Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 105 FL 127695.
Mihara, J.
Appellant Wylmina E. Loumena appeals from the trial court’s order after a trial on property issues and its subsequent sanctions order. The trial court characterized the family home as community property and found that Wylmina had failed to trace funds invested in the home to a separate property source so as to support her claims for reimbursement under Family Code section 2640. Wylmina claims that the court’s characterization and tracing findings are not supported by substantial evidence. The trial court subsequently ordered Wylmina to pay $100,000 in sanctions under Family Code section 271 to respondent Timothy P. Loumena. Wylmina contends that the trial court erroneously failed to consider whether this sanctions award would impose an unreasonable financial burden on her. We uphold the trial court’s rulings in all respects but one. As it was undisputed that Wylmina had paid the $21,700 down payment on the home from her separate property, we will direct the court to modify its order to allow her claim for reimbursement of that amount.
I. Factual Background
In 1994, Wylmina and Timothy became engaged to be married, and, before they wed, they jointly shopped for and selected a house to purchase. Although Timothy wanted to wait until after the wedding to purchase the home, Wylmina did not want to wait. Timothy and Wylmina agreed that the home they had selected would be “our home for our family.” They intended to add Timothy’s name to the title after they married.
The purchase price for the home was $217,000. Wylmina had substantial separate property funds before they married, but Timothy had no assets. Wylmina utilized her separate property to pay the down payment on the home. The down payment was $21,700. The first mortgage was $173,600, and the second mortgage, carried by the seller, was $21,700.
Wylmina testified at trial that she had between $90,000 and $100,000 in savings before the couple married, part of which was in a 401k account. Timothy conceded at trial that he had no assets when the couple married.
Timothy testified at trial that the down payment “came out of a loan on [Wylmina’s] 401(K) or some PG&E stock that she had at the time.” Wylmina testified that she used her separate property funds for the down payment. There was no evidence to the contrary. After the couple separated in 2005, Wylmina used money from their joint checking account to pay off a “loan on her 401(K).”
On November 4, 1994, Wylmina took title to a single family residence at 21251 Almaden Road (the home) as “A SINGLE WOMAN.” Timothy and Wylmina had agreed that she would take title to the home as her separate property because she had better credit and together their combined salaries would have disqualified them from obtaining a “mortgage credit certificate,” which provided a substantial tax benefit.
Wylmina and Timothy married on November 5, 1994. Thereafter, they maintained a joint checking account, and neither of them had a separate checking account. Both of them deposited their paychecks and bonuses into the joint account. On November 30, 1994, a check to the seller for $21,700 was written on the joint checking account. This check essentially paid off the second mortgage. The monthly mortgage payments, which were about $1,000 per month, were paid out of the joint checking account.
Wylmina did have separate “401(K)’s” and “IRA” accounts.
Neither Timothy nor Wylmina was able to recall either of their salaries during the period from their marriage until 2000.
At the end of 1995, Wylmina and Timothy decided to refinance the mortgage to “lock in a fixed rate,” since their original mortgage had an adjustable rate. On January 11, 1996, Wylmina transferred title to the home to Timothy and herself “HUSBAND AND WIFE AS JOINT TENANTS.” The new $120,000 mortgage was in both Wylmina’s and Timothy’s names. They paid down the original mortgage with $50,000 in funds from their joint checking account as part of the refinancing.
Between 1996 and 2000, Wylmina received approximately $115,000 in separate property funds from the settlement of a lawsuit related to her mother’s death. Ten percent of this amount was “tithed to the church,” and the remaining funds were deposited in the couple’s joint checking account. By August 2000, they owed just $10,500 on the mortgage on the home.
In 2003 or 2004, the couple obtained a new mortgage for $300,000 to fund a remodel of the home. Timothy and Wylmina separated in June 2005. Wylmina moved out of the house, and Timothy remained and continued to pay the monthly $3,127.26 mortgage payments and the property taxes. By the time of trial, the mortgage on the home was a “[l]ittle over” $203,000. The house was worth between $800,000 and $1 million.
II. Procedural Background
The marriage of Wylmina and Timothy was dissolved in August 2007, but the court reserved jurisdiction over all other issues. The property issues were tried in November 2007.
