Marriage of Zhang and Zheng CA4/1

Filed 6/22/15 Marriage of Zhang and Zheng CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of JIANYI ZHANG and
LUO ZHENG.
D067441
JIANYI ZHANG,

Respondent, (Super. Ct. No. FAMRS1101550)

v.

LUO ZHENG,

Appellant.

APPEAL from an order of the Superior Court of San Bernardino County, Michael

Knish, Judge. Affirmed.

Law Offices of Ricky W. Poon and Ricky W. Poon for Appellant.

Law Offices of C. Stephanie Chen and Chaoyi Stephanie Chen for Respondent.

Luo Zheng (Luo)1 appeals a family court's spousal support order following its

grant of Jianyi Zhang's (Zhang) petition for nullity of marriage. Luo contends the family

1 Following appellant's practice in her brief, we refer to her by her first name to
avoid confusion.
court erred by: (1) failing to award her spousal support under the criteria set forth in

Family Code2 section 4320; (2) "disregarding" the parties' stipulation that Luo be

regarded as a putative spouse; (3) failing to rule the disputed residence in Chino Hills,

California (Chino Hills property) was Zhang's gift to Luo; (4) failing to apply proper

tracing rules to determine the source of funds used to purchase the Chino Hills property;

and (5) finding Zhang was entitled to reimbursement under section 2640, in light of

Zhang's act of bigamy. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2011, Zhang filed a petition for nullity of marriage based on bigamy. He

and Luo were married on December 29, 2010. The parties stipulated that they separated

less than two months later, on February 17, 2011. In the petition, Zhang represented that

the couple had no children. Zhang claimed the Chino Hills property and other property

as his separate property. Luo also filed for nullity of marriage, claiming the Chino Hills

property as her separate property. Both parties testified at the hearing through

interpreters.

Zhang testified that in 1997, Luo started working as his secretary when he was

general manager of a company in Shanghai, China. He claimed that when he started

dating Luo in approximately 1998, she knew he was married to Wu Lei, with whom he

remained married at the time of the hearing on this matter. He testified that in 2009, he

purchased the Chino Hills property for $401,000 with funds he had borrowed from a

2 All statutory references are to the Family Code unless otherwise stated.
2
friend. Zhang claimed he and seven individuals he enlisted in China wired approximately

$49,980 each to Luo's bank account in the United States. Zhang explained: "Because

according to the foreign exchange control regulations of China, a Chinese citizen is

allowed only to remit to a foreign country one year, $50,000 U.S. dollars in total. That is

why all these people were found for that purpose. Of course I, myself, was included."

Zhang executed a power of attorney authorizing Luo to buy the Chino Hills property on

his behalf. The escrow company's "Buyer's Final Settlement Statement" records Zhang

as buyer of the Chino Hills property. A title deed introduced into evidence shows Zhang

obtained title to it as a single man on August 19, 2009.

Zhang testified that since Luo immigrated to the United States in March or April

2008, he gave her $1,000 monthly for her living expenses. On December 29, 2010, he

and Luo got married in Las Vegas, Nevada. On January 12, 2011, Zhang quitclaimed the

Chino Hills property to Zhang and Luo as joint tenants. Zhang filed in the family court

an income and expense declaration representing that his monthly income was 3,500

Renminbis (RMB), the Chinese currency. The parties stipulated that as of March 10,

2013, the Chino Hills property was appraised at $370,000.

Luo testified that since 1997, she and Zhang were "involved in a girlfriend-

boyfriend relationship. And he started giving me money." She stated Zhang supported

her with approximately $1,500 monthly for 13 years. When she moved to the United

States in 2008, she opened her separate bank account here. She testified that on her

return visit to Shanghai in October 2008, Zhang promised to marry her and buy her a

house in California as a marital gift. She explained: "Therefore, to show his sincerity,

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[Zhang] deposit [sic] $50,000 to my personal account . . . and I told him to give the rest

of the $350,000 to my father." She added, "First of all, my dad would be a witness to

testify that [Zhang] had given me the money as a gift. It is a free gift and voluntarily [sic]

gift. Number two, my dad could find seven individuals to wire the money to my

account." Luo claimed she paid $396,606 for the Chino Hills property with funds from

her separate bank account.

