Marriage of Jacobi
Filed 6/25/12
Marriage of Jacobi CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re the Marriage of JENNIFER
JACOBI and JOHN J. JACOBI.
JENNIFER JACOBI,
Respondent,
v.
JOHN J. JACOBI,
Appellant.
F062594
(Super.
Ct. No. 08-229597)
APPEAL from
a judgment of the Superior Court of
County. William Silveira, Jr.,
Judge. (Retired judge of the Tulare Sup.
Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.)
Griswold,
LaSalle, Dowd, Cobb & Ginn and Jeffrey L. Levinson for Appellant.
Jennifer
Jacobi, in pro. per., for Respondent.
-ooOoo-
In this marital
dissolution appeal, husband challenges the inclusion in the property
division of the proceeds from the sale of a boat and the award of spousal
support to wife. We find no error and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The parties
to this marital dissolution action had been married over 15 years at the
time of separation. After trial of the
matter, the parties’ marriage was dissolved; husband was granted physical
custody of their four children, with visitation by wife. The judgment entered also set the amounts of
child and spousal support and divided the parties’ property. Husband challenges the award to wife of one-half
the proceeds from the sale of the parties’ boat. He contends the boat was sold prior to
separation and the proceeds were used to pay expenses of the household and
other debts prior to and after separation.
The trial court stated at trial that husband had not adequately
accounted for the use of the proceeds; it assigned an equalizing payment to
wife. The trial court also ordered
husband to pay wife $500 per month in spousal support. Husband contends the trial court made that
award without taking into account wife’s cohabitation with her boyfriend.
DISCUSSION
On appeal,
the trial court’s order is presumed to be correct. (Schnabel
v. Superior Court (1993) 5 Cal.4th 704, 718.) “‘The burden of affirmatively demonstrating
error is on the appellant.’†(
(2001) 90 Cal.App.4th 600, 610.) “‘[T]he
showing is insufficient if it presents facts which merely afford an opportunity
for a difference of opinion.’
[Citations.]†(
v. J.C. Interiors, Inc. (2008) 161 Cal.App.4th 1126, 1138.)
I. Boat
“The trial
court is required to divide the community property equally. [Citation.]
On appeal we review a ruling dividing property under the abuse of
discretion standard. [Citation.]†(In re
Marriage of Quay (1993) 18
Cal.App.4th 961, 966.) “When applying the deferential abuse of
discretion standard, ‘the trial court’s findings of fact are reviewed for
substantial evidence, its conclusions of law are reviewed de novo, and its
application of the law to the facts is reversible only if arbitrary and
capricious.’ [Citations.]†(In re
C.B. (2010) 190 Cal.App.4th 102, 123) “‘A party who challenges the sufficiency of
the evidence to support a particular finding must summarize the evidence
on that point, favorable and unfavorable, and show how and why it is
insufficient. [Citation.]’ [Citation.]â€
(Huong Que, Inc. v. Luu (2007)
150 Cal.App.4th 400, 409.) Husband’s
brief fails to present the unfavorable evidence on this issue, or to show how
or why it was insufficient to support the trial court’s findings.
Generally, property acquired by a
married person during the marriage is community property. (Fam. Code, § 760.) Husband concedes the boat was acquired by the
parties during marriage; he does not dispute that it was community
property. He testified at trial that he
sold the boat to a neighbor for $30,000 cash on August 1, 2008. Wife left the home to reside elsewhere on
August 20, 2008. She testified the boat
was not sold on August 1, 2008, and was still at their home when she left. Thus, contrary to husband’s assertion that
“[t]here is no dispute the asset was acquired and sold during marriage,†wife
testified the boat was still in husband’s possession at the time of separation.
The only evidence regarding the
disbursement of the proceeds of the sale of the boat was husband’s testimony
that he used the money “to pay off bills and pay for furniture and various
household expensesâ€; he “owed several people money for this and that,†and
“paid some … laborers cashâ€; and he used it “to help pay for a lot of different
things, children activities, clothes, life.â€
He testified that, although he sold the boat during the marriage, he
held onto the proceeds as cash to pay expenses and he put some of it in his
bank account; he could not identify any particular deposit as constituting or
including the proceeds of the sale of the boat, and the trial court pointed out
that there were no deposits reflected in the bank statements between
August 1, 2008, and September 18, 2008.