Wylmina testified at trial that the source of funds for the November 30, 1994 check to the seller which paid off the second mortgage was her sale of separate property stock. She claimed that the home was worth $250,000 in January 1996 when they refinanced the mortgage and she deeded the home to both of them as community property. Wylmina testified that, as part of the refinancing, she used $50,000 she had inherited from her mother’s estate to “pay down” the mortgage so that the new mortgage would have a principal balance of just $120,000. Wylmina also testified that, between 1996 and 2000, she used her separate property funds to almost completely pay off the mortgage on the home. Timothy, on the other hand, testified that they were able to substantially pay off the mortgage in 2000 because his salary had increased, enabling them to apply additional amounts to the principal each month.
Wylmina’s father testified that he had given Wylmina $50,000 from the insurance proceeds arising from Wylmina’s mother’s death. He also testified that he gave Wylmina an additional $20,000 in 1995. Wylmina’s brother testified that he and Wylmina had each received a disbursement of $50,000 in February 1996 related to their mother’s death. He testified that another disbursement, this time for “a little over $115,000,” occurred in May 1999.
Wylmina’s trial counsel argued that the home was separate property when it was purchased, and that Wylmina “has a valid separate property reimbursement claim under two theories.” She relied on evidence that Wylmina had received $245,000 in separate property funds during the first five years of the marriage and that the mortgage had been paid down to just over $10,000 by 2000. “Her contention is that she used the funds that she received to pay down the mortgage on the house.” “There is no identifiable place that this money went other than to the mortgage.” Wylmina’s trial counsel asserted that this $245,000 amount was the same amount as “what her claim would have been under the transmutation claim, if she were asserting a total separate property interest when she put [Timothy’s] name on title.”
Timothy’s attorney argued that the court should find that the home was community property from the beginning. He did not dispute that Wylmina had received $245,000 in separate property funds during the first five years of the marriage, but he argued that she had failed to trace those funds to investments in the home. Those funds had been deposited in the commingled joint checking account, and, he argued, the presumption was that funds paid out of the joint checking account were community funds. He maintained: “[T]o overcome the presumption,... the party must present a chronological itemization of separate property and community property deposits and withdrawals.”
In January 2008, the court found that the home should be treated as community property from the start, and it rejected Wylmina’s claims for reimbursement under Family Code section 2640 because she “failed to present legally adequate tracing....”
With respect to the characterization issue, the court found: “Respondent presented unrefuted evidence that the parties’ [sic], while engaged to be married, discussed and decided to purchase a family home together; that this home would be ‘their’ home; that they shopped for homes together; that they ultimately selected the home in question, which was Respondent’s choice (Petitioner desiring another home); and that title and loan were taken in Petitioner’s name by discussion and agreement for financial reasons only, so that the parties’ [sic] could obtain more favorable financing. [¶] The Court finds that, considering these somewhat unique circumstances, the home shall be divided as community property. This is the most equitable and the most reasonable solution, and it is supported by California law. This Court has jurisdiction to ‘inquire into and render any judgment and make orders that are appropriate concerning... the settlement of the property rights of the parties.’ Cal. Fam. Code § 2010(e). Treating real property acquired jointly in anticipation of marriage, particularly on the virtual eve of marriage, as community property, is an acceptable exercise of this Court’s discretion to fairly adjudicate the parties’ property rights. Martin v. Pritchard (1921) 52 Cal.App. 720; La Liberty v. La Liberty (1932) 127 Cal.App. 669.”
Both Martin v. Pritchard (1921) 52 Cal.App. 720 (Martin) and La Liberty v. La Liberty (1932) 127 Cal.App. 669 (La Liberty) were cases in which the Courts of Appeal upheld trial court findings that oral premarital agreements converting separate property to community property were valid. (Martin, at pp. 724-725; La Liberty, at pp. 672-673.)
As to Wylmina’s Family Code Section 2640 reimbursement claims, the court found no basis for them. It found that Wylmina had “proved to this Court’s satisfaction that [she] received approximately $245,000 through the death of her mother.” “[A]lthough it seems likely that she contributed at least some money toward the purchase of the real property in question,” the funds were commingled in a joint checking account, and the presumption was that money paid out of a commingled account was community money. The court concluded that Wylmina had failed to overcome this presumption by “establish[ing] successful tracing” of these funds to expenditures on the home. “All [Wylmina] offered to trace the acknowledged separate property was oral testimony, which is insufficient under the law. As such, [her] tracing fails, and she is not entitled to reimbursement under Family Code section 2640.” She “did not produce a single document of any kind to trace the expenditure of these funds into or out of any given account. All she offered was oral testimony.” Wylmina timely filed a notice of appeal from the trial court’s order regarding the home.
