Filed 10/11/19 Marriage of Keel 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 the Marriage of MARIE and GREG G. KEEL.

GREG G. KEEL,

Respondent,

v.

MARIE KEEL,

Appellant.

G055720

(Super. Ct. No. 14D007669)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Affirmed. Request for sanctions. Denied.

Merritt McKeon for Appellant.

The Law Offices of Patrick A. McCall and Patrick A. McCall for Respondent.

* * *

INTRODUCTION

Greg G. Keel and Marie Keel were married in October 2004. Ten years later, Greg filed a petition for dissolution of marriage. The primary issue presented for trial was whether a house, the only marital real property asset, was separate or community property. The trial court found that the house was community property because it was purchased before the date of separation and Greg and Marie had intended to purchase the house as community property. The court did not accept Marie’s argument that the house was separate property.

Marie appealed from the judgment of dissolution, which incorporated the trial court’s ruling and findings from trial. In her appellant’s opening brief, Marie asserts the trial court erred by (1) failing to provide her the opportunity to correct the trial court’s errors, (2) refusing to reopen discovery, (3) denying as untimely her request for a statement of decision, (4) violating her constitutional rights to her separate property, and (5) overruling her objections to the admission of several e mail messages. In her appellant’s reply brief, Marie argues the trial court erred by denying her “the opportunity to support her clear testimony that the funds used to purchase the home . . . were inherited funds.”

We affirm. The arguments made in the appellant’s opening brief have no merit, and the argument raised in the appellant’s reply brief was forfeited. Greg has requested monetary sanctions. We deny that request.

FACTS/RELEVANT TRIAL TESTIMONY

Escrow on the house (sometimes called the house and sometimes called the Fareholm residence) closed in September 2010. At the time of trial, the house had an appraised value of $1,325,000. The evidence at trial was directed primarily to three issues: (1) whether the house was purchased before or after the date of separation, (2) whether the down payment for the house came from separate or community property, and (3) whether Marie and Greg intended the house to be separate or community property.

A large amount of testimony and evidence at trial was devoted to the date of separation. Marie claimed that she and Greg separated in April 2010 (before escrow closed) but had no documents to support that claim. Greg claimed he and Marie separated sometime in May 2011 (after escrow closed). The trial court found they had separated after the house was purchased. Since Marie does not challenge that finding on appeal, we will not go over evidence on the date of separation.

It was stipulated that $30,000 of the down payment for the house was a gift from Marie’s mother. The explanations of Marie and of Greg on the source of the rest of the down payment and Greg’s involvement in the purchase were in direct contradiction.

Marie (originally from Japan) has a degree in mathematics from Imperial College, London, United Kingdom, and has been a CPA since 2000. Marie testified that Greg was not involved in purchasing the house except to do the final walkthrough in August 2010. She testified that over $232,000 used for the down payment came from an inheritance from her father, she deposited the inheritance money into her bank account in Japan, that account was in her name only, and joint bank accounts do not exist in Japan. The money was transferred to Marie’s separate property bank account in the United States, and then deposited into escrow. Marie testified she used inheritance money and money from her mother to make the mortgage payments.

In the original information sheet provided to escrow, Marie identified herself as a married person. She later instructed escrow to change married person to single person for title vesting. She took title to the house as a single woman. The inspection report had the name of both Marie and Greg on it. Marie testified that was a mistake.

Greg testified he was the one who found the house and visited it three times before the close of escrow. Before deciding to purchase the house, he had looked at no fewer than 25 houses. In March 2010 Marie sent Greg an e mail stating, “I want you to see the house; otherwise, I was going to make an offer without seeing it.” In June 2010, Greg sent Marie an e mail stating, “What houses do you want me to go see? Please let me know, so I can look them up.” In June and July 2010, Marie sent Greg e mails asking him to look at several houses, including the one they eventually purchased. Greg sent Marie e mails about various houses for sale.

Greg testified he did not sign escrow documents but did sign loan documents and title papers. He believed he and Marie had purchased the house as a married couple and he was on title. He never discussed with her the possibility he would not be on title. He learned he was not on title only during the dissolution proceedings.

Greg testified that while he and Marie were married, they maintained joint bank accounts in Japan and Thailand, while Marie had a separate account at Chase Bank in the United States. The joint account in Japan was used to pay their living expenses when they lived in Japan. Greg testified that money acquired over their years of marriage (including profits from Marie’s gem business) was deposited into Marie’s Chase Bank account and used for the down payment on the house. He had no documentation regarding any bank account in Japan. He testified that other than the $30,000 from Marie’s mother, the down payment on the house came from income acquired during the marriage that had been deposited into the Chase account.

