Filed 7/28/26 Marriage of Bennett and Gardner CA2/1
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
In re the Marriage of ANDREA B338792
BENNETT and REID GARDNER.
(Los Angeles County
Super. Ct. No. 19PSFL01940)
ANDREA BENNETT,
Respondent,
v.
REID GARDNER,
Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kenneth M. Fuller, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Procopio, Cory, Hargreaves & Savitch, Kendra J. Hall and
Megan E. Dawson for Appellant.
Nelson Kirkman and Graham D. Kirkman for Respondent.
____________________________
Appellant Reid Gardner and respondent Andrea Bennett
were married for approximately six and a half years. After trial
in this marital dissolution action, the family court issued a
judgment awarding spousal support to Bennett pursuant to the
parties’ stipulation, characterizing the parties’ various assets as
separate or community and valuing certain of those assets,
ordering Gardner to reimburse Bennett for funds he used to post
bail, and awarding Bennett $70,000 in attorney fees and costs
under Family Code section 271. Pursuant to these rulings, the
court ordered Gardner to pay approximately $130,000 to Bennett.
Although Gardner timely requested a statement of decision
and raised objections to the tentative decision, the family court
erred in failing to issue a statement of decision that adequately
explained the factual and legal bases for many of its property
characterizations. Accordingly, in reviewing those orders, we
cannot deem the court to have impliedly made every factual
finding necessary to support its rulings. For several of the
property characterizations, we conclude the proper remedy is to
remand to allow the court to issue an adequate statement of
decision. We also order the court to reassess certain other
property characterizations because we lack sufficient information
to determine in the first instance whether, and, if so, to what
extent, any of the intramarital earnings from Bennett’s separate
property freelance writing business should have been
apportioned to the community property estate. Further, we
affirm the court’s valuation of Gardner’s USAA Federal Saving
Bank account. We also conclude the court’s failure to issue an
adequate statement of decision disclosing the legal and factual
basis for its valuation of the community interest in one of
Bennett’s bank accounts was harmless.
2
Next, we conclude the family court did not err in finding
Gardner engaged in conduct sanctionable under Family Code
section 271. The court, however, erred in awarding Bennett
$70,000 in attorney fees and costs in defending against Gardner’s
ultimately unsuccessful civil action because her civil counsel
billed her only $54,108.37. We also order the court to determine
whether Bennett used community funds to pay those attorney
fees and costs, and, if she did, the court should adjust the
equalization payment accordingly.
Lastly, we reject Gardner’s contention that he did not owe
Bennett any spousal support under the support stipulation
because he failed to earn a gross income of at least $190,000 in
any calendar year. The stipulation obligated Gardner to pay
spousal support to Bennett twice a month so long as Gardner
retained his law license and met the annual gross income
requirement. Under Gardner’s interpretation of the stipulation,
he would not be required to make any support payments unless
and until enough time had elapsed for him to have earned
$190,000 or more in a calendar year, at which point he would
apparently owe support arrears for the months in which he
earned that level of income. Gardner’s construction of the
stipulation would thus undermine the objective of maintaining
the supported spouse’s standard of living. Accordingly, we
conclude Gardner has not shown the family court erred in
awarding Bennett spousal support arrears for the months in
which Gardner’s anticipated annual gross income was at least
$190,000.
3
FACTUAL AND PROCEDURAL BACKGROUND1
We summarize only those facts pertinent to our disposition
of this appeal. We describe additional facts relevant to our
analysis in our Discussion, post.
Bennett and Gardner were married on February 9, 2013.
The couple separated on August 31, 2019; they were thus married
for approximately six years and six months.
Gardner claims that during the marriage, he used his
separate property to purchase a canine named Astro. According
to Gardner, when Bennett “abruptly left the family home in San
Diego” in September 2019, “she took Astro with her without
[Gardner’s] consent.” Gardner was later arrested and charged
with burglary for entering Bennett’s residence in the middle of
the night to retrieve Astro.2
On October 9, 2019, Bennett filed a petition for legal
separation.3 On January 8, 2020, the parties executed and filed
two stipulations: (1) a stipulation containing proposed orders
requiring Gardner to pay spousal support to Bennett, provided
1 We derive our Factual and Procedural Background in
part from undisputed aspects of the family court’s rulings,
admissions made by the parties in their appellate briefing, and
Bennett’s assertions in her appellate brief that Gardner does not
contest in his reply. (See Association for Los Angeles Deputy
Sheriffs v. County of Los Angeles (2023) 94 Cal.App.5th 764, 772,
fn. 2, 773–774 (Association for Los Angeles Deputy Sheriffs)
[employing this approach].)
2 Neither party reveals the final disposition of the criminal
matter against Gardner.
3 On February 27, 2020, Bennett filed an amended petition
seeking dissolution of the marriage.
4
certain conditions were met (support stipulation); and (2) a
stipulation concerning Astro (Astro stipulation). Both
stipulations were signed by the family court and issued as court
orders. The Astro stipulation provided: (1) Gardner purchased
Astro with separate property funds; (2) although Bennett claimed
to “believe[ ] . . . [she] was within her rights to take Astro,” the
parties “agreed . . . Astro is the separate property of” Gardner;
and (3) “because Astro has also become an emotional support dog
for [Bennett’s] minor daughter from a prior relationship, the
parties stipulate[d], and the [c]ourt d[id t]hereby find and [o]rder
that Astro . . . be awarded to [Bennett].”
Gardner maintains that after the parties executed the
Astro stipulation, (1) Bennett told the police she did not admit
that Astro belonged to Gardner at the time he entered Bennett’s
residence to retrieve the canine, and (2) Bennett testified at the
preliminary hearing in the criminal case that Astro had been
acquired as a family pet for her daughter.
In December 2021, Gardner moved in the family court to
set aside the support and Astro stipulations on the grounds of
perjury, fraud, and duress.
On February 18, 2022, Gardner filed a civil complaint
against Bennett. Gardner alleged causes of action for intentional
infliction of emotional distress, intentional interference with a
prospective economic advantage, tortious interference with
contractual relations, breach of fiduciary duty, and extortion.
On April 29, 2022, the family court found Gardner’s
allegations of perjury and fraud in his motion to set aside the
support and Astro stipulations were untimely, but allowed
Gardner to pursue his claim of duress at trial.
5
On November 18, 2022, the civil court sustained Bennett’s
demurrer to Gardner’s complaint without leave to amend for lack
of jurisdiction. Gardner later reasserted in this family law case
the same five causes of action he had raised in the civil action.
The family court conducted a trial in this matter on
January 17, 2024 and March 4 to 8, 2024.4
On June 3, 2024, the family court issued a judgment that,
inter alia, (1) awarded Bennett $26,582.83 pursuant to the
support stipulation; (2) ruled Gardner did not meet his burden of
proof as to the five civil causes of action he reasserted in this
family law action; (3) denied Gardner’s motion to set aside the
support and Astro stipulations because he failed to meet his
burden of proving duress; (4) awarded certain assets to Bennett
and Gardner as their respective separate property;
(5) determined certain assets belonged to the community and the
community had an interest in certain separate property assets;
(6) awarded jewelry to the party currently in possession of the
jewelry without offset or equalization; (7) ordered Gardner to
reimburse Bennett $25,000 because the court found he used
community funds to post bail; and (8) ordered Gardner to pay
Bennett $70,000 in attorney fees and costs as a sanction
pursuant to Family Code section 271. The net effect of the court’s
rulings was an order requiring Gardner to make an equalization
payment to Bennett of $134,491.43, with interest accruing at the
legal rate of 10 percent per year starting on June 1, 2024.
On May 10, 2024, Gardner filed a premature notice of
appeal from the judgment. On August 1, 2024, Gardner filed
4 We describe the procedural history relating to Gardner’s
request for a statement of decision in Discussion, part A.2, post.
6
another notice of appeal from the judgment. On August 16, 2024,
this court granted Gardner’s motion to consider his premature
appeal from the judgment and directed the court clerk to file
Gardner’s second notice of appeal in the record for this appeal.
DISCUSSION
On appeal, Gardner challenges many of the family court’s
property characterizations (Discussion part B, post), the order
requiring him to reimburse Bennett $25,000 for Gardner’s
alleged use of community funds to post bail (Discussion, part C,
post), the award of $70,000 in sanctions under Family Code
section 271 (Discussion, part D, post), and the award of spousal
support arrears and interest under the support stipulation
(Discussion, part E, post). Before resolving these issues, we
decide whether the court failed to issue an appropriate statement
of decision.
A. The Family Court Erred In Failing To Issue a
Statement of Decision Explaining the Legal and
Factual Bases for the Property Characterizations
Gardner Challenges on Appeal
1. The law governing statements of decision
Ordinarily, “ ‘[u]nder the doctrine of implied findings, the
reviewing court must infer, following a bench trial, that the trial
court impliedly made every factual finding necessary to support
its decision.’ [Citation.]” (See Thompson v. Asimos (2016)
6 Cal.App.5th 970, 981 (Thompson).) “For the doctrine of implied
findings to be disabled on appeal,” a party must follow “both steps
of the two-step procedure [set forth by Code of Civil Procedure]
7
section[s] 632 and 634 . . . .” (See Thompson, at pp. 979, fn. 2,
983.)
Code of Civil Procedure section 632 provides in pertinent
part: “(a) In superior courts, upon the trial of a question of fact
by the court, written findings of fact and conclusions of law shall
not be required. The court shall issue a statement of decision
explaining the factual and legal basis for its decision as to each of
the principal controverted issues at trial upon the request of any
party appearing at the trial. The request must be made within
10 days after the court announces a tentative decision . . . . The
request for a statement of decision shall specify those
controverted issues as to which the party is requesting a
statement of decision. After a party has requested the statement,
any party may make proposals as to the content of the statement
of decision. [¶] (b) The statement of decision shall be in writing,
unless the parties appearing at trial agree otherwise . . . .” (Code
Civ. Proc., § 632, subds. (a)–(b).)
As relevant here, Code of Civil Procedure section 634
provides: “When a statement of decision does not resolve a
controverted issue, or if the statement is ambiguous and the
record shows that the omission or ambiguity was brought to the
attention of the trial court . . . prior to entry of judgment . . . , it
shall not be inferred on appeal . . . that the trial court decided in
favor of the prevailing party as to those facts or on that issue.”