Timothy sought a total of $355,000 as sanctions under Family Code section 271, which included $250,000 in attorney’s fees. He itemized the many ways in which Wylmina had acted to frustrate resolution of this litigation and to increase its costs. Timothy asserted that Wylmina had the ability to pay sanctions because she was to receive a share of the proceeds of the sale of the home. Wylmina argued in her brief in response that an award of sanctions would impose an “unreasonable financial burden” on her because she was jobless, had no income, and had debts exceeding $250,000, primarily for her attorney’s fees.
In June 2008, the trial court ordered Wylmina to pay $100,000 in sanctions to Timothy under Family Code section 271. The court’s order explicitly stated that it had considered all of the briefs filed by the parties. The court’s order provided that the sanctions would be paid out of the proceeds of the sale of the home. Wylmina timely filed a notice of appeal from the sanctions order.
This court ordered the two appeals consolidated for briefing, oral argument, and decision.
III. Discussion
A. Characterization
Wylmina contends that the trial court erred in characterizing the home as community property from the time of its purchase. She claims that Family Code section 770 required the court to find that the home was originally her separate property because it was purchased before the marriage. Wylmina asserts that “the record does not establish sufficient performance” to take the oral premarital agreement to which Timothy testified out of the statute of frauds. She concedes that we review the question of whether the record reflects “sufficient performance” under a substantial evidence standard of review.
Although Wylmina acknowledges that one of the two cases cited by the trial court in its statement of decision concerned “the enforcement of a premarital agreement which is taken out of the statute of frauds by the performance of one or both of the parties,” she asserts, without any citations to the record, that “the characterization issue was not tried or argued in terms of an oral premarital agreement.” The record refutes her contention. In Timothy’s trial brief, he cited the same two cases cited by the trial court in its statement of decision and argued, based on these cases, “that the character of property could be determined by ‘contract made prior to and in anticipation of marriage’ and that such contract, if fully completed, need not comply with the statute of frauds.” He asked the court to follow these cases. Thus, Timothy did argue the characterization issue “in terms of an oral premarital agreement.”
Family Code section 770 provides: “Separate property of a married person includes all of the following: [¶] (1) All property owned by the person before marriage.” (Fam. Code, § 770, subd. (a).) But a premarital agreement may alter such property rights. “The property rights of husband and wife prescribed by statute may be altered by a premarital agreement or other marital property agreement.” (Fam. Code, § 1500.) “Parties to a premarital agreement may contract with respect to all of the following: [¶] (1) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.” (Fam. Code, § 1612.)
Ordinarily, a premarital agreement must be writing. “A premarital agreement shall be in writing and signed by both parties. It is enforceable without consideration.” (Fam. Code, § 1611.) While Family Code section 1611 is a statute of frauds for premarital agreements, the “traditional exceptions to the statute of frauds” apply to premarital agreements. (Hall v. Hall (1990) 222 Cal.App.3d 578, 587 (Hall).) These “traditional exceptions” to the statute of frauds include full performance, partial performance, and equitable estoppel. (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1072 (Byrne); In re Marriage of Garrity and Bishton (1986) 181 Cal.App.3d 675, 685-686 (Garrity).)
“Parties prior to marriage may by agreement transmute separate property into community property. Such transmutation is effective even if the agreement is an oral one if subsequent to the marriage it is executed. Execution is disclosed by acts and conduct in confirmation of the agreement.” (Garrity, supra, 181 Cal.App.3d at p. 685.) In Garrity, after entering into the oral prenuptial agreement, the couple married, combined their assets, and placed the property in both of their names. (Garrity, at p. 686.) The court found that full performance of the oral prenuptial agreement took it out of the statute of frauds. (Garrity, at pp. 685-686.)
Even partial performance may take an oral prenuptial agreement out of the statute of frauds. “For relief to be granted because of partial performance of an oral antenuptial contract, the acts which are relied upon must be unequivocally referable to the contract. Acts which, although done in performance of the contract, admit to an explanation other than the contract (such as the performance of husbandly or wifely duties) are not generally acts of partial performance which will take the agreement out of the statute of frauds.” (Hall, supra, 222 Cal.App.3d at p. 586.) “[T]o constitute part performance, the relevant acts either must ‘unequivocally refer[ ]’ to the contract [citation], or ‘clearly relate’ to its terms. [Citations.] Such conduct satisfies the evidentiary function of the statute of frauds by confirming that a bargain was in fact reached.” (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1109.)
