Marriage of G.C. and R.W.

Filed 5/9/18
CERTIFIED FOR PARTIAL PUBLICATION*

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of G.C. and R.W.
D073119
G.C.,

Respondent, (Super. Ct. No. IND1201870)

v.

R.W.,

Appellant.

APPEAL from a judgment of the Superior Court of Riverside County,

Mickie E. Reed, Temporary Judge. (Pursuant to Cal. Const., art VI, § 21.) Affirmed in

part; reversed in part; remanded with directions.

La Quinta Law Group and Timothy L. Ewanyshyn for Appellant.

Lewis Brisbois Bisgaard & Smith and Lann G. McIntyre for Respondent.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for
publication with the exception of parts III.C–F.
 I.

INTRODUCTION

R.W. appeals from a judgment of dissolution of his marriage with his former

husband, respondent, G.C.1 R.W. raises numerous claims on appeal, two of which we

address in published portions of this opinion. First, R.W. claims that the trial court erred

in determining that the parties' date of union was in 2009 when the parties married, rather

than in 2004, when they entered into a domestic partnership under New Jersey law. R.W.

contends that the parties' New Jersey domestic partnership is "substantially equivalent"

(Fam. Code, § 299.2)2 to a California domestic partnership such that it could be

dissolved pursuant to section 299, and thus, that the court should have considered the date

of the parties' domestic partnership to be the date of union for purposes of the dissolution.

After interpreting the meaning of "substantially equivalent" in section 299.2 as a matter

of first impression, we conclude that in light of the limited nature of the rights and

obligations that the parties obtained in entering into a domestic partnership under New

Jersey law, the trial court properly determined that the parties' 2004 New Jersey domestic

partnership was not "substantially equivalent" to a California domestic partnership under

section 299.2 so as to permit its dissolution under California law. We therefore conclude

that the trial court properly determined that the parties' date of union was in 2009.

1 We refer to the parties by their initials, in order to attempt to provide them with
some degree of privacy with respect to personal medical information that is discussed in
this opinion.
2 Unless otherwise specified, all subsequent statutory references are to the Family
Code.
2
 R.W. also claims that the trial court erred in failing to divide equally the

appreciation of the value of certain real property that the parties acquired as joint tenants

during their marriage, as a community asset. Specifically, R.W. contends that the trial

court erred in applying a formula for apportioning separate and community property

interests in the value of the appreciation because the joint title community property

presumption contained in section 2581 applied to the property, and the appreciation

therefore belonged entirely to the community. We agree with R.W. and conclude that the

trial court erred in failing to divide the appreciation in value of the marital residence

equally.

We reject the remainder of R.W.'s claims in unpublished portions of the opinion.

Accordingly, we reverse the judgment and remand the matter to the trial court with

directions to divide the appreciation in value of the marital residence equally as a

community asset. In all other respects, we affirm.

II.

FACTUAL AND PROCEDURAL BACKGROUND

R.W. and G.C. purchased a home together in New Jersey in 2002. In 2004, the

couple entered into a New Jersey domestic partnership. They moved from New Jersey to

New York in 2006 and married in Connecticut in 2009.

R.W. and G.C. purchased a home in California (the "marital residence") in 2011

and moved to California that same year. G.C. filed a form petition for dissolution of

marriage the following year.

3
 After conducting a court trial on the petition, the trial court issued a statement of

decision and entered a judgment incorporating that statement. Among other issues, the

court determined that the parties' date of marriage was February 6, 2009, the date G.C.

and R.W. married in Connecticut. The court also concluded that the parties had separate

property interests in the appreciation in the value of the marital residence, in amounts

proportional to their separate property contributions to the down payment.3 The court

declined to award R.W. any permanent spousal support or to order that G.C. pay any of

R.W.'s attorney fees.4

R.W. appealed from the judgment. While R.W.'s appeal was pending, the trial

court issued an amended judgment that incorporated a revised statement of decision.

R.W. subsequently filed a second notice of appeal from the amended judgment.

III.

DISCUSSION

A. The trial court properly determined the parties' date of marriage to be in 2009
because their 2004 New Jersey domestic partnership was not "substantially
equivalent" to a California domestic partnership under section 299.2 so as to permit
its dissolution under section 299

R.W. claims that the trial court erred in determining that the parties' date of

marriage was February 6, 2009, the date that he and G.C. married in Connecticut. He

3 The court found that G.C. had a separate property interest in the appreciation in
the amount of $32,745 and that R.W. had a separate property interest in the appreciation
in the amount of $6,705.88.
4 The court noted that G.C. had paid R.W. temporary spousal support during the
pendency of the litigation, and that G.C. had paid $10,000 for R.W.'s attorney fees
pursuant to a prior court order.
4
argues that the court should have instead concluded that the operative date of union was

August 10, 2004, the date on which he and G.C. entered into a domestic partnership

under New Jersey law.

R.W. contends that the parties' New Jersey domestic partnership is "substantially

equivalent" (§ 299.2) to a California domestic partnership, and that the trial court

therefore erred in concluding that the 2004 New Jersey domestic partnership was not a

valid domestic partnership that could be dissolved under California law. R.W.'s claim

turns on the proper interpretation of section 299.2, an issue that we review de novo. (See

In re Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th 196, 201

[statutory interpretation claims are reviewed de novo].)

1. Governing law

a. The relevant statutes

Section 297 permits two persons "of the same sex,"5 to enter a domestic

partnership by filing a declaration with the Secretary of State establishing their

partnership.6

5 Although not relevant here, section 297 also authorizes two persons "over 62 years
of age," who are of "opposite sexes," to enter a domestic partnership under certain
circumstances. (§ 297, subd. (b)(4)(B).)
6 Section 297 provides in relevant part:
"(a) Domestic partners are two adults who have chosen to share one
another's lives in an intimate and committed relationship of mutual
caring.
"(b) A domestic partnership shall be established in California when
both persons file a Declaration of Domestic Partnership with the
Secretary of State pursuant to this division, and, at the time of filing,
all of the following requirements are met:
5
 Section 297.5, subdivision (a) provides that domestic partners shall have the same

rights and obligations as spouses:

"(a) Registered domestic partners shall have the same rights,
protections, and benefits, and shall be subject to the same
responsibilities, obligations, and duties under law, whether they
derive from statutes, administrative regulations, court rules,
government policies, common law, or any other provisions or
sources of law, as are granted to and imposed upon spouses."

Section 299, subdivision (d) governs the dissolution of a domestic partnership and

provides in relevant part:

"(d) The superior courts shall have jurisdiction over all proceedings
relating to the dissolution of domestic partnerships . . . . The
dissolution of a domestic partnership . . . shall follow the same
procedures, and the partners shall possess the same rights,
protections, and benefits, and be subject to the same responsibilities,
obligations, and duties, as apply to the dissolution of marriage . . . ."

Section 299.2 describes the extent to which California law recognizes nonmarital

same-sex unions formed in other jurisdictions:

"A legal union of two persons of the same sex, other than a
marriage, that was validly formed in another jurisdiction, and that is
substantially equivalent to a domestic partnership as defined in this

"(1) Neither person is married to someone else or is a member of
another domestic partnership with someone else that has not been
terminated, dissolved, or adjudged a nullity.
"(2) The two persons are not related by blood in a way that
would prevent them from being married to each other in this
state.
"(3) Both persons are at least 18 years of age . . . .
"(4) Either of the following:
"(A) Both persons are members of the same sex.
"[¶] . . . [¶]
"(5) Both persons are capable of consenting to the domestic
partnership."
6
 part, shall be recognized as a valid domestic partnership in this state
regardless of whether it bears the name domestic partnership."

Sections 297, 297.5, 299, and 299.2 were enacted in 2003 as part of The California

Domestic Partner Rights and Responsibilities Act (the Act). (Stats. 2003, ch. 421.)7 The

Act, which was adopted in 2003, and took effect January 1, 2005, "extend[ed] the rights

and duties of marriage to persons registered as domestic partners on and after January 1,

2005." (Legis. Counsel's Dig., Assem. Bill No. 205 (2003–2004 reg. sess.) Stats. 2003,

ch. 421.)