(Code Civ. Proc., § 634.) This statute requires a party to identify
“[t]he alleged omission or ambiguity . . . with sufficient
particularity to allow the trial court to correct the
defect. [Citation.] ‘By filing specific objections to the court’s
statement of decision a party pinpoints alleged deficiencies in the
statement and allows the court to focus on the facts or issues the
8
party contends were not resolved or whose resolution is
ambiguous.’ [Citation.]” (See Ermoian v. Desert Hospital (2007)
152 Cal.App.4th 475, 498 (Ermoian).)
California Rules of Court, rule 3.1590(d), (e), (f), and (g)
implement Code of Civil Procedure sections 632 and 634. (See
Thompson, supra, 6 Cal.App.5th at p. 982.) Rule 3.1590(f)
provides, as a general rule, “If a party requests a statement of
decision . . . , the court must, within 30 days of announcement or
service of the tentative decision, prepare and serve a proposed
statement of decision and a proposed judgment on all parties that
appeared at the trial . . . .” (See Cal. Rules of Court,
rule 3.1590(f).) Rule 3.1590(g) in turn provides: “Any party may,
within 15 days after the proposed statement of decision and
judgment have been served, serve and file objections to the
proposed statement of decision or judgment.” (Id.,
rule 3.1590(g).)
2. Although Gardner timely requested a statement
of decision and timely objected to the family
court’s proposed statement of decision, the court
failed to issue an adequate statement of decision
as to many of its property characterizations
The parties do not dispute that the family “court issued its
tentative decision in writing via a Minute Order . . . . [that] was
issued on March 13, 2024.” In the March 13, 2024 minute order,
the court made property characterization rulings but did not
explain the court’s rationale for those rulings. For instance, the
family court simply found Bennett had “met her burden of proof”
in showing that certain assets (e.g., Chase Bank account nos.
xxx5239 and xxx0210) “were either acquired before marriage or
are otherwise [Bennett’s] separate property . . . .” The court clerk
9
served notice of entry of the March 13, 2024 minute order on the
parties’ counsel on the date the order was issued.
Gardner “served and filed a Request for Statement of
Decision . . . on March 22, 2024,” that is, within the 10-day
deadline for doing so. (See Discussion, part A.1, ante.) Gardner
sought a statement of decision on, inter alia, the rulings that we
address in Discussion, parts B.1 to B.6, post. 5
On May 10, 2024, the court issued two orders denying
Gardner’s request for a statement of decision on the ground that
the court’s March 13, 2024 minute order “explain[ed] the court’s
factual and legal determinations sufficiently to constitute the
statement of decision.” Neither order issued on May 10, 2024
indicates the court directed the court clerk or either party to
serve one or both of the orders on the parties. Therefore,
California Rules of Court, rule 3.1590(g)’s 15-day deadline for
Gardner to object to the rulings included in the March 13, 2024
minute order was not triggered by the May 10, 2024 orders. (See
5 Gardner arguably failed to request clearly a statement of
decision for the family court’s decision not to increase the
community interest in Bennett’s Chase Bank account no. xxx7946
by $5,500 to account for her intramarital transfer to Vanguard
IRA account no. xxx9925. (See Discussion, part B.7, post.)
Although Gardner asserted the $5,500 transfer undermined the
court’s conclusion that the Vanguard IRA account was separate
property, he did not request a statement of decision explaining
why the community interest in Chase Bank account no. xxx7946
had not been increased by $5,500. We do not decide whether
Gardner failed to describe sufficiently this issue in his request
because any failure on the part of the court to articulate its
rationale for not including an additional $5,500 in its valuation of
the community’s interest in Chase Bank account no. xxx7946 was
harmless. (See Discussion, part B.7, post.)
10
Discussion, part A.1, ante [noting that rule 3.1590(g) provides a
15-day deadline that commences upon service of a proposed
statement of decision and judgment].)
On May 28, 2024, Gardner filed and served a document
that construed the March 13, 2024 minute order as a proposed
statement of decision and levelled objections to that document.
In particular, Gardner objected to the proposed statement of
decision’s failure to explain the legal and factual basis for each
ruling we address in Discussion, parts B.1 to B.4 and B.6, post.6
On June 3, 2024, the family court filed the judgment, which
adopted the rulings provided in its March 13, 2024 minute order.
6 With regard to the court’s ruling the community had an
interest of $15,420.39 in Gardner’s USAA Federal Saving Bank
account no. xxx937-4 (which ruling we address in our Discussion,
part B.5, post), Gardner raised the following objection: “This
finding is not supported by the evidence. This valuation directly
contradicts the account statement that was stipulated to by
[Bennett] and admitted into evidence during the trial.” This
objection did not “focus the [family] court on any particular
omissions or ambiguities in the proposed statement of decision”
as Code of Civil Procedure section 634 requires. (See Ermoian,
supra, 152 Cal.App.4th at p. 499.) Instead of informing the court
that Gardner believed it had failed to articulate sufficiently the
legal and factual basis for its valuation of the community’s
interest in the USAA account at $15,420.39, Gardner claimed the
ruling was erroneous. Accordingly, the doctrine of implied
findings applies to the court’s valuation of the community’s
interest in this account. (See Thompson, supra, 6 Cal.App.5th at
p. 983 [noting that “strict adherence” to “both steps of the two-
step procedure under section[s] 632 and 634” is required “[f]or the
doctrine of implied findings to be disabled on appeal”].)
11
In light of the procedural history described above, we
conclude Gardner timely requested and objected to the court’s
statement of decision. We also conclude the court failed to issue
an adequate statement of decision. A “ ‘court’s statement of
decision is sufficient if it fairly discloses the court’s determination
as to the ultimate facts and material issues in the case.’
[Citations.] . . . ‘[T]he term “ultimate fact” generally refers to a
core fact, such as an essential element of a claim.’ [Citation.]
‘Ultimate facts are distinguished from evidentiary facts and from
legal conclusions.’ [Citation.]” (See Thompson, supra,
6 Cal.App.5th at p. 983.) As we noted above, the court’s property
characterizations are only legal conclusions. We thus have “no
means of ascertaining the [family] court’s reasoning [as to these
rulings] or determining whether its findings on disputed factual
issues support the judgment as a matter of law.” (See id. at
p. 982.)
Bennett argues Gardner was not entitled to a statement of
decision because he “failed to timely submit a proposed statement
of decision and written judgment.” (Boldface & capitalization
omitted.) In advancing this argument, she relies upon California
Rules of Court, rule 3.1590(f), which states: “If a party requests a
statement of decision . . . , the court must, within 30 days of
announcement or service of the tentative decision, prepare and
serve a proposed statement of decision and a proposed judgment
on all parties that appeared at the trial, unless the court has
ordered a party to prepare the statement. A party that has been
ordered to prepare the statement must within 30 days after the
announcement or service of the tentative decision, serve and
submit to the court a proposed statement of decision and a
proposed judgment. If the proposed statement of decision and
12
judgment are not served and submitted within that time, any
other party that appeared at the trial may within 10 days
thereafter: (1) prepare, serve, and submit to the court a proposed
statement of decision and judgment or (2) serve on all other
parties and file a notice of motion for an order that a statement of
decision be deemed waived.” (Cal. Rules of Court, rule 3.1590(f),
italics added.)
Bennett acknowledges that the “court did not order either
party in this matter to prepare a statement of decision,” and that
the court did not prepare and serve a proposed judgment prior to
the expiration of California Rules of Court, rule 3.1590(f)’s 30-day
deadline for doing so. Bennett argues, without any supporting
record citation, that at an unspecified point in time, she
“requested that the court enter an order deeming the statement
of decision waived.” Further, she intimates the court’s failure to
issue that order was harmless because we may deem Gardner to
have waived his right to a statement of decision by not serving
Bennett with a proposed statement of decision and judgment
within 10 days after the expiration of the court’s 30-day deadline
for serving a proposed statement of decision and judgment under
rule 3.1590(f).
We are unpersuaded. California Rules of Court,
rule 3.1590(f) authorizes a party to serve and submit a proposed
statement of decision and judgment or move for an order
“deem[ing]” the statement of decision “waived,” either of which
actions must occur “within 10 days” after the initial deadline to
prepare and serve a proposed statement of decision and judgment
elapses; that initial deadline is 30 days after the court announces
or serves its tentative decision. (See Cal. Rules of Court,
rule 3.1590(f).) Adopting Bennett’s construction of rule 3.1590(f)
13
would put a party in the untenable position of filing a motion
deeming the other party’s right to a statement of decision to have
been waived before the other party would have waived that right
by failing to timely serve and submit a proposed statement of
decision and judgment. We reject Bennett’s impractical
construction of this rule. (See People v. Lofchie (2014) 229
Cal.App.4th 240, 251 (Lofchie) [“ ‘ “We must . . . avoid an
interpretation [of a statute] that would lead to absurd
consequences.” ’ ”]; Alan v. American Honda Motor Co., Inc.
(2007) 40 Cal.4th 894, 902 [“The ordinary principles of statutory
construction govern our interpretation of the California Rules of
Court.”].) Rather, we read rule 3.1590(f) as allowing a party to
secure an order deeming another party to have waived the right
to a statement of decision only if the court ordered the other
party to serve and submit a proposed statement of decision and
judgment but failed timely to do so. Because the court did not
order Gardner to serve and submit a proposed statement of
decision, Gardner did not waive his right to a statement of
decision by failing to comply with rule 3.1590(f)’s deadline for
doing so.
We next turn to the appropriate remedies for the court’s
failure to issue an appropriate statement of decision.
B. Remanding To Allow the Family Court To Issue the
Required Statement of Decision Is the Proper
Remedy as to Several of the Challenged Property
Characterizations, Whereas Others Require a
Different Disposition
“ ‘Characterization . . . refers to the process of classifying
property as separate, community, or quasi-community.’
[Citation.] It ‘is an integral part of the division of property on
14
marital dissolution.’ [Citation.]” (In re Marriage of Ciprari
(2019) 32 Cal.App.5th 83, 91 (Ciprari).) “Under Family Code
section 2550, the court must divide the community estate of the
parties equally.” (In re Marriage of Campi (2013) 212
Cal.App.4th 1565, 1572, fn. omitted.) “The trial court’s findings
on the characterization and valuation of assets in a dissolution
proceeding are factual determinations which are reviewed for
substantial evidence.” (Ibid.) “ ‘In a substantial evidence
challenge to a judgment, the appellate court will “consider all of
the evidence in the light most favorable to the prevailing party,
giving it the benefit of every reasonable inference, and resolving
conflicts in support of the [findings]. [Citations.]” [Citation.] We
may not reweigh the evidence and are bound by the trial court’s
credibility determinations. [Citations.] Moreover, findings of fact
are liberally construed to support the judgment.’ [Citation.]”