A third way that an oral prenuptial agreement may be taken out of the statute of frauds is by the application of equitable estoppel. “Equitable estoppel is a broader doctrine than part performance. [Citation.] All that is required for an equitable estoppel is a ‘serious’ change of position and ‘unconscionable’ injury. [Citation.] Performance unequivocally referable to the agreement is not an indispensable part of the equation.” (Byrne, supra, 52 Cal.App.4th at p. 1072.)
Here, the trial court had before it substantial evidence of full performance of the oral prenuptial agreement, which supported the court’s decision that the agreement was taken out of the statute of frauds. Wylmina’s entire argument on this point ignores the evidence. She asserts only: “However, the agreement would only be enforceable in cases in which the acts relied upon for ‘performance’ are unequivocally referable to the contract and which involve an irretrievable and detrimental change of position by the party seeking to enforce the oral agreement.[] [Citations.] The record in this case does not contain facts sufficient to establish that exception to the writing requirement.” She makes no effort to discuss the evidence or to explain precisely how it was lacking.
Wylmina erroneously intermingles the requirements for partial performance with those for equitable estoppel.
The evidence before the trial court established that, in accordance with their oral premarital agreement, the couple married, combined their assets, paid the mortgage payments from their joint checking account, paid off the second mortgage from their joint checking account, and completed the full performance of the oral agreement by changing the title to the home so that it was held as community property when they refinanced the home just over a year after the marriage. These acts of performance were “unequivocally referable” to the terms of the oral premarital agreement. The agreement was that the home would be community property once they married. Timothy had wanted to wait until they married to buy the house, but he agreed to the earlier purchase in reliance on Wylmina’s promise that the home would nevertheless be community property. They invested a substantial amount of community funds in the home before Timothy’s name was added to both the title and the mortgage. This evidence was sufficient to support the trial court’s finding that the oral premarital agreement was taken out of the statute of frauds. Since the couple’s oral agreement was that the home would be community property, notwithstanding the fact that Wylmina had taken title to it as her separate property for tax and credit reasons one day before the marriage, the trial court could properly conclude that the home was community property from the time of its purchase.
B. Reimbursement Claims
Wylmina challenges the trial court’s denial of her reimbursement claims under Family Code section 2640.
“In the division of the community estate under this division, unless a party has made a written waiver of the right to reimbursement or has signed a writing that has the effect of a waiver, the party shall be reimbursed for the party’s contributions to the acquisition of property of the community property estate to the extent the party traces the contributions to a separate property source. The amount reimbursed shall be without interest or adjustment for change in monetary values and may not exceed the net value of the property at the time of the division.” (Fam. Code, § 2640, subd. (b), italics added.) “ ‘Contributions to the acquisition of property,’ as used in this section, include downpayments, payments for improvements, and payments that reduce the principal of a loan used to finance the purchase or improvement of the property but do not include payments of interest on the loan or payments made for maintenance, insurance, or taxation of the property.” (Fam. Code, § 2640, subd. (a).)
“Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” (Fam. Code, § 760.) Family Code section 760 creates a presumption that “property... acquired” during a marriage, which includes an interest in property acquired by down payments and payments to reduce the principal owed on property, is community property. “The presumption that all property acquired by either spouse during the marriage is community property may be overcome. [Citations.] Whether or not the presumption is overcome is a question of fact for the trial court. [Citations.] Generally speaking such post-marital property can be established to be separate property by two independent methods of tracing. The first method involves direct tracing.... The second method involves a consideration of family expenses.” (In re Marriage of Mix (1975) 14 Cal.3d 604, 611-612 (Mix).)
Under Family Code section 2640, “property acquired” includes both “downpayments” and “payments that reduce the principal of a loan used to finance the purchase or improvement of the property.” The reimbursement that Wylmina sought was for the down payment on the home and the payments made to reduce the principal on the home’s mortgages.
Wylmina does not claim that she produced evidence sufficient to trace her separate property through the “family expenses” method. “[The family expenses method] is based upon the presumption that family expenses are paid from community funds. [Citations.] If at the time of the acquisition of the property in dispute, it can be shown that all community income in the commingled account has been exhausted by family expenses, then all funds remaining in the account at the time the property was purchased were necessarily separate funds.” (Mix, supra, 14 Cal.3d at p. 612.)
