Marriage of Blakeney

Filed 2/19/10 Marriage of Blakeney CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kings County. Julienne L. Rynda, Commissioner.

Neil A. Helding for Appellant.

Richard L. Kliever for Respondent.

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Appellant Birsen Blakeney contends the trial court erred in upholding an oral transmutation agreement. She also contends the trial court erred in admitting certain evidence and impermissibly placed the burden on her to produce documentation of ownership of a residence in Turkey. We conclude there was no error and will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Birsen and Lawrence F.^[1]Blakeney married in March 1971 and separated in June 1995. Birsen filed a petition for dissolution of marriage on November 12, 2002. In her petition, Birsen asked that residential real property in Turkey be confirmed as her separate property and that Lawrences military retirement and benefits be divided as community property.

Lawrence responded to the petition on December 23, 2002. He did not contest dissolution of the marriage, and the trial court entered judgment dissolving the marriage effective May 23, 2003. The trial court reserved jurisdiction over all other issues.

On July 23, 2003, Lawrence filed a schedule of assets. In the schedule of assets, Lawrence listed the residence in Turkey as community property and indicated that Birsen was in possession of all the documentation on the house. Lawrence also listed household furnishings and a car as community property in the possession of Birsen. Lawrence listed his military retirement benefits as having been acquired before and during their marriage and after separation. Birsen never filed a schedule of assets.

On September 29, 2003, the trial court issued a temporary order on the military retirement. The trial court found that Birsens community property interest in the military pension was 44.49 percent. The trial court ordered that effective October 1, 2003, Birsen receive $551 per month as her share of the pension, without prejudice to assert at trial that [Birsen] is not entitled to any portion of the military pension based on an agreement that she would take Turkish property in return for the military pension.

In response to interrogatories propounded by Birsen, Lawrence, in December 2003, stated he and Birsen had discussed the division of their assets prior to their separation and each party agreed that Birsen would keep the residence and furnishings in Turkey in exchange for waiving all community property interest in his military retirement. Lawrence also stated Birsen had maintained that title to real property in Turkey could not be held in the name of a noncitizen of that country; therefore, the title to the residence was held in Birsens name.

Trial was held on August 31, 2007, on the contested issues of the Turkish property and the military pension. Under examination by Birsens attorney, Lawrence testified that about a year before he and Birsen separated, they purchased a home in Adonna, Turkey. Lawrence had photos of the exterior and interior of the Turkish home, including the furnishings, which were admitted into evidence without objection. According to Lawrence, they paid for the home and improvements with their savings, withdrawing the funds from a Turkish bank. Lawrence lived in the house with Birsen for a few weeks, but was posted to Germany. In response to questions from Birsens attorney, Lawrence stated he had done some research on the Internet to determine a current value for the Turkish property.

Birsen testified that they never had a savings account while she and Lawrence were married. When they separated, Birsen claimed all the furnishings were sold because she was a military spouse and customs would not allow her to retain the furniture. Birsen acknowledged that she was the woman shown in the photographs taken by Lawrence of the Adonna house, but claimed she and Lawrence were not the owners of the house. Birsen claimed the house was owned by her aunt. Birsen also testified that in 1999 she moved from the house in Adonna to another home in Turkey, stating that her mother gave her the money to purchase a home.

Jim Bertone testified he was Birsens son; Lawrence was his stepfather. Bertone testified that after 1983, he no longer lived with the Blakeneys; he was in the United States. Bertone testified that the house depicted in the photographs taken by Lawrence was owned by his aunt, as Birsen had stated. Bertone also testified that Lawrence abandoned Birsen and, after that, Bertones mother and grandmother lived together in a home paid for by his grandmother.

Lawrence testified again and responded to questions from his own attorney. When asked his opinion of the value of the Adonna home, Birsens attorney objected on the basis of improper foundation, stating that Lawrence could testify only to what he had obtained from the Internet. Lawrences counsel responded that as an owner, Lawrence could testify to value and it was irrelevant how an owner arrived at an opinion of value. Birsens attorney countered that ownership was in dispute, so Lawrence could not testify as an owner. The trial court overruled the objection and allowed Lawrence to state an opinion as to the value of the Adonna house, which he valued at $250,000.

