Opinion
NOT TO BE PUBLISHED
Appeal from the judgment and orders of the Superior Court of Orange County Super. Ct. No. 00D003462, Thomas R. Murphy, Temporary Judge and James L. Waltz, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
John L. Dodd & Associates, John L. Dodd, Michel & Rhyne and Michael L. Michel for Appellant and Respondent Frederick Luke.
Borchard & Callahan, Thomas J. Borchard and James M. Hester for Appellant and Respondent Melody Luke.
OPINION
SILLS, P. J.
These consolidated appeals seek relief from certain orders made during the proceedings to dissolve the marriage of Frederick and Melody Luke (“Fred” and “Melody”). Several years into the litigation, the parties stipulated to assign the case to the Honorable Thomas R. Murphy, retired, at the Judicial Arbitration and Mediation Services (JAMS), for all purposes. Judge Murphy ordered Fred to pay temporary child support and spousal support. After the case had been litigated several years before Judge Murphy, Melody filed a child support enforcement action with the Department of Child Support Services, which was heard before Commissioner James Waltz. Commissioner Waltz ruled on Fred’s motion to modify temporary child support retroactively, Melody’s motion to determine child support arrearages, and made a permanent child support order. Judge Murphy ultimately made permanent orders regarding property division and spousal support. But both bench officers ruled on Fred’s motion to modify temporary spousal support retroactively, resulting in conflicting orders: Judge Murphy ruled temporary spousal support should not be modified retroactively and awarded Melody arrearages in the amount of $844,539.13. Commissioner Waltz ruled temporary spousal support should be modified retroactively and reduced the arrearages to the amount of $628,726.60.
We refer to the parties by their first names for clarity and ease of reference and intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
Melody appeals from Commissioner Waltz’s ruling modifying temporary spousal support, contending he did not have jurisdiction to rule on Fred’s motion to modify temporary spousal support. Fred appeals from Judge Murphy’s ruling refusing to modify temporary spousal support, contending Commissioner Waltz had exclusive jurisdiction over the issue. Fred also appeals from Judge Murphy’s orders awarding certain real property to Melody and assigning certain obligations to him.
We find Commissioner Waltz had exclusive jurisdiction over the modification of temporary spousal support; therefore, we affirm the order modifying temporary spousal support and vacate Judge Murphy’s order refusing to modify. We reverse that portion of Judge Murphy’s judgment refusing to award community reimbursement for contributions to Melody’s separate property in Utah and remand for a determination on that issue. In all other respects, we affirm Judge Murphy’s judgment characterizing and dividing the parties’ property.
FACTS
Melody and Fred were married in January 1988. They had two girls, Allison and Lindsay, born in 1989 and 1992, respectively. The parties separated on November 30, 1999, and Melody filed a petition for dissolution of the marriage in April 2000. A judgment of dissolution was entered in July 2001, and the property and support issues continued to be litigated. In May 2002, the parties stipulated the matter would be heard by the Hon. Thomas R. Murphy, retired, “to act in the capacity of a Judge until conclusion of all matters at issue in this case.” The parties agreed to pay Judge Murphy $300 per hour, to be shared equally until costs were awarded. Pursuant to the stipulation, the Honorable Nancy Wieben Stock, supervising judge of the superior court’s family law panel, appointed Judge Murphy “to hear and determine this matter until its final determination in the Superior Court, upon his taking and acknowledging the oath of office.”
In July 2002, a hearing on temporary child and spousal support began before Judge Murphy. After considering reports from each party’s forensic accountant, he found Fred had a monthly income of $45,000. Melody was awarded $5,446 in child support and $10,405 in temporary spousal support per month, retroactive to June 2000. Noting that he did not “even have a current Income and Expense Declaration from [Fred],” Judge Murphy stated his order was “without prejudice to come back in, but the burden is going to be on [Fred] to show that I’m wrong.
Fred filed a declaration in support of reconsideration, Melody filed opposition, and a hearing was held on October 25. Judge Murphy issued a tentative decision denying reconsideration on October 30, finding that Fred had “left many unanswered questions” and had submitted confusing and incomplete documentation. Fred filed objections to the tentative decision, and Melody filed an objection to his objection. On January 6, 2003, Judge Murphy filed his order confirming his tentative decision to deny reconsideration. Fred filed a notice of appeal from the January 6 order, but the appeal was dismissed for failure to deposit the costs for the record.