Luo testified she initially planned to buy the Chino Hills property in her own

name but Zhang opposed, saying that since they were getting married, he wanted his

name on the deed: "[H]e was not sure I was going to marry him or not. And now he's

given me the money, the house. And I may not marry him. So he was not feeling

comfortable doing so. So he decided to have all the documents sent to Shanghai . . . so

he could sign his name on the documents."

In support of her argument the Chino Hills property was a gift to her, Luo relies on

emails Zhang sent to her referring to it as the "bridal home" and "our house," and

declaring himself "ready to welcome my bride." Luo testified she was currently

conducting "internet business," and earning between one and two thousand dollars

monthly.

In its July 2013 ruling, the court entered a judgment of nullity on the ground

Zhang was engaged in a bigamous marriage, and terminated jurisdiction to order spousal

support. It acknowledged the parties had stipulated to accord Luo putative spouse status:

"Initially, the litigation focused on [Luo's] knowledge of the bigamy and thus her

potential status as a putative spouse. However, at trial, counsel stipulated that [Luo]

4
should have putative spouse status." The court continued: "A putative spouse is entitled

to spousal support in a nullity case, pursuant to [] section 2254. . . . In spite of the

stipulation, it is appropriate to consider the facts underlying [Luo's] situation in this case,

in addition to the [section] 4320 permanent support factors, to determine the

appropriateness of such an award."3

In analyzing the section 4320 factors, the court declined to award spousal support

to either party, ruling: "[] Section 4320 does not help [Luo]. While it is true that Zhang

may make a much greater income than [Luo], and have many more assets than she does,

the fact remains that this marriage was of [two] months or less in duration. Mr. Zhang

did financially support [Luo] for years; however, this was done voluntarily and under no

promise or legal obligation. When [Zhang] decided to end the relationship, he ended the

support, although [Luo] did continue to live rent-free in the Chino Hills home. [Luo] had

already planned to move to the United States and has worked for many years and

3 The court explained its view regarding Luo's knowledge Zhang was married to
Wu Lei: "The court is sympathetic to [Luo's] situation. These parties had engaged in a
13[-plus-]year relationship, and Mr. Zhang no doubt did assure [Luo] that he would
divorce his wife in China and marry her. . . . However, when [Luo] married another
person knowing that that other person was married to someone else, she assumed the risk
that her marriage to that other person would be annulled and she would receive nothing.
It would be far different if she had no idea of [Zhang's] other marriage, but such is not the
case here. [¶] The situation would also be different if [Zhang] promised to marry [Luo]
while secretly intending not to do so. However, the evidence in this case indicates that
Mr. Zhang was planning to divorce [Wu Lei] and marry [Luo], but backed out when
[Luo] failed to end her relationship with [another man]. [¶] Therefore the court is
reluctant, even before considering the [section] 4320 factors, to award spousal support to
someone who knowingly entered into a bigamous marriage."

5
therefore has the skills to support herself. [¶] [Luo] did testify to health problems related

to this case, and she stated that the health issues, anxiety, and depression make her unable

to support herself. However, while sympathetic, the court simply can find no legal basis

to require [Zhang] to continue to support her over two years after separation, with only 60

or less days of marriage prior to that separation, especially in light of her knowledge of

the situation she was getting into."

The court's ruling on the division of the community property acknowledged the

stipulation: "Both parties agree that, based on [Luo's] putative spouse status, [she] may

be entitled to the same share of any community property as if the marriage were valid."

