Filed 6/29/20 Marriage of Wong and Erion 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 LILY TIFFANY WONG and JAMES PARNELL ERION.

LILY TIFFANY WONG,

Appellant,

v.

JAMES PARNELL ERION,

Respondent.

G057019

(Super. Ct. No. 11D011410)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Daphne Grace Sykes, Judge. Affirmed as modified.

Feig Law Firm and Scott Feig for Appellant.

Law Office of Steven R. Grecco and Dawn E. Wardlaw for Respondent.

* * *

INTRODUCTION

Lily Tiffany Wong appeals from the court’s judgment on reserved issues following the dissolution of her marriage of less than four years to James Parnell Erion. In the judgment on reserved issues, the court determined the parties had a combined estate of more than $3.7 million, about a third of which consisted of Wong’s separate property, and characterized each of the parties’ bank accounts, securities, retirement accounts, real property holdings, business and partnership interests, personal property, and promissory notes.

Wong contends the trial court erred by denying her request to continue trial on the fourth day of what was estimated to be a four-day trial, and abused its discretion by failing to admit documentary evidence for which Wong admittedly failed to lay a proper foundation. Wong argues the trial court improperly characterized three of her retirement accounts as community property. She also argues the trial court was without authority to charge her interest for the portion of community property funds she used, unbeknownst to Erion, to pay the mortgage of her separate property in violation of her fiduciary duty to Erion. Finally, Wong argues the trial court did not have jurisdiction to impose a constructive trust on Wong’s separate property holdings to ensure she paid the equalizing payment the court determined she owed to Erion.

We agree with Wong that the trial court did not have jurisdiction to impose the constructive trust on Wong’s separate property and we modify the judgment on reserved issues to strike the imposition of the constructive trust. We reject Wong’s remaining contentions of error and affirm the judgment as so modified.

BACKGROUND

I.

THE MARITAL DISSOLUTION ACTION BEGINS.

Wong and Erion were married on November 29, 2006 and separated May 11, 2010. In December 2011, Wong filed the petition for dissolution of the marriage.

In November 2013, Wong filed a substitution of attorney (executed months earlier in June and July 2013) by which Joanna Vogel became her attorney of record (Wong’s trial counsel). In August 2014, judgment was entered regarding custody of the parties’ minor child. In June 2015, judgment as to marital status was entered.

II.

THE TRIAL COURT GRANTS WONG’S REQUEST TO CONTINUE THE SEPTEMBER 2016 TRIAL ON RESERVED ISSUES TO ENABLE HER TO CONDUCT DISCOVERY ON ERION’S FINAL DECLARATIONS OF DISCLOSURE.

Almost six years after the parties separated, in May 2016, the trial court set the matter for a four-day trial on reserved issues to begin September 12, 2016. In accordance with the parties’ agreement to exchange final declarations of disclosure, on August 19, 2016, Erion filed his final declarations of disclosure. After Wong failed to file her final declarations of disclosure, Erion filed a motion seeking the exclusion of Wong’s evidence and the waiver of her final declarations of disclosure. The motion was set for hearing on September 7, 2016.

On September 7, 2016, Wong filed a request to continue trial so she could file a motion to reopen discovery based on Erion’s final declarations of disclosure. Wong’s counsel represented that Wong’s final declarations of disclosure would be served imminently.

The trial court continued the hearing on Erion’s motion, continued trial to January 2017, and set a new discovery cut-off date of December 31, 2016. The court ordered the parties to complete final declarations of disclosure.

III.

WONG DOES NOT CONDUCT FURTHER DISCOVERY AND PROVIDES

INCOMPLETE DECLARATIONS OF DISCLOSURE; TRIAL IS

CONTINUED FROM JANUARY 2017 TO JUNE 2017.

Wong did not conduct further discovery. She did not provide her final declarations of disclosure until January 10, 2017, and trial was again continued. On January 11, 2017, Erion served a demand for more particularities on the ground Wong’s final declarations of disclosure were inadequate. Erion did not receive required attachments until the first week of May 2017.

The parties agreed to continue trial to June 27, June 29, July 6, and July 20, 2017. Erion filed a witness list on June 23 and a trial exhibit list on June 26.

IV.

THE TRIAL COURT DENIES WONG’S REQUEST FOR ANOTHER CONTINUANCE

ON THE EVE OF TRIAL.

The day before trial was scheduled to begin, Erion’s counsel was notified that Wong would be requesting another continuance of the trial; Erion’s counsel responded that he would not agree to a further continuance.

