Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
San Luis Obispo County, Super. Ct. No. FL061129, Patrick J. Perry, Commissioner
The Law Office of Terri L. McCracken and Terri L. McCracken for Appellant.
David G. Stronge and Angel R. Cabrera for Respondent.
PERREN, J.
Jack Kromberg appeals from an order awarding one-half a mobile home and mobile home lease to respondent Therese Kromberg as community property. He contends the trial court erred in valuing the mobile home and finding the ground lease to be community property. We affirm.
Facts and Procedural History
Jack and Therese Kromberg were married on September 11, 2004, and divorced less than two years later. After Jack and Therese announced their engagement in late 2003, Jack's mother, Marlene, said she would give Jack and Therese a mobile home as a wedding gift. The mobile home is located in a mobile home park near a beach and golf course. Jack's deceased father, James, had entered into a month-to-month lease for a space in the park in 1967.
In 1998, Jack and Therese began living in the mobile home and resided there during their marriage. For most of this period, Jack paid the space rent. On December 20, 2004, Jack and Therese took title to the mobile home as "community property with right of survivorship." Jack and Therese lived in the mobile home under the terms of the lease entered into by Jack's father until June 15, 2006, when Jack and Therese signed a new rental agreement with the mobile home park for a one-year term beginning September 1, 2006. The parties separated on June 27, 2006. Jack continued to reside in the mobile home after the separation.
At trial, Jack asserted that, although title to the mobile home was in both their names and title was taken as community property with right of survivorship, the mobile home was his separate property. He also contended that, although the rental agreement for the space was in both their names, the mobile home lease was his separate property. He based these assertions on the testimony of his mother and sister that Marlene intended to give the mobile home and lease to Jack as his separate property.
Each party submitted an appraisal. Jack's appraisal, dated December 12, 2006, valued the mobile home at $147,000. Therese's appraisal, dated September 10, 2006, valued the property at $166,000. Jack's appraiser testified the value of the mobile home without the leased space was approximately $30,000.
After trial on January 29, and 30, 2007, the court issued a statement of decision valuing the mobile home at $166,000. The court ordered that title to the mobile home should not transfer to Jack until he paid an equalizing payment to Therese of $82,500. The court ordered the mobile home to be sold if Jack did not make the equalizing payment in full within 60 days of entry of judgment and ordered Therese to receive the first $82,500 of the net proceeds. The court based its order on a finding that simply ordering sale of the home would give Jack an opportunity to depress the value of the home by bad faith tactics.
In this appeal, Jack contends the trial court erred in valuing the mobile home by using an appraisal done four months before trial and failing to deduct the cost of sale and in finding that the mobile home's lease was community property.
DISCUSSION
Substantial Evidence Supports the Finding that the Mobile Home's Value was $166,000
Jack asserts the trial court erred in relying on Therese's appraisal to establish the mobile home's value because it was prepared four months prior to trial. We disagree.
Family Code section 2552, subdivision (a) provides: "For purposes of division of the community estate upon dissolution of marriage . . . the court shall value the assets and liabilities as near as practicable to the time of trial." Jack argues that his appraisal was closest to the trial date and should have been accepted by the court. We disagree.
All statutory references are to the Family Code unless otherwise indicated.
The trial court makes an independent determination of the value of a community asset based on all competent valuation evidence presented. However, in the exercise of its broad discretion, the trial court must make an independent determination of value based on the evidence and is free to determine the weight to be given the evidence. Expert evidence is not conclusive and the court is not required to accept the valuation opinion of any expert. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 820.) Accordingly, in the exercise of its discretion, the court may accept, totally reject or give little or great weight to each item of evidence and conclude that the value is somewhere between the high and low opinions of the experts. Its decision will be affirmed on appeal so long as it is supported by substantial evidence. (In re Marriage of Bergman (1985) 168 Cal.App.3d 742, 752-754.)
Both appraisals submitted in evidence used the accepted comparable sales method of valuing the mobile home. (Evid. Code, § 815.) The difference in value was not the result of a difference in valuation dates. The difference occurred because Jack's appraiser reduced the value of the property for the expenses of repair he believed would be necessary before the property was sold. It was within the court's broad discretion to reject the opinion of Jack's expert that these repairs affected value.
Jack also asserts the trial court erred in not taking into account the costs associated with sale of the property. Current fair market value can reflect costs of sale, such as real estate commissions if the asset's sale is "virtually immediate," by the terms of the property division order. (See In re Marriage of Denney (1981) 115 Cal.App.3d 543, 551; In re Marriage of Drivon (1972) 28 Cal.App.3d 896, 898 [discount for broker's commission allowed in valuing community home even though court did not order sale, since immediate sale necessary to repay loans].) Where, as here, sale of the home is not required to effect equal division or satisfaction of encumbrances, no deduction for costs of sale is appropriate. (In re Marriage of Stratton (1975) 46 Cal.App.3d 173, 175-176; see also In re Marriage of Czapar (1991) 232 Cal.App.3d 1308, 1315 [value of family home should not be reduced by costs of sale when court has awarded home to one party and there is no evidence that party intends to or is required to sell home].)
Jack asserted throughout the proceedings that he wanted to keep the mobile home and live in it. The court accommodated Jack's wishes by ordering sale only if Jack did not make an equalizing payment to Therese. Under these facts, making a deduction for cost of sale would be speculative and inappropriate. (In re Marriage of Czapar, supra, 232 Cal.App.3d at p. 1315.)
Substantial Evidence Supports the Finding that the Mobile Home Lease Was Community Property
Jack asserts that the lease for the mobile home is his separate property based on testimony from Marlene and Jack's sister that Marlene intended that the lease was to be his separate property. This argument is not supported by the record.
Jack's mother and sister also testified that Marlene intended to give the mobile home to Jack as his separate property. Jack does not challenge the court's characterization of the mobile home as community property in this appeal.
All property acquired during marriage and before separation is presumptively community property. (§§ 760, 771, subd. (a), 772; In re Marriage of Lehman (1998) 18 Cal.4th 169, 177.) For purposes of a property division at dissolution, any acquisition by the spouses during marriage in joint form triggers the community property presumption. (§ 2581; see In re Marriage of Martinez (1984) 156 Cal.App.3d 20, 28, disapproved on other grounds in In re Marriage of Buol (1985) 39 Cal.3d 751, 763, fn. 10; see also In re Marriage of Weaver (2005) 127 Cal.App.4th 858, 865-866 [§ 2581 applicable where husband's mother during marriage unintentionally put wife along with husband on title as joint tenant].) The community property presumption attaches to any type of property, including leases, taken in joint form during the marriage, even if the property was obtained by gift. (§ 2581; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) §§ 8:410, 8:414; see In re Marriage of Anderson (1984) 154 Cal.App.3d 572, 579, disapproved on other grounds in In re Marriage of Buol, supra, at p. 763, fn. 10.)
Evidence submitted to rebut the presumption must be in writing. Section 2581 states: "This presumption . . . 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." Under the statute, the testimony of Jack's mother and sister is insufficient to rebut the presumption. The only substantial evidence in the record was the lease entered into prior to separation in which both Jack and Therese are named as lessees.
The judgment is affirmed. Respondent shall recover costs.
We concur: YEGAN, Acting P.J., COFFEE, J.