Marriage of Trejo























Filed 4/26/13 Marriage of Trejo CA4/2











NOT TO BE
PUBLISHED IN OFFICIAL REPORTS





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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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













IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA>



FOURTH
APPELLATE DISTRICT



DIVISION TWO






>

In re the Marriage of JULIETA and HUGO TREJO.
JULIETA TREJO, Respondent, v. HUGO TREJO, Appellant.	E054775 (Super.Ct.No. SBFSS93013) OPINION

APPEAL from the Superior
Court
of
San
Bernardino County. John
M. Pacheco and Raymond L. Haight III, Judges.href="#_ftn1" name="_ftnref1" title="">* Affirmed in part; reversed in part with
directions.

Van Antwerp Law Firm and L. Walker
Van Antwerp III for Appellant.

No appearance for Respondent.

On May 3, 2006,
respondent Julieta Trejo (Julieta) filed her petition for dissolution of her
marriage to appellant Hugo Trejo (Hugo).
The petition sought custody and visitation determinations for the
couple’s two children, then ages 14 and 11.
It also sought spousal support and the determination of rights to the
community property.

A court trial commenced on April 9, 2009. Julieta was represented by attorney Fernando
Bernheim. Hugo appeared, without an
attorney. The issues presented were href="http://www.fearnotlaw.com/">custody and visitation, child support,
permanent spousal support, and division of community property.

Attorney Bernheim alleged Hugo had
breached his fiduciary duties and
asked the court to select an alternate valuation date for the real
property. For the same reasons, he asked
that Julieta be awarded 100 percent of Hugo’s pension plan. He also asked that Hugo pay attorney fees and
costs of $8,000.

The court heard several partial days
of testimony on these subjects. On July 6, 2009,
it entered an 11-page statement of decision.href="#_ftn2" name="_ftnref2" title="">[1] On appeal, Hugo challenges four rulings of
the trial court.href="#_ftn3"
name="_ftnref3" title="">[2]

First, Hugo contends that the trial
court erred in setting an alternate valuation date pursuant to Family Code
section 2552.href="#_ftn4"
name="_ftnref4" title="">[3] Second, Hugo contends the trial court erred
in finding a breach of fiduciary duty by Hugo.
As a result, Hugo contends that the award of 100 percent of the family
home proceeds to Julieta as well as selection of an alternate valuation date
unfavorable to Hugo was error under section 1101. He also contends that the evidence did not
support the market value used. Third,
Hugo contends there was no factual or legal basis for awarding Julieta 100
percent of Hugo’s pension as a penalty.
Fourth, Hugo contends the trial court had no authority to make the
support order retroactive. We examine
the facts and law relating to each of these contentions separately.

I

NOTICE OF ALTERNATE VALUATION DATE

As discussed in the next section,
the trial court exercised its discretion under section 2552, subdivision (b) to
change the valuation date. That
subdivision states: “Upon 30 days’
notice by the moving party to the other 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 of the parties in an equitable manner.”

Hugo’s first contention is that the
requisite 30-day notice was not given to Hugo by Julieta or her attorney. Counsel does not discuss the consequences of
the alleged error nor the remedy he proposes.

Although not relied on by counsel,
we note that former California Rules of Court, rule 5.126 provided that a form
application for separate trial must be used to provide the notice required in
Family Code section 2552, subdivision (b).
However, this provision was repealed as of January 1, 2013,
and replaced by California Rules of Court, rule 5.390.

California Rules of Court, rule
5.390 states that a party may bifurcate one or more issues to be tried
separately before other issues are tried.
If a party seeks an alternative valuation date, it must now complete
form FL-315 and provide a declaration that includes the reasons for supporting the
alternative valuation date.

It thus appears that, under either
version of the rule, the notice provision of section 2552, subdivision (b)
applies only when a party seeks a separate trial of the issue. The notice provision would therefore not apply
to the request here, which merely advised Hugo and the court that Julieta would
be seeking an alternative valuation date during the trial.