Erion and his counsel appeared in court at 1:30 p.m. on June 27 for the beginning of trial. Wong’s trial counsel also appeared at that time, but Wong did not appear. The trial court denied Wong’s request for another continuance of the trial. Wong did not arrive to the courthouse until 3:15 p.m. and trial was unable to commence that day. The parties were sworn in and the matter was trailed to June 29.

V.

FOLLOWING ERION’S FINANCIAL EXPERT’S DIRECT EXAMINATION TESTIMONY, WONG REQUESTS PRODUCTION OF ALL DOCUMENTS RELIED UPON BY THE EXPERT; WONG’S REQUEST IS DENIED.

On June 29, 2017, trial began in earnest. Erion filed an income and expense declaration and a trial brief. Wong testified and several of Erion’s exhibits regarding financial documents were entered into evidence. Wong filed a trial brief.

On July 6, Wong’s direct testimony concluded. Erion’s forensic expert Jack White (White) was called out of order to testify. White’s testimony addressed, inter alia, a 10-page document entitled Erion and Wong Schedule of Separate/Community Property Assets and Liabilities that he had prepared; that document was admitted into evidence. The trial court declared a recess until July 20 and White was ordered to return.

On July 20, Wong filed an ex parte application requesting she be given tax returns, ledgers, and any other documents White relied upon to prepare his cash flow analysis document, a copy of which had been provided to Wong. Erion objected. Erion’s counsel stated: “We’re set to again resume trial in about three hours from now. This is our fourth day, and it’s the last day that the court had specially set us. [¶] The first day we didn’t get the opportunity because of [Wong]. The court’s aware.”

Erion’s counsel continued: “[T]his case has been pending for five and a half years. There was more than ample opportunity for [Wong] to do any discovery she wanted to. [¶] She could have taken my client’s deposition. She chose not to. [¶] She could have done an expert witness designation, which would have required the expert, at least our experts, since he’s the only expert at this point, to exchange his report. [¶] They could have t[aken] his deposition and made him bring to the deposition all the documents that he was relying on. [¶] They could have had his testimony and that would have locked him into his opinion. Okay? [¶] This matter was originally set for trial in September of last year. [¶] The reason it didn’t go is because [Wong] won’t [provide] us with her FDD.’s [¶] I had to file a motion. I was requesting sanctions, et. cetera. [¶] [Wong] came to court said, ‘Well, I need more time.’ [¶] I want to reopen discovery because they had some concerns as to my client’s 2015 personal tax return. [¶] This court took it under submission and what the court did was it vacated that trial date. [¶] In essence, it gave [Wong] everything she wanted. [¶] It reopened discovery once the trial date was vacated because we didn’t have the discovery cut off any longer. . . . [¶] They had another three months to do any and all discovery that they wanted to do. They chose not [to] do any of it. [¶] They could have done a notice in lieu that would have required my client to bring documents to trial. They didn’t do it. [¶] They could have brought exhibits to trial. They didn’t exchange one exhibit with me yet. [¶] They didn’t provide an exhibit list to me. [¶] They didn’t [provide] a witness list to me. [¶] So now, we’re in the middle of trial and they don’t like how the testimony is going for them. [¶] So what are they doing? On even the fourth day they’re . . . basically asking to reopen discovery now. [¶] Unfortunately, the Code of Civil Procedure, there’s discovery cut off statutes that prohibit them from doing it at this juncture in the proceeding. [¶] Discovery cut off is 30 days prior to the commencement of the first trial. First trial was vacated so we went to the second trial. [¶] They chose not to do any discovery. So now they have to live with that. [¶] If they had a problem with any discovery, then those matters would have to be heard. Discovery motions would have to be heard fifteen days prior to that first day of trial. [¶] No discovery motions were brought. [¶] Now they want to come in ex parte and request documents.”

Erion’s counsel argued Wong had not provided similar financial documents to Erion but even though Erion did not have all the documents his counsel thought he was entitled to, “at some point we had to proceed because this is the third time we were specially set for trial.” Erion’s counsel also argued that he could not get Wong and her counsel to participate in the case and that Erion’s settlement offers had consistently fallen on deaf ears. Erion’s counsel concluded by arguing that reopening discovery and again continuing the trial would be inequitable.

Wong’s counsel said she contacted a finance expert, Brett Bauer, who was available and could get up to speed on the case quickly. Erion’s counsel argued Wong’s failure to do due diligence and failure to conduct any discovery should not result in delaying the trial.