The Act also enacted section 299.3. Section 299.3 required the Secretary of State

to mail a notice to previously registered domestic partners to inform them that California

law related to the rights and responsibilities with respect to registered domestic partners

was changing in material ways as a result of the adoption of the Act. The letter informed

registered partners that they would be subject to the changed law unless they terminated

their domestic partnership prior to January 1, 2005.8

7 Section 297 was initially adopted in 1999 (Stats. 1999, ch. 588, § 2), and was
amended as part of the Act. (Stats. 2003, ch. 421, § 3.) The Act repealed a prior version
of section 299, and added current section 299, as well as section 297.5, section 299.2, and
section 299.3 (discussed below). (Stats. 2003, ch. 421, §§ 4, 8–10.)
8 The notice referred to in section 299.3 provides in relevant part:
" 'Dear Registered Domestic Partner:
" 'This letter is being sent to all persons who have registered with the
Secretary of State as a domestic partner.
" 'Effective January 1, 2005, California's law related to the rights and
responsibilities of registered domestic partners will change (or, if
you are receiving this letter after that date, the law has changed, as of
January 1, 2005). With this new legislation, for purposes of
7
 b. Principles of statutory interpretation

In Acqua Vista Homeowners Assn. v. MWI, Inc. (2017) 7 Cal.App.5th 1129, 1140

(Acqua Vista), this court restated the following well-established rules of statutory

interpretation:

" ' " 'In construing any statute, "[w]ell-established rules of statutory
construction require us to ascertain the intent of the enacting
legislative body so that we may adopt the construction that best
effectuates the purpose of the law." [Citation.] "We first examine
the words themselves because the statutory language is generally the
most reliable indicator of legislative intent. [Citation.] The words of
the statute should be given their ordinary and usual meaning and
should be construed in their statutory context." [Citation.] If the
statutory language is unambiguous, "we presume the Legislature

California law, domestic partners will have a great many new rights
and responsibilities, including laws governing community property,
those governing property transfer, those regarding duties of mutual
financial support and mutual responsibilities for certain debts to third
parties, and many others. The way domestic partnerships are
terminated is also changing. After January 1, 2005, under certain
circumstances, it will be necessary to participate in a dissolution
proceeding in court to end a domestic partnership.
" 'Domestic partners who do not wish to be subject to these new
rights and responsibilities MUST terminate their domestic
partnership before January 1, 2005. Under the law in effect until
January 1, 2005, your domestic partnership is automatically
terminated if you or your partner marry or die while you are
registered as domestic partners. It is also terminated if you send to
your partner or your partner sends to you, by certified mail, a notice
terminating the domestic partnership, or if you and your partner no
longer share a common residence. In all cases, you are required to
file a Notice of Termination of Domestic Partnership.

" 'If you do not terminate your domestic partnership before January
1, 2005, as provided above, you will be subject to these new rights
and responsibilities and, under certain circumstances, you will only
be able to terminate your domestic partnership, other than as a result
of your domestic partner's death, by the filing of a court action.' "
8
 meant what it said, and the plain meaning of the statute governs."
[Citation.]' [Citation.]

" ' " 'If, however, the statutory language is ambiguous or reasonably
susceptible to more than one interpretation, we will "examine the
context in which the language appears, adopting the construction
that best harmonizes the statute internally and with related statutes,"
and we can " ' "look to a variety of extrinsic aids, including the
ostensible objects to be achieved, the evils to be remedied, the
legislative history, public policy, contemporaneous administrative
construction, and the statutory scheme of which the statute is a
part." ' " [Citation.]' [Citation.]

" ' " ' "We must select the construction that comports most closely
with the apparent intent of the Legislature, with a view to promoting
rather than defeating the general purpose of the statute, and avoid an
interpretation that would lead to absurd consequences." ' " ' "

2. Factual and procedural background

a. The parties' pretrial pleadings

G.C. filed a form petition for dissolution of marriage. In his petition, G.C.

indicated that the parties had entered into a domestic partnership in 2004 and a marriage

in 2009. G.C. checked a box next to the statement, "Our domestic partnership or

marriage to a person of the same sex was established in a place other than California and

a dissolution is requested." G.C. also checked a box on the form indicating that he was

requesting dissolution of the marriage.9

In August 2013, R.W. filed a form response in which he indicated that he sought

dissolution of a 2004 domestic partnership and a 2009 marriage.

9 The form contains the words, "Petitioner requests," (boldface omitted) a checked
box next to the words, "dissolution of the," an unchecked box next to the words,
"domestic partnership," and a checked box next to the word, "marriage."
9
 In July 2015, R.W. filed a request for order seeking to be granted permission to

file an amended response to indicate that the operative date of dissolution was in 2004,

rather than in 2009, as stated in the original response, and to provide a list of alleged

separate and community property. In his request, R.W. stated that he and G.C. had

entered into a registered domestic partnership in New Jersey in 2004. Citing section

299.2, R.W. contended that California recognized the legitimacy of domestic partnerships

entered into in other states. R.W. attached a copy of an August 2004 New Jersey

certificate of domestic partnership to his request.

G.C. filed an opposition to the request, and attached a supporting declaration. In

his declaration, G.C. stated in relevant part:

"[R.W.] and I signed an affidavit of New Jersey Domestic
Partnership with the City of Long Hill, NJ town clerk on August 10,
2004. Our primary reason for filing was to preserve our rights to act
upon each other's behalf during medical emergencies. Our
respective rights to employer-provided benefits were another strong
consideration. At the town clerk's office, we were given a copy of
the New Jersey Department of Health, Office of Vital Statistics and
Registry publication titled NOTICE OF RIGHTS AND
OBLIGATIONS OF DOMESTIC PARTNERS, attached hereto as
Exhibit A . . . .

" . . . At no time did I or [R.W.] consider this to be a marriage as that
option was available to us in August 2004 in the state of
Massachusetts (since May 2004). When we ultimately did decide to
get married in 2009 (five years after we elected domestic
partnership), we went to Connecticut to be married."

G.C. also stated in his declaration that R.W. failed to provide the court with any

evidence of New Jersey domestic partnership law that would permit the court to make the

10
determination whether a New Jersey domestic partnership is "substantially equivalent"

(§ 299.2) to a California domestic partnership. G.C. further stated:

"The New Jersey law of domestic partnerships did not offer a right
of entitlement to support, or property sharing, when the relationship
dissolved. There was no equivalent of alimony, or division of
marital assets, for domestic partners. New Jersey law did not
include a domestic partner in the intestate succession scheme. A
domestic partner was not entitled to an elective share of the other
partner's estate. The New Jersey law did not specifically amend the
state's tort laws to give domestic partners standing to sue for the
injury or death to the other."

G.C. attached as an exhibit to his declaration a document entitled "Notice of

Rights and Obligations of Domestic Partners" (the Notice of Rights) (formatting

omitted), issued by the New Jersey Department of Health. Under the heading,

"Terminating a Domestic Partnership," (boldface omitted) the Notice of Rights stated that

the Superior Court of New Jersey would have jurisdiction over all proceedings to

terminate a domestic partnership and that "[i]n all such proceedings, the court shall in no

event be required to effect an equitable distribution of property, either real or personal,

which was legally and beneficially acquired by both domestic partners or either domestic

partner during the domestic partnership." G.C. also attached the relevant New Jersey

statutes governing domestic partnerships.

The trial court granted R.W.'s request to file an amended response. In his

amended response, R.W. sought dissolution of the 2004 domestic partnership. R.W. left

unchecked a box next to the statement, "We are married."

R.W. filed a trial brief in which he indicated that "[t]he date of marriage is

disputed." R.W. quoted section 299.2 and contended that "the New Jersey Domestic

11
Partnership created on August 10, 2004, is the operative date of marriage." R.W. did not

present any argument or evidence in support of the contention that a New Jersey domestic

partnership should be deemed "substantially equivalent" to a California domestic

partnership under section 299.2.

R.W. subsequently filed a request for a statement of decision in which he

requested that the court determine the "[d]ate of marriage for purposes of dissolution."

b. The trial

During the trial, G.C. testified that the parties entered into a domestic partnership

in New Jersey in August 2004. G.C. stated that he was aware of the legal rights and

obligations that entering the domestic partnership created for the parties. G.C. explained

his belief that entering the domestic partnership did not provide either party with an

interest in the other party's assets or obligations. G.C. stated that he and R.W. moved

from New Jersey to New York in 2006, married in Connecticut in 2009, and moved to

California in 2011.

R.W. testified that he and G.C. purchased a house together in 2002, and that they

would have married at that time if gay marriage had been legally recognized. R.W.

agreed that he and G.C. entered into a domestic partnership in New Jersey in 2004 and

that they got married in Connecticut in 2009.

The court admitted in evidence the parties' 2004 New Jersey Domestic Partnership

certificate, a copy of the New Jersey Notice of Rights, and the parties' 2009 Connecticut

marriage license.

