Marriage of Kim

Filed 8/18/06 Marriage of Kim CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Laura Halgren, Judge. Affirmed.

Young Kim appeals the judgment in this dissolution action, contending the trial court abused its discretion by denying his request for a continuance of trial, and erred by choosing a 1993 date of separation and date of valuation of the family home. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Kyung Kim (Kyung) and Young Kim (Young) came to the United States from Korea. They married in Michigan in March 1968, and they have two adult children, Eugene and Sue.

The marriage was an unhappy one and Young physically and verbally abused Kyung. She immediately regretted marrying him, but believed divorce was out of the question because of her Korean heritage and her religion. Kyung, however, did discuss divorce with Young in 1973, and he threatened her with a knife. She next discussed divorce with him in 1984, and he beat her in their children's presence.

The parties moved to San Diego in 1989, and the following year they purchased a home in El Cajon. According to Eugene, by 1991 Young "really had nothing to do with our family." Before Sue's high school graduation in 1992, Young held a butcher knife to Kyung's neck and threatened to kill her. Between 1992 and 1993, hostility between the parties escalated.

In March 1993, Kyung again told Young she wanted a divorce. Young pleaded with her not to divorce him, explaining his business was not doing well and he would feel guilty if he could not pay her alimony. They agreed not to divorce but to lead separate lives, with Young living in Korea and Kyung remaining in San Diego. The parties also agreed to keep their finances separate, and after 1993 Young contributed "[n]ot a penny" to the family.

Young subsequently spent most of his time in Korea pursuing unsuccessful business interests. He suffered losses of approximately $300,000 between 1994 and 2001. Kyung, a certified nurse anesthetist, loaned Young approximately $300,000 after March 1993 for his business debts. She explained she did so because he promised to repay her and to "feel less guilty when I live my own life." Kyung was also worried that Young would be jailed in Korea for not paying his debts, and she did not want her children "to live with that."

In November 2001 Young was arrested for creating a disturbance on an international flight, a felony under federal law. Young asked Kyung to borrow against the house for his bail and an attorney. She did so, but only on Young's execution of a quitclaim deed giving her his interest in the family home. Young was convicted and spent several months in prison.

In October 2003 Kyung obtained a restraining order against Young, stemming from an incident in which he threatened to kill her. The same month, Kyung filed a petition for dissolution.^[1] The petition did not include a date of separation. In Young's response, he alleged a date of separation of August 15, 2003. Kyung requested a separate trial to determine the date of separation and the date of valuation of the home, arguing the date of separation was March 1993, and the home should be valued as of the same date because she had loaned him funds, "effectively distributing [his] share of the home equity to him."

In a March 4, 2004 declaration, Young agreed to a bifurcated trial. He asked the court to set the date at least 90 days hence, "[a]llowing a minimum of 30 days for me to retrieve any pertinent information, 30 days for opposing counsel to respond to my Interrogatories, and 30 days for me to retain counsel, and for said counsel to prepare for trial." Young explained he was scheduled to leave for Korea on March 8, where he planned to try to locate business records Kyung had requested. He noted that "[o]pposing counsel will apparently not answer any of my Interrogatories until I can try to retrieve [my] records." The court granted a bifurcated trial.

Both parties moved to compel discovery. At an April 27 hearing, the court granted Kyung's motion to compel the production of documents. The court ordered Young to produce his original passport, which was relevant to show when he was out of the United States. Young produced the passport during the hearing, and the court noted Kyung's counsel would make copies of it and return it to Young. The court also ordered Young to provide various financial records and sign an authorization to release information. Young had represented that his records in Korea were burned or destroyed, but Kyung's counsel stated Young had gone to Korea to try to procure additional documents. Kyung sought a written response from Young as to whether he found additional documents, and production of any documents he did find.

The court declined to rule on Young's motion to compel as it was not in proper procedural form. The court however, noted that it accepted Kyung's "representation that once discovery due from [Young] has been provided . . ., [Kyung] will then provide her discovery responses to [Young]." The court retained jurisdiction over the matter.