The trial court denied Wong’s request.

At the end of the fourth day of trial on July 20, White had finished his testimony and only Erion’s cross examination of Wong and Erion’s testimony remained to be completed. Wong renewed her request for documents referred to by White during his testimony. After clarifying that White did not rely on any documents dated later than March 31—well before the final discovery cut off—the court tacitly denied Wong’s renewed motion, stating: “I’ve heard your arguments. Thank you.” The court scheduled August 1 as the next trial date.

VI.

THE TRIAL COURT GRANTS WONG’S COUNSEL’S REQUEST TO BE RELIEVED, ALLOWS

WONG TO PROCEED IN PRO PER, AND DENIES WONG’S REQUEST TO

FURTHER CONTINUE THE TRIAL.

On July 26, 2017, Wong’s counsel filed a motion to be relieved as counsel on the ground of an irreparable breakdown in the attorney client relationship. Wong signed her counsel’s motion.

On August 1, the trial court granted the motion to relieve counsel, effective that day, but denied the request to continue the trial to allow Wong to retain new counsel. The trial court stated: “So the client has a right to discharge her lawyer for whatever reason. [¶] However, this trial will proceed and I will not—I will decline to grant a continuance to hire another lawyer to get up to speed. [¶] It’s not fair for the other side. We are too far into this trial. This, this case is a three-year marriage. It’s some four or five years down the line already. We’re into the trial. [¶] To [Wong], if you choose to keep [your trial counsel] on the case for whatever reason it might—you said, you know, you were unfamiliar with this sort of thing. It might be a bit awkward, but Miss Vogel is a professional. She’s an officer of the court, and she will be expected to continue the representation in a competent and delicate professional manner if that’s, in fact, what you choose. [¶] But the court will grant, if you want to discharge your lawyer, but I will not be granting a continuance in order to get somebody on the case. So you’ll have to proceed by yourself. You can decide what you want to do.” The court added, “[w]e are four days, five days into this trial. You all have been trying to continue this at every turn. [¶] We’ve had testimony. We’ve had experts.”

The trial court stated to Wong directly: “I’m not granting a continuance. We’re going to continue this hearing today. [¶] You can take this opportunity. You can call whatever witness you want to call, and you can finish up with the cross-examination. [¶] You can relieve your attorney. You can have her leave. You can have her stay. All right?” After a brief recess, the court confirmed Wong wanted the court to grant her counsel’s motion to withdraw. The court granted the motion to withdraw and trial proceeded with the cross examination of Wong.

VII.

TRIAL CONCLUDES AND THE TRIAL COURT ISSUES THE NOTICE OF INTENDED DECISION.

When trial resumed on August 16, the trial court permitted Wong to call expert Brett Bauer to testify during which testimony Wong’s trial exhibit 1, a marital balance sheet, was marked for identification. Either that day or the day before, Wong provided Erion an exhibit list containing 62 exhibits. Erion filed a motion in limine seeking the exclusion of Wong’s exhibits on the grounds she never exchanged them for inspection, she never submitted them to the court in violation of Orange County Superior Court rule 317, and their admission would prejudice Erion because it would constitute an unfair surprise or trial by ambush. The trial court did not rule on this motion in limine.

The evidentiary portion of trial concluded on August 17. Wong did not move for the admission of her trial exhibits into evidence at the end of trial. The trial court did not rule on Erion’s motion in limine seeking to exclude her exhibits. The parties filed written argument according to the schedule set by the trial court and the matter was submitted on October 31.

On December 29, 2017, the court issued its Notice of Intended Decision. In the introductory paragraph of the decision, the trial court stated, “The court on its own motion admits all trial exhibits and both forensic accountants’ reports into evidence.” The decision included findings on the characterization and division of the parties’ property.

VIII.

IN RESPONSE TO ERION’S REQUEST FOR A STATEMENT OF DECISION, THE TRIAL COURT VACATES ITS INTENDED DECISION, HOLDS A FURTHER HEARING ON THE ADMISSIBILITY OF CERTAIN EVIDENCE, AND ISSUES ITS FINAL DECISION.

Erion filed a request for a statement of decision that would include, inter alia, “findings of fact and the legal basis for admitting all trial exhibits and expert reports after trial, despite the fact that there had been no request by [Wong] to move her exhibits into evidence, and all closing arguments were submitted based on the evidence admitted during trial.”

