Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 081858
Margulies, J.
Following her divorce from appellant Grigory Vilenskiy, respondent Tatyana Feldman petitioned for an order directing the sale of an omitted asset, a condominium she owned jointly with Vilenskiy. Testimony at trial established the condominium had been purchased in 2000, and had been under Vilenskiy’s control since March 2006, but the evidence regarding the source of the downpayment was in conflict. The family court concluded that most of the downpayment came from Vilenskiy’s separate funds, allocated Watts credits to Feldman for Vilenskiy’s use of the condominium, and entered an order allowing Vilenskiy to purchase Feldman’s interest or, alternatively, directing sale of the property. Vilenskiy contends several of the family court’s rulings were not supported by the evidence. We find the portion of the court’s order providing Vilenskiy the opportunity to purchase Feldman’s interest to lack support in the record and remand for further hearing on this issue, but we otherwise affirm.
In re Marriage of Watts (1985) 171 Cal.App.3d 366 (Watts).
I. BACKGROUND
Vilenskiy filed a petition for dissolution of his marriage to Feldman in October 2004, listing no community assets subject to disposition. Judgment of dissolution was entered in February 2005.
Feldman filed an application for an order to show cause regarding an omitted asset in July 2006, requesting adjudication of interests in and sale of a Daly City condominium. In a declaration accompanying the order to show cause, Feldman stated that she and Vilenskiy had purchased the condominium during their marriage, they had agreed Vilenskiy would live in the condominium following their divorce, and he had ceased making mortgage payments, raising the threat of foreclosure if the property was not sold. In a stipulation filed in November 2006, Vilenskiy agreed to make all mortgage, maintenance, and tax payments for the property.
After a trial in March 2007, the family court ordered sale of the property and established an allocation of the proceeds of the sale. In an earlier appeal in this matter, we reversed that order and remanded for a new trial. (In re Marriage of Vilenskiy & Feldman (Aug. 12, 2008, A117370) [nonpub. opn.].)
The retrial began on May 14, 2009, with Vilenskiy appearing in pro. per. Feldman testified that the couple met in 1997, when Vilenskiy was living in Russia. After he came to the United States to live with her, the two opened joint bank accounts at First National and Sterling Banks. When they purchased the Daly City condominium for $269,000 in April 2000, the couple made a downpayment of $148,939, which the closing statement records as $10,000 from “Transfer to savings, ” $138,921 from “Gregory Vilenskiy and Tatyana Fel, ” and $18 in accrued interest. A receipt shows the $138,921 payment was made by way of a cashier’s check, while the $10,000 was paid with two checks written on a Sterling Bank account. Although Feldman testified all amounts came from the same joint account, the account number recorded for the cashier’s check is different from the Sterling Bank account number. Vilenskiy testified the funds for the cashier’s check were drawn from an account that had since been closed, but he was unable to provide any documentation.
Vilenskiy claimed all of the money for the downpayment came from separate funds he brought over from Russia. At the time of the purchase, he testified, the couple had been living together for eight months, and because Feldman’s job paid only $800 per month she did not have significant assets to contribute to the community. Vilenskiy submitted statements from two Cal Fed bank accounts in his name showing assets of either $100,000 or $200,000 in 1999, which he claimed provided the funds for the downpayment. Although Feldman’s attorney argued she had accumulated savings that went into the Sterling account, she produced no documents reflecting those savings. Under questioning from the court, Feldman conceded she did not have $100,000 at the time of the marriage, but she said she contributed savings of “[m]aybe $10,000” to the joint accounts.
Because only partial bank statements were provided, it is not wholly clear whether Vilenskiy’s total assets in these accounts were $100,000 or $200,000.
According to Feldman, for several months after the divorce she lived in the condominium. When she left to live with her daughter in March 2006, Vilenskiy moved in, changed the locks, and has controlled the condominium ever since. An expert witness for Feldman testified to the monthly market value rent for the condominium since March 15, 2006. Feldman said she made three monthly mortgage payments, totaling $1,901, after Vilenskiy took over the unit. Neither side submitted evidence of the current market value of the condominium.