12
 c. The trial court's ruling

After the trial, the court issued a proposed statement of decision. The court stated

that the parties disputed the proper date of marriage for purposes of the dissolution, with

R.W. contending that the date of marriage should be deemed to be in 2004, when the

parties entered into a domestic partnership in New Jersey, and G.C. contending that the

date of marriage was in 2009, when the parties married in Connecticut. The court further

noted that G.C. maintained that "the domestic partnership laws in New Jersey are not

'substantially equivalent' to the domestic partnership laws in California, and therefore the

New Jersey domestic partnership should not be recognized in California."

The court observed that R.W. had not offered any " 'substantial equivalency,' "

arguments, and that "a facial comparison of the domestic partnership laws of New Jersey

and California shows that each offers widely differing rights and protections." The court

reviewed New Jersey and California law governing domestic partnerships, and noted that

while New Jersey law provided "a few select rights" to domestic partners, California law

"extends all of the rights and duties of marriage to domestic partners." Accordingly, the

court determined that a New Jersey domestic partnership cannot be said to be

" 'substantially equivalent,' " to a California domestic partnership. The court thus

concluded that California law did not recognize the 2004 New Jersey domestic

partnership under section 299.2. The court further concluded that the proper date of

marriage was February 6, 2009, the date on which the parties married in Connecticut.

R.W. filed a series of objections to the proposed statement of decision. None of

the objections pertained to the date of marriage issue. The trial court subsequently

13
entered an amended judgment10 that incorporated a statement of decision identical to the

proposed statement of decision with respect to the date of marriage.

3. Application

a. We reject the parties' procedural arguments

Before considering the merits of R.W.'s claim, we reject two procedural arguments

that the parties raise. First, we reject G.C.'s argument that R.W. forfeited his contention

because R.W. did not raise an objection to the trial court's proposed statement of decision

with respect to this issue. R.W. clearly raised the issue of the proper date of union for

purposes of the dissolution in the trial court, and the issue was fully litigated. G.C. cites

no authority, and we are aware of none, that would require a party to reassert an objection

to the merits of a trial court's decision by way of an objection to a proposed statement of

decision in order to preserve the objection for purposes of an appeal. (Cf. Heaps v.

Heaps (2004) 124 Cal.App.4th 286, 292 ["The main purpose of an objection to a

proposed statement of decision is not to reargue the merits, but to bring to the court's

attention inconsistencies between the court's ruling and the document that is supposed to

embody and explain that ruling" (italics added)].) Accordingly, we conclude that R.W.

did not forfeit his contention that the trial court erred in determining the date of marriage

to be in 2009 by failing to raise this issue in his objections to the trial court's proposed

statement of decision.

10 The amendment pertained to the issue discussed in part III.E, post. The original
judgment was identical to the amended judgment with respect to the date of marriage
issue.
14
 We also reject R.W.'s suggestion that he was not on notice that the date of

marriage issue would be decided at trial. R.W. supports this contention by asserting that

G.C.'s petition and R.W.'s amended response both "alleged the date of marriage to be

2004." R.W. argues that "[therefore] the date of marriage really was not formally at issue

in the operative pleading." R.W.'s argument fails for two reasons. First, G.C.'s petition

stated that the date of marriage was "02/03/09," not "2004." Second, the pleadings

described in part III.A.2, ante, make it abundantly clear that R.W. had notice that the date

of marriage would be, as R.W. stated in his request for a statement of decision, one of the

"controverted issues" at trial.

b. The trial court properly concluded that the parties' 2004 New Jersey
domestic partnership is not substantially equivalent to a California
domestic partnership and thus, did not provide the applicable date of
union for their dissolution11

R.W. contends that the trial court erred in determining that the 2004 New Jersey

domestic partnership did not provide the date of union for purposes of this dissolution

proceeding.

As quoted above, section 299.2 provides, "A legal union of two persons of the

same sex, other than a marriage, that was validly formed in another jurisdiction, and that

is substantially equivalent to a domestic partnership as defined in this part, shall be

11 Although R.W. contends that the trial court erred in failing to determine the date
of marriage to be in 2004, it is undisputed that the parties were not married until 2009.
Thus, we interpret his argument to be that the trial court erred in failing to utilize the
2004 New Jersey domestic partnership as the date of union for purposes of the
dissolution.
15
recognized as a valid domestic partnership in this state regardless of whether it bears the

name domestic partnership."

The text of the statute suggests that to be "recognized as a valid domestic

partnership in this state"—and thus subject to dissolution under section 299—a

nonmarital same sex legal union must be "substantially equivalent to a domestic

partnership as defined in this part."12 The Act does not elaborate with respect to the

meaning of the phrase "substantially equivalent," and we are not aware of any case law

addressing this issue. However, the statutory text suggests that the Legislature intended

to recognize unions formed under the laws of another jurisdiction that are substantively

comparable to domestic partnerships as defined under the Act, even if the union is

referred to by another name under the other jurisdiction's law. Commentators agree with

this interpretation. (California Domestic Partnerships and Same-Sex Marriage

(Cont.Ed.Bar 1st ed. 2017) § 1.17 [in discussing section 299.2, stating, "Although the

various jurisdictions may call the same-sex relationship by different names, the substance

of the rights, benefits, and privileges, not the name of the institution, controls"];

Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2007) [¶]

12 We interpret "a domestic partnership as defined in this part," as referring to a
domestic partnership as defined in section 297 (i.e., a California domestic partnership).
Section 299.2 is codified in Part 4 of Division 2.5 of the Family Code, and section 297 is
codified in Part 1 of Division 2.5 of the Family Code. While section 299.2 refers to "a
domestic partnership as defined in this part" (italics added), there is no "domestic
partnership" defined in Part 4 of the Family Code. However, since section 299.2 and
section 297 were both adopted as part of the Act, and section 297 contains the definition
of a domestic partnership, it is clear that "a domestic partnership as defined in this part,"
(§ 299.2) refers to a domestic partnership as defined in section 297.
16
20:233 (Hogoboom) ["Arguably, the out-of-state legal union is not of 'substantial

equivalence' within the meaning of the [Act] if the law under which it was formed does

not extend to the partners substantially the same substantive rights and responsibilities

(property rights, debt liability, partner support, etc.) afforded domestic partners under the

[Act]"]; William C. Duncan, Survey of Interstate Recognition of Quasi-Marital Statuses

(2005) 3 Ave Maria L.Rev. 617, 626 [quoting section 299.2 and stating, "California's

approach is to treat quasi-marital statuses as domestic partnerships" (italics added)].)

Our interpretation is supported by a consideration of the "ostensible objects to be

achieved," by the adoption of section 299.2. (Acqua Vista, supra, 7 Cal.App.5th at p.

1140.) At the time the Act was adopted, the laws of many states were changing with

respect to the types of legal statuses into which same-sex couples could enter, with a

corresponding variety of names for the statuses being recognized. (See generally, Stein,

The Topography of Legal Recognition of Same-Sex Relationships (2012) 50 Fam. Ct.

Rev. 181 (Stein).)13 Section 299.2 ensures that a union is subject to dissolution under

California law so long as the union had the same quasi-marital status under the foreign

13 Stein specifically notes the wide variety of relationships referred to by states as
"domestic partnerships":
"In light of the wide variation in nonmarital relationships labeled
'domestic partnerships'—from those that provide just a handful of
benefits to those that give the full panoply of benefits associated
with marriage—henceforth, I refer to domestic partnerships like the
kind available in Maryland, which give a small subset of the rights
associated with marriage, as limited domestic partnerships. In
contrast, I refer to domestic partnerships like the kind available in
California, which are virtually identical to civil unions, as broad
domestic partnerships." (Stein, supra, at pp. 188–189.)
17
jurisdiction's law as a California domestic partnership has under the Act, no matter the

nomenclature used by the other jurisdiction in describing that union.

This interpretation is bolstered by an examination of other provisions of the Act.

(See Acqua Vista, supra, 7 Cal.App.5th at p. 1140 [in interpreting a statute a court is to

consider " ' " ' "context in which the language appears" ' " ' "].) As the Court of Appeal in

Velez v. Smith (2006) 142 Cal.App.4th 1154, 1165 (Velez) observed, "The declarations

that accompanied the enactment of [the Act] left no doubt of the legislative intent to

greatly expand the rights and responsibilities of properly registered domestic partners."

