Marriage of Noblejas
Filed 3/29/13 Marriage of Noblejas CA2/8
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re Marriage of PACIFICO N.
and TERESITA A. NOBLEJAS.
B239294
PACIFICO N. NOBLEJAS,
Respondent,
v.
TERESITA A. NOBLEJAS,
Appellant.
(Los Angeles
County
Super. Ct.
No. PD033728)
APPEAL from
a judgment of the Superior Court
of
County.
Patricia M. Ito, Judge.
Affirmed.
Teresita A. Noblejas, in pro. per.,
for Appellant
Law Offices
of David Ingram and David L. Ingram for Respondent.
__________________________
Appellant Teresita A. Noblejas (wife) appeals from the December 16, 2011 judgment
characterizing certain property as community property and dividing the
community property between wife and respondent Pacifico Noblejas
(husband). Wife contends: (1) property wife transferred to an LLC of
which she was a shareholder was not community property; (2) other property wife
gifted to her mother and which her mother sold was not community property; (3)
still other property wife acquired during the marriage was not community
property; (4) the findings regarding wife’s income for purposes of calculating
child support were not supported by substantial
evidence; (5) the trial court erred in denying wife’s motion for new trial;
and (6) the trial court erred in denying her motion to modify child
support. We affirm.
FACTUAL AND
PROCEDURAL BACKGROUND
Husband and
wife were married on March 24, 1974. They had four children and separated in
2003. The marriage was dissolved
effective November 26, 2007. The parties stipulated to joint
child and that certain real property located in the Philippines
was husband’s sole and separate property.
Other issues, including whether certain real property was separate or
community property, were tried over a number of days in April 2011, and on August 4, 2011. Wife represented herself at the trial;
husband was represented by counsel.
Without a reporter’s transcript of the trial, we are not able to
ascertain exactly what evidence was considered by the trial court. From the clerk’s transcript and the augmented
record, we glean that wife maintained that five parcels of real property
acquired during the marriage were her separate property for the following
reasons:
·
Leadwell Street, Sun Valley: the property was purchased by husband and
wife in 1981 for $80,000, including a $72,000 trust deed; in 1984, the property
was sold to wife’s brother Remigio Andres, Jr. (Remigio, Jr.) and Emelita de la
Cruz (Emelita) so that husband and wife could qualify for a loan to purchase
the Canby Street property in Northridge; Emelita quitclaimed her interest in
the property to Remigio, Jr. and his wife; Remigio, Jr. and his wife later sold
the property to his and wife’s mother Dolores Andres (Dolores) and father
Remigio Andres (Remigio, Sr.) in 1989; Dolores and Remigio, Sr. quitclaimed the
property to wife as her separate property in 2000; in 2008, wife quitclaimed
the property to a self-named LLC; in 2009, that LLC transferred the property to
The Asset Solutions, LLC (Asset), an LLC of which wife was one of several
shareholders.
·
Sundown Court, Dana Point: Dolores and Remigio, Sr. purchased the
property in 1990 for $93,300; in 1991, they transferred the property to wife as
her separate property; in 2002, wife transferred the property to herself and
husband as joint tenants so that husband could cosign a loan collateralized by
the property; at the time, wife did not intend to transmute the property into
community property; the joint tenancy was severed by the divorce in 2007; in
2008, wife quitclaimed her interest in the property to her separate property
and then to her self-named LLC; in 2009, that LLC transferred the property to
Asset; as a result, the property was owned by Asset and husband as tenants in
common.
·
Canby Avenue,
Northridge: In April 2008, husband
quitclaimed his interest in the property to wife in exchange for which wife
quitclaimed her interest in other Northridge property (Eames
Avenue) to husband; wife quitclaimed the property
to her self-named LLC; in 2009, that LLC transferred the property to Asset.
·
Lucille Road,
Murrieta: This vacant lot was
purchased with community funds in July 1994; husband immediately quitclaimed
his interest in the property to wife; in February 2004, wife quitclaimed the
property to her mother, Dolores, who sold the property in May 2004 for
$205,000.
·
New Zealand,
Lot 17: Wife acquired the property in 1999 using a
$30,000 gift from Dolores.