The court also set the first portion of the bifurcated trial for June 28, 2004. When asked how he felt about that date, Young advised the court, "I might have to hire a lawyer to prepare for the trial," and to do so "I might need . . . [t]ime and money. . . . How am I going to do this?" The court encouraged Young to hire an attorney, and stated that "an attorney can make a request for attorneys' fees if it's justified, but I'm going to set the date, and then if and when you decide to hire an attorney, that person can consult with [Kyung's counsel], and they can decide if they want to jointly agree on a better date, or your attorney can apply for a different date." The court cautioned Young that "[i]t's a long-cause matter. You need to follow the local rules on that."

At the beginning of trial on June 28, Young requested a 60-day continuance to retain an attorney. Young argued he was unprepared for trial because Kyung did not serve him with her trial brief until June 26, a Saturday. Young also complained that Kyung had not returned his passport. Kyung responded that Young did not serve her with a trial brief, and she nonetheless served hers on him as a courtesy. She objected to a continuance because she had a witness from Korea "that needs to go back," a witness from northern California and a Korean interpreter from Los Angeles. The court denied a continuance on the ground of untimeliness, noting Young advised it two months earlier that he intended to retain counsel.^[2]

The first portion of the bifurcated trial was held over four days, ending July 14. The court determined the parties' date of separation was no later than April 1993, and the date of valuation for the family home was the same date. The court explained it found the testimony of Kyung, Eugene and Sue credible, and "the parties agreed in 1993 that they would live apart because they were not going to resume the marital relationship."

The second half of the bifurcated proceeding was held in December 2004. A judgment of dissolution was entered on February 28, 2005.

DISCUSSION

I

Request for Continuance

Young contends that by denying his request for a continuance of the trial, the court denied him due process and a fair trial. Young faults the court for "summarily rul[ing] the motion was untimely" and not "balanc[ing] the right to a fair trial with delay."

"To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain." (Cal. Rules of Court, rule 375(a).) Continuance requests are disfavored, but each request must be considered on its own merits. (Id., rule 375(c).) "The court may grant a continuance only upon an affirmative showing of good cause requiring the continuance." (Ibid.) Factors that may show good cause for a continuance include "[t]he proximity of the trial date," "[t]he length of the continuance requested," and "[t]he prejudice that parties or witnesses will suffer as a result of the continuance." (Id., rule 375(d).)

"[T]rial courts are vested with broad discretion to determine whether to grant a continuance. The granting or refusal of a continuance is a matter of discretion with the trial court and its ruling will not be disturbed unless a clear abuse of that discretion is shown." (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.) " ' " 'The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason. . . . To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision.' . . ." [Citations.] "The appropriate [appellate] test for abuse of discretion is whether the trial court exceeded the bounds of reason." [Citations.]' [Citation.]" (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246 (Hernandez).)

In Hernandez, the court cautioned that in considering a request for a trial continuance, "efficiency is not an end in itself. Delay reduction and calendar management are required for a purpose: to promote the just resolution of cases on their merits. [Citations.] Accordingly, decisions about whether to grant a continuance or extend discovery 'must be made in an atmosphere of substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.' " (Hernandez, supra, 115 Cal.App.4th at p. 1246.)

Here, the court did not exceed the bounds of reason. Young advised the court on April 27, 2004, that he needed time to retain counsel, and by the time of the June 28 trial he had not done so. He gave no satisfactory explanation for not acting sooner. Certainly, the receipt of Kyung's trial brief only two days before trial does not justify the preceding two months' delay, and his claim that he was unaware "we [were] going to have a trial" until he received the trial brief is without merit. As the court explained to Young, "You knew we were going to have a trial when you were in court last April." Given Young's prior failure to retain counsel, the court could reasonably find his request for a continuance was merely intended to cause delay. Further, Kyung showed a continuance would be prejudicial to her.

Young asserts he "had every right to be unprepared" for trial. He cites

Appendix G to the San Diego County Superior Court local rules pertaining to family law matters, which requires the parties to meet and confer and exchange trial briefs and witness and exhibit lists at least seven days before trial. The witness lists are to provide the names, addresses and telephone numbers of the witnesses and the subject matter of their testimony. Appendix G also provides that "[a]ny witness not disclosed pursuant to these rules shall not be permitted to testify at trial." (Original emphasis.)

