Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BD296901 . Aviva K. Bobb and Gary Klausner, Judges.
Law Office of Burton Mark Senkfor and Burton Mark Senkfor for Appellant Melahat Uzumcu.
John L. Dodd & Associates and John L. Dodd; Ron Cordova for Appellant Umran Uzumcu.
WOODS, J.
INTRODUCTION
This appeal is from a judgment of the Los Angeles County Superior Court following a 22-day court trial conducted from March to December of 2004, which culminated in the court awarding designated items of personal property to wife and awarding certain items to husband. The action was commenced by Melahat Uzumcu (“wife”) against Umran Uzumcu (“husband”) in 1999. On August 6, 2001, a judgment of dissolution was entered as to status only, the marriage having been entered into on December 22, 1995. Two minor children are involved, namely S., a daughter, born in August 1995 and A., a second daughter, born in April 1997.
For convenience and to avoid confusion but out of no disrespect for the litigants, the terms “husband” and “wife” are used since they share the same last name. Should context require otherwise, deviation from this procedure may be required.
On April 15, 2005, the trial court filed its Statement of Decision, Judgment, and Notice of Entry of Judgment.
On June 13, 2005, wife filed a notice of appeal from the judgment.
On July 8, 2005, husband filed a notice of cross-appeal, presenting this court with an initial jurisdictional question of whether the cross-appeal is timely. For the reasons hereafter stated we find the cross-appeal untimely and grant wife’s motion to dismiss husband’s cross-appeal.
FACTUAL AND PROCEDURAL SYNOPSIS
Background information.
Husband and wife initially met in Turkey in the year 1988. A fair and reasonable inference from the record on appeal would cast husband in the position of being quite wealthy and wife in the circumstances of having far less material wealth. Husband’s father had been in the cable manufacturing business and died in the year 1990. Following the demise of his father, husband inherited an interest in the cable company which was sold to a French company in 1993. The amount realized from the sale was a matter of contention at the time of trial with wife testifying that husband told her the company had been sold for $40 million dollars, which husband denied, and indicated the company had been sold for $13 to $14 million dollars.
Laying aside the question as to the sale price of the company for the time being, this court focuses on the paramount question presented by this appeal, namely, wife’s contention that substantial evidence was lacking for the trial court’s determination awarding and confirming certain personal property to husband as his sole and separate property. Wife contends evidence to the contrary indicates that the husband had made gifts of certain personal property to her and the personal property under review by the trial court compelled a decision that the property was hers alone as gifts based on husband’s donative intent, accompanied by delivery. For the most part, husband’s contention on appeal is just the reverse of wife’s contention, namely substantial evidence supports the award of certain items to him, but substantial evidence is lacking on those items awarded to wife as gifts by him to her.
Because donative intent is fraught with subjective considerations and quite frequently not documented in writing within an emotional relationship such as husband and wife, this court finds it advantageous, if not an outright necessity, to recite the extensive background and relevant life experiences of the parties, as presented by the record in this case or reasonable inferences therefrom.
In 1993, wife participated in the selection and purchase by husband of a residence in Rancho Palos Verdes, valued at $4.2 million dollars as of April 13, 1999. Commencing in 1994, wife participated in the selection and purchase by husband of various and sundry personal property items which form the vortex of the major contentions of the parties on appeal. The items referred to are generally described as jewelry, paintings, furniture, antiques and “objects d’art” being so labeled by wife in her appellant’s opening brief. The general procedures used by husband and wife to locate and acquire these personal properties involved looking at auction catalogues, attending auctions, visiting art stores, galleries, and dealerships. At wife’s “behest”, as stated in her opening brief, husband would then purchase expensive women’s jewelry and artwork.
According to wife, from 1993-1999, she resided with husband in the residence in Palos Verdes, as well as in luxurious homes in exclusive neighborhoods in Istanbul, Turkey, which wife maintains were filled with expensive artwork, furniture, and antiques purchased from art and antique galleries, dealerships, jewelry brokers, and auctions that husband and wife attended together while traveling between their homes and to New York and Europe. The homes had servants, including housekeepers, cooks, gardeners and nannies.
As further background information, husband and wife are from different religious groups. Wife is from the Alevi sect, but husband is Sunni. According to wife as stated in her appellant’s opening brief, under Turkish tradition and custom an Alevi woman who married a Sunni would be marginalized from her family and would lose her family’s financial protection. For this reason, wife was reluctant to marry husband.
