Filed 6/30/26 Marriage of M.D.N. and A.D.N. CA1/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re Marriage of M.D.N. and
A.D.N.
M.D.N.,
Plaintiff and Appellant,
A171022
v.
A.D.N., (San Francisco City &
County
Defendant and
Super. Ct. No.
Respondent.
FDI13780367)
Plaintiff M.D.N. appeals from a judgment that resolved
issues of property characterization, reimbursement, spousal and
child support, and sanctions in the marital dissolution proceeding
between the parties. For the reasons explained herein, we reject
most of M.D.N.’s claims on appeal. We will, however, reverse and
remand for a redetermination on A.D.N.’s request for Family
Code1 section 271 sanctions and for clarification regarding the
court-ordered “50% sanctions” under section 1101, subdivision
(g). In all other respects, we affirm the judgment.
1 All undesignated statutory references are to the Family
Code.
1
BACKGROUND
The parties were married in 2001, and M.D.N. petitioned
for dissolution of marriage on October 30, 2013. The parties have
one son. On October 31, 2013, M.D.N. filed a request seeking
orders for child custody, child support, visitation, spousal
support, attorney fees and costs, and a “DV restraining order;
move out order” (October 2013 RFO). That same day, M.D.N.
filed a separate request for a domestic violence restraining order
(DVRO).2 A.D.N. filed a response, and the court issued
temporary domestic violence restraining orders in November and
December 2013.
On December 20, 2013, and February 4, 2014, the court
held hearings on the permanent DVRO request. At the
conclusion of these hearings, the court issued a three-year DVRO
against A.D.N. after finding he had assaulted M.D.N. The court
issued its written three-year DVRO on March 20, 2014, expiring
on February 4, 2017. The court renewed the DVRO in 2017 for a
five-year term.
Meanwhile, on January 9, 2014, the court held a hearing on
the October 2013 RFO for child support, spousal support, and
attorney fees. The court took up temporary spousal support at
the hearing and reserved on child support and attorney fees. The
court made an order for temporary spousal support, reserved
jurisdiction to modify temporary spousal support upwards or
downwards, and set a long cause hearing for February 14, 2014.
2 This filing is reflected in the trial court’s docket, but it is
not included in the record on appeal.
2
The court stated it would take up further evidence and argument
on the issue of attorney fees at the February 14, 2014, hearing.
The court issued the “Findings and Order After Hearing”
for the January 9, 2014, hearing on March 5, 2014 (March 2014
FOAH). The March 2014 FOAH ordered A.D.N. to pay spousal
support to M.D.N. of $6,162 per month, effective October 31,
2013. The order stated that a long cause hearing on the issue of
temporary spousal support, child support and attorney fees was
set for February 14, 2014, and the court reserved jurisdiction to
retroactively modify the amount of spousal support upwards or
downwards with retroactivity reserved to the date M.D.N. filed
her initial notice for support and attorney’s fees.
Meanwhile, the long cause hearing set for February 14,
2014, was continued multiple times, with the parties eventually
agreeing to the appointment of a temporary judge to resolve the
issues that were to be determined at the long cause hearing. The
parties participated in a settlement conference in August 2014
and resolved the issues of temporary spousal support, child
support, and attorney fees. The court entered a “Stipulation and
Order Regarding Temporary Spousal Support, Child Support,
and Other Issues,” on December 31, 2014 (December 2014 order).
Trial in this matter proceeded in two phases many years
later. In the 2022 phase 1 trial, the court addressed the
characterization and division of community property, child and
spousal support arrears, permanent spousal support, and
separate property reimbursement claims. The court issued a
3
tentative statement of decision, and the parties submitted
objections.
In the phase 2 trial in June 2023, the court heard
additional evidence on child support and spousal support arrears,
child support add-ons, an issue of characterization of debt,
A.D.N.’s request for section 271 attorney fees and costs, and the
allocation of rents that had been received by M.D.N. post-
separation from a condominium at the Four Seasons (unit 31F), a
property that the court determined was community property
after the phase 1 trial.
The parties objected to the court’s proposed statement of
decision for phases 1 and 2, and the court issued its final
statement of decision in May 2024. M.D.N. appealed from the
court’s subsequent judgment.
DISCUSSION
M.D.N. raises numerous issues in this appeal and we
discuss each separately post, incorporating additional relevant
facts into our discussion of each issue.
I. Payments under the DVROs and Credits for
Preserving a Community Asset
A. Additional Background
M.D.N. and A.D.N. purchased unit 31F in 2003. The 2014
DVRO required A.D.N. to move out of unit 31F and to pay the
monthly mortgage ($6,400/month) to Chase and the home owner’s
association (HOA) fees ($2,300/month) to the HOA. The 2017
renewed DVRO incorporated this same order. A.D.N. did not pay
these amounts. M.D.N. moved out of unit 31F and signed a one-
4
year lease to rent unit 31F starting on February 2, 2014, for
$17,000 a month, and she continued to rent the unit thereafter.
The mortgage and HOA payments under the DVROs and
unit 31F’s rental profit were issues at trial. M.D.N.
acknowledged in her trial brief that A.D.N. could claim
reimbursements for her use and rental of unit 31F, citing In re
Marriage of Watts (1985) 171 Cal.App.3d 366 (Watts) and In re
Marriage of Epstein (1979) 24 Cal.3d 76 (Epstein), but she argued
that any reimbursement would be unreasonable because of
A.D.N.’s failure to pay the mortgage and HOA fees under the
DVROs, and because M.D.N. had to incur costs to rent an
apartment. A.D.N. argued that, per Watts, he could seek to
charge M.D.N. with the fair rental value of unit 31F given her
exclusive use, and he was entitled to half the rents from unit 31F.
He stated, “The equitable result would be to subtract the
mortgage and HOA dues from rents received and divide any
surplus rental income evenly between the parties. To the extent
[unit 31F] sat vacant for any period of time or was rented at
below-market rent, M.D.N. should be charged with the fair rental
value for those periods because she had exclusive use and
possession of the property.”
The court’s tentative statement of decision for the phase 1
trial ordered A.D.N. to pay M.D.N. for the mortgage and HOA
fees under the DVROs, for the period of November 1, 2013,
through January 31, 2022, for a total of $826,500. The court
reserved additional trial days to adjudicate the allocation of rents
for unit 31F.
5
During the phase 2 trial, the parties presented competing
analyses regarding the cash flow from the rental of unit 31F.
A.D.N.’s expert, Lucy Chung, presented trial exhibit 542, a table
totaling the rent received for unit 31F and deducting expenses.
To conduct her analysis, Chung used M.D.N.’s tax returns and a
profit and loss statement that M.D.N. produced for 2022 and
2023. Chung deducted the expenses for unit 31F from the rental
income and calculated a net cash flow. She explained that she
did not include the mortgage and HOA payments as an expense
in her net cash flow analysis, because, pursuant to the court’s
tentative statement of decision, A.D.N. had been ordered to pay
those expenses. For the total time period at issue, Chung
calculated that M.D.N. received $978,534 net cash flow, and
A.D.N.’s share was $489,267. Interest on this amount totaled
$200,030.
M.D.N. prepared her own summary of income and expenses
for unit 31F, using her tax returns as a reference. She conceded
that she was “not the best bookkeeper” and estimated there were
more expenses than she had listed. She calculated that she
incurred $335,623.71 in loss on renting unit 31F. Among other
things, M.D.N. included in her analysis an “other” category,
which listed a $48,928.64 payment that she made to take the
property out of foreclosure in 2014.
On cross-examination, Chung conceded that she had not
included the expenses M.D.N. had listed for supplies,
moving/storage, parking, postage, shipping, and travel. Chung
testified that she had included expenses claimed on M.D.N.’s tax
6
returns that appeared reasonable in her professional judgment,
and she excluded costs claimed on the tax returns that did not
appear to reasonably relate to the rental of the apartment where
M.D.N. had not produced back-up documentation.
The court issued a proposed statement of decision denying
the claim for rental income for unit 31F and interest and the
claim for amounts due under the DVROs. M.D.N. objected,
requesting that the court indicate that $826,500 was due under
the DVROs, and maintaining that the court must consider the
net rental income on unit 31F after all carrying costs if the court
had decided to call the payments under the DVROs and the
rental income claims “a wash.”
On these issues, the court’s final statement of decision
provides: “[M.D.N.’s] testimony, which the court finds credible, is
that the rents were used primarily to pay for the condo mortgage,
[the parties’ son’s] private school tuition, living expenses for
herself and [their son], and expenses related to the maintenance
of the Bulgarian properties after the parties separated.”3 The
court noted that A.D.N. conceded he had not paid the mortgage or
HOA fees after he moved out, and the court found that the
evidence supported the conclusion that M.D.N. collected rents of
various amounts during that time and used the rental income to
pay for the mortgage, HOA fees, brokers fees, parking, storage,
maintenance of the condo, and to supplement her living expenses.
3 As explained further in Section IV, post, the
characterization of various properties in Bulgaria was a
significant aspect of the trial proceedings.
7
The court continued, “[M.D.N.] seeks payments from
[A.D.N.] for the mortgage and HOA fees from November 1, 2013,
through entry of judgment. Her claim ignores the rents collected
and used to pay the mortgage and HOA fees from 2014 through
November 2023. The court finds that [M.D.N.’s] actions of
renting the condo and using the rents received to pay the
mortgage principal and interest, property taxes, HOA fees,
broker’s commissions, cleaning fees, maintenance, parking, and
storage fees, served to preserve the community property asset. [¶]
Family law cases are equitable proceedings in which the court
must have the ability to exercise discretion to achieve fairness
and equity. (In re Marriage of E[g]edi (2001) 88 Cal.App.4th 17,
22–23.) [A.D.N.] failed to pay for the mortgage and HOA fees,
and [M.D.N.] decided to use the proceeds from the rents to pay for
the mortgage, HOA fees, maintenance, and living expenses.