(See id. at pp. 1163–1165 [outlining the history of domestic partnerships under California

law]; see § 297.5 [stating that registered domestic partners shall have the same rights and

obligations as spouses].) In enacting the Act, the Legislature also made clear its intent

that those individuals who had previously registered in California as domestic partners

would be provided with notice of the impending change to the legal nature of their

partnership, and given an opportunity to terminate the partnership prior to the change in

the law. (§ 299.3.)

Interpreting section 299.2 as evincing the Legislature's intent to recognize a union

formed in another jurisdiction for purposes of dissolution under section 299 so long as the

union is substantively comparable to a domestic partnership formed under the Act is

consistent with the Legislature's intent both to recognize such unions as equivalent to

marriage for purposes of dissolution and to ensure that individuals in such relationships

have notice that their union will be treated as having quasi-marital status for purposes of

California dissolution law. In contrast, to recognize a relationship not having quasi-

18
marital status under the jurisdiction in which the relationship was formed as nevertheless

having such status under California law would be incongruous with the Legislature's

intent in enacting section 299.3 to ensure that individuals were aware of the "binding

effect of the impending momentous changes in the legal consequences of a legally

recognized domestic relationship." (Velez, supra, 142 Cal.App.4th at p. 1168.)14

R.W.'s arguments to the contrary are not persuasive. R.W. asserts that section

299.2 should be interpreted as providing that "a domestic partnership in another state is

'substantially equivalent' to a domestic partnership in California if it is a union of two

persons of the same sex," and contends that a "polygamous union" in another jurisdiction

would thus not be recognized as " 'substantially equivalent,' " under section 299.2.

Section 299.2 expressly states that only a "legal union of two persons of the same sex,"

that is "substantially equivalent" to a California domestic partnership shall be recognized

under section 299.2. (Italics added.) Thus, polygamous unions are not recognized under

section 299.2 by virtue of the statute's reference to a "legal union of two persons." (Italics

added.) R.W.'s interpretation of section 299.2 is unpersuasive since it gives no effect to

the words "substantially equivalent" (§ 299.2) in the statute. (See, e.g., Riverside County

Sheriff's Dept. v. Stiglitz (2014) 60 Cal.4th 624, 630 [" ' "Whenever possible, significance

must be given to every word [in a statute] in pursuing the legislative purpose, and the

court should avoid a construction that makes some words surplusage" ' "].)

14 Neither party cited, and our own research has not uncovered, any relevant
legislative history bearing on the issue presented on appeal.
19
 R.W. also notes that, pursuant to section 297, subdivision (a) domestic partners

are defined as " 'two adults who have chosen to share one another's lives in an intimate

and committed relationship of mutual caring,' " and contends that, "[s]o long as the

domestic partnership law of New Jersey defines domestic partners similarly, a New

Jersey domestic partnership must be 'substantially equivalent,' to a California domestic

partnership." (Italics added.) Section 299.2 provides for the recognition of an out-of-

state "legal union," that is "substantially equivalent to a [California] domestic

partnership." (Italics added.) Thus, recognition under the statute turns on whether

domestic partnerships are substantially equivalent under New Jersey and California law,

not whether domestic partners are defined similarly in the two jurisdictions. With respect

to the former issue, which we view as the decisive factor in determining whether the out-

of-state union may be dissolved under California law, R.W. presented no argument in

either the trial court or this court that the parties' 2004 New Jersey domestic partnership is

substantively comparable to a domestic partnership formed under the Act.

For example, R.W. does not contend that New Jersey law afforded domestic

partners comparable rights with respect to property division, debt liability, or partner

support as California law provides domestic partners. Even a cursory examination of the

two statutory schemes makes clear that the legal rights conferred by the domestic

partnership laws differ dramatically in the two states. (Compare § 297.5, subd. (a)

["Registered domestic partners shall have the same rights, protections, and benefits, and

shall be subject to the same responsibilities, obligations, and duties under law . . . as are

granted to and imposed upon spouses"] with N.J.S.A. § 26:8A-2 ["[a]ll persons in

20
domestic partnerships should be entitled to certain rights and benefits that are accorded to

married couples under the laws of New Jersey, including: statutory protection . . . against

various forms of discrimination based on domestic partnership status . . . ; visitation

rights for a hospitalized domestic partner and the right to make medical or legal decisions

for an incapacitated partner; and an additional exemption from the personal income tax

and the transfer inheritance tax on the same basis as a spouse"].) New Jersey law

expressly provides, "The obligations that two people have to each other as a result of

creating a domestic partnership shall be limited to the provisions of this act." (N.J.S.A.

§ 26:8A-6.a.) Significantly, New Jersey law provides that, in proceedings to terminate a

domestic partnership, "The court shall in no event be required to effect an equitable

distribution of property, either real or personal, which was legally and beneficially

acquired by both domestic partners or either domestic partner during the domestic

partnership." (N.J.S.A. § 26:8A-10.a.3.)15

R.W. contends that to interpret section 299.2 as recognizing only those unions that

"grant . . . same-sex couples the full range of rights afforded to married spouses,"

"discriminates against same-sex couples by treating them differently from traditional

15 In 2006, the New Jersey Legislature passed the Civil Union Act (L. 2006, ch. 103,
§ 92). Pursuant to this statute, which became effective February 19, 2007, same-sex
couples were authorized to enter into civil unions with all of the rights and obligations
afforded to married couples under state law. (N.J.S.A. § 37:1-33.) The Civil Union Act
expressly states that the law "shall not alter the rights and responsibilities of domestic
partnerships existing before the effective date of this act, except that eligible domestic
partners shall be given notice and opportunity to enter into a civil union pursuant to the
provisions of this act." (N.J.S.A. § 26:8A-4.1.) It is undisputed that R.W. and G.C., who
moved to New York in 2006, did not enter into a civil union under New Jersey's Civil
Union Act.
21
married couples." In support of this contention, R.W. raises an argument that is difficult

to follow, but that culminates with the assertion that, "Clearly, California recognizes the

validity of marriages celebrated in other jurisdictions that do not have community

property laws. It should not be any different for domestic partnerships." This argument

suggests that the basis for concluding that the parties' New Jersey domestic partnership

was not substantially equivalent to a California domestic partnership for purpose of

dissolution under section 299 is that California is a community property state, while New

Jersey is not. However, our conclusion that the 2004 New Jersey domestic partnership is

not "substantially equivalent" (§ 299.2) to a California domestic partnership for purposes

of dissolution is grounded on the fact that the New Jersey domestic partnership does not

confer substantively similar legal rights and benefits to a domestic partnership formed

under the Act, not the fact that the two states differ with respect to their recognition of

community property principles.16

Accordingly, we conclude that the trial court properly determined the parties' date

of marriage to be in 2009, because their 2004 New Jersey domestic partnership is not

"substantially equivalent" to a California domestic partnership under section 299.2.17

16 While R.W. asserts that it "is a matter of equal protection under the law," that the
New Jersey domestic partnership be recognized as "substantially equivalent" to a
California domestic partnership, he fails to adequately raise this claim with supporting
authority and argument. The contention is thus forfeited. (See, e.g., Trinkle v. California
State Lottery (2003) 105 Cal.App.4th 1401, 1413 ["unless a party's brief contains a legal
argument with citation of authorities on the point made, the court may treat it as waived
and pass on it without consideration"].)
17 While the trial court stated that California does not "recognize[ ]" the New Jersey
domestic partnership, we do not make such a broad pronouncement here. More
22
B. The trial court erred in failing to divide the appreciation in value of the marital
residence equally

R.W. claims that the trial court erred in failing to divide the appreciation in the

value of the marital residence equally. Specifically, R.W. contends that the trial court

erred in applying a formula for apportioning separate and community property interests in

the appreciation in value of property discussed in In re Marriage of Lucas (1980) 27

Cal.3d 808 (Lucas). R.W. argues that the Lucas formula may be applied only in cases in

which a spouse maintains a separate property interest in the property. R.W. maintains

that the Lucas formula may not be used in this case because the trial court did not find

that the joint title presumption of community property contained in section 2581 had been

rebutted, and there is no such evidence upon which the court could have made such a

finding.

specifically, we need not decide in this appeal whether there might be some instances in
which a California court would recognize a New Jersey domestic partnership (as
distinguished from a civil union). For example, we have no occasion to determine
whether, under section 299.2, a person could enforce "visitation rights for a hospitalized
domestic partner" (N.J.S.A. § 26:8A-2) in a California court under the theory that the
person's New Jersey domestic partnership is "substantially equivalent" to a "domestic
partnership as defined in this part," for this purpose. (§ 299.2.) We also need not
consider any potential applicability of the full faith and credit clause of the United States
Constitution, because R.W. presents no argument with respect to this provision. (U.S.
Const., art IV, § 1 ["Full Faith and Credit shall be given in each State to the public Acts,
Records, and judicial Proceedings of every other State"].) Rather, we need determine
only whether the trial court was correct that section 299.2 should not be interpreted to
provide that the parties' 2004 New Jersey domestic partnership may not be dissolved
under section 299. For the reasons discussed in the text above, we conclude that the trial
court properly determined this issue.
23
 G.C. contends that the trial court determined that the "joint title presumption of

community property [had been] rebutted," and that the court correctly calculated the

value of his separate property interest pursuant to Lucas.