The court explained: "The issue of the . . . home in Chino Hills was the driving force

behind this litigation. [Zhang] transferred funds from China to [Luo's] American bank

account and gave [Luo] power of attorney to allow her to purchase this home in 2009

prior to their wedding. The home was originally in [Zhang's] name as a single man. In

January 2011, after the wedding, the home was placed in both parties' names as husband

and wife, joint tenants. [Luo] has resided in the home since separation."

The court outlined the parties' opposing views regarding the ownership of the

Chino Hills property: "[Luo] attempted to rebut the presumption [that the Chino Hills

property was Zhang's separate property based on his originally holding title to it as a

single man] by arguing that the home was meant as a gift to her from the very beginning.

She testified that she contributed the deposit out of her own money and that all of the

$396,600 used to close the deal was money sent by Mr. Zhang to her bank account as a

gift to be used to purchase her home. Mr. Zhang had no power of attorney over her funds

6
or her bank account, and therefore the money was hers to use as she saw fit. She also

stated that [Zhang] wanted the home as their bridal house and bought it solely for her

because she was marrying him. She had originally intended to put the home in her name

only, but Mr. Zhang insisted on ownership because he was unsure she would marry him.

She agreed to put it in his name because she trusted him. [¶] [Zhang] stated that he

bought the home as an investment, as American real estate was in a slump and he felt he

could get a good deal. The monies for the home were all paid out of his funds, and he

only used [Luo] as an agent because she was actually in the United States and had told

him that the escrow company insisted that he give her authority to consummate the

transaction. He gave her power of attorney to buy the house for him."

The court made its credibility determination: "The court suspects that the truth

lies somewhere in the middle of these positions. It is doubtful that [Zhang] bought this

house only as an investment. Clearly, he wanted to marry [Luo] very much, and this

house would be a great place for them to share their lives together in California.

However, a gift can only be found when there is a clear transfer of property with an intent

to do so. In this case, there is no evidence that Mr. Zhang intended to give this home to

[Luo], and the title clearly indicates otherwise. The court finds that there is no proof that

[Luo] contributed anything to the purchase of the home other than money given to her by

[Zhang]. [¶] Consequently, there is no rebuttal to the title presumption at the time of the

original purchase, and the home was bought as [Zhang's] separate property."

The court next found "that the transmutation is valid and the Chino Hills residence

is quasi-marital property, the equity of which is to be divided equally, as with community

7
property." The court continued: "The problem for [Luo] comes when running the

numbers. The community is entitled to the difference between the value at time of the

transmutation [$368,000] and the time of separation or trial [$370,000]. Here, that

amount is $2,000, and thus [Luo] is entitled to $1,000. [¶] However, as [Zhang] argues,

under [] Section 2640, he is entitled to reimbursement of all separate property which he

contributed, up to the value at time of the quitclaim deed. Since he paid for the entire

home [over $400,000], out of his separate property, the community share must pay him

for his contributions. Obviously, the $1,000 due to [Luo] is eliminated by this

reimbursement."

The court denied Luo's claim she was entitled to reimbursement for remodeling

and improving the Chino Hills property. It also denied Zhang's claim for reimbursement

for the reasonable rental value of the home for the approximately two and a half years in

which Luo occupied it following their separation "[b]ecause [Zhang] is not a putative

spouse and because he entered into this marriage knowing he was already married to

another woman, the court chooses not to make this award." The court ordered Luo to

quitclaim the Chino Hills property to Zhang.

In ruling on Luo's attorney fees motion, the court relied on the parties' stipulation:

"[Luo] requested that [Zhang] pay $50,000 in her attorney fees. In considering this issue,

the court faces a dilemma: Under [] section 2255, the court may not award attorney's fees

to a party to a nullity, such as [Luo], who had knowledge of the other party's existing

marriage. On the other hand, the parties stipulated that she is a putative spouse. The

court concludes it would be unfair to apply [section] 2255 in opposition to a trial

8
stipulation, and therefore finds that she is eligible for an attorney's fees award under []

sections 2030-2032."