The trial court thereafter ordered the preparation of a transcript for hearings on August 16 and 17 and argument on October 31. On January 18, the trial court vacated its intended statement of decision and, on its own motion, reopened trial for the limited purpose of considering the admission of Wong’s evidence that had not been moved into evidence. The court invited argument based on any newly admitted evidence at a hearing scheduled for March 5.

At the March 5 hearing, the trial court stated Erion had brought to the court’s attention that the court, in rendering its intended ruling, “was apparently looking at some things that were not in evidence.” The court stated, “So I wanted to give [Wong]—I don’t know if it was an inadvertence or not, but I wanted to give [Wong] an opportunity to offer some things into evidence, give [Erion] an opportunity to respond or to object to those; and then if anything initial comes into evidence, give [Erion] an opportunity to argue what is admitted.” The trial court asked Wong: “did you have any exhibits that you would like to offer into evidence? If so, state them one at a time, if you will. [¶] The first thing I have here was [Wong]’s Exhibit 1, marital balance sheet was marked for identification only. Did you want to start with that one, or did you have any others that you wanted to offer?” Wong stated she had a marital balance sheet and she “updated it to today.” The court stated the end of submission of evidence was August 17 and so the court would not consider anything updated after that date, “[b]ut as of that time, when the evidence closed, was there anything . . .”

Erion’s counsel interjected, renewing his motion in limine seeking to exclude any such evidence. After a discussion on the motion in limine, the trial court stated, “Well, what I’m going to do is I’m going to allow her—I want to take this step by step. I want to see what it is that she wants to offer. If there is inadequate foundation . . . you’re free to make those objections. Then the court will determine whether it should be admitted or not. [¶] I just want to give her the opportunity to go through with that and give you the opportunity to respond. I don’t know how it’s going to end up being, but I’m going to go ahead.” Erion’s counsel asked if the court wanted to address the motion in limine before or after further proffer of evidence. The court directed that a copy of the motion be given to Wong and took a brief recess to enable the court and the parties to review the motion in limine.

Following the recess, the court confirmed with Wong that before August 16, she had not proffered any exhibits and that after the court granted the motion to relieve Wong’s counsel, Wong created an exhibit list of 62 exhibits.

The trial court asked Wong: “Why didn’t you move any of your exhibits in at the end of trial?” Wong responded that she “got flustered because [she] [doesn’t] know what [she’s] doing” and she “didn’t do it properly.” Wong also confirmed that no foundation was laid for any of her exhibits. She did not thereafter inquire about offering any exhibit into evidence or attempt to do so before the March 5 hearing concluded.

On March 21, the trial court issued its written, final trial ruling on all controverted issues (the trial ruling). The court stated it “accepts the analysis and proposed findings in [Erion]’s marital balance [sheet] as legally sound and accurate with the factual exceptions,” set forth in the ruling. Although Wong had not properly moved any of her exhibits into evidence, the trial court admitted her exhibit no. 1 (Bauer’s report). The trial ruling also resolved several outstanding issues regarding household furnishings, spousal support, child support, childcare, a sanctions request by Erion, and Wong’s breach of fiduciary duty claim, none of which is raised as an issue in this appeal. The trial ruling’s incorporation of Erion’s marital balance sheet with exceptions confirmed the court’s findings on the characterization of the parties’ property. As pertinent to the issues raised in this appeal, the court therefore found that three retirement accounts, namely the AON Hewitt 401k, Ameriprise IRA account No. 0232, and Ameriprise IRA account No. 1572 were community property to be evenly divided between the parties.

IX.

JUDGMENT ON RESERVED ISSUES IS ENTERED; THE TRIAL COURT DENIES WONG’S MOTION FOR NEW TRIAL; WONG APPEALS.

In July 2018, the trial court’s judgment on reserved issues was entered. The judgment reflected the court’s findings regarding the characterization of all the accounts on property holdings by either or both of the parties, attaching and incorporating the revised version of Erion’s Schedule of Separate and Community Property Assets and Liabilities (the schedule). The judgment also stated the court’s finding that Wong “breached her fiduciary duty to [Erion] by taking funds from the community account to pay off her separate property debt [on real property in San Pedro (the San Pedro property)] without [Erion]’s prior knowledge or approval. [Wong] is therefore charged the sum of $59,610.00 for the use of the monies taken from community accounts to pay off the mortgage on [the San Pedro property].” In addition, the judgment provided: “In order to equalize the community estate, [Wong] shall pay [Erion] the sum of $445,641.00. [Erion] shall have a constructive trust over [Wong]’s separate property assets until such time as the entire amount is paid in full, including, but not limited to, any assets of Sunflower Power, LLC, including bank accounts and the [San Pedro property].”