In April 2003, Fred filed an OSC to modify the temporary support orders, which was transferred to Judge Murphy. In June, the motion was stayed by Judge Murphy because there was some question about whether the parties would continue to litigate before him due to mounting costs. No further action occurred before Judge Murphy until early 2005.
Fred paid very little support, so in April 2004, Melody filed an enforcement action with the Department of Child Support Services (DCSS). The case was assigned to Commissioner Waltz, sitting as a child support commissioner, in Department L-52. On August 1, 2005, Fred filed another OSC to modify child and spousal support, which was assigned to Department L-52.
The parties appeared before Commissioner Waltz in November 2005. In the meantime, Melody had closed her case with DCSS on August 22, 2005, but Fred had filed his own application with DCSS in September to “provide him assistance with the . . . child support/spousal support orders . . . .” The issues before Commissioner Waltz were Fred’s motion to modify child and spousal support retroactive to 2003 and Melody’s motion to determine arrearages (filed August 9, 2005 in L-52). Commissioner Waltz found he did “not have jurisdiction to hear the spousal support portion of this case on the basis that as of yet there is no marital standard [of] living finding, and on the basis that the current order is [a] pendent lit[] order. If it were a permanent order my finding would be different. I have the authority to modify a permanent spousal support order. . . . [¶] So, therefore, we are left with fragmenting this case between me and Judge Murphy, and how unfortunate that is.”
The trial before Commissioner Waltz was held on December 19, 2005, January 9, January 20, January 26 and February 8, 2006. The order after hearing and statement of decision was filed on April 28, 2006. At the outset of his order, Commissioner Waltz stated he had erred by separating the child support modification from the spousal support modification and transferring the spousal support issue back to Judge Murphy. “When DCSS is enforcing support obligations under F[amily] C[ode,] § 17400, only a [Title] IV-D court and its child support commissioner has jurisdiction to modify support orders. . . . [T]his court vacates its ruling transferring to Judge Murphy that portion of [Fred’s] OSC regarding the modification of temporary spousal support, and instead acknowledges its duty (and exclusive authority) to rule on the motion to modify the temporary spousal support order.”
Commissioner Waltz was referring to Title IV-D of the Social Security Act (42 U.S.C. § 651 et seq.).
Commissioner Waltz found Fred had “proved a material and substantial change of circumstance on the basis of lower net disposable income” and granted the motion to modify child support. The modification was made retroactive to April 23, 2003, the date Fred filed his first OSC to modify support. Based on the change of circumstances, Commissioner Waltz decided he would “modify the temporary spousal support order and the new (still temporary) spousal support order will be retroactive to April 1, 2003.” Because Commissioner Waltz had previously ruled he had no jurisdiction over spousal support, the parties were granted time to file memos “outlining [their] position[s] with regard to modifying spousal support retro to April 1, 2003 and in what amount. . . . The temporary spousal support orders shall continue through March 31, 2006. The court understands that Judge Murphy has set permanent spousal support commencing April 1, 2006.
On June 29, 2006, Commissioner Waltz filed a separate order modifying temporary spousal support retroactive to May 1, 2003. After ordering DCSS to perform an accounting, Commissioner Waltz found child support arrears from June 2000 through October 31, 2006, plus interest, to be $186,411.26. Spousal support arrears for the same period, plus interest, were found to be $628,726.60.
In the meantime, Judge Murphy had held a trial on all issues except child support on January 11, 12, 13 and February 10, 2006. He filed a statement of decision on April 4, 2006, denying Fred’s motion to modify temporary spousal support retroactively. “Husband has the burden of showing a change in circumstances. His records and credibility have not improved since the court made the original order . . . . Husband has not shown there has been a change in circumstances that would justify modifying spousal support retroactively.” Judge Murphy found spousal support arrears of $844,538.13 as of November 2005. He found Fred’s “present cash flow available for spousal support [to be] the sum of $22,000 per month” and ordered permanent spousal support of $5000 per month as of April 1, 1006.
Judge Murphy also characterized the family home, located on Port Westbourne in Newport Beach (the Westbourne house), and a home in Utah (the Utah property) as Melody’s separate property. He found the debts underlying five liens recorded against the Westbourne house to be Fred’s separate obligations. The judgment was signed on June 22, 2006 but was not filed until August 29, 2006.