The court discussed the parties' respective incomes in the context of Luo's request

for attorney fees: "In applying the factors of [sections 2030 thru 2032], the court finds

difficulty in determining either party's income. Mr. Zhang claims a modest monthly

income from his job . . . but his lifestyle and some of the e[-]mail communications [such

as the one indicating he was in a million-dollar club in China], as well as the speculation

of [Luo], who worked with him in the company at one point, suggest that his income may

be much higher. [Luo] indicates no income, but she also testified that she does some

internet sales. Consequently the court does not really know what each party makes. [¶]

However, it is clear that [Zhang] makes significantly more than [Luo, who] does not have

the ability to pay her attorney[.]" The court ordered Zhang to pay Luo $15,000 in

attorney fees.

DISCUSSION

I.

Luo contends the family court erred by failing to evaluate all of the section 4320

factors. She specifically claims the court failed to consider "[t]he extent to which the

earning capacity of each party is sufficient to maintain the standard of living established

during the marriage" (§ 4320, subd. (a)); "[t]he 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"

9
(§ 4320, subd. (a)(2)); and the needs of each party based on the standard of living

established during the marriage. Luo adds, "The evidence at trial clearly showed that

[she] did not need to go to work because Zhang had provided support to [her] for about

$1,500 to $2,000 per month for about 13 years."

In ordering permanent spousal support, " 'the trial court must consider and weigh

all of the circumstances enumerated in [section 4320], to the extent they are relevant to

the case before it. [Citations.] The first of the enumerated circumstances, the marital

standard of living, is relevant as a reference point against which the other statutory

factors are to be weighed. [Citations.]' [Citation.] Other relevant statutory factors

include the supporting spouse's ability to pay; the needs of each party, based on the

marital standard of living; the duration of the marriage; the age and health of the parties;

the balance of hardships to the parties; and the goal that the supported party be self-

supporting within a reasonable period of time." (In re Marriage of Williamson (2014)

226 Cal.App.4th 1303, 1316.) After weighing all those factors, the court may "fix

spousal support at an amount greater than, equal to or less than what the supported spouse

may require to maintain the marital standard of living, in order to achieve a just and

reasonable result under the facts and circumstances of the case." (In re Marriage of

Smith (1990) 225 Cal.App.3d 469, 475.) "In balancing the applicable statutory factors,

the trial court has discretion to determine the appropriate weight to accord each." (In re

Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.)

Luo's contention that the trial court did not consider all of the section 4320 factors

is inconsistent with the general principle of appellate practice that we presume that a

10
judgment or order of a lower court is correct. " 'All intendments and presumptions are

indulged to support [the judgment] on matters as to which the record is silent, and error

must be affirmatively shown.' " (Denham v. Superior Court (1970) 2 Cal.3d 557, 564;

see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130 ["under [Code of Civil

Procedure] section 634, the party must state any objection to the statement in order to

avoid an implied finding on appeal in favor of the prevailing party. . . . [I]f a party does

not bring such deficiencies to the trial court's attention, that party waives the right to

claim on appeal that the statement was deficient . . . and hence the appellate court will

imply findings to support the judgment." (Arceneaux, supra, at pp. 1133-1134, fn.

omitted.) Luo is correct that the family court agreed to prepare a statement of decision;

therefore, Luo was not required to request one. However, Luo did not request

clarification of the statement of decision to address the concerns she now raises.

In any event, as noted, the trial court's order mentioned certain section 4320

factors. It first acknowledged Zhang earned more and had more assets than Luo,

although it candidly admitted it did not exactly know what either Zhang or Luo earned.

Nevertheless, the court emphasized section 4320, subdivision (f), dealing with the

duration of the marriage, and reiterated that "this marriage was of [two] months or less in

duration." " 'In short-term marriages the duration of the marriage, considered alone,

will usually militate against any but short-term spousal support with a fixed termination

date . . . .' [Citation.] 'True, the length of the marriage is only one factor to be considered

in making a support award. [Citation.] But it is a substantial one. It is indicative of the

11
very essence of the union.' " (Hebbring v. Hebbring (1989) 207 Cal.App.3d 1260, 1266

[applying section 4320's predecessor statute].)

