Marriage of Dong and Garbe CA6

Filed 11/26/13 Marriage of Dong and Garbe 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 Marriage of DIANA QIAO DONG H036286
and OLIVIER GARBE. (Santa Clara County
Super. Ct. No. 6-08-FL000101)

DIANA QIAO DONG,

Appellant,

v.

OLIVIER GARBE,

Appellant.

Appellant and cross-respondent Diana Qiao Dong is the petitioner in an action for
the dissolution of her marriage to respondent and cross-appellant Olivier Garbe. The
petition was filed in February 2008 and the judgment of dissolution was filed in
September 2010.
On appeal, Dong raises multiple claims, as follows: (1) the trial court erred in
ordering termination of spousal support after two years even though the marriage had
lasted more than 10 years; (2) Dong was improperly double-charged a total of $35,000
for monies taken from her children’s account and accounts awarded to Garbe; (3) the trial
court erred by not allowing her to call an expert certified public accountant to testify at
trial regarding the valuation of a limited partnership and other financial issues; (4) the
trial court erred in designating certain property, such as a financial account and a vehicle,
as community property; and (5) the trial court erred in determining that a $100,000 gift
from Garbe’s mother upon marriage was Garbe’s separate property.
Garbe cross-appeals, challenging the trial court’s finding that an apartment in
Shanghai, China, was Dong’s separate property.
We find no error by the trial court and shall affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND1
Dong and Garbe first met in 1996, and approximately one year later, Garbe
recruited her to work at his company, Winnov LP, as a salesperson. Dong agreed and
worked at Winnov LP until her termination from employment in 2008.
Dong and Garbe were married in November 1997 and separated in January 2008.
During their marriage, they had two children who were born in 1998 and 2001,
respectively.
Dong filed her petition for dissolution of marriage in February 2008. Trial on the
support and attorney fee issues was held on various dates between July and November
2008, and a statement of decision addressing those matters was filed in January 2009.
Trial on the dissolution petition commenced in April 2010, culminating in a
statement of decision (August 2010) and final judgment (September 2010). The parties
timely appealed.
II. DISCUSSION
A. Termination of spousal support
1. Standard of review
Dong suggests that, though the appropriate standard of review of an order
terminating spousal support is abuse of discretion, we should instead engage in a de novo

1
We briefly recount the background facts in this section. The facts pertinent to
the parties’ claims are set forth in greater detail in connection with our discussion of
those particular claims below.

2
review in this case, because the trial court used the “wrong legal standard” in making its
order. We disagree.
The proper standard of review is abuse of discretion. “In awarding spousal
support, the court must consider the mandatory guidelines of [Family Code][2] section
4320. Once the court does so, the ultimate decision as to amount and duration of spousal
support rests within its broad discretion and will not be reversed on appeal absent an
abuse of that discretion.” (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93, fn.
omitted.) Dong’s disagreement is with the trial court’s evaluation of the evidence, not the
legal standard it applied to that evidence.

2. The trial court did not abuse its discretion in terminating spousal
support
“A trial court should not terminate jurisdiction to extend a future support order
after a lengthy marriage, unless the record clearly indicates that the supported spouse will
be able to adequately meet his or her financial needs at the time selected for termination
of jurisdiction. In making its decision concerning the retention of jurisdiction, the court
must rely only on the evidence in the record and the reasonable inferences to be drawn
therefrom.” (In re Marriage of Morrison (1978) 20 Cal.3d 437, 453.) “In ordering
spousal support, the trial court must consider and weigh all of the circumstances
enumerated in the statute,[3] to the extent they are relevant to the case before it.” (In re
2
Further unspecified statutory references are to the Family Code.
3
The applicable statute is section 4320, which provides as follows:
“In ordering spousal support under this part, the court shall consider all of the
following circumstances:
“(a) The extent to which the earning capacity of each party is sufficient to
maintain the standard of living established during the marriage, taking into account all of
the following:
“(1) The marketable skills of the supported party; the job market for those skills;
the time and expenses required for the supported party to acquire the appropriate
education or training to develop those skills; and the possible need for retraining or
education to acquire other, more marketable skills or employment.
(continued)

3
Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302.) “[T]he trial judge must both
recognize and apply each applicable statutory factor in setting spousal support.
[Citations.] Failure to do so is reversible error.” (Id. at p. 304.)
In the statement of decision, the trial court made the following findings regarding
spousal support: “Each party has marketable skills, there is a market for those skills, and
there is no time or expense required by either party to acquire appropriate education to
develop those skills. Neither party’s present or future earning capacity was impaired by

“(2) The extent to which the supported party’s present or future earning capacity is
impaired by periods of unemployment that were incurred during the marriage to permit
the supported party to devote time to domestic duties.
“(b) The extent to which the supported party contributed to the attainment of an
education, training, a career position, or a license by the supporting party.
“(c) The ability of the supporting party to pay spousal support, taking into account
the supporting party’s earning capacity, earned and unearned income, assets, and standard
of living.
“(d) The needs of each party based on the standard of living established during the
marriage.
“(e) The obligations and assets, including the separate property, of each party.
“(f) The duration of the marriage.
“(g) The ability of the supported party to engage in gainful employment without
unduly interfering with the interests of dependent children in the custody of the party.
“(h) The age and health of the parties.
“(i) Documented evidence of any history of domestic violence, as defined in
Section 6211, between the parties, including, but not limited to, consideration of
emotional distress resulting from domestic violence perpetrated against the supported
party by the supporting party, and consideration of any history of violence against the
supporting party by the supported party.
“(j) The immediate and specific tax consequences to each party.
“(k) The balance of the hardships to each party.
“(l) The goal that the supported party shall be self-supporting within a reasonable
period of time. Except in the case of a marriage of long duration as described in Section
4336, a ‘reasonable period of time’ for purposes of this section generally shall be one-
half the length of the marriage. However, nothing in this section is intended to limit the
court’s discretion to order support for a greater or lesser length of time, based on any of
the other factors listed in this section, Section 4336, and the circumstances of the parties.
[¶] . . . [¶]
“(n) Any other factors the court determines are just and equitable.”

4
periods of employment incurred to permit the other party to devote time to domestic
duties; neither party contributed to the attainment of an education, training or career or
license of the other party; each party has an extremely limited ability to pay spousal
support taking into account their earning capacity and debts, after considering the
transfers by child support and related expenses incurred. The presumption is that as the
primary custodial parent [Garbe] devotes much [sic] portion of his income to supporting
the children. The marital standard of living is middle class and each party can meet their
own needs. Each party has substantial separate property. The marriage is of long
duration but not exceptionally long. Each party can engage in gainful employment
without unduly interfering with the interest of the children. [Garbe] is 59 years old and
[Dong] is 52 years old. Both parties are in good health. There is no evidence of domestic
violence in this case. The assertion of domestic violence by [Dong] is not credible and is
barred by res judicata, anyway. The court concludes the parties have the ability to meet
their future needs. After considering the immediate and specific consequences and
balances of hardships, and the goal a supported party be self supporting within a
reasonable amount of time, the court awards no spousal support to either party but
reserves jurisdiction for both parties until January 25, 2013. After January 25, 2013 the
court shall have no jurisdiction to award either party spousal support for any reason at
any time. It is the court’s intention that January 25, 2013 be an absolute termination date
under any circumstances, and is not to be extended.”
The evidence presented at the trial supported the trial court’s findings on each of
the relevant statutory factors. At the time of the trial, Dong was 52 years old, in good
health and was aware of no medical conditions which would affect her ability to work.
She was born and educated in Shanghai, China, and received a degree in electrical
engineering from Shanghai University in 1982. Dong moved to the United States in 1986

5
and earned a masters degree in electrical4 engineering from San Jose State University in
1991. She became a United States citizen in 1998.
Dong worked for Garbe’s company during the marriage and, at one point, had the
title of vice president and was placed in charge of a subsidiary company known as
Winnov China. Following her termination from Winnov LP, she obtained employment
with a different company as a vice president of business development and sales, with an
annual salary of $135,000.
In this case, the court’s determination that Dong could become self-supporting in
2013 was not based on speculation, but was supported by evidence that she was capable
of earning a substantial income. That evidence supports the court’s weighing of the
section 4320 factors that informed the support decision. The trial court could have
reasonably concluded that in view of all of the circumstances presented, Dong “could
become, and should become, sufficiently self-supporting within the dates the court set for
the reduction and termination of spousal support.” (In re Marriage of Shaughnessy
(2006) 139 Cal.App.4th 1225, 1247.)
Dong relies on In re Marriage of McTiernan & Dubrow (2005) 133 Cal.App.4th
1090, but that case turns on its particular facts. In that case, which involved a marriage of
eight years, eight months, the trial court imposed a two-year limitation on spousal
support, despite evidence showing a great disparity in projected present income between
the parties as well as a great disparity in the parties’ abilities to maintain their former
lifestyle. (Id. at p. 1107.) In the present case, there was no evidence of any notable, let
alone great, disparity in either Dong’s projected present income or her ability to maintain
her former lifestyle.

4
Dong said her degrees were in “electronic” engineering, but also did not correct
her attorney when he subsequently asked her questions about her “electrical” engineering
degrees.

6
 In light of the circumstances presented here, the order is consistent with the
legislative goal “that the supported party shall be self-supporting within a reasonable
period of time.” (§ 4320, subd. (l).) Dong has failed to show any abuse of the court’s
broad discretion.
B. Division of community property
1. Standard of review
In her opening brief, Dong acknowledges that, in dissolution proceedings, an order
dividing property should be upheld if the order is within the court’s discretion and there
is substantial evidence to support it, though she cites no authority for this proposition.
She then urges us, again without citation to supporting authority, to review this particular
order de novo, because “not only is there not substantial evidence to support the decision,
but the only documents directly contradict the order.”
It is well-settled that “we review the trial court’s judgment dividing marital
property for an abuse of discretion[, and] . . . we review the trial court’s factual findings
regarding the character and value of the parties’ property under the substantial evidence
standard.” (In re Marriage of Sivyer-Foley & Foley (2010) 189 Cal.App.4th 521, 526.)
There is no occasion for us to conduct a de novo review of Dong’s fact-based claims that
she was improperly charged twice for certain amounts in the division of property.

2. The trial court did not err in directing Dong to reimburse the
community for monies withdrawn from community accounts
a. $15,000 withdrawn from the Washington Mutual account
Dong complains that she was improperly charged twice for withdrawals she made
from a community bank account after the January 25, 2008 date of separation. The two
withdrawals Dong complains of were made on February 1, 2008 ($10,000) and February
19, 2008 ($5,000) from a Washington Mutual joint account (account No. 4077-7).
Because Dong was awarded that joint account, valued as of the date of separation, in the

7
judgment of dissolution, she contends she should not have been charged for any
postseparation withdrawals from that account.
At trial, Rebecca Alger, Garbe’s expert certified public accountant (CPA),
calculated the amount of reimbursement Dong owed the community after examining the
parties’ various accounts. She prepared charts identifying “those transactions . . . that
were reflective of monies that had either been clearly taken from community accounts or
monies . . . that were deposited into one of the accounts that were in Ms. Dong’s name
shortly after date of separation or within a few months of separation for which there was
no clear indication as to source.” The $15,000 in transfers from account No. 4077-7
comprise part of what “Dong would owe back to the community for funds that had been
either removed clearly from the community or had mysteriously appeared without
explanation.”
In its statement of decision, the trial court ordered Dong “to reimburse the
community $55,375.61 in missing funds[,] . . . composed of the $35,375.61[5] removed
from joint accounts plus the sudden $20,000 withdrawal prior to separation, the location
of which was never answered by [Dong] at time of trial. These sums have not been
double counted, per Ms. Alger’s testimony and are not duplicative of the bank accounts
above.”
Dong points us to no testimony or evidence to demonstrate that these withdrawals
could be traced to her separate property. Instead, the evidence shows she withdrew
$15,000 in community property from account No. 4077-7. The mere fact she was later
awarded that particular account, valued as of the date of separation, does not retroactively
justify her postseparation withdrawals of community funds from it.

5
Of this total, Dong only claims she was double-charged for $15,000, apparently
conceding she must reimburse the remaining $20,375.61 she withdrew from joint
accounts.

8
 b. $20,000 withdrawn from the children’s certificate of deposit
Dong also contends that the trial court has double charged her for $20,000
withdrawn from the children’s certificate of deposit at Bank of America in December
2007. In its statement of decision, the court reconfirmed a prior order6 in which Dong
was directed to repay $20,000 given to the children by the paternal grandmother. The
statement of decision also charged Dong with receiving over $50,000 in funds which
includes the $20,000 withdrawn from a Bank of America certificate of deposit in
December 2007, thus charging her twice for the same withdrawal.
Dong’s argument has no merit. Even assuming that her interpretation is correct,
and the statement of decision twice refers to the same $20,000, what she fails to
appreciate is the difference between being ordered to repay $20,000 twice and being
ordered twice to repay $20,000. Dong does not dispute that, as early as January 2009,
she was ordered to return this $20,000 plus interest. She essentially admits she never did
so. The 2010 statement of decision merely reconfirms the 2009 order to repay that
money, and includes those same funds as part of what she is ordered to reimburse the
community. She was not ordered to repay $40,000 plus interest, but instead was ordered
twice (perhaps three times now) to repay $20,000 plus interest.
C. Denial of expert CPA testimony
Dong claims the trial court erred by refusing to allow her to present expert
testimony from a CPA on the value of Winnov LP or the amount of Garbe’s income
available for support.

6
Dong notes that the statement of decision incorrectly identifies the date of the
order as “December 18, 2008,” instead of the actual date, December 15, 2008. The
December 15, 2008 order is itself labeled “Proposed Statement of Decision and Order,”
but that document was adopted by the trial court, after considering Dong’s objections
thereto, without change by order dated January 26, 2009.

9
 1. Standard of review
“A court’s decision to exclude expert testimony is reviewed for abuse of
discretion.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th
463, 467.) The test for the abuse of discretion standard is whether the trial court’s ruling
“ ‘exceeded the bounds of reason.’ ” (Walker v. Superior Court (1991) 53 Cal.3d 257,
272.)
2. There was no abuse of discretion in precluding expert testimony
Code of Civil Procedure section 2034.210 authorizes any party to “demand[] that
all parties simultaneously exchange information concerning each other’s expert trial
witnesses . . . .” The demand must specify a date of exchange “50 days before the initial
trial date, or 20 days after service of the demand, whichever is closer to the trial date . . .
.” (Id., § 2034.230, subd. (b).) All parties must exchange expert designations on or
before this date, either at a meeting of their attorneys, “or by a mailing on or before the
date of exchange.” (Id., § 2034.260, subd. (a).) The designation shall either list all
persons whose expert opinion the designating party expects to offer at trial, or state that
the party does not intend to offer any expert testimony. (Id., § 2034.260, subd. (b).)
Most relevant for our purposes here, the trial court shall, “on objection of any party who
has made a complete and timely compliance with Section 2034.260, . . . exclude from
evidence the expert opinion of any witness that is offered by any party who has
unreasonably failed to do any of the following: [¶] (a) List that witness as an expert
under Section 2034.260. [¶] (b) Submit an expert witness declaration. [¶] (c) Produce
reports and writings of expert witnesses under Section 2034.270. [¶] (d) Make that expert
available for a deposition . . . .” (Id., § 2034.300.) However, a party who has failed to
make a timely disclosure may move for “leave to submit that information on a later date.”
(Id., § 2034.710, subd. (a); see id., § 2034.300.)
As the March 2010 trial date approached, Garbe’s attorney served Dong, then
acting in propria persona, with a demand for exchange of expert witness information, due

10
on January 25, 2010. Dong replied, seeking a postponement of that date, a postponement
of her deposition (scheduled for January 26, 2010) and a continuance of the trial date,
explaining her employer was requiring her to travel to China for business from January 7
to February 1, 2010 and again in March 2010.
As the parties could not agree on Dong’s extension requests, she filed a motion to
continue the trial, postpone her deposition, and extend the due date for her to produce
documents and comply with Garbe’s expert witness demand. Garbe brought a
countermotion to compel further production of documents, reset Dong’s deposition to a
date following her production of further documents, preclude her from presenting expert
testimony from any witness that is not disclosed prior to the hearing date and preclude
her from introducing any documents that were not produced in response to the request for
further production. Dong filed no response to Garbe’s motion.
At the February 11, 2010 hearing on the motions, Dong advised the court she
contracted pneumonia while in China and had to be hospitalized. She provided hospital
records, written in Chinese, to Garbe’s counsel and the court, pointing out that
“pneumonia” was handwritten on those records in English.7 She blamed her business trip
and her illness for failing to respond in a timely manner both to the expert witness
disclosure demand and to Garbe’s motion. Garbe’s counsel produced a document Dong
sent to him entitled “Petitioner’s Expert Witness Disclosure,” dated January 25, 2010, in
which she indicated she “has no experts retained or to disclose at this time.”
By minute order dated February 11, 2010, the trial court ordered Dong to appear
for a deposition on March 11, 2010, produce the requested documents by March 1, 2010,
and precluded her from having an expert testify on her behalf at trial.

7
There is no evidence in the record disclosing who wrote that word on the
document.

11
 Prior to trial, Dong brought a motion in limine requesting the court to appoint a
forensic accounting expert pursuant to Evidence Code section 730. The trial court denied
the motion, finding it was “too late and . . . it really does do violence to the orders already
made.” However, the court indicated that the order was without prejudice and that Dong
could renew the motion “once the evidence is in.” It does not appear she did.8
We find no abuse of discretion by the trial court. Dong had ample time and
opportunity to avail herself of an expert witness regarding the valuation of Winnov LP as
well as the amount of income Garbe had available for support. The trial was initially set
for September 2009, then continued to March 15, 2010 and, at Dong’s behest, continued
again to April 5, 2010. Dong was asked to exchange expert witnesses in December 2009,
yet apparently never retained one during the entire time this dissolution proceeding was
pending, and certainly never disclosed to the court that she had done so. She did not
designate a forensic accounting expert witness, she did not submit declarations, produce
reports or writings from such an expert, nor did she make any such expert available for
deposition. Consequently, it was appropriate to preclude Dong from presenting a
forensic accounting expert to testify on her behalf at trial.
Dong critiques the testimony offered and the report prepared by Garbe’s expert
witness, specifically regarding the methodology that witness used to determine how much
Winnov LP was worth. Pointing to her own testimony on Winnov LP’s value, Dong
suggests that her estimate is more reliable and realistic than that of Garbe’s expert. It is
clear, however, the trial court found Garbe’s expert witness to be more credible than
Dong. (See In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099 [“The trial

8
If she did, Dong has not provided a citation to the record where the motion was
renewed. (Cal. Rules of Court, rule 8.204(a)(1)(C); Duarte v. Chino Community Hospital
(1999) 72 Cal.App.4th 849, 856.)

12
court sits as trier of fact and it is called upon to determine that a witness is to be believed
or not believed. This is the nature of factfinding.”].)
D. Property characterizations
Dong challenges the trial court’s determinations regarding the characterization of
the following property: (1) a Vanguard account she established in 2004, found to be
community property; (2) a 2004 Saab, found to be community property; and (3) a
$100,000 gift from Garbe’s mother upon marriage, found to be Garbe’s separate
property.
In his cross-appeal, Garbe challenges the trial court’s determination that an
apartment in Shanghai was Dong’s separate property.
We find substantial evidence supports the trial court’s characterization of each of
these properties.
1. Standard of review
Dong again urges us to employ a de novo standard of review, claiming that the
property characterizations were primarily based on documentation, rather than conflicting
testimony. The court’s findings, however, were not based solely on its interpretation of
various writings. It also heard testimony on the issue from Dong and Garbe, and its
conclusions are therefore based to some degree on how credible it found that testimony.
Accordingly, we shall uphold the trial court’s characterizations of property to the extent
they are supported by substantial evidence. (In re Marriage of Zaentz (1990) 218
Cal.App.3d 154, 162.) While it may be theoretically possible to overturn findings of fact
or to reassess the credibility of a witness, these tasks are basically within the province of
the trial court which is better suited to make such assessments. (Nestle v. City of Santa
Monica (1972) 6 Cal.3d 920, 925-926.)
2. General principles relating to property characterization
Property acquired during marriage is presumed to be part of the community. (§
760.) “The presumption applies when a [spouse] purchases property during the marriage

13
with funds from an undisclosed or disputed source, such as an account or fund in which
[he or she] has commingled [his or her] separate funds with community funds.” (See v.
See (1966) 64 Cal.2d 778, 783.) The burden is on the spouse asserting its separate
character to overcome the presumption. This can be done by tracing the acquisition to a
source of separate property or funds. If the source is a commingled account, the burden
can be difficult to overcome because of the following principle. “[I]f the separate
property and community property interests have been commingled in such a manner that
the respective contributions cannot be traced and identified, the entire commingled fund
will be deemed community property pursuant to the general community property
presumption of section 760.” (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 823.)
There are two tracing methods a spouse may use to establish a separate property
interest in an asset acquired during the marriage-direct tracing or family living expense
tracing. “Under the ‘direct tracing’ method, the disputed asset . . . is traced to the
withdrawal of separate property funds from the commingled account. This method
requires specific records reconstructing each separate and community property deposit,
and each separate and community property payment as it occurs. Separate property status
cannot be established by mere oral testimony of intent or by records that simply total up
all separate property funds available during the relevant period and all the separate
expenditures during that period; such records do not adequately trace to the source of the
purchase at the time it was made. [Citations.] [¶] Under the ‘family living expense’ or
‘recapitulation’ method, it is assumed that family living expenses are paid out of
community property funds. [Citations.] Payments may be traced to a separate property
source by showing community income at the time of the payments or purchase was
exhausted by family expense, so that the payments or purchase necessarily must have
been made with separate property funds. [Citations.] The recapitulation must be
sufficiently exhaustive to establish not only that separate property funds were available to
make the payments, but that they were actually used. [Citation.] As with direct tracing,

14
the record must demonstrate that community income was depleted at the time the
particular asset was acquired.” (In re Marriage of Braud, supra, 45 Cal.App.4th at pp.
823-824.)
In those cases, it is quite clear that tracing the purchase to separate funds, either
through direct tracing or by use of the recapitulation method, must be accomplished with
the use of specific records. These requirements have been held to be necessary to reserve
the general presumption that property acquired during a marriage is community property.
(See In re Marriage of Stoll (1998) 63 Cal.App.4th 837, 841-842.)
3. The Vanguard account
The statement of decision provides: “The Vanguard account was acquired with
community property. Alleged tracing offered by [Dong] for separate property was not
only insufficient but conclusive Vanguard was acquired with community property. The
Vanguard Capital account is awarded to [Dong] with a community value of $39,016.”
At trial, Dong testified that, for her birthday in February 2004, her father gave her
a birthday card “with some traditional Chinese red envelope money” consisting of
$25,000 in cash. Dong used this money to open the account with Vanguard. Since
Vanguard did not accept cash, she first had to deposit it into the Washington Mutual
account (account No. 4077-7) and then write a check to Vanguard. In support of her
testimony, Dong introduced the following documents: (1) the birthday card from her
father, in which he had written “Dear Diana, Happy Birthday to my Daughter it is for
your gift $25,000 Y.S. Dong Feb/2004”; (2) a copy of the $25,000 check she wrote to
Vanguard dated February 11, 2004; and (3) statements for an account with Vanguard in
Dong’s name only dated from February 17, 2004 to September 30, 2009.
The Washington Mutual account statements, however, do not reflect a lump-sum
deposit of $25,000 in February 2004. Rather, Dong testified that the $25,000 was
deposited in two tranches--the first deposit was on January 16, 2004, in the amount of
$5,019.53 and the second deposit was made on February 11, 2004, in the amount of

15
$20,351.91. It is undisputed that Dong’s salary from Winnov LP was also routinely
deposited into this Washington Mutual account.
Dong’s testimony and documents were insufficient to trace her deposit of the
$25,000 cash gift into the Washington Mutual account in February 2004 before writing
the $25,000 check to Vanguard. Her testimony that she received this cash in February,
yet was somehow able to deposit $5,019.53 of that $25,000 in January, is not credible on
its face. The trial court was justified in disbelieving her testimony regarding the means
by which she opened the Vanguard account in the first place. All that could be
established was that she received $25,000 from her father, and subsequently wrote a
$25,000 check to Vanguard on the joint Washington Mutual account. She may have
deposited some or perhaps all of her birthday money into that account, but her testimony
regarding the deposits was insufficient to support her claim that the Vanguard account
was opened with her separate property.
Consequently, we conclude substantial evidence supports the trial court’s finding
that the Vanguard account was acquired with community property.
4. The 2004 Saab
Regarding the 2004 Saab, the statement of decision provides: “The court finds all
automobiles were acquired during marriage and are presumptively community property.
Attempts to prove separate property interest in the vehicles lacked persuasive evidentiary
support.” The 2004 Saab was assigned a net community value of $11,000 and awarded
to Garbe.
At trial, Dong testified that the Saab was purchased using a $40,000 gift from her
father, and no loan was taken out to finance the vehicle. The gift from her father was in
the form of a gift card, which she used to open a second account at Washington Mutual
and pay the balance on the Saab. Specifically, she stated “My recollection is my father
gave me $40,000 so I first wrote a check of 10,000 and then subsequently I paid off the
car by different installments, from this account. But I don’t remember the details.”

16
According to her testimony, her father wrote on the gift card, “Dear Diana, This is
$40,000 for you to buy new car.” She said Garbe’s name was not mentioned.
In support of her testimony, she introduced two checks, both written on August 7,
2004 and made out to “B&B Saab.” One check for $10,000 was written on the joint
Washington Mutual account and the second, for $31,641.52, was written on a different
Washington Mutual account, ending in 8888.
When Dong was asked why Garbe’s name was the only name on the title to the
Saab, she responded that it was because he went to the Department of Motor Vehicles by
himself to handle the registration while she stayed home with their two young children.
As discussed above, property acquired during marriage is presumptively
community property. (§ 760.) Although Dong testified that she used a $40,000 gift card
from her father to purchase the vehicle, the trial court obviously disbelieved her
testimony. There was documentary evidence of payments for the car, but no
documentary evidence to show $40,000 in income to Dong, from her father or from any
other source outside the community. Dong suggests that the trial court erred because
“there was no alternative rational explanation of a source for the $40,000 that went into
the Saab,” but her argument ignores the fact it was her burden to overcome the
community property presumption. Her unsupported oral testimony of a windfall $40,000
gift card being used to purchase the Saab was insufficient to meet that burden.
5. The $100,000 wedding gift
The statement of decision awarded a $100,000 note from Garbe’s mother to him as
his separate property, finding “[Dong] conceded the note is the source of the loan to
Winnov LP and her concession is sufficient tracing. Furthermore, the document
establishes it was a note unrelated to [stepfather]’s note and was from [Garbe]’s mother
indicating a gift to [Garbe] only, referring to [‘]you[’] singular and not [‘]you[’] plural.
The court finds [Garbe]’s testimony on this issue to be credible.”

17
 The evidence presented at trial was undisputed. At the time of their marriage,
Dong and Garbe received an envelope, addressed to both of them, from Garbe’s mother
and his stepfather. Inside was a note from Garbe’s mother, written predominantly in
French, which read “Bon jour 100,000$ pour ton marriage. With love.” The note from
Garbe’s stepfather read, “Welcome! Welcome! Many trully [sic] ‘congratulations’! This
is only my written promise of what is to be your gift. Much love, Sean XX.” The
$100,000 gift was subsequently loaned to Winnov LP, with a promissory note showing
Garbe as the lender.
Dong testified that the gift was for both her and Garbe. As Winnov LP needed
money at the time, they discussed the matter and jointly agreed to loan the $100,000 to
the company.
Garbe, via an offer of proof, testified “that the one hundred thousand dollars
referred to in the note from his mother was a wedding gift to him, [‘]ton,[’] singular,
which was part of a loan that is now between the corporation and him.” A previous offer
of proof explained that “in French . . . , there is a distinction between [‘]you[’] plural and
[‘]you[’] singular. When you say [‘]you[’] singular, [‘]you[’] is [‘]ton,[’] and when you
use plural, it’s [‘]votre.[’]”
Given the testimony and evidence presented, there was substantial evidence to
support the trial court’s conclusion that the $100,000 gift from Garbe’s mother was
Garbe’s separate property. (See § 770, subd. (a)(2) [property acquired after marriage by
gift is separate property].) Her note stated it was “pour ton,” rather than “pour votre,”
which indicated her intent that the money was for him alone (singular), rather than for
him and Dong (plural). Given that the only other evidence of Garbe’s mother’s intent
was Dong’s self-serving testimony that the money was intended for both of them, the trial
court was justified in finding that the writing itself was more reliable.

18
 6. The Shanghai apartment
As to the Shanghai property, the trial court found “there is substantial evidence to
support the conclusion the Shanghai apartment was acquired prior to marriage by [Dong]
and is confirmed as her separate property.” In his cross-appeal, Garbe challenges this
conclusion.
Dong testified that, in April or May 1997, her mother purchased an apartment in
Shanghai, putting title in both their names. After her mother bought the property, Dong
saw a deed with both their names on it, but she never obtained a copy of that deed.
Following her mother’s death, her mother’s interest in the property passed to her father,
but he subsequently gifted his interest to Dong, giving her 100 percent ownership of the
apartment. Dong estimated the apartment was worth between $100,000 and $150,000 at
the time of trial.
Garbe argues the trial court’s finding the apartment was Dong’s separate property
is not supported by substantial evidence. He asserts that the trial court “found that the
apartment was acquired during marriage,” (italics added) and thus is presumed to be
community property. The evidence to overcome the presumption that the apartment was
community property was in Dong’s control, yet she failed to produce any documentation
to support her separate property claim.
The statement of decision, however, does not, as Garbe claims, find the Shanghai
apartment was acquired during marriage. Rather, it expressly states the property “was
acquired prior to marriage.” (Italics added.) Consequently, there is no presumption that
the property is community; rather, the presumption is that the apartment is separate
property under section 770, subdivision (a)(1). The cases cited by Garbe to support his
claim that Dong failed to meet her burden of proof to overcome the community property
presumption are thus inapposite.
The trial court was justified in crediting Dong’s testimony on this matter, without
regard to however incredible it found her testimony on other subjects. There was

19
substantial evidence to support the trial court’s finding that the apartment in Shanghai
was Dong’s separate property.
III. DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

20