DISCUSSION
Melody’s Appeal (G037759)
Commissioner Waltz’s Jurisdiction
Melody contends Judge Murphy’s order refusing to modify temporary spousal support controls over Commissioner Waltz’s order modifying spousal support. She claims Commissioner Waltz had jurisdiction to enforce spousal support but lacked jurisdiction to establish or modify it. She is mistaken.
“In 1999, the Legislature created a new state agency for child support enforcement, the Department of Child Support Services. (Fam. Code, § 17200.) This legislative action was motivated in part by the funding requirements of title IV-D of the federal Social Security Act (42 U.S.C. § 651 et seq.) and in part by the ‘inefficiencies introduced by involving multiple layers of government in child support enforcement operations.’ (Fam. Code, § 17303, subds. (a) & (d).) Each county was directed to establish a local child support agency to be responsible for ‘establishing, modifying, and enforcing child support obligations, including medical support, enforcing spousal support orders established by a court of competent jurisdiction, and determining paternity in the case of a child born out of wedlock.’ (Fam. Code, § 17400, subd. (a).)” (Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 806.)
The Legislature also directed each superior court to “provide sufficient commissioners to hear Title IV-D child support cases filed by the [DCSS].” (Fam. Code, § 4251, subd. (a).) These commissioners are subject to “minimum educational and training requirements” (Fam. Code, § 4252, subd. (b)(2)), and “their primary responsibility shall be to hear Title IV-D child support cases” (Fam. Code, § 4252, subd. (a)). The statutory scheme provides that all Title IV-D support enforcement actions filed by the DCSS shall be heard by a child support commissioner as well as related support actions filed by another party. “All actions or proceedings filed by the [DCSS] in a support action or proceeding in which enforcement services are being provided pursuant to Section 17400, for an order to establish, modify, or enforce child or spousal support . . . shall be referred for hearing to a child support commissioner . . . . All actions or proceedings filed by a party other than the [DCSS] to modify or enforce a support order . . . for which enforcement services are being provided pursuant to Section 17400 shall be referred for hearing to a child support commissioner . . . .” (Fam. Code, § 4251, subd. (a); see also Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 806; County of Orange v. Smith (2002) 96 Cal.App.4th 955, 961.)
Melody complains the DCSS cannot assist Fred in reducing his support obligations. But under the statutory scheme, “enforcement services” include “[t]he response to a notice of motion or order to show cause brought by an obligor parent to decrease an existing spousal support order if the child or children are residing with the obligee parent and the local child support agency is also enforcing a related child support obligation owed to the obligee parent by the same obligor.” (Fam. Code, § 17400, subd. (h)(4).) Melody filed an enforcement action with the DCSS in March 2004 and a motion to determine arrears in August 2005 in Commissioner Waltz’s department. Fred’s OSC to reduce both child and spousal support was part and parcel of Melody’s attempt to enforce his support obligations.
In deciding that Commissioner Waltz had exclusive jurisdiction to adjudicate temporary spousal support, we do not suggest the presiding judge of the superior court is precluded from assigning a child support enforcement matter to any superior court judge. Had the conflict between the two judicial officers been brought to the presiding or supervising judge’s attention, this bizarre result of two conflicting orders and duplicative litigation could have, and should have, been avoided. But in this appeal, we are presented with two conflicting orders and are asked to choose one over the other. Given the statutory scheme, we decide the Commissioner’s order should control.
Retroactivity of Modification
Melody next argues that Commissioner Waltz could not modify spousal support retroactive to May 2003 because Fred’s April 2003 OSC had gone “off calendar.” A careful reading of the record leads us to conclude otherwise.
The OSC was filed on April 23, 2003 in L-64, Judge W. Michael Hayes’s courtroom, and the calendar clerk, apparently unaware the case had been referred to Judge Murphy at JAMS, set the matter for hearing on June 4, 2003. When no one appeared, the OSC was taken off calendar in that department. In the meantime, however, the OSC had apparently been sent to JAMS to be heard by Judge Murphy on June 4. At the hearing he held on that day, Judge Murphy stated the OSC to modify support brought by Fred was before him, along with the motions for contempt and sanctions brought by Melody. The parties discussed Fred’s illness and inability to continue paying for a private judge, and Judge Murphy proposed meeting with Supervising Judge Nancy Wieben Stock to resolve the dilemma. At the end of the hearing, Judge Murphy stayed the motions before him pending the anticipated resolution. The record does not reveal whether or in what manner the dilemma was resolved. The record reveals no further activity before Judge Murphy until the trial in January 2006. Thus, it appears the OSC was pending at the time Commissioner Waltz made his order modifying temporary spousal support.