Lawrence also testified that at the time the Adonna home was purchased, American citizens could not own real property in Turkey; therefore, title to the Adonna home was in Birsens name alone. While he and Birsen were living in Adonna, and at the time they separated in June 1995, they had a conversation about dividing their assets. Lawrence testified that they agreed Birsen would keep the house and furnishings and he would keep his military retirement. When Lawrence moved out of the Adonna home and went to Germany, he took with him only his clothing and personal effects, in accordance with his agreement with Birsen. Birsen disputed that any such agreement had been reached.

The military retirement was valued by an actuary and his valuation was admitted into evidence. The value of the military pension was determined to be between $272,000 and $277,000.

The trial court permitted counsel to file briefs no later than October 15, 2007, and indicated the matter would be submitted as of that date. On November 19, 2008, the trial court issued its judgment on reserved issues. In the JUDGMENT ATTACHMENT the trial court articulated its findings, conclusions, and orders.

The trial court found the home in Adonna, household furnishings, a car, and the military pension to be community property. The Adonna residence, household items, and the car were awarded to Birsen as her sole and separate property. The trial court awarded the military pension to Lawrence as his sole and separate property. In calculating a substantially equal division of the community assets, the trial court took into account that Birsen had exclusive use of the Adonna residence and car after separation and had been receiving a proportionate share of the military pension payments commencing October 1, 2003. Any military pension payments received by Lawrence after separation through September 30, 2003, were awarded to him.

DISCUSSION

Birsen contends the trial court impermissibly upheld an oral transmutation agreement, erred in considering declarations and pleadings that had been filed in the case, and erred in allowing Lawrence to offer an opinion of the value of the property in Turkey. We disagree. The trial court did not uphold an oral transmutation agreement; it made an equitable division of community assets. We also conclude that the trial court did not err in considering the pleadings filed in the case.

I.                   Standard of Review

This courts review of a trial courts finding that a particular item is separate or community property is limited to a determination of whether any substantial evidence supports the finding. (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 849.) As set forth in In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133: A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. [Citations.]

Where a statement of decision has not been requested, the right to such a statement is waived. (In re Marriage of Jones (1990) 222 Cal.App.3d 505, 515.) In such cases, the doctrine of implied findings is applicable and we presume the trial court found every fact necessary to support its decision and indulge every intendment in favor of the judgment. (In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203, 1219.) The doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error. [Citations.] (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58 (Fladeboe).)

Here, no request for a statement of decision was made before the matter was submitted or following the trial courts tentative decision pursuant to Code of Civil Procedure section 632. Instead, Birsen submitted a written motion to reopen the trial, submit additional evidence, and reconsider the trial courts ruling. Accordingly, the doctrine of implied findings is fully applicable and all intendments and presumptions will be indulged in favor of the judgment. (Fladeboe, supra, 150 Cal.App.4th at p. 60.)

II.                Evidence Considered

Pleadings and declarations

Birsen complains that the trial court erred in considering declarations and documents filed in the trial court under penalty of perjury. First, the trial court did not err. Second, Birsen failed to raise this issue before the trial court.

The trial court considered the statements made in pleadings and declarations filed in the case by both parties, as well as their testimony at the trial, in reaching a decision. Unequivocal admissions in pleadings are treated as judicial admissions; they are conclusive and cannot be contradicted by the pleader. (Valerio v. Andrew Youngquist Construction (2002) 103 Cal.App.4th 1264, 1271 [admission of fact in pleading treated as judicial admission]; Heater v. Southwood Psychiatric Center (1996) 42 Cal.App.4th 1068, 1079-1080, fn. 10; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) 10:20.1, p. 10-6 (rev. #1, 2009),  10:147, p. 10-55 (rev. #1, 2008).)

Birsens reliance on Elkins v. Superior Court (2007) 41 Cal.4th 1337 to support her contention that the trial court could not consider the pleadings filed in this case is misplaced. Elkins addressed a local court rule that required all evidence in contested marital dissolution trials to be submitted by way of affidavit and declarations. (Id. at p. 1344.) We find nothing in Elkins that proscribes the use of party or judicial admissions, as provided for in Evidence Code sections 1220 through 1222, in a contested trial where testimony was taken.

