Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. BD372909 Gretchen W. Taylor, Commissioner.
Brandmeyer & Stanton and Brian K. Brandmeyer for Appellant.
Carol L. Rose, in pro. per., for Respondent.
RUBIN, ACTING P. J.
Joseph E. Sheridan appeals from the family law court’s orders establishing his obligation to make certain reimbursements to the marital community of former wife Carol L. Rose, as well as fixing the amount of child support. We affirm those orders.
The factual and procedural history of this divorce is lengthy and complex. The issues raised on appeal, and our resolution of those issues, are not, allowing us to pare the facts.
The 20-year marriage of Carol L. Rose and Joseph E. Sheridan was dissolved in December 2004. When they separated in July 2002, they had an adult daughter and a 17-year-old son. A trial on reserved issues was held in 2005, including the following issues: (1) Sheridan’s retroactive child support obligation for the son; (2) Rose’s claim for reimbursement of Sheridan’s unauthorized early withdrawals from their community property retirement accounts (IRA’s); and (3) her claim for reimbursement for Sheridan’s use of community property funds to pay the expenses for a separate property apartment building (the Third Street property) he owned along with his parents.
After the trial on the reserved issues, the court issued a statement of decision that made the following relevant findings: (1) Sheridan breached his fiduciary duty to Rose when he withdrew $79,750 from the community’s IRA’s without Rose’s knowledge or consent, requiring Sheridan to repay half that amount, along with certain early withdrawal penalties; (2) pursuant to an earlier discovery sanction, the purchase loan and other expenses associated with the Third Street property were Sheridan’s separate obligation, Sheridan used $154,394 of community funds to pay for those expenses, and, factoring in offsets for Third Street income returned to the community, Sheridan had to reimburse Rose $58,801; and (3) Sheridan owed $659 per month in retroactive child support for his son for the 13-month period between August 2002 and the son’s 18th birthday in September 2003. A judgment based on those findings was entered in March 2006.
Sheridan challenges these findings. As to the first, he contends there was no evidence that Rose ever demanded to see the documents which reflected the early IRA withdrawals, as required by the version of the governing statute then in effect. As to the second, he contends Rose’s claim for reimbursement was barred by Family Code section 920 because she did not seek reimbursement within three years of discovering that community funds were going toward his separate property. Sheridan also contends the court improperly calculated the Third Street property reimbursement amount. As to the third finding, Sheridan contends the court erred by imputing the IRA withdrawals to him as income for purposes of setting the child support amount, and also erred by finding that he had custody of the son for only 10 percent of the relevant time period.
DISCUSSION
1.There Was Sufficient Evidence That Rose Demanded to See the Tax Documents Showing the IRA Withdrawals
Under Family Code section 721, each spouse owes the other a fiduciary duty in regard to their finances. Rose testified that Sheridan breached that duty when he withdrew $103,401 from their community IRA’s without her knowledge or consent. The withdrawals started in 1997; she discovered them in April 2002. Sheridan does not dispute that, but contends the reimbursement claim fails because, under the version of section 721 then in effect, lack of knowledge and consent was not enough unless Rose had also demanded to see the documents which would have disclosed the unauthorized withdrawals – in this case, their tax returns. According to Sheridan, the trial court did not make a finding on the demand issue, and there is no evidence to support such a finding. We disagree.
All further undesignated section references are to the Family Code.
Sheridan is correct that, under the version of section 721 in effect at the time, Rose had to show a demand for the relevant documents, in addition to her lack of knowledge and consent. (In re Marriage of Walker (2006) 138 Cal.App.4th 1408, 1420-1422, 1425-1428.) However, even though the trial court’s proposed statement of decision referred solely to Rose’s lack of knowledge and consent, Sheridan’s objections to the proposed statement did not mention the failure to make a finding on the demand issue. Accordingly, any such objection is waived and we will imply that the trial court made the required finding, so long as it is supported by substantial evidence. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133-1135; City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 426.)
Rose testified that Sheridan was in charge of having their tax returns prepared. She first learned of the unauthorized IRA withdrawals in April 2002. She testified that Sheridan “wanted money to pay for the [2001 income] taxes out of the home equity line, and for three years I demanded that he bring the taxes home so I could see them because he kept asking me for money and taking it out of various places.” Tax returns from the years 1997 through 1999 were introduced at trial. Although they purported to bear Rose’s signature, she testified that the signatures were not hers and appeared to have been made by Sheridan. This testimony is sufficient evidence that a demand for the tax returns was made, thereby satisfying the requirements of the former version of section 721.