(Ciprari, at p. 94.)
Although Code of Civil Procedure section 634 bars us from
invoking the doctrine of implied findings to review the property
characterizations for which the court was required to — but did
not — prepare an adequate statement of decision (see Discussion,
part A, ante), the proper appellate remedy for that error is not
de novo review of the evidence concerning those rulings. “The
function of [a] . . . Court of Appeal is not to supplant the trial
court as the forum for consideration of the facts and assessing the
credibility of witnesses or to substitute its discretion for that of
the trial court.” (See Department of Alcoholic Beverage Control v.
Alcoholic Beverage Control Appeals Bd. (2004) 118 Cal.App.4th
1429, 1437.)
“Where a reviewing court determines that a trial court’s
failure to issue a properly requested statement of decision was
15
prejudicial,” e.g., if reversal is “ ‘ “require[d] . . . in order for the
appellate court to effectively perform a review of the material
issues[,]” ’ ” “the usual remedy is to remand with instructions to
issue a proper statement of decision.” (See Alafi v. Cohen (2024)
106 Cal.App.5th 46, 62, 71–72 (Alafi).) “To the extent the trial
judge has no immediate independent recollection of the matter he
must take whatever steps are available to refresh his recollection
to perform his duty” to prepare a statement of decision setting
forth the legal and factual bases for the court’s rulings. (See
Karlsen v. Superior Court (2006) 139 Cal.App.4th 1526, 1531.)
Gardner asks us to direct the court to issue a modified
judgment in his favor on the disputed property characterizations.
To obtain that appellate relief, Gardner must demonstrate, as a
matter of law, he is entitled to the modified judgment he seeks.
(See Regalia v. The Nethercutt Collection (2009) 172 Cal.App.4th
361, 370 (Regalia) [indicating that an “ ‘appellate court can
reverse with directions to enter [a] judgment or order’ ” if it is
persuaded “ ‘the record indicates what the proper judgment or
order should have been’ ”]; Association for Los Angeles Deputy
Sheriffs, supra, 94 Cal.App.5th at p. 792 [holding that a
reviewing court does not make arguments for the parties].) As
we explain below, Gardner fails to discharge that burden. (See
Discussion, parts B.1–B.7, post.)
As for the court’s award of Chase Bank account
nos. xxx0210 and xxx5239, Schwab account nos. xxx1094,
xxx6584, and xxx4324, Schwab IRA account no. xxx1574, and a
Rolex watch to Bennett as her separate property, we reverse
those rulings and instruct the court to reconsider the
characterization of those assets on remand in light of the issues
we address in Discussion, parts B.1–B.3, post.
16
We further conclude there is a possibility that the following
rulings could be supported by substantial evidence: (1) the award
of the wedding ring to Bennett without offset or equalization, and
(2) the award of Fidelity IRA account no. xxx2240 to Bennett as
her separate property. (See Discussion, parts B.4 & B.6, post.)
Remand, however, is still necessary because the court failed to
provide us with its rationale for those determinations.
Because Gardner’s objection regarding USAA Federal
Saving Bank account no. 937-4 was inadequate (see fn. 6, ante),
the family court did not err in declining to issue a statement of
decision articulating the legal and factual basis for its ruling the
community had an interest of $15,420.39 in that account. We
thus review that ruling under the doctrine of implied findings
(ibid.), and affirm the court’s valuation of the community’s
interest in the account because substantial evidence supports it
(see Discussion, part B.5, post).
Lastly, assuming arguendo the court failed to articulate
sufficiently its rationale for declining to add $5,500 to the
community’s interest in Bennett’s Chase Bank account
no. xxx7946, that error was harmless. (See Discussion, part B.7,
post [explaining that the community’s interest in the $5,500
intramarital transfer from Chase Bank account no. xxx7946 to an
IRA account will be accounted for in a Qualified Domestic
Relations Order (QDRO)].) Consequently, we affirm the court’s
valuation of the community interest in Chase Bank account
no. xxx7946. (See Alafi, supra, 106 Cal.App.5th at pp. 63–64
[noting that “the failure to issue a requested statement of
decision is not reversible per se, but instead is subject to
harmless error analysis”].)
17
1. The court erred in awarding Chase
Bank account nos. xxx5239 and xxx0210 to
Bennett as her separate property
The court awarded to Bennett as her separate property her
“S-Corp, inclusive of Chase Bank Account No. xxx5239 and Chase
Bank Account No. xxx0210.” The court did not articulate its
reasoning for this ruling. We conclude the court erred in failing
to determine whether some portion of the S-Corporation’s profits
contained within these accounts should be apportioned to the
community.
According to Bennett’s testimony at trial, prior to her
marriage to Gardner, she opened Chase Bank account nos.
xxx0210 (a checking account) and xxx5239 (a savings account),
and her initial deposits into account no. xxx5239 consisted of an
inheritance from her late first husband totaling an amount
greater than $50,000 but lower than $100,000. Bennett testified
she thereafter deposited into those two accounts the payments
she earned as a freelance writer through her S-Corporation titled
“Andrea Bennett, Inc.,” which business she claimed to have
incorporated in 2011. Bennett further testified she earned
income from this business both before and during her marriage to
Gardner. Neither side directs us to any evidence showing the
balances of Chase Bank account nos. xxx0210 and xxx5239 on the
date of Bennett’s marriage to Gardner.
Bennett also testified that prior to her marriage to
Gardner, Bennett saved $195,000 in Chase Bank account
no. xxx5239 (the savings account), which she asserted were
separate property funds “inclusive of money [she] inherited from
[her] first marriage and money earned from [her] S-Corp prior to
[her] marriage” to Gardner. She admitted at trial she did not
18
have any documentary proof supporting her assertion she had
saved $195,000 prior to marrying Gardner. Bennett stated that
on June 30, 2014, she used the $195,000 in premarital savings
from her Chase Bank account no. xxx5239 to open Schwab
account no. xxx1094. (See Discussion, part B.2, post [discussing
the family court’s characterization of Schwab account no.
xxx1094].)
On appeal, Gardner argues, “The profits from [Bennett’s]
business during marriage” deposited into Chase Bank account
nos. xxx0210 and xxx5239 “are community property.” (Boldface
& some capitalization omitted.) Gardner claims the funds
Bennett deposited into these accounts are “community property
earnings during marriage,” and that she “commingl[ed]” those
funds “with her claimed separate property savings before
marriage.” Further, according to Gardner, “the evidence
established that during the marriage, account #0210 dropped to
$507.98 [citation], and account #5239 dropped to $10.95,”
whereas “[a]s of October 1, 2019, shortly after the date of
separation, account #0210 had a balance of $95,997.60 and
account #5239 had a balance of $37,091.89.” Gardner thus
maintains he “is entitled to one half of the balances in the[se two
a]ccounts as of the date of separation” because the funds therein
consisted of “income from [Bennett’s] personal services as a
freelance writer during the marriage” that had been commingled
with separate property funds, the latter of which “had been
exhausted during the marriage.”
Bennett acknowledges that “any . . . monies in [these two]
account[s]” deposited after the initial pre-marriage deposits
totaling “between $50,000.00 and $100,000.00” were “earned from
[her] separate property business[,] specifically, from freelance
19
writing payments received . . . .” Bennett, however, intimates
there was no community interest in the two accounts because
Bennett’s “opinion was [that] the value of the business was [the]
same at trial as at date of [the] marriage.” The portion of the
reporter’s transcript cited by Bennett contains the following
colloquy:
“Q. . . . Is your opinion of the value of Andrea
Bennett, Inc., today the same as when you were
married, your date of marriage February 2013?
“A. I don’t know the amount that is in the account
now versus the amount that was there on the date of
my marriage. The value of the business is likely the
same, but the amount of money in the accounts is
likely different.
“Q. In your opinion, why is the value of the business
the same from 2013 to today’s date?
“A. Because that’s a business that I’ve maintained
for nearly 25 years.”
As noted above, each party takes a maximalist approach,
with Gardner asserting the earnings from Bennett’s freelance
business during the marriage are entirely community property,
and Bennett claiming they are entirely separate property.
The court declared the business, inclusive of Chase Bank
account nos. xxx0210 and xxx5239, to be Bennett’s separate
property. Because the court failed to issue a statement of
decision explaining its rationale for this award to Bennett, we
cannot review its ruling under the doctrine of implied findings.
(See Discussion, part A, ante.)
Furthermore, we lack sufficient information to determine
in the first instance whether, and if so, to what extent, the
20
community has an interest in the two accounts. (See, e.g., In re
Marriage of Dekker (1993) 17 Cal.App.4th 842, 851 [indicating
that if “a [spouse] owns a separate property business and devotes
[the spouse’s] efforts to the enterprise,” then “an apportionment
of the profits” between the separate and community estates is
appropriate]; Beam v. Bank of America (1971) 6 Cal.3d 12, 18
[holding that a court “ ‘may select [whichever method of
allocation of profits] will achieve substantial justice between the
parties’ ”].) Although Gardner acknowledges the family court
“must ‘determine what portion of the profits . . . arises from the
use of [the spouse’s] capital and what part arises from the
activity and personal ability of the spouse[,]’ ” he offers no
analysis or citation to authority to support his position that none
of Bennett’s business income during marriage is her separate
property. Similarly, Bennett offers no citation to authority
supporting her claim that because she opined the value of the
business was the same at trial as it was at the date of marriage,
the community has no interest in the earnings from her freelance
writing business.7
We thus leave this property characterization and valuation
issue to the court to resolve on remand. The court is directed to
articulate the legal and factual basis for its ruling as to Chase
Bank account nos. xxx5239 and xxx0210. Nothing in our opinion
bars the court from requesting further argument and evidence
7 Because the court did not explain the legal and factual
basis for its ruling that the two accounts in question are
Bennett’s separate property, we cannot infer the court credited
her testimony as to the value of the business. (See Discussion,
part A, ante.)