“An order awarding temporary spousal support ‘may be modified or terminated at any time except as to an amount that accrued before the date of the filing of the notice of motion or order to show cause to modify or terminate.’ ([Fam. Code,] § 3603, former Civ. Code, § 4357.) . . . The filing date, in other words, establishes the outermost limit of retroactivity.” (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 595.) Because there was a pending motion to modify support filed in April 2003, Commissioner Waltz had the power to make his order retroactive to May 2003.
Fred’s Appeal (G037747)
Denial of Reconsideration
Fred argues we can review Judge Murphy’s January 6, 2003 order denying reconsideration of the August 15, 2002 temporary support order because it was “merely another interim order reviewable on this appeal from the ultimate judgment . . . .” Fred is wrong.
Orders for temporary spousal and child support are directly appealable. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368-369; In re Marriage of Campbell (2006) 136 Cal.App.4th 502, 506.) Fred acknowledges that his failure to appeal the August 15 order precludes him from obtaining appellate review now. But he insists the January 6 ruling was not appealable because it was the result of the trial court exercising its inherent authority to reconsider an order it believed might be erroneous. (Code Civ. Proc., § 1008, subd. (b); Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107-1108.) And, he points out, an order denying reconsideration is not an appealable order. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459.)
We agree the “reconsideration” of temporary support by Judge Murphy was actually an exercise of his inherent discretion to reconsider its ruling on an interim order. As Judge Murphy stated, “[T]he ‘Request’ filed by [Fred] does not qualify as a Motion for Reconsideration – i.e., no motion, no points and authorities, no showing of ‘new evidence’ not available at the initial hearing. [¶] It may be, however, that respondent considered the undersigned’s comments to allow him to be allowed a de novo consideration re support. [¶] Accordingly, I will attempt to explain the conclusions I have reached from the evidence introduced.” Judge Murphy reviewed the 29-page declaration and the attachments submitted by Fred, in effect “reconsidering” the motion. After doing so, he “re-affirmed [his] findings and order of July 19, 2002,” in effect, denying the reconsidered motion. This was an appealable order, as Fred apparently understood when he filed his notice of appeal from the order. The appeal was dismissed, however, and the order can no longer be challenged.
Westbourne House
Judge Murphy found the Westbourne house to be Melody’s separate property based on a transfer of the property by Fred and Melody as joint tenants to their revocable living trust as Melody’s separate property. Fred claims the transfer was not a valid transmutation of community property to separate property. We disagree.
The parties purchased the house in their joint names in 1989. In May 1990, they deeded the property from themselves as individuals to themselves as trustees of their revocable living trust “as the sole and separate property of Melody S. Luke.” In June 1991, they transferred the property from the trust to themselves as joint tenants. Then, in September 1991, they executed a “Trust Transfer Deed” as follows: “Frederick G. Luke and Melody Scott Luke, Husband and Wife, do hereby grant, remise, release and reconvey to Frederick G. Luke and Melody S. Luke, trustees of the Luke Family Trust . . ., as the sole and separate property of Melody S. Luke, all the estate and interest derived to them, by or through said Grant Deed, in the lands herein described above together with the appurtenances.”
Spouses may alter the character of joint property during their marriage, as long as they follow certain requirements imposed by statute to avoid unintended transmutations. (Fam. Code, §§ 850, 852.) Family Code section 852, subdivision (a), provides: “A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” Fred argues the deed transferring the property to the trust did not contain an “express declaration” as required by the statute.
Family Code section 852 was adopted by the Legislature in 1984 to “increase certainty as to whether a transmutation had in fact occurred. . . . [¶] [S]ection 852 blocks efforts to transmute marital property based on evidence – oral, behavioral, or documentary – that is easily manipulated and unreliable. . . . [T]he writing must reflect a transmutation on its face, and must eliminate the need to consider other evidence in divining this intent.” (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1106.) A valid transmutation “necessitates not only a writing, but a special kind of writing, i.e., one in which the adversely affected spouse expresses a clear understanding that the document changes the character or ownership of specific property.” (Id. at p. 1107.)
