15, 2005, the court issued its "JUDGMENT ON RESERVED ISSUES." As relevant to this appeal, the court found that the parties residence was Joses separate property, subject to a community property interest calculated pursuant to the formulas of In re Marriage of Moore (1980) 28 Cal.3d 366 (Moore) and In re Marriage of Marsden (1982) 130 Cal.App.3d 426 (Marsden). The court determined that Joses separate property interest in the residence was 77.86 percent and the communitys interest was 22.14 percent, based on the purchase price, valuation on the date of marriage, and the amount by which community funds reduced the loan principal from the date of marriage to the date of separation. The community portion of the net sales proceeds was thereby determined to be $111,341.76, which was divided equally between the parties ($ 55,670.88 each). Because Agueda had already received $100,000 of the sales proceeds at close of escrow, she was ordered to make an equalizing payment to Jose for the difference of $ 44,329.12.
C. AGUEDAS POST-TRIAL MOTIONS
Agueda filed a notice of intent to move for a new trial and notice of intent to move to vacate the judgment. (Code Civ. Proc., §§ 673, 663.) Agueda sought a new trial on the grounds that (1) there was irregularity in the proceedings, because Jose served declarations after the deadline set by the trial scheduling order; (2) the court erred in determining retroactivity of Joses support obligations; (3) there was accident or surprise in that Joses discovery responses varied from his counsels closing argument as to the separate property nature of the debt secured by the residence; (4) the evidence was insufficient to justify the courts determination that the refinanced mortgage was Joses separate obligation; and (5) the courts decision was contrary to law in regard to the credit given the community for reduction in the principal of the loans. Alternatively, Agueda contended that the judgment should be vacated on the ground of legal error and insufficiency of the evidence.
After hearing on January 18, 2006, the court denied Aguedas motions. This appeal followed.
An additional trial was set for March 7, 2006, to determine the retroactivity of the support order and the issue of permanent support. The trial was subsequently taken off calendar.
II. DISCUSSION
Aguedas notice of appeal does not purport to appeal from the judgment. The notice recites that she appeals "from the order denying MOTION FOR NEW TRIAL AND MOTION TO VACATE AND ENTER DIFFERENT JUDGMENT entered on or about January 18, 2006." The order of January 18, 2006 was a minute order denying the motions.
An order denying a motion for new trial is not an appealable order and may be reviewed only on appeal from the underlying judgment. (Code Civ. Proc., § 906; Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18.) We have discretion, however, to "save" an appeal erroneously taken from an order denying a new trial by construing it as an appeal from the judgment, where it is reasonably clear what the appellant is trying to appeal from, and no prejudice would accrue to respondent. (Id. at pp. 18, 22.) We will exercise that discretion here in favor of considering the appeal. The order denying appellants motion to vacate is, in any event, properly appealable. (Howard v. Lufkin (1988) 206 Cal.App.3d 297, 301.)
We also note that Agueda has failed to provide an adequate record of the trial proceedings below, severely constraining our ability to provide meaningful review on the issues she seeks to raise. No trial transcript has been provided, even though the proceedings were reported. As noted above, certain trial exhibits were received in evidence, but not provided here. Additionally, Argueda fails to include any statement of facts in her opening brief (Cal. Rules of Court, rule 14(a)(2)(C)), and does not even provide a summary of the evidence relevant to the issues presented.
We are therefore required to address the issues based only on the limited record we have been provided.
A. MOTION FOR NEW TRIAL
Agueda contends the trial court was required to grant a new trial. We review for abuse of discretion. (Bardessono v. Michels (1970) 3 Cal.3d 780, 795.)
Agueda relies on subdivisions (1), (3) and (6) of Code of Civil Procedure section 657, which provide for a new trial where the following materially affected the moving partys substantial rights: "(1) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] . . . [¶] (3) Accident or surprise, which ordinary prudence could not have guarded against. [¶] . . . [¶] (6) Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law."
1. Untimely Service of Declarations
Agueda first urges that she is entitled to a new trial because there was irregularity in the trial court proceedings, due to Joses failure to serve his declaration and the declaration of his expert witness by the deadline set forth in the trial scheduling order. (See Code Civ. Proc., § 657, subd. (1).) She claims the service of the declarations by mail caused her "great prejudice," because it left her with insufficient time to refute Joses testimony and to locate and retain her own expert to rebut the testimony of Joses expert witness concerning the separate property valuation of the residence.
The trial court did not err in denying the new trial motion on this ground. We first observe that Aguedas declarations were also not timely filed, since the TSO required that they be filed 10 court days prior to trial, which would have required filing (and service) by August 22, 2005. Additionally, the actual date that trial commenced in this case was not September 6th, but September 13th. Ten court days prior to the actual trial date was August 29th, and Aguedas counsel admittedly had the declarations in his possession on August 25th. Aguedas conclusory claim of any prejudice under these circumstances rings hollow. Moreover, the court later allowed the parties until October 28, 2005, an additional seven weeks, to submit additional declarations if necessary.