Wife gives further insight into Turkish tradition and society by stating in her opening brief that there is a strong tradition of the groom giving pre-marital gifts of gold and jewelry to the bride herself, which is known as “bride wealth,” with the amount given increasing with the wealth of the groom. Wife maintains that “bride wealth” is a sign of status for the groom’s family also because the bride is given wealth commensurate with the groom’s social and economic standing.
In 1994, husband and wife were living together but not actually married. Wife became pregnant and their daughter, S., was born in August 1995. Marriage was then discussed as a more urgent topic. Wife asserts that husband told her that she already had more security than any other woman her age because of the jewelry and other items husband had given her, and that he had given her far more than her family could have ever afforded to give her. On December 22, 1995, husband and wife were married and a second daughter, A., was born in April 1997.
Numerous items of expensive jewelry were purchased by husband during the years from 1994 to 1998, prior to their separation in 1999, which wife contends were gifts to her by husband. Husband counters wife’s claim by contending that the jewelry was his separate property and that the wife never even wore any of the jewelry.
Trial court findings on claims to personal property items.
As accurately summarized in wife’s brief on appeal, the trial court found the following personal property items to be gifts to wife, giving description, date of acquisition and estimated value:
“1. 7.14 carat diamond ring, purchased on September 14, 1994 for $288,400;
“2. Pearl and diamond earclips and matching ring, purchased on October 17, 1994 for $12,650;
“3. Black pearl and diamond earclips and matching ring, purchased on October 17, 1994 for $21,850;
“4. Black pearl necklace, purchased on October 19, 2004 for $68,500;
“5. Pearl necklace, purchased on October 19, 1994 for $32,200;
“6. Sapphire and diamond ring, purchased on October 19, 1994 for $90,500;
“7. 8.69 carat intense yellow diamond ring, purchased on December 6, 1994 for $147,000;
“8. Sapphire bracelet, purchased on December 7, 1994 for $51,750;
“9. Diamond bracelet, purchased on December 7, 1994 for $40,250;
“10. Intense yellow diamond earrings, purchased in October 1995 for $70,000;
“11. Piaget watch, purchased on November 2, 1995 for $6,900;
“12. Antique emerald and diamond brooch, purchased on November 16, 1995 for 167,700 Swiss francs;
“13. Ruby and diamond necklace, purchased on November 16, 1995 for 120,000 Swiss francs;
“14. Emerald and diamond ring, purchased on November 16, 1995 for 220,000 Swiss francs;
“15. Pearl necklace, purchased on November 16, 1995 for 170,000 Swiss francs;
“16. Gold and diamond Van Cleef & Arpels jewelry suite, purchased on December 4, 1995 for $24,150;
“17. Sapphire and diamond Harry Winston earclips, purchased on December 4, 1995 for $23,000;
“18. Diamond ‘wedding’ ring, purchased after the marriage for approximately $5,000-$6,000; and
“19. Diamond Van Cleef & Arpels bracelet, purchased on October 21, 1996 for $134,500.”
Again, as accurately summarized in wife’s brief on appeal, the trial court found the following personal property items were not gifts to wife and constituted the property of husband as his sole and separate property and likewise gave a description, date of acquisition and estimated value:
“1. Emerald ring, purchased October 24, 1995 for $101,500;
“2. 17.5 carat diamond ring (Melahat’s actual intended wedding ring), purchased on October 25, 1995 for $657,500;
“3. Ruby and diamond LaCloche bracelet, purchased on November 16, 1995 for 132,000 Swiss francs;
“4. Gold necklace, purchased on November 21, 1995 for $2,500;
“5. Gold jewelry suite, purchased on November 21, 1995 for $5,500;
“6. Diamond and emerald earclips, purchased on December 7, 1995 for 17,000 pounds sterling;
“7. Antique emerald Cartier cufflinks (to be made into earrings to match an emerald ring purchased), purchased on December 4, 1995 for $63,000;
“8. Emerald and diamond Van Cleef & Arpels ring, purchased on December 7, 1995 for 17,000 pounds sterling;
“9. Sapphire and diamond ring, purchased on December 7, 1995 for 33,000 pounds sterling;
“10. Diamond and ruby choker [and earrings], purchased on November 20, 1996 for 66,700 Swiss francs;
“11. Diamond necklace, purchased on February 18, 1998 for 16,000 Swiss francs;
“12. Antique emerald and diamond necklace, purchased on February 18, 1998 for 75,000 Swiss francs; and
“13. 10 carat sapphire stone, purchased on February 18, 1998 for $100,000.”
Other personal property items in contention.