In In re Marriage of Starkman (2005) 129 Cal.App.4th 659, a husband with substantial separate property and his wife executed a revocable living trust, into which they transferred a substantial portion of their assets. The trust provided that “‘any property transferred by either of them to the Trust . . . is the community property of both of them unless such property is identified as the separate property of either Settlor.’” (Id. at p. 662.) Subsequently, the husband executed stock brokerage transfer forms to convey certain of his separate property assets into the trust, designating the assets to be held by the husband and wife as trustees, but not describing the assets as either separate or community property. (Ibid.) On appeal, the court found the general provisions of the trust document were not sufficient to satisfy the requirement of an express written declaration reflecting an intent to transmute specific property from separate to community. (Id. at p. 663.)
The distinction between Starkman and the situation before us is obvious. Here, the deed transferring the Westbourne house into the trust specifically stated that the property was being transferred as Melody’s separate property. It is difficult to conceive of a more express declaration of intent to transmute marital property. (See Estate of Bibb (2001) 87 Cal.App.4th 461, 468-469 [“[S]ince ‘grant’ is the historically operative word for transferring interests in real property, there is no doubt that [husband’s] use of the word ‘grant’ to convey the real property into joint tenancy satisfied the express declaration requirement of [Family Code section 852(a) ].”].)
Characterization of Debts Encumbering the Westbourne House
Fred contends Judge Murphy erred in allocating the judgments encumbering the Westbourne House as his separate obligations. These judgments are in favor of Casino Management for $36,423.34; NuOasis Int’l for $291,856.41; NuOasis Int’l for $20,000; and Richard Weed for $130,133.00. As Judge Murphy explained, “Actions were brought against Husband after separation for the collection of these alleged debts. Husband stipulated to judgment and did not advise Wife or her counsel of the existence of the litigation or provide her with an opportunity to defend the existence of the debt and/or any defenses she might have. . . . I have concluded that Husband has provided insufficient evidence to prove the existence of, and community nature of, the above judgment[s]. To the extent there is any obligation relating to the alleged notes and judgments in this paragraph, I find they are Husband’s separate obligations.”
Fred argues that Melody’s expert traced the debts to loans incurred during the marriage. With respect to the NuOasis debts, Fred borrowed substantial amounts of money both during and after the marriage. Nothing in the record ties the debts in question to preseparation obligations. The debt to Richard Weed, an attorney with whom Fred dealt in his business, could not be traced to any account. Melody’s expert identified a deposit in the amount of $35,000 in January 1998, corresponding to the Casino Management debt. The money was deposited in Fred’s separate bank account and there was no evidence explaining how the money was used.
Judge Murphy commented in his judgment that Fred lacked credibility. He resisted discovery and flouted court orders, leading to him being sanctioned twice. “Husband did not provide the court with an intelligible analysis” of his income, cash flow, assets, and debts. Fred’s forensic accountant “based his comments and conclusions on information provided by Husband [and] also lacked credibility.” Fred did not convince Judge Murphy the postseparation judgments represented community obligations, and we will not disturb his determination.
Utah Property
Fred contends Judge Murphy erred in finding the Utah property to be Melody’s separate property. He claims the AITD was a community asset and her use of that asset to make a credit bid was a purchase on behalf of the community. Again, we disagree.
The Utah property was acquired during the marriage for $1.4 million in 1996 in the name of Melody Luke, a married woman, as her sole and separate property. Melody’s expert traced the source of the funds used to purchase the property and concluded the initial deposit of $10,000 was paid by a check from the parties’ joint checking account. The additional down payment and deposit of $137,926 was comprised of Melody’s separate property stock redemptions; an insurance reimbursement for a fur coat, which Fred had given to Melody as a gift before marriage; and a $50,000 loan from Melody’s parents. Both Fred and Melody were borrowers on the loan. The seller accepted a promissory note secured by a deed of trust in the amount of $400,000, and $860,000 was borrowed from Merrill Lynch Credit Corporation (Merrill Lynch). in exchange for a note secured by a deed of trust. The deed of trust to Merrill Lynch identified the borrower on the note and under the deed of trust as Melody, “a married woman as her sole and separate property . . . .” Fred was not mentioned and did not sign the documents.
