Opinion
F062594
06-25-2012
In re the Marriage of JENNIFER JACOBI and JOHN J. JACOBI. JENNIFER JACOBI, Respondent, v. JOHN J. JACOBI, Appellant.
Griswold, LaSalle, Dowd, Cobb & Ginn and Jeffrey L. Levinson for Appellant. Jennifer Jacobi, in pro. per., for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 08-229597)
OPINION
THE COURT
Before Cornell, Acting P.J., Kane, J. and Franson, J.
APPEAL from a judgment of the Superior Court of Tulare County. William Silveira, Jr., Judge. (Retired judge of the Tulare Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Griswold, LaSalle, Dowd, Cobb & Ginn and Jeffrey L. Levinson for Appellant.
Jennifer Jacobi, in pro. per., for Respondent.
In this marital dissolution appeal, husband challenges the inclusion in the property division of the proceeds from the sale of a boat and the award of spousal support to wife. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties to this marital dissolution action had been married over 15 years at the time of separation. After trial of the matter, the parties' marriage was dissolved; husband was granted physical custody of their four children, with visitation by wife. The judgment entered also set the amounts of child and spousal support and divided the parties' property. Husband challenges the award to wife of one-half the proceeds from the sale of the parties' boat. He contends the boat was sold prior to separation and the proceeds were used to pay expenses of the household and other debts prior to and after separation. The trial court stated at trial that husband had not adequately accounted for the use of the proceeds; it assigned an equalizing payment to wife. The trial court also ordered husband to pay wife $500 per month in spousal support. Husband contends the trial court made that award without taking into account wife's cohabitation with her boyfriend.
DISCUSSION
On appeal, the trial court's order is presumed to be correct. (Schnabel v. Superior Court (1993) 5 Cal.4th 704, 718.) "'The burden of affirmatively demonstrating error is on the appellant.'" (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) "'[T]he showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion.' [Citations.]" (Brawley v. J.C. Interiors, Inc. (2008) 161 Cal.App.4th 1126, 1138.)
I. Boat
"The trial court is required to divide the community property equally. [Citation.] On appeal we review a ruling dividing property under the abuse of discretion standard. [Citation.]" (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 966.) "When applying the deferential abuse of discretion standard, 'the trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' [Citations.]" (In re C.B. (2010) 190 Cal.App.4th 102, 123) "'A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]' [Citation.]" (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) Husband's brief fails to present the unfavorable evidence on this issue, or to show how or why it was insufficient to support the trial court's findings.
Generally, property acquired by a married person during the marriage is community property. (Fam. Code, § 760.) Husband concedes the boat was acquired by the parties during marriage; he does not dispute that it was community property. He testified at trial that he sold the boat to a neighbor for $30,000 cash on August 1, 2008. Wife left the home to reside elsewhere on August 20, 2008. She testified the boat was not sold on August 1, 2008, and was still at their home when she left. Thus, contrary to husband's assertion that "[t]here is no dispute the asset was acquired and sold during marriage," wife testified the boat was still in husband's possession at the time of separation.
The only evidence regarding the disbursement of the proceeds of the sale of the boat was husband's testimony that he used the money "to pay off bills and pay for furniture and various household expenses"; he "owed several people money for this and that," and "paid some ... laborers cash"; and he used it "to help pay for a lot of different things, children activities, clothes, life." He testified that, although he sold the boat during the marriage, he held onto the proceeds as cash to pay expenses and he put some of it in his bank account; he could not identify any particular deposit as constituting or including the proceeds of the sale of the boat, and the trial court pointed out that there were no deposits reflected in the bank statements between August 1, 2008, and September 18, 2008.
Husband's argument seems to be that the boat was sold during marriage, so it was not property for which he had to account in the dissolution proceeding. Spouses, however, have a fiduciary duty toward each other, which includes a duty to account for property of the marriage, both before and after separation. (Fam. Code, §§ 721, subd. (b), 1100, subd. (e), 2100.) "Once a nonmanaging spouse makes a prima facie showing of the existence and value of community assets in the other spouse's control postseparation, the burden of proof shifts to the managing spouse to prove the proper disposition or lesser value of those assets. Failing such proof, the court should charge the managing spouse with the assets according to the prima facie showing." (In re Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.App.4th 1252, 1258.) Wife presented evidence the boat had been purchased for $50,000 and was not sold prior to separation. The burden shifted to husband to show a proper disposition of the boat or its proceeds. Husband testified he sold the boat for $30,000. His proposal for dividing the marital property did not include any division of the proceeds from the sale of the boat. His evidence regarding the use of the proceeds consisted solely of his own vague testimony that he used it to pay his debts, family expenses, and laborers. Husband offered no documentation showing the proceeds were used to pay community debts or expenses.
The trial court divided the proceeds of the sale of the boat between the spouses, finding it was personal property of the parties at the time of separation. The court rejected or found insufficient husband's testimony that the proceeds were used to pay community expenses. Substantial evidence supported the trial court's findings. The trial court did not abuse its discretion by requiring husband to make an equalizing payment to wife that included one-half the proceeds of the sale of the boat.
II. Spousal Support
Husband contends wife was cohabiting with a man at the time of trial, but the court failed to take this into consideration in setting spousal support. He asserts this constituted an abuse of the trial court's discretion. The record does not support husband's claim.
Family Code section 4323 provides that "there is a rebuttable presumption, affecting the burden of proof, of decreased need for spousal support if the supported party is cohabiting with a person of the opposite sex." (Fam. Code, § 4323, subd. (a)(1).) At trial, husband asserted wife was cohabiting with her boyfriend and asked that the court set spousal support at zero. Wife denied cohabiting. She testified she lived alone; her boyfriend rented a place in Bakersfield, but ran businesses in Lamont, Madera, and Tehachapi and stayed with her sometimes. At a posttrial hearing on objections to the tentative statement of decision, wife again denied she had been cohabiting and asserted she had taken in a female roommate and her roommate's son.
In its statement of decision, the trial court stated wife did not deny living with a person of the opposite sex, but she asserted that he contributed very little to her support. It considered multiple other factors in setting spousal support. The court made findings on the factors it was required to consider pursuant to Family Code section 4320. It noted the marriage was of long duration (Fam. Code, § 4336, subd. (b)) and wife's employment skills were limited. She was earning $778 per month from part-time work. The court had already reduced wife's support because the dairy in which husband held an interest and from which he derived his income was in bankruptcy.
The court adopted its tentative statement of decision as its statement of decision.
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During the trial, the trial court expressly stated that it had considered wife's cohabitation, but it did not intend to reduce wife's support any further. It noted that husband continued to have more or less the same lifestyle as before the bankruptcy, and the amount of spousal support it ordered was very low. At the hearing of the objections to the tentative statement of decision, the court observed that, even with the award of spousal support, wife would have a reduced standard of living; it was being asked to balance the wife's "minimally decent standard of living" against the need of the children to attend an expensive private school. Because the court thought it was important for the children to continue at their school, he set the spousal support at $500 and not higher.
The record does not support husband's contention the trial court abused its discretion by failing to consider wife's cohabitation in setting spousal support. The trial court considered that factor along with numerous others in setting the support amount. We find no abuse of discretion.
DISPOSITION
The judgment is affirmed. Wife is entitled to her costs on appeal.