Young, however, does not dispute Kyung's assertion that she did not receive a trial brief or other material from Young. Indeed, the appellant's appendix does not contain a trial brief by Young, and the reporter's transcript shows he did not notify Kyung of the exhibits he relied on at trial. As the court noted, "complaints about how the briefs were filed . . . were answered by Mr. McCabe [Kyung's counsel] originally, and Mr. Kim never served properly on the Court in timely fashion the papers that he was expected to file before trial."

Further, the supposed prejudice to Young from receiving Kyung's trial brief two days before trial was in not learning until then that she intended to call a witness from Korea, Jinga Lee. Lee's testimony, however, was not harmful to Young. Lee had known Kyung since the 1960's when they worked together in Michigan, and she had lived with Kyung and Young for a period. Lee returned to Korea before 1993, and that year Young telephoned her and said Kyung wanted a divorce. Young characterizes Lee as "an unbiased guest in the house," and he relies on her testimony that to her knowledge in 1995 the parties were not separated. The court's denial of a request for a trial continuance will not be reversed on appeal absent a showing of prejudice. (Eastwood v. Froehlich (1976) 60 Cal.App.3d 523, 528-529.) Additionally, Young made no attempt to exclude Lee's testimony for any failure to comply with local rules.

Additionally, Young has not shown that Kyung's failure to return his original passport to him until trial prejudiced him. The passport was used to show how much time he spent in Korea after 1993, and it was undisputed that he spent a great deal of time there.

Young also contends the court violated the constitutional right of a civil litigant to be represented at trial. (See Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 925 ["Although the right to be represented by retained counsel in civil actions is not expressly enumerated in the federal or state Constitution, our cases have long recognized that the constitutional due process guarantee does embrace such a right"].) By denying Young's continuance request, however, the court did not abrogate his right to retain counsel. Rather, Young lost the opportunity of his own accord when he did not retain counsel in a timely manner.

Further, Young asserts he never received responses to his discovery requests, and the court's ruling on the continuance forced him to trial unprepared. Young

complains that Kyung did not honor her agreement to produce documents after he did so. As the trial court explained, however, Young never brought a competent motion to compel.

Young also bemoans numerous errors he made at trial, such as trying to present evidence by declaration in violation of the hearsay rule, not objecting to leading questions by Kyung's counsel, not retaining a Korean interpreter ahead of time for a witness he wished to present, not making hearsay or other objections to evidence, presenting "cross-examination [that] was unfocused and at times irritating to the judge," and not addressing the issue of the valuation date for the home. Again, though, Young was a victim of his own procrastination in finding counsel. As the Supreme Court has held, "mere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) Young tries to intertwine issues pertaining to the court's ruling on the continuance and his trial performance, but they are separate issues. Had Kyung served her trial brief on Young in conformance with the local rule, presumably he would not have requested a trial continuance to obtain counsel, and he would have made the same types of errors in self-representation.

We also reject Young's assertion the court's denial of a continuance denied him a fair trial because he could not adequately hear the proceedings. Young offers no explanation as to how those issues are related, and his request for a continuance was unrelated to his hearing. In any event, a review of the entire reporter's transcript shows the court adequately accommodated his hearing difficulty.

II

Date of Separation

Young next contends the court erred by choosing April 1993 as the date of separation. He asserts the parties did not separate until 2003.

"The earnings and accumulations of a spouse . . . while living separate and apart from the other spouse, are the separate property of the spouse." (Fam. Code,^[3] § 771, subd. (a).) As the court explained in In re Marriage of Norviel (2002) 102 Cal.App.4th 1152, 1158-1159 (Norviel), "two factors emerge as prerequisites to separation. First, at least one spouse must entertain the subjective intent to end the marriage; second, there must be objective evidence of conduct furthering that intent. [Citations.] 'Simply stated, the date of separation occurs when either of the parties does not intend to resume the marriage and his or her actions bespeak the finality of the marital relationship.' "