1. Factual and procedural background

The relevant facts are undisputed. The trial court found that the parties acquired

the marital residence as joint tenants during marriage. The court further expressly found,

"said residence is the community property of the parties."

The court found that the parties purchased the property for $395,000 and that they

made a $151,000 down payment. R.W. contributed $23,028.13 in separate property

funds and G.C. contributed $112,431.47 in separate property funds toward the down

payment. Community funds were used for the remainder of the down payment. The

community took out a loan for $250,000. The fair market value of the marital residence at

the time of the trial was $510,000, which included gross distributable equity in the

amount of $265,411.01. The court found that, as a result of the 2012 refinancing, the

mortgage on the marital residence was placed in G.C.'s name, but that "[t]itle remained

joint."

The court further found that the appreciation in the value of the property was

$115,000 and that, "[G.C.] is entitled to 28.47% of the increase in value of the real

property based on his separate property contribution of $112,431.47 to the down

payment, or $32,740.45." The court also found, "[R.W.] is entitled to 5.83% of the

increase in value of the real property based on his separate property contribution of

$23,028.13 to the down payment, or $6,705.88."

24
 2. Governing law

a. Prior law under Lucas

In Lucas, the Supreme Court considered "the proper method of determining

separate and community property interests in a single family dwelling acquired during the

marriage with both separate property and community property funds." (Lucas, supra, 27

Cal.3d at p. 811.) In Lucas, a husband and wife purchased a single-family residence

during their marriage and took title to the property as joint tenants. (Ibid.) The wife used

her separate property for the down payment, and the couple assumed a loan for the

remainder of the purchase price. (Ibid.)

The Lucas court noted that, pursuant to former Civil Code section 5110, a single-

family residence held in joint tenancy was presumed to be community property at

dissolution. (Lucas, supra, 27 Cal.3d at p. 814.) The Lucas court held that in order to

rebut this presumption, a spouse claiming a separate property interest was required to

show an "agreement or understanding" that the spouse's separate property contributions

to the acquisition of the property would remain separate property. (Ibid.)

Applying this law, the Lucas court noted that, although the trial court had found

that the wife did not intend for her separate property used for the down payment to

constitute a "gift" to the husband (Lucas, supra, 27 Cal.3d at p. 815, see also id. at p.

812), there was no evidence of an "agreement" that the wife would retain a separate

property interest in the house. (Id. at p. 815.) The Lucas court thus reversed the trial

court's award of a separate property interest in the property to the wife. (Id. at pp. 812,

815.)

25
 The Lucas court remanded the matter to the trial court for further proceedings and

stated that if the trial court were to find that the residence was entirely community

property on remand, the wife would be barred from seeking any reimbursement for her

separate property contributions to the property, absent an agreement providing for such

reimbursement. (Lucas, supra, 27 Cal.3d at p. 816.) The Lucas court explained that a

spouse who uses separate property for community purposes during marriage is presumed

to have intended a gift to the community. (Ibid.)

The Lucas court also provided a formula for the trial court to apply in the event

that the trial court were to find that there "was an understanding or agreement that [wife]

was to retain a separate property interest in the residence." (Lucas, supra, 27 Cal.3d at p.

816.) In that instance, the Lucas court explained, "[T]he spouse who made the separate

property down payment [obtains] a separate property interest in the residence in the

proportion that the down payment bears to the purchase price; the community acquires

that percentage of the residence which the community loan bears to the purchase price."

(Ibid.) The spouse's separate property interest should include an amount that "represents

the amount of capital appreciation attributable to the separate funds." (Id. at p. 816, fn.

3.)

b. Current law

"The Legislature enacted several statutes in response to Lucas, including

provisions governing . . . ownership of jointly titled property, and reimbursement of the

contributions to acquire property." (In re Marriage of Bonvino (2015) 241 Cal.App.4th

26
1411, 1427 (Bonvino).)18 With respect to the ownership of jointly titled property, the

Legislature enacted former Civil Code section 4800.1 (current section 2581). While,

under Lucas, the joint title community property presumption could be overcome by an

oral agreement or understanding (Lucas, supra, 27 Cal.3d at p. 816), under section 2581

only a writing may be used to rebut the presumption. The Bonvino court described the

change as follows:

"The Legislature . . . changed the rule that a spouse could rebut the
presumption of community property for a joint tenancy residence
with evidence of an oral agreement that it was separate property.
[Citation.] In 1983, the Legislature enacted Civil Code former
section 4800.1, now Family Code section 2581, which expanded the
joint title presumption of Civil Code former section 5110 for single-
family residences to all property acquired during marriage in joint
form. [Citation.] Under section 2581, property acquired in joint title
during marriage is presumed to be community property upon
dissolution. The presumption of section 2581 may be rebutted only
by a clear statement in the title document or proof of a written
agreement that the property is separate and not community property.
(§ 2581.) 'The requirement of a writing provides a reliable test by
which to determine the understanding of the parties. It seeks to
prevent the abuses and unpredictability that have resulted from the
oral agreement standard.' [Citation.]" (Bonvino, supra, at pp. 1430–
1431.)

Section 2581 provides:

"For the purpose of division of property on dissolution of marriage
or legal separation of the parties, property acquired by the parties
during marriage in joint form, including property held in tenancy in
common, joint tenancy, or tenancy by the entirety, or as community
property, is presumed to be community property. This presumption

18 The Legislature adopted the two provisions relevant to the issue presented in this
appeal, former Civil Code sections 4800.1 and 4800.2, current sections 2581 and 2640, in
the same statute in 1983. (See In re Marriage of Walrath (1998) 17 Cal.4th 907, 914
(Walrath).)
27
 is a presumption affecting the burden of proof and may be rebutted
by either of the following:

"(a) A clear statement in the deed or other documentary evidence of
title by which the property is acquired that the property is separate
property and not community property.

"(b) Proof that the parties have made a written agreement that the
property is separate property."

The Legislature also abrogated the Lucas court's holding that "separate funds used

to acquire a community asset were a gift to the community unless the party could prove

an agreement otherwise" through the adoption of former Civil Code section 4800.2

(current section 2640). (Bonvino, supra, 241 Cal.App.4th at p. 1431; see Walrath, supra,

17 Cal.4th at p. 914 [noting that legislative history of former Civil Code section 4800.2

"expressly states that [statute] was enacted to 'reverse[ ] the rule of [Lucas, supra, 27

Cal.3d 808], and cases following it, which precluded recognition of the separate property

contribution of one of the parties to the acquisition of community property, unless the

party could show an agreement between the spouses to the effect that the contribution

was not intended to be a gift' "].)

Section 2640 provides "a limited reimbursement of separate property contributions

as part of the division of the community estate . . . ." (Bonvino, supra, 241 Cal.App.4th

at p. 1431.) The statute provides in relevant part:

"(a) 'Contributions to the acquisition of property,' as used in this
section, include downpayments, payments for improvements, and
payments that reduce the principal of a loan used to finance the
purchase or improvement of the property but do not include
payments of interest on the loan or payments made for maintenance,
insurance, or taxation of the property.

28
 "(b) In the division of the community estate under this division,
unless a party has made a written waiver of the right to
reimbursement or has signed a writing that has the effect of a waiver,
the party shall be reimbursed for the party's contributions to the
acquisition of property of the community property estate to the
extent the party traces the contributions to a separate property
source. The amount reimbursed shall be without interest or
adjustment for change in monetary values and may not exceed the
net value of the property at the time of the division."

Any reimbursement ordered pursuant to section 2640, subdivision (b) may not

include an amount for appreciation. (See Bonvino, supra, 241 Cal.App.4th at p. 1432

[amount reimbursed under section 2640, subdivision (b) "does not include interest or

appreciation"].) "[A]ny appreciation in the value of a community asset above the amount

of the separate property contributions to that asset belongs to the community." (Walrath,

supra, 17 Cal.4th at p. 924.)