Applying section 4320, subdivision (a)(1) regarding the "marketable skills of the

supported party," the court pointed out Luo had worked for many years and therefore had

the skills necessary to support herself. This conclusion is supported by Luo's testimony

regarding her internet business, which earned her between one and two thousand dollars

in monthly income. The court also emphasized section 4320, subdivision (n), referring to

any other factors it determines are "just and equitable." The court found no legal basis to

require Zhang to continue supporting Luo two years after separation, in part because she

had continued to live rent-free in the Chino Hills home. We conclude the family court's

finding on this point is consistent with the legislative policy that the supported spouse

should make a good faith effort to become self-supporting. (See section 4320, subd. (l)

[even in short-term marriages, a "reasonable period of time" within which to achieve the

goal of self-support "generally shall be one-half the length of the marriage"].)

To the extent Luo sought to bolster her claim for spousal support by conflating the

standard of living that Zhang helped her maintain in the 13 years before marriage with

the standard she enjoyed in the approximately 50 days of marriage, the court did not err

by ruling that any consideration of premarriage support was foreclosed under California

law. (See In re Marriage of Bukaty (1986) 180 Cal.App.3d 143, 149 [concluding that in

making a limited support award, the court properly refused to consider parties' lengthy

period of premarital cohabitation].)

12
 Finally, Luo contends the family court disregarded the parties' stipulation that Luo

would be accorded putative spouse status, and instead discussed in its final ruling that

Luo knew of Zhang's marriage. We agree that discussion was not necessary to the family

court's resolution of the case. "A stipulation is 'An agreement between opposing counsel

. . . ordinarily entered into for the purpose of avoiding delay, trouble, or expense in the

conduct of the action,' [citation] and serves 'to obviate need for proof or to narrow range

of litigable issues' [citation] in a legal proceeding." (County of Sacramento v. Workers'

Comp. Appeals Bd. (2000) 77 Cal.App.4th 1114, 1118.) However, we point out that on

one issue the trial court used the stipulation to benefit Luo, granting her attorney fees

when it otherwise would not have been available to her. Moreover, we deem the trial

court's statements regarding Luo's knowledge of Zhang's previous marriage to be

harmless error and we do not consider them on this appeal. Instead, we rely solely on the

other aspects of the court's decision that were sufficiently based on section 4320 factors.

We review the family court's ruling, not its reasoning. (In re Marriage of Burgess (1996)

13 Cal.4th 25, 32.)

II.

Luo contends the trial court committed reversible error by finding that the Chino

Hills property was Zhang's separate property, rather than his gift to her. She points to the

following factors purportedly showing Zhang's donative intent: "[T]he money used to

purchase the Chino Property was transferred to Luo's bank account prior to marriage . . . ;

2) Luo's bank account was an individual bank account and Zhang had no rights to access

or control said bank account . . . ; 3) Zhang orally told Luo that the money was a gift to

13
Luo in contemplation of marriage . . . ; 4) Zhang's written e-mails to Luo [were] also

evidence the money transferred to Luo was for her to purchase the Chino property and

such intention was clearly shown by Zhang's statements and acts such as: a) 'decorate the

bridal home;' b) 'it is our house;' c) a house 'similar to ours;' and d) Zhang's subsequent

act by transferring to Luo the title as Husband and Wife, Joint Tenancy."

We review the family court's factual findings for substantial evidence and they

"will be upheld 'as long as [the family court's] determination is within the range of the

evidence presented.' " (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.)

We do not reweigh the evidence or make determinations as to credibility. (Id. at pp. 204,

205.) "This court views the entire record in the light most favorable to the prevailing

party . . . . We must resolve all conflicts in the evidence and draw all reasonable

inferences in favor of the findings." (In re Marriage of Duffy (2001) 91 Cal.App.4th 923,

931.) Luo has failed to demonstrate how the family court erred other than criticizing the

court for not crediting her evidence. She thus has failed to carry her burden to show

error, given the substantial evidence standard of review we are bound to apply.

