Marriage of Stupansky















Filed 4/2/13 Marriage of Stupansky CA3















NOT TO BE PUBLISHED











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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Siskiyou)

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>

In re the Marriage of VICTOR and SANDRA STUPANSKY.
VICTOR STUPANSKY, Appellant, v. SANDRA MONETTE, Appellant.	C068246 (Super. Ct. No. SCCVFL081436)

This appeal arises from the href="http://www.fearnotlaw.com/">dissolution of marriage of Victor
Stupansky (Victor) and Sandra Monette (Sandra).
Both parties challenge the trial court’s judgment regarding the division
of property.

In part I, we discuss Victor’s
appellate contentions. He argues the
trial court erred in finding that his Petaluma residence was transmuted from separate
property to community property, and in determining that Sandra was only
required to reimburse the community $51,612.50 for the funds Sandra applied to
her separate property duplex in Santa Rosa.

In part II, we discuss Sandra’s
contentions in her cross-appeal. She
asserts the trial court erred in failing to order Victor to return all the
money he withdrew from a community certificate of deposit and deposited into
his separate account, and in excluding evidence concerning Victor’s
misappropriation of community funds.

As we will explain, given the
limited appellate record in this judgment roll appeal, the parties did not meet
their appellate burden to demonstrate reversible trial court error. Accordingly, we will affirm the judgment.

BACKGROUND

We limit our background recitation
to the circumstances relevant to the contentions on appeal. Moreover, because the parties elected to
proceed without a reporter’s transcript, the relevant facts are taken from the trial
court’s findings and conclusions. (>Krueger v. Bank of America (1983)
145 Cal.App.3d 204, 207.)

Prior to their marriage, Victor
owned a residence in Petaluma and Sandra owned a duplex in Santa Rosa. They
married on September 8, 1991, resided in the Petaluma residence and rented out both units of the Santa Rosa duplex.


Victor and Sandra drafted the
Stupansky Family Trust in 1993 and transferred the Petaluma property into the trust. They withdrew the Petaluma property from the trust in 1994 and
transferred it to themselves in joint tenancy.
The parties then sold the property in 2002 for a profit of $610,000 and
used the proceeds to purchase six unimproved lots in Siskiyou County. They
combined two of the lots, built a family residence on them, and left the other
four lots unimproved.

Victor and Sandra separated on October
2, 2008.

At trial, the parties disputed
whether the Petaluma residence should be characterized as
community or separate property, whether the community had a right to
reimbursement for expenditures on the Santa Rosa duplex, and whether money was
misappropriated from bank accounts.
According to the trial court, “both parties made numerous allegations of
wrong-doing and concealment of community assets[;] however, neither provided
much evidence to support these allegations and the evidence that was provided
was often inadequate. The court was
required to painstakingly sift through numerous documents and try to piece
together patterns to determine whether such allegations were supported. Frequently the court found itself in the
position of having to resort to speculation and conjecture. At these points the court was required to
resort to family law presumptions to characterize property and rights of
reimbursement.”

Victor testified he had no intention
of transmuting his Petaluma residence from separate to community property, and he had nothing to
do with establishing the trust. But
Sandra testified that Victor wanted to establish a family trust, worked with an
attorney to draft the trust, and she had nothing to do with it. She maintained that she was not present when
Victor signed the trust document or transfer deeds. She said her name was put on the title when
the Petaluma property was withdrawn from the trust, and
she had nothing to do with drafting the deed to withdraw the property from the
trust. Sandra did not put her Santa Rosa duplex in the trust, despite Victor’s
insistence that she do so, because she did not know much about trusts.

Victor did not dispute that the
parties retained an attorney to assist in the drafting and implementation of
the trust documents, that Victor alone handled the withdrawal of the Petaluma property from the trust, or that the value
of the Petaluma property on the date of the marriage was
$317,500.

The trial court found that Victor’s
testimony was vague and that Sandra’s testimony was more credible. It found no evidence of undue influence in
the Petaluma property transaction. It found the property was transmuted from
separate to community property, and that Victor was entitled to reimbursement
from the community in the amount of $317,500, which was the only evidence of
the separate property value of the Petaluma residence before the transmutation.