In September 2018, Wong filed a motion for new trial which, according to Wong’s appellate opening brief, was summarily denied because it was not heard within the statutory time frame.

On November 9, 2018, Wong filed a notice of appeal from the July 3, 2018 judgment after court trial and also from “[a]ll other orders that are separately appealable, including order entered on 10/14/2018.” Wong attached the judgment to the notice of appeal but did not attach any postjudgment order. As no argument has been made in Wong’s appellate briefs identifying any error with regard to any postjudgment ruling, we conclude Wong has forfeited any challenge to all such postjudgment rulings and we do not consider them further.

DISCUSSION

I.

THE TRIAL COURT DID NOT ERR BY DENYING WONG’S

MIDTRIAL CONTINUANCE REQUEST.

“[T]he dates assigned for a trial are firm.” (Cal. Rules of Court, rule 3.1332(a).) “[C]ontinuances of trials are disfavored.” (Id., rule 3.1332(c).) “‘The decision to grant or deny a continuance is committed to the sound discretion of the trial court. [Citation.] The trial court’s exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record.’” (Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1126, disapproved on another ground in ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175, 198, fn. 8.) “The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 985.)

Wong does not challenge the trial court’s denial of her request for a continuance that she made on the eve of trial in June 2017, but instead, limits her challenge to the trial court’s denial of her midtrial continuance request. She argues the trial court’s comments during argument on the request showed the trial court was confused in ruling on the request and that the court denied her request because it “‘just felt like it’” even though the consequence of the ruling would be Wong having to complete trial unrepresented after having been “abandoned” by the trial counsel who had represented her since 2013.

The record does not support Wong’s argument. In the trial ruling, the trial court addressed this issue first: “To begin, it is important for the court to address an issue that [Wong] raised during trial—[Wong]’s decision to proceed in pro per. At the commencement of trial, [Wong] was represented by counsel. The trial had been in session for 5 days when [Wong] relieved her counsel. [Wong] was advised by the court, before relieving her counsel, that there would be no continuance as there had already been 5 days of trial and more than 7 years had passed since the date of separation. [Wong] opted to proceed in pro per.”

Wong does not challenge the trial court’s summary of events surrounding the motion to continue and, in any event, the record supports that summary. Wong was not abandoned by trial counsel; Wong joined in her trial counsel’s request to be relieved on the ground that there had been an irreparable breakdown of the attorney client relationship.

The record shows Wong had been the cause of two prior continuances of trial, that trial on the reserved issues finally began seven years after the parties had separated, and that the parties had already completed the four scheduled days of that trial before Wong requested another continuance. The trial court warned Wong that no continuance of trial would be granted at that point and invited her to change her mind about relieving her trial counsel; she did not change her mind and chose to complete the trial representing herself. The trial court did not abuse its discretion by denying Wong’s request for a continuance.

II.

THE TRIAL COURT DID NOT EXCLUDE WONG’S DOCUMENTARY EVIDENCE.

In her appellate opening brief, Wong argues “[t]he trial court’s exclusion of each and every introduced piece of [Wong]’s evidence is an abuse of discretion, wherein it is premised upon not only a misinterpretation of controlling law, but also factual findings that are demonstrably unsupported and contradicted by the record.” The trial court’s rulings on the admissibility of evidence, whether made in limine or during trial, are reviewed for abuse of discretion. (People ex rel. Harris v. Sarpas (2014) 225 Cal.App.4th 1539, 1555.)

Here, there was no trial court ruling excluding Wong’s evidence. The court did not rule on Erion’s hearsay, lack of foundation, and/or lack of personal knowledge objections to specific exhibits presented by Wong during trial. Instead, the court reserved ruling on those objections until later in the trial. The trial court also did not rule on Erion’s motion in limine seeking to exclude Wong’s documentary evidence due to her failure to exchange her proposed trial exhibits before trial began.

Wong did not attempt to move her exhibits into evidence at the end of trial. After realizing that Wong’s documentary evidence had not been admitted, the trial court reopened the matter for the purpose of offering Wong the opportunity to identify any evidence she wished admitted and move it into evidence. At the March 5, 2018 hearing, despite being expressly invited at least twice by the court to offer any of her trial exhibits into evidence, Wong did not do so.

