Marriage of Henry

 

 

 

 

 

Filed 1/23/14  Marriage of Henry CA3

 

 

 

 

 

 

 

NOT TO BE PUBLISHED

 

 

 

 

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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

THIRD
APPELLATE DISTRICT

(Butte)

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>

In re the Marriage of GEORGIA and MICHAEL HENRY.	C070404
GEORGIA HENRY,                           Respondent,               v.   MICHAEL HENRY,                           Appellant.	(Super. Ct. No. FL037906)

 

 

            After
24 years of marriage, Georgia Henry (petitioner in the trial court) and Michael
Henry divorced.href="#_ftn1"
name="_ftnref1" title="">[1]  Following a three-day court
trial, the trial court issued a
statement of decision on numerous matters. 
Michael appeals, contending the court erred (1) in finding $161,000
from Georgia’s mother to build a cottage and upgrade a septic system was a gift,
(2) in valuing the improvements, and (3) in awarding accounts receivable and a
1929 Ford Phaeton to him.  We shall
affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

            Michael
and Georgia married in 1985 and separated in 2009.  Michael was a welder of 20 years with his own
business.  He also was an avid tool
collector.

            Georgia
worked for Fashion Optical Displays at the time of trial.  She earned $15 an hour, grossing about $2,850
per month.

            In
2004 Georgia’s mother, Betty Perry, sold her house and the href="http://www.mcmillanlaw.us/">proceeds, $161,000, were transferred into
a joint bank account belonging to Georgia and her mother.  The funds were used to construct a cottage in
Michael and Georgia’s back yard and to upgrade the septic system that served
both the main residence and the cottage.  Georgia’s
mother was to live in the cottage rent free for the rest of her life.

            An
appraiser estimated the improvements increased the value of the parcel by $150,000.  The property was valued at $215,000 prior to
the improvements and $365,000 at the time of trial.  The $150,000 in increased value was awarded
to Georgia by the trial court under Family
Code section 2640.href="#_ftn2"
name="_ftnref2" title="">[2]

            Michael
asserts he made only $12,654 in 2010, or $1,054 per month.  He also had a $535 monthly truck
payment.  The court valued Michael’s
business at $29,484:  $20,000 in accounts
receivable, $17,201 worth of work in process, and $3,190 in cash on hand, less
$10,907 for business debts.  The court
awarded the business to Michael.

            In
addition, the couple had numerous items of personal property appraised by an
agreed-upon appraiser.  Among the items
was a 1929 Ford Phaeton, which was distributed to Michael.  The court accepted the appraiser’s valuation
of the vehicle at $21,500.

            The
court issued a statement of decision.  Michael filed a timely notice of appeal.

DISCUSSION

I.

            The
trial court has broad discretion to determine the manner in which community
property is divided.  (§ 2550; >In re Marriage of Brown (1976) 15 Cal.3d
838, 848, fn. 10.)  Accordingly, we
review the trial court’s judgment dividing marital property for an abuse of
discretion, reversing only if the trial
court’s decision is not supported by substantial evidence.  (In re
Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th
196, 201; In re Marriage of Quay (1993)
18 Cal.App.4th 961, 966.)  We review the
trial court’s factual findings regarding the character and value of the
parties’ property under the substantial evidence standard.  (Dellaria,
at p. 201; In re Marriage of Ettefagh (2007)
150 Cal.App.4th 1578, 1584.)  We review
matters of law de novo.  (>Dellaria, at p. 201; >In re Marriage of Rothrock (2008) 159
Cal.App.4th 223, 230.)

II.

            Michael
argues the trial court erred in finding the $161,000 given by Betty Perry,
Georgia’s mother, to build the cottage on the couple’s property was a gift.  According to Michael, Perry did not give her
daughter $161,000, but gave her “access to her checkbook for the specific
purpose to build a cottage that she would then be able to live in, rent free,
for the rest of her life.”