In any event, we find no violation
of the notice requirement. Attorney
Bernheim first raised the issue when the hearing began on April 9, 2009. Subsequent hearings were held on May 12, May
19, and June 4, 2009. We thus find that, even if notice was
required in this situation, attorney Bernheim, in court, gave respondent more
than 30 days notice of his intention to seek an alternative valuation
date. We therefore find no violation of
the notice provision of section 2552, subdivision (b).

II

BREACH OF FIDUCIARY DUTY AND
ITS CONSEQUENCES

A. >Fiduciary Duties.

Section 721, subdivision (b)
provides: “[I]n transactions between
themselves, a husband and wife are subject to the general rules governing
fiduciary relationships which control the actions of persons occupying
confidential relations with each other.
This confidential relationship imposes a duty of the highest good faith
and fair dealing on each spouse, and neither shall take any unfair advantage of
the other.”

Section 1101, subdivision (a)
provides that: “A spouse has a claim
against the other spouse for any breach of the fiduciary duty that results in
impairment to the claimant spouse’s present undivided one-half interest in the
community estate, including, but not limited to, a single transaction or a
pattern or series of transactions, which transaction or transactions have
caused or will cause a detrimental impact to the claimant spouse’s undivided
one-half interest in the community estate.”

B. >The Trial Court’s Decision.

The trial court found: “Petitioner testified that she was away on
vacation in Mexico
on July 15, 2003,
(Exhibits 5 and 9). Respondent failed to
obtain her permission to sign her name on the deed. Respondent forged Petitioner’s name on a
grant deed transferring the real property . . . to himself as his sole and
separate property (Exhibit 1). The
evidence showed that Petitioner was in Mexico
on vacation at the time Respondent forged her signature.”

The trial court also found that the
parties had an equity line of credit on their home. The court stated: “The testimony and evidence showed that
Respondent withdrew $97,300 from the equity line of credit. At the time of separation, the equity credit
line had an outstanding balance of $19,968.00.
Respondent withdrew $77,331.26 from the equity line of credit after the
date of separation.” The court found
that Hugo had not informed Julieta of these withdrawals, and that he withdrew
all of the equity from the family residence.

In her petition, Julieta alleges
that the parties were married on April
22, 1989, and separated on March 6, 2006. In his response, Hugo states that the parties
separated on June
1, 2003.
The trial court adopted the separation date in Julieta’s petition.

Hugo’s counsel concedes the forgery
but argues, without record citation,href="#_ftn5" name="_ftnref5" title="">[4]
that the forged deed, dated July 13, 2003, was part of an acquisition transaction in which Hipolino Garcia sold the property
to Hugo on July 14, 2003, i.e., after Hugo’s proposed June 1, 2003, date of
separation.

No record of the alleged transaction
was produced at trial, and counsel does not explain why an interspousal deed
would be necessary on the day before the purchase transaction.

Hugo’s counsel also states, again
without record citation: “Julieta points
out that she was in Mexico in July of 2003 for three months instead of the
usual one month, and that she did not begin residing in the house until June,
2004. Hugo states that the parties were
separated for a year, lists her address as ‘El Monte’ during that year, gives
her address as their apartment in Montebello prior to June of 2003, and indicates
that she and the girls did not move into the house until June of 2004.”

Even if there was a factual basis
for Hugo’s argument, it is clear that substantial evidence supports the trial
court’s conclusions that the parties separated on March 3, 2006, that the deed
was forged,href="#_ftn6" name="_ftnref6"
title="">[5]
and that Hugo breached his fiduciary duties by the interspousal transfer of
title to the couple’s home to himself.

With regard to the equity line
withdrawals, Hugo argues that the proceeds were used to pay the mortgage and it
therefore benefited Julieta. He contends
that, if the equity line was not used for this purpose, the home would have
been foreclosed on sooner.

Nevertheless, the evidence fully
supports the trial court’s conclusion that Hugo’s actions breached his
fiduciary duties to Julieta, both by forging the deed and by not disclosing his
use of the equity line.