[M.D.N.] should not be financially penalized for using the rents to
support herself and [the parties’ son] post separation. ‘Those who
seek equity, must do equity and have clean hands.’ (In re
Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28,
38.) [¶] [A.D.N.’s] hands are not entirely clean in this situation,
and any other result would be patently unfair. Accordingly, the
court denies [M.D.N.’s] request for mortgage payments and HOA
fees for Unit 31F and [A.D.N.’s] request for $709,899 ($489,267 in
principal and $220,632 in simple interest at 10% per annum) for
rents received from the condo. The court finds that the rents
were used to preserve the community property asset and pay for
ongoing mandatory child-support add-ons for unreimbursed
8
medical and dental expenses, tutoring, piano lessons, and
discretionary expenses for private school tuition.”
B. Analysis
M.D.N. maintains that the trial court erred by failing to
require A.D.N. to pay her $843,9004 for the mortgage and HOA
payments he did not make under the DVROs and by impliedly
denying her Epstein credits for the alleged $335,623 loss she
incurred to maintain unit 31F and her $505,450 in housing costs.
(Epstein, supra, 24 Cal.3d at pp. 83–84 [court may order
reimbursement for spouse who uses separate property funds
postseparation to improve community asset or pay preexisting
community obligations].) For the reasons set forth post, we reject
M.D.N.’s claims.
Addressing the Epstein claims first, M.D.N.’s evidence did
not compel a finding that she incurred a $335,623 loss in
maintaining unit 31F. (Hogoboom & King, Cal. Practice Guide:
Family Law (The Rutter Group 2026), § 8:843.1 [requesting
spouse has burden to establish Epstein credits and demonstrate
separate property funds were used]; Patricia A. Murray Dental
Corp. v. Dentsply Internat., Inc. (2018) 19 Cal.App.5th 258, 270
[setting forth appellate standard where burden of proof not met].)
M.D.N. presented a self-composed profit and loss summary, her
tax returns listing certain rental expenses, receipts from the
bank holding the mortgage for many (but not all) mortgage
payments, the check used to take unit 31F out of foreclosure, and
two emails that listed monthly HOA fees for 10 years and costs
4 Below, M.D.N. argued the amount at issue was $826,500.
9
related to parking for two years. M.D.N. conceded that she was
“not the best record-keeper,” and she did not provide
documentation showing the actual payments for many of her
claimed expenses. The court credited M.D.N.’s testimony that
unit 31F’s rents were used to pay the property’s expenses, but the
court did not expressly credit the specific amounts of expenses
that M.D.N. claimed in her profit and loss summary. And the
court determined that M.D.N. did not testify truthfully on other
issues. In addition, the court implicitly rejected M.D.N.’s
contention that she suffered significant losses on her rental and
upkeep of unit 31F, as the court specifically found that she used
the rental income for expenses other than the condominium, such
as tutoring, piano lessons, and private school tuition for the
parties’ son. Considering this record, the court was not compelled
to accept M.D.N.’s evidence regarding her alleged $335,623 loss.
M.D.N. also fails to point us to undisputed and
unimpeached evidence of sufficient weight to compel a finding
that she paid for any alleged losses with respect to unit 31F with
separate property. In her opening brief, M.D.N. refers to her trial
testimony wherein she stated generally that she paid for the
expenses on unit 31F without specifying the source of the funds
used. M.D.N. also refers to her testimony that she paid the
money to take unit 31F out of foreclosure “out of [her] account,”
but M.D.N. testified inconsistently about how she made this
payment. She testified at one point that she used her parents’
money and her parents paid the bank directly; she testified at
another point that she used student loan money combined with
10
money borrowed from family and friends; and, early in the case,
she submitted a declaration stating that she used funds from the
sale of one of the Bulgarian properties (which the court later
determined to be a community asset). M.D.N. also conceded that
she did not provide any documentation showing the source of the
funds used to take unit 31F out of foreclosure. In sum, M.D.N.’s
evidence does not compel a conclusion that the court erred in
rejecting her Epstein claim.
M.D.N. additionally argues that the court should be
required to give her an Epstein credit for her housing costs after
separation, but these housing expenses were not payments for a
preexisting community obligation or improvements to community
property. (Epstein, supra, 24 Cal.3d at pp. 83–84 [court may
order reimbursement for spouse who uses separate property
funds postseparation to improve community asset or pay
preexisting community obligations].) M.D.N. does not provide
any other authority suggesting these housing costs are
recoverable, and she has not established the court erred in
denying her the $505,450 as an Epstein credit.
Next, M.D.N. fails to show error or prejudice with respect
to her contention that the court failed to order A.D.N. to pay her
$843,900 under the DVROs. M.D.N. cites cases standing for the
rule that a DVRO order is final if not appealed, and we have no
quarrel with that rule. But the DVROs required A.D.N. to pay
the mortgage to Chase and the HOA fees to the HOA, and M.D.N.
never sought a court order to force A.D.N. to make these
payments. Instead, she chose to rent unit 31F while failing to
11
provide any contemporaneous accounting regarding the property,
and the court found that she used the rental income to pay the
mortgage and HOA fees. As a result, what M.D.N. presented at
trial was a request that A.D.N. pay her the money he should have
paid to Chase and the HOA under the DVROs. But, as the trial
court aptly observed, in requesting that A.D.N. pay her the full
amount due under the DVROs, M.D.N. ignored that she used
community property, not separate property, to pay the mortgage
and HOA fees. Because M.D.N. used community property,
A.D.N. in essence paid for half of the mortgage and HOA fees.
On appeal, M.D.N. asks only that we order A.D.N. to pay her
$843,900, but she provides no authority to support her contention
that A.D.N. was required to pay M.D.N. the full $843,900 when
he had already effectively paid half. For this reason alone, her
claim on appeal fails.
But even if M.D.N.’s claim was that A.D.N. should be
required to reimburse the community $843,900 (in effect giving
M.D.N. half), we cannot conclude that the court erred by denying
reimbursement. A.D.N. asked the court to achieve an equitable
result “with respect to the rents M.D.N. received from [unit 31F]
and her reimbursement request related to the mortgage and
HOA,” arguing that “[t]he equitable result would be to subtract
the mortgage and HOA dues from rents received and divide any
surplus rental income evenly between the parties.” He argued
that M.D.N. would receive an inequitable windfall if he were
ordered to pay the amounts due under the DVROs because she
paid the mortgage and HOA fees with community income. And,
12
while A.D.N. maintained that M.D.N. made a reimbursable profit
off unit 31F under Watts, supra, 171 Cal.App.3d 366, he
nonetheless acknowledged there were bigger issues in the case
and submitted that the court could just decide “there’s nothing
owed between either party here.” In essence, A.D.N. suggested
that the court could deny his claim to half of any profits from the
rent and find that the equitable result would be for the
community to ultimately bear the postseparation costs of the
mortgage and HOA fees. The court impliedly agreed with A.D.N.
when it denied both parties’ claims and recognized that M.D.N.
had ignored her use of community funds. The DVROs do not
address reimbursement, and M.D.N. does not establish in her
opening brief that it was impermissible for the court to conclude
that the community should be responsible for the mortgage and
HOA fees. It would have been pointless for the trial court to
require A.D.N. to reimburse the community for the unpaid
mortgage and HOA fees, and then give him that same amount
back as an Epstein credit for his separate property payment to a
community obligation5; the court therefore did not err in simply
denying M.D.N.’s request for reimbursement. For these reasons,
we see no error in the court’s ruling.
5 M.D.N. did not argue in her opening brief that it would
have been an abuse of discretion for the court to award A.D.N. an
Epstein credit for the mortgage and HOA fees he was required to
pay under the DVROs, nor does she cite any case law holding
that a debt payment order under a DVRO is not subject to
reimbursement later in a dissolution proceeding. As M.D.N.’s
counsel acknowledged during oral argument, the DVROs in this
case were silent as to reimbursement.
13
For similar reasons, M.D.N. has not shown a reasonable
probability of a better result. (Cal. Const., art. VI, § 13.) The
trial court clearly determined that equity required that both
parties walk away with nothing on these claims, stating that
“any other result would be patently unfair.”
II. DVRO Attorney Fees
A. Additional Background
M.D.N. requested attorney fees in the marital dissolution
petition and in the October 2013 RFO under sections 270, 2030,
2032, 3121, and 3557. The court continued hearings on her early
attorney fees requests and the matter was taken off calendar
after the December 2014 order.
M.D.N.’s separate request for a DVRO is not in our
appellate record, and her phase 1 trial brief did not mention
section 6344. After the court issued a tentative statement of
decision for phase 1, M.D.N. filed objections wherein she claimed
entitlement to attorney fees under section 6344. The phase 2
trial was set to address child support and spousal support
arrears, child support add-ons, one debt characterization issue,
A.D.N.’s request for section 271 sanctions, and the allocation of
rents received by M.D.N. post-separation from unit 31F.
During the phase 2 trial, M.D.N.’s counsel introduced
M.D.N.’s June 2023 income and expense declaration (exhibit 184)
and asked her, “Are you claiming attorney’s fees and costs in this
case?” She responded affirmatively. When asked to state the
total amount of attorney fees she had paid, A.D.N. objected that
the question was “beyond the scope.” The court overruled the
14
objection, and M.D.N. testified that she had paid attorneys
$248,904.49. Exhibit 184 listed the total amounts paid to
M.D.N.’s attorneys, including “$56,000” to “Morgan Duffy Smith.”