Melody repaid $23,000 to her parents from the sale of her separate property condominium. The balance of the loan – $27,000 – was repaid from the parties’ joint checking account. Melody testified she had placed $48,000 from the liquidation of additional separate property stock in one of two joint accounts several years before the purchase of Utah, and the $27,000 repayment to her parents “could have been my money from liquidation of . . . stock, to pay back my dad.” Melody agreed that $10,000 of the down payment was community property.
The parties seem to agree that at some point during the marriage, Melody transferred the property from herself as an individual to “Frederick G. and Melody S. Luke, trustees of the Luke Family Trust.” The deed is not in the record. In January 2000, the trust sold the property to Redko International for $1.4 million. Redko borrowed $400,000 from the trust, secured by a deed of trust; paid $127,354 in cash; and gave the trust a note for $860,000, secured by an all inclusive trust deed (AITD) wrapping the Merrill Lynch note.
The parties separated shortly thereafter. Redko defaulted on the AITD in 2002 and again in 2003. Melody made some payments (at least $50,000) to keep the Merrill Lynch note current. In July 2003, Melody filed a lawsuit in Utah against Fred and Redko, alleging that Fred and Redko had arranged a fraudulent transfer to remove the Utah property from the marital assets. She also sued Redko in Utah for judicial foreclosure on the AITD. In October 2004, Melody obtained partial summary judgment on the judicial foreclosure cause of action. She purchased the property at a sheriff’s sale in January 2004 for a credit bid of $1,016,170.68. Subsequently, Melody sold the property, placing the proceeds of $388,554.25 in her attorney’s trust account pending resolution of this litigation.
Judge Murphy found as follows in his statement of decision: “Husband acknowledges that some of the moneys used as the down payment came from Wife’s separate property. Wife’s forensic traced the purchase of the property and concluded that $127,925.74 came from Wife’s separate property ($77,926.74 of premarital assets, $50,000 from Wife’s father). . . . [¶] The property was lost because the buyer (Redco) [sic] failed to pay the first and second mortgage. The property was sold at a public auction some 4-plus years after the parties’ separation. Wife attended the auction and purchased the property. Husband’s counsel discusses Family Code § 2640 [reimbursement for contributions to community property based on tracing to separate property] and a Moore-Marsden calculation [“When community property is used to reduce the principal balance of a mortgage on one spouse’s separate property, the community acquires a pro tanto interest in the property.” (In re Marriage of Moore (1980) 28 Cal.3d 366, 371-372; In re Marriage of Marsden (1982) 130 Cal.App.3d 426, 436-440.)] It seems to the undersigned, from the information provided at trial, that there may have been a ‘community opportunity’ issue re Wife’s purchase of the property in 2005 . . . however, the parties were litigating in Utah re the same property. Husband clearly had notice re the foreclosure and sale. [¶] I find that the Utah property was an asset purchased by Wife, post-separation [sic]. There was no indication of community moneys or assets being used for the purchase. Accordingly, I find the property (proceeds) to be Wife’s separate property.”
Fred objected to several parts of Judge Murphy’s statement of decision. With respect to the Utah property, Fred objected to the court’s characterization of the $50,000 loan as Melody’s separate property. “The testimony of [Melody]’s expert established that community monies were used to purchase the Utah property in the form of loans from [Melody]’s parents which were repaid from community property earnings. The court again ignored the facts presented to it.” Judge Murphy did not respond to Fred’s objection.
If a litigant “bring[s] omissions or ambiguities in the statement of decision’s factual findings to the trial court’s attention,” the appellate court will not “infer the trial court made implied factual findings to support the judgment” on that issue. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59.) Conversely, if the litigant fails to bring claimed defects in the statement of decision to the trial court’s attention, the appellate court “will infer the trial court made implied factual findings favorable to the prevailing party on all issues necessary to support the judgment, including the omitted or ambiguously resolved issues. [Citation.] The appellate court then reviews the implied factual findings under the substantial evidence standard. [Citations.]” (Id. at pp. 59-60.)
Judge Murphy concluded that the loan from Melody’s parents was her separate property, but he did not make factual findings to support that conclusion, i.e., that the parents intended to rely solely on Melody’s separate property for repayment, and that repayment was not made from community funds. Because Fred objected to that portion of the statement of decision, we will not infer that Judge Murphy made those findings. With respect to the remaining issues involved in the characterization of the Utah property, we will invoke the doctrine of implied findings and infer that Judge Murphy made all necessary factual findings to support his conclusion that the Utah property was Melody’s separate property.