Toward the end of Sheridan’s discussion of the section 721 “demand” requirement, he contends almost as an aside that Rose was not entitled to reimbursement because he used the withdrawn retirement funds for community purposes. The only authority he cites for this proposition is our decision in In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 733-734, which concerned a post-marital dissolution agreement, and which held that a presumption of undue influence in violation of section 721 occurs when one spouse is advantaged by a transaction with the other spouse. Apart from the apparent factual inapplicability of that decision, we reject Sheridan’s assertion because it is unsupported by the evidence. The only supporting evidence cited in his appellate brief is his own testimony that the IRA withdrawals were for community purposes. However, Sheridan’s capsule description of his testimony is misleading. Asked about the purpose of the withdrawals, Sheridan answered: “I don’t recall the specifics right now. I’d have to look at the ledgers and see exactly what it was, what those expenses were that I was needing to pay, but it was obviously community expenses associated with the business or home.” Immediately after, however, Sheridan admitted that he was speculating about the use of the funds because he did not really recall. Given the speculative nature of this testimony, combined with the trial court’s finding that it gave Sheridan’s testimony little credence because he had been impeached so many times at trial, we hold that the trial court would have been amply justified in disregarding his testimony about the withdrawn funds.
2. Reimbursement for Third Street Was Not Time Barred
One spouse’s claim for reimbursement from the other for using community property to pay for the other’s separate property must be made by the earlier of (1) three years from the time the spouse seeking reimbursement had actual knowledge of the use of community funds for that purpose, or (2) during marital dissolution proceedings. (§ 920, subd. (c)(1), (2).) Sheridan contends Rose was not entitled to any reimbursement for the use of community funds on the Third Street property because she knew about it more than three years before the dissolution proceedings began.
Sheridan’s contention fails for two reasons. First, the trial court based its decision to order reimbursement in at least some amount on the discovery issue sanction that was imposed earlier. Sheridan’s appellate brief does not contend that the sanction was improper and does not address whether it was properly applied by the trial court. Therefore, to the extent the Third Street reimbursement order was based on the discovery sanction, we deem the issue waived. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
When Sheridan’s lawyer started questioning Rose about when she learned that there was a loan on the Third Street property, Rose’s counsel objected that the issue had been foreclosed by the earlier issue sanction, which deemed as established that it was Sheridan’s separate property and that he was indebted to the community for all payments made on the Third Street loan with community funds. The trial court sustained that objection. The court also relied on the discovery sanction when discussing its proposed findings with the parties, and language to that effect showed up in the statement of decision.
Sheridan did not file an appellate reply brief.
Second, the only evidence cited in Sheridan’s appellate brief is a portion of Rose’s testimony given in response to a question about her statements to Sheridan in 1997 in regard to his increasing debt. Rose replied: “Well, that, I mean, I talked about his -- that he should pay the Bank of America [the Third Street lender] on time and we wouldn’t be placed in this situation. That’s the only debt I knew of was the loan on his private personal property with his parents.” Although Sheridan does not say so, we assume he wants us to conclude that Rose’s testimony conclusively shows that as of 1997 she was aware that community property funds were being used to pay off a separate property obligation.
To the extent Sheridan contends this shows Rose knew back in 1997 that Third Street was his separate property, it is insufficient when viewed in the context of other portions of Rose’s testimony. According to Rose, Sheridan already owned Third Street when they got married and she did not even learn there was a loan on that property until the mid-to-late 1990s when collection calls for past due loan payments were made to the house. She did not even learn that Sheridan’s parents had an interest in the property until she finally obtained the deed from Sheridan before trial. She had some minimal involvement in Third Street because it “had our home phone number,... that’s the one that would call for late payments.” She sometimes went to Third Street with Sheridan to collect rent and also received certain phone calls.
