Filed 4/2/13 Marriage of Stupansky CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Siskiyou)
----
In re the Marriage of VICTOR and SANDRA
STUPANSKY.
VICTOR STUPANSKY, C068246
Appellant, (Super. Ct. No.
SCCVFL081436)
v.
SANDRA MONETTE,
Appellant.
This appeal arises from the dissolution of marriage of Victor Stupansky (Victor)
and Sandra Monette (Sandra). Both parties challenge the trial court’s judgment regarding
the division of property.
In part I, we discuss Victor’s appellate contentions. He argues the trial court erred
in finding that his Petaluma residence was transmuted from separate property to
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community property, and in determining that Sandra was only required to reimburse the
community $51,612.50 for the funds Sandra applied to her separate property duplex in
Santa Rosa.
In part II, we discuss Sandra’s contentions in her cross-appeal. She asserts the
trial court erred in failing to order Victor to return all the money he withdrew from a
community certificate of deposit and deposited into his separate account, and in
excluding evidence concerning Victor’s misappropriation of community funds.
As we will explain, given the limited appellate record in this judgment roll appeal,
the parties did not meet their appellate burden to demonstrate reversible trial court error.
Accordingly, we will affirm the judgment.
BACKGROUND
We limit our background recitation to the circumstances relevant to the
contentions on appeal. Moreover, because the parties elected to proceed without a
reporter’s transcript, the relevant facts are taken from the trial court’s findings and
conclusions. (Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)
Prior to their marriage, Victor owned a residence in Petaluma and Sandra owned a
duplex in Santa Rosa. They married on September 8, 1991, resided in the Petaluma
residence and rented out both units of the Santa Rosa duplex.
Victor and Sandra drafted the Stupansky Family Trust in 1993 and transferred the
Petaluma property into the trust. They withdrew the Petaluma property from the trust in
1994 and transferred it to themselves in joint tenancy. The parties then sold the property
in 2002 for a profit of $610,000 and used the proceeds to purchase six unimproved lots in
Siskiyou County. They combined two of the lots, built a family residence on them, and
left the other four lots unimproved.
Victor and Sandra separated on October 2, 2008.
At trial, the parties disputed whether the Petaluma residence should be
characterized as community or separate property, whether the community had a right to
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reimbursement for expenditures on the Santa Rosa duplex, and whether money was
misappropriated from bank accounts. According to the trial court, “both parties made
numerous allegations of wrong-doing and concealment of community assets[;] however,
neither provided much evidence to support these allegations and the evidence that was
provided was often inadequate. The court was required to painstakingly sift through
numerous documents and try to piece together patterns to determine whether such
allegations were supported. Frequently the court found itself in the position of having to
resort to speculation and conjecture. At these points the court was required to resort to
family law presumptions to characterize property and rights of reimbursement.”
Victor testified he had no intention of transmuting his Petaluma residence from
separate to community property, and he had nothing to do with establishing the trust. But
Sandra testified that Victor wanted to establish a family trust, worked with an attorney to
draft the trust, and she had nothing to do with it. She maintained that she was not present
when Victor signed the trust document or transfer deeds. She said her name was put on
the title when the Petaluma property was withdrawn from the trust, and she had nothing
to do with drafting the deed to withdraw the property from the trust. Sandra did not put
her Santa Rosa duplex in the trust, despite Victor’s insistence that she do so, because she
did not know much about trusts.
Victor did not dispute that the parties retained an attorney to assist in the drafting
and implementation of the trust documents, that Victor alone handled the withdrawal of
the Petaluma property from the trust, or that the value of the Petaluma property on the
date of the marriage was $317,500.
The trial court found that Victor’s testimony was vague and that Sandra’s
testimony was more credible. It found no evidence of undue influence in the Petaluma
property transaction. It found the property was transmuted from separate to community
property, and that Victor was entitled to reimbursement from the community in the
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amount of $317,500, which was the only evidence of the separate property value of the
Petaluma residence before the transmutation.
With respect to Sandra’s Santa Rosa duplex, the trial court found that she
purchased it in 1988 and retained title as her separate property. She refinanced the
property in 1993 and asked Victor to sign an interspousal transfer deed transferring any
interest he might have in the property to her. Victor testified he was not coerced into
signing the deed and did so because he believed the duplex was her separate property.
The evidence demonstrated that the duplex was rented throughout the marriage, that the
rental amount was sufficient to pay the property expenses through 2007, and that there
were no significant repairs that exceeded its income between the date of the marriage and
2007. Accordingly, the trial court found the community had no interest in the Santa Rosa
duplex and was not disadvantaged by the execution of the deed.
Victor nonetheless alleged there was a community interest in the Santa Rosa
duplex because Sandra took funds from the community to support the duplex by paying
down the encumbrance and funding maintenance and repairs. Sandra countered that the
funds came from her separate property; that is, from a personal injury settlement she
received prior to the marriage in 1988, and from an inheritance she received from her
mother in 1998 and 1999. She used some of the personal injury settlement funds to
purchase the duplex, and placed the remaining amount in a bank account. After she
married, she continued to receive rental income from the property and deposited the
funds in a community bank account with Bank of America. She used the deposited funds
to pay the duplex expenses and, because the income exceeded the expenses, there was
money left over which was used to support the community.
Sandra received an inheritance of $123,000 to $127,000 between 1997 and 1999.
She deposited the money into a savings account, which the court indicated was a separate
property account. She used some of the funds to successfully defend a partition action
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brought by her daughter, who was a tenant in the Santa Rosa duplex, and other funds to
pay down the mortgage and refinance the Santa Rosa duplex in 1999.
Victor submitted bank statements as evidence that the funds used to pay down the
mortgage came from a community source. The trial court found that the evidence taken
as a whole indicated otherwise, and did not refute Sandra’s evidence that the money used
for repairs and to pay down the mortgage came from a separate property source. The
exceptions, however, were transfers of $11,612.50 and $41,000 from community bank
accounts, which Sandra failed to trace to a separate property source. Accordingly, the
trial court found that the Santa Rosa duplex was Sandra’s separate property, but that she
must reimburse the community in the amount of $52,612.50.
With respect to the parties’ community bank accounts, Victor and Sandra both
accused the other of bad faith in withdrawing and hiding large amounts of money. They
testified that the sale proceeds from the Petaluma property were deposited into a
“maximizer” account with Bank of America, and that the funds used to purchase the
Siskiyou properties and to build the family residence were taken from this account.
Thereafter, Sandra withdrew $169,656.86 from a community bank account and Victor
withdrew $43,500.95. The trial court observed that each party had the right of
management and control over community assets subject to acting as fiduciaries to the
other partner, and there was no evidence or explanation regarding the disposition of the
funds.
Victor also cashed a community property certificate of deposit in the amount of
$151,699.67 and deposited the money in a bank account held solely in his name. At the
time of trial, $110,000 was left in the account. The trial court found that the entire
$110,000 was community property and subject to the jurisdiction of the court.
Accordingly, it awarded each party $55,000.
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STANDARD OF REVIEW
The trial court has broad discretion over the division of community property.
(Fam. Code, § 2550; In re Marriage of Brown (1976) 15 Cal.3d 838, 848, fn. 10.)1 We
review the trial court’s judgment dividing marital property for an abuse of discretion. (In
re Marriage of Dellaria & Blickman–Dellaria (2009) 172 Cal.App.4th 196, 201.) We
review matters of law de novo, but uphold the trial court’s factual findings if supported
by substantial evidence. (Ibid.)