Marie testified that from April through May 2011 she and Greg communicated only by telephone and e mail. She testified she filed a divorce action in Japan and advised Greg of it by e mail in April or May of 2010. Marie did not bring any of the Japanese divorce papers with her to trial.

THE TRIAL COURT’S RULINGS

The court issued a ruling and made findings in the minutes for June 20, 2017. The trial court found the house was community property subject to a $30,000 credit under Family Code section 2640 to Marie and found, by a preponderance of the evidence, the intent to end the marriage was not expressed until after the house was purchased. On the issue of the date of separation, the court stated it had “no confidence” in Marie’s testimony.

Because the house was purchased before the date of separation, it was subject to the community property presumption. The court found that Marie had failed to rebut that presumption, stating: “In the Court’s view, [Marie] intentionally embarked on a course of conduct to make [Greg] believe that the house was being purchased as part of the marital property. [¶] The Court believes [Marie] kept [Greg] in the dark as to her plan to purchase the property alone. [¶] The Court finds [Marie]’s conduct is sufficient to invoke Family Code Section 1101. [Marie]’s conduct is not so egregious to consider awarding [Greg] the entire community interest in the property.” The court found the house to have a value of $1,325,000.

Marie filed a request for a statement of decision on June 29, 2017. The trial court denied the request as untimely. In the minute order denying Marie’s request for a statement of decision, the trial court found it was “more likely than not” the date of separation was “sometime in May 2011.”

A judgment on reserved issues was filed on September 13, 2017. The judgment includes a more detailed version of the findings recited in the June 20 minutes. The judgment includes this finding: “The Court finds that it was the intention of the parties to jointly purchase the Fareholm residence, i.e., as community property, but [Marie] intentionally manipulated the transaction so as to only place her name on title on the Fareholm residence. The Court notes that [Marie] is a CPA. The documentation regarding the loan and other documents involving the residence concludes that [Marie] intentionally embarked on a course of conduct to make [Greg] believe that the Fareholm residence was being purchased as part of the marital property. [Marie] kept [Greg] in the dark about the transaction. Said actions on the part of [Marie] are found to be a breach of fiduciary duty which is in violation of Family Code Section 1101.” (Underscoring omitted.)

Marie moved for a new trial on the grounds of irregularity in the proceedings, abuse of discretion, and error of law. (See Code Civ. Proc., § 657, subds. (1) & (7).) The trial court denied the motion.

DISCUSSION

I. The Trial Court Did Not Deny Marie the Opportunity to Correct Error.

Marie contends the trial court failed her to give her an opportunity to correct errors made at trial. This contention is based on the following statement made by the trial court at the end of trial: “[Y]ou have remedies within the trial court to try to point my attention to things you thought I got wrong before you go up and get me reversed. I’m always pleased to give opportunity ahead of time.” Marie claims the trial court failed to follow through on this offer.

The trial court’s comments were made in response to a statement by Marie’s counsel about bringing a motion for reconsideration under Code of Civil Procedure section 1008. The court advised counsel a motion for reconsideration was appropriate for a motion, but “[n]ot for a trial.” Given this context, the court’s reference to “remedies within the trial court” meant a motion for a new trial and whatever other postjudgment remedies might be available. The trial court did not deny Marie the opportunity to bring a motion for a new trial or any other postjudgment relief.

II. Marie Was Not Denied Her Right to Discovery Under Family Code Section 218.

Marie argues the trial court erred by denying her right to discovery under Family Code section 218. It reads, in relevant part: “With respect to the ability to conduct formal discovery in family law proceedings, when a request for order or other motion is filed and served after entry of judgment, discovery shall automatically reopen as to the issues raised in the postjudgment pleadings currently before the court.” (Fam. Code, § 218.)

After Marie filed her motion for a new trial, she had subpoenas duces tecum issued to Yahoo, Inc., Google, Inc., and Mizuho Bank of Japan. She argues the purpose of the subpoenas was to obtain evidence bearing on Greg’s credibility and the source of the down payment on the house. Greg filed a motion to quash the subpoenas. A hearing on the motion was scheduled for January 5, 2018.

When Marie’s motion for a new trial was heard on October 27, 2017, Marie’s counsel made an ex parte request to advance the hearing date on the motion to quash the subpoenas. Her counsel asked the court to grant the motion for a new trial and deny the motion to quash. After hearing argument, the trial court took the matters under submission.