Prejudice must be affirmatively shown by the party seeking a new trial. (Dunford v. General Water Heater Corp. (1957) 150 Cal.App.2d 260, 266.) Because she fails to show that she was in any way "prevented from having a fair trial," she had no right to a new trial on this basis. (Code Civ. Proc., § 657, subd. (1) .)
"The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial." (§ 657, subd. (1).)
2. Variance Between Joses Discovery Responses and Position at Trial
Agueda next contends she is entitled to a new trial because she was surprised by a variance between Aguedas discovery responses and the argument of Joses counsel at trial. (See Code Civ. Proc., § 657, subd. (3).) Specifically, Agueda notes, Jose did not state in his responses to interrogatories that the amount owed on the first deed of trust was a separate obligation. Aguedas form interrogatory No. 11 read: "State the facts that support your contention that an asset or debt is separate property." (Italics omitted.) Jose responded only: "$ 16,000. [sic] [D]own payment on family residence." We cannot tell in the absence of a transcript or exhibits what evidence was presented at trial that the refinance loan was a separate obligation (or a community one), although it was apparently undisputed that the transaction documents and deed of trust were in Joses name alone. Agueda contends that Joses counsel asserted in closing argument that it was Joses separate obligation for purposes of the calculation of his separate interest in the residence, because the loan was secured by the residence. Relying on Phillips v. Cooper Laboratories (1989) 215 Cal.App.3d 1648 (Phillips), Agueda contends that a party may not present evidence at trial which varies significantly from discovery responses if the variance causes significant prejudice to his opponent.
Appellants opening brief refers to other exhibits (exhibits H and I) which are also not part of the record provided here.
At the time of trial, Jose had also satisfied this obligation from his share of the proceeds on the sale of the house.
The court in Phillips ruled that the trial court did not abuse its discretion in permitting a witness at trial to explain an interrogatory response, noting that "[a]bsent significant prejudice to the opponent, a party may present evidence at variance to prior answers to interrogatories." (Phillips, supra, 215 Cal.App.3d at p. 1661.)
Again Aguedas failure to provide us with an adequate trial record makes meaningful review of her contention difficult, if not impossible. To the extent that we can consider this issue at all in the absence of a full evidentiary record, Aguedas argument again lacks merit. In the first instance, since she contends that Jose did not present evidence at trial that the loan was his separate property, it cannot be said that any evidence Jose submitted should have been precluded on the ground it was at variance with his response to the interrogatories. Phillips is therefore inapposite. To the extent Agueda complains of arguments of Joses counsel, it was Aguedas obligation to object and bring the matter to the trial courts attention at the time. Because we have not been provided with the reporters transcript of the trial, there is no indication in the record in this appeal that Agueda objected to counsels statement during the trial, assuming that it was made. In fact, there is no reference to any such contemporaneous objection in the papers in support of Aguedas new trial motion.
In any event, Agueda fails to establish that any variance between Joses discovery response and his position at trial caused her prejudice. Agueda does not explain why or how the interrogatory response prevented or hindered her from rebutting Joses characterization of the loan, or in what manner she was precluded from presenting her own evidence on the issue. If Agueda disputed Joses legal position, she was fully able to respond in her own post trial written argument and had ample opportunity to provide authority for her position. If she contested the factual basis for Joses position, she could have provided evidence in the supplemental declarations permitted by the court.
We find no abuse of discretion in the denial of the motion for new trial on this basis.
3. Sufficiency of the Evidence
Agueda contends that the characterization of the refinancing loan as a separate property or community obligation was of critical significance. She argues that if properly characterized as a community loan, which was used to satisfy a separate property obligation secured by a separate property asset, the community is entitled to a special equity credit. (See Branco, supra, 47 Cal.App.4th at p. 1629.) She contends that the trial court prejudicially erred in failing to find this to be a community obligation, and that the evidence does not support the courts contrary finding.
When community funds are used to contribute to the purchase of, or reduce an encumbrance on, a separate asset our courts recognize a co-ownership interest irrespective of the status of title. (In re Marriage of Wolfe (2001) 91 Cal.App.4th 962, 967.)
The so-called Moore/Marsden formulas are used to determine the interest of the marital community in appreciating real estate held as separate property by one of the spouses. In Moore, as here, one spouse purchased a house shortly before the marriage, making a down payment, and taking a purchase money loan for the balance, and took title in her name alone. Payments were made toward the principal of the loan prior to the date of marriage, and community funds were used to further reduce the principal during the marriage. Upon dissolution, the community was given "`a pro tanto community property interest in such property in the ratio that the payments on the purchase price with community funds bear to the payments made with separate funds." (Moore, supra, 28 Cal.3d at p. 372.) To determine the separate property percentage interest, the separate property contributions (down payment and loan amount, minus community property reductions in the principal balance of loan) are divided by the purchase price of the property. The community property percentage interest is determined by dividing the amount by which community payments reduced the principal by the purchase price. (Id. at pp. 373-374.) The relative percentages are then multiplied by the total appreciation of the property during marriage to calculate the respective monetary interests.