Wife claims that numerous paintings were also purchased by husband during this time period. Three of the paintings were claimed by wife to be gifts to her. Wife contends that one of the three was sold in an effort to get husband to pay child support obligations which wife claims husband never did. Two of the paintings described as “A View of Constantinople/Istanbul and the Bosphourus” by Ivan Aivozovsky and “In the Harem” by Rudolf Ernst were awarded to husband. Wife contends the trial court erroneously based its ruling on lack of donative intent and delivery inasmuch as the evidence showed the paintings were on display in the residence and the fact that the display was in the “common” areas should not serve to nullify these items as gifts to her.
Contentions on appeal.
Wife’s contention on appeal is summarized as one which attacks the findings of the trial court awarding personal property to husband which she claims were gifts to her. Wife maintains the trial court lacked a legal basis to make such findings as demonstrated by the colloquy between the court and counsel during trial in which the court sought “corroborating evidence from wife to establish the gifts of jewelry to her.” She states in her opening brief “That the trial court repeatedly [and] erroneously found that there was insufficient evidence of delivery of particular items of jewelry to [wife], when there was sufficient evidence of such delivery but it was not independently corroborated, and the rule with respect to delivery of gifts is not strictly applied to gifts within a family (particularly as between husband and wife).” To accentuate wife’s claim of error by the trial court in requiring corroborative testimony, wife sets forth in her brief on appeal an excerpt from the record which she describes as “just a few of the many excerpts” as follows:
“‘THE COURT: Obviously, you can tell what I am looking for which is
“‘[Husband’s Counsel]: Third party corroboration compared to the list and compared to anything else.
“‘THE COURT: Which is evidence before the Court that would fulfill the elements to meet your burden of proof other than by your witness’ – by your client’s testimony.
“‘[Wife’s Counsel]: I understand that’s the Court inquiry and will endeavor to do that but I would hope that the Court recognizes although it does have a dilemma, that my client’s testimony alone is sufficient to meet the burden if the Court finds it to be credible.
“‘THE COURT: I understand the law in that respect.’”
“‘THE COURT: Can you tell me as to which of these items there is testimony about it – can in your client’s position other than from possession – other than testimony – other than your client’s testimony about these items being in her possession?
“‘[Wife’s Counsel]: There is testimony – well, I can pull it out and detail it for you.
“‘THE COURT: Well, you could just refer to it, but it would be of assistance – we had the advantage with respect to the Palos Verdes home of having, in my view, an independent witness. And I am looking for – I don’t know how independent the other witnesses are, but to the extent there are at least other witnesses, there are some items as to which we have testimony from other witnesses and some items as to which we have no testimony from other witnesses.’”
“‘[Wife’s Counsel]: Your Honor, following up on the question of the Court, I would point out that although many of the pieces have been particularly described as having been in the possession of Mrs. Uzumcu by the various witnesses, not all of them have been covered. But I urge the Court that the testimony of Mr. Uzumcu was that none of these things with the exception of a pair of earrings were ever in her possession. And I have now given to the Court 14 or 15 pieces that were identified as being in her possession or a photograph of her wearing those things and there is testimony that there was other jewelry. [¶] . . . So what we are probably talking about is well in excess of the majority of these pieces have been seen in the possession of Mrs. Uzumcu by independent witnesses who I think a fair assessment of their independence is that these people were friends of both parties. [¶] And independence – they absolutely contradict the vehement denial by Mr. Uzumcu that this jewelry was ever in the possession of Mrs. Uzumcu. And I hope that her inability to produce a photograph because Mr. Uzumcu has got all the photographs of her wearing some of these other pieces or to produce that particular witness from Istanbul or elsewhere that saw her wearing one of these pieces is not going to significantly impact the Court’s decision as to whether or not these items were a gift to her. . . . [¶] So I would certainly hope the Court wouldn’t penalize Mrs. Uzumcu because she is unable to bring forward a witness seeing her wear every single piece of this jewelry, because she can’t remember what all of her friends have seen. But I don’t think it is fair to her to say, “if no one saw you wear, it doesn’t belong to you,” given that Mr. Uzumcu’s testimony about the reason for the purchase is so inherently unbelievable.’”
“‘THE COURT: That’s what I was asking counsel to try to see how to put List Three together with what there is independent corroboration of.’”
“‘THE COURT: . . . Excuse me. I would like to hear specifically on 514(2), is there are (sic) corroborating testimony? . . . .
“‘[Wife’s Counsel]: When you say “corroborating” you mean other than Mrs. Uzumcu?
“‘THE COURT: Correct.’”
