Marriage of Ward
Filed 1/23/14 Marriage of
Ward CA2/7
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re the
Marriage of MAGGIE and
JESSE E. WARD,
JR.
___________________________________
MAGGIE B. WARD,
Appellant,
v.
JESSE E. WARD,
JR.,
Respondent.
B243672
(
Super. Ct. No. BD465331)
APPEAL
from a judgment of the Superior Court of
Los Angeles County, David S. Cunningham, Judge. Affirmed.
Maggie B. Ward, in pro. per., for
Appellant.
Jesse E. Ward, Jr., in pro. per.,
for Respondent.
_______________________
Appellant Maggie B. Ward appeals from the judgment entered in a
and respondent Jesse E. Ward, Jr.
the trial court erred in (1) awarding certain real property to Jesse as his
sole and separate property, (2) awarding all rights and benefits in an Exxon
Mobil pension plan to Jesse as his sole and separate property, and (3) failing
to award certain furniture and furnishings in the marital residence to Maggie
as her sole and separate property.
For the reasons set forth below, we affirm the judgment without
prejudice to Maggie’s right to seek further
relief in the trial court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Maggie and Jesse
first married in 1974 and divorced in 1986.
They remarried in September 1990 and separated in April 2007. Maggie filed a petition for dissolution of
marriage in May 2007. Prior to and
during their marriage, Maggie and Jesse acquired various real properties in
both parties continued to live in the marital residence in Los Angeles;
however, by the time of trial, Maggie had moved out. Maggie and Jesse were both retired from work
and had no minor children in their care.
In March 2009,
while the dissolution action was pending, the trial court approved a
stipulation signed by the parties regarding the
property. Under the stipulation, Maggie
was allowed to remove certain furniture, home furnishings, and other personal
property from the marital residence, without prejudice to either party’s rights
concerning the proper characterization and division of the property. The parties agreed that they would not sell
or otherwise dispose of the property in their respective possession until
further order of the court.
At various times
during the dissolution proceedings, Maggie and Jesse were each represented by
counsel. However, after several years of
litigation, the attorneys for each party eventually withdrew from their respective
representations, and as of the trial date, both Maggie and Jesse were
representing themselves. The trial was
held over a two-day period on June 28 and 29, 2012. Maggie and Jesse each attended the trial and
offered various exhibits into evidence. The
trial court admitted some of the exhibits offered by the parties and refused to
admit others. At the conclusion of the
trial, the court granted the dissolution and made findings on the characterization
and division of certain assets.
The trial court found
that a house on Cadillac Lane in Nevada, a tract of land in Mississippi, a house on LaSalle
Street in Moreno Valley, and
certain financial accounts were Maggie’s sole and separate property. The court found that a house on Gammila Drive
in Nevada, a condominium at 8805
Penridge Place in Inglewood, and a
house at 8825 Penridge Place in Inglewood were Jesse’s sole and separate property. The court found that the marital residence on
Sherbourne Drive in Los Angeles was community property and ordered the parties to meet and confer
on the disposition of that residence.
With respect to Jesse’s pension benefits, the court ordered the parties
to prepare a qualified domestic relations order for Jesse’s pension plans with
Exxon Mobil, McDonnell Douglas, and the United States Air Force. With respect to the household furniture and
furnishings, the court awarded each party all furniture and furnishings
currently in his or her possession as that party’s sole and separate property. The trial court reserved its jurisdiction to
make any orders that might be necessary to carry out its judgment and to divide
equally between the parties any other community assets or liabilities that were
omitted from division in the judgment.
On August
29, 2012, Maggie filed a notice of appeal.
Maggie raises three arguments on appeal. First, she contends that the trial court
erred in awarding the real property located at 8825 Penridge Place in Inglewood to Jesse as his sole and separate property because the property was
acquired by Jesse during their marriage without Maggie’s knowledge or consent. Second, she claims that the trial court erred
in awarding the Exxon Mobil pension benefits to Jesse as his sole and separate
property because Jesse fraudulently signed Maggie’s name on certain forms
relinquishing her right to benefits in that plan. Third, she asserts that the trial court erred
in refusing to award her certain furniture and furnishings that remained in the
marital residence because those items previously had been awarded to Maggie
during the first divorce.