If Rose were involved to some extent in operating Third Street, it is reasonable to conclude she believed it was community property. Moreover if she did not even learn of her in-laws’ interest in the property until after the dissolution proceedings began, it seems reasonable to conclude she was unaware that Third Street was not community property until that time. The court agreed, finding that Rose exercised her reimbursement right within three years of acquiring actual knowledge that community property was used to pay a separate property obligation. If Sheridan wanted to elicit testimony on this issue, he should have asked Rose directly about it, instead of trying to bootstrap a favorable inference on unrelated testimony. In light of this, we cannot view Rose’s isolated comments, given in response to a question on an entirely different subject, as evidence that she in fact knew Third Street was separate property at the same time she knew community assets were being used to fund that property. Substantial evidence supported the trial court’s findings against Sheridan on the statute of limitations defense.
3.Sheridan Has Waived the Reimbursement Calculation Issue
Even if Rose’s claim for reimbursement as to the Third Street property is not time barred by section 920, Sheridan contends the court incorrectly calculated the reimbursement amount in regard to certain credits against the community property funds he used. We must reject his argument because it is unintelligible and fails to cite to all the relevant evidence in the record. (In re S.C. (2006) 138 Cal.App.4th 396, 406-407; Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117, fn. 2.) His argument begins by asserting that the trial court sought to continue punishing him for his discovery derelictions, then states the court erred because it: charged him with the full amount of mortgage payments and expenses listed in certain ledgers; adopted Rose’s “schedule of rental income reflected on the parties’ tax returns which reflected only one-third of the rents;” disregarded the testimony of his forensic accounting expert in favor of the calculations Rose performed after going through the Third Street documentation; and failed to “offset all of the rent (rather than one-third) against all of the expenses.”
As best we can tell, Sheridan’s argument hinges on his claim that he owned just one-third of the Third Street property, with the rest owned by his parents. It is unclear to us how this might have affected the court’s calculation. Without further explanation, its significance eludes us, and we therefore deem the argument waived due to its unintelligibility. His argument also hinges on a comparison between Rose’s documentary evidence and testimony, and the competing records and testimony from him and his accountant. Although he discusses and gives a handful of record citations to these matters, they are at best general and incomplete and do not set forth or analyze the deficiencies in a manner that allows for proper appellate review. In short, he points to where some of the documents are in the record, but leaves it to us to wade through them, locate and identify the relevant portions, and draw legal conclusions from them. We are not obliged to connect the dots for Sheridan, and therefore hold that the issue is waived. (In re S.C., supra, 138 Cal.App.4th at p. 406.) In any event, the trial court apparently found Rose’s testimony more persuasive than that of Sheridan and his expert, something which the trial court was empowered to do.
4.Sheridan Has Waived the Reimbursement Calculation Issue
During the 13-month period applicable to his retroactive child support obligation, Sheridan was not practicing law. In determining the $659 monthly child support obligation, the court imputed to Sheridan income from his IRA withdrawals, which totaled $26,500 in 2001 and $28,000 in 2002. Sheridan contends this was legal error because those withdrawals may not be imputed as income. The lone decision he cites for this is In re Marriage of Olson (1993) 14 Cal.App.4th 1, 13, which concerned the prospect of imputing funds currently held in a pension account as income, and held that would be improper. Here, the funds had already been withdrawn and used by Sheridan. Pension payments are considered income for determining child support (§ 4058, subd. (a)(1)), and we conclude the trial court did not abuse its discretion by applying that provision to funds withdrawn from a pension account.
Sheridan contends the trial court should have relied on his income tax returns, which showed minimal income during the relevant time period. However, as pointed out in Rose’s appellate brief, Sheridan admitted that his 2002 tax return was inaccurate in several regards, including claims that certain expenses were paid when they were not and his understatement by half of the amount of his IRA withdrawal. This presented a question of credibility that the court was free to decide in Rose’s favor.
Finally, Sheridan contends the court erred by determining that he had 10 percent of the son’s custody time during the relevant period, even though he and Rose were awarded joint custody and the three of them actually lived together for much of that time. The court found that despite Sheridan’s physical presence in the home, he was largely absent in terms of his participation and supervision, and determined that Rose took on 90 percent of the custody duties as a result. This was a factual determination the court was entitled to make, and we see no reason to disturb it.
DISPOSITION
For the reasons set forth above, the judgment is affirmed. Respondent shall recover her appellate costs.
WE CONCUR BIGELOW, J., BAUER, J.
Judge of the Orange Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.