3. Standard of review

Since the relevant facts are undisputed, and the issue on appeal turns on whether

the trial court properly applied the law governing the characterization of assets upon

dissolution, we apply the de novo standard of review. (See In re Marriage of Rossin

(2009) 172 Cal.App.4th 725, 734 ["[d]e novo review is appropriate where resolution of

'the issue of the characterization to be given (as separate or community property) . . .

requires a critical consideration, in a factual context, of legal principles and their

underlying values, the determination in question amounts to the resolution of a mixed

question of law and fact that is predominantly one of law' "].)

29
 4. Application

We agree with R.W. that the trial court did not find that the joint title community

property presumption contained in section 2581 was rebutted. There is nothing in the

trial court's statement of decision that suggests that the court made such a finding. On the

contrary, the court expressly found both that the parties acquired the property as joint

tenants during the marriage and that the property was community property.

Nor is there any evidence in the record of a writing sufficient to rebut the

presumption set forth in section 2581. Accordingly, since G.C. did not "retain a separate

property interest in the residence" (Lucas, supra, 27 Cal.3d at p. 816), the trial court erred

in applying the Lucas formula for calculating "separate and community interests" in the

property. (Ibid.) Specifically, the court erred in awarding G.C. an amount that

"represents the amount of capital appreciation attributable to the separate funds." (Id. at

p. 816, fn. 3.)

In the absence of the rebuttal of the section 2581 presumption, the court was

required to find that the marital residence was community property. G.C. and R.W. were

each entitled to reimbursement pursuant to section 2640 for their separate property

contributions to the acquisition of the residence. However, reimbursement awarded

pursuant to section 2640 may not include any amounts attributable to appreciation.19

(See, e.g., Bonvino, supra, 241 Cal.App.4th at p. 1432.) Therefore, on remand, the trial

19 G.C. does not argue that he is entitled to any portion of the appreciation in the
value of the property as a reimbursement under section 2640.
30
court shall divide the value of the appreciation of the marital residence evenly, as a

community asset.

We are not persuaded by G.C.'s assertion, without record citation, that "the

evidence at trial demonstrated the parties' understanding that the marital residence was to

be [G.C.'s] separate property." (Italics added.) Even assuming the existence of such

evidence in the record, in the wake of the adoption of section 2581, any such

"understanding" on the part of the parties would not be sufficient to defeat the community

property presumption contained in the statute. (See, e.g., In re Marriage of Buol (1985)

39 Cal.3d 751, 755 ["Under [former Civil Code section 4800.120] the only means of

rebutting the presumption that property acquired during marriage in joint tenancy is

community property is by providing evidence of a written agreement that the property is

separate property"].)

We are not persuaded by G.C.'s contention that "[u]nder Lucas, the joint title

presumption of community property was rebutted." The Legislature adopted section

2581's predecessor statute (former Civil Code section 4800.1) "for the purpose of

changing the rule in Lucas." (In re Marriage of Neal (1984) 153 Cal.App.3d 117, 123; In

re Marriage of Kahan (1985) 174 Cal.App.3d 63, 68 ["while under Lucas an agreement

rebutting the presumption may be proved from the circumstances and actions of the

parties, [former Civil Code] section 4800.1 [current section 2581] now requires a writing,

either in the deed or as a separate agreement"]; see Hogoboom, supra, [¶] 8:425, p. 8-157

20 As discussed in the text above, former Civil Code section 4800.1 is currently
codified in section 2581.
31
[stating that section 2581 "supersedes Lucas in part" and explaining that "[w]hereas under

Lucas, title presumptions may ordinarily be overcome by an oral agreement or

understanding or by implication from a statement or conduct . . . only a writing suffices

to counter the §2581 presumption" (boldface omitted)].) Even assuming that there was

evidence of an "agreement or understanding" (Lucas, supra, 27 Cal.3d at p. 815, italics

added) sufficient to rebut the community property presumption under Lucas,21 as

discussed above, there is no evidence in the record of a writing sufficient to rebut the

presumption under current law (i.e., § 2581).22

The fact that G.C. testified that he was "the only one on the loan,"23 associated

with a 2012 refinance of the property does not demonstrate that he had a separate

property interest in the marital residence. G.C. acknowledged that the home remained

deeded to both G.C. and R.W., and the trial court expressly found that, notwithstanding

21 Aside from referring to evidence pertaining to a 2012 refinance of the property,
which we discuss in the text below, G.C. does not identify such evidence in his brief.
22 After the trial court issued a proposed statement of decision that awarded G.C. a
28.47 percent interest in the appreciation in the value of the residence based on his
separate property contribution to the down payment, R.W. filed a written objection in
which he raised the same argument that he raises on appeal. During a hearing on R.W.'s
objection, the trial court stated that "the better way [to divide the appreciation] was the
Lucas case way," and overruled the objection. It is not entirely clear from the court's
comments whether the court applied Lucas (rather than § 2581) in concluding that the
joint title community property presumption was rebutted, or whether the court simply
"borrowed" the Lucas formula for dividing appreciation without making any
determination as to whether the community property presumption had been rebutted. The
absence of any mention in the court's statement of decision suggesting that the court
found that the joint title presumption had been rebutted suggests the latter. In either case,
the trial court erred.
23 During the trial, the court asked G.C., "In this refinance, is your name the only one
on the loan?" G.C. responded affirmatively.
32
the 2012 refinance, "[t]itle remained joint." Thus, G.C.'s testimony concerning the 2012

refinance does not establish that the section 2581 presumption was rebutted.

We are similarly unpersuaded by G.C.'s argument that R.W. failed to demonstrate

prejudice. In support of this argument, G.C. notes that the trial court ordered G.C. to

reimburse R.W. for "his separate property interests" in the property and "awarded [R.W.]

$50,000 from the equity in the marital residence upon refinancing and . . . an additional

equalization payment by [G.C.]." G.C. contends that these amounts were "more than

sufficient to reimburse [R.W.] for his separate and community property interests in the

marital residence."

To begin with, G.C.'s lack of prejudice argument is fundamentally unsound. The

fact that the court awarded R.W. other amounts does not cure the prejudice of the trial

court failing to properly divide the appreciation in value of the marital residence equally.

With respect to the specific awards that G.C. mentions, as discussed above, all of the

$115,000 appreciation in the marital residence is community property. Neither G.C. nor

R.W. is entitled to any portion of the appreciation as separate property. 24 With respect to

the "$50,000 from the equity in the marital residence" that G.C. references, the court's

24 Thus, R.W. is not entitled to the $6,705.88 that the trial court awarded to him as
separate property for his "5.83% of the increase in value of the real property based on his
separate property contribution of $23,028.13 to the down payment." On remand, the trial
court shall ensure that R.W. is not awarded any portion of the appreciation as his separate
property. We do not read R.W.'s brief as contending that he is entitled to this amount.
Rather, R.W. contends that neither party is entitled to any portion of the appreciation of
value of the marital residence as separate property, and that the entire $115,000 of
appreciation is to be divided equally as community property. For the reasons stated in the
text above, we agree with R.W.
33
statement of decision is clear that this payment was a "pre-judgment community property

division." In other words, the court treated the $50,000 as an "advance" made to R.W.

from his eventual share of the community estate. Thus, the award does not render

harmless the court's failure to properly divide the appreciation of the marital residence

evenly, as a portion of the community estate. Finally, the "equalization payment" that

G.C. references reflects the trial court's calculation of the amount that G.C. owed in order

to effectuate an equal division of the community estate. By its very nature, such a

payment cannot cure the prejudice in failing to include an asset in the community estate.

On remand, the trial court will be required to recalculate the equalization payment in light

of our direction that the court divide the appreciation in the marital residence equally, as

community property.25

Accordingly, we conclude that the trial court committed reversible error in failing

to divide the appreciation in value of the marital residence equally.

25 In its judgment, with respect to the division of the community estate, the court
stated that G.C. was to receive a net distribution of $128,305.08 and R.W. was to receive
a net distribution of $82,500. The court then ordered G.C. to pay R.W. $45,805.08 in
order to "equalize the division of community property." Although not discussed by the
parties on appeal, it appears that the amount of the equalization payment should have
been one half of $45,805.08, because that is the amount that would equalize the division
of community property.
On remand, the parties may address the appropriate equalization payment in light
of our order that the trial court divide the appreciation of the marital residence evenly, as
a portion of the community estate. The trial court shall ensure that any equalization
payment ordered results in an equal division of community property.
34
C. The trial court did not abuse its discretion in declining to award permanent spousal
support

R.W. contends that the trial court "failed to consider all of the true facts in

determining the propriety of spousal support, as well as its duration."