            In
its statement of decision the trial court found:  â€œThe evidence at trial established that
$31,141.74 of improvements were paid for from gifts characterized as an advance
on Georgia’s inheritance from her mother, Elizabeth ‘Betty’ Perry, that
actually went into and were utilized in improving the overall property with an
improved engineered septic system and related improvements as reflected in
Trial Exhibit 2.  The balance of the
Court-recognized improvements totaling $118,859 were improvements made to the
‘mother-in-law cottage’ built on the property. 
The overall cost of the improvements, as a whole, was $161,043.39
pursuant to Trial Exhibit 3 in evidence. 
The Court finds that the entirety of this sum was expended in improving
the Circlewood property and the entirety of this sum was a gift by way of an
inheritance advance from Georgia’s
mother Betty Perry.”

            The
court cited the trial testimony of Georgia and Betty Perry, and the deposition
testimony of Michael, in support of its finding.  In addition, the court noted the copies of
checks were from an account funded by Elizabeth [Betty] Perry in the names of Elizabeth
Perry and Georgia only.  Georgia
established that a total sum of $161,043.39 of separate property funds obtained
from her mother was used to improve the family home.

            As
for the present value of the improvements, the court cited the testimony of the
appraiser, who valued the overall improvements at the time of trial at
$150,000.  The court found this testimony
persuasive and noted Michael offered no contrary appraisal.

            In
finding the funds were a gift, the court determined that Betty Perry intended
to give Georgia the money unconditionally, Georgia
accepted the gift by using the money to improve the property, and the
withdrawal of funds by Georgia with Betty Perry’s knowledge ratified and confirmed the gift.  The court found no agreement between Betty
Perry and her daughter that in any way restricted or limited Georgia’s
rights to withdraw the funds.

            The
court rejected Michael’s contention that Betty Perry received a life estate in
the property.  No writing supported such
a claim, and the lack of any document would bar such a claim under the statute
of frauds.  (Civ. Code, § 1624, subd. (a)(3).)

            The
record supports the trial court’s findings. 
In deposition, Michael testified Georgia
inherited about $160,000 from her mother. 
At trial, Michael testified that the source of the money for the cottage
was the money Georgia received from her mother.

            Georgia
testified her mother gave her $161,000 as a gift, which she and Michael used to
build the cottage and improve the septic system.  In addition, Georgia
stated the funds were deposited into an account jointly held by her and her
mother, not a community property account.

            Betty
Perry testified she gave her daughter “approximately [$]160,000” as a gift, a
sort of early inheritance after she sold the family home.  The money was deposited into a joint account
with Georgia.  The money was used to build
a cottage on the couple’s property, and Betty Perry discussed this with Michael.  Although Betty Perry wanted Michael to sign
an agreement acknowledging the arrangement, Michael “wouldn’t hear of it.”  However, he never objected to the money being
an inheritance.

            The
appraiser testified that he had appraised the property about two months prior
to trial.  The value of the property
without the cottage and improvements to the septic system was $215,000.  The appraiser valued the improvements funded
by Betty Perry’s gift to her daughter at $150,000, increasing the value of the
community property to $365,000.

            Given
the evidence before it, the trial court’s determination that the $161,000 was a
gift from Betty Perry to her daughter Georgia was supported by substantial
evidence.

III.

            In
a related claim, Michael argues the appraiser’s valuation of the cottage “defies
any credibility or common sense.” 
Michael renews his contention that in applying for a construction
permit, Georgia certified to the Town of Paradise that the
value of the cottage addition was $55,424.

            The
trial court considered Michael’s claim and rejected it.  The court noted:  â€œThis contention was never established by any
testimony from Georgia on either direct or cross-examination.  There was never any showing that Georgia
computed the ‘job value’ shown in Trial Exhibit 20, or that the figure was
utilized by anyone other than the Town of Paradise for
internal purposes.  Moreover, any
valuation figure reflected on Trial Exhibit 20 would have to give way to the
actual trial testimony of the Certified Appraiser, Robert Martin, as reflected
in Trial Exhibits 15 and 16 and his testimony in court, which evidence was far
more convincing to the Court as to valuation.”