Here, the evidence regarding date of separation conflicted, and thus we review the matter for substantial evidence. (Norviel, supra, 102 Cal.App.4th at p. 1158.) "[W]here a trial court's factual finding is challenged on the ground there is no substantial evidence to sustain it, the power of the reviewing court begins and ends with the determination as to whether, on the whole record, there is substantial evidence, contradicted or uncontradicted, that will support the trial court's determination. [Citation.] [¶] The appellate court reviews the evidence in the light most favorable to the respondents [citation], resolving all evidentiary conflicts in favor of the prevailing party and indulges all reasonable inferences possible to uphold the trial court's findings [citation]." (San Diego Metropolitan Transit Development Bd. v. Handlery Hotel, Inc. (1999) 73 Cal.App.4th 517, 528.)

" '[I]f the word "substantial" means anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable in nature, credible, and of solid value; it must actually be "substantial" proof of the essentials which the law requires in a particular case.' [Citations.]" (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203-1204.)

The court found that both Kyung and Young had the subjective intent to separate in 1993. The court determined Kyung "did ask for a divorce but was convinced by [Young] . . . not [to] divorce but separate; and, therefore, they both agreed that was a suitable solution of the problem at that moment."

Further, the court found that "[f]rom there on, all the objective conduct supports that finding, because . . . [Young] set up a household in Korea in '93; . . . he did take household goods from the [family] home; . . . he did not contribute to the family household thereafter; . . . there were no gifts or cards for birthdays or anniversaries[;] . . . the parties did not engage in a marital relationship from there on; . . . there was not interaction in the home of the type you would expect of parties who have a marital relationship as observed by the children."

The court's findings are supported by substantial evidence. Kyung testified that in March 1993 she and Young met at Lake Tahoe, where she informed him she wanted a divorce. Young pleaded with her not to divorce him, stating " 'I am not doing very well with business right now, and I feel very guilty if I cannot give you any alimony.' " Young told Kyung, " 'I give you divorce when I make enough money so I can give you the alimony.' " Kyung testified that Young "was just pleading not to divorce me [for the] sake of children and [because] he can't pay me back all what I did for him all his life." Kyung explained she put Young through school, helped him with his businesses and supported him financially.

Kyung further testified that after a four or five hour discussion, she and Young agreed she would not divorce him, but they would lead separate lives. Kyung was satisfied that "[a]s long as he is not living with me, I have happier life." She said that after their discussion Young took a sofa, a table base, kitchen appliances and other items from the family home to Korea.

Kyung also testified that after 1993 Young stayed at the family home for about a week at a time three to four times per year. He slept in the basement and she did not cook or clean for him. The parties did not exchange cards or gifts on any occasion. She allowed him to stay at her home because "nobody [knew] that we were separated." She did not want friends, church members or even her children to know of the separation. Kyung denied having sexual relations with Young since 1992.

Sue testified that after 1993 she saw Young "dramatically less." She lived with Kyung in 1995, during which time Young was in Korea most of the time "and he would come home every few months for maybe a week at a time, but for that week, he was mostly off in other states for dental conventions, so I never saw him more than a couple days every few months."^[4] She said her father "slept in the bedroom on the basement floor, and my mother stayed in their old room." Further, Young cooked all his own meals. Sue also testified "[t]here was little to almost no interaction whatsoever [between her parents], and what interaction there was, was usually highly tense and contentious."

Additionally, Sue testified that she visited Kyung every two to three months between 1996 and 1999. During that period, Kyung never mentioned that Young was home. When she telephoned Kyung, Young never answered the telephone.

Sue also testified that her mother did not want her children to grow up in a divorced family. Sue was in support of a divorce, but Eugene was not. In answering Young's questioning, she said "it was obvious from the way that you moved to the downstairs basement, and I never saw you for years after that because you were always in Korea, so I knew you were separated." Kyung did not want members of her church to know about the separation.

Eugene, a minister since 1993, testified that he tried to convince his mother not to get a divorce, even after Young had beaten her, because "I'm a Christian and I was going to a Christian school at the time, and I believed at the time that it was wrong to get a divorce." Eugene "pulled out a Bible and showed her in the Bible that God was against divorce." He also testified he was motivated to dissuade his mother from divorcing his father because it "is a shame just for a Korean to get a divorce."