Section 4320 contains a list of factors that a trial court shall consider in ordering

spousal support.26 "[T]he ultimate decision as to amount and duration of spousal support

26 Section 4320 provides:
"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.
"(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.
35
rests within its broad discretion and will not be reversed on appeal absent an abuse of that

discretion." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.)

R.W. offers two arguments in support of his claim that the court "failed to

consider all of the true facts," with respect to its decision not to award permanent spousal

support. First, he contends that "if [the New Jersey] domestic partnership is recognized

in California, then the duration of marriage was nearly 8 years," and the court "likely"

would have ordered G.C. to pay spousal support for an additional two years.27 This

argument fails in light of our conclusion that the trial court did not err in concluding that

"(i) Documented evidence, including a plea of nolo contendere, of
any history of domestic violence, as defined in Section 6211,
between the parties or perpetrated by either party against either
party's child, 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.
"(m) The criminal conviction of an abusive spouse shall be
considered in making a reduction or elimination of a spousal support
award in accordance with Section 4324.5 or 4325.
"(n) Any other factors the court determines are just and equitable."
27 Although not cited in his brief, R.W.'s argument is apparently premised on section
4320, subdivision (l), which generally allows courts to order permanent spousal support
lasting one-half the length of the marriage in cases involving marriages of short duration.
(See fn. 26, ante.)
36
the New Jersey domestic partnership was not "substantially equivalent" to a California

domestic partnership under section 299.2. (See pt. III.A, ante.)

R.W. also contends that the trial court erred in finding that he was in " 'good

health,' " (underscore omitted) in declining to award him permanent spousal support in

light of evidence that he: is HIV positive and takes a cocktail of medications; suffers

from deep vein thrombosis, blood clotting problems, and a shoulder injury; and has been

on short-term disability previously due to internal bleeding.

At trial, R.W. testified "[m]y health is pretty good." He also testified that he had

been "doing really well with that cocktail of medications" used to treat HIV.

In its statement of decision, in discussing factors relevant to the trial court's

spousal support determination, the court stated:

"[R.W.] is 55 years old. Although he is HIV positive, he does not
have AIDS. [R.W.] testified he is in good health. He is able to work
a 40-hour work week."

In another portion of its order, the trial court also stated, "[R.W.] is in good

health."

In light of the record discussed above, and in particular R.W.'s testimony that his

health was "pretty good," we conclude that the trial court did not abuse its discretion in

finding that R.W. was in "good heath" in declining to award him permanent spousal

support.

Accordingly, we conclude that the trial court did not abuse its discretion in

declining to award R.W. permanent spousal support.

37
D. R.W. fails to present any cognizable legal argument in support of his contention that
the trial court "erred in its tracing findings"

R.W. contends that the trial court "erred in its tracing findings."28 (Formatting

omitted.) In support of this claim, R.W. raises, in cursory fashion, a series of distinct

arguments pertaining to various findings in the trial court's statement of decision. R.W.

contends that the trial court erred in: (1) finding that an entity, G.C., LLC, was G.C.'s

separate property; (2) crediting G.C.'s testimony concerning certain bank errors

pertaining to two bank accounts; (3) failing to address a "significant discrepancy"

concerning G.C., LLC's 2010 tax return; (4) failing to find that certain promissory notes

issued in 2010 payable to G.C. were community property; (5) failing to order

reimbursements to R.W. for two bank deposits totaling $2,200; (6) failing to properly

apply the "recapitulation" method29 in tracing funds used to purchase the marital

residence; and (7) overestimating the value of R.W.'s retirement account. For the reasons

28 By "tracing," we interpret R.W. to be referring to evidence used to establish that
property was acquired with separate property. (See, e.g., In re Marriage of Valli (2014)
58 Cal.4th 1396, 1399 ["Property that a spouse acquired during the marriage is
community property . . . unless it is . . . traceable to a separate property source" (italics
added)].)
29 "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." (In re
Marriage of Braud (1996) 45 Cal.App.4th 797, 823.)
38
discussed below, we conclude that R.W. has failed to adequately present any of these

arguments on appeal.30

With respect to the trial court's finding that the community had no interest in G.C.,

LLC, R.W. fails to discuss all of the evidence that supports the trial court's finding, and

asserts, without any record citation, that "[t]he labor by both spouses contributed to the

LLC during the marriage should have been calculated as community property." It is well

established that an appellant must set forth in its brief all of the material evidence

relevant to a contention that there is insufficient evidence to support a finding, including

evidence supportive of the judgment (see, e.g., Foreman & Clark Corp. v. Fallon (1971)

3 Cal.3d 875, 881 (Foreman)). If the appellant fails to do so, its claim is forfeited.

Similarly, all parties must file briefs in which they "[s]upport any reference to a matter in

the record by a citation to the volume and page number of the record where the matter

appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) In light of R.W.'s failure to

adequately cite to the evidence in the record pertaining to the trial court's finding that

G.C., LLC is G.C.'s separate property, we conclude that R.W.'s contention with respect to

this finding is forfeited.

With respect to R.W.'s contentions pertaining to G.C.'s testimony concerning bank

errors, the purported "significant discrepancy" regarding G.C. LLC's tax return, and the

court's use of the recapitulation method, R.W. fails to present a coherent legal argument

30 R.W. also contends that "[i]f the court finds the date of marriage to be 2004 rather
than 2009, the tracing by [G.C.] falls apart entirely because his tracing efforts in evidence
do not begin until 2008." This contention fails in light of our conclusion that the trial
court did not err in determining the date of marriage to be in 2009. (See pt. III.A, ante.)
39
demonstrating error. " 'Issues do not have a life of their own: If they are not raised or

supported by argument or citation to authority, [they are] . . . waived.' [Citation.] It is

not our place to construct theories or arguments to undermine the judgment and defeat the

presumption of correctness. When an appellant fails to raise a point, or asserts it but fails

to support it with reasoned argument and citations to authority, we treat the point as

waived." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) In light

of R.W.'s failure to coherently discuss the legal significance of the evidence that he refers

to in his brief with respect to these three issues with a fully developed argument, we

conclude that R.W.'s arguments pertaining to the March 25, 2010 bank error, G.C. LLC's

2010 tax return, and the trial court's use of the recapitulation method are forfeited.

With respect to the 2010 promissory notes, R.W. cites to no evidence in the record

pertaining to this issue. With respect to the trial court's failure to order reimbursement to

R.W. for two bank deposits totaling $2,200, R.W. fails to discuss the significance of his

testimony that he was unable to "trace" such deposits with bank records.31 With respect

to R.W.'s contention that the trial court overestimated the value of his retirement account,

R.W. refers to an "Equivest statement in evidence," but fails to provide a record citation

for such evidence. R.W. further fails to coherently describe his purportedly

uncontroverted testimony on this issue, which he contends the trial court should have

credited. As a result, R.W.'s arguments that the court erred with respect to these three

31 In discussing the deposits at trial, R.W. stated, "I don't think I can trace that. I
think all I can do is testify to the court that this money was proceeds from my mother's
inheritance, and our verbal agreement was that it go towards the down payment of the
house."
40
issues are also forfeited. (See Foreman, supra, 3 Cal.3d at p. 881; Cal. Rules of Court,

rule 8.204(a)(1)(C).)

Accordingly, we conclude that R.W. fails to present any cognizable legal

argument in support of his contention that the trial court "erred in its tracing findings."

E. The trial court did not exceed its jurisdiction in entering an amended judgment while
R.W.'s appeal was pending

R.W. contends that the trial court exceeded its jurisdiction in entering an amended

judgment while this appeal was pending. Specifically, R.W. maintains that the trial court

erred in modifying the initial equalization payment that G.C. was ordered to pay R.W.

from $40,000 in the original judgment to $28,000 in the amended judgment.

G.C. contends that the trial court had jurisdiction to enter the amended judgment

notwithstanding the pendency of the appeal because the original judgment contained a

clerical error that did not reflect the court's intent.

R.W.'s claim raises a question of law that we review de novo. (See Rochin v. Pat

Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1238 (Rochin) [deciding, "as a

matter of law," whether trial court exceeded its jurisdiction by entering amended

judgment to correct alleged clerical error].)

1. Factual and procedural background

In January 2016, the trial court filed a proposed statement of decision directing

G.C. to pay an equalization payment to R.W. in the amount of $86,339.09. The proposed

statement of decision ordered G.C. to make an initial lump sum payment of $40,000

41
within 30 days of the judgment, and to make a series of 54 monthly payments thereafter

to pay off the remainder of the equalization payment.