By signed order entered on October 30, 2017, the trial court denied the motion for a new trial and deemed moot the motion to quash. The trial court reasoned that when a motion for a new trial is made on the grounds of irregularity in the proceedings, abuse of discretion, or error of law, Code of Civil Procedure section 658 requires the motion be made upon affidavits or the court minutes. The only affidavit presented by Marie in support of her new trial motion was a declaration of her counsel (Merritt McKeon). But as McKeon was not trial counsel, the statements in her declaration about the conduct of trial and authenticating portions of the trial transcript were hearsay. The trial court also considered the statutory grounds for a new trial not identified in Marie’s motion and concluded none of those had merit. The order states, “The court’s ruling moots petitioner’s motion to quash the various subpoenas.”

Marie argues the trial court’s ruling denied her the right to reopen discovery under Family Code section 218 and her ability to prove the source of the down payment on the house. We disagree. Discovery was reopened when Marie filed her motion for a new trial. When discovery reopened, she had subpoenas duces tecum served. But reopening discovery did not mean Marie was entitled to the discovery sought: Greg could, and did, move to quash the subpoenas. (Code Civ. Proc., §§ 1987.1 [authorizing motion to quash subpoenas], 2017.010 [matters subject to discovery], 2017.020 [court imposed limits on scope of discovery].) When the trial court denied Marie’s motion for a new trial, discovery under Family Code section 218 closed. As the trial court concluded, denying the motion for a new trial rendered moot the motion to quash. At that point, whatever documents might have been obtained by the subpoenas would not have been relevant because they could not be used for the postjudgment motion that had reopened discovery under Family Code section 218. (Code Civ. Proc., § 2017.010 [party may obtain discovery of relevant matters].)

Nothing in Family Code section 218 states or suggests a trial court must grant a new trial to allow one party to obtain discovery. To interpret section 218 in that manner would in effect amend Code of Civil Procedure section 657, which identifies the permissible grounds for granting a new trial. Permitting one party to obtain discovery is not one of those grounds.

We note too the trial court’s finding that “[Marie] has not shown that with reasonable diligence that she could not have discovered and produced the alleged new evidence, e.g., erased emails, information from [the] Japanese Bank regarding whether Japan prohibits joint accounts for married persons.” Marie has not identified anything in the record to suggest that finding was in error.

Marie might be arguing the stated grounds on which the trial court denied her motion for a new trial were erroneous. It is difficult to tell from her appellate briefs. She does not challenge the court’s stated reasons for denying her new trial motion under a separate heading, as required by the California Rules of Court, rule 8.204(a)(1)(B) (further citations to rules are to the California Rules of Court). “This is not a mere technical requirement.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) “Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.)

III. Marie’s Request for a Statement of Decision
Was Untimely.

Marie filed a request for a statement of decision on June 29, 2017, which was nine days after the trial court made its posttrial ruling in the court minutes. The court found that trial lasted 4.5 hours and denied Marie’s request for a statement of decision as untimely.

A request for a statement of decision “must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision.” (Code Civ. Proc., § 632; see rule 3.1590(n).) If counsel do not present opening statements, trial is deemed to commence “at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.” (Code Civ. Proc., § 581, subd. (a)(6).)

“[T]he eight-hour rule in section 632 requires a simple and obvious mode of timekeeping that everyone, including attorneys, can keep track of. This means that, for purposes of keeping time of trial under section 632 in civil proceedings other than administrative mandamus . . . , the time of trial means the time that the court is in session, in open court, and also includes ordinary morning and afternoon recesses when the parties remain at the courthouse.” (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 979 980.)

The court minutes for June 15, 2017 reflect that in open court at 2:27 p.m. the court heard an opening statement from Greg’s counsel, after which Marie was sworn and testified. Thus, trial began no earlier than 2:27 p.m. Proceedings ended that day at 4:18 p.m. Trial time on June 15 therefore was one hour and 51 minutes.

The court minutes for June 16, 2017 reflect that trial began at 1:45 p.m. and ended at 3:59 p.m. Trial time on June 16 therefore was two hours and 14 minutes.