M.D.N. testified that Morgan Duffy Smith represented her in the
2014 DVRO trial and acted as her counsel for a year, the law firm
charged her over $320,000, and they settled on $56,000 “for the
domestic violence.” The reporter’s transcript for the phase 2 trial
indicates that M.D.N. requested attorney fees and sanctions
under section 271 at some point as well.
The court’s statement of decision did not provide a ruling
on M.D.N.’s request for attorney fees under section 6344 or
otherwise, and the court reserved jurisdiction “for determination
of all other pending issues.”
B. Analysis
M.D.N. maintains in her opening brief that the court did
not address attorney fees under section 6344 in its statement of
decision, and, in failing to do so, denied her request. This was
error, she continues, because under current law those fees “shall”
be awarded to a successful petitioner. (§ 6344, subd. (a).) The
parties debate whether the mandatory provision of section 6344
applies retroactively to the 2014 DVRO proceeding and many
other issues, including whether laches bars M.D.N.’s attorney fee
request. And in M.D.N.’s reply brief, she contends that the court
did not decide the DVRO attorney fees issue and requests that we
remand this omitted matter for a determination by the trial
court.
15
A trial court with a mandatory duty to provide a statement
of decision commits reversible error by failing to provide a
statement upon a timely and proper request. (Karlsen v.
Superior Court (2006) 139 Cal.App.4th 1526, 1530–1531.) When
a trial court fails to provide a statement of decision on a principal
controverted issue, appellate courts generally decline to reach the
merits of the challenge and remand the matter for the trial court
to complete the process and issue a statement of decision. (See
Karlsen, at p. 1531.)
Although M.D.N. requests that we remand with directions
to the court to resolve the section 6344 attorney fees issue, we are
not convinced that the court committed reversible error by failing
to provide a ruling on such fees, given the ambiguity in the scope
of the issues set for determination in the phase 2 trial and the
court’s reservation of jurisdiction “for determination of all other
pending issues.” Nonetheless, in light of our reversal and
remand on the issues of sanctions pursuant to sections 271 and
1101, subdivision (g) (see Sections VIII and IX, post), we believe it
appropriate for M.D.N. to seek a determination on these section
6344 fees, and for the parties to litigate this issue, in the first
instance in the trial court.
III. Section 2640 Reimbursement for Unit 31F’s Down
Payment
M.D.N. next argues the court erred in determining that
A.D.N. should be reimbursed for the $1,104,706 in separate
property he contributed to the down payment on unit 31F. The
court relied on a tracing analysis by A.D.N.’s expert, Lucy Chung,
16
who in turn relied on statements from the couples’ Wells Fargo
bank account (the joint account) to construct her tracing analysis.
M.D.N.’s main contention is that the bank statements for the
joint account were inadmissible, but she also argues that Chung’s
opinion was based on unsupported assumptions. After a review
of the rules governing section 2640 reimbursement and the
relevant facts, we address both of M.D.N.’s claims post.
A. Legal Principles Governing Separate Property
Tracing
Absent a written waiver, separate property contributions to
the acquisition of community property must be reimbursed to the
extent the party seeking reimbursement traces the contributions
to a separate property source. (§ 2640, subd. (b).) Where a bank
account holds both separate property and community property
funds, the commingling does not forfeit a section 2640
reimbursement right where the separate property contribution
can be traced. (In re Marriage of Carpenter (2002)
100 Cal.App.4th 424, 427.) When there is a dispute over whether
a party’s contribution was derived from a separate property
source, use of the traditional “ ‘direct’ ” or “ ‘family expense’ ”
tracing methods ordinarily will be appropriate. (In re Marriage of
Walrath (1998) 17 Cal.4th 907, 920, fn. 5.)
“ ‘Direct tracing’ can be used to demonstrate a spouse’s
separate property was used to purchase an asset, even though
the purchase is made with funds from a commingled account
containing both separate and community property. It requires
(a) documentary proof that sufficient separate property funds
17
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.” (In re Marriage of
Ciprari (2019) 32 Cal.App.5th 83, 95–96.)
“ ‘Exhaustion tracing’ is sometimes also called
‘Recapitulation,’ ‘Family expense,’ ‘Family living expense,’ or
‘Family income exhaustion’ tracing. Whatever the name, it
attempts to trace a payment or purchase from a commingled
mass to separate property funds by process of elimination; i.e., by
showing that — because all community property funds were
exhausted at the time the purchase or payment at issue was
made — separate property funds necessarily must have been
used. [Citation.] This approach presumes that available
community property funds are used for family expenses before
separate property funds are used for that purpose.” (In re
Marriage of Ciprari, supra, 32 Cal.App.5th at pp. 96–97.)
However, tracing “is simply a method of proof.” (In re
Marriage of Ciprari, supra, 32 Cal.App.5th at p. 97.) Accordingly,
courts may consider any credible evidence and evaluate
alternative tracing methods to determine whether the proponent
of the tracing carries his or her burden of proof. (Ibid.) “Thus,
trial courts are free to consider and credit reasonable, well-
supported, and nonspeculative expert testimony, when
determining whether the proponent has successfully traced
commingled assets to a separate property source.” (Ibid.)
18
B. Additional Background
The joint account was the parties’ joint Wells Fargo Bank
checking account. A.D.N. testified that, in 2003, bank statements
for this account were mailed to his post-office box in Larkspur.
After A.D.N. was served with divorce papers, he contacted
Wells Fargo and learned the bank could not provide documents
that were more than seven years old. In April 2014, A.D.N.
subpoenaed Wells Fargo bank records pertaining to the parties.
Wells Fargo produced some documents accompanied by an
employee declaration under oath stating that bank “cannot
provide documents from 09/01/00 to 05/12/07 because of standard
retention.”
In 2014, A.D.N. contacted a friend, Jeff Capaccio, who
introduced him to a Wells Fargo regional manager, and the Wells
Fargo regional manager told A.D.N. “he would do all he could to
retrieve documentation.” Wells Fargo eventually provided
documents from 2002 forward. A.D.N.’s counsel showed him an
exhibit marked “KKKKKK,” which appeared to be copies of bank
statements for the joint account for May 29, 2003, through
August 27, 2003. When A.D.N.’s counsel sought to admit exhibit
KKKKKK, M.D.N.’s counsel objected on hearsay and
authentication grounds. The trial court stated that it did not
believe A.D.N. was a qualified witness to speak to the
preparation of the bank statements as contemplated by Evidence
Code section 1271. After further discussion, the court deferred
ruling.
19
The next day discussion resumed, and the court stated that
it did not believe that A.D.N. was qualified to testify to the
process by which the bank statements were created under
Evidence Code section 1271. A.D.N. requested time to locate the
Wells Fargo employee who had produced the records to him, and
the court granted A.D.N.’s request. M.D.N. then argued that
A.D.N.’s expert had relied on the bank statements and she
requested that Chung’s analysis, exhibit EEEEEE, be excluded
from evidence. The court deferred ruling on the issue.
A.D.N. subpoenaed prior Wells Fargo employee, Gregory
Weitzman, and Weitzman objected to the subpoena by
declaration. Weitzman said he had no recollection of the events
at issue and he had received copies of account statements for
May, June, July, and August of 2003 from M.D.N.’s attorney. He
continued, “After a short review of the account statements and
one email dated August 22, 2014, I am unable to swear under
oath that these account statements are official records of Wells
Fargo Bank. [¶] [ ] The email address was my Wells Fargo email
address at the time. My signature block contains my correct title,
work address and phone number. I do not recall how I retrieved
these documents to forward them to [A.D.N.]. [¶] [ ] My primary
job function in 2014 was as an outbound salesperson brin[g]ing
new small business banking relationships to Wells Fargo. I did
not meet [A.D.N.], although from the one email it appears there
were additional communications of which I have no recollection.”
The court compelled Weitzman to testify at trial.
20
Weitzman testified at trial that he was a business
development officer at Wells Fargo in 2014. Weitzman did not
recall being contacted in 2014 by Jeff Capaccio. When shown
exhibit 525, which on its face appeared to be a 2014 thread of
emails between Weitzman, Capaccio, and A.D.N., Weitzman
confirmed that the email listed on the document for “Gregory
Weitzman” was his email address at the time. The email
referenced a search, but Weitzman did not remember specifics
related to the search. A.D.N.’s counsel asked, “Do you recall
generally what you were looking for?” Weitzman responded,
“Yes. Generally[,] we were looking for, I believe [A.D.N.’s] bank
statements.” Weitzman did not recall conversations he had with
Capaccio or the emails with A.D.N., and exhibit 525 did not
refresh his recollection as to any specifics.
Weitzman testified that he worked for Wells Fargo for two
periods of time between 2010 and 2018. He assisted customers
with obtaining historical bank statements during his time at
Wells Fargo “[g]enerally, quite often,” and he would use Wells
Fargo’s computer system to locate those bank statements.
Weitzman sometimes reached out to the Wells Fargo help desk to
assist with obtaining statements for clients if he could not find
the information, but he did not recall the specific instance of
engaging its services to get statements for A.D.N. in 2014. In his
role as regional manager in 2014, Weitzman did not routinely
help obtain bank statements for his clients, and if he did so then,
it would have been a “unique instance.”
21
A.D.N. then presented exhibit 526, a one-page transmittal
email dated August 22, 2014, from “Gregory.Weitzman” to
“tdnprivate,” to which documents were attached. Weitzman
reviewed the document and said that he could see that it was an
email from him to A.D.N. from Weitzman’s Wells Fargo email
account. Weitzman then identified bank statements as being
attached to the email. When asked if the email refreshed his
memory, Weitzman said, “It does not refresh my recollection. I
do read that it happened here from my — from Gregory
Weitzman at Wells Fargo com to [A.D.N.]. I see — I can see that
this did occur through the statement. I don’t have a — I don’t
have a recollection of it.”
