Filed 12/12/19 Marriage of Henkel CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re the Marriage of LESTER H. HENKEL and JENNY HARMAN HENKEL. H044147

(Monterey County

Super. Ct. No. DR53024)

LESTER H. HENKEL,

Respondent,

v.

JENNY HARMAN HENKEL,

Appellant.

Appellant Jenny Harman Henkel appeals from the trial court’s August 2016 judgment in this dissolution action. She challenges the court’s decision regarding three offsets or credits against a stipulated $300,000 equalization payment due to her from respondent Lester H. Henkel. Jenny contests the court’s decision that she was responsible for (1) half of the unpaid amount of $54,695.05 due on a line of credit taken against the joint tenancy residence, (2) $41,135.02 in unrepaid loans that Jenny had taken from Lester’s separate property business, and (3) half of $240,000 in cash that Lester had placed in her safekeeping and never seen again. Jenny also contends that the trial court abused its discretion in ordering her to pay $65,000 in sanctions under Family Code section 271. We reject her contentions and affirm the judgment.

I. Background

Jenny and Lester met in 1980. They lived together as a couple for more than 20 years without marrying. They did not share any bank accounts and kept their assets separate. By the mid-1990’s, Lester was experiencing serious health problems. In 1999, Lester bought a three-bedroom house in Pebble Beach as his separate property. In 2000, Lester transferred title to the Pebble Beach house into joint tenancy with Jenny. At some point, Lester took a second mortgage on the Pebble Beach home and used the money to pay off a loan on his separate property real estate. In 2003, Lester was diagnosed with Amyotrophic Lateral Sclerosis (ALS). By that time, he was no longer able to use one of his legs, and he was not able to drive.

After being together for 24 years, Lester and Jenny married in 2004. In December 2004, Jenny pressured Lester into creating a trust and executing a “Spousal Property Agreement” by which he unknowingly transmuted his separate property into community property and placed it in the trust. In 2006, Jenny, without Lester’s consent, hired 24-hour care for Lester (at a cost of $12,000 a month), which Lester did not believe was necessary. Lester and Jenny never shared a bedroom again. At about the same time, Jenny prevented Lester from continuing to go to the office from which he ran his separate property business.

In 2008, without Lester’s knowledge or consent, Jenny declared herself to be the sole trustee of the trust and seized control of all of Lester’s finances and his business by having a friend of hers who was a gastroenterologist declare Lester to be incapacitated. Also without Lester’s knowledge, Jenny obtained $57,000 from a line of credit against the Pebble Beach house.

At some point between 2008 and 2011, Lester withdrew $244,000 in cash from a bank account and gave it to Jenny to put in a safety deposit box. Lester testified that these funds were his separate property. He never saw those funds again. Jenny was the only person with access to the safety deposit box, and the funds were not deposited into any bank account. Jenny told Lester that she spent those funds “[j]ust on expenses.”

Jenny asked multiple doctors to declare Lester to be incompetent, but those doctors concluded that he was mentally competent. She also unsuccessfully tried to have Lester placed in a residential care facility against his will. Lester had become increasingly dependent on Jenny because his ALS was progressing, and he eventually could not even speak. It was only in late 2010 that he acquired the ability to use “text-to-speech software on his computer for communications.”

In 2011, Lester learned that Jenny had wrested control of his assets and business from him. In 2012, Lester engaged an attorney to assist him in reclaiming control over his financial affairs and business. Jenny tried to restrict Lester’s attorney’s access to him and refused to allow a psychiatrist to visit Lester in their home to evaluate his competency. She and her attorney also refused to meet with Lester and his attorney. Lester’s attorney was forced to file a conservatorship petition just to be able to ensure that Lester could meet with his attorneys and the psychiatrist. Jenny responded by filing a competing petition seeking to be named the conservator of Lester’s person and finances. Lester’s attorney’s petition was granted, and a professional conservator was appointed conservator of Lester’s person. Jenny’s petition was denied.

Even after the conservatorship was established, it was “very difficult” to obtain information about Lester’s finances or pay his bills due to Jenny’s interference. Lester incurred $97,000 in fees and costs in the conservatorship proceeding. The conservatorship remained in force until Jenny finally left the Pebble Beach home in May 2013. The conservatorship would not have been necessary if Jenny and her attorney had cooperated with Lester and his attorney.