C. Consequences
of the Breach of Fiduciary Duty.

Section 1101, subdivision (g)
provides: “Remedies for breach of the
fiduciary duty by one spouse, including those set out in Sections 721 and 1100,
shall include, but not be limited to, an award to the other spouse of 50
percent, or an amount equal to 50 percent, of any asset undisclosed or
transferred in breach of the fiduciary duty plus attorney’s fees and court
costs. The value of the asset shall be
determined to be its highest value at the date of the breach of the fiduciary
duty, the date of the sale or disposition of the asset, or the date of the
award by the court.”

Section 1101, subdivision (h)
provides: “Remedies for the breach of
the fiduciary duty by one spouse, as set forth in Sections 721 and 1100, when
the breach falls within the ambit of Section 3294 of the Civil Code shall
include, but not be limited to, an award to the other spouse of 100 percent, or
an amount equal to 100 percent, of any asset undisclosed or transferred in
breach of the fiduciary duty.”

Civil Code section 3294 is the
general punitive damages section.
“Because Civil Code section 3294 requires proof by ‘clear and convincing
evidence’ of fraud, oppression, or malice, we must inquire whether the record
contains ‘“substantial evidence to support a determination by clear and
convincing evidence . . . .”’
[Citation.]” (>In re Marriage of Rossi (2001) 90
Cal.App.4th 34, 40.) Although the trial
court did not specifically mention the clear and convincing evidence standard,
it did cite Rossi. In that case, the wife concealed lottery
winnings from her husband and the court applied Civil Code section 3294 and
awarded the husband 100 percent of the winnings. (Rossi,
at p. 39.)

The trial court’s citation of >Rossi indicates that the trial court was
aware of and did apply the proper standard.
The evidence of forgery and
undisclosed use of the equity line was essentially uncontested and it supports
application of section 1101, subdivision (h) in this situation.

D. >The Award of 100 Percent of the Home Value
to Julieta.

The trial court stated: “The value of the property shall be
determined to be the highest value with interest at the date of the breach of
the fiduciary duty. The parties
separated in about March 2006. The
family residence was valued at about $400,000 in March 2006. The amount owed on the property in March 2006
was $235,649.34. At the time of
separation, the equity in the family residence totaled $164,351.00. (Exhibits 6 and A.)”

We conclude that the trial court
erred in calculating the value of the family home.

First, the date of separation is not
an appropriate date to use in this situation.
Section 1101, subdivision (g) provides that the date to be used is (1)
the date of breach of fiduciary duty; (2) the date of the sale of the asset; or
(3) the date of the award by the court.
In this case, the deed was forged on July 15, 2003, the property was
foreclosed on in June 2008, and the award was made in July 2009. The trial court’s use of the date of
separation is not proper under section 1101, subdivision (g).

Second, it appears that the trial
court selected the date of separation, March 6, 2006, as the property valuation
date because it was a permissible alternate valuation date under section 2552,
subdivision (b). That section
states: “Upon 30 days’ notice by the
moving party to the other 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 of the
parties in an equitable manner.”

Here, however, the purpose of the
alternative valuation date was not to accomplish an equal division of the
community estate. Instead, it was to
punish Hugo under section 1101, subdivision (h) for his breach of fiduciary
duty.

In other words, the only good cause
cited here was the breach of fiduciary duty.
When a breach of fiduciary duty is the reason for the use of an
alternative valuation date, the more specific statute prevails over the more
general one. (Civ. Code, § 3534.) As the trial court acknowledged, “The
language of Family Code section 1101, subdivision (g) is unambiguous and
mandatory.” The trial court should have
selected one of the dates specified in section 1101, subdivision (g).

Third, the trial court erred in
determining the market value of the property.
Evidence Code section 813 provides:
“The value of property may be shown only by the opinions of any of the
following: [¶] (1) Witnesses qualified to express such
opinions. [¶] (2) The owner or the spouse of the owner of
the property or property interest being valued.” The specific items an owner or expert may
rely on, and the proper valuation methods, are detailed in Evidence Code
sections 814 through 820.