Husband’s argument seems to be that
the boat was sold during marriage, so it was not property for which he had to
account in the dissolution proceeding.
Spouses, however, have a fiduciary duty toward each other, which includes
a duty to account for property of the marriage, both before and after
separation. (Fam. Code, §§ 721, subd.
(b), 1100, subd. (e), 2100.) “Once a
nonmanaging spouse makes a prima facie showing of the existence and value of
community assets in the other spouse’s control postseparation, the burden of
proof shifts to the managing spouse to prove the proper disposition or lesser
value of those assets. Failing such
proof, the court should charge the managing spouse with the assets according to
the prima facie showing.†(
Margulis (2011) 198 Cal.App.4th 1252, 1258.) Wife presented evidence the boat had been
purchased for $50,000 and was not sold prior to separation. The burden shifted to husband to show a
proper disposition of the boat or its proceeds.
Husband testified he sold the boat for $30,000. His proposal for dividing the marital
property did not include any division of the proceeds from the sale of the
boat. His evidence regarding the use of
the proceeds consisted solely of his own vague testimony that he used it to pay
his debts, family expenses, and laborers.
Husband offered no documentation showing the proceeds were used to pay
community debts or expenses.
The trial court divided the proceeds
of the sale of the boat between the spouses, finding it was personal property
of the parties at the time of separation.
The court rejected or found insufficient husband’s testimony that the
proceeds were used to pay community expenses.
Substantial evidence supported the trial court’s findings. The trial court did not abuse its discretion
by requiring husband to make an equalizing payment to wife that included
one-half the proceeds of the sale of the boat.
II. Spousal
Support
Husband contends wife was cohabiting
with a man at the time of trial, but the court failed to take this into
consideration in setting spousal support.
He asserts this constituted an abuse of the trial court’s
discretion. The record does not support
husband’s claim.
Family Code section 4323 provides
that “there is a rebuttable presumption, affecting the burden of proof, of
decreased need for spousal support if the supported party is cohabiting with a
person of the opposite sex.†(Fam. Code,
§ 4323, subd. (a)(1).) At trial, husband
asserted wife was cohabiting with her boyfriend and asked that the court set
spousal support at zero. Wife denied
cohabiting. She testified she lived
alone; her boyfriend rented a place in Bakersfield, but ran businesses in Lamont,
Madera, and Tehachapi and stayed with her sometimes. At a posttrial hearing on
objections to the tentative statement of decision, wife again denied she had
been cohabiting and asserted she had taken in a female roommate and her
roommate’s son.
In its statement of decision,
living with a person of the opposite sex, but she asserted that he contributed
very little to her support. It
considered multiple other factors in setting spousal support. The court made findings on the factors it was
required to consider pursuant to Family Code section 4320. It noted the marriage was of long duration
(Fam. Code, § 4336, subd. (b)) and wife’s employment skills were
limited. She was earning $778 per month
from part-time work. The court had
already reduced wife’s support because the dairy in which husband held an
interest and from which he derived his income was in bankruptcy.
During the trial, the trial court
expressly stated that it had considered wife’s cohabitation, but it did not
intend to reduce wife’s support any further.
It noted that husband continued to have more or less the same lifestyle
as before the bankruptcy, and the
amount of spousal support it ordered was very low. At the hearing of the objections to the
tentative statement of decision, the court observed that, even with the award
of spousal support, wife would have a reduced standard of living; it was being
asked to balance the wife’s “minimally decent standard of living†against the
need of the children to attend an expensive private school. Because the court thought it was important
for the children to continue at their school, he set the spousal support at
$500 and not higher.
The record does not support
husband’s contention the trial court abused its discretion by failing to
consider wife’s cohabitation in setting spousal support. The trial court considered that factor along
with numerous others in setting the support amount. We find no abuse of discretion.
DISPOSITION
The
judgment is affirmed. Wife is entitled
to her costs on appeal.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Kane, J. and Franson, J.
name="_ftn2" title="">[1] The
court adopted its tentative statement of decision as its statement of decision.