21
from the parties regarding whether and to what extent the
community has an interest in these two accounts.
2. The court erred in awarding Schwab account
nos. xxx1094, xxx6584, and xxx4324 and Schwab
IRA account no. xxx1574 to Bennett as her
separate property
The court awarded Bennett, as her separate property,
Schwab account nos. xxx1094, xxx6584, and xxx4324, along with
Schwab IRA account no. xxx1574.
The record contains evidence tending to show the source of
the funds for all four accounts was the initial $195,000 deposit
from Chase Bank account no. xxx5239 to Schwab account
no. xxx1094 on June 30, 2014. (See Discussion, part B.1, ante
[discussing evidence relating to the initial deposit into Schwab
account no. xxx1094].) Bennett testified that in August 2014, she
opened Schwab account no. xxx6584 with a $100,000 deposit from
Schwab account no. xxx1094.8 Gardner acknowledges in his
opening brief that Bennett opened Schwab account no. xxx4324
in 2016; Bennett testified at trial the initial source of the funds
for Schwab account no. xxx4324 was the $195,000 deposit into
account no. xxx1094. Similarly, Gardner acknowledges Bennett
opened Schwab IRA account no. xxx1574 in 2017, which Bennett
testified she opened with funds originating from the initial
$195,000 deposit.
8 The court admitted into evidence trial exhibit No. 18,
which is a Schwab account statement showing account no.
xxx1094 was the source of the August 2014 deposit of $100,000
into account no. xxx6584.
22
Because the court did not issue a statement of decision
explaining why the court awarded all four Schwab accounts to
Bennett as her separate property, we cannot infer the court
credited this evidence connecting these four accounts to the
$195,000 deposit from Chase Bank account no. xxx5239 in
June 2014. (See Discussion, part A, ante.) Additionally, if the
court did rely upon Bennett’s testimony connecting the Schwab
accounts to Chase Bank account no. xxx5239 when the court
awarded these Schwab accounts to Bennett as her separate
property, we cannot presume the court determined whether, and
to what extent, the freelance writing payments earned during
marriage that Bennett deposited into Chase Bank account
no. xxx5239 should be allocated to the community. (See
Discussion, part B.1, ante.) That determination as to the
community’s potential interest in the freelance payments could
ultimately affect the value of any community interest in the four
Schwab accounts. Accordingly, we reverse the award of the four
Schwab accounts to Bennett as her separate property, and direct
the court to determine upon remand whether, and, to what
extent, the community has an interest in the Schwab accounts.
Gardner advocates the proper appellate remedy is to direct
the family court to “modify the [j]udgment to reflect” that Schwab
account nos. xxx1094, xxx6584, and xxx4324 and Schwab IRA
account no. xxx1574 “and any funds they contain are community
property.” He invokes Family Code section 760’s “basic
presumption that, except as otherwise provided by statute, all
property acquired by a married person during marriage, while
domiciled in California, is community property.” (See Ciprari,
supra, 32 Cal.App.5th at p. 91.) According to Gardner, to
overcome this presumption, “[Bennett] was required to trace her
23
separate property before marriage (inheritance and saved
earnings), as well as the withdrawal or transfer during the
marriage to the Schwab Accounts and Schwab IRA.” He contends
Bennett “failed to produce any such evidence and her testimony
alone does not meet this exacting burden” because her testimony
was not corroborated by any “records or expert testimony . . . .”9
As we explain below, Gardner has not shown the heightened
record keeping requirement to rebut the community property
presumption applies to Chase Bank account no. xxx5239 — which
Bennett claimed was the source of the $195,000 deposit into
Schwab account no. xxx1094 — or to any of the four Schwab
accounts at issue.
“The need for specific records and documents to trace
funds” to rebut “the general presumption that property acquired
during marriage is community property” “arises when there is a
commingled account,” that is, the “commingling of separate and
9 Gardner also argues, “[Bennett’s] testimony was
admittedly unreliable due to the difficulty of recalling how she
earned, spent, and saved money over a decade ago.” Insofar as
Gardner maintains no rational factfinder could credit Bennett’s
testimony regarding the sources of funding for the four Schwab
accounts, Gardner has forfeited that contention by failing to
support it with analysis and citation to legal authority. (See In re
Jordan R. (2012) 205 Cal.App.4th 111, 136 [holding that a
factfinder’s credibility determinations may be set aside only if it
is “physically impossible for the [witness’s] statements to be true,
or their falsity [is] apparent without resorting to inferences or
deductions”]; County of Los Angeles v. Niblett (2025)
116 Cal.App.5th 454, 466 (Niblett) [“ ‘ “[W]e may disregard
conclusory arguments that are not supported by pertinent legal
authority or fail to disclose the reasoning by which the appellant
reached the conclusions he wants us to adopt.” ’ ”].)
24
community funds . . . .” (See In re Marriage of Ficke (2013)
217 Cal.App.4th 10, 25 (Ficke).) “A burden of recordkeeping
logically arises out of the very act of commingling funds during
marriage so the general community property presumption is not
thwarted.” (See ibid.) “ ‘[I]f the separate property and community
property interests have been commingled in such a manner that
the respective contributions cannot be traced and identified, the
entire commingled fund will be deemed community property
pursuant to the general community property presumption of
[Family Code] section 760.’ [Citations.]” (See Ciprari, supra,
32 Cal.App.5th at pp. 91–92 & fn. 5, italics added.)
“ ‘Generally, either of two tracing methods may be used to
characterize disputed property interests [and thereby rebut the
general community property presumption] — “direct tracing” or
“family living expense tracing” ’ [citation].” (See Ciprari, supra,
32 Cal.App.5th at pp. 95–96.) The first method “requires
(a) documentary proof that sufficient separate property funds
were available in the account at the time of purchase and
(b) proof that the spouse making the purchase intended to use
separate, rather than community, funds.” (See ibid.) The second
method requires a “showing that . . . all community property
funds were exhausted at the time the purchase or payment at
issue was made [such that] separate property funds necessarily
must have been used.” (See id. at p. 96.)
Conversely, a court may rely solely on the “testimony of a
single witness, even a party in a divorce case,” that separate
property funds in an account were not commingled with
community funds, such that heightened record keeping
requirements are inapplicable. (See Ficke, supra,
217 Cal.App.4th at p. 27.)
25
In arguing that Bennett could not rely upon her testimony
to trace the initial deposit of $195,000 in Schwab account
no. xxx1094 to Chase Bank account no. xxx5239, Gardner
appears to treat Chase Bank account no. xxx5239 as if it were a
commingled account, the contents of which are presumptively
community property unless Bennett complies with heightened
record keeping requirements. Indeed, in connection with Chase
Bank account nos. xxx5239 and xxx0210, he claims all “the
profits from [Bennett’s] business during marriage are community
property” (boldface & some capitalization omitted), and because
Bennett supposedly “commingl[ed] . . . her community property
earnings during marriage with her claimed separate property
savings before marriage,” the full balances of both Chase Bank
accounts belong to the community.
In our Discussion, part B.1, ante, we have rejected
Gardner’s argument as to the S-Corporation’s two Chase Bank
accounts. Further, even if the community does have an interest
in the two Chase Bank accounts, this case still would not involve
the paradigm of commingling in which a spouse deposits
intramarital salary and other employment compensation into an
account containing separate property funds. (See, e.g., Ciprari,
supra, 32 Cal.App.5th at pp. 89–91, 101 [describing such a
scenario and noting the husband in that case offered a “detailed
tracing analysis” in an attempt to rebut the general community
property presumption].) At no point on appeal does Gardner
address whether heightened record keeping tracing requirements
apply when the alleged source of separate property funds is an
account that may contain an unapportioned community interest
in intramarital business profits (i.e., Chase Bank account
no. xxx5239).
26
Accordingly, Gardner has not shown he is entitled, as a
matter of law, to a judgment awarding to the community the
entirety of Schwab IRA account no. xxx1574 and Schwab account
nos. xxx1094, xxx6584, and xxx4324 pursuant to the general
community property presumption. We express no opinion on how
the court should characterize these accounts. We simply
conclude Gardner has not met his burden of demonstrating he is
entitled to an order directing the court to characterize these
accounts as community property. (See Discussion, part B, ante
[noting at the outset of this part that Gardner bears the burden
of showing his entitlement to judgment in his favor as a matter of
law].)
In sum, we reverse the award of Schwab account
nos. xxx1094, xxx6584, and xxx4324 and Schwab IRA account
no. xxx1574 to Bennett as her separate property, and remand the
matter to the court for further proceedings to ascertain the
characterization of these accounts and issue a statement of
decision articulating the factual and legal bases for its
characterizations of these accounts.
3. The court erred in awarding the Rolex watch to
Bennett as separate property
The family court ruled, “With respect to all . . . jewelry
[other than the parties’ wedding rings], the court finds all [such]
other jewelry to be the separate property of the spouse in
possession of such jewelry and awards all [such] other jewelry to
the spouse presently in possession of said jewelry without offset
o[r] equalization.”
At trial, the court heard evidence that Bennett purchased a
Rolex watch on August 19, 2013, that is, approximately six
months into her marriage to Gardner. (Factual & Procedural
27
Background, ante [noting the parties were married in Feb. 2013].)
Bennett testified she traded in jewelry from her first marriage to
cover $1,945.80 of the purchase price. Bennett also provided
testimony indicating that she paid the remaining $7,567 of the
purchase price out of one or both of her bank accounts associated
with her S-Corporation, that is Chase Bank account nos. xxx0210
and/or xxx5239. (See Discussion, part B.1, ante [identifying those
two accounts].) Additionally, it can be inferred from Bennett’s
testimony that her income during the first six months of her
marriage would not have been sufficient for her to purchase the
watch, thereby suggesting she used at least some premarital
funds for the acquisition.
Gardner asks us to “modify the [j]udgment to reflect a
community property interest of $7,567 in the Rolex watch.” He
contends, “[Bennett] did not offer any documentary evidence
establishing the date of the alleged transfer or tracing the funds
to a separate property source.” Gardner further contends,
“[E]ven if [Bennett] had established the funds came from” one or
both of the Chase Bank accounts associated with her
S-Corporation, those accounts were “commingled” such that the
Rolex watch acquired with the funds should be deemed
community property.
As we explained in our Discussion, part B.1, ante, the court
must determine in the first instance on remand whether to
allocate to the community a portion of the intramarital freelance
writing payments deposited into the two Chase Bank accounts.