In the trial ruling, the trial court summarized the circumstances surrounding the proffered admission of Wong’s documentary evidence as follows: “At the close of the trial, [Wong] offered no exhibits into evidence. Ultimately, the court concluded that this may have been an inadvertence, notwithstanding the fact that [Wong] would not have been able to lay the foundation for the majority of the exhibits. The court, on its own motion, reopened the trial for the express purpose of allowing [Wong] to move exhibits into evidence; however, [Wong] acknowledged that she purposefully and out of frustration had not laid the foundation and did not attempt to move them in. [¶] [Wong] expressed great dissatisfaction with her attorney and lamented that her attorney had not prepared the case. [Erion]’s counsel confirmed that [Wong]’s counsel had not exchanged any exhibits whatsoever before trial. While the court is not privy to [Wong]’s counsel’s preparation, strategy or reasoning, this court cannot advocate for [Wong] or augment her case. [Wong]’s recourse is to address the issue of her attorney’s performance in another venue. This court must rule based upon the evidence—physical and testimonial—presented and admitted at the hearing.” (Italics added.)

Wong does not address, much less challenge, the trial court’s statement that Wong admittedly failed to lay a proper foundation for any of her proffered trial exhibits and failed to properly move them into evidence. As Wong’s exhibits were not admissible without Wong laying a proper foundation, the trial court could not have erred in failing to admit them. The court was thereafter left to decide the reserved issues of trial based on the admissible evidence before it.

III.

SUBSTANTIAL EVIDENCE SUPPORTED THE TRIAL COURT’S COMMUNITY PROPERTY CHARACTERIZATION OF THE AON HEWITT 401(K) ACCOUNT, THE AMERIPRISE ACCOUNT NO. 0232 AND THE AMERIPRISE IRA ACCOUNT NO. 1572.

Wong argues the trial court erred by characterizing the contents of an AON Hewitt 401(k) account, Ameriprise account No. 0232, and Ameriprise IRA account No. 1572, as community property and dividing them equally between the parties. “‘[I]n California, property acquired prior to marriage is separate, while property acquired during the marriage is presumed community property.’” (Patrick v. Alacer Corp. (2011) 201 Cal.App.4th 1326, 1339; see Fam. Code, § 760 [“Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property”].) The substantial evidence standard of review also applies where the property status determination turns on a characterization presumption or rebuttal thereof. (In re Marriage of Orchard (1990) 224 Cal.App.3d 155, 161)

In this case, no timely request for a statement of decision was filed after the trial court reopened the trial and thereafter issued the trial ruling on all controverted issues on March 21, 2017. We must therefore apply the doctrine of implied findings which “requires the appellate court to infer the trial court made all factual findings necessary to support the judgment. [Citation.] The doctrine is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error. [Citations.]” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 58.)

A.

AON Hewitt 401(k)

In the schedule, incorporated into the judgment on reserved issues, the trial court found the AON Hewitt 401(k) account, valued before trial at $147,181, was opened prior to marriage as a result of Wong’s employment with AON Hewitt. As to that account, the schedule notes Wong stated in deposition that she made contributions to the account during marriage; the deposition transcript itself was not admitted into evidence at trial.

Wong argues the trial court erred by failing to apportion the amount of Wong’s separate property interest and the community’s interest in the account. She argues evidence shows Wong’s employment with AON Hewitt began in 2005 and ended in 2015. The parties married in November 2006 and separated in May 2010.

In her appellate briefs, Wong acknowledges that contributions were made to the AON Hewitt 401(k) account during the marriage. Wong failed to proffer admissible evidence that would rebut the community property presumption by showing the history of contributions to that account and thereby identify any amounts acquired either before the parties’ marriage or after their separation. As discussed ante, Wong had repeated opportunities to produce admissible evidence on this topic but failed to do so. In the absence of such evidence, substantial evidence supported the characterization of the account as containing community property to be divided equally between the parties.

B.

Ameriprise Account No. 0232

As to Ameriprise account No. 0232, valued before trial as containing $289,541, the schedule states: “We have only been supplied with one statement as of December 31, 2016 for this account although the account is held in part by the Astro Pico Rev Living Trust which was established in February 2010.” Again, the funds in the account are tied to a trust that was indisputably created during the parties’ marriage and before they separated. Wong has failed to produce any evidence showing that the funds in that account are, in whole or in part, her separate property. Under these circumstances, the trial court did not err by concluding the account constituted community property.