The family court rejected Luo's testimony that Zhang gave her the house as a gift,

concluding no evidence supported that conclusion. Rather, it believed Zhang's testimony

he paid for the Chino Hills property out of his funds, and only gave Luo the power of

attorney to use those funds to buy the house for him. Further, Zhang gained title to the

property as his separate property, thus he was entitled to the statutory presumption it was

his separate property. We do not reweigh the evidence, but are satisfied substantial

evidence, in the form of Zhang's testimony and the title deed, support the court's finding.

14
 As stated in Evidence Code section 662: "The owner of the legal title to property

is presumed to be the owner of the full beneficial title. This presumption may be rebutted

only by clear and convincing proof." Evidence Code section 662 codifies the common

law " 'form of title' " presumption under which "the description in a deed as to how title is

held is presumed to reflect the actual ownership interests in the property." (In re

Marriage of Brooks (2008) 169 Cal.App.4th 176, 184-185, disapproved on other grounds

in In re Marriage of Valli (2014) 58 Cal.4th 1396, 1495; see In re Marriage of Haines

(1995) 33 Cal.App.4th 277, 292 [summarizing history of Evidence Code section 662].)

On appeal, we review the trial court's determination that the Evidence Code section 662

presumption was rebutted for substantial evidence. (In re Marriage of Ruelas (2007) 154

Cal.App.4th 339, 345.)

We reach the same conclusion on Luo's contention the court erred by ignoring

tracing rules regarding the source of funds used to buy the Chino Hills property. Citing

no authority, she contends: "Zhang's transfer of the Chino Property to both Luo and

Zhang as joint tenants demonstrates that the Property was actually a gift to Luo. . . . It is

worth noting that [her] name as on as a joint tenant [on the title deed] does not diminish

the inference that the parties intended the Chino property to be [her] separate property."

Luo repeats her claim that Zhang gave her a gift by transferring the funds to buy the

Chino Hills property to her bank account through several wire transfers. But the family

court rejected that claim, finding no evidence Zhang intended to give Luo a gift. The

record supports that conclusion.

15
 Luo provides us no basis in the record or in law for her claim that "Zhang's

transfer of the Chino Property to both Luo and Zhang as joint tenants demonstrates that"

the parties "intended the Chino property to be [her] separate property." We therefore

reject the contention.

III.

Luo contends the trial court erred by finding Zhang was entitled to reimbursement

under section 2640: "[T]here is no California case law or statutory authority to suggest

that [] section 2640's reimbursement would apply to Zhang in a nullity of marriage as a

result of Zhang's bigamy. [¶] In fact, it is against California's public policy to protect the

interest of a foreign citizen who has committed bigamy over a citizen of its own state.

Moreover, Zhang clearly has unclean hands but seeks the protection of [] section 2640 for

reimbursement of all money from his putative spouse, Luo." Luo adds, "Under a

[section] 2640 reimbursement analysis, [she] never agreed in writing to waive her claim

to the title of the property. The evidence shows that [she] paid for the entire purchase

price from her separate bank account before marriage and as a putative spouse, [she] is

entitled to the full reimbursement under [] section 2640."

To the extent Luo now contends section 2640 is inapplicable to this case, the

contention is forfeited under the doctrine of invited error. In Luo's trial brief, she argued,

she was entitled to "the ownership interest of all community or quasi-community

property pursuant to . . . section 2640." She elaborated: "Based upon the clear statutory

language of [ ] section 2640, the Court will clearly see that there are triable issues of

material fact relating to the Chino Hills Property. These triable issues will be related to