Husband’s response to wife’s contention is essentially the reverse mirror image of wife’s contention in that he maintains substantial evidence supports the findings of the trial court inasmuch as those findings award personal property to him as his sole and separate property, but attacks the findings of the trial court as lacking substantial evidence where items of personal property were awarded to wife as her sole and separate property as constituting gifts by him to her, in the face of lack of donative intent and/or delivery. In addition to the issues above mentioned, husband raises other issues in his cross-appeal. We do not reach the claims of Husband in his cross-appeal in view of the untimely filing of the cross-appeal thereby depriving this court of jurisdiction to hear Husband’s claims, as more particularly discussed hereafter.
We note however that substantial evidence in the record supports the trial court’s conclusions as to the items of property awarded to wife as her sole and separate property.
Standard of review.
The parties to the appeal do not take issue with the well developed standard of review on appeal. Neither takes issue that this court is limited to a search of the record to determine whether the findings of the trial court are supported by substantial evidence. Substantial evidence, by well developed case authority, constitutes evidence that is reasonable, of solid value, and credible. This court considers it somewhat of an overkill to go beyond this elementary and well established principle, but simply notes that our appellate jurisdiction is in every sense of the word limited and in effect less than the jurisdiction of the trial court, namely, we are constrained by the findings of the trial court, supported by substantial evidence, even though individual members of this appellate panel might have decided the case otherwise if cast in the role of the trial judge.
“Substantial evidence” in this regard does not mean “any evidence.” Rather, to be “substantial,” the evidence must be “‘of ponderable legal significance, . . . reasonable in nature, credible, and of solid value.’” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873, italics omitted.) If there is substantial evidence, contradicted or uncontradicted, that will support the finding, it must be upheld regardless of whether the evidence is subject to more than one interpretation. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 571 [“‘[w]hen two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.’”]; Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1481 [reviewing court may not reweigh the evidence].) “[T]he testimony of a single witness, even [a] party . . ., may be sufficient.” (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 134.)
Accordingly, this court must now embark on a review and search of an extensive record for substantial evidence, or lack thereof, to judge whether the trial court has correctly or incorrectly decided the issues before it pertaining to its award of personal property. With these preliminary comments, we hereafter examine each disputed item of personal property with these precepts in mind, but particularly noting that the concept of credibility comes into play as both sides question the credibility of evidence presented to the trial court. Wife is particularly vehement in her assertion that the trial court committed reversible error in its search for credibility by seeking “corroboration.” Citing Evidence Code section 411 she maintains that one witness can be the basis for a finding without the requirement of additional evidence. Section 411 states: “Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.” However, in this case, the trial court impliedly declined to find either party sufficiently credible to permit his or her testimony, by itself, sufficient to meet the burden of proof borne by that party with respect to the claims being asserted. As such, the trial court’s request for “corroborating” testimony, discussed above, indicated that neither the testimony of husband or wife was entitled to the full credit required by section 411. Where such additional evidence was not presented to the court, it ruled consistently against the party bearing the burden of proof on that issue. We find no error.
The property.
We find that substantial evidence supports the court’s finding on each of the items described below.
Property awarded to husband.
Item 1. Cabochon emerald ring. Again there is no dispute this item was purchased October 24, 1995, for $101,500 at Christie’s New York Auction, which is listed as the second item in the Christie’s Invoice admitted as Joint Exhibit 508. The court found that this item was not a gift to wife and the item was confirmed to husband as his sole and separate property based on the following additional evidence: Semra Stiles participated in husband’s purchase of this item at auction. Ms. Stiles testified regarding her participation in the purchase of an emerald ring and this is the only one of the three emerald rings that was purchased at a New York auction that Ms. Stiles attended with husband (the other two emerald rings are Jewelry Items Nos. 17 and 25 below which were purchased by telephone from Sotheby’s Geneva and London auctions). This item was purchased at the same Christie’s auction as the David Webb Bonsai Tree which the court finds was a gift from husband to wife. Wife testified that she saw this ring in the auction catalog and asked husband to purchase the ring for her, that the cabochon emerald was set in platinum with diamonds, that husband purchased it at the auction in New York without wife being present, and that when husband returned home to Palos Verdes after the auction he placed the ring on wife’s finger. The trial court found that there was insufficient evidence of delivery of this ring by husband to wife.