Because Bennett testified she used $7,567 from one or both of
those accounts to acquire the Rolex watch, on remand, the lower
court must determine whether to credit that testimony and to
what extent, if any, the community has an interest in the watch.
28
Gardner fails to show Bennett’s testimony would not be a
legally sufficient basis upon which the court could find the Chase
Bank accounts were the source of funds used to purchase the
Rolex. The statutory community property presumption required
Bennett to produce specific records tracing the watch to separate
property only if the funds used to purchase that asset came from
a commingled account. (See Discussion, part B.2, ante.) Gardner
has not shown that the funds in the Chase Bank accounts were
subject to that heightened record keeping tracing requirement.
(See ibid.) Therefore, he fails to demonstrate, as a matter of law,
that he is entitled to a judgment awarding the community an
interest of $7,567 in the Rolex watch. We express no opinion on
who would prevail upon remand regarding whether the
community has an interest in the watch.
We thus reverse the family court’s finding that the Rolex
watch is entirely Bennett’s separate property, and direct the
court to reconsider that determination after assessing whether
Bennett’s earnings from her S-Corporation during marriage
should be apportioned in whole or in part to the community.
4. Remand is necessary as to the court’s award of
the wedding ring to Bennett as her separate
property
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.” (Fam. Code, § 852, subd. (a).)
Subdivision (c) of the statute states in relevant part: “This
section does not apply to a gift between the spouses of . . .
jewelry . . . that is used solely or principally by the spouse to
29
whom the gift is made and that is not substantial in value taking
into account the circumstances of the marriage.” (Id., subd. (c).)
The court found that Gardner and Bennett “exchanged
wedding rings with one another after marriage,” the two “gave
and received the aforementioned wedding rings as gifts,” and,
because the “wedding rings are gifts within the meaning of
Family Code §852(c)[,] . . . [Bennett’s] wedding ring and
[Gardner’s] wedding ring [were] awarded to the party [then] in
possession of said ring without offset or equalization.” The court
did not find that Gardner made the written declaration as
specified in Family Code section 852, subdivision (a).
On appeal, Gardner does not dispute the court’s finding
that both wedding rings were gifts. Instead, he correctly points
out the court did not make “any express finding as to whether the
ring was or was not a ‘gift of substantial value’ ” such that there
was a valid transmutation under Family Code section 852,
subdivision (c), “nor [did the court] cite to any evidence
supporting such a finding.” Because the court failed to explain
its rationale for awarding the wedding ring to Bennett without
offset or equalization, we cannot apply the doctrine of implied
findings to the order awarding the wedding ring to Bennett. (See
Discussion, part A, ante.)
Gardner argues we should “modify the [j]udgment to reflect
a reimbursement to [Gardner] for his separate property
contribution of $17,300 to the purchase of [Bennett’s] wedding
ring.”
On appeal, Gardner claims he testified that “he contributed
approximately $17,300 in separate property funds to the purchase
of [Bennett’s] wedding ring.” (Italics added.) In the excerpts of
his testimony he cites, however, Gardner did not identify the
30
source of those purported separate property funds. Additionally,
under the substantial evidence standard, the court did not have
to credit Gardner’s testimony. (See Ciprari, supra,
32 Cal.App.5th at p. 94 [“ ‘In a substantial evidence challenge to
a judgment, . . . . [w]e may not reweigh the evidence and are
bound by the trial court’s credibility determinations.’ ”].)
Next, on appeal, Gardner contends Bennett testified, “[T]he
circumstances of the marriage were such that the Rolex watch
she purchased shortly after marriage for $7,000 was substantial
in value because she would not have earned enough money to
cover it during the first six months of her marriage.”10 He
apparently contends this testimony conclusively establishes
“[Gardner’s] contribution of $17,300 [towards the wedding ring]
shortly after the marriage would also be substantial in value.”
Because Gardner does not sufficiently analyze the couple’s
financial circumstances at the time of the purchase of Bennett’s
wedding ring, he fails to demonstrate affirmatively the absence of
substantial evidence of transmutation under Family Code
section 852, subdivision (c).
Accordingly, Gardner has not shown his entitlement, as a
matter of law, to reimbursement of $17,300 for Bennett’s wedding
ring.11 We direct the family court to prepare a revised statement
10 Although Gardner intimates in the quotation
accompanying this footnote that the Rolex watch cost only
$7,000, we explained in our Discussion, part B.3, ante, Bennett’s
testimony indicates she acquired the watch by paying $7,567 in
cash and trading in $1,945.80 in jewelry.
11 We note that at the close of trial, the court remarked,
“As to the rings, you have got 17 — [ap]proximately 17- to
$20,000 in contribution from [Gardner] toward the wedding ring.
31
of decision setting forth its factual and legal findings regarding
the wedding ring.
5. We affirm the family court’s determination that
the community had an interest of $15,420.39 in
Gardner’s USAA Federal Saving Bank account
no. xxx937-4
The parties agree their date of separation was
August 31, 2019. “The earnings and accumulations of a
spouse . . . after the date of separation of the spouses[ ] are the
separate property of the spouse.” (See Fam. Code, § 771,
subd. (a).)
The family court found the community had an interest of
$15,420.39 in Gardner’s USAA Federal Saving Bank account
no. xxx937-4. Gardner argues, “This amount came from
[Gardner’s] Schedule of Assets and Debts, filed December 9, 2019.
[Citation.] However, during trial, the court admitted into
evidence an account statement for the period ending
September 5, 2019 (shortly after separation) reflecting a balance
of $5,771.67.” According to Gardner, because “[t]he September 5
statement is the best documentary proxy for the date-of-
separation value,” “the judgment should be modified to reflect a
community interest of $5,771.67 in account #937-4.”
Gardner does not dispute — and thus tacitly agrees with —
Bennett’s assertions that (1) the USAA Federal Saving Bank
statement for the account as of September 5, 2019 was only “a
partial [account] statement” and (2) Gardner offered no testimony
explaining “the nearly $10,000.00 difference between” the
That seems to be in line with — it is not outside the ballpark for
their apparent income when it comes to that kind of item . . . .”
32
$15,420.39 balance shown on his December 9, 2019 schedule of
assets and debts and the $5,771.67 balance shown on the
September 5, 2019 partial account statement.12 These
undisputed facts constitute substantial evidence that the
September 5, 2019 partial account statement was not reliable
evidence of the balance of the account as of August 31, 2019. Put
differently, a reasonable factfinder could infer that Gardner may
have transferred certain funds out of that account after
August 31, 2019 and redeposited them into the account prior to
December 9, 2019. (See Ciprari, supra, 32 Cal.App.5th at p. 94
[holding that under the substantial evidence standard, all
reasonable inferences are drawn in favor of the judgment and the
reviewing court does not reweigh the evidence].)
We thus reject Gardner’s assertion the court had to believe
the $5,771.67 balance in the September 5, 2019 partial account
statement. Rather, applying the doctrine of implied findings (see
fn. 6, ante), we conclude the court rejected Gardner’s reliance on
the September 5, 2019 partial account statement and that
substantial evidence supported the court’s decision not to rely on
that partial statement. We affirm the court’s ruling that the
community has an interest of $15,420.39 in USAA Federal
Saving Bank account no. xxx937-4.
12 (See Association for Los Angeles Deputy Sheriffs, supra,
94 Cal.App.5th at pp. 773–774 [holding that the appellants
“tacitly concede[d]” a point raised in the respondents’ brief by
“failing to dispute it in their reply”].)
33
6. Remand is necessary as to the court’s award of
Fidelity IRA account no. xxx2240 to Bennett as
her separate property
The court awarded Fidelity IRA account no. xxx2240 to
Bennett as her separate property. In her final declaration of
disclosure dated October 20, 2023 that was admitted into
evidence as trial exhibit No. 2, Bennett stated she opened this
account in 2018. Gardner acknowledges in his opening brief
Bennett testified at trial that “the Fidelity IRA was a rollover
account from a job she had prior to marriage, and that she made
no deposits during the marriage.” The court’s failure to provide
an adequate statement of decision prevents us from inferring it
relied on Bennett’s testimony.
Gardner maintains we should direct the court to modify the
judgment to designate the Fidelity IRA account as community
property because Bennett’s testimony is insufficient, as a matter
of law, to overcome Family Code section 760’s community
property presumption. As we explained in our Discussion
part B.2, ante, “The need for specific record tracing arises when
there is a commingled account.” (See Ficke, supra, 217
Cal.App.4th at p. 25.) Gardner does not direct us to any evidence
showing this Fidelity IRA account, or the retirement account
from which the funds deposited into the Fidelity IRA account
originated, contained commingled funds. We thus cannot
conclude on this record that Family Code section 760 required the
court to characterize the Fidelity IRA account as community
property. We thus direct the court on remand to provide an
adequate statement of decision on the characterization of this
Fidelity IRA account.
34
7. Any failure on the part of the court to articulate
sufficiently its rationale for valuing the
community interest in Chase Bank account
no. xxx7946 at $21,698 was harmless
The court ruled the community has an interest of
$21,698.00 in Chase Bank account no. xxx7946. Gardner
complains the court “failed to credit the community interest in
[this account] by $5,500 for [Bennett’s] intra-marital transfer to
her Vanguard IRA [account].”
In response, Bennett claims, inter alia, she had transferred
the $5,500 to Vanguard IRA account no. xxx9925. She correctly
points out the court had ordered the community interest in this
IRA account to be divided pursuant to a QDRO. Bennett
maintains, “Said division will result in a division of any
community interest in this account, including any deposits or
transfers made during the marriage.” Put differently, according
to Bennett, “upon completion of the [QDRO] for Vanguard IRA
[account no.] xxx9925, [Gardner] will be fully compensated [as to]
his requested $5,500.00 reimbursement . . . .”
In his reply, Gardner does not rebut Bennett’s contentions
(1) she deposited the $5,500 into Vanguard IRA account
no. xxx9925, and (2) he will be fully compensated for that
transfer upon the completion of the QDRO.