C.

Ameriprise IRA Account No. 1572

As to the Ameriprise IRA account No. 1572 valued before trial as containing $109,018, the schedule states: “We have only been supplied with one statement as of December 31, 2016 for this account. We have not been supplied with any tracing or documents to show the balance on deposit as of separation or in the alternative the amount of [Wong]’s separate property claim to the account. We have considered this account as community property as it is an IRA account and is not expected to have much annual activity.”

Wong argues that, because the only evidence regarding this account is a post-separation statement, the court erred in finding the account to be community property. We disagree.

It is undisputed this account existed as of 2016 but there is no evidence regarding when the account originated or how it was funded. Wong had multiple opportunities to proffer admissible evidence showing that the account contained separate property, but she did not. Wong’s argument suggests that her failure to disclose and admit relevant documentation on the creation and funding of this account mandates characterizing the account as her separate property as a matter of law. Wong’s argument runs afoul of the statutory community property presumption.

It also would deprive the trial court of its role of making credibility determinations in characterizing property. The trial court made additional findings in this case, which are uncontested by Wong on appeal, that she breached her fiduciary duty by taking $252,988 of community property funds, unbeknownst to Erion, to pay down the mortgage on the San Pedro property which is indisputably Wong’s separate property. Given that it was proven Wong had surreptitiously moved community property funds into a separate property holding at least once, and in the absence of any evidence illuminating the source of the funds in this account, the trial court did not err by concluding it constituted community property.

IV.

THE TRIAL COURT DID NOT ERR BY IMPOSING INTEREST ON THE AMOUNT OF COMMUNITY PROPERTY WONG USED TO PAY OFF THE MORTGAGE OF HER

SEPARATE PROPERTY.

The judgment on reserved issues states: “[Wong] breached her fiduciary duty to [Erion] by taking funds from the community account to pay off her separate property debt without [Erion]’s prior knowledge or approval. [Wong] is therefore charged the sum of $59,610.00 for the use of the monies taken from community accounts to pay off the mortgage on [the San Pedro property].” The trial court determined the amount of interest by charging interest at a rate of 3.25 percent for a period of 7.25 years.

Wong does not argue insufficient evidence supported any of the findings underlying the trial court’s conclusion Wong breached her fiduciary duty by taking $252,988 in community funds, without Erion’s knowledge or consent, to pay down the mortgage on the San Pedro property. She also does not challenge the sum of $59,610 as the accurately calculated amount of interest that accrued on Erion’s share of the taken community funds.

In her appellate opening brief, Wong argues that, although Family Code section 920, subdivision (a) provides for the reimbursement of one half of the community funds used in the commission of a breach of fiduciary duty, it does not speak to, much less authorize a concomitant award of interest on that share. She argues Civil Code section 3288 authorizes an award of prejudgment interest by a jury only and not by the trial court even when sitting as the trier of fact.

In Patrick v. Alacer Corp., supra, 201 Cal.App.4th 1326, 1344 1345, a panel of this court held the trial court’s award of interest to the plaintiff for the loss of use of her community property interest did not constitute an abuse of discretion: “We see no abuse of discretion. ‘Prejudgment interest is awarded to compensate a party for the loss of the use of his or her property.’ (Bullis v. Security Pac. Nat. Bank (1978) 21 Cal.3d 801, 815 (Bullis).) ‘In an action for the breach of an obligation not arising from contract . . . interest may be given [as damages], in the discretion of the jury.’ (Civ. Code, § 3288.) ‘[T]he trial court, when acting as the trier of fact, may award prejudgment interest under this section’ (Bullis, at p. 814, fn. 16) and its decision will ‘not be overturned unless [it] abused its discretion’ (id. at p. 815). Plaintiff’s loss of use of a community property interest she owned upon Jay’s death in 2003 [citations] sufficiently supports the court’s exercise of its discretion to award prejudgment interest. (See Bullis, at p. 815; see also Redke v. Silvertrust (1971) 6 Cal.3d 94, 106 [Civ. Code, § 3288 allows prejudgment interest award when stepfather wrongly withheld mother’s separate property from daughter].) [Fns. omitted.]”

Wong does not argue on appeal that if the trial court had authority to award prejudgment interest it was an abuse of discretion to award it here. The trial court found the prejudgment interest award to be appropriate. We find no abuse of discretion.

V.