Item 2. 17.5 Carat diamond ring, Van Cleef & Arpels. There is no dispute that the item was purchased October 25, 1995, for $657,600 at Sotheby’s New York Auction, which is listed as the sixth item in the Sotheby’s Invoice admitted into evidence as Joint Exhibit 509. The catalog description and photograph of this item was admitted as wife’s Exhibit 509.1. The trial court relied on the following additional evidence in finding the item was not a gift to wife and in confirming the item to be the separate property of husband: Semra Stiles accompanied husband to the Sotheby’s New York auction at which this ring was purchased. Ms. Stiles further testified that she later discussed with husband that the diamond was too large to wear as a ring and that it should be put into a pendant. Wife testified that husband purchased this ring at Sotheby’s New York auction while she remained home with their baby, that the parties had not discussed this ring before the auction, that husband called her on the telephone from New York and told her that he had found a better ring than the 7 carat engagement ring [Jewelry Item No. 1 set forth in the trial court’s statement of decision], that husband presented the ring to her when he returned to the Palos Verdes residence from New York, that the size of the ring was too large for her finger, and that she and husband had discussed putting the diamond in a pendant. Wife further testified that the diamond straight line necklace [Jewelry Item No. 30 described in the trial court’s statement of decision] was purchased so that this diamond could be added as a pendant on the necklace. Substantial evidence supports the trial court’s finding that there was insufficient evidence of delivery of this item by husband to wife.
Item 3. Ruby and Diamond Bracelet by LaCloche. The parties agree this item was purchased November 16, 1995, for 132,000 Swiss Francs by telephone from Sotheby’s Geneva Auction, which is listed as the second item in the Sotheby’s Invoice admitted as Joint Exhibit 511. The catalog description and photograph of this item was admitted as wife’s Exhibit 511.2. In finding this item not to be a gift to wife, the trial court considered the following additional evidence: wife testified that she and husband saw this item in the Sotheby’s Geneva Auction catalog, and that she was present when husband bid for the item over the telephone. This bracelet is one of five items purchased from Sotheby’s November 11, 1995 Geneva Auction by telephone, the other four are Jewelry Items Nos. 14, 16, 17 and 18 [as set forth in the trial court’s statement of decision]. This bracelet is the only one of the five items purchased by telephone from the Sotheby’s November 15, 1995 Geneva Auction that is confirmed by the court to husband. The trial court found that there was insufficient evidence of delivery of this bracelet by husband to wife.
Item 4. Gold Necklace. The parties agree this item was purchased November 21, 1995, for $2,500 at Butterfield & Butterfield’s Los Angeles Auction, which is listed as the first item in the Butterfield & Butterfield Invoice admitted as Joint Exhibit 512. In finding this item not to be a gift to wife, the trial court considered the following additional evidence: wife testified that this item of jewelry was purchased at Butterfield & Butterfield’s Los Angeles Auction that she and husband both attended. Wife testified that she asked husband to purchase this item for her and he did. This item was purchased at the same Auction as Jewelry Item No. 20 below [so numbered in the trial court’s statement of decision]. The trial court overruled wife’s objection that husband’s testimony that this item of jewelry was purchased due to his lifelong fascination with gemstones and for investment value was not credible given the nature and price of this item. The trial court found that there was insufficient evidence of delivery of this necklace by husband to wife.
Item 5. Victorian Micro Mosaic Gold Jewelry Suite. The parties agree this item was purchased on November 21, 1995, for $5,500 at Butterfield & Butterfield’s Los Angeles Auction, which is listed as the second item in the Butterfield & Butterfield Invoice admitted as Joint Exhibit 512. In finding this item not to be a gift to wife, the trial court considered the following additional evidence: wife testified that these items of jewelry were purchased at Butterfield & Butterfield’s Los Angeles Auction that she and husband both attended. Both parties testified that this “jewelry suite” consisted of a pair of earrings and a matching brooch. The trial court overruled wife’s objection that husband’s testimony that these items of jewelry were purchased due to his lifelong fascination with gemstones and for investment value was not credible given the nature and price of this item. The trial court found there was insufficient evidence of delivery of this item by husband to wife.
Item 6. Pair of Diamond and Emerald Earclips. The parties do not dispute that this item was purchased on December 7, 1995, for 17,000 Pounds Sterling by telephone from Christie’s London Auction, which is listed as Item No. 26 in husband’s Exhibit 1018. In finding this item not to constitute a gift to wife the trial court considered the following additional evidence: Wife testified that she had seen these earrings in a catalog, and asked husband to purchase them for her. Wife also testified that she had worn these earrings with both the rectangular and cabochon emerald rings, and the emerald brooch (Jewelry Item Nos. 17, 11 and 14, respectively [likewise numbered in the trial court’s statement of decision]). The trial court found there was insufficient evidence of delivery of this item by husband to wife.