During his closing argument, Vilenskiy told the court the value of the condominium was $250,000. When questioned by the court about the foundation for his belief, Vilenskiy said a one-bedroom unit in the complex was listed for sale at $228,000; the couple’s unit has two bedrooms. Asked for her view by the court, Feldman claimed the unit was worth more than $250,000, but she was uncertain of the exact value. Also during argument, Vilenskiy claimed he had not been living in the condominium, contending it had been unoccupied throughout the relevant time.
In a written order, the family court found the value of the condominium to be $270,000, purportedly based on Feldman’s testimony. The court concluded $139,000 of the downpayment for the condominium could be traced to Vilenskiy’s separate funds and granted him a credit in that amount under Family Code section 2640, deeming the remaining $10,000 to be community property. The court accepted the testimony of Feldman’s rental expert and found her entitled to a credit of one-half of the fair market rental value of the condominium since the separation. The court credited Vilenskiy with payments of $50,200, and Feldman with payments of $1,905, in mortgage and other expenses associated with the condominium. It also awarded Feldman one-half of her expert fees and $7,500 in attorney fees. Based on the foregoing figures, the court set a value for Vilenskiy to buy out Feldman’s interest and ordered the condominium sold if Vilenskiy had not paid that amount within 65 days. This appeal was filed prior to the expiration of the buyout period.
II. DISCUSSION
Vilenskiy contends that several of the family court’s rulings were in error. We review the court’s factual findings for substantial evidence. (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503.)
Feldman contends the family court erred in allocating a disproportionate share of the downpayment to Vilenskiy. We agree with Vilenskiy that because Feldman did not file a notice of cross-appeal she is precluded from seeking affirmative appellate relief. (Code Civ. Proc., § 906; Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744, 758, fn. 9.) Accordingly, we do not address Feldman’s claim of error.
A. Market Value of the Condominium
Vilenskiy contends the family court erred in setting the current market value of the condominium at $270,000, arguing that the court should have adopted his estimate of $250,000.
We agree with Vilenskiy that the family court erred when it purported to base its finding of the market value of the condominium on Feldman’s testimony. Feldman provided no evidence of the current market value of the condominium. The $270,000 figure cited by the family court was the original purchase price of the condominium in April 2000. Feldman did not purport to offer this as an estimate of the current market value. Further, it is common knowledge that real estate values have taken a roller coaster ride since that time, with the changes varying markedly with location and property type. In the absence of any other information regarding the interim changes in the Daly City real estate market, there was no evidentiary support for the family court’s adoption of the nine-year-old sale price as the current market value.
On the other hand, we cannot accept Vilenskiy’s claim that the court was required to adopt his estimate of the value of $250,000. Although Vilenskiy’s brief on appeal treats his $250,000 estimate as evidence, in fact it was made after the close of evidence, during his closing argument. As a party and owner, Vilenskiy was competent to provide an estimate of the market value (Evid. Code, § 813, subd. (a)(2)), but he was required to do so during his testimony. Once evidence closed and Vilenskiy assumed the role of advocate during closing argument, his statement was entitled to no more evidentiary weight than a statement of counsel—that is, none. (People v. Barajas (1983) 145 Cal.App.3d 804, 810 [statements of counsel cannot be considered as evidence].)
Vilenskiy’s opening brief misleadingly treats the exchange about the condominium’s market value as though it were testimony, but it occurred in its entirety after Feldman’s counsel had already delivered his closing argument. Vilenskiy cites no authority suggesting that a trier of fact may rely on statements made during closing argument, unsupported by evidence given at trial, in making factual findings.