On February 19, the trial court heard argument on the parties' objections to the

court's proposed statement of decision. At that hearing, the court expressed its intention

to reduce, by $12,000, the amount that G.C. would be required to immediately pay R.W.

as an equalization payment in the division of the community estate. The court explained

that, at some future date, the court might determine that G.C. was required to pay the

$12,000 or some portion of that amount. The court stated, "I am going to say [in the

judgment] that the Court is retaining jurisdiction over the payment of that $12,000

equalization payment . . . ." Shortly thereafter, the following colloquy occurred:

"[G.C.'s counsel]: You honor, then I would ask, please, when the
Court . . . say[s] it's going to retain jurisdiction over the $12,000,
does that mean that it will not be paid?

"The court: That means that you don't have to pay it yet.

"[G.C.'s counsel]: So that could be taken out of the -- I think it was
$45,000 or something,[32] equalization payment?

"The court: It will be taken out of the equalization payment. I'm not
saying [G.C.] doesn't owe that. I don't know that he doesn't owe a
portion. Let's say that this really only resulted -- your client files a
tax return, and it's $8,000; then he might owe you four, because I
was sticking him with the proffer that he offered.[33] So I am not
going to order that be paid yet."

32 As discussed above, the initial lump sum equalization payment in the proposed
statement of decision was $40,000, not $45,000, as stated by G.C.'s counsel.
33 It appears that the court initially ordered G.C. to pay R.W. $12,000 to offset a tax
liability that R.W. would incur, given the manner by which the court divided the parties'
assets in the dissolution proceeding. The court received information at the February 19
hearing suggesting that R.W. might not incur that tax liability.
42
 At the end of the hearing, the court stated that it would "correct the [s]tatement of

[d]ecision" in accordance with its rulings and prepare a judgment.

On February 29, the trial court entered a judgment. The judgment did not reduce

the equalization payment in accordance with the court's stated intention at the February

19 hearing.

On April 29, 2016, R.W. filed a notice of appeal.

In May 2016, G.C. filed a request for order asking the court to correct the

judgment. G.C. requested that the court reduce the total equalization payment and the

amount of the initial lump sum equalization payment by $12,000 in accordance with the

court's orders at the February 2016 hearing.

R.W. objected to the request on the ground that the pending appeal deprived the

trial court of jurisdiction to enter the requested order.

The trial court held a hearing on the request. After reviewing the transcript of the

February 19 hearing and hearing argument from counsel, the trial court indicated that the

judgment should be corrected in accordance with G.C.'s request because the February 29

judgment did not reflect the court's intentions as stated at the February 19 hearing. In

granting the request, the court stated in relevant part:

"I know what I was indicating because I'm the Court, okay, so I
know what I was indicating. [¶] I was indicating that [G.C.] does not
pay the 12,000."

On August 3, the court filed an amended judgment. The amended judgment

reduced the total equalization payment from the original judgment by $12,000 (i.e., from

43
$86,339.09 to $74,339.09). The amended judgment also reduced the initial lump sum

payment to R.W. on the equalization payment by $12,000 (i.e., from $40,000 to $28,000).

2. Governing law

" 'The general rule is that once a judgment has been entered, the trial court loses its

unrestricted power to change that judgment. The court does retain power to correct

clerical errors in a judgment which has been entered. However, it may not amend such a

judgment to substantially modify it or materially alter the rights of the parties under its

authority to correct clerical error. [Citations.]' " (Rochin, supra, 67 Cal.App.4th at p.

1237.) "The test which distinguishes clerical error from possible judicial error is simply

whether the challenged portion of the judgment was entered inadvertently (which is

clerical error) versus advertently (which might be judicial error, but is not clerical error)."

(Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th

110, 117 (Tokio).)

"It is also settled that '[in] determining whether an error is clerical or judicial, great

weight should be placed on the declaration of the judge as to his intention in signing the

[judgment].' [Citation.] . . . 'Where the error is made by the judge it is seldom clear from

the record or other extrinsic evidence whether the error is judicial or clerical; i.e., whether

(a) he knowingly rendered a judgment without realizing that it was bad in law (judicial

error), or (b) inadvertently or by mistake signed findings or a judgment or order which he

did not intend to constitute his decision. The issue is one of the judge's intent, and the

best evidence is the judge's own statement, either express or implied from the order of

correction. Hence, where the record permits an inference of clerical error, the judge's

44
affidavit or declaration will be extremely persuasive on appeal.' " (Bowden v. Green

(1982) 128 Cal.App.3d 65, 71–72 (Bowden).)

3. Application

The transcript of the February 19 hearing unequivocally indicates that the trial

court intended to reduce the equalization payment ordered in the proposed statement of

decision by $12,000. However, the February 29 judgment failed to reflect the court's

stated intent. Thus, the court clearly did not exceed its jurisdiction in modifying the

original judgment to conform to its stated intent at the February 19 hearing. (See Tokio,

supra, 75 Cal.App.4th at p.117 [trial court may correct judgment "entered

inadvertently"].)

In addition, while less clear, the trial court's response to the following question

suggests that the court intended to reduce the initial lump sum payment by $12,000

(rather than reducing the duration or amount of monthly payments):

"[G.C.'s counsel]: So that could be taken out of the -- I think it was
$45,000 or something, equalization payment?

"The court: It will be taken out of the equalization payment."

Moreover, the trial court's granting of the request to correct the original judgment

and its statement, "I know what I was indicating," supports our conclusion that the trial

court's amended judgment constituted the correction of a clerical error. (Bowden, supra,

128 Cal.App.3d at pp. 71–72 [in determining whether error is clerical, "the best evidence

is the judge's own statement, either express or implied from the order of correction"].)

45
 Accordingly, we conclude that the trial court did not exceed its jurisdiction in

entering an amended judgment while R.W.'s appeal was pending.

F. R.W. fails to establish that the trial court abused its discretion by failing to consider
the complexity of the case in declining to award R.W. attorney fees

R.W. contends that the trial court "failed to consider the complexity of this case in

its attorney fee ruling." (Boldface & capitalization omitted.)

An award of attorney fees in a marital dissolution action is left to the sound

discretion of the trial court and will not be overturned absent an abuse of that discretion.

(In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1523.) " ' "[T]he trial court's

order will be overturned only if, considering all the evidence viewed most favorably in

support of its order, no judge could reasonably make the order made. [Citations.]" ' "

(Ibid.)

In its statement of decision, in discussing whether to award R.W. attorney fees, the

trial court noted that, during the pendency of the matter, the court ordered G.C. to pay

$10,000 toward R.W.'s attorney fees. The court further stated that G.C. had complied

with the court's order. The court also considered the relative incomes of the parties and

the court's prior award of temporary spousal support,34 and observed, "[R.W.] was able

to retain a total of four attorneys during the pendency of this matter." Further, in

discussing whether to award attorney fees to R.W., the trial court expressly addressed the

complexity of the case, stating:

34 As noted in the text above, the court declined to award permanent spousal support.
46
 "[T]he preliminary determination issue presented in this matter[35]
was complex and the tracing was intricate. However, [R.W.]
provided little assistance in this matter.[36] [¶] [R.W.] presented no
expert witnesses during the trial. [R.W.] has the ability to pay all of
the reasonable fees and expenses of his attorney and court costs of
litigation incurred in this matter. [¶] . . . No additional attorney fees
are awarded to [R.W.] from [G.C.]"

The record thus clearly establishes that the trial court considered the relative

complexity of the case in declining to award R.W. additional attorney fees. Accordingly,

we conclude that R.W. failed to establish that the trial court erred in declining to award

him additional attorney fees.

IV.

DISPOSITION

The amended judgment is reversed insofar as the trial court failed to divide the

appreciation in value of the marital residence equally, as a community asset. The matter

is remanded to the trial court with directions to divide the appreciation in value of the

marital residence equally, as a community asset, recalculate an appropriate equalization

payment in light of this division of the appreciation, conduct any necessary ancillary

proceedings, and to enter a new judgment. In all other respects, the amended judgment is

affirmed. Each party is to bear his own costs on appeal.

35 The court was referring to the date of marriage issue that we addressed in part
III.A, ante.
36 R.W.'s trial brief on the date of marriage issue was approximately one and one-
half pages, and did not contain any analysis with respect to whether a domestic
partnership in New Jersey is "substantially equivalent" to a California domestic
partnership under section 299.2.
47
 AARON, J.

WE CONCUR:

BENKE, Acting P. J.

GUERRERO, J.

48