Item 7. Pair of Cabochon Emerald Cufflinks, Cartier, Circa 1930. Again the parties do not dispute the item was purchased December 4, 1995, for $63,000 at Sotheby’s New York Auction, which is listed as the third item in the Sotheby’s Invoice that was admitted as Joint Exhibit 513. In awarding this item to husband as his separate property, the trial court considered the following additional evidence: Wife testified that she and husband saw these cufflinks in the Sotheby’s catalog, and that she and husband discussed having these cabochon emerald cufflinks made into earrings to match the cabochon emerald ring, Jewelry Item No. 11 above (which is also confirmed to husband [so numbered in the trial court’s statement of decision]). Wife testified that husband attended the auction and purchased these cufflinks, and that she first saw them in the Palos Verdes residence. Wife testified that the parties later had discussions with Ms. Stiles about making these cufflinks into earrings, but that was not done. This item was purchased at the same auction as Jewelry Item Nos. 22 and 23 above [so numbered in the trial court’s statement of decision], both of which were confirmed to wife as her sole and separate property. The court found that there was insufficient evidence of delivery of these items by husband to wife.
Item 8. Emerald and Diamond Ring, Van Cleef & Arpels. It is agreed by the parties that this item was purchased on December 7, 1995, for 17,000 Pounds Sterling by telephone from Christie’s London Auction, which is listed as the first item in the Christie’s Invoice admitted as Joint Exhibit 514. In confirming this item to be husband’s separate property, the trial court considered the following additional evidence: This ring was purchased two weeks before the parties got married on December 22, 1995, at the same auction as Jewelry Item No. 26 immediately below [so numbered in the trial court’s statement of decision], which is also confirmed to husband. The trial court found that there was insufficient evidence of delivery of this item by husband to wife.
Item 9. Sapphire and Diamond Ring. The parties do not dispute this item was purchased on December 7, 1995, for 33,000 Pounds Sterling by telephone from Christie’s London Auction, which is listed as the second item in the Christie’s Invoice admitted as Joint Exhibit 514. The trial court considered the following additional evidence in awarding this item to husband as his separate property: Wife testified that this ring had a rectangular shaped sapphire surrounded by diamonds in a platinum setting, that she and husband saw the ring in Christie’s Auction catalog, that she loved the ring because it was an antique piece with good workmanship, that she asked husband to purchase this ring for her, and that husband called Christie’s to ask about this ring and husband then bid for this ring over the telephone. This ring was purchased two weeks before the parties got married on December 22, 1995, from the same auction as Jewelry Item No. 25 immediately above [so numbered in the trial court’s statement of decision], which is also confirmed to husband. The court found that there was insufficient evidence of delivery of this item by husband to wife.
Item 10. Diamond and Ruby Star Choker and Earrings. This item was purchased on November 20, 1996, for 66,700 Swiss Francs at Sotheby’s Geneva Auction, which is listed in the Sotheby’s Invoice that was admitted as Joint Exhibit 518. The catalog description and photograph of this item was admitted as wife’s Exhibit 518.1. The parties do not contend otherwise. In finding this item to be husband’s separate property, the trial court considered the following additional evidence: Wife testified that she and husband were in Geneva for her to see a doctor regarding her pregnancy (she was pregnant with A. who was born in April 1997), that they attended the auction preview to purchase these items, that she asked husband at the preview to purchase these items for her, that husband questioned the quality of these pieces because they were not “real” pieces (i.e. they were not originally fabricated as a “choker” and earrings), and that she was present at the auction at which husband successfully bid for these items, and that she received this item from husband after they were married. The trial court found that there was insufficient evidence of delivery of this item by husband to wife.
Item 11. Diamond Straight-Line Necklace. This item was purchased on February 18, 1998, for 16,000 Swiss Francs at Sotheby’s Geneva Auction, which is listed as the first item in the Sotheby’s Invoice that was admitted as Joint Exhibit 520. The parties make no contrary contention. In awarding this item to husband as his separate property, the court considered the following additional evidence: Wife testified that she and husband saw this in the Sotheby’s auction catalog. Wife testified that she and husband were in Geneva for the auction, that they attended the auction preview at which she tried on this item, that she asked husband at the preview to purchase this necklace for her so that it could be used to make a pendant with the 17.5 carat diamond (Jewelry Item No. 12 [so numbered in the trial court’s statement of decision]), that husband said this was an excellent idea, that she was present at the auction at which husband successfully bid for this item, and that husband thereafter gave this item to her. The trial court found that there was insufficient evidence of delivery of this item by husband to wife.