But in this case there was no such
evidence. Attorney Bernheim showed Hugo
a printout from Zillow.comhref="#_ftn7"
name="_ftnref7" title="">[6]
and asked some questions about it. Hugo
said he didn’t understand the printout but the trial court admitted it into
evidence anyway and relied on Zillow in making its market value decision.

While the trial court could have
taken judicial notice of the Zillow website, it was not asked to do so. (Evid. Code, § 452, subd. (h).) If it had done so, it could take notice of
the existence of the website, but not of its factual content. (Searles
Valley Minerals Operations v. State Bd. Of Equalization (2008) 160
Cal.App.4th 514, 519.) If the trial
court had nevertheless used the website, it would have found a disclaimer
stating that Zillow’s estimates are not appraisals but were to be used merely
“as a starting point in determining a home’s value.”href="#_ftn8" name="_ftnref8" title="">[7] If the trial court had studied Exhibit 6, the
Zillow printout, it would have found the Zillow estimate, dated April 4, 2009,
was $216,500.

Attorney Bernheim pointed to a chart
on the first page of the exhibit entitled “Market Value Change” but it is not
clear if the exhibit was specific to the property or a general market trend
analysis. The second page of the exhibit
shows, however, a sales history of $90,000 in July 1998, 216,000 in July 2003,
and $203,915 in August 2008.href="#_ftn9"
name="_ftnref9" title="">[8] These figures do not support a market value
of $400,000, and the use of that figure by the trial court was unsupported by
the evidence. Even Julieta did not
testify to that figure. Hugo listed the
home in his property declaration at a fair market value of $250,000 with debts
of $216,000.

We therefore conclude that the trial
court erred in selecting a date of valuation and in applying a market value of
$400,000 to the property without receiving competent evidence of the value of
the property. (Evid. Code, §§ 813-820;
see generally Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2012) ¶
8:1405-8:1410.)

In reaching this conclusion, we
recognize that “[t]he trial court possesses broad
discretion to determine the value of community assets as long as its
determination is within the range of the evidence presented. [Citation.]
The valuation of a particular asset is a factual question for the trial
court, and its determination will be upheld on appeal if supported by
substantial evidence in the record.
[Citation.]” (>In re Marriage of Nichols (1994) 27
Cal.App.4th 661, 670.)

But, as the
quote indicates, the trial court’s broad discretion must still be supported by
substantial evidence. Since the
valuation of the home was not supported by any competent evidence, the case
must be remanded for further proceedings on the issue.

III

THE TRIAL COURT’S AWARD TO JULIETA OF 100
PERCENT

OF HUGO’S PENSION

In addition to awarding Julieta 100
percent of the community interest in the family home, the trial court awarded
Julieta 100 percent of the community property interest in Hugo’s pension. The court said: “The court finds a community property
interest in Respondent’s pension plan, Southwest 57. As a further result of Respondent’s Breach of
Fiduciary Duty . . . Petitioner is awarded 100 percent of the community
property interest in Respondent’s pension.
Petitioner shall contact . . . the QDRO center to prepare a Qualified
Domestic Relations Order (QDRO) on Respondent’s pension.”href="#_ftn10" name="_ftnref10" title="">[9]