In June 2012, Lester filed for dissolution of his marriage to Jenny. The issue of the validity of the “Spousal Property Agreement” was bifurcated and tried first. In 2014, the court set aside that agreement and ordered Lester’s property restored to its separate property status. When Lester recovered control of his business in October 2014, he discovered that Jenny had taken $41,135.02 in unrepaid loans from his business for her personal use while she had controlled it. He also learned that $54,695.05 remained unpaid on the line of credit that Jenny had used to obtain funds against the Pebble Beach home.

In 2016, the trial court issued an extensive statement of decision. The parties stipulated that Lester owed Jenny $300,000 as her share of money taken out of a 2006 refinancing of the Pebble Beach home and used to pay off a loan on Lester’s separate property, and the court ordered Lester to make an equalization payment to Jenny of that amount less credits and offsets. The court found that the Pebble Beach home, which was the only community asset, had no equity and decided that Jenny was responsible for half of the line of credit against it, $27,347.53. This was one offset/credit. The court ordered a second offset/credit for the $41,135.02 that Jenny had taken for her personal use from Lester’s separate property business. A third offset/credit was for half of the $240,000 that Jenny had taken and not returned. Although Lester made many other claims against Jenny, the court rejected the remainder of his claims.

In addition to these three offsets/credits, the court concluded that Jenny should pay Lester $65,000 in sanctions under section 271 to partially recompense Lester for the fees and costs he had incurred in the conservatorship proceedings. The court found that Jenny had unreasonably caused him to incur these unnecessary expenses. It concluded that this award would not pose a financial burden to Jenny because it could be paid out of her equalization payment. Overall, Jenny’s equalization payment of $300,000 was reduced by $27,347.53, $41,135.02, $120,000, and $65,000. As a result, her equalization payment was reduced to $46,517.45.

The court ordered Lester to pay Jenny $4,000 a month in spousal support and to pay $6,000 toward her attorney’s fees. Judgment was entered on August 1, 2016. Jenny timely filed a notice of appeal from the judgment. (Cal. Rules of Court, rule 8.108(b).)

II. Analysis

Jenny challenges the sufficiency of the evidence to support the trial court’s findings that there should be credits or offsets against Jenny’s $300,000 equalization payment. She also contends that the court should not have imposed $65,000 in sanctions under section 271.

“In general in reviewing a judgment based upon a statement of decision following a bench trial, ‘any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision. [Citations.]’ [Citation.] In a substantial evidence challenge to a judgment, the appellate court will ‘consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]’ [Citation.] We may not reweigh the evidence and are bound by the trial court’s credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment.” (Estate of Young (2008) 160 Cal.App.4th 62, 75-76.) “We ‘start with the presumption that the record contains evidence sufficient to support the judgment; it is the appellant’s burden to demonstrate otherwise.’ [Citation.] As such, the appellant is required to provide a summary of all of the evidence, not merely his or her own evidence, with citations to the record. [Citations.]” (Carrington v. Starbucks Corp. (2018) 30 Cal.App.5th 504, 518.)

Although she purports to challenge the sufficiency of the evidence to support the court’s decision, Jenny’s opening brief contains no citations whatsoever to the reporter’s transcript of the lengthy trial and cites just one of the dozens of exhibits that were introduced at that trial. The same is true of her reply brief. The only citations in her briefs are to that one exhibit, her own posttrial brief, the trial court’s proposed statement of decision (but not its final statement of decision), and the judgment.

“It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations. [Citations.] Briefs which do not meet this requirement may be stricken.” (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) “ ‘The appellate court is not required to search the record on its own seeking error.’ [Citation.] Thus, ‘[i]f a party fails to support an argument with the necessary citations to the record, . . . the argument [will be] deemed to have been waived. [Citation.]’ ” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246; accord Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

Jenny’s appellate briefs do not satisfy her duty to provide appropriate citations to the record in support of her appellate arguments. We could properly deem Jenny’s appellate arguments to be waived due to the inadequacy of her briefing, but we will exercise our discretion to consider the merits of her contentions. That does not mean that Jenny will be relieved of her duty to demonstrate error, as we must begin with the presumption that the record contains substantial evidence to support the trial court’s findings. Jenny still must bear the burden of demonstrating that the court’s findings are not supported by substantial evidence.

