Filed 11/27/19 In re Marriage of Cristofaro CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

In re Marriage of DAVID D. and ALEXIS L. CRISTOFARO.

DAVID D. CRISTOFARO,

Respondent and Cross-Appellant,

v.

ALEXIS L. CRISTOFARO,

Appellant and Cross-Respondent.

G055243

(Super. Ct. No. 15D008744)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Barry S. Michaelson, Temporary Judge. (Pursuant to Cal. Const. art. VI, § 22.) Affirmed in part, reversed in part, and remanded with directions.

Alexis L. Cristofaro, in pro. per., for Appellant and Cross-Respondent.

David D. Cristofaro, in pro. per., for Respondent and Cross-Appellant.

In this marital dissolution case, Alexis L. Cristofaro appeals, and David D. Cristofaro cross-appeals, from a judgment which divided the community property assets and liabilities. The judgment ordered David to make an equalizing payment to Alexis of approximately $32,000. Alexis contends the equalizing payment should have been higher because the trial court improperly valued the marital residence and erroneously made her bear more than half of the community liabilities. She also asks that we direct the trial court to hold hearings concerning attorney fees and contempt against David.

David’s protective cross-appeal requests we do one of two things if we find merit in any of Alexis’s arguments: (1) remand the matter so the trial court may add additional detail to the judgment to remedy any perceived internal inconsistency, or (2) determine de novo whether the trial court properly characterized certain credit card charges as community liabilities.

We conclude Alexis’s attorney fees and contempt contentions are outside the scope of this appeal, and her marital residence valuation contention is meritless. We, however, agree the trial court erred in dividing community liabilities, and we determine it also erred in dividing community assets. As a result, the equalizing payment to Alexis should have been $77,000 higher. Accordingly, and because we reject the arguments in David’s cross-appeal, we reverse the judgment in part, and affirm it in part.

FACTS

Alexis and David separated after more than 23 years of marriage. During their dissolution proceedings, a primary point of contention was division of community property assets and liabilities. The assets at issue included a house, a ski boat and some furniture. The liabilities consisted of credit card debt. Prior to trial, the parties submitted evidence and briefs concerning their respective positions on the assets and liabilities.

After taking into account the parties’ documentary evidence and oral testimony, the trial court issued a detailed judgment. Based on papers submitted by David, the court valued the boat at $20,000, the furniture at $2,000, and the house at $805,000. Relying on the latter and undisputed outstanding mortgage balances, the court calculated the equity in the house to be $202,095. As for community liabilities, the court calculated a total of $128,000, with $49,000 being from a credit card in David’s name and $79,000 being from a credit card in Alexis’s name.

The court determined both the community assets and the community liabilities should be split equally, and by subtracting the liabilities from the assets, then dividing the resulting amount in two, it calculated the net asset value due to each party was $47,047.50. Because it was undisputed David previously paid some community liabilities with his separate property, the court credited to him half of the total amount paid, leaving $30,949.50 in net assets for Alexis. It ordered David to make an equalizing payment to Alexis in this amount because the parties agreed David would keep the house.

The court also ordered both parties to pay the outstanding amount due on the credit card in their own name.

Approximately one month later, and at Alexis’s request, the trial court modified the judgment to correct a clerical error in the original version. The result was a $1,000 increase in the amount of the equalization payment owed by David to Alexis.

DISCUSSION

A. Appeal

Alexis contends the trial court erred in valuing the house and in dividing the community liabilities. She also requests we order the trial court to hold a hearing concerning attorney fees and contempt against David for nonpayment of spousal support. Her arguments concerning the latter matters and valuation of the house are without merit, but we agree the court erred in dividing the community liabilities. And we further determine it erred in dividing the community assets.

“[T]he trial court, in its judgment of dissolution or at a later time if it expressly reserves jurisdiction to do so, must value and divide the community estate of the parties equally. [Citation.] This task constitutes a nondelegable judicial function [citation] which must be based upon substantial evidence [citation]. . . . [T]he family law court possesses broad discretion to determine the manner in which community property is awarded in order to accomplish an equal allocation. [Citation.] If the circumstances warrant, the court may award one or more items of the property to one party and require that party to make an equalizing payment to the other. [Citation.]” (In re Marriage of Andresen (1994) 28 Cal.App.4th 873, 880, fn. omitted.)

We review the trial court’s judgment dividing the community property for an abuse of discretion. The question is “‘whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered. [Citations.] . . . [W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court. [Citations.]’ [Citation.]” (In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 309.)

Turning first to the valuation of the house, Alexis argues the trial court abused its discretion by adopting the value offered by David ($805,000). From her perspective, the court should have instead used the value she suggested at trial ($830,000) because it was the value provided closest in time to the court’s determination of the property’s value.

Courts have significant discretion when it comes to valuing property, the exercise of which involves weighing competing evidence. (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572.) Here, the trial court did just that. It reviewed the value evidence provided by David, listened to Alexis’s disagreement with it, and considered her suggested value. Ultimately, the court found the value David provided to be appropriate. That finding was well within the court’s discretion.

Alexis’s timing argument does not alter our conclusion. To begin, the appellate record does not contain the valuation document David provided to the court, so we cannot verify his proffered valuation date. (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 58 [“appellant bears the burden of providing an adequate record affirmatively proving error”].) Even assuming David’s valuation was a few months older than Alexis’s, Family Code section 2552 simply requires a court to “value . . . assets . . . as near as practicable to the time of trial.” (Fam. Code, § 2552, subd. (a).) Given the apparently short amount of time between the dates of the parties’ respective valuations and the relatively small difference in their suggested values, we cannot say the court exceeded the bounds of reason in valuing the house as it did.