The order is not entirely clear but
the general rules are well stated in In re Marriage of Cooper (2008) 160 Cal.App.4th 574 (Cooper): “‘Upon dissolution of a marriage, the trial court has
broad discretion in the division of the community property interest in a
spouse’s pension rights and can exercise its discretion in either of two
ways. The trial court may either
determine the present value of community property rights and award them to one
spouse with offsetting community or other assets to the other (commonly called
the cash out method), or it may divide the community interest in kind between
the spouses, reserving jurisdiction to supervise future payments to each
spouse. [Citation.] [T]he trial “court retains the discretion to
divide the community assets in any fashion which complies with the provisions
of [section 2550]” [Citations.]’ [Citations.]
[¶] Family
Code section 2550 provides that, except as otherwise agreed by the parties or
specifically provided by statute, the trial court must ‘divide the community
estate of the parties equally.’ This
equal division requirement applies to retirement plan survivor benefits. Family Code section 2610, subdivision (a),
provides: ‘Except as
provided in subdivision (b), the court shall make whatever orders are necessary
or appropriate to ensure that each party receives the party’s full community
property share in any retirement plan, whether public or private, including all
survivor and death benefits . . . .’ Subdivision (b) of section 2610 provides that
the court shall not make any order that increases the amount of benefits
payable by the retirement plan or that requires the payment of benefits before
the member retires unless the plan allows such payments. Section 2610, subdivision (a)(1), provides
that the court shall ‘[o]rder the disposition of any retirement benefits
payable upon or after the death of either party in a manner consistent with
Section 2550.’ [¶] Generally speaking, a trial court’s division of the
community interest in retirement rights ‘“will not be interfered with on appeal
unless an abuse of discretion is shown.
The criterion governing judicial action is reasonableness under the
circumstances. The method adopted may
vary with the facts in each case.” [Citation.]’
[Citation.] ‘Whatever the method
that it may use, however, the superior court must arrive at a result that is
“reasonable and fairly representative of the relative contributions of the
community and separate estates.”
[Citation.]’ [Citation.] But,
except as otherwise agreed by the parties or specifically provided by statute,
no trial court has discretion to divide the community estate unequally and if
it does so, the trial court errs as a matter of law. (Fam. Code, § 2550.)” (Id.
at pp. 579-580, italics added.)

It is of course
true that section 1101, subdivisions
(g) and (h) are statutes providing for unequal distribution in cases of breach
of fiduciary duty. But, by their terms,
those subdivisions apply only to the asset undisclosed or transferred in breach
of the fiduciary duty. The pension plan
does not fall within that definition so the general rule of equal distribution
must apply to it.

In >Cooper, the appellate court held that
the trial court erred as a matter of
law when it “allocated . . . the entirety of this [community property] benefit
without requiring an offsetting payment to appellant.” (Cooper,
supra, 160 Cal.App.4th p. 580.) Under section 2550, the community portion of
the pension benefit must be divided equally.
(See also § 2610.)

Equal
distribution of the community property portion of the benefit must also be
calculated under the time rule of In re
Marriage of Brown (1976) 15 Cal.3d 838, 847-848. (See Cooper,> supra, 160 Cal.App.4th at p. 577.) The order here does not specify the
calculation of the time rule. (See
generally In re Marriage of Gray
(2007) 155 Cal.App.4th 504, 509, fn. 3.)
And, as discussed above, section 2550 does not authorize the entire
community property pension interest to be given to one party as a penalty for
breach of fiduciary duty unless the pension plan was itself the subject of the
breach of fiduciary duty.

We need not go
further, however, for it is clear from our discussion above that the trial
court will have to recalculate the division of property after properly
determining the value of the family home.
As part of such recalculation, the trial court is to reconsider and
modify its order awarding 100 percent of Hugo’s pension to be paid to
Julieta. The trial court is to apply the
criteria set forth in Cooper,> supra, 160 Cal.App.4th 574. As noted in that case, it is often easier to
award the non-employee spouse an offsetting payment while confirming the
pension benefit to the employee spouse.
(Id. at pp. 580-581.) In any event, the community property portion
of Hugo’s pension must be divided equally.


IV

THE
RETROACTIVE SUPPORT ORDER

Finally,
Hugo contends the trial court had no authority to make the support order
retroactive. The court’s decision was
filed on July 6, 2009. It states: “On June 23, 2008, Respondent was ordered to
pay temporary child support in the amount of $692.00 for both of the minor children
commencing June 1, 2008 . . . . This
order was made without prejudice subject to final determination at the time of
trial.

After considering the income of each
party, the court ordered child support in the amount of $1,154 for both
children commencing June 1, 2008, through June 30, 2009. “The difference between temporary child
support of $692.00 and child support now ordered in the amount of 1,154.00 is
$462.00. Respondent owes retroactive
child support in the amount of $462.00 for twelve (12) months for a total of
$5,544.00.”