Because we deem the parties to have agreed the court
did not erroneously exclude $5,500 from the community estate
because the Vanguard IRA will be subject to a QDRO (see fn. 12,
ante), any failure by the court to set forth sufficiently the legal
and factual basis for not increasing the community’s interest in
Chase Bank account no. xxx7946 by $5,500 was harmless. (See
Discussion, part B, ante [noting at the outset of this part the
35
failure to issue a statement of decision can constitute harmless
error].) We thus affirm this ruling.13
C. The Family Court Erred In Ordering Gardner To
Reimburse Bennett $25,000 for Bail
On appeal, Gardner argues the family court erred in
ordering him to reimburse Bennett $25,000 for his posting bail.
He contends Bennett did not satisfy her burden of showing he
used community funds to post bail.14 Indeed, he asserts, “[N]o
testimony was offered [showing] that such [bail] payment was
made from community funds . . . .”
The court found “[Gardner] posted bail in the amount of
$50,000.00 to obtain pre-trial release from jail following his
arrest” and “[Gardner] was unable to trace the payment of this
13 Gardner argues for the first time in his reply brief that
if we do not increase the community interest in Chase Bank
account no. xxx7946 by $5,500, we should modify the judgment to
“reflect that a QDRO must occur and properly account for
[Bennett’s] undisputed intramarital transfer of $5,500” to the
Vanguard IRA account. As we noted earlier, the judgment
already calls for the preparation of a QDRO for Vanguard IRA
account no. xxx9925. In any event, Gardner forfeits this request
by belatedly raising it and failing to support it with analysis or
citation to authority. (See Niblett, supra, 116 Cal.App.5th at
p. 475.)
14 Gardner further argues the doctrine of implied findings
does not apply to the reimbursement order because the family
court failed to address adequately that issue in its statement of
decision. We do not reach that question because even if the
doctrine of implied findings governed our review of that order, we
would still conclude the court erred in ordering Gardner to
reimburse Bennett for the bail money.
36
bail money to a separate property source.” The court thus placed
the burden on Gardner to show he paid the bail with his separate
property funds. This was error. Bennett bore the burden of
demonstrating Gardner misappropriated or misused community
assets for his personal benefit. (See In re Marriage of Feldner
(1995) 40 Cal.App.4th 617, 625 [holding that “the aggrieved
spouse” seeking “reimbursement to the community for losses
caused by separate conduct of one spouse” must make an
“affirmative showing” the spouse who incurred the losses engaged
in “intentional conduct not benefiting the community”].) She
did not satisfy that burden.
In her appellate brief, Bennett does not direct us to any
evidence Gardner used community property funds to post bail.15
Instead, she cites her testimony that she “believe[d]” the amount
of bail paid was $50,000, but she did not specify the source of the
payment. She also cites Gardner’s testimony that (1) he paid
only $25,000 for bail, (2) he made the payment from certain
unspecified separate property investments, but (3) he could not
otherwise “remember where [he] got the money.”
Bennett’s failure to identify any evidence tracing Gardner’s
bail payment to a community source is fatal to her claim for
reimbursement. We thus reverse the order requiring Gardner to
reimburse Bennett $25,000 for the bail payment and direct the
15 “ ‘ “ ‘Although it is the appellant’s task to show error,
there is a corresponding obligation on the part of the respondent
to aid the appellate court in sustaining the judgment.’ ” ’ ”
(Association for Los Angeles Deputy Sheriffs, supra,
94 Cal.App.5th at p. 787, fn. 19.) We are not “obligate[d] . . . to
scour the record” to search for evidence supporting the judgment.
(See id. at p. 802.)
37
court to issue a modified judgment omitting that order. (See
Regalia, supra, 172 Cal.App.4th at p. 370 [“ ‘If the record
indicates what the proper judgment . . . should have been, the
appellate court can reverse with directions to enter that
judgment . . . .’ ”].)
D. Although We Affirm the Court’s Decision To Award a
Sanction Under Family Code Section 271, We
Reverse the Amount of the Sanction and, to the
Extent Bennett Used Community Funds To Pay Her
Civil Attorneys, the Court Must Adjust Any
Equalization Payment Accordingly
Family Code section 271, subdivision (a) provides:
“Notwithstanding any other provision of this code, the court may
base an award of attorney’s fees and costs on the extent to which
any conduct of each party or attorney furthers or frustrates the
policy of the law to promote settlement of litigation and, where
possible, to reduce the cost of litigation by encouraging
cooperation between the parties and attorneys. An award of
attorney’s fees and costs pursuant to this section is in the nature
of a sanction. In making an award pursuant to this section, the
court shall take into consideration all evidence concerning the
parties’ incomes, assets, and liabilities. The court shall not
impose a sanction pursuant to this section that imposes an
unreasonable financial burden on the party against whom the
sanction is imposed. In order to obtain an award under this
section, the party requesting an award of attorney’s fees and
costs is not required to demonstrate any financial need for the
award.” (Fam. Code, § 271, subd. (a).)
The family court awarded Bennett $70,000 in sanctions
pursuant to Family Code section 271, which the court found were
38
the attorney fees and costs Bennett incurred “with her civil
counsel, Freedman & Taitelman,” in defending against Gardner’s
civil action. The court identified three independent bases for its
decision, each of which “merit[ed] sanctions”: (1) the civil action
Gardner brought against Bennett “frustrated the public policy of
the state to promote settlement of litigation[ and was] frivolous”;
(2) Gardner’s motion to set aside the support and Astro
stipulations likewise “frustrated the public policy of the state to
promote settlement of litigation[ and was] frivolous”; and
(3) Gardner’s failure to respond to a settlement offer from
Bennett from January 14, 2020 to May 2023 “frustrated the
public policy of the state to promote settlement of
litigation . . . .”16
We conclude Gardner fails to demonstrate the court erred
in ruling Bennett was entitled to sanctions under Family Code
section 271 based on its finding the civil action and motion to set
aside the stipulations were frivolous. (Discussion, part D.2,
post.)17 We, however, hold the court erred in setting the sanction
at $70,000 in contravention of the lower amount her civil
attorneys billed her. (Discussion, part D.3, post.) Finally, on
remand the court must adjust any equalization payment if
Bennett used community funds to pay her civil attorneys.
(Discussion, part D.4, post.) Before discussing these issues, we
16 We note Gardner acknowledges in his opening brief the
family court determined the “filing [of] the Civil Complaint and
the Motion to Set Aside” “frustrated the public policy of the state
to promote settlement of litigation” and were “ ‘frivolous.’ ”
17We thus do not address whether Gardner’s delay in
responding to Bennett’s settlement offer was sanctionable under
Family Code section 271.
39
set forth the standard governing our review of the sanctions
award.
1. The applicable standard of review
“We review an award of attorney fees and costs under
[Family Code] section 271 for abuse of discretion. [Citation.] . . .
We review any factual findings made in connection with the
award under the substantial evidence standard.” (In re Marriage
of Fong (2011) 193 Cal.App.4th 278, 282, fn. 1, 291 (Fong).) An
aspect of the substantial evidence standard is “ ‘the doctrine of
implied findings[,]’ ” which provides that “ ‘the reviewing court
must infer . . . that the trial court impliedly made every factual
finding necessary to support its decision.’ [Citation.]” (See
Thompson, supra, 6 Cal.App.5th at p. 981.) Furthermore,
“ ‘regardless of the applicable standard of review[,]’ ” “ ‘ “ ‘ “it is
the appellant’s responsibility to affirmatively demonstrate
error” ’ ” by “ ‘ “supply[ing] the reviewing court with some cogent
argument supported by legal analysis and citation to the
record.” ’ [Citation.]” [Citations.]’ . . . [Citation.]” (See Niblett,
supra, 116 Cal.App.5th at p. 463.)
Gardner argues the doctrine of implied findings does not
apply here because the court did not issue an adequate statement
of decision.
Code of Civil Procedure section 632 requires the issuance of
a timely requested statement of decision for the “trial of issues
that could have been raised in the pleadings,” and not for an
award of “attorney fees and costs under [Family Code]
section 271 . . . .” (See Fong, supra, 193 Cal.App.4th at pp. 278,
294, 296–297.) Thus, even as to sanctions imposed under Family
Code section 271 after holding “an extensive evidentiary
hearing,” no statement of decision is required to support the
40
sanctions award. (See Fong, at pp. 294, 296–297.) Fong reasoned
Code of Civil Procedure section 632’s “references to ‘trial’ suggest
that a statement of decision is required only in the event of a
trial, as that term is commonly understood.” (See Fong, at p. 294,
italics added.)
Although the family court heard evidence supporting
Bennett’s request for sanctions under Family Code section 271 at
trial, Gardner does not argue cogently that adjudication of
Bennett’s sanctions request was a “trial of a question of fact” for
purposes of Code of Civil Procedure section 632. (See Code Civ.
Proc., § 632; see also Fong, supra, 193 Cal.App.4th at p. 294
[“Code of Civil Procedure section 632 requires a statement of
decision, if one is timely requested, only ‘upon the trial of a
question of fact by the court.’ ”].) It is also not apparent to us the
applicability of Code of Civil Procedure section 632 hinges on the
mere happenstance the court did not elect to consider Bennett’s
request for sanctions in a separate hearing.
In sum, we conclude Gardner fails to discharge his
appellate burden to establish the family court erred in declining
to issue a statement of decision regarding its award of attorney
fees and costs under Family Code section 271. It follows the
doctrine of implied findings applies to our review of that award.
2. Gardner fails to show the court erred in
concluding his civil action and motion to set
aside the stipulations merited sanctions under
Family Code section 271
As we noted in our Factual and Procedural Background,
ante, Gardner moved to set aside the Astro and support
stipulations and filed a civil action against Bennett alleging
causes of action for intentional infliction of emotional distress,
41
intentional interference with a prospective economic advantage,
tortious interference with contractual relations, breach of
fiduciary duty, and extortion. To establish the court erred in
finding Gardner’s civil action and motion to set aside were
frivolous, Gardner must affirmatively demonstrate there is no
substantial evidence demonstrating that the civil action and
motion were “ ‘so devoid of merit that no reasonable person would
have pursued [them].’ [Citation.]” (See Featherstone v. Martinez
(2022) 86 Cal.App.5th 775, 785, fn. 8 [discussing the type of
frivolous conduct that may give rise to sanctions under Fam.
Code, § 271]; see also Discussion, part D.1, ante [explaining that
Gardner must affirmatively demonstrate the absence of
substantial evidence supporting the family court’s findings].)
Gardner fails to make that showing.