The trial court was not
convinced. In a
the trial court found the real property acquired during the marriage raised a
presumption that those properties were community property, and that husband’s
“purported signing of . . . deeds relinquishing an interest in the
properties was not done knowingly and intelligently so as to rebut the
presumption of undue influence.†The
court divided what it found were community assets as follows:
Gold and platinum coins: $100,000
Husband’s 401K: $42,750 (50
percent of $85,500)
Wife’s Pension: $142,489 (100
percent)
Roscoe
Blvd., Reseda: $15,993
appraised value
Canby Ave.,
Northridge: $276,000
value of equity
$16,965
refinancing proceeds
Lucille
Road, Murietta: $220,000
sale proceeds
Leadwell
St., Sun Valley: $170,000 appraised value
Sundown Court, Dana
Point: $52,414.22 refinancing proceeds
Wife’s use of Canby: $25,960 (50 percent of
$51,920)
Subtotal to wife: $1,062,571.22
Equalizing Payment: ($148,286.11)
Total to wife $914,285.11
Cash: $10,000
Silver Coins: $5,500
Husband’s 401K: $42,750 (50
percent of $85,500)
Eames Ave., Northridge: $120,000 value of equity
New Zealand: $85,289 appraised value
Sundown Court, Dana Point: $476,500 value of equity
Wife’s use of Canby: $25,960 (50 percent of
$51,920)
Equalizing Payment: $148,286.11
Total to husband: $914,285.11
Finding wife had made no effort to
obtain employment, the trial court imputed monthly income of $10,000 to wife
and ordered her to pay husband monthly child support of $145, retroactive to
September 1, 2007. Judgment was entered
on December 16, 2011. After her motion for new trial was denied, wife timely
appealed.
transcript of the trial in the appellate record.
DISCUSSION
Having
Elected to Proceed Without a Reporter’s Transcript, Wife Cannot Challenge the
Sufficiency of the Evidence to Support the Finding That Real Property Held in
the Name of Asset Was Community Property
Wife
contends it was a denial of due process for the trial court to characterize as
community property the Sun Valley, Dana Point and Northridge properties. As we understand her argument, it is that
although these properties had at one time been community property, the evidence
established that they had been transmuted into wife’s separate property which
wife later lawfully transferred to Asset.
We find the contention without merit.
In a
proceeding for dissolution of marriage, the court must divide the community
estate of the parties equally. (Fam.
Code, § 2550.) We review the trial
court’s finding that a particular item is separate or community property for
substantial evidence. (
203 Cal.App.4th 137, 152.) Where
the appellant elects to proceed without a reporter’s transcript of the trial
preceding the judgment, the sufficiency of the evidence is not open to review. (Bond
v. Pulsar Video Productions (1996) 50 Cal.App.4th 918, 924;
Froehlich (1989) 210 Cal.App.3d 510, 522 [no evidentiary basis for
attacking trial court’s rulings in absence of reporter’s transcript or settled
statement].)
Here, because wife elected to
proceed without a reporter’s transcript, her challenge to the sufficiency of
the evidence to support the trial court’s finding that the Sun Valley, Dana
Point and Northridge properties were community property necessarily fails.
The
Trial Court Had Jurisdiction Over the Murrieta Property
Wife
contends the trial court did not have jurisdiction over the Murrieta property
because it was owned by wife’s mother, Dolores, and was therefore not community
property. She argues that the evidence
established that the property was transmuted from community property to wife’s
separate property by husband’s execution of a quitclaim deed soon after the
property was purchased in 1994, and that wife subsequently gifted the property
to Dolores in 2004. We reject this
contention.
Both
spouses must join in executing any instrument by which community property is
conveyed. (Fam. Code, § 1102, subd.
(a); see also § 1100, subd. (b) [“A spouse may not make a gift of
community personal property . . . without the written consent of the
other spouse. . . .â€].)
With certain statutory exceptions, all property acquired during the
marriage is community property.
(§ 760.) In
172 Cal.App.4th 725, 732, the court explained that characterization of
property as community or separate property “depends on three factors: (1) the time of acquisition;
(2) the ‘operation of various presumptions, particularly those concerning
the form of title’; and (3) the determination ‘whether the spouses have
transmuted’ the property in question, thereby changing its character.†“Transmutation†is an agreement between the
spouses that works a change in the character of the property. To be valid, there must be a writing by the
spouse whose interest in the property is adversely affected expressly declaring
that the change in character “is made, joined in, consented to, or accepted byâ€
that spouse. (§ 852, subd. (a).)
The mere
fact that one spouse quitclaims his or her interest in community property to
the separate property of the other spouse does not conclusively establish a
transmutation. This is because when an
interspousal transaction advantages one spouse, the law presumes the
transaction was induced by undue influence.