At oral argument, counsel for Vilenskiy contended we should find that the family court reopened the hearing for the taking of further testimony when it began questioning Vilenskiy and Feldman about the value of the condominium during closing argument. While the trial court presumably had the discretion to reopen the evidentiary portion of the hearing (e.g., Code Civ. Proc., § 662), it cannot be found to have done so implicitly, without notice to the parties. Family court proceedings may be conducted with relative informality, but the court is nonetheless bound by the Evidence Code and the requirements of due process. If the family court intended to use Vilenskiy’s argument as evidence, it was required to give notice to Feldman that it had reopened the hearing for the taking of new evidence and provide her an opportunity to cross-examine Vilenskiy with respect to his testimony. It would be fundamentally unfair to permit Vilenskiy to rely on his unsworn statement, provided at a time when Feldman had no opportunity to challenge it—or even to know that the statement would be used as evidence.
Accordingly, the family court possessed no competent evidence of the current market value of the condominium, and it was error for the court to make any finding at all on this issue. We remand to the family court for the sole purpose of taking evidence on this issue, making a determination of the current market value of the condominium, and entering an amended order incorporating this value.
B. Vilenskiy’s Contribution to the Downpayment
Vilenskiy contends the family court erred in determining the amount of the downpayment.
Vilenskiy first contends the evidence before the trial court showed the downpayment was “$148,938.93, not $148,900.” The family court clearly rounded the number to the nearest $100. With respect to a number of this magnitude, we find no abuse of discretion in the court’s simplification of the calculations by using rounding.
More substantially, Vilenskiy contends the court’s determination that $10,000 of the downpayment came from community funds was not supported by substantial evidence, noting the court’s own comment during trial that Feldman failed to provide “tracing evidence” of the downpayment. Regardless of the family court’s comment, its factual finding was supported by substantial evidence. The cancelled checks used to make the $10,000 portion of the downpayment, introduced into evidence, came from a Sterling Bank account that Feldman testified was a joint account. While Vilenskiy testified the account was separate property, he provided no evidence to support the contention, and the checks themselves do not identify any accountholder. The family court was therefore entitled to credit Feldman’s testimony regarding the joint nature of the account. Property acquired during marriage and held jointly is deemed to be community property. (Fam. Code, § 2581.)
Vilenskiy also contends the trial court erred in failing to credit his testimony that Feldman brought no assets to the community because she was impoverished. Assuming the Sterling account was held jointly and acquired during the marriage, however, it was deemed to be a community asset under Family Code section 2581. Further, the trial court was entitled to credit Feldman’s testimony that she contributed savings of “[m]aybe $10,000” to the community. This testimony provided substantial evidence to support the court’s determination.
Family Code section 2581 reads in relevant part: “For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common, joint tenancy, or tenancy by the entirety, or as community property, is presumed to be community property. This presumption is a presumption affecting the burden of proof and may be rebutted....”
C. The Community Interest in the Condominium
Vilenskiy next contends the family court’s determination that “the community interest in the community condominium is $166,000, ” was not supported by substantial evidence. The family court, however, made no such finding. The court noted “the parties have an equity balance of $166,000, ” but it found “a community interest of $27,000.”
In any event, Vilenskiy’s claim is merely a reiteration of his argument that the court erred in determining the market value of the condominium. As discussed above, we agree this finding was not supported by substantial evidence. Vilenskiy’s present claim regarding the family court’s determination of community interest, however, does not entitle him to any relief beyond the relief already entered in connection with that discussion.
D. Epstein Credits
Vilenskiy contends the family court’s determination that Feldman paid a $1,905 community debt, in the form of three mortgage payments, was not supported by substantial evidence because Feldman provided no documentary evidence of her payment.
There is no question Feldman is entitled to credit for these payments, if they were made. (In re Marriage of Epstein (1979) 24 Cal.3d 76, 84 (Epstein).) Feldman testified she made the payments, and the family court was entitled to credit this oral evidence without requiring documentation. (Evid. Code, § 411; Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1075.) Vilenskiy provides no authority requiring documentary proof of such a claim.
Feldman actually testified to making payments of $1,901, a $4 discrepancy with the court’s finding. Vilenskiy has not requested a correction of the court’s order on this basis.