Further, Eugene testified that in 1993 "there were many events that escalated the hostility in my home and caused my father to really not come home anymore, hardly anymore." Eugene was home during school breaks between 1993 and 1996, and his father "wasn't really there." "He would come home like every three months, but even when he was home, he didn't stay at the house. He went on trips to . . . Vegas or New York to go to these dental conventions." Eugene confirmed that when Young was at the home, he slept in the basement. He said his parents put on a "face that they were married" for a few church functions, but they always drove separately and his father would leave before his mother. Eugene urged his mother to reconcile with his father.

Young conceded that since 1993 he had not given Kyung a card or gift for their anniversary, her birthday or Christmas. He asserts, however, that other conduct after 1993 belies any intent to separate that year, and until 2003 the couple was merely on a "rocky road." He cites In re Marriage of Umphrey (1990) 218 Cal.App.3d 647 (Umphrey), in which the court stated "it is not uncommon for parties to a marriage gone sour to live their lives separate and apart while maintaining some vestiges of the marital relation. Many marriages are 'on the rocks' for protracted periods of time and it may be many years before the spouses decide to formally dissolve their legal relationship. In such situations, separation dates can often be 'guesstimates' or approximations selected at random or without careful consideration." (Id. at p. 657, fn. 2.) In Umphrey, the appellate court held the trial court was not jurisdictionally bound to accept the separation date recited in a marital settlement agreement. (Id. at pp. 656-659.)

Young cites evidence that in August 1993 he and Kyung went to San Francisco for an anesthesia conference. Kyung testified he wanted a reconciliation and she agreed to try one, but it lasted less than one day because "[h]is temper is still there" and he "cuss[ed] and call[ed] me names." In February 2004 Kyung met Young in London because he had again asked for a reconciliation and said he was a changed person, and Eugene was encouraging her to reconcile with Young. Kyung, however, did not have a good time in London and the parties fought the entire trip. As to pictures of the parties on these trips, Kyung testified she was wearing a "professional face."

The court found "failed attempts to reconcile in San Francisco and London [did not] overcome the finding [of separation]," because "[t]hose were not successful at all and very short-lived." The court found that other inconsistent conduct was adequately explained, such as the parties' filing of joint tax returns after 1993. Young testified that he wanted to file joint tax returns between 1994 and 2000 because he had not contributed anything to Kyung and his losses would reduce her taxes. As the court noted, "[p]eople often file joint tax returns even after they've separated when there's an advantage financially. If [Young] is having ongoing losses, there is no advantage to him to file separately, and it gives [Kyung] a loss, which thereby allowed her to, unfortunately, continue paying debts of [Young]." Moreover, the court reasonably found that inconsistent conduct was explained by cultural factors and Young's domestic violence against Kyung.

The court also reasonably found that Young's "stays at the house . . . portrayed [him] more as a house guest than as a member of the family, and the evidence that he slept downstairs and took care of his own meals and laundry are consistent with that and do not overcome the finding that the parties were already separated." Young testified that he is an American citizen and under his visa he may stay in Korea for a maximum of 90 days at a time. Young had taken up residence at another address (Noviel, supra, 102 Cal.App.4th at p. 1163), but every few months he needed a place to stay for a short period.

It was the trial court's province to assess the credibility of the witnesses and the strength of the evidence. While some evidence suggests a later date, the evidence amply supports the court's assessment that by April 1993 there was a final break in the marriage.

III

Alternate Valuation Date for Family Home

Young also contends the court erred by selecting the date of separation as the date of valuation of the family home. Despite having signed a quitclaim deed relinquishing his interest in the home to Kyung in 2001, in his pretrial readiness brief he included disposition of the home as an issue for trial. In her trial brief, Kyung did not assert there had been an effective transmutation of the home from community property to her separate property. Rather, she listed "valuation date for residence for purposes of division of community equity" as an issue for trial. (Capitalization omitted.) Kyung argued that because Young "has already enjoyed a pre-distribution of more than his share of the equity in the residence after the parties' separation," it "would be wholly inequitable to permit [him] to share in any remaining equity in the residence."^[5]

In dividing community property, the court shall ordinarily "value the assets and liabilities as near as practicable to the time of trial." (§ 2552, subd. (a).) However, "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." (Id., subd. (b).) Generally, the "purpose of the exception is to remedy inequities which may result when one spouse dissipates the community estate after separation, or when the effort and action of one spouse alone and after separation greatly increases the value of the estate. [Citation.] The alternative valuation date should not be employed unless it is the only way to accomplish an equitable division of community assets." (In re Marriage of Reuling (1994) 23 Cal.App.4th 1428, 1435 [discussing Fam. Code § 2552's precursor, former Civ. Code § 4800].)