(In re Marriage of Haines
(1995) 33 Cal.App.4th 277, 293.)
Where a transmutation is evidenced by a deed, it is the burden of the
advantaged spouse to overcome the presumption.
(Id. at p. 296.) In Haines,
the court held, “To demonstrate the advantage was not gained in violation of
the confidential relation between marital partners, [grantee’s] burden properly
should have been to prove the quitclaim deed ‘was freely and voluntarily made,
and with a full knowledge of all the facts, and with a complete understanding of
the effect of the transfer.’
[Citations.]†(
Here, it is
undisputed that the Murrieta property was community property when it was
acquired. The trial court expressly
found that husband did not knowingly transmute the property to wife’s separate
property. Because wife elected to
proceed without a reporter’s transcript of the trial, she cannot challenge the
sufficiency of the evidence to support this finding. Because the record does not support wife’s
contention that the property was her separate property, the conveyance to her
mother fails as she could not unilaterally gift it. (Fam. Code, § 1102.) Accordingly, the property remained a
community asset and the trial court had jurisdiction over division of the
proceeds of the sale of the Murrieta property.
Award
of New Zealand Property to Husband Was Not Error
Wife
contends it was error to award the New Zealand property to husband. She argues that the presumption that it was
community property was rebutted by other evidence. As we have already explained, in the absence
of a reporter’s transcript, wife cannot challenge the sufficiency of the
evidence.
Wife
Has Not Shown Error in the Child Support Order
Wife
contends it was error to uphold “non-California guideline child support.†She argues that the corporate income of Asset
as her personal income in the calculation of child support. Wife’s failure to cite any legal authority in
support of her contention constitutes a forfeiture of the issue on appeal. (Boyle
v. CetainTeed Corp. (2006) 137 Cal.App.4th 645, 649 [party asserting
error must present argument and legal authority on each point raised]; see also
In re S.C. (2006)
138 Cal.App.4th 396, 408 [“To demonstrate error, appellant must present
meaningful legal analysis supported by citations to authority and citations to
facts in the record that support the claim of error.â€].)
Even if
this contention was not forfeited, we would find no merit in it. This is because the trial court’s findings in
connection with a child support order are reviewed under the substantial
evidence standard. (In re Marriage of Zimmerman (2010) 183 Cal.App.4th 900,
906-907.) Because wife has elected to
proceed without a reporter’s transcript, she cannot challenge the sufficiency
of the evidence to support the trial court’s finding of fact as to her income.
Wife
Has Not Shown Error in the Denial of her Motion for New Trial
Wife
contends the trial court erred in denying her motion for new trial. She argues that she was entitled to a new
trial because (1) husband fraudulently failed to disclose a $19,230.77
distribution from his 401K plan; (2) “fraud in the evidence in Dana Point
claim of communityâ€; and (3) insufficiency of the evidence to treat the
properties held by Asset as community property.
Essentially,
wife’s new trial motion challenged the sufficiency of the evidence to support
the trial court’s findings. As with
wife’s other arguments, her failure to include a reporter’s transcript
precludes her from challenging the sufficiency of the evidence.
The
Motion to Modify Child Support Is Not Properly Before Us
Mother
contends, “Motion to modify child support according to California Guidelines on
March 9, 2012 was ignored.†Wife’s
notice of appeal states that it is from the judgment entered on
December 16, 2011. Wife’s motion
for modification of child support was filed on January 20, 2012, set for
hearing on February 10, 2012, and denied on March 9, 2012, long after the
December 16, 2011 judgment referred to in the notice of appeal.
DISPOSITION
The
judgment is affirmed. Husband is awarded
costs on appeal.
RUBIN,
J.
WE CONCUR:
BIGELOW,
P. J.
FLIER,
J.
respondent’s brief, husband contends the appeal must be dismissed because the
notice of appeal was filed 61 days after the notice of entry of judgment was
served. (See Cal. Rules of Court,
rule 8.104(a)(1)(A).) After
husband’s brief was filed, we denied husband’s motion to dismiss the appeal as
untimely. A valid notice of intention to
move for new trial extends the normal time to file a notice of appeal to
30 days after an order denying the motion is served. (Rule 8.108(b)(1)(A).) Here, although the record does not include a
copy of wife’s notice of motion for new trial, the appellate record includes a
January 27, 2012 minute order denying such a motion. Thus, wife’s time to file a notice of appeal
was extended to 30 days after January 27, 2012, and her notice of appeal
filed on February 15, 2012, was timely.