“ ‘The mere commingling of separate with community funds in a bank account does not destroy the character of the former if the amount thereof can be ascertained.’ [Citations.]... ‘If the property, or the source of funds with which it is acquired, can be traced, its separate property character remains unchanged. [Citations.] But if separate and community property or funds are commingled in such a manner that it is impossible to trace the source of the property or funds, the whole will be treated as community property....’ ” (Mix, supra, 14 Cal.3d at p. 611.) “Whether the spouse claiming a separate property interest has adequately met his or her burden of tracing to a separate property source is a question of fact and the trial court’s holding on the matter must be upheld if supported by substantial evidence.” (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1057-1058.)
Mix provides the template for determining whether tracing has been proved. The issue in Mix was whether the wife had adequately traced (using “direct tracing”) her separate property funds through a joint account to her use of funds from that joint account to purchase property. (Mix, supra, 14 Cal.3d at pp. 612-613.) The wife introduced into evidence at trial a “schedule” which itemized the amounts of each separate property deposit into the joint account, the amounts of each separate property withdrawal from the joint account for the purchase of property, and the amount of separate property remaining in the account after each of those withdrawals. This evidence reflected that a significant amount of separate property funds had always remained in the account after each withdrawal. The wife also testified that she had intended to use the separate property funds on deposit in the joint account to finance each of the withdrawals of funds that she used to purchase property. (Mix, at pp. 613-614.) The trial court credited the wife’s evidence and testimony, and it found that she had adequately traced her separate funds to the property purchases. (Mix, at p. 614.) The California Supreme Court concluded that substantial evidence supported the trial court’s decision. (Mix, at p. 614.)
While the California Supreme Court upheld a trial court’s finding of adequate direct tracing in Mix, the Court of Appeal in In re Marriage of Braud (1996) 45 Cal.App.4th 797 (Braud) reversed a trial court’s finding of adequate direct tracing. The contrast between the evidence in Mix and that in Braud illustrates the precise nature of the requirements of the direct tracing method. As Braud recognized, the spouse seeking to rebut the community property presumption bears the burden of tracing the “components of the commingled mass” in the joint account to their “separate property and community property sources.” (Braud, at p. 823.) If the tracing fails, “the entire commingled fund will be deemed community property pursuant to the general community property presumption of [Family Code] section 760.” (Ibid.) Braud delineated what was necessary to utilize the direct tracing method. “This method requires specific records reconstructing each separate and community property deposit, and each separate and community property payment as it occurs. Separate property status cannot be established by mere oral testimony of intent or by records that simply total up all separate property funds available during the relevant period and all the separate expenditures during that period; such records do not adequately trace to the source of the purchase at the time it was made. [Citations.]” (Braud, supra, 45 Cal.App.4th at p. 823, italics added.) In Braud, the Court of Appeal found that substantial evidence did not support the trial court’s finding that the husband had overcome the presumption because the husband had failed to produce any “documents” or “records” to support his bare testimony that he intended for the separate property funds he deposited in a joint account to be used for improvements to the family home. (Braud, at pp. 824-825.)
Wylmina asserts that Braud’s description of the requisites for direct tracing is “overly stringent when compared with the approach taken in [Mix].” Yet she fails to explain how the two “approach[es]” differ. Instead, she argues that she satisfied the standard set forth in Mix. Mix, like Braud, places upon the spouse seeking to establish the separate property character of funds withdrawn from a joint account the burden of tracing those funds from their separate property source through the joint account to the withdrawal. Both Mix and Braud require that this tracing establish that the separate property funds were on deposit in the joint account when funds were withdrawn. Wylmina’s evidence at trial was plainly insufficient to trace her separate property funds through the joint account to the withdrawals that were used to pay down the principal on the home. Not only did she fail to offer any financial records of any kind, but she was not even able through her testimony to establish the precise dates on which each of the deposits and withdrawals occurred or the precise amounts of all of those deposits and withdrawals. Although it was undisputed that a check for $21,700 was written on the joint account on November 30, 1994, which was a withdrawal from the joint account to pay off the second mortgage, Wylmina produced no evidence, testimonial or otherwise, regarding the date of or amount of a prior deposit of separate property funds into the joint account. The same was true as to the funds withdrawn to pay down the principal. Wylmina did not establish whether separate property funds were on deposit in the joint account at the time of those withdrawals. Indeed, she did not even establish the precise dates of those withdrawals or the amounts of any of them other than the January 1996 $50,000 withdrawal.