First, the court found it had previously addressed many of
the allegations underlying Gardner’s civil action in denying his
prior request for a domestic violence restraining order. It is
undisputed the court denied Gardner’s request for the restraining
order on April 1, 2021, long before (1) he filed the civil action in
February 2022, and (2) the 2024 trial of those claims in the
family law action. (See Factual & Procedural Background, ante
[discussing the procedural history of the case].) Gardner does not
contest the court’s finding that his civil claims were based in part
on allegations supporting his unsuccessful request for a
restraining order, nor does he explain why that finding does not
support the court’s ruling his civil action was frivolous.
Second, it is undisputed Gardner’s civil claim for tortious
interference with contractual relations was based in part on his
allegation that “[Bennett] interfered with [Gardner’s] then-
existing employment with Morrison Foerster” by “fabricating that
42
[Gardner] burglarized [Bennett’s] home.” There is no dispute
that at trial, Gardner’s former supervisor at Morrison Foerster
testified the firm terminated him on January 28, 2020 because of
a poor annual performance evaluation. This evidence tends to
prove Gardner should have known the tortious interference claim
lacked merit after he saw that annual performance evaluation.18
Third, the family court found the perjury and fraud
allegations Gardner offered in support of his motion to set aside
the Astro and support stipulations were “clearly” time-barred.
Gardner does not challenge this finding, which lends further
support to the court’s finding his motion to set aside the
stipulations was frivolous.
Lastly, the only evidence Gardner cites in support of his
claim that the civil action and motion to set aside the stipulations
were not frivolous is his former family law attorney’s “testimony
regarding [Gardner’s] claim of duress and civil extortion.”
18 Gardner vaguely testified at trial the annual
performance evaluation (exhibit No. 24) “was not officially given
to [him].” Nevertheless, Gardner answered in the affirmative
when the court asked whether Gardner “recognize[d] that
[document] as [Gardner’s] performance evaluation,” which the
court reasonably could have construed as an admission Gardner
had seen the exhibit at some point before the court tried his
tortious interference with contractual relations
claim. Furthermore, attached to his December 2021 declaration
accompanying his motion to set aside the Astro and support
stipulations is a memorandum from Morrison Foerster stating
the firm terminated Gardner “as a result” of his annual
evaluation. Thus, before he filed the civil action in
February 2022, Gardner was apparently aware of Morrison
Foerster’s position that he had been terminated for the reasons
stated in the annual performance evaluation.
43
Although Gardner acknowledges on appeal his former counsel
admitted “no one made an explicit threat” to elicit Gardner’s
consent to the stipulations, he claims his former attorney
testified that “the risk of prosecution directly impacted
[Gardner’s] livelihood and was the basis on which he agreed to
terms that heavily favored [Bennett].” Gardner contends his
attorney testified that in her “opinion as a certified Family Law
Specialist, [Gardner] gave up more spousal support rights than
he would have had to relinquish ‘on his worst day in court,’ and
did so solely ‘in exchange’ for [Bennett’s] acknowledgement of his
ownership of Astro.” Gardner asserts Bennett later “ ‘completely
reneged on what had been agreed upon’ ” by telling law
enforcement Astro was not Gardner’s separate property and
testifying at the preliminary hearing in the burglary case that
Astro was a family pet.
Gardner’s former attorney’s testimony arguably would have
been relevant to his allegations of perjury and fraud had the
claims not been time barred. Yet, Gardner provides no legal
analysis or citation to authority supporting the proposition that
evidence (1) Gardner signed the stipulations to avoid criminal
liability and (2) Bennett later purportedly frustrated that
purpose give rise to colorable claims for duress and civil
extortion. He thus fails to rebut the presumption of correctness
accorded to the court’s finding that those claims were frivolous.
(See Cruz v. Tapestry, Inc. (2025) 113 Cal.App.5th 943, 954
(Cruz) [“To ‘rebut[ ] the presumption of correctness accorded to
the trial court’s decision,’ the appellant must ‘ “ ‘ “supply[ ] the
44
reviewing court with some cogent argument supported by legal
analysis and citation to the record.” ’ ” ’ ”].)19
In sum, Gardner has not shown the court erred in ruling
his civil action and motion to set aside were frivolous or in
awarding sanctions under Family Code section 271 for such
frivolous litigation.
3. The family court erred in awarding Bennett
$70,000 in attorney fees and costs
We conclude that no reasonable factfinder could find
Bennett incurred more than $54,108.37 in attorney fees and costs
in the civil action. As noted earlier, the court found Bennett
“incurred approximately $70,000.00 in attorney fees and costs
with her civil counsel, Freedman & Taitelman.” Bennett’s
appellate briefing indicates the sole basis for this finding was her
testimony, found at page 1257 of volume 5 of the reporter’s
transcript, that she paid “around $70,000” to her civil attorneys.
Bennett so testified immediately after she made the following
remark when asked to identify trial exhibit No. 12: “These were
statements of the amounts that I paid civil attorneys.” Trial
exhibit No. 12, in turn, consists of invoices from Freedman and
Taitelman, LLP for legal work performed from May 2022 to
November 2022.
19 For that same reason, we reject as underdeveloped
Gardner’s suggestion, not supported by analysis, that his claim of
intentional infliction of emotional distress was not frivolous.
Additionally, Gardner makes no attempt to show the court erred
in finding his causes of action for intentional interference with a
prospective economic advantage and breach of fiduciary duty
were frivolous.
45
Gardner correctly points out the total attorney fees and
costs billed in trial exhibit No. 12 is only $54,108.37. Bennett
did not testify the invoices in trial exhibit No. 12 correspond only
to some of the attorney fees and costs she incurred in the civil
action; she testified these documents reflected “the amounts” she
paid her civil counsel. (Italics added.) Under these
circumstances, the court could not reasonably rely on Bennett’s
testimony approximating the attorney fees and costs incurred in
the civil action to have been $70,000. The only reasonable
inference the court could have drawn is that Bennett incurred no
more than $54,108.37 in attorney fees and costs in the civil
action. (See In re Carlos J. (2018) 22 Cal.App.5th 1, 6 [“ ‘
“Substantial evidence” is evidence of ponderable legal
significance, evidence that is reasonable, credible and of solid
value. [Citation.] “Substantial evidence . . . is not synonymous
with ‘any’ evidence.” ’ ”].)
We, however, reject Gardner’s argument that Freedman
and Taitelman billed Bennett for “unnecessary or duplicative
work.” Gardner supports this position with the following general
statement: “For example, the bills reflect certain work which
[Bennett’s] family law attorneys would have otherwise
performed, such as issuing subpoenas to [Gardner’s] former law
firm and efforts to obtain court records and transcripts which she
ultimately offered into evidence in the family law trial.” Gardner
does not provide any analysis of the law firm’s bills to support his
conclusory argument. We therefore decline to address his
contention any further. (See Cruz, supra, 113 Cal.App.5th at
pp. 953–954.)
Further, Bennett fails to salvage the court’s $70,000
sanction award. In her appellate brief, Bennett argues she
46
testified, “[T]he amount that she incurred to resist or otherwise
address [Gardner’s] sanctionable conduct . . . was ‘ . . . in excess of
$100,000.’ ” In fact, she testified the latter figure was an
“estimate” that included the $70,000 she claims to have incurred
in the civil action. It is not apparent to us that a rational
factfinder could set an attorney fee and costs award based on
such a vague overall “estimate” of fees and costs that includes a
$70,000 figure that itself contradicts the lesser amount her
attorneys billed her.20
Gardner contends, “[T]he amount of the award was not
tethered to actual attorney fees and costs incurred” because if
“the civil court [had not] sustained [Bennett’s] demurrer to
[Gardner’s] complaint for lack of jurisdiction, . . . . the matter
would have proceeded in civil court entirely outside the family
law proceeding. In that scenario, any work performed on that
case would have been necessary regardless of the family law
20 At oral argument, Bennett’s counsel asserted for the
first time the bills he submitted to Bennett for attorney fees and
costs incurred in the family court action may appear somewhere
in the voluminous record. Counsel also suggested for the first
time the award of sanctions need not be tied to attorney fees or
costs his client incurred or anticipated incurring in connection
with the civil or family law matters. We reject these arguments
because Bennett belatedly raised them and it is not our job to
search the record for counsel’s purported bills. (See BFGC
Architects Planners, Inc. v. Forcum/Mackey Construction,
Inc. (2004) 119 Cal.App.4th 848, 854 [“We will not consider an
issue not mentioned in the briefs and raised for
the first time at oral argument.”]; Cal. Rules of Court,
rule 8.204(a)(1)(C) [requiring the parties to “[s]upport any
reference to a matter in the record by a citation to the volume
and page number of the record where the matter appears”].)
47
matter. Moreover, [Gardner’s] willingness to stipulate to his civil
claims being heard in family court[ ] likely reduced the fees that
would have ultimately been incurred in the civil case.” Gardner’s
proffered scenario has no apparent relevance here. The fact
remains that Bennett had to defend against Gardner’s frivolous
civil claims in two fora. (See Factual & Procedural Background,
ante; Discussion, part D.2, ante.) Thus, the attorney fees and
costs Bennett incurred in defending the civil action are
attributable to Gardner’s sanctionable conduct.21
4. If Bennett used community funds to pay her civil
attorney fees and costs, the court must adjust
the equalization payment on remand
accordingly
At trial, Bennett testified she withdrew a total of $50,000
from Schwab account no. xxx6584 to pay fees she owed to her
civil counsel. We explained in our Discussion part B.2, ante, that
the family court erred in awarding the entirety of Schwab
account no. xxx6584 to Bennett as her separate property.
Accordingly, on remand, the court must determine to what
extent, if any, Bennett used community property to pay the
21 In his reply brief, Gardner argues for the first time the
court should not have awarded sanctions under Family Code
section 271 because the court did not “find that [Gardner] filed
the civil action in a forum where it clearly did not belong[ or] that
the action was a disguised family law enforcement
proceeding . . . .” He also contends for the first time in his reply
that the court made remarks at trial suggesting it believed
Gardner “had a basis to bring [his civil] claims.” Gardner
forfeited these arguments by belatedly raising them in his reply.
(See Niblett, supra, 116 Cal.App.5th at p. 475.)