“[A]bsent a contrary statute, and unless ownership interests are otherwise established by sufficient proof, record title [of property] is usually determinative of characterization. [Citation.]” (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 291.) This principle is codified as an evidentiary presumption: “The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.” (Evid. Code, § 662.)
Title to the Utah property was taken in Melody’s name in 1996, as her sole and separate property. Fred testified the deed was prepared that way to avoid creditors and the property was intended to be community property. Judge Murphy apparently did not find his testimony sufficient to rebut the presumption that the parties intended title to be other than indicated on the grant deed. Even if some portion of the down payment was community property, “[t]he presumption arising from the form of the deed may not be rebutted solely by evidence as to the source of the funds used to purchase the property.” (Gudelj v. Gudelj (1953) 41 Cal.2d 202, 212.) Furthermore, the largest source of the purchase money, the note and trust deed in favor of Merrill Lynch, was made solely in Melody’s name, indicating the lender intended to rely primarily on the separate property security for repayment. (In re Marriage of Neal (1984) 153 Cal.App.3d 117, 125.) And Melody’s subsequent transfer of the property into the parties’ revocable living trust did not ipso facto change the character of the property; Fred presented no evidence to indicate otherwise.
Fred argues Judge Murphy erroneously excluded excerpts of Melody’s deposition testimony taken in the Utah litigation because he did not have the original transcript. He contends her testimony would have impeached her credibility and bolstered his position that the deed was in Melody’s name only to avoid creditors. But Judge Murphy was within his discretion to exclude the evidence as unauthenticated. Neither counsel was present at the out-of-state deposition, Fred’s counsel had made no effort to obtain the original, and Melody refused to stipulate to using a copy.
Thus, when the Trust sold the Utah property, which was Melody’s separate property, to Redko and took back the AITD, that asset was also Melody’s separate property. Therefore, her use of the asset to make a credit bid and thereby obtain the property upon foreclosure was not a purchase on behalf of the community. Judge Murphy correctly characterized the Utah property as Melody’s separate property.
Fred claims community property was used to make payments on the notes secured by the Utah property; thus, the community acquired an interest for which it should be reimbursed. To the extent payments were made from the community to increase Melody’s equity in the property, we agree. (In re Marriage of Moore, supra, 28 Cal.3d at pp. 371-372; In re Marriage of Marsden, supra, 130 Cal.App.3d at pp. 436-440.) Both Melody and Fred testified the payments on the Merrill Lynch note were made from joint accounts during the marriage. Melody suggested some of the money in those accounts could have been proceeds of the sale of her separate property stock, but she admitted she could not trace the source of the funds. When funds are commingled in a joint account, they are presumptively community property. (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328.) The presumption can be rebutted only if the party contesting it can trace the funds to a separate property source. (Ibid.)
Judge Murphy did not make factual findings regarding Fred’s claim that the community should be reimbursed for contributions to Melody’s separate property. Fred’s objection to the statement of decision goes to the issue of community repayment, at least that portion of the issue claiming the community repaid the loan to Melody’s parents. Fred’s objection does not challenge the lack of findings regarding payments on the Merrill Lynch note. But we cannot infer that Judge Murphy made the factual findings to support the lack of a reimbursable interest, i.e., that payments were made from separate property, because there is no substantial evidence in the record to support such findings. On the contrary, all the evidence supports the conclusion that the payments were made from community property.
It is possible the community was reimbursed for its contributions out of the proceeds from the sale of the property to Redko or in some other manner. But this is a matter for the trial court to determine. Accordingly, the case must be remanded to Judge Murphy for a determination of the community’s reimbursable interest, if any, in the proceeds from the Utah property.
DISPOSITION
The order of Commissioner Waltz modifying temporary spousal support is affirmed. Judge Murphy’s order refusing to modify temporary spousal support is vacated. The case is remanded to Judge Murphy for the limited purpose of determining the amount of reimbursement the community is owed from the proceeds of the sale of the Utah property. In all other respects, Judge Murphy’s’ judgment is affirmed.
WE CONCUR: ARONSON, J., IKOLA, J.