In Marsden a spouse had constructed a home years before the date of marriage, with loan payments made during the marriage with community funds. Marsden calculated the separate property percentage interest as the purchase price less the amount by which the community payments had reduced the principal of the loan, divided by the purchase price of the home, and the community interest was calculated by dividing the amount by which community payments had reduced the loan principal by the purchase price. These percentages were then multiplied by the appreciation of the property during the marriage. The total separate property interest consisted of the down payment, loan payments made before the marriage (and after separation), the appreciation of the property before the marriage, the percentage interest in the appreciation of the property during the marriage, and half of the community share of appreciation during the marriage. (Marsden, supra, 130 Cal.App.3d 426.)
Branco is a special application of the Moore/Marsden rule. (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1557.) Branco addressed the application of the Moore/Marsden rule where community funds, from a new mortgage secured by the separate real property, are used to satisfy a premarital purchase money loan for that separate property. In that circumstance, the court held that the community property interest in the home should be computed by dividing the communitys contribution to the purchase price of the home (payments reducing principal made with community funds on the original loan, if any, plus the principal balance of the loan paid off with community refinance proceeds) by the purchase price. This percentage is then applied to the appreciation of the home during the years of the marriage. (Branco, supra, 47 Cal.App.4th at p. 1629.)
The trial court here determined the community interest in the residence using the Moore/Marsden formula. Agueda contends that the court was required to apply the Branco formula because of the refinance of the purchase money loan during the marriage. She argues that Family Code section 760 establishes a rebuttable presumption that loans (actually, loan proceeds) obtained during marriage are community property. She asserts that Jose did not provide sufficient evidence to rebut this presumption, in light of his failure to identify the loan as separate property in his interrogatory response and on his schedule of assets and debts, and his failure to provide other direct evidence as to the characterization of the refinancing loan at trial.
Family Code section 760 provides: "Except as otherwise provided by statute, all property, real or personal, whatever situated, acquired by a married person during the marriage while domiciled in this state is community property."
There are several problems with Aguedas position. First, we are again unable to ascertain what evidence was presented to the trial court on this issue, since she has not provided a reporters transcript of the trial. We therefore must presume, in the absence of a contrary indication from the clerks transcript, that the evidence was sufficient to support the trial courts determination. (See Estate of Fain (1999) 75 Cal.App.4th 973, 992 ["it is presumed that the unreported trial testimony would demonstrate the absence of error"].) Since she has also failed to include any statement of facts in her opening brief in this appeal, or to provide any summary of all the evidence relating to the characterization of this loan, she cannot challenge the sufficiency of the evidence in this regard. (Toigo v. Town of Ross (1998) 70 Cal.App.4th 309, 317 [failure to set forth all material evidence, rather than just favorable evidence, waives appellants right to challenge the sufficiency of the evidence].)
In any event, the declarations and attached exhibits which are contained in the clerks transcript, and which constituted the direct testimony at trial, provide substantial evidence that the proceeds from the refinancing loan were Joses separate property. The general presumption is that property acquired during marriage by a spouse, other than by gift or inheritance, is community property unless traceable to a separate property source. (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 289-290 [decided under former Civ. Code, § 5110].) Proceeds of a loan obtained upon the hypothecation of separate property are themselves separate property. (Ford v. Ford (1969) 276 Cal.App.2d 9, 13.) Furthermore, the rebuttable presumption provided under Family Code section 760 can be overcome by the party contesting community status. (Haines, supra, at p. 290.) Indeed, "virtually any credible evidence may be used to overcome it, including tracing the asset to a separate property source . . . ." (Ibid.)
In the matter before us, the court found that Jose purchased the home 14 months before the parties marriage, title remained in Joses name only, Jose obtained the refinancing loan in his name alone, and the deed of trust was recorded in Joses name only. In addition, all loan documentation and title documents were (apparently) in Joses name alone. The evidence was sufficient to rebut the presumption of Family Code section 760.
In addition, it is also noteworthy that Agueda argued at trial, somewhat inconsistently, that Jose was entirely responsible for the line of credit loan obtained against the property in Joses name alone, and that this loan should be viewed as Joses separate debt.
4. Moore/Marsden Calculation
Aguedas challenge to the Moore/Marsden calculation is based on the assumption that the court erred in its characterization of the refinance transaction. As set forth above, Agueda has not established that the court erred in this respect.
Agueda fails to establish any grounds upon which the trial court should have granted a new trial.
B. MOTION TO VACATE JUDGMENT
A motion to vacate a judgment may be granted where the trial courts decision was based on an error of law or was inconsistent with, or unsupported by, the facts. (Code Civ. Proc., § 663, subd. (1).) Agueda contends that, on the grounds discussed ante with respect to the denial of her new trial motion, the trial court should have vacated the judgment and entered a new and different judgment providing for a community interest in the family residence using the Branco formula. Having rejected these arguments in the context of the new trial motion, we likewise find them meritless with respect to her motion to vacate the judgment.
Code of Civil Procedure section 663 permits the court to set aside a judgment and enter a different judgment if the following materially affected the substantial rights of the moving party and entitled the party to a different judgment: "1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts."
III. DISPOSITION
The judgment is affirmed.
We concur.
JONES, P. J.
SIMONS, J.