THE TRIAL COURT DID NOT HAVE JURISDICTION IN THIS ACTION TO IMPOSE A CONSTRUCTIVE TRUST OVER WONG’S SEPARATE PROPERTY.

The judgment on reserved issues states: “In order to equalize the community estate, [Wong] shall pay [Erion] the sum of $445,641.00. [Erion] shall have a constructive trust over [Wong]’s separate property assets until such time as the entire amount is paid in full, including, but not limited to, any assets of Sunflower Power, LLC, including bank accounts and [the San Pedro property].” Wong argues the trial court acted in excess of its jurisdiction in imposing a constructive trust over her separate property to ensure she pays Erion the community property equalizing payment. We agree.

Family Code section 2010 provides: “In a proceeding for dissolution of marriage, for nullity of marriage, or for legal separation of the parties, the court has jurisdiction to inquire into and render any judgment and make orders that are appropriate concerning the following: [¶] (a) The status of the marriage, including any marriage under subdivision (c) of Section 308. [¶] (b) The custody of minor children of the marriage. [¶] (c) The support of children for whom support may be ordered, including children born after the filing of the initial petition or the final decree of dissolution. [¶] (d) The support of either party. [¶] (e) The settlement of the property rights of the parties. [¶] (f) The award of attorney’s fees and costs.” Family Code section 2010 does not vest the trial court with jurisdiction over the disposition of the separate property of a party in a marital dissolution action.

A seminal case addressing the trial court’s lack of jurisdiction to impose a constructive trust on separate property in a marital dissolution action is In re Marriage of Buford (1984) 155 Cal.App.3d 74, 78 (Buford), disapproved on another ground in In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, fn. 13, in which the court held, based on the former Family Law Act: “We agree with wife that the court lacked jurisdiction to impose a constructive trust on her separate property. The dissolution proceeding below was instituted under the Family Law Act. [Citation.] The act limits the court’s jurisdiction in such proceedings to dividing the community and quasi-community property of the parties. [Citations.] [¶] The trial court certainly has jurisdiction to determine whether a particular asset is community or separate property. [Citation.] However, ‘there is no express authority [in the act] to dispose of either spouse’s separate property in the dissolution proceedings.’”

The Buford court continued: “Because the act does not authorize the court to dispose of a party’s separate property, the trial court lacked jurisdiction to entertain husband’s claim for a constructive trust on wife’s separate property. [¶] Similarly, a spouse is precluded from seeking relief in a dissolution proceeding based on an alleged Marvin agreement existing prior to the marriage. [Citation.] She must file an independent civil action. [Citation.] ‘The provisions of the Family Law Act do not govern the distribution of property acquired during a nonmarital relationship. . . .’ [Citation.] In the case before us, wife acquired her prior husband’s interest in the property prior to her marriage to Buford. [¶] Therefore, we conclude husband’s claim to a constructive trust on wife’s separate property must be brought in a civil action independent of the dissolution proceeding. However, once his independent action is filed, he may move to consolidate it with the dissolution action.” (Buford, supra, 155 Cal.App.3d at pp. 78-79, fn. omitted.)

Notwithstanding changes in the law and the enactment of the Family Code since Buford, Buford’s holding that the court lacks jurisdiction to place a constructive trust over a party’s separate property in a marital dissolution action remains good law. (See Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2016) ¶ 8:903 [“In dividing the community estate, the court’s authority is limited: The court may characterize disputed assets and liabilities as being separate or community, may confirm separate property to the owner spouse and, to the extent permitted by statute, may order reimbursement from the community to a party’s separate estate or from a party’s separate estate to the community or the other party’s separate estate [citation]. But unless the parties otherwise agree, the court’s jurisdiction over separate property ordinarily extends no further (e.g., the family law court has no jurisdiction in a marital proceeding to impose a constructive trust on one spouse’s [separate property] or to award damages for a [separate property] conversion). To obtain other relief affecting separate property interests, an independent civil action must be filed.”], citing, inter alia, Buford, supra, 155 Cal.App.3d at pp. 77-78.)

Here, the trial court had jurisdiction to order Wong to reimburse Erion with a community property equalization payment, but it did not have jurisdiction to impose a constructive trust over her separate property to make sure Wong complied with that order. We therefore modify the judgment to strike the imposition of the constructive trust.

DISPOSITION

We modify the judgment to strike the imposition of the constructive trust over Wong’s separate property. As so modified, the judgment is affirmed. In the interests of justice, neither party shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

MOORE, ACTING P. J.

ARONSON, J.