In connection with this argument, Vilenskiy also contends the trial court erred in concluding these payments were made “from [Feldman’s] separate property.” Because the payments were made after the divorce became final, the court was entitled to presume they were made from separate property.
E. Watts Credits
Vilenskiy contends that the family court erred in finding it was undisputed he had exclusive custody and control of the condominium after March 15, 2006, and awarding fair market rental value to Feldman under Watts, supra, 171 Cal.App.3d 366.
Watts held that “the community [i]s entitled to reimbursement for the value of the exclusive use of... a community asset, from the [party making exclusive use].” (Watts, supra, 171 Cal.App.3d at pp. 373–374.) The trial court award was supported by Feldman’s testimony she moved out and Vilenskiy moved into the condominium on March 15, 2006. After that time, she said, she had nothing to do with the condominium. Vilenskiy provided no contrary evidence.
Although Vilenskiy contends he provided evidence he did not occupy the condominium, he relies only on a statement he made during argument, after the close of evidence. As discussed above, this statement was not evidence and could not be considered as such by the family court. (People v. Barajas, supra, 145 Cal.App.3d at p. 810.) In any event, the court was entitled on this record to disbelieve Vilenskiy’s claim and credit Feldman’s testimony that Vilenskiy had exclusive control of the condominium since March 2006.
Vilenskiy’s contention he made this claim “[t]hroughout the proceedings” is not supported by the record. The only record citation provided by Vilenskiy to support his contention is the statement made during closing argument.
F. Attorney Fees
Vilenskiy contends the family court’s award of attorney fees to Feldman “must be set aside due to insufficiency of evidence.” At trial, Feldman’s attorney requested an award of attorney fees, based on several fee requests previously filed with the court. As counsel explained, an initial award of fees was made against Vilenskiy in February 2007, when he failed to appear for a deposition. Since that time, counsel had filed “four separate declarations requesting attorneys fees for different matters. They were always continued and never adjudicated.” When the court asked whether counsel had “a billing [statement] prepared, ” he responded the statements were attached to declarations already on file. He acknowledged no single consolidated request had been prepared, but he provided the court with dates of filing of the various separate requests. At the close of argument, counsel handed to the court what he described as “the accounting for my attorneys fees to make it easy for the court.” The court responded, “I will go through the file.” Vilenskiy has not included that accounting in the appellate record.
Vilenskiy first contends the court’s award of $7,500 in attorney fees should be reversed because the evidence supporting the fee award was not submitted during the trial. Feldman’s request for attorney fees did not originate at trial, however. In requesting attorney fees, Feldman’s counsel was merely seeking the adjudication of motions that had been filed months to years earlier that the court had declined to adjudicate at the time of their submission. According to counsel, these motions were supported by evidentiary submissions, and Vilenskiy does not contend otherwise. Feldman was therefore not seeking adjudication of the attorney fees issue as part of the trial but as the completion of proceedings instituted earlier. For this reason, there was no requirement that the attorney fees evidence be entered into the record at the time of trial. Vilenskiy cites no authority to the contrary.
We do not and cannot reach the procedural or evidentiary adequacy of these motions because Vilenskiy did not include them in the appellate record. “ ‘It is the burden of the party challenging the fee award on appeal to provide an adequate record to assess error.’ ” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140–1141.)
Vilenskiy also contends he was provided no notice because “[t]he Order was made in chambers, by the Trial Court judge alone, without benefit of any argument from Appellant.” As noted above, however, the family court’s attorney fees award constituted a ruling on already pending requests that had been made by Feldman over the course of two years. Vilenskiy does not argue that he had no opportunity to respond to these motions at the time they were filed.
III. DISPOSITION
The matter is remanded to the family court solely for the purpose of taking evidence regarding the current market value of the condominium, making a finding as to
that value, and entering an amended order incorporating it. The court’s order is otherwise affirmed.
We concur: Marchiano, P.J., Banke, J.