            Again,
our review of the record provides substantial evidence to support the trial
court’s conclusion.  The appraiser
testified at length as to the basis for his valuation, and Michael provided no
appraisal testimony to refute this testimony.

IV.

            Michael
claims the trial court erred in awarding the accounts receivables and work in process
to him in the property settlement.  He
argues at trial that he testified, “ â€˜Nobody owes me nothing, sir,’ ” and
the evidence does not support an award for $20,000 in “phantom accounts
receivables” and $17,201 for work in process.

            In
its decision, the court awarded “Michael his established business enterprises
established during marriage, including his welding business and his fencing
business, for which he is licensed by the State of California, at a value of
$20,000 for the accounts receivable, $17,201 for the work in process as
reflected in Trial Exhibit 33, $3,190 for the cash on hand as is reflected in
Trial Exhibit 33, and the business debt of <$10,907> as was reflected in
Trial Exhibit 25.  The net valuation of
the business as awarded to Michael is $29,484, as was reflected in lines 131 to
145 of the Propertizer Schedule attached to the final and concluding Post-Trial
Brief of Georgia Henry . . . .  The Court
declines to charge Michael with the $10,854 of miscellaneous items reflected on
the same Propertizer at line 118, concluding there is insufficient proof that
the Respondent should be charged with these assets, particularly in light of
the Court’s rulings herein.”

            Again,
the record supports the trial court’s assessment of the evidence.  Michael ran a welding business and was
licensed as a C13 contractor to construct fencing, railings, and
balconies.  At trial, Michael provided no
information about his business.  Instead,
he claimed he currently was not making any money, but was borrowing money from
family and friends.  In addition, Michael
told the court, “Nobody owes me nothing” for past work.

            In
contrast, Georgia testified her husband ran a profitable welding business and
frequently was paid hundreds of dollars in cash by his customers.  Georgia
was involved in the paperwork for Michael’s business and kept track of whether
customers paid.

            In
addition, a vocational rehabilitation counselor testified.  After reviewing Michael’s background and
experience, the counselor stated Michael had a good chance for continued
employment as a welder.  The counselor
estimated Michael’s potential earnings at $46,000 per year.

            Given
Michael’s reticence and failure to provide any documentation as to the status
of his business, the court relied on Georgia’s
familiarity with the business and accepted her valuation.  We find no abuse of discretion.

V.

            Finally,
Michael disputes the trial court’s decision to award the 1929 Ford Phaeton to
him at what he considered an inflated price. 
Instead, Michael argues the court should have ordered the car sold and
the proceeds divided equally.

            In
its decision, the trial court accepted the appraiser’s valuation of the Ford
Phaeton at $21,500 and awarded the asset to Michael.  The court observed:  â€œThe Court declines to accept Michael’s
suggestion that the vehicle be sold and the net proceeds divided.  The Court determines that the vehicle has
been adequately valued and it is appropriate for the Court to award the vehicle
to Michael rather than go through the process of having the parties have to
sell the vehicle.  Accordingly, the Court
exercises its discretion to award the vehicle to Michael at the appraised
valuation.”

            In
evaluating the trial court’s rulings on the division of community property we
grant broad deference to the trial court. 
The party challenging the ruling bears the burden of establishing an
abuse of discretion.  (>Rich v. Thatcher (2011) 200 Cal.App.4th
1176, 1182; In re Marriage of Sivyer-Foley
& Foley (2010) 189 Cal.App.4th 521, 526.)  Michael fails to meet this burden.  He provides no evidence that the appraiser’s
valuation was faulty, or that the court acted outside the bounds of reason in
awarding him the vehicle.

DISPOSITION

            The
judgment is affirmed.  Georgia shall
recover costs on appeal.

 

 

 

                                                                                                    RAYE                     ,
P. J.

 

 

 

We concur:

 

 

 

          NICHOLSON              , J.

 

 

 

          ROBIE                          , J.