"Family Code section 2552, subdivision (b) gives the trial court considerable discretion to divide community property . . . to assure an equitable settlement is reached." (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 625.) "Where . . . the trial court is vested with discretionary powers, we review its ruling for an abuse of discretion. [Citation.] As long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it. [Citation.] Further, because the reasons for change in value of an asset are ordinarily factual, our role is limited to determining whether there is sufficient evidence to conclude the trial court's decision was within the permissible range of options set by the legal criteria." (Ibid.; In re Marriage of Iredale & Cates (2004) 121 Cal.App.4th 321, 329.)

An escrow closing statement shows the parties purchased their El Cajon home in December 1990. Although somewhat unclear, it appears they paid total consideration of $380,527.^[6] They made a down payment of approximately $159,050 and took out a mortgage of $222,000.

The evidence showed Young's business losses in Korea exceeded $300,000. Kyung testified she loaned Young more than $300,000 to cover those debts, and to do so she was required to re-mortgage the home and take equity out. Kyung also submitted an exhibit (Exhibit 9) showing she took out various loans between 1993 and 2001 totaling $235,500 to cover Young's business debts, and she repaid the loans.^[7] Further, there was no way to actually trace the funds Kyung provided Young or determine specifically how they were used. Kyung also paid for his bail and attorney fees in the criminal matter.

In determining that equity requires a date of valuation for the home of April 1993, the court explained: "[Young] did have equity in the residence in April, 1993 and the residence likely had appreciated between the date of purchase and when the parties separated, as well as equity from the original down payment. It is unclear to the Court as to what the amount of equity may have been as of April, 1993, but the Court believes, and so finds, that the testimony of [Kyung] regarding the obligations of [Young] paid by her after 1993 cancels out and offsets any equity that [Young] otherwise may have had. The Court finds that it is reasonable to conclude that [Young] did, in fact, receive all his equity in the residence, existing as of 1993, prior to the time that he executed the quitclaim deed [2001]."

Young asserts good cause does not exist to select an alternative valuation date for the home because its increase in value was attributable to inflation and not Kyung's personal efforts. Young relies on In re Marriage of Priddis (1982) 132 Cal.App.3d 349 (Priddis), in which the court explained that "when an asset increases in value from nonpersonal factors such as inflation or market fluctuations, generally it is fair that both parties share in that increased value." (Id. at p. 355, citing In re Marriage of Walters (1979) 91 Cal.App.3d 535, 539.) In Priddis, the court also "perceive[d] nothing in the fact of a lengthy separation, standing alone, that necessitates an alternative valuation date to accomplish the equal and equitable division of community property. . . . On the contrary, under such circumstances, when the value of community assets has been affected by inflation or other market factors, the fairest equal division of those assets lets the parties share equally in either gains or losses." (Priddis, supra, at pp. 357-358.)

In Priddis, the parties were separated for more than 11 years before a dissolution action was filed. The husband had remained in the home, and the court rejected his argument that valuation of the residence as of the time of trial would be unfair since he paid for the mortgage, taxes and maintenance. (Priddis, supra, 132 Cal.App.4th at pp. 356-357.) The court concluded the trial court erred by valuing the home as of the date of separation based on the substantial time between separation and trial. (Id. at p. 357.)

Young also cites In re Marriage of Sherman (2005) 133 Cal.App.4th 795, in which the court held the family residence should be valued as of the time of separation, since there was no evidence the increase in value between then and the time of trial was attributable to the husband's efforts. (Id. at p. 801.) The court found the husband's satisfaction of the mortgage after separation did not alter the analysis since he received the exclusive benefit of living in the home. (Ibid.)