Item 12. Emerald and Diamond Necklace. This item was purchased on February 18, 1998, for 75,000 Swiss Francs at Sotheby’s Geneva Auction, which is listed as the first item in the Sotheby’s Invoice that was admitted as Joint Exhibit 520. The parties make no contrary contention. In awarding this item to husband as his separate property, the trial court considered the following additional evidence: Wife testified that she and husband saw this in the Sotheby’s auction catalog. Wife testified that she and husband were in Geneva for the auction, that they attended the auction preview at which she tried on this item, that she asked husband at the preview to purchase this necklace for her so that it could be used to make a pendant with the 17.5 carat diamond (Jewelry Item No. 12 [so numbered in the trial court’s statement of decision]), that husband said this was an excellent idea, that she was present at the auction at which husband successfully bid for this item, and that husband thereafter gave this item to her. The trial court found that there was insufficient evidence of delivery of this item by husband to wife.
Item 13. Kashmir Sapphire, 10 Carat Loose Stone. This item was purchased on February 18, 1998, for $100,000, which is listed as Item No. 31 in husband’s Exhibit 1018. In finding this item to be the separate property of husband, the court considered the following additional evidence: Wife testified that husband purchased this item at an auction that she did not attend, that they had seen this item in a catalog, and that husband told her that this stone could be used to make a pendant for her to wear together with the sapphire earrings and rings (Jewelry Item Nos. 6, 23 and 26 [so numbered in the trial court’s statement of decision]). Husband’s testimony that this was the only loose stone that he ever transported (from Geneva to Istanbul) was contradicted by husband’s testimony that he had transported other loose stones to Turkey. The court found that there was insufficient evidence of delivery of this item by husband to wife.
Gold and Diamond Earrings from the Turkish Ottoman Empire period. Wife testified about this item and there was no denial by husband and no exhibit was introduced. In making its ruling, the trial court considered the following evidence: Wife testified that these earrings were given to her by husband in 1994, that husband purchased these earrings for her in Turkey and gave them to her in Turkey. The court found that there was insufficient evidence of the existence of the items, and therefore made no ruling regarding these earrings. Wife testified as to the existence of the item and it becomes a question of whether the wife was credible or not. The lack of a ruling by the trial court lends itself to a reasonable inference, namely, the trial court found no credible evidence to support wife’s claim of entitlement to this item as her sole and separate property.
The paintings. From what this court is able to discern, wife challenges the trial court’s findings pertaining to two paintings which the trial court awarded to husband as his sole and separate property. Those paintings were previously described in this opinion under the heading “Other personal property items in contention.” In finding that the items were husband’s sole and separate property and not gifts to wife, the trial court considered the following evidence: Wife testified that $50,000 of her money went toward the purchase of certain Turkish paintings. The trial court found it had no jurisdiction to determine claims regarding wife’s contribution of separate property funds toward husband’s acquisition of artwork prior to the parties’ marriage; acting on information from husband the trial court observed that husband had obtained a judgment in Turkey with regard to the paintings over which wife took control in Turkey and that the Turkish court had rendered a judgment ordering wife to return said paintings to husband or to pay a specified sum of money to husband, which judgment was presently on appeal in Turkey leading the trial court to comment in its statement of decision that “The Court expects that there will be compliance with the Orders of the Turkish Courts in this regard.” In discussing the fate of 19 paintings removed by wife’s representative from the Palos Verdes home in February 1999, and the sale of all but two of those paintings pursuant to court order to satisfy the child support obligation of husband so ordered by the trial court, only the two paintings previously described herein appear to be relevant to this appeal; the trial court considered the additional evidence of wife’s testimony that she asked husband to purchase these items for her; that husband purchased the items for her and the items were maintained in the common areas of their household for use by both parties.
Husband’s cross-appeal is dismissed.
Procedural facts.
On April 15, 2005, the trial court filed the judgment in Uzumcu v. Uzumcu (L.A. Super.Ct. No. BD296901) and the superior court clerk mailed notice of entry of judgment. On June 13, 2005, wife timely filed her notice of appeal. On June 15, 2005, the clerk of the court dated the notice of appeal and mailed it to husband. On July 8, 2005, husband filed a cross-appeal. Wife filed a motion to dismiss husband’s cross-appeal as untimely.
Rules.
A party has the earlier of 60 days after the superior court clerk mails the notice of entry of judgment or 60 days after the party filing the notice of appeal serves or is served with the notice of entry of judgment to appeal the judgment. (Cal. Rules of Court, rule 8.104(a).) When a party files an appeal, the clerk must “promptly mail a notification of the filing of notice of appeal to the attorney of record of each party, to any unrepresented party, and to the reviewing court clerk.” (Rule 8.100(d).) Notification of the filing of appeal must show the date that the clerk mailed the document, as to establish when the 20-day extension of the time to file a cross-appeal under rule 8.108(e) begins to run. (Advisory Com. com., foll. rules 8.100(d)(2), 8.108(f).)