Weitzman testified that, during his time at Wells Fargo, he
never sent a customer bank statements for an account to which
the customer did not hold title, and he did not recall ever sending
a customer bank statements from a source other than Wells
Fargo. He had no reason to doubt that bank statements he
produced to customers were Wells Fargo documents. With
respect to exhibit 526, Weitzman testified, “From what I see here,
it appears that this was sent to [A.D.N.] I do not have a personal
recollection of this exchange.”
M.D.N. objected to the admission of exhibits 525 and 526
for lack of foundation and failure to establish a hearsay
exception. The court heard argument and asked counsel what
specific testimony had been given about the mode of preparation
of the bank statements, and the court questioned whether
Weitzman had personal knowledge of the mode of preparation of
22
these statements. After hearing additional argument, the court
overruled the objections and admitted both exhibits.
During cross-examination, Weitzman stated that he stood
by his earlier declaration, including his statement that he did not
recall how he retrieved the bank statements to send to A.D.N.
Weitzman testified that he did not recall having knowledge of
Wells Fargo’s record-keeping system, he had no knowledge of how
Wells Fargo kept and maintained bank records in 2003, and he
did not know whether the documents attached to exhibit 526
followed the record-keeping process used by Wells Fargo. The
court expressed concern about Evidence Code section 1271,
subdivision (c) after cross-examination and asked A.D.N.’s
counsel to address this issue on redirect.
On redirect, Weitzman testified that it would be his
practice to use the help desk to obtain customer bank statements
if he needed to do so. Weitzman also testified that, when he
provided bank statements to customers, he had no concerns about
their accuracy. “[I]f I’m providing statements to customers, these
are statements that I’m generating or pulling from Wells Fargo
systems or from the help desk.” Weitzman was reasonably
confident that those bank statements were accurate. The court
stated that Weitzman’s redirect testimony had addressed its
concerns.
On recross, Weitzman testified that he did not recall if he
had knowledge of the mode of preparation for the bank
statements in exhibit 526, and he did not have knowledge of the
23
record-keeping system that Wells Fargo used to create those
records.
Subsequently, A.D.N. sought to admit exhibit EEEEEE,
Chung’s tracing report. M.D.N. objected that there had been no
showing that the bank statements that Chung relied on were the
same as those that had been admitted in trial. A.D.N. then
testified that the records contained in exhibit 526 were “the same
and only documents” he had received from Weitzman, and these
were sent through his counsel to Chung. The court overruled
M.D.N.’s objection and admitted Exhibit EEEEEE.
C. Authentication and Hearsay
M.D.N.’s main contentions on appeal are that the bank
statements for the joint account, upon which Chung relied, were
not properly authenticated and constitute inadmissible hearsay.
We reject each argument in turn, post.
Authentication
“Authentication of a writing means (a) the introduction of
evidence sufficient to sustain a finding that it is the writing that
the proponent of the evidence claims it is or (b) the establishment
of such facts by any other means provided by law.” (Evid. Code,
§ 1400.) A writing can be authenticated by circumstantial
evidence and by its contents. (People v. Skiles (2011) 51 Cal.4th
1178, 1187.) “Essentially, what is necessary is a prima facie case.
‘As long as the evidence would support a finding of authenticity,
the writing is admissible. The fact conflicting inferences can be
drawn regarding authenticity goes to the document’s weight as
24
evidence, not its admissibility.’ ” (People v. Goldsmith (2014)
59 Cal.4th 258, 267.)
M.D.N. and A.D.N. testified that they had a joint account
at Wells Fargo, and they both identified the last four numbers of
the joint account. A.D.N. testified that Weitzman provided him
with bank statements for this joint account in 2014 upon request,
those bank statements were in exhibit 526, and the statements
included the same information as the monthly bank statements
A.D.N. had received by mail during the marriage. Weitzman
identified the documents attached to exhibit 526 as bank
statements, and, although he could not recall sending them to
A.D.N., Weitzman testified that he had no reason to doubt that
the bank statements he provided to customers in the course of his
employment were accurate Wells Fargo records. The documents
at issue were sent from Weitzman’s Wells Fargo email in 2014,
Weitzman identified his email address, and Weitzman also
acknowledged that exhibit 525 was an email chain including his
Wells Fargo email address with the subject line, “[A.D.N.].” The
bank statements included in exhibit 526 are entitled, “Account
Statement”; they reflect a joint account in the parties’ names;
they are dated; they list the account number identified by the
parties for the joint account; and they include deposits and
withdrawal transactions listed by date. Despite the fact that
Weitzman was unwilling to swear under oath that the bank
statements were Wells Fargo documents, this evidence was
sufficient for the court to conclude that exhibits 525 and 526 were
authentic.
25
M.D.N. counters that, given Wells Fargo’s response to
A.D.N.’s 2014 subpoena, there was a presumption that the
exhibits did not contain Wells Fargo documents under Evidence
Code sections 1561 and 1562.6 But even if these statutes created
a presumption that Wells Fargo did not retain records related to
the parties other than those produced pursuant to the subpoena,
the court could find that the presumption had been rebutted.
(Evid. Code, § 1562 [this is “a presumption affecting the burden
of producing evidence”].) Once A.D.N. produced evidence that the
documents at issue were, in fact, authentic Wells Fargo records,
the court was to determine the fact “without regard to the
presumption.” (Evid. Code, § 604.)
The Business Records Hearsay Exception
At issue next is whether the bank statements for the joint
account were properly admitted under the business records
exception, Evidence Code section 1271.7 To qualify for this
6 These statutes provide that, if a business has only some of
the records subpoenaed, “the custodian or other qualified witness
shall so state in the [responsive] affidavit,” (Evid. Code, § 1561,
subd. (b)), and such a declaration “is admissible as evidence of the
matters stated therein . . . and the matters so stated are
presumed true. . . . The presumption established by this section is
a presumption affecting the burden of producing evidence.”
(Evid. Code, § 1562.)
7 M.D.N. briefly, and in a conclusory fashion, argues that
the emails in exhibits 525 and 526 are hearsay because
Weitzman “could not supply any foundational facts to establish a
business record exception.” In this section of her argument, she
fails to show through reasoned analysis why the court erred in
admitting the emails under Evidence Code section 1271. “When
points are perfunctorily raised without adequate analysis and
authority, we may treat them as abandoned or forfeited.” (City of
26
exception to the hearsay rule, the writing must have been made
in the “regular course of (the) business,” the writing must have
been made “at or near the time of the act, condition or event”
recorded, the record’s “custodian or other qualified witness” must
testify to its identity and mode of preparation, and the sources of
information on which the record is based and method and time of
the record’s preparation must be “such as to indicate its
trustworthiness.” (Evid. Code, § 1271, subds. (a)–(d).) These are
preliminary fact determinations subject to the trial court’s broad
discretion. (Exclusive Florists, Inc. v. Kahn (1971) 17 Cal.App.3d
711, 716.)
The foundation for admitting a business record “is properly
laid if in the opinion of the court, the sources of information,
method and time of preparation were such as to justify its
admission.” (People v. Williams (1973) 36 Cal.App.3d 262, 275.)
Additionally, the foundation requirements may be inferred from
the circumstances. (People v. Dorsey (1974) 43 Cal.App.3d 953,
960–961 (Dorsey).) A trial court has wide discretion in
determining whether sufficient foundation is laid to qualify
evidence as a business record. (Grail Semiconductor, Inc. v.
Mitsubishi Electric & Electronics USA, Inc. (2014) 225
Cal.App.4th 786, 798 (Grail).) We find no abuse of the court’s
wide discretion for the reasons set forth post.
Palo Alto v. Public Employment Relations Bd. (2016) 5
Cal.App.5th 1271, 1302.) M.D.N. also does not argue that the
admission of the emails was itself prejudicial, instead relying
solely on A.D.N.’s expert’s use of the bank statements themselves
for her claim of prejudice.
27
We start with Evidence Code section 1271, subdivision (a).
Weitzman testified that he obtained historical bank statements
for customers “[g]enerally, quite often” when he worked for Wells
Fargo from 2010 to 2018. He used Wells Fargo’s computer
system to locate these documents and sometimes obtained
assistance from the Wells Fargo help desk. Weitzman testified
that he had no reason to believe that the bank statements he
provided to customers were not Wells Fargo records, and he also
identified the documents attached to exhibit 526 as bank
statements. On this record, we cannot conclude the court abused
its discretion in finding there was sufficient testimony to infer
that Wells Fargo maintained the customer bank statements in
the regular course of its business.
Next, Evidence Code section 1271, subdivisions (b) and (c)
state the writing must have been made “at or near the time” of
the act, condition or event recorded, and a “qualified witness”
must testify as to its identity and mode of preparation. As to
identity, Weitzman, who worked at Wells Fargo for many years
and generally provided customers with historical bank
statements, identified the documents attached to exhibit 526 as
bank statements.
With respect to the timing and mode of preparation
requirements, we agree with A.D.N. that Dorsey, supra,
43 Cal.App.3d 953, is instructive. Dorsey involved charges of
writing bad checks, and a bank operations officer testified that
“he was the custodian of the bank’s records and that all the
records involved were kept in the normal course of business.” (Id.
28
at pp. 956, 958.) Based on the bank’s records, including monthly
bank statements, the officer testified about the date the
defendant opened an account, the date the bank closed the
account, and the fact that numerous insufficient funds checks
were presented and rejected on the account. (Id. at pp. 958, 960.)