With regard to spousal support, the
amount was raised from $266 per month to $300 per month, retroactive from the
filing date of July 6, 2009, to May 1, 2009.
The same legal considerations apply to this award as to the retroactive
award of child support.

Hugo contends these orders violate
section 3653, subdivision (a), which provides : “An order modifying or terminating a support
order may be made retroactive to the date of the filing of the notice of motion
or order to show cause to modify or terminate, or to any subsequent date,
except as provided in subdivision (b) or by federal law (42 U.S.C.
§ 666(a)(9).)”

Hugo cites In re Marriage of Cheriton (2001) 92 Cal.App.4th 269: “The statute thus permits the trial court to
make its ruling retroactive to the filing date of the motion, but no
earlier.” (Id. at p. 300.) The
appellate court also stated: “In
exercising its discretion concerning retroactivity, the trial court was
required to analyze the children’s then current needs, as measured by the
parents’ ability to provide support. To
the extent its focus was on the parents’ expenses, rather than on the
children’s needs, the court abused its discretion.” (Ibid.)


In this case, section 3653,
subdivision (a) is applicable because there was a prior temporary child support
order and a spousal support order dated June 23, 2008. Although the order states that it is
“temporary and without prejudice,” federal law (42 U.S.C § 666(a)(9))
limits retroactivity to the date of service of the order to show cause or the
notice of motion for modification.href="#_ftn11" name="_ftnref11" title="">[10]

In County of Riverside v. Keegan (1997) 54 Cal.App.4th 269 (Fourth
Dist., Div. Two), we held that child support was properly awarded retroactive
to the date the complaint was filed. Our
Supreme Court reversed this decision in County
of Santa Clara v. Perry (1998) 18 Cal.4th 435, 438. The court approved a Sixth District Court of
Appeal opinion, which held that support orders can be made retroactive only to
the filing date of the notice of motion or order to show cause for
support. (Ibid.) Our Supreme Court
explained its reasoning in some detail and concluded that “[t]he statute cannot
reasonably be read to permit courts to make a support order retroactive to a
date prior to the filing of the
notice of motion or order to show cause.”
(Id. at p. 446.)

In the instant case, it appears
there was no motion or order to show cause.
The issue was determined at trial even though there were prior support
orders in 2008. As our Supreme Court
indicated in Perry, at least part of
the legislative intent was to
encourage the filing of motions to encourage prompt establishment of child
support. (County of Santa Clara v. Perry, supra,
18 Cal.4th at p. 446.) Without such a filing, we conclude there
cannot be a retroactive order. (See
generally Hogoboom & King, Cal. Practice Guide: Family Law, supra, ¶ 6:511.)

V

DISPOSITION

The judgment is reversed and the
matter is remanded to the trial court with the following directions:

1. The
trial court is directed to reconsider the division of community property by (1)
using a valuation date specified in Family Code section 1101, subdivision (g);
and (2) obtaining and considering an opinion of market value of the home
on the selected date as required by Evidence Code section 813. Property is to be divided equally in
accordance with Family Code section 2552, subdivision (b) except for the
penalty award for breach of fiduciary duty regarding the home under Family Code
sections 1101, subdivisions (g) and (h).

2. Reconsideration
of the division of community property is to include reconsideration and
modification of the trial court’s previous order awarding 100 percent of Hugo’s
pension to Julieta. Such reconsideration
shall be in accordance with the views expressed in this opinion and the
criteria set forth in Cooper,> supra, 160 Cal.App.4th 574.

3. The
court is directed to modify its child support and spousal support orders to
eliminate their retroactive effect and to begin the modifications on the date
of the award (July 6, 2009). The final
division of community property should give Hugo credit for any improper
retroactive payments he made. For child
support, this would include payments between June 1, 2008, and June 30,
2009. For spousal support, this would
include payments between May 1, 2009, and July 6, 2009.

In all other respects, the judgment
is affirmed. Appellant is awarded his
costs on appeal.

NOT TO
BE PUBLISHED IN OFFICIAL REPORTS



RICHLI

J.



We concur:





HOLLENHORST

Acting
P. J.





KING

J.