All rule references will be referring to the California Rules of Court.
Thus, husband had either 60 days from April 15, 2005, when the clerk mailed the notice of entry of judgment, or 20 days from June 15, 2005, when the clerk mailed the notice of appeal to file an appeal or cross-appeal, respectively. Husband filed neither in that timeframe. Husband filed his cross-appeal 84 days after the clerk mailed the notice of entry of judgment and 23 days after the clerk mailed the notice of appeal to husband.
The five-day extension under code of civil procedure section 1013 does not apply to notice of cross-appeal.
Husband concedes that, under both the 20-day and the 60-day rule, he untimely filed his cross-appeal. Husband argues, however, that under Code of Civil Procedure section 1013, subdivision (a), he had not 20, but 25 days to file a cross-appeal and, thus, he timely filed within the 25 day limit. Section 1013, subdivision (a) provides: “In case of service by mail, . . . [t]he service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California, . . . but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a [of this code] or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court.” (§ 1013, subd. (a); emphasis added.)
All section references are to Code of Civil Procedure.
Although the text of section 1013, subdivision (a) excludes notice of appeal, husband argues that in “the absence of a specific exception” for notice of cross-appeal, the five-day extension must apply to notice of cross-appeal. This would provide respondent with 25 days, not 20, to respond to wife’s notice of appeal. Husband’s argument relies upon the unsupported notion that notice of cross-appeal is not a type of notice of appeal. Rules 8.100(e) and 8.750(e), however, both state that notice of appeal does include notice of cross-appeal.
Furthermore, section 1013, subdivision (a)’s five-day extension only applies when the prescribed time period begins upon service of the document by mail. (San Mateo Federation of Teachers v. Public Employment Relations Board (1994) 28 Cal.App.4th 150, 152-153; emphasis added.) When some circumstance, act or occurrence other than service, such as “mailing of notice,” triggers the time period, section 1013, subdivision (a)’s five-day extension will not apply. (Citicorp North America, Inc. v. Superior Court (1989) 213 Cal.App.3d 563, 568; emphasis added.) Because mailing of notice by the court clerk triggers the time period for notice of intention to move for a new trial as well as notice of intention to move to vacate a judgment, section 1013, subdivision (a) also excludes them from receiving the five-day extension. (Rule 8.108(a) and (b).)
Similarly, the Rules provide that a party may cross-appeal “until 20 days after the superior court clerk mails notification of the first appeal.” (Rule 8.108(e)(1); emphasis added.) In other words, the 20-day time period to cross-appeal begins to run upon the clerk mailing notice, not upon service. Thus, section 1013, subdivision (a)’s five-day extension does not apply to notice of cross-appeal.
Moreover, the Rules describe the 20-day period to file a cross-appeal as an “extension” of the 60-day appeal period. (Advisory Com. com., foll. rules 8.100(d)(2), 8.108(f).) Husband has not demonstrate that there is anything inherently unique or different about the cross-appeal period, when compared to the appeal period, which justifies the use of section 1013, subdivision (a)’s five-day extension. This court does not discern any reason to apply the five-day extension for the benefit of a cross-appellant, who potentially had up to 80 days to cross-appeal, when the rule explicitly excludes an appellant, on a strict 60-day limit, from its benefit.
Moreover, rule 8.108(e) states the respondent will receive notice of appeal only by mail and wife points out that when the rule expressly states the deadline to be 20 days after the clerk mails notification, it does not follow that the rule extends the deadline to 25 days if the clerk mails notification. Similarly, the Court of Appeal has described the time period for cross-appeals as “20 days after the court clerk mails notice of the filing of the first appeal.” (Gulf Ins. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422, 438; emphasis added.) The court did not suggest that the cross-appellant would receive five more days to respond if the clerk mailed the notice of appeal. Rather, the court implied that 20 days was the outer limit even if the clerk mailed the notice of appeal.
Because husband filed a cross-appeal outside the time limit established by rule 8.108, this court does not have jurisdiction to entertain the cross-appeal. (See Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency Inc. (1997) 15 Cal.4th 51, 56.) Timely filing of an appeal is an absolute prerequisite to the exercise of appellate jurisdiction; once the deadline expires, this court has no power to entertain the appeal. (Janis v. Cal. State Lottery Com. (1998) 68 Cal.App.4th 824, 829.) We do not reach the merits of husband’s claims on his cross-appeal in view of the dismissal.
DISPOSITION
The judgment is affirmed. The cross-appeal is dismissed. Each party to bear his or her own costs on appeal.
We concur: PERLUSS, P.J. ZELON, J.