Additionally, when Birsen filed her motion challenging the trial courts decision and seeking reconsideration, she made no objection to the trial court having considered these documents. Generally, evidentiary objections not made in the trial court cannot be asserted on appeal. (Evid. Code,  353; People v. Bury (1996) 41 Cal.App.4th 1194, 1201.) We decline to allow her to raise this objection now, when she failed to raise it in the first instance in the trial court.

Opinion evidence

Birsen contends that Lawrence should not have been permitted to testify regarding his opinion of the value of the real property in Turkey. At trial, Birsens counsel initially asked Lawrence if he had an opinion on the value of the Turkish property. Later, Birsen objected to Lawrence offering an opinion of value first on the basis of lack of foundation and then on the basis that Lawrence was not an owner.

An owner of property is generally considered competent to estimate or offer a lay opinion of the propertys value. (Evid. Code, 813, subd. (a)(2); Sacramento & San Joaquin Drainage Dist. v. Goehring (1970) 13 Cal.App.3d 58, 64.) In addition to this common law rule, the Evidence Code contains special rules of evidence that are applicable to any action in which the value of property is to be ascertained. (Evid. Code, 810, subd. (a).)

In such an action, the propertys value may be shown only by the opinions of either: (1) Witnesses qualified to express such opinions. [] (2) The owner or spouse of the owner of the property or property interest being valued. [] (3) An officer, regular employee, or partner designated by a corporation, partnership, or unincorporated association that is the owner of the property or property interest being valued, if the designee is knowledgeable as to the value of the property or property interest. (Evid. Code, 813, subd. (a).)

As pertinent here, a property owner includes, but is not limited to, the following persons: [] (1) A person entitled to possession of the property. [] (2) Either party in an action or proceeding to determine the ownership of the property between the parties. (Evid. Code, 813, subd. (c).)

Lawrence claimed to be an owner of the property; Birsen disputed Lawrences ownership interest. Under Evidence Code section 813, however, Lawrence was entitled to offer a lay opinion of the real propertys value. The trial courts finding that Lawrence was an owner reinforces this conclusion.

Lawrences opinion as to the propertys value is limited to such an opinion as is based on matter perceived by or personally known to the witness or made known to the witness at or before the hearing, whether or not admissible unless a witness is precluded by law from using such matter as a basis for an opinion. (Evid. Code, 814.) Birsen has not argued and has cited no authority for the proposition that, as a matter of law, information obtained from an Internet search cannot be used as a basis for an opinion.

Other evidence, including evidence as to the nature and condition of the property, may be admitted for the limited purpose of enabling the trier of fact, in this case the trial court, to understand and weigh the opinion testimony given. (Evid. Code, 813, subd. (b).) The facts stated as reasons for the opinion of the witness do not become evidence in the sense that they have independent probative value upon the issue of market value. Instead, they serve only to reinforce the judgment of the witness, that is, they go to the weight to be accorded the witnesss opinion. (City of Gilroy v. Filice (1963) 221 Cal.App.2d 259, 271 (City of Gilroy).)

The trial court, as the trier of fact, was not bound to accept as conclusive Lawrences opinion on value and it could consider the basis of Lawrences opinion when assessing credibility. (City of Gilroy, supra, 221 Cal.App.2d at p. 271.)

Burden of producing evidence

Birsen also contends the trial court erroneously placed the burden on her to produce documentary evidence of her, her mothers, or her aunts ownership of the real property in Turkey. Birsen is incorrect.

Family Code section 760 defines community property as all property, wherever situated, acquired during marriage while domiciled in California. This statutory presumption imposes a burden of proof on the party challenging the presumption. (Evid. Code,  606; In re Marriage of Mix (1975) 14 Cal.3d 604, 610-611.) When the party challenging the characterization of an asset as community property fails to meet his or her burden of proof, characterization of the property as community property is appropriate. (In re Marriage of Leversee (1984) 156 Cal.App.3d 891, 898.)