The court minutes for June 20, 2017 reflect that trial began at 11:07 a.m. The matter was trailed for a lunch recess from 11:42 a.m. to 1:40 p.m. The lunch recess is not included in calculating the length of trial because it is not an “ordinary morning and afternoon recess[] when the parties remain at the courthouse.” (In re Marriage of Gray, supra, 103 Cal.App.4th at p. 980.) The minutes reflect that at 3:27 p.m. the court invited additional argument from counsel and then placed its decision on the record. The minutes do not reflect the time at which trial ended. A generous estimate is that trial concluded at 4:27 p.m., which allows a full hour for what amounts to 16 pages of the reporter’s transcript. Trial time on June 20 therefore was no more than 3 hours and 22 minutes.

The length of trial was: one hour and 51 minutes (June 15) + two hours and 14 minutes (June 16) + 3 hours and 22 minutes (June 20) = 7 hours and 27 minutes.

Because trial was completed within eight hours over more than one day, Marie was required to file a request for statement of decision before that matter was submitted. (Rule 3.1590(n).) Her request for a statement of decision, filed on June 29, 2017, was therefore untimely.

Marie requested an extension of time under rule 3.1590(m) to file a request for a statement of decision. The trial court denied the request. The court believed that rule 3.1590(m) does not apply to trials falling within rule 3.1590(n) but, even if it did, opted to exercise its “discretion not to excuse a noncompliance.” The trial court did not abuse its discretion by denying Marie’s request for an extension of time.

IV. Marie Was Not Denied Her Constitutional Right to Her Separate Property.

Maries argues the trial court’s ruling denied her right, guaranteed by the California Constitution, that property acquired during a marriage by gift, will, or inheritance is separate property. (Cal. Const., art. I, § 21; see Fam. Code, § 752.) In effect, this is a sufficiency of the evidence argument. She contends her rights were denied because she testified that she had received an inheritance from her father, the inheritance had been deposited into her separate property bank account in Japan, and funds from that separate property bank account had been used to pay all but $30,000 of the down payment on the house.

Greg, however, offered conflicting testimony. He testified that earnings acquired over the years of marriage were deposited into Marie’s Chase Bank account, and community property funds from that account were used to make the down payment on the house. At the hearing on the motion for a new trial, the court commented that neither Greg nor Marie was particularly credible, but that Marie was less credible on the issue of the source of the down payment. In addition, the trial court found that Marie had engaged in a course of conduct intended to cause Greg to believe the house was purchased as community property, and this conduct constituted a breach of fiduciary duty under Family Code section 1101.

Substantial evidence therefore supports the trial court’s finding the house was community property. Because the house was community property, Marie was not denied her constitutional right to her separate property.

V. Marie Forfeited Her Challenge to the Admission in Evidence of E mail Messages.

Marie argues the trial court erred by overruling her objections to the admission in evidence of e mail messages between Greg and her. She does not provide record citations to support her argument and does not identify the challenged e mails, other than to say they were admitted during the first day of trial. The argument is forfeited. (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 589; Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 424.) In addition, the trial court exhibits have not been transmitted to us so we have no means to examine the challenged e mail messages.

VI. Arguments Made for the First Time in the Reply Brief Are Forfeited.

Marie’s appellant’s reply brief has a point heading with the title “Factual and Procedural Background.” (Some capitalization omitted.) There are two subparts (A and B) within this heading. Before subpart A, Marie addresses fact statements and legal arguments made in Greg’s respondent’s brief and cites several cases regarding separate property and tracing that were not cited in her appellant’s opening brief. She then argues the trial court erred by denying her “the opportunity to support her clear testimony that the funds used to purchase the home . . . were inherited funds.”

It is unclear whether this argument differs from any argument made in the appellant’s opening brief. To the extent it does, the argument is forfeited. (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc., supra, 188 Cal.App.4th at pp. 427-428 [arguments raised for the first time in the appellant’s reply brief are forfeited].) The argument also is forfeited for failure to comply with rule 8.204(a)(1)(B). (Pizarro v. Reynoso, supra, 10 Cal.App.5th at p. 179.)

REQUEST FOR SANCTIONS

Greg requests monetary sanctions against Marie under Code of Civil Procedure section 907. He makes the request in his respondent’s brief and did not serve and file a separate motion under the rules governing appellate motion procedure, as required by rules 8.54(a) and 8.276(b). We therefore deny the request for sanctions. (Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 858 [respondent’s request for sanctions made in brief denied because the respondent did not file a separate motion for sanctions].) In addition, it does not appear to us the appeal was “frivolous or taken solely for delay.” (Code Civ. Proc., § 907; see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)

DISPOSITION

The judgment is affirmed. The request for sanctions is denied. Respondent Greg to recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.