48
$54,108.37 in attorney fees and costs she was billed for the civil
action, and if so, adjust any equalization payment to her
accordingly.22
E. Gardner Fails To Demonstrate the Court Erred In
Awarding Bennett $26,582.83 Pursuant to the
Parties’ Support Stipulation
1. The support stipulation and the court’s award of
spousal support arrears
On January 8, 2020, the parties and their respective
counsel executed and filed the support stipulation. The support
stipulation, which was signed by the family court on the date it
was filed, states it is a court order.
The support stipulation contains several handwritten
provisions including, as pertinent here:
“1. On the express condition [Gardner] maintains his
licence [sic] to practice law and continues to earn an
annual gross income of $190,000.00, the following
stipulation is made:
“(a) Commencing January 1, 2020, [Gardner]
shall pay to [Bennett], as [and] for spousal support,
the amount of $4,300.00 per month. Said support
shall be payable one-half on the first of the month,
and one-half on the fifteenth of the month through
22 Gardner’s argument that “the award imposes an
unreasonable financial burden” is premature at this time.
(Boldface & capitalization omitted.) The family court may on
remand find it necessary to adjust Gardner’s equalization
payment to Bennett if Bennett used community funds to pay her
civil attorney fees and costs.
49
June 30, 2023, which represents one-half the length
of the marriage. Said support is non-modifiable as to
the amount and duration and shall only terminate on
the death of either party, the marriage of [Bennett],
or June 30, 2023, whichever shall first occur.
“(b) [Gardner] waives his right to receive
spousal support from [Bennett].
“(c) On July 1, 2023, the Court’s jurisdiction to
award spousal support to either party shall
terminate.
...
“3. The conditional language set forth in
paragraph 1 . . . above shall not apply if [Gardner]
retires or quits his job without being forced to do so
(i.e., employer states, quit or you will be
terminated).”23
Based on the support stipulation, the court awarded
Bennett spousal support arrears of $26,582.83, which is
comprised of five and a half months of spousal support totaling
$23,650 and interest at the legal rate of 10 percent totaling
$2,932.83. The court reasoned: (1) Gardner “maintained his
license to practice law throughout the pendency of this action”;
(2) Gardner “was employed and earning in excess of $190,000.00
annually in January 2020 from his then employer with Morrison
Foerster;” and (3) Gardner “was employed and earning in excess
of $190,000.00 annually from February 2023 through June 2023
from a combination of sources, including his current employer
23 We note neither side claims Gardner’s termination from
Morrison Foerster in January 2020 triggered paragraph 3 of the
support stipulation.
50
Reyes Coca-Cola Bottling, his rental income from 5829 Pirate
Ship Drive, North Las Vegas, Nevada . . . , and monthly income
received from the United States Military.” The court also found
Gardner paid only $2,150 in spousal support in January 2020
(instead of $4,300) and failed to make the five monthly payments
of $4,300 owed from February 2023 to June 2023.
2. Gardner’s argument on appeal and the
applicable standard of review
On appeal, Gardner argues, “[T]he undisputed evidence
established that [Gardner] did not reach the annual gross income
threshold in any given year during the term of the [s]upport
[s]tipulation and therefore was not obligated to pay spousal
support.” He contends, “[T]he record is clear that [Gardner] lost
his job at Morrison and Foerster on January 28, 2020 and was
unemployed through much of the remainder of the year.
[Citation.] Accordingly, he did not earn an annual gross income
of $190,000 and his spousal support obligation did not accrue. As
to February through June 2023, [Gardner’s] W-2 for 2023
established his gross income as $154,114.20. In addition, he
received approximately $3,408 from military disability pay
($284/month) and a maximum of $1,536 from rental income
($128/month). Thus, his annual gross income for 2023 did not
exceed $160,000.”
Gardner acknowledges Bennett argued below that “if
[Gardner’s] monthly income were extrapolated over 12 months,
[Gardner] met the threshold for January 2020 and February
through June 2023.” As a factual matter, Gardner does not
dispute that if his monthly income for January 2020, and
February through June 2023, respectively, were extrapolated
over 12 months, his annual gross income during those
51
timeframes would meet or exceed $190,000. Instead, he argues,
“The phrase ‘continues to earn an annual gross income of
$190,000’ is clear and explicit and refers to annual gross income,
not monthly gross income, and not monthly gross income
extrapolated over a calendar year. Had the parties intended that
to be the case, they could have used words to that effect. The
trial court erred in interpreting the annual income requirement
as a monthly income requirement and the spousal support order
should be reversed.”
Because Gardner’s claim of error rests solely on his
interpretation of the text of the support stipulation, it presents a
question of law we review de novo. (See Enmark v. KF
Community Care, LLC (2024) 105 Cal.App.5th 463, 471 [“[W]e
review de novo any questions of law — such as the interpretation
of a written instrument [citation] — as well as the application of
that law to undisputed facts . . . .”].) We resolve that issue below.
Further, because Gardner’s claim presents a purely legal issue,
we need not determine whether the family court’s statement of
decision sufficiently described the legal and factual basis for its
award of spousal support arrears to Bennett. (See Davenport v.
Unemployment Ins. Appeals Bd. (1994) 24 Cal.App.4th 1695,
1696, 1700 [holding that because the appellant’s claim of error
presented only “a question of law” subject to the appellate court’s
“independent[ ] review,” “the absence of a statement of decision
[was] not prejudicial to [the appellant]”].)
3. We reject Gardner’s interpretation of the support
stipulation
Gardner argues the support stipulation did not obligate
him to pay the second half of the monthly spousal support for
January 2020 because his termination from Morrison Foerster on
52
January 28, 2020 precluded him from earning a total annual
gross income of $190,000 that year. Likewise, he claims he did
not owe Bennett spousal support in February, March, April, May,
and June 2023 because he ultimately earned no more than
$160,000 during that calendar year. His argument hinges on
what he deems to be “the plain meaning” of the phrase “continues
to earn an annual gross income of $190,000.00” in the support
stipulation, and the absence of any text allowing his monthly
income to be extrapolated to determine whether he satisfies that
condition in any given month.
A principal purpose of spousal support is maintaining the
recipient’s standard of living. (See, e.g., Fam. Code, § 4320,
subd. (d) [providing that in ordering spousal support, a court
shall consider, inter alia, “[t]he needs of each party based on the
standard of living established during the marriage”].) To achieve
that objective, the support stipulation provides that if the income
and law license conditions were satisfied, then Gardner had to
make monthly payments of $4,300 — $2,150 due on the 1st of the
month and $2,150 on the 15th of the month.
Gardner’s literal interpretation of the phrase “continues to
earn an annual gross income of $190,000.00” would subvert that
purpose by suspending Bennett’s right to monthly spousal
support unless and until Gardner has, in fact, earned a gross
income of $190,000 or more in a given year, at which point he
would apparently owe support arrears to Bennett. Additionally,
Gardner’s spousal support obligation terminated no later than
June 30, 2023, and yet the parties would not know whether he
did in fact earn a gross income of at least $190,000 during
calendar year 2023 until months later or perhaps the end of the
year. In the interim, Bennett alone would bear the burden of
53
maintaining her standard of living each month, even if Gardner’s
projected gross annual earnings met or exceeded the $190,000
threshold. Accordingly, we reject Gardner’s proffered
construction.24
In sum, Gardner fails to demonstrate the family court erred
in annualizing his gross monthly income to determine whether he
owed spousal support under the stipulation in any given month.
We thus affirm the court’s award of spousal support arrears for
one-half of the payment owed for January 2020 and the full
payments owed for February 2023 to June 2023, along with the
interest thereon totaling $2,932.83.25 (Discussion, part E.1, ante
[observing the court awarded spousal support arrears and
interest].)
24 (See Lofchie, supra, 229 Cal.App.4th at p. 251 [“ ‘[T]he
“plain meaning” rule does not prohibit a court from determining
whether the literal meaning of a statute comports with its
purpose . . . .’ [Citation.] ‘ “We must select the construction that
comports most closely with the apparent intent of the
Legislature, with a view to promoting rather than defeating the
general purpose of the statute, and avoid an interpretation that
would lead to absurd consequences.” ’ ”]; Concerned Citizens
Coalition of Stockton v. City of Stockton (2005)
128 Cal.App.4th 70, 77 [“ ‘[T]he same rules of interpretation will
apply in ascertaining the meaning of a court’s order as in
ascertaining the meaning of any other writing.’ ”].)
25 Although Gardner claims Morrison Foerster terminated
him on January 28, 2020, he does not argue the family court
should have reduced the second half of the $4,300 monthly
spousal support obligation to account, on a pro rata basis, for the
fact that he was not employed for the full month of January 2020.
54
DISPOSITION
We reverse the following parts of the family court’s
judgment: (1) the award of Chase Bank account nos. xxx0210
and xxx5239 to respondent Andrea Bennett as her separate
property; (2) the award of Schwab account nos. xxx1094, xxx6584,
and xxx4324, and Schwab IRA account no. xxx1574 to Bennett as
her separate property; (3) the award of the Rolex watch to
Bennett as her separate property; (4) the award of the wedding
ring to Bennett as her separate property with no offset or
equalization; (5) the award of Fidelity IRA account no. xxx2240 to
Bennett as her separate property; (6) the order requiring
appellant Reid Gardner to reimburse Bennett $25,000 for bail;
and (7) the award of $70,000 in sanctions to Bennett under
Family Code section 271.
We remand the matter with instructions to: (1) determine
whether, and if so, to what extent, the community has an interest
in Chase Bank account nos. xxx0210 and xxx5239, Schwab
account nos. xxx1094, xxx6584, and xxx4324, Schwab IRA
account no. xxx1574, and the Rolex watch; (2) prepare a
statement of decision explaining the legal and factual basis for
the court’s (a) award of the wedding ring to Bennett as her
separate property without equalization or offset, and (b) award of
Fidelity IRA account no. xxx2240 to Bennett as her separate
property; (3) issue a modified judgment omitting the provision
requiring Gardner to reimburse Bennett $25,000 for bail;
(4) determine the amount of attorney fees and costs Bennett paid
to her civil attorneys, which is awardable as a sanction under
Family Code section 271 and shall not exceed $54,108.37;
(5) adjust the equalization payment if the court finds Bennett
used community funds to pay the attorney fees and costs
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awarded under Family Code section 271; and (6) conduct further
proceedings consistent with this opinion.
The judgment is otherwise affirmed. The parties shall bear
their own costs on appeal.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
M. KIM, J.
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