Wylmina asserts that her testimony combined with the testimony of her brother and her father plus “Tim’s Social Security earnings statement” established that it was her separate property which was the source of the funds which were used to pay down the principal on the home. Wylmina’s testimony and the testimony of her brother and father established no more than (1) she received a substantial amount of separate property funds between 1994 and 2000, and (2) she intended that those funds be used to pay down the principal on the home. The amount of Timothy’s earnings in these years could not establish the amount of community or separate funds in the joint account at any relevant time since Wylmina’s earnings would also have been community funds.
The trial court’s analysis of Wylmina’s evidence complied with both Mix and Braud. It credited the testimony, which Timothy did not challenge, that Wylmina had “received approximately $245,000” in separate property funds during the marriage, and it acknowledged that it was “likely that she contributed at least some money toward the purchase of the real property in question.” (Italics added.) However, the court found that, because Wylmina had deposited those separate property funds in the couple’s joint checking account, where those funds were commingled with community funds, and the contributions to the property were made with funds from the joint checking account, these funds were presumptively community property. The court concluded that Wylmina had not established direct tracing of these funds because she had failed to produce “a single document of any kind to trace the expenditure of these funds into or out of any given account,” and her reliance solely on “oral testimony” was “insufficient under the law” to overcome the presumption and establish “successful tracing.”
Since substantial evidence supports the trial court’s finding that Wylmina’s evidence was insufficient to establish direct tracing for the funds used to pay off the second mortgage and pay down the principal on the home, we are bound to uphold that finding. However, we do find one error in the trial court’s complete denial of Wylmina’s reimbursement claims. It was undisputed at trial that the funds used to pay the $21,700 down payment on the home were Wylmina’s separate property funds. These funds were not withdrawn from a commingled joint checking account as the couple had not yet married when these funds were disbursed, so no presumption applied. Consequently, the trial court should have allowed Wylmina’s claim for reimbursement of the $21,700 down payment on the home. We will direct the trial court to modify its ruling in this respect.
In his trial brief, Timothy conceded the validity of Wylmina’s claim for $21,700 in reimbursement for the down payment. Nevertheless, he inexplicably argues on appeal that Wylmina was not entitled to reimbursement of the down payment because she gave inconsistent testimony about the amount of the down payment. Since Timothy did not dispute that Wylmina paid the down payment of $21,700 from her separate property, there is no merit to his appellate argument on this point.
C. Sanctions Order
Wylmina contends that the trial court erroneously “Failed to Consider Whether the Attorney’s Fee Award Imposed an Unreasonable Financial Burden on Wylmina, as Required by Family Code Section 271(a).”
“Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.” (Fam. Code, § 271, subd. (a), italics added.)
Wylmina points to evidence that she “currently had no earnings” and complains that “there is no indication in the order that the court considered the financial burden of its [sanctions] award on Wylmina.” Wylmina cites no authority for the proposition that a sanctions order under Family Code section 271, subdivision (a) must expressly state that the court has considered whether the award will impose an “unreasonable financial burden” on the party against whom it is imposed.
A sanctions order under Family Code section 271 is reviewed for abuse of discretion. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.) “The doctrine of implied findings requires the appellate court to infer the trial court made all factual findings necessary to support the judgment. [Citation.] The doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)
Here, the trial court’s sanctions order explicitly stated that the court “has considered” all of the briefing submitted by the parties. Wylmina had argued in her briefs before the trial court that an award of sanctions would impose an “unreasonable financial burden” on her because she was jobless, had no income, and had considerable debts. The trial court’s order implicitly affirmed that it had considered and rejected her claim that a sanctions order would impose an “unreasonable financial burden” on her. Hence, Wylmina had failed to establish that the trial court did not consider this issue.
IV. Disposition
The trial court’s order in appellate case No. H032608 is reversed, and that matter is remanded with directions for the court to modify its order to allow Wylmina’s claim for reimbursement of her separate property contribution of $21,700 for the down payment on the family home. The trial court’s sanctions order in appellate case No. H033027 is affirmed. Timothy shall recover his costs on appeal in both cases.
We Concur: Bamattre-Manoukian, Acting P. J., Duffy, J.