Jenny challenges the court’s decision that there should be an offset or credit against the equalization payment for half of a line of credit against the Pebble Beach home. Jenny complains that she “did not at anytime have control of these funds,” that the court did not identify an “account number,” and that the money obtained from this line of credit “was used to lower the encumbrance on [Lester’s] separate property building.” The evidence presented at trial reflected that Jenny obtained funds from this line of credit during a period of time when she controlled all of Lester’s financial affairs. The trial court as the factfinder was entitled to discredit Jenny’s claim that these funds were spent on Lester’s separate property.

Jenny contends that the court should not have credited Lester for $41,135.02 for loans Jenny took from his business and did not repay because the loans “were not corroborated by anything more than a ledger sheet . . . .” She also asserts that these funds were “used to pay community expenses” and were taken from the business to avoid taxes. The business’s financial records showed that Jenny had taken these funds from Lester’s business without his knowledge during the period when she controlled that business. The trial court, as the factfinder, was entitled to discredit Jenny’s claim that she used these funds for community expenses.

Jenny argues that the court should not have credited Lester with $120,000 based on the money withdrawn and placed in a safety deposit box under her control. She acknowledges that “[t]here were emails from [Lester to Jenny] to verify this alleged withdrawal,” but she argues that the court should have rejected Lester’s claim because “[t]here were no bank records to support this.” She states that she testified that there was no such withdrawal (though she does not cite her testimony), and she argues that Lester’s trial brief did not mention this claim.

The evidence presented at trial supported the trial court’s decision that Jenny had taken these funds. Lester testified that he withdrew $244,000 from his bank account and gave it to Jenny to put in a safety deposit box to which only she had access. He never saw those funds again, and Jenny told him that she spent the money “on expenses.” The trial court could reasonably conclude from this evidence that Jenny had taken these funds for her own purposes and require her to reimburse Lester for half of the funds.

Finally, Jenny challenges the court’s decision to award Lester $65,000 in sanctions. She claims that this award was “unreasonable” because “a financial accounting cleared [Jenny] of any misappropriation of funds,” she acted on the advice of her attorney, and the amount of the sanctions award was an “unreasonable financial sanction” on her. She maintains that the sanctions award was inequitable because Lester had more assets and income than she did and was excessive because Lester had already been reimbursed for the conservatorship costs by his settlement with her attorney.

Section 271 provides: “Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.” (§ 271, subd. (a).)

“A sanction order under Family Code section 271 is reviewed under the abuse of discretion standard. ‘ “The trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order . . . .” [Citation.]’ [Citation.]” (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82; accord In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.)

Jenny misunderstands the basis for the court’s order. It was not based on financial improprieties of any kind. The sanctions order was based on Jenny’s conduct in interfering with Lester’s attorney’s physical access to him and her refusal to meet with Lester and his attorney to discuss the issues between them. Her conduct frustrated any hope of settling the matter without litigation and increased Lester’s legal costs. The entire conservatorship action would have been unnecessary if only Jenny would have freely allowed access to Lester. The trial court was not obligated to credit Jenny’s claim that everything she did was on the advice of her attorney.

The fact that Lester had settled his elder abuse action against Jenny’s former attorney did not establish that he had been fully compensated for the costs of the conservatorship proceeding. Jenny’s former attorney’s potential liability for elder abuse may have encompassed a variety of things that caused Lester harm, including the creation of the Spousal Property Agreement and the trust. The $75,000 settlement between Jenny’s former attorney and Lester may not have compensated Lester for any of the costs he incurred for the conservatorship proceedings.

Finally, while Lester had more assets and income than Jenny, he was not required to demonstrate a financial need for an award. (§ 271, subd. (a).) And the court could have reasonably concluded that the award would not impose an “unreasonable financial burden” on Jenny since it could be paid out of what remained of her equalization payment.

In sum, we reject Jenny’s challenges to the sufficiency of the evidence to support the court’s decision to allow the credits and offsets against her equalization payment, and we find no abuse of discretion in the court’s award of sanctions under section 271.

III. Disposition

The judgment is affirmed.

 

_______________________________

Mihara, J.

WE CONCUR:

_____________________________

Elia, Acting P. J.

_____________________________

Grover, J.

Marriage of Henkel

H044147