Priddis and Sherman, however, do not concern the situation here, where the spouse leaving the family home after separation effectively received a substantial distribution of equity years prior to trial. Moreover, in Priddis and Sherman, the spouses who paid the mortgage after separation also had the exclusive use of the home between that date and the date of trial. Here, Young stayed at the home several times per year without paying Kyung any consideration. " 'It is axiomatic that cases are not authority for propositions not considered.' [Citation.]" (In re Marriage of Cornejo (1996) 13 Cal.4th 381, 388.)

Young submits that his business losses and the home equity issue are unrelated, and thus there is no reason for an alternative valuation date. That is incorrect, however, as Kyung was required to take out a home equity line of credit, and later refinance her home, to cover Young's business debts. Kyung repaid those loans from her earnings because Young never paid her anything back. In 2001, when Young asked Kyung for more money for his bail and criminal attorney, she obtained a quitclaim deed from him because she believed she had already paid him for one-half of his equity in the home. He apparently agreed because he signed the deed without complaint.

Under the unusual circumstances here, we find no abuse of discretion in valuing the home as of the date of separation. It would certainly be inequitable to value the home as of the trial date, as Young had already received substantial equity from it. Again, an alternative valuation date is proper when it is the only way to accomplish an equitable division of community assets. (In re Marriage of Reuling, supra, 23 Cal.App.4th at p. 1435.)

Young complains that there was no actual evidence of the home's equity in April 1993. The evidence does show, however, that the parties purchased the home in December 1990 for approximately $380,527, with a down payment of approximately $159,050, and after the date of separation Kyung loaned Young approximately $300,000, none of which he repaid. The court implicitly found that Young's one-half share of the equity accruing between December 1990 and April 1993 could not have exceeded $300,000, and that assessment was reasonable.

DISPOSITION

The judgment is affirmed. Kyung is entitled to costs on appeal.

McCONNELL, P. J.

WE CONCUR:

BENKE, J.

O'ROURKE, J.

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^[1] Young was originally represented by counsel, but in January 2004 his counsel substituted out of the case and Young began representing himself. Young again had counsel during the second phase of a bifurcated trial, and he has counsel on appeal.

^[2] Young points out that on June 22, 2004, he filed a declaration that he had complied with the court's discovery order, but Kyung then neither provided the documents he requested nor returned his passport. Young does not mention, however, that at the beginning of trial on June 28 the court found Young provided no proof of service on Kyung. Further, Kyung's counsel stated he did not receive the June 22 declaration, and the appellant's appendix does not contain a proof of service.

^[3] Statutory references are to the Family Code except where otherwise specified.

^[4] Young testified he was in the business of selling dental equipment to the Korean market.

^[5] As the parties did not originally address the effect of the quitclaim deed on valuation of the family home, we requested supplemental briefing on the issue. Young asserts Kyung waived any argument the home was not community property subject to division in the dissolution proceeding because she did not raise it at the trial court. Kyung asserts we need not consider the valuation issue, because the trial court implicitly found she satisfied her burden of proving she did not obtain the quitclaim deed in violation of her fiduciary duties to Young. (See Fam. Code § 721, subd. (b).) Because we hold the trial court's valuation assessment was proper, we are not required to reach these arguments.

^[6] The escrow closing statement listed consideration of $371,900, upgrades of $4,141 and another amount of $4,486 that was presumably also for upgrades, for a total consideration of $380,527. Kyung testified that she and Young purchased the home for $387,000. The closing statement lists total debits of $387,300, but that amount included various closing costs, prorated taxes and interest, homeowner association dues and capital contributions and a fire insurance premium.

^[7] In the second portion of the bifurcated trial, more evidence was adduced regarding Kyung's loans to Young after the date of separation. She testified that in 1995 she borrowed $99,000 against a credit line to assist him, and she paid monthly interest of $1,300 on the loan between 1995 and 2001. In 2001 she refinanced the home and paid off the credit line. Exhibit 9 did not include the amount she paid in interest on the credit line. The home was sold in November 2004 for $810,000, and Kyung netted $380,000.