On appeal, the defendant contended the witness did not
provide sufficient foundation to admit the bank records testimony
under Evidence Code section 1271. (Dorsey, supra, 43 Cal.App.3d
at pp. 959–960.) The court first observed that possible
deficiencies in the witness’ testimony were the witness’ failures to
testify to the mode and time of preparation of the bank
statements, but the defendant forfeited the objection by not
specifically highlighting those foundational deficiencies. (Id. at p.
960.) The court continued, “Moreover, we believe that bank
statements prepared in the regular course of banking business
and in accordance with banking regulations are in a different
category than the ordinary business and financial records of a
private enterprise. It is common knowledge that bank
statements on checking accounts are prepared daily and that
they consist of debit and credit entries based on the deposits
received, the checks written and the service charges to the
account. We fail to see where appellant has been prejudiced by
the absence of testimony as to the ‘method’ of preparation of the
records, i.e., whether by hand or by computer and from what
sources. Such testimony would not have a bearing on the basic
trustworthiness of the records. While mistakes are often made in
the entries on bank statements, such matters may be developed
29
on cross-examination and should not affect the admissibility of
the statement itself.” (Id. at pp. 960–961.) “A trial judge has
broad discretion in admitting business records under Evidence
Code section 1271, and it has been held that the foundation
requirements may be inferred from the circumstances.” (Id. at p.
961.)
We also find Grail, supra, 225 Cal.App.4th 786, instructive.
There, the defendant allegedly violated a nondisclosure
agreement by using confidential information to develop new
technology for computer memory chips for its joint venture,
Renesas. (Id. at pp. 789–791.) One issue on appeal was whether,
during the testimony of Renesas’ senior director, Keeley, the trial
court had erred in admitting two pages from Renesas’ American
and European websites that represented Renesas’ memory chip
used a certain technology. (Id. at pp. 796–798.) Keeley testified
that he did not know what technology was used in the memory
chip at issue, and he could not confirm that Renesas represented
that its memory chip used any specific technology. (Id. at pp.
796–797.) When showed the Renesas website pages, Keeley
testified that one exhibit had the “look and feel” of a Renesas
marketing document, and the other looked the same generally.
(Id. at p. 798.) Defendant challenged the admission of the
exhibits under the business records exception because Keeley was
not the custodian of the records and he lacked knowledge of their
creation, maintenance, or accuracy. (Id. at pp. 797–798.) The
court admitted the exhibits based on Keeley’s testimony and the
exhibits’ URL indicating they came from Renesas’ websites, and
30
the defendant thereafter introduced evidence attempting to show
a mistranslation between the original Japanese content and the
websites. (Id. at pp. 797–798.)
The appellate court affirmed. (Grail, supra,
225 Cal.App.4th at p. 798.) Keeley’s “testimony was very general
and thus could have been the ground for sustaining [defendant’s]
hearsay objection.” (Ibid.) However, Grail found that the trial
court had not abused its wide discretion to assess foundation
under Evidence Code section 1271 by concluding that the
evidence of authenticity and trustworthiness supplied by Keeley’s
testimony was adequately supplemented by the URL notation on
the exhibits and the original Japanese versions offered by
defendant. (Grail, at p. 798.)
Here, as in Dorsey and Grail, the court exercised its wide
discretion under Evidence Code section 1271 to admit the bank
statements. There was sufficient evidence for the court to
conclude that the bank statements were made in the regular
course of Wells Fargo’s business, and that the documents within
exhibit 526 were Wells Fargo bank statements, including, akin to
Grail, testimony from the business employee allowing an
inference that the documents at issue were company documents.
(See Grail, supra, 225 Cal.App.4th at p. 798.) Testimony about
the timing and mode of preparation of the bank statements was
absent, but Dorsey supports the court’s conclusion that these
requirements could be inferred from the circumstances and
common knowledge. (Dorsey, supra, 43 Cal.App.3d at pp. 960–
961.)
31
M.D.N. argues that Dorsey’s discussion with respect to the
foundation for bank statements as business records is dicta and
this case is distinguishable because Weitzman was not
knowledgeable about Wells Fargo’s record-keeping process,
retention policy, or the method of preparation for bank
statements. Dorsey’s discussion is not dicta (see Varshock v.
Department of Forestry & Fire Protection (2011) 194 Cal.App.4th
635, 646, fn. 7), but it is not binding on us in any event. Dorsey’s
reasoning, however, was that foundational requirements under
Evidence Code section 1271 can be inferred by circumstances,
and it is common knowledge that bank statements on checking
accounts are prepared daily and consist of debit and credit
entries based on the deposits received, the checks written, and
the service charges to the account. (Dorsey, supra, 43 Cal.App.3d
at pp. 960–961.) We find Dorsey persuasive on these points.
Citing Chambers v. Crown Asset Management, LLC (2021)
71 Cal.App.5th 583, 597 (Chambers), which upheld the exclusion
of documents related to a credit card agreement, M.D.N. suggests
that Chambers disagreed with Dorsey. But Chambers found
Dorsey distinguishable based on the records at issue. (Chambers,
pp. 596–598.) “Dorsey does not aid Crown under the
circumstances here. First, even accepting that bank statements
may be more readily found to be business records than other
hearsay documents, bank statements are not at issue here. What
is at issue are the records showing the mailing of the credit card
account agreement to Chambers.” (Ibid.) And Chambers also
distinguished Dorsey because the court there upheld the trial
32
court’s broad discretion to admit business records, whereas the
Chambers court was being asked to reverse the trial court’s
exercise of discretion to exclude the records. (Id. at pp. 597–598.)
Here, like Dorsey, we uphold the trial court’s broad discretion.
Finally, Evidence Code section 1271, subdivision (d)
requires that the “sources of information and method and time of
preparation were such as to indicate [the record’s]
trustworthiness.” Again, we find no abuse of discretion. “It is
common knowledge that bank statements on checking accounts
are prepared daily and that they consist of debit and credit
entries based on the deposits received, the checks written and the
service charges to the account. We fail to see where appellant
has been prejudiced by the absence of testimony as to the
‘method’ of preparation of the records, i.e., whether by hand or by
computer and from what sources. Such testimony would not have
a bearing on the basic trustworthiness of the records.” (Dorsey,
supra, 43 Cal.App.3d at pp. 960–961.)
Accordingly, we find no abuse of discretion in the court’s
admission of the Wells Fargo bank statements for the joint
account.
D. Chung’s Tracing Analysis
Additional Background
Chung reviewed bank statements for the joint account for
the report she prepared using what she deemed “direct
transactional tracing.” Chung reviewed bank statements from
May 28, 2003, through October 3, 2003, the date of the
downpayment on unit 31F. She treated the starting balance in
33
the account on May 28, 2003, as community property, all deposits
that were not traced to separate property as community funds,
and all withdrawals from the account as being for community
obligations or expenses. Chung identified deposits on June 23,
2003, from the sale of A.D.N.’s separate property home in Florida
totaling $719,000 as the first deposits of separate property funds,
and testified that the community balance in the account prior to
these separate property deposits was $3,887.90. Thereafter, if
there were community funds available in the account when a
withdrawal occurred, she applied those community funds to each
withdrawal and A.D.N.’s separate property funds if community
funds were insufficient. Chung identified only one additional
separate property deposit in the account, a June 27, 2003, deposit
of $1,728,226.29, also from the sale of A.D.N.’s Florida property.
Chung testified that unit 31F was purchased with an
$84,000 earnest money deposit on June 24, 2023, from A.D.N.’s
separate property, as community funds had been exhausted
before that withdrawal. From there, she “tracked all of the
activities in that bank account based on the bank statement, and
follow[ed] that account activity through the time that
the . . . closing funds were used to finalize a purchase on [unit
31F].” She testified that the $1,395,821.62 payment to close on
unit 31F consisted of $291,115.79 of community funds and
$1,104,705.83 of A.D.N.’s separate property funds.8
8 The court awarded A.D.N. $1,104,706 for the funds paid
to close on unit 31F. A.D.N. did not assert a claim for the
$84,000 earnest money payment.
34
On cross-examination, M.D.N.’s counsel asked Chung about
a “missing transaction[ ]” indicated on Chung’s analysis between
September 25, 2003, and September 30, 2003. The parties’ Wells
Fargo account balance increased by $298,210.71 during this time,
but Chung testified that she had no source bank records for these
days, as the bank statements she had reviewed were missing
these days for some reason. Chung presumed there was a
$298,210.71 deposit of community funds during this time,
although she testified, “[A.D.N.] thinks that some of those may
have been transferred from another account that could be
separate property.”
When asked whether she had testified at her deposition
that she did not have the source information to determine
whether or not the outflows for many transactions were
benefitting the community or separate property, Chung replied,
“Well, during the marital period, the presumption is that to the
extent I cannot identify the source of the deposit[,] that’s
presumptively community, as with the payments out of that
account. The same treatment, that during the marital period is
presumptively community use of the funds. I was not made
aware of — that the money was used for a separate property
source. And [A.D.N.] is not making a separate property claim
other than monies going directly to the acquisition of properties.”
Analysis
M.D.N. argues that the section 2640 reimbursement should
be reversed because Chung made unsupported assumptions.
Specifically, she challenges Chung’s treatment of expenditures
35
from the Wells Fargo joint account, and her conclusion about
what M.D.N. contends is “missing data” regarding the source of
one net positive increase in the joint account shortly before the
parties closed on unit 31F.