With respect to Sandra’s Santa Rosa duplex, the trial court found that she
purchased it in 1988 and retained title as her separate property. She refinanced the property in 1993 and asked
Victor to sign an interspousal transfer deed transferring any interest he might
have in the property to her. Victor
testified he was not coerced into signing the deed and did so because he
believed the duplex was her separate property.
The evidence demonstrated that the duplex was rented throughout the
marriage, that the rental amount was sufficient to pay the property expenses
through 2007, and that there were no significant repairs that exceeded its
income between the date of the marriage and 2007. Accordingly, the trial court found the
community had no interest in the Santa Rosa duplex and was not disadvantaged by the
execution of the deed.

Victor nonetheless alleged there was
a community interest in the Santa Rosa duplex because Sandra took funds from the community to support the
duplex by paying down the encumbrance and funding maintenance and repairs. Sandra countered that the funds came from her
separate property; that is, from a personal injury settlement she received
prior to the marriage in 1988, and from an inheritance she received from her
mother in 1998 and 1999. She used some
of the personal injury settlement funds to purchase the duplex, and placed the
remaining amount in a bank account.
After she married, she continued to receive rental income from the
property and deposited the funds in a community bank account with Bank of
America. She used the deposited funds to
pay the duplex expenses and, because the income exceeded the expenses, there
was money left over which was used to support the community.

Sandra received an inheritance of
$123,000 to $127,000 between 1997 and 1999.
She deposited the money into a savings account, which the court
indicated was a separate property account.
She used some of the funds to successfully defend a partition action
brought by her daughter, who was a tenant in the Santa Rosa duplex, and other funds to pay down the
mortgage and refinance the Santa Rosa duplex in 1999.

Victor submitted bank statements as
evidence that the funds used to pay down the mortgage came from a community
source. The trial court found that the
evidence taken as a whole indicated otherwise, and did not refute Sandra’s
evidence that the money used for repairs and to pay down the mortgage came from
a separate property source. The
exceptions, however, were transfers of $11,612.50 and $41,000 from community
bank accounts, which Sandra failed to trace to a separate property source. Accordingly, the trial court found that the Santa Rosa duplex was Sandra’s separate property, but
that she must reimburse the community in the amount of $52,612.50.

With respect to the parties’
community bank accounts, Victor and Sandra both accused the other of bad faith
in withdrawing and hiding large amounts of money. They testified that the sale proceeds from
the Petaluma property were deposited into a “maximizer” account with Bank of
America, and that the funds used to purchase the Siskiyou properties and to
build the family residence were taken from this account. Thereafter, Sandra withdrew $169,656.86 from
a community bank account and Victor withdrew $43,500.95. The trial court observed that each party had
the right of management and control over community assets subject to acting as
fiduciaries to the other partner, and there was no evidence or explanation
regarding the disposition of the funds.

Victor also cashed a community
property certificate of deposit in the amount of $151,699.67 and deposited the
money in a bank account held solely in his name. At the time of trial, $110,000 was left in
the account. The trial court found that
the entire $110,000 was community property and subject to the jurisdiction of
the court. Accordingly, it awarded each
party $55,000.

STANDARD OF REVIEW

The trial court has broad discretion
over the division of community property.
(Fam. Code, § 2550; In re Marriage of Brown (1976) 15 Cal.3d 838,
848, fn. 10.)href="#_ftn1"
name="_ftnref1" title="">[1] We
review the trial court’s judgment dividing marital property for an abuse of
discretion. (In re Marriage of Dellaria
& Blickman–Dellaria (2009) 172 Cal.App.4th 196, 201.) We review matters of law de novo, but uphold
the trial court’s factual findings if supported by substantial evidence. (Ibid.)