Once Lawrence testified that the property was purchased with community funds prior to the date of separation, the burden shifted to Birsen to establish that the property in Turkey was not community property. As Lawrences testimony had established the presumption, the trial court properly placed the burden on Birsen to rebut it.

III.             Division of Property

Birsen claims the trial court erred in upholding an oral transmutation agreement. Her claim is wholly unsupported by the record. Neither party testified that there was an oral transmutation. The trial courts decision is silent on the issue of any transmutation, in all likelihood because no one ever asserted a transmutation.

The trial court noted in its decision that the parties verbally had agreed to a division of community assets upon separation, and that Birsen retained exclusive possession and use of the real property in Turkey, the car, and the household furnishings for a period of several years before seeking a dissolution of marriage.

The trial court did not uphold or address oral transmutations of property; rather, the trial court effected an equal division of community property under Family Code section 2601. The trial court determined the community assets of the parties, the value of those assets, and made an equal distribution of community assets.

While both parties agreed the military retirement was community property, their

testimony differed on whether the real property in Turkey was community property. In its decision, the trial court found the real property in Turkey and the military retirement to be community property.

There was substantial evidence to support this determination. Lawrence testified to acquisition of the property during marriage, the source of funds for acquiring the property as savings and earnings accumulated during the marriage, and that they resided there as husband and wife for a period of time.

Determinations about credibility of witnesses and the weight to be given their testimony are vested in the finder of fact, in this case the trial court. (People v. Galindo (1991) 229 Cal.App.3d 1529, 1537.) We do not reevaluate a witnesss credibility. (People v. Jones (1990) 51 Cal.3d 294, 314.) The testimony of a single witness can constitute substantial evidence of a disputed fact. (People v. Young (2005) 34 Cal.4th 1149, 1181.)

In dividing the community property, the trial court properly made an equal division of community assets, taking into account the parties economic circumstances, as permitted by Family Code section 2601. The trial court had before it a stipulated value for the military pension and differing evidence of value of the car and residence in Turkey. Also before the trial court was evidence of the amount of money paid to Birsen each month pursuant to the trial courts previous interim order.

After valuing all of these assets, the trial court divided them, awarding the real and personal property assets possessed exclusively by Birsen for several years to her, along with the payments received under the interim order. The trial court awarded the military pension to Lawrence, as an equal division of community property. [T]he family law court possesses broad discretion to determine the manner in which community property is awarded in order to accomplish an equal allocation. (In re Marriage of Andresen (1994) 28 Cal.App.4th 873, 880; see also Fam. Code,  2601.)

Although Birsen challenges the determination of the real property in Turkey as community and the valuation of that property, the evidence on these issues differed between the parties. It is the trier of facts exclusive province to assess the credibility of witnesses, resolve conflicts, and weigh the evidence. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330.) This the trial court did, resolving these issues adversely to Birsen.

That Birsen disagrees with the trial courts resolution of these contested issues is not grounds for this court to reweigh the evidence and reevaluate the credibility of the witnesses. Appellate courts defer to credibility determinations made by the trier of fact in a wide variety of settings. (See, e.g., In re Hitchings (1993) 6 Cal.4th 97, 109.) A reviewing court examines the entire record in the light most favorable to the judgment below to determine if it contains substantial evidence supporting the judgment. Substantial evidence is reasonable, credible and of solid value. (People v. Bolden (2002) 29 Cal.4th 515, 553.)

Presuming in support of the judgment the existence of every fact that reasonably could be deduced from the evidence, we conclude substantial evidence supported the trial courts determination of the character, value, and division of property. (See People v. Perez (1992) 2 Cal.4th 1117, 1124; In re Sylvester C. (2006) 137 Cal.App.4th 601, 605.)

DISPOSITION

The judgment is affirmed. Costs are awarded to respondent, Lawrence F. Blakeney.

_____________________

CORNELL, J.

WE CONCUR:

_____________________

WISEMAN, Acting P.J.

_____________________

KANE, J.

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^[1]We will refer to the parties by their first names, not out of disrespect but to avoid any confusion to the reader.