We address our standard of review for this part of M.D.N.’s
section 2640 challenge first because there appears to be a
disagreement between the parties on this issue. M.D.N.
essentially claims that there is an absence of evidence to support
the court’s ultimate finding that A.D.N. traced the funds
expended on unit 31F to a separate property source. Whether a
party has adequately traced funds expended to a separate
property source is a question of fact for the trial court, and the
court’s finding must be upheld so long as supported by
substantial evidence. (In re Marriage of Ciprari, supra, 32
Cal.App.5th at p. 95.)
To support her challenge, M.D.N. points to Chung’s
testimony that, where the reason for a withdrawal was not
identified on the banking records for the joint account, Chung
treated the withdrawal as a community withdrawal, and to
Chung’s analysis, which showed blanks for the “activity” column
of many withdrawals. But M.D.N. also testified at trial that the
joint account was the parties’ “primary account” during the
relevant time period, they had only one joint checking account at
a time, both parties deposited their salaries into this account; and
M.D.N. confirmed that the account was used to purchase
groceries, clothing and family necessities, and to pay utilities.
Chung also testified that she was not made aware that any
36
withdrawals (other than the downpayment on unit 31F) were
done for a separate property purpose.
Considering the evidence and standard of review, M.D.N.’s
challenge to the treatment of withdrawals from the joint account
during the relevant period fails. First, M.D.N. fails to discuss all
evidence on this issue in her briefing. If an appellant’s brief cites
only evidence favorable to the appellant and disregards evidence
that supports the judgment, we may treat a substantial evidence
argument as forfeited. (Doe v. Roman Catholic Archbishop of
Cashel & Emly (2009) 177 Cal.App.4th 209, 218.) Second, given
M.D.N.’s testimony, the trial court could reasonably infer that the
withdrawals from the joint account were for community purposes.
(In re Marriage of Ciprari, supra, 32 Cal.App.5th at p. 94 [all
reasonable inferences will be resolved in support of court’s
order].)
Next, it is true that there are no banking records for the
joint account for the period from September 25, 2003, to
September 29, 2003. However, the record shows that
$1,395,821.62 was due on October 3, 2003, to close on unit 31F
(which the parties would have known about), and the joint
account had a balance of $1,262,731.16 on September 24, 2003.
Bank records show the account had a net positive increase of
$298,210.71 during the five-day period from September 25, 2003,
to September 29, 2003. And with respect to this “net positive
increase,” Chung testified without objection that A.D.N. indicated
to her that “some of those [funds] may have been transferred
from another account that could be separate property.” Giving
37
the judgment the benefit of every reasonable inference (In re
Marriage of Ciprari, supra, 32 Cal.App.5th at p. 94), the court
could conclude it was more likely than not that the net increase
of $298,210.71 was a result of deposits to the joint account and
that Chung reasonably presumed those to be community funds,
virtually all of which ($291,115.79) were then used to pay part of
the $1,395,821.62 payment to close unit 31F on October 3, 2003.
For the reasons set forth ante, we affirm the court’s award
of $1,104,706 for A.D.N.’s section 2640 separate property
contribution to the downpayment on unit 31F.
IV. The Bulgarian Properties
A. Additional Background
The characterization of six apartments in Sofia, Bulgaria,
was another main issue at trial.9 M.D.N. maintained in her trial
brief that these properties were her separate properties because
her parents gifted her the money to make the downpayment on
some of the properties or because her parents gifted her the
properties after they purchased them with funds received from
selling other properties they had received back from the
government after the fall of communism.10 A.D.N. claimed the
9 These properties were 27 Moskovska Street No. 11; 27
Moskovska Street No. 12; 24 San Stefano Street; August 11
Street No. 10; 17 Georgi Benkovski Street; and 8 Kliment
Ohridski Street.
10 During trial, M.D.N.’s mother testified that she gave
money to M.D.N. to purchase August 11 Street No. 10, and in
closing M.D.N. argued that the properties were all gifted to her in
some fashion, noting that she bought 27 Moskovska Street No. 11
with money given to her by her parents.
38
funds for the purchase and improvement of the Bulgarian
properties came from community property accounts, with
M.D.N.’s parents contributing nothing. After hearing the parties’
testimony, the court found that five of the Bulgarian apartments
were community property and one apartment was jointly owned
by M.D.N. and A.D.N. with each having a 50 percent interest.
The court began its statement of decision by stating that
M.D.N. presented evidence that her mother received after the
collapse of communism agricultural land parcels that had been
taken by the communist regime in Bulgaria. “From there the
testimony and evidence concerning the acquisition of property in
Sophia [sic] and whether it is community or separate becomes
almost hopelessly unclear.”
The court observed that the parties gave contradicting
stories about how the Bulgarian properties were acquired.
M.D.N. presented copies of deeds, her testimony, and her
mother’s testimony, but she did not present any additional
documentary evidence — for example, documents relating to pre-
marital employment or income, documents substantiating
monetary gifts or real property transfers from her mother,
financial records, letters, or communications — supporting her
separate property claim. “Considering all of the contradictions
and inconsistencies in [M.D.N.’s] testimony, combined with the
lack of any credible corroborating evidence, the court finds that
[M.D.N.’s] testimony that her alleged pre-marriage savings and
gifts from her mother were used to purchase all the Bulgarian
properties is not credible.”
39
The court stated that A.D.N. had presented his testimony
and bank records for three of the six properties in dispute and
testified about the community property financing of the
remaining three properties. The court credited A.D.N.’s
testimony, finding that bank records he provided were the best
evidence verifying that the properties were acquired with
traceable community funds. “Accordingly, the Bulgarian
properties acquired during marriage will be characterized as
community property based upon the evidence presented for
[A.D.N.’s] separate property tracing: (l) San Stefano Street, (2)
Georgi Benkovski Street, and (3) Kliment Ohridski Street. The
court finds that the presumption of community property applies
to two of the properties in light of [M.D.N.’s] failure to bear her
burden of proof and provide credible evidence of separate
property tracing: (4) 27 Moskovska Street, No. 12; and (5) 11
August Street [No. 10].”
B. Analysis
On appeal, M.D.N. claims that the court erred in its
characterization of the Bulgarian properties because the court
“based [its] conclusion on a fundamental misunderstanding of the
contentions and evidence.” “The glaring problem,” M.D.N.
argues, is that the court rejected her separate property claim
because she failed to provide documentation of pre-marital
savings or monetary gifts from her mother, which M.D.N.
contends shows the court failed to understand her argument was
that her parents bought the properties with their own money and
gifted them to M.D.N.
40
We cannot agree with M.D.N.’s claim that the court
misunderstood her theory with respect to her separate property
claim. M.D.N. wrote in her trial brief that she acquired some of
the Bulgarian properties with money given to her by her mother
and the others were purchased by her parents with their money
and gifted to her. A.D.N., in contrast, contended that all
properties were purchased with community property funds and
he learned after the separation that three of the properties were
acquired in M.D.N.’s name and three were acquired in the name
of her parents. The statement of decision provides that M.D.N.
“offered no documents into evidence related to her pre-marriage
employment or income . . . and presented no documents reflecting
or substantiating the gifts of money or real property transfers
from her mother.” M.D.N. points out that she provided deeds
showing title transfers from her parents’ names to her name for
three properties, but the court acknowledged that M.D.N.
provided these titles. Viewing the court’s statements in context
with A.D.N.’s claim that community funds were used to purchase
all of the properties, some of which (unbeknownst to him) had
been acquired in M.D.N.’s parents’ names, deeds showing that
M.D.N.’s parents later transferred the properties to her do not
shed any light on what funds her parents used to acquire them in
the first place. That is how we understand the court’s reference
to the absence of documentation substantiating real property
transfers from M.D.N.’s mother. So read, the court’s comments
reflect an understanding, and rejection, of M.D.N.’s claim that
the Bulgarian properties were her separate property, acquired
41
either through monetary gifts or transfers of property purchased
by her parents.
M.D.N. raises additional claims of error regarding the
court’s community property characterization of specific
properties. Regarding San Stefano, Kliment Ohridski, and
Georgi Benkovski, she contends that the court erroneously
concluded that A.D.N. presented testimony and bank records for
these three properties when A.D.N.’s banking records (exhibits
AAAA, LLLL, and GGGG) were not admitted into evidence
and/or did not support his testimony. She similarly contends that
the court improperly relied on unadmitted exhibit AAAA to
award A.D.N. a section 2640 contribution for San Stefano’s down
payment.
Turning first to San Stefano, M.D.N. inaccurately asserts
that the court relied on exhibit AAAA to characterize this
property and award A.D.N. a section 2640 contribution when
exhibit AAAA was not admitted into evidence. The court did not
cite exhibit AAAA in its statement of decision, and, as M.D.N.
concedes, the contents of exhibit AAAA are duplicated in the
bank statements in exhibit 526, which the trial court cited.
Specifically, exhibit 526 contains an entry reflecting a $125,000
wire transfer listing M.D.N.’s mother’s name within its entry.
The court properly admitted the bank statements in exhibit 526,
so M.D.N.’s argument that no banking record supported the San
42
Stefano purchase or the section 2640 reimbursement necessarily
fails.11
Regarding Kliment Ohridski, exhibit LLLL reflects a
foreign, outgoing wire of $172,000 on July 23, 2007, from a bank
account in M.D.N.’s and A.D.N.’s names. A.D.N. testified that
this transfer was for the purchase of Kliment Ohridski and he
sent the money to M.D.N.’s mother. The court could reasonably
have concluded that exhibit LLLL supported A.D.N.’s testimony.
Regarding Georgi Benkovski, M.D.N. argues that the court
improperly relied on exhibit GGGG, which was not admitted into
evidence, to credit A.D.N.’s testimony regarding how the
Bulgarian properties were acquired. Even accepting the court
improperly relied on exhibit GGGG, we discern no prejudice.
(Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818,
836.) A.D.N. testified without objection that the money used to
purchase Georgi Benkovski was sent by wire and the account
statement reflecting this transaction said, “Foreign outgoing
wire, U.S. dollars.” When provided with exhibit GGGG, A.D.N.
testified that the exhibit was a Washington Mutual joint account
statement, he saw a foreign outgoing wire transaction on the
statement for $130,000 on November 2nd, and that was him
11 With respect to the section 2640 reimbursement, M.D.N.
ignores that the court also relied on Chung’s testimony regarding
the separate property $125,000 down payment and exhibit
EEEEEE. M.D.N. cannot ignore evidence the court relied upon
and succeed on a substantial evidence challenge. (Nwosu v. Uba
(2004) 122 Cal.App.4th 1229, 1246 [appellants who argue absence
of substantial evidence must set forth all material evidence on a
point].)
43
sending the funds to buy Georgi Benkovski.12 The court
sustained M.D.N.’s objection to the admission of exhibit GGGG
itself on hearsay grounds, but A.D.N.’s testimony regarding the
bank statement’s content was part of the record. And bank
records supported A.D.N.’s testimony about the purchases of San
Stefano and Kliment Ohridski. M.D.N. simply does not show a
probability of a more favorable result with respect to Georgi
Benkovski. (Watson, supra, 46 Cal.2d at p. 836.)
Finally, M.D.N. contends that A.D.N. did not provide
testimony to support the court’s conclusion that August 11 Street
No. 10 was community property. The court stated that A.D.N.
presented bank records and testimony about three Bulgarian
properties and testimony about the remaining three properties.
However, the court went on to find that M.D.N. failed to rebut
the community property presumption with respect to August 11
Street No. 10, which was purchased during the parties’ marriage
in 2004. M.D.N. testified that August 11 Street No. 10 was
purchased in her name with funds from her mother and
grandmother, but the court specifically found that M.D.N.’s
evidence was not credible. We have no cause to reweigh the
court’s credibility finding (Rufo v. Simpson (2001) 86 Cal.App.4th
573, 622), so M.D.N.’s argument with respect to August 11 Street
No. 10 necessarily fails.
12 M.D.N.’s only objection during this testimony was that
counsel’s questions were leading.
44
V. The Merrill Lynch Account
The court determined that a Merrill Lynch account held in
A.D.N.’s name was community property and the money was to be
equally divided. M.D.N. challenges the court’s decision to value
the account as of the date of trial rather than the date of
separation, but she fails to show the court abused its discretion.
(In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572 [if
court exercises discretion under section 2552 in legal manner,
decision will be affirmed where supported by substantial
evidence].)
Under section 2552, the court shall value the assets and
liabilities of the community estate as near as practicable to the
time of trial. (§ 2552, subd. (a).) However, upon 30 days’ notice
by the moving party, the court for good cause shown may value
all or any portion of the assets and liabilities at a date after
separation and before trial to accomplish an equal division of the
community estate. (§ 2552, subd. (b).) M.D.N. listed the value of
the Merrill Lynch account at separation in her brief for the phase
1 closing argument and sought half, but on appeal she fails to
provide a record citation showing that she gave 30 days’ notice of
a request to value this asset at the time of separation. (§ 2552,
subd. (b).) She also fails to point to a good cause showing below
such that we could conclude on appeal that the court abused its
discretion in valuing the account.13
13 We deny A.D.N.’s October 2025 request for judicial notice
as irrelevant to our disposition. (Ayers v. FCA US, LLC (2024)
99 Cal.App.5th 1280, 1300.)
45
VI. Temporary Spousal Support Arrears
The March 2014 FOAH required A.D.N. to pay $6,162 per
month for temporary spousal support, effective October 31, 2013.
This order provides, “The [c]ourt reserves jurisdiction to
retroactively modify the amount of spousal support ordered,
either upward or downward, based on the evidence . . . that will
be presented at the long cause hearing . . . . Retroactivity is
reserved to the date [M.D.N.] filed her initial motion for support
and attorney’s fees.” A.D.N. conceded at trial that he did not pay
the support required by the March 2014 FOAH.
As noted, the parties subsequently agreed to a stipulated
order regarding temporary spousal support. This December 2014
order states:
1. [A.D.N.] shall pay [M.D.N.] interim
temporary spousal support in the amount of
$1,400.00 (One Thousand Four Hundred Dollars) per
month.
2. This order shall be effective August 1, 2014.
3. This monthly spousal support payment is
deductible by [A.D.N.] and taxable to [M.D.N.] as
income.
4. The first payment shall be due August 18,
2014, and on the first of the month thereafter.
5. The parties understand and agree this
spousal support is a negotiated figure, which may or
may not, be consistent with the Guideline formula.
This order is retroactive to October 31, 2013, the date
[M.D.N.] filed her initial motion for temporary
spousal support, and all arguments regarding the
appropriate amount of spousal support are reserved.
The trial court determined that the March 2014 FOAH
“was superseded by [the December 2014 order] and the court
46
finds that [the December 2014 order] is the support order that is
current and therefore enforceable in these proceedings.”
On appeal, M.D.N. contends that the December 2014 order
modified A.D.N.’s temporary spousal support obligation from
$6,162 per month to $1,400 per month, effective August 1, 2014,
but it did not modify his obligation to pay temporary spousal
support of $6,162 per month from November 2013 through July
2014. A.D.N. argues that the court correctly determined that
December 2014 order replaced the prior order for spousal support
of $6,162 per month starting on October 31, 2013.
Reviewing the issue de novo (Mayer v. C.W. Driver (2002)
98 Cal.App.4th 48, 57), we agree with A.D.N. Paragraph 5 of the
December 2014 order states, “This order is retroactive to October
31, 2013.” M.D.N. asserts that this language merely allowed for
subsequent retroactive modification of the $1,400 monthly
temporary spousal support award. However, unlike the March
2014 FOAH, which “reserve[d] jurisdiction to retroactively modify
the amount of spousal support ordered, either upward or
downward,” the language at issue in paragraph 5 clearly makes
the order pronounced therein “retroactive to October 31, 2013.”
We thus agree that the December 2014 order provides on its face
that the $1,400 monthly spousal support obligation started on
August 1, 2014, and this order was made “retroactive,” hence
replacing the March 2014 FOAH that had provided for monthly
spousal support starting on October 31, 2013.
47
VII. Education Expenses as Child-support Add-ons
Per the December 2014 order, from August 1, 2014,
onward, A.D.N. paid M.D.N. $1,000/month in temporary child
support. As child support add-ons, M.D.N. sought
reimbursement at trial for half of $77,147 in private school
tuition and $26,244 in after-school educational expenses. M.D.N.
argues that the court erred in denying her request — specifically,
by failing to state its reasons for the denial. We find no error for
multiple reasons.
First, the statement of decision explains the court’s
conclusion that M.D.N. paid for these expenses, at least to an
extent, with community funds. The court expressly found that
M.D.N. had used the rents for unit 31F to pay for private school
tuition and living expenses.
Second, M.D.N. does not show that she specified these add-
ons as a controverted issue requiring resolution in a request for a
statement of decision. This court found M.D.N.’s general request
for a statement of decision in her phase 1 trial brief, but she does
not point us to a more specific request for a statement of decision.
Because M.D.N. made a nonspecific request for a statement of
decision that did not specify this issue, the court was not required
to provide a written resolution of any issues of fact that served as
a basis for its decision. (City of Coachella v. Riverside County
Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1292.)
Third, as M.D.N. acknowledges, the award of these add-ons
is discretionary (§ 4062, subd. (b)(1)), and M.D.N. does not argue
that the court abused its discretion in denying her requests.
48
VIII. Section 271 Sanctions
A. Additional Background
A.D.N. sought section 271 sanctions, claiming that M.D.N.
and her counsel had engaged in conduct intended to create
unnecessary conflict, that failed to promote settlement of the
litigation and that unnecessarily increased litigation costs.
The court found that M.D.N. engaged in the following
conduct: “Delayed proceedings by claiming first that the court
lacked jurisdiction adjudicate the Bulgarian properties, and
second, that a court in Bulgaria had already adjudicated
Respondent’s claims; [¶] 2. Mischaracterized the Four Seasons
condo as her separate property throughout these proceedings; [¶]
3. Denied Respondent’s 2640 reimbursement claim for his
separate property down payment for the Four Seasons condo; [¶]
4. Rented the Four Seasons condo and retained all of the rental
proceeds without informing Respondent or giving him his half of
the rent receipts; [¶] 5. Refused to negotiate in good faith about
discovery issues, including failing to meet and confer to exchange
tax returns, and failing to provide requested financial
information related to the Four Seasons condo and the Bulgarian
properties; [¶] 6. Rejected reasonable settlement proposals
throughout the litigation, and resisted efforts to either reduce the
costs of litigation or narrow the issues in the case; [¶] 7.
Repeatedly rejected attempts to expedite the trial proceedings by
failing to confirm the identities of fact and expert witnesses,
failing to stipulate to documents at trial, and failing to stipulate
to appraisals of real property; and [¶] 8. Violated the Automatic
49
Temporary Restraining Orders (ATROS) by encumbering and
selling community property after separation.”14
The court ordered M.D.N. to pay A.D.N. $100,000 in section
271 sanctions.
B. Governing Law
Section 271, subdivision (a) provides in relevant part:
“Notwithstanding any other provision of this code, the court may
base an award of attorney’s fees and costs on the extent to which
the 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.”
Unlike other sanctions statutes, such as Code of Civil
Procedure section 128.5, subdivision (a), where the conduct to be
sanctionable must be “frivolous or solely intended to cause
unnecessary delay,” section 271 “is aimed at conduct that
frustrates settlement of family law litigation. Expressed another
way, section 271 vests family law courts with an additional
means with which to enforce this state’s public policy of
promoting settlement of family law litigation, while reducing its
costs through mutual cooperation of clients and their counsel.”