I.
General Law on
Marital Property Division
In a marital
dissolution action, absent an agreement by the parties, the court must
generally divide the community estate equally.
(Fam. Code, § 2550; In re Marriage
of Walrath (1998) 17 Cal.4th 907, 924.)
“The trial court must characterize the property for purposes of this
division as separate, community, or quasi-community. [Citation.]
The characterization of property as community or separate can be
determined by the date of acquisition, the application and operations of
presumptions, or by whether the spouses have transmuted the property. [Citation.]â€
(In re Marriage of Sivyer-Foley
& Foley (2010) 189 Cal.App.4th 521, 525-526.) “The trial court’s findings on the
characterization and valuation of assets in a dissolution proceeding are
factual determinations which are reviewed for substantial evidence.
[Citation.]†(In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572.)
Under Family Code section 760, there is a general presumption that
all property, real or personal, acquired during marriage is community
property. (Fam. Code, § 760;
Cal.App.4th 277, 290-291.) However,
under the form of title presumption codified in Evidence Code section 662, “[t]he
owner of the legal title to property is presumed to be the owner of the
full beneficial title,†and such “presumption may be rebutted only by clear and
convincing proof.†(Evid. Code, §
662.) In the absence of an allegation
that any interspousal agreement violated the fiduciary duty owed by the spouse
(Fam. Code, § 721), “[t]he mere fact that property was acquired during marriage
does not . . . rebut the form of title presumption; to the contrary, the act of
taking title to property in the name of one spouse during marriage with the
consent of the other spouse effectively removes that property from the general
community property presumption. In that
situation, the property is presumably the separate property of the spouse in
whose name title is taken. [Citations.]â€
(In
re Marriage of Brooks & Robinson (2008) 169 Cal.App.4th 176, 186-187.) “[T]he party asserting that title is other
than as stated in the deed . . . has the burden of proving that fact
by clear and convincing evidence.†(
II.
Maggie Has Failed
to Provide an Adequate Record on Appeal
A fundamental
rule of appellate review is that an appealed judgment or order is presumed
correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) “‘All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error
must be affirmatively shown. . . . [Citations.]’†(Ibid.;
see also Marriage of Arceneaux (1990)
51 Cal.3d 1130, 1133 [“judgment or order of a lower court is presumed to be
correct on appeal, and all intendments and presumptions are indulged in favor
of its correctnessâ€].) To overcome this
presumption, the appellant must provide an adequate appellate record
demonstrating error. (
1295.) “‘A necessary corollary to this
rule [is] that a record is inadequate . . . if the appellant
predicates error only on the part of the record he [or she] provides the trial
court, but ignores or does not present to the appellate court portions of the
proceedings below which may provide grounds upon which the decision of the
trial court could be affirmed.’ [Citation.]â€
(Osgood v. Landon (2005) 127
Cal.App.4th 425, 435.) Where the appellant
fails to provide an adequate record of the challenged proceedings, we must
presume that the appealed judgment or order is correct, and on that basis,
affirm. (Maria P. v. Riles, supra,
at pp. 1295-1296; see also Hernandez v.
California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502
[“[f]ailure to provide an adequate record on an issue requires that the issue
be resolved against [appellant]â€]; Estrada
v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1 [failure to provide an
accurate record “precludes an adequate review and results in affirmance of
the trial court’s determinationâ€].)
Here, Maggie has
not provided an adequate record on appeal for this court to review her challenge
to the sufficiency of evidence supporting the trial court’s judgment. In filing her notice of appeal and
designating the appellate record, Maggie elected to proceed with a reporter’s
transcript for only the second day of the two-day trial, opting not to request
a reporter’s transcript for the first day of trial. Maggie also failed to transmit to this court
any of the exhibits that were offered by the parties or admitted into evidence
by the trial court during the trial proceedings.
records before this court that pertain to the evidence presented at trial are
the reporter’s transcript from the June 29, 2012 proceeding, the minute orders
from the June 28 and 29, 2012 proceedings, and the judgment of dissolution. From this limited record, we cannot conclude that
the evidence was insufficient to support the trial court’s findings regarding
the proper characterization and division of the parties’ property.
With respect to
the 8825 Penridge Place property, the record reflects that the trial court found that a
1999 deed purporting to transfer Maggie’s interest in the property to Jesse was
fraudulent and thus inadmissible, but that other pre-1999 documents demonstrated
title to the residence was held solely in Jesse’s name and was his separate
property. Maggie argues on appeal that this
asset should have been deemed community property because Jesse acquired it
during their marriage without her knowledge and consent by misrepresenting
himself as an unmarried man. However,
none of the exhibits on which the trial court based its finding about the
separate property character of the 8825 Penridge Place residence were included in the record on appeal. Additionally, because the record on appeal fails
to include a complete transcript of the oral proceedings, we cannot determine
whether any additional evidence concerning the residence was presented during
the first day of trial. Based on this
record, Maggie has failed to meet her burden of affirmatively demonstrating
error in the trial court’s ruling.
With respect to
the household furniture and furnishings, the judgment reflects that the trial court
awarded each party all furniture and furnishings in his or her possession as of
the time of trial. Maggie asserts on
appeal that some of the items that remained in the marital residence after she
moved out should have been found to be her sole and separate property because
they previously were awarded to her as part of the judgment in the first
divorce. However, Maggie has not
identified which items in the residence she believes were her separate
property, nor has she cited to any evidence showing that the furniture and
furnishings that were awarded to her in the prior dissolution action were the
same items at issue in the current action.
Furthermore, as discussed above, Maggie’s failure to provide a complete reporter’s
transcript for the two-day trial precludes this court from determining exactly what
evidence was presented to the trial court, and whether such evidence was
sufficient to support its findings on the division of the parties’ assets. The incomplete appellate record submitted by
Maggie does not support her claim of error in the trial court’s ruling.
With respect to
the Exxon Mobil pension plan, there is nothing in the record to suggest that
the trial court found that all of the rights and benefits in that plan were Jesse’s
sole and separate property. Instead, the
trial court directed the parties to prepare a qualified domestic relations
order regarding the Exxon Mobil pension plan and two other pension plans issued
through Jesse’s former employers.
expressly reserved its jurisdiction to divide any community assets or
liabilities that were not divided in the judgment and to make any other orders
that might be necessary to carry out the terms of the judgment. While Maggie contends on appeal that there was
evidence showing that Jesse fraudulently signed documents relinquishing her
right to receive benefits in the Exxon Mobil plan, we cannot determine from
this record whether any such evidence was presented at trial, and if so,
whether the trial court made any finding of fact based on that evidence. Based on the record before us, it appears
that the trial court simply ordered the parties to prepare a proposed qualified
domestic relations order regarding Jesse’s pension plans and reserved its
jurisdiction to later determine the parties’ respective rights to receive any benefits
under those plans. Maggie’s claim that the
trial court awarded the Exxon Mobile pension benefits to Jesse as his sole and
separate property is not supported by the record on appeal.
Finally, we note that the parties made representations during oral
argument that there has not been full compliance with the trial court’s
judgment, including its orders regarding the disposition of the Sherbourne Drive residence and the preparation of a qualified domestic relations
order for Jesse’s pension plans.
Accordingly, we affirm the judgment, but do so without prejudice to
the court reconsidering these issues in the future in light of circumstances
arising from the non-compliance with the terms of the court’s orders.
The judgment is affirmed without
prejudice to Maggie’s right to seek further relief in the trial court. The parties shall bear their own costs on
appeal.
ZELON,
J.
We concur:
WOODS, Acting P.
J.
SEGAL, J.
name="_ftn1" title="">[1] Because the parties share the same
last name, we refer to them by their first names for clarity and convenience,
and not out of disrespect. (
Cal.App.4th 1131, 1136, fn. 1.)
name="_ftn2" title="">[2] Maggie filed her notice of appeal
following the trial court’s oral rendition of the judgment and entry of the
minute orders from the trial, but prior to entry of the written
judgment. For purposes of this appeal,
we treat the premature notice of appeal as filed immediately after entry of
judgment. (Cal. Rules of Court, rule
8.104(d); Bosetti v. United States Life
Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1223,
fn. 11; Davaloo v. State Farm
Ins. Co. (2005) 135 Cal.App.4th 409, 413, fn. 7.)