In contrast, the trial court’s division of the community assets and community liabilities was erroneous. The end result should have been an allocation of $64,145.50 in net assets to David and $31,949.50 in net assets to Alexis. While not readily apparent, the court ordered equalizing payment in the latter amount did not effectuate that outcome. A detailed closer review reveals multiple errors.

The $128,000 in credit card liabilities were to be shared equally (i.e., $64,000 each), irrespective of whose name was on the credit card. But the judgment made David responsible only for the $49,000 balance on the credit card in his name, while it made Alexis responsible for the $79,000 balance on the credit card in her name.

Similarly, the $224,095 in community assets were to be split equally. They consisted of a house, the equity in which was valued at $202,095, a $20,000 boat, and $2,000 worth of furniture. The court properly calculated that dividing the value of the assets in half would yield $112,047.50, and it used that amount in computing the equalization payment owed to Alexis. But the parties did not sell the assets and split the resulting cash. Instead, they agreed David would keep the house and boat, and Alexis would keep the furniture. So, in the end, the judgment awarded David assets with a net value of $222,095, while it awarded Alexis assets valued at just $2,000.

The judgment combined these unequal shares of assets and liabilities, resulting in an ultimate award to David valued at $173,095 ($222,095 – $49,000). In contrast, it awarded Alexis net assets with a value of negative $77,000 ($2,000 – $79,000). This was a far cry from the equal division intended.

To achieve an equal division, the judgment should have required an equalizing payment from David to Alexis in the amount of $108, 949.50 ($77,000 + $31, 949.50). Thus, the trial court erred by only ordering a payment of $31,949.50.

Lastly, Alexis implores us to order the trial court to hold two hearings, one concerning attorney fees and the other concerning contempt against David. But these are matters which the court never had the opportunity to consider or act upon in any manner. They fall outside the scope of the judgment from which Alexis appealed.

B. Cross-appeal

David’s protective cross-appeal asks us to do one of two things should we find the judgment requires modification—i.e., if we find merit in Alexis’s appeal. First, David urges us to remand the matter to the trial court so it may “add narrative and content to the [j]udgment” reflecting its true intent. He claims doing so will show the judgment is internally consistent. But this request comes too late. David had at least two prior opportunities to have the judgment amended if he felt it did not fully reflect the court’s reasoning—once after the judgment was entered, by filing his own motion to modify or amend, and once when the trial court was considering Alexis’s motion to correct the calculations in the judgment. At no time did he request revisions or further clarification. Instead, he continually stated he agreed with the reasoning and calculations in the judgment.

In addition, the record is clear as to the trial court’s intent. After listening to argument from both sides concerning whether some or all of the charges on the credit card in Alexis’s name should be deemed her separate liability, the court concluded the entirety “was community debt because it was for a community purpose at the time it was incurred[.]” Further, throughout the remainder of the hearing, and during the hearing on Alexis’s request to correct the judgment, the court repeatedly stated it was to be split equally between them. Additional clarification was and is unnecessary.

David’s second request fares no better. He implores us to review de novo the trial court’s determination the total amount of the credit card debt was a community liability. From his perspective, most of the charges on the credit card in Alexis’s name were not for a community purpose.

“Under California’s community property law, the characterization of ‘property as separate, community, or quasi-community’ ‘is an integral part of the division of property on marital dissolution.’ [Citation.] Courts recognize several factors relevant to this task [citation], but ‘the most basic characterization factor is the time when property is acquired in relation to the parties’ marital status’ [citation]. The ‘factual findings that underpin the characterization determination are reviewed for substantial evidence’ [citation], but ‘[i]nasmuch as the basic “inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values,” the determination in question amounts to the resolution of a mixed question of law and fact that is predominantly one of law. [Citation.] As such, it is examined de novo’ [citation].” (In re Marriage of Finby (2013) 222 Cal.App.4th 977, 984.)

David does not challenge any factual findings made by the court, instead confining his arguments to the court’s ultimate characterization. On that point, the evidence demonstrated (1) the credit card charges in question related to medical care for Alexis, counseling for the couple and their daughter, Alexis’s career development, and furniture purchased by Alexis when she moved to Florida; (2) David agreed to Alexis’s move to Florida for career purposes; and (3) at the time of her move, the couple agreed they were going to continue in their marriage. Collectively, this evidence demonstrates the charges were for the benefit of the community. And given they undisputedly were incurred before the date of separation, the whole is properly characterized as a community liability. (See In re Marriage of Finby, supra, 222 Cal.App.4th at p. 984; In re Marriage of Rosin (2009) 172 Cal.App.4th 725, 732.)

C. Remedy

Although Alexis urges us to amend the judgment ourselves, we believe it is more appropriate to remand the matter to the trial court with directions. Based on limited statements in the parties’ briefing, it appears there may now be issues other than those discussed above, relating to postjudgment events involving the issuer of Alexis’s credit card and her alleged inability to pay the $79,000 balance on it as required by the judgment. The trial court is best suited to determine whether, and how, those postjudgment issues should be addressed in the first instance.

 

DISPOSITION

The judgment is affirmed in part, and reversed in part. The matter is remanded to the trial court with directions to amend the judgment consistent with this opinion, and to conduct such further proceedings as may be necessary to resolve any postjudgment issues raised by the parties. Appellant is entitled to her costs on appeal.

THOMPSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

MOORE, J.