(In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1318.)
14 We refer to these grounds hereafter by number listed in
the statement of decision for each ground.
50
An award of attorney fees and costs as sanctions under
section 271 is “reviewed for abuse of discretion. [Citation.] . . .
[W]e will overturn such an order only if, considering all of the
evidence viewed most favorably in its support and indulging all
reasonable inferences in its favor, no judge could reasonably
make the order. [Citations.] ‘We review any findings of fact that
formed the basis for the award of sanctions under a substantial
evidence standard of review.’ ” (In re Marriage of Corona (2009)
172 Cal.App.4th 1205, 1225–1226.) The appellant bears the
burden of demonstrating that the trial court abused its
discretion. (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 16.)
C. Analysis
M.D.N. argues that the court impermissibly sanctioned her
on grounds 1, 2, and 3 for making reasonable legal arguments.
She contends that “a party cannot be sanctioned under . . .
section 271 merely for taking litigation positions with which the
court disagreed or for the filing of a motion unless it is ‘ “so
devoid of merit that no reasonable person would have pursued
it.” ’ ” She points to Featherstone v. Martinez (2022) 86
Cal.App.5th 775, 785, which reversed section 271 sanctions that
were issued for taking a litigation position with which the trial
court simply disagreed. We agree that M.D.N. should not be
sanctioned for reasonable litigation conduct (Featherstone, at
p. 785), but, as set forth post, we disagree that Featherstone
renders invalid all challenged grounds for the section 271
sanctions.
51
Ground 1 for the sanctions was that “[M.D.N.] delayed
proceedings by claiming first the court lacked jurisdiction to
adjudicate the Bulgarian properties and, and second, that a court
in Bulgaria already adjudicated [A.D.N.’s] claims.” To challenge
this ground on appeal, M.D.N. provides a record cite to her
motion in limine and argument below and asserts that her
motion was “far from frivolous.” Essentially, M.D.N. tosses out a
cite to the record and asks us to develop her legal argument for
her on appeal for why her litigation position was reasonable. We
decline to do so and conclude that M.D.N. forfeited any claim on
appeal that the court abused its discretion by utilizing ground 1
as a basis for section 271 sanctions. (Lee v. Kim (2019) 41
Cal.App.5th 705, 721.)
Ground 2 was that M.D.N. “[m]ischaracterized the Four
Seasons condo as her separate property throughout these
proceedings.” M.D.N. briefly argues this claim was not frivolous
because A.D.N. deeded unit 31F to her and the court found some
elements in M.D.N.’s favor when characterizing the property.
A.D.N. argues that M.D.N.’s claim was premised on false
testimony about the reason for the quitclaim deed. Reviewing its
statement of decision, the court concluded that the transfer of
unit 31F to M.D.N.’s name was intended to avoid a lawsuit
creditor, A.D.N.’s testimony that M.D.N. promised to convey the
property back in the future was credible, and M.D.N.’s contrary
testimony that A.D.N. gave her the condo as a gift was not
credible. M.D.N. has failed to establish that no reasonable judge
could conclude the standard in section 271 was met because she
52
lied about the transfer of unit 31F and caused A.D.N. to incur
more attorney fees.
We reach a different result for ground 3, which was that
M.D.N. “[d]enied [A.D.N.’s] 2640 reimbursement claim for his
separate property down payment for the Four Seasons condo.”
Although we affirm A.D.N.’s section 2640 reimbursement in this
appeal, separate property contributions to community property
must be traced (§ 2640, subd. (b)), and we do not find M.D.N.’s
litigation position regarding the tracing to be unreasonable.
Next, M.D.N. contends that grounds 4 and 8 improperly
relied on conduct that occurred outside of the litigation. We
disagree.
Ground 4 was “[r]ent[ing] [unit 31F] and retain[ing] all of
the rental proceeds without informing [A.D.N.] or giving him his
half of the rent receipts.” M.D.N. contends that renting the
property was not litigation-related conduct. However, the court
could reasonably conclude that M.D.N.’s failure to account for the
community property rents15 delayed the proceedings and
increased the costs of litigation, especially considering the court
determined that M.D.N. paid for the mortgage and HOA fees for
unit 31F with these rents, and, at least to some extent, paid for
her living expenses and the child support add-ons she sought to
recoup at trial with these rents.
15 Under the community property doctrine, rents have the
same character as the property source itself. (In re Marriage of
Worth (1987) 195 Cal.App.3d 768, 774.)
53
Ground 8 was that M.D.N. “[v]iolated the Automatic
Temporary Restraining Orders . . . by encumbering and selling
community property after separation.” Here, M.D.N. claims the
court sanctioned her for “encumbering and selling” property, but
she ignores that the sanctions were for violating court orders.
M.D.N. also contends her conduct was not sanctionable because
she believed the Bulgarian properties were her separate
properties. The court, however, determined that M.D.N.’s
testimony about how she acquired the Bulgarian properties was
not credible. Having found that M.D.N. was dishonest about the
acquisitions, the court reasonably could have concluded that
M.D.N. frustrated early resolution of the case and increased the
cost of litigation.
Having found one of the court’s reasons for issuing
$100,000 in section 271 sanctions invalid, we think remand is
appropriate. (In re Marriage of Abrams (2003) 105 Cal.App.4th
979, 993 [remanding issue of section 271 sanctions because
“[h]aving found merit in only one of the court’s three reasons for
imposing the attorney fee sanction, we cannot say with any
certainty that the court necessarily would have exercised its
discretion in the same fashion based only on the one valid
reason”], disapproved on another ground in In re Marriage of
LaMusga (2004) 32 Cal.4th 1072, 1097.) While it seems probable
that the court would issue section 271 sanctions even in the
absence of ground 3, we cannot determine what part of the
sanctions award is attributable to this conduct and cannot say
with “certainty” that the court would exercise its discretion in the
54
same fashion to award the same amount of section 271 sanctions.
Hence, we will remand the matter to the trial court for it to
reconsider whether it will issue section 271 sanctions, and if so,
in what amount. (In re Marriage of Abrams, at p. 993.)
IX. Section 1101, subdivision (g)
Remedies for breach of fiduciary duty under section 1101,
subdivision (g) (section 1101(g)) include an award to the claimant
spouse of “50 percent, or an amount equal to 50 percent, of any
asset undisclosed or transferred in breach of the fiduciary duty[.]”
After the interest awarded under this section occurs, there is no
longer an asset to divide. (In re Schleich (2017) 8 Cal.App.5th
267, 286.) The “50 percent interest awarded under [section
1101(g)] must be the same 50 percent interest that would be
awarded in the overall division of community assets. After a
claimant is awarded his or her interest in an asset under
subdivision (g), there is no longer an asset to divide in the
dissolution proceedings.” (In re Schliech, at pp. 286–287.) Stated
otherwise, the court cannot award an interest in the property and
then award that same interest as sanctions under section
1101(g).
M.D.N. asks that we order the court to correct an
ambiguity on remand with respect to the Bulgarian properties —
specifically, the court ordered M.D.N. to pay 50 percent of the
value of Georgi Benkovski and Kliment Ohridski (which M.D.N.
sold) and equalizing payments for properties awarded to M.D.N.,
and awarded 50 percent sanctions under section 1101(g).
The court’s order was as follows:
55
The court finds the following properties in
Sophia [sic], Bulgaria are community property and
awards these properties as follows:
a. 27 Moskovska Street, #12 is awarded to the
Petitioner at a current value of $599,159.
b. San Stefano Street is awarded to Petitioner
at a value of $393,740, subject to
reimbursement to Respondent for his separate
property contribution for the total amount of
the purchase price in the amount of $125,000.
c. 11 August Street [No. 10] is awarded to
Petitioner at a value of $183,440.
d. Georgi Benkovski Street was community
property at the time of its sale by Petitioner.
Petitioner shall pay Respondent $84,375, which
represents one-half of the January 21, 2014,
sale price of $125,000€.
e. Kliment Ohridski Street was community
property at the time of its sale. Petitioner shall
pay Respondent $148,913, which is equal to
one-half of the property value at the time of
trial.
f. Petitioner’s actions regarding the Bulgarian
properties have breached the fiduciary duties
owed to Respondent. Respondent is entitled to
50% sanctions under 1101(g). Respondent’s
request that the court impose sanctions under
1101(h) is denied.
g. Petitioner shall pay an equalizing payment
for the community property Bulgarian
properties, including Respondent’s section 2640
reimbursement for the San Stefano property, in
the amount of $883,962.
56
We agree that the court can only award an interest in the
properties once (In re Schleich, supra, 8 Cal.App.5th at pp. 286–
287), and there is some ambiguity to the trial court’s statement of
decision on this issue. The trial court is thus directed to clarify
on remand that A.D.N. is not entitled to 50 percent sanctions
under section 1101(g) in addition to the equalizing payment of
$883,962.
DISPOSITION
We reverse on the issue of section 271 sanctions and
remand the matter for a redetermination on A.D.N.’s request for
section 271 sanctions. On remand, the trial court is also directed
to clarify that A.D.N. is not entitled to 50 percent sanctions under
section 1101(g) in addition to the equalizing payment of $883,962.
M.D.N. may also seek a ruling regarding her claimed entitlement
to attorney fees under section 6344 on remand. In all other
respects, the judgment is affirmed.
BROWN, P. J.
WE CONCUR:
STREETER, J.
GOLDMAN, J.
In re Marriage of M.D.N. and A.D.N. (A171022)
57