In the present case, the parties
opted not to provide a reporter’s transcript and elected to proceed on a
clerk’s transcript. This is known as a
judgment roll appeal. (Allen v. Toten
(1985) 172 Cal.App.3d 1079, 1082–1083; Krueger v. Bank of America, supra,
145 Cal.App.3d at p. 207; Code Civ. Proc. § 670.) “In a judgment roll
appeal based on a clerk’s transcript, every presumption is in favor of the
validity of the judgment and all facts consistent with its validity will be
presumed to have existed. The
sufficiency of the evidence is not open to review. The trial court’s findings of fact and
conclusions of law are presumed to be supported by href="http://www.mcmillanlaw.com/">substantial evidence and are binding on
the appellate court, unless reversible error appears on the record.” (Bond v. Pulsar Video Productions
(1996) 50 Cal.App.4th 918, 924 (Bond);
see also Cal. Rules of Court, rule 8.163.)

“[T]he record before us consists
properly of only the judgment, findings of fact and conclusions of law in
support thereof, and the pleadings; we are not concerned with evidence taken in
the trial court, either orally or through the admission of exhibits (whether or
not said exhibits are incorporated into the clerk’s
transcript) . . . .”
(Millbrae Assn. for Residential Survival v. City of Millbrae
(1968) 262 Cal.App.2d 222, 226-227.)
Appellants cannot enlarge the scope of appellate review by designating
for inclusion in the clerk’s transcript documents not properly a part of the
judgment roll, such as the exhibits received in evidence. (Tibbets
v. Robb (1958) 158 Cal.App.2d 330, 337.)

Furthermore, a judgment or order of
the trial court is presumed to be correct, and all intendments and presumptions
are indulged to support it on matters as to which the record is silent. (Denham v. Superior Court (1970) 2
Cal.3d 557, 564; In re Marriage of Gray (2002) 103 Cal.App.4th 974,
977-978.) It is the appellant’s burden
to affirmatively demonstrate reversible error by: (1) providing an adequate record that
affirmatively demonstrates error; (2) supporting all appellate arguments with
legal analysis and appropriate citations to the material facts in the record;
and (3) showing exactly how the error caused a miscarriage of justice, else his
or her contentions are deemed forfeited.
(Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; City of
Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240; In re
Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337; Hernandez v.
California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502; Badie
v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

Appellants
may not simply incorporate by reference arguments made in papers filed in the
trial court rather than brief the arguments on appeal. (Garrick Development Co. v. Hayward
Unified School Dist. (1992) 3 Cal.App.4th 320, 334.) They must present each point separately in
the opening brief under an appropriate heading, showing the nature of the
question to be presented and the point to be made. (Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk
v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830–1831, fn.
4.)

These
procedural rules are not mere technical requirements; they are essential to the
appellate process. Appellants must
“present their cause systematically and so arranged that those upon whom the
duty devolves of ascertaining the rule of law to apply may be advised
. . . of the exact question under consideration, instead of being
compelled to extricate it from the mass.”
(Landa v. Steinberg (1932) 126 Cal.App. 324, 325; accord, Opdyk
v. California Horse Racing Bd., supra, 34 Cal.App.4th at p. 1830, fn. 4.)

With these rules in mind, we turn to
the parties’ appellate contentions.

DISCUSSION

I

Victor contends the trial court
erred in determining that his residence in Petaluma was transmuted to community
property. He argues there was no
compliance with section 852, subdivision (a), which states: “A transmutation of real or personal property
is not valid unless made in writing by an express declaration that is made,
joined in, consented to, or accepted by the spouse whose interest in the
property is adversely affected.” He
believes there was no transmutation because there was no express written
language indicating the intent to transmute the property.

The requirements for a valid
transmutation under section 852 can be divided into two basic components: (1) a
writing that satisfies the statute of frauds, and (2) an expression of intent
to transfer a property interest. (Estate
of Bibb (2001) 87 Cal.App.4th 461, 468 (Bibb).) In Bibb, there was no dispute that the
grant deed at issue was a writing satisfying the statute of frauds, and the
appellate court held the use of the word “grant” in the grant deed was an
expression of intent to transfer a property interest. (Bibb, supra, 87 Cal.App.4th at pp.
468-469.)

Here, the trial court found the
residence was transmuted from Victor’s separate property into community
property when Victor transferred the property to a family trust, and then
Victor and Sandra, as trustees of the trust, deeded the property to Victor and
Sandra as joint tenants. Victor has not
shown error and no error appears on the face of the record. Under these circumstances, the trial court’s
findings of fact and conclusions of law are presumed to be supported by
substantial evidence and are binding on the appellate court. (Bond,
supra, 50 Cal.App.4th at p. 924.)

Victor also argues the trial court
erred in determining that Sandra was only required to reimburse the community
for $51,612.50 that she used for her separate property duplex in Santa Rosa,
instead of the $370,872 that Victor alleged was owed to the community. He claims the trial court’s analysis
“unfairly reject[ed] his community property evidence and goes out of its way to
establish separate property status for the parties[’] funds for purposes of
[Sandra’s] duplex.” In other words,
Victor challenges the sufficiency of the evidence to support the judgment.

But we cannot review the sufficiency
of the evidence if the record does not include all the evidence. In this judgment roll appeal, the limited
record does not include a reporter’s transcript of the five-day trial and
Victor did not object to the statement of decision or bring any asserted errors
or omissions to the attention of the trial court. Without a complete record, we must imply
findings to support the judgment and we must presume there is evidence to
support the implied findings. “If the
party challenging the statement of decision fails to bring omissions or
ambiguities in it to the trial court's attention, then, under Code of Civil
Procedure section 634, the appellate court will infer the trial court made
implied factual findings favorable to the prevailing party on all issues
necessary to support the judgment, including the omitted or ambiguously
resolved issues. [Citations.] The appellate court then reviews the implied
factual findings under the substantial evidence standard. [Citations.]”
(Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th
42, 59–60.) “ ‘In a judgment roll
appeal every presumption is in favor of the validity of
the judgment and any condition of facts consistent with its validity will be
presumed to have existed rather than one which will defeat it. [Citation.]
The sufficiency
of the evidence to support the findings is not open to
review. [Citation.]’ name="citeas((Cite_as:_166_Cal.App.4th_1024,_*">(Wheelright v. County of Marin (1970) 2 Cal.3d 448, 454.)”
(Estate of Kievernagel (2008) 166 Cal.App.4th 1024, 1031;
see also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 360, pp.
415-416.)

Because the appellant is confined to
showing errors which are affirmatively demonstrated by the record, “showing any
such error is extraordinarily hard to do, given that a challenge to the name="SR;1402">sufficiency of the evidence cannot be
made.” (In re Marriage of Hall (2000)
81 Cal.App.4th 313, 316.) Here, Victor
has not shown error and no error appears on the face of the record.

II

In her cross-appeal, Sandra contends
the trial court erred in failing to order Victor to return all the money he
withdrew from the community certificate of deposit and deposited into his
separate account. She argues there is no
substantial evidence to support the trial court’s ruling that the community is
only entitled to reimbursement for $110,000, which reflected the amount
remaining in Victor’s separate property account, rather than awarding the
community the full $151,699.67 of community funds that he deposited into the
account.

As we have explained, however, the sufficiency of the evidence is not open to
review in a judgment roll appeal. (>Bond, supra, 50 Cal.App.4th at p.
924.) We must presume the trial court’s
findings of fact and conclusions of law are supported by substantial
evidence. (Ibid.) Sandra has not shown
error and no error appears on the face of the record.

Sandra further contends the trial
court erred in excluding evidence concerning Victor’s misappropriation of
community funds. Specifically, she
argues the trial court “erred in excluding admissible evidence in the form of
records submitted by subpoena from Bank of America under seal at trial
demonstrating that [Victor] secretly, and without [her] consent, transferred
$51,500.95 between 2004 and 2009 from jointly-held bank accounts into his separate
bank account . . . .”


Nothing in the limited record
demonstrates that Sandra made known to the trial court the substance, purpose,
and relevance of the excluded evidence such that we may





say a href="http://www.fearnotlaw.com/">miscarriage of justice occurred. (Evid. Code, § 354.) Under the circumstances,
Sandra has failed to meet her burden of providing a record establishing
reversible error.

DISPOSITION

The judgment is affirmed. Each party shall bear their own costs on
appeal.







MAURO , J.





We concur:





NICHOLSON , Acting P. J.





HULL , J.