16
the source and character of money used to purchase the Chino Hills property; whether

money wired by [Zhang] to [Luo] is a 'gift' and became [Luo's] separate property;

whether the source and character of money used for the maintenance of the Chino Hills

property after its purchase (property tax, maintenance, household expenses, etc.) came

from [Luo] or [Zhang's] separate property; whether [Luo] is entitled to one[-]half the

Chino Hills Property because of [Zhang's] quitclaim to [Luo] as a 'Joint Tenancy';

whether [Zhang] did make a contribution to the Chino Hills Property; and whether [Luo]

is entitled to the Chino Hills property under the putative spouse doctrine." Luo's counsel

made the same arguments in closing arguments at the hearing. (See Norgart v. Upjohn

Co. (1999) 21 Cal.4th 383, 403 [doctrine of invited error rests on the principle that

" '[w]here a party by his conduct induces the commission of error, he is estopped from

asserting it as a ground for reversal' on appeal"].)

In any event, the court did not err by relying on section 2640 to trace the parties'

contributions to acquisition of the Chino Hills property, which it deemed as quasi-marital

property: "Both parties agree that, based on [Luo's] putative spouse status, [she] may be

entitled to the same share of any community property as if the marriage were valid."

Section 2640, subdivision (b) provides: "In the division of the community estate

under this division, unless a party has made a written waiver of the right to

reimbursement . . . , the party shall be reimbursed for the party's contributions to the

acquisition of the property of the community property estate to the extent the party traces

the contributions to a separate property source." "The amount of reimbursement

recoverable is the value of the separate property contributions at the time they were

17
made." (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1057.) "Commingling

of separate and community property does not alter the status of the separate property

interest so long as it can be traced to its separate property source." (Ibid.) "Whether the

spouse claiming a separate property interest has adequately met his or her burden of

tracing to a separate property source is a question of fact and the trial court's holding on

the matter must be upheld if supported by substantial evidence." (Id. at pp. 1057-1058.)

"Apparently, the Legislature concluded it was fairer to the contributing spouse to

permit reimbursement for separate property contributions upon dissolution of the

marriage. [Citation.] Thus, under section [2640], 'the tables are turned so that the

separate property interest is now preserved unless the right to reimbursement is waived in

writing.' " (In re Marriage of Perkal (1988) 203 Cal.App.3d 1198, 1201-1202 (Perkal )

[discussing predecessor statute to Family Code section 2640, former Civil Code section

4800.2].) To establish a waiver of the right of reimbursement, a spouse must demonstrate

that the other spouse actually intended to relinquish the right to reimbursement or acted

" 'so inconsistent with the intent to enforce th[e] right in question as to induce a

reasonable belief that it has been relinquished.' " (Perkal, supra, 203 Cal.App.3d at p.

1203.)

Quasi-marital property is "property acquired during the union which would have

been community property or quasi-community property if the union had not been void or

voidable." (§ 2251, subd. (a)(2); see Estate of Leslie (1984) 37 Cal.3d 186, 191, fn. 5;

Estate of Hafner (1986) 184 Cal.App.3d 1371, 1384, fn. 12.) "The theory of 'quasi-

marital property' equates property rights acquired during a putative marriage with

18
community property rights acquired during a legal marriage." (Estate of Vargas (1974)

36 Cal.App.3d 714, 717.)

Upon declaration of putative spouse status, the court is required to divide the

quasi-marital property as if it were community property. (§ 2251, subd. (a)(2); Marvin v.

Marvin (1976) 18 Cal.3d 660, 678, fn. 13.) Thus, "the share to which the putative spouse

is entitled is the same share of the quasi-marital property as the spouse would receive as

an actual and legal spouse if there had been a valid marriage, i.e., it shall be divided

equally between the parties." (Estate of Hafner, supra, 184 Cal.App.3d at p. 1384; see

§ 2550.)

Here, the court concluded Luo was a putative spouse and it complied with the

statutory requirements of treating the Chino Hills property as community property. There

is no evidence in the record that Zhang waived his right to reimbursement of his separate

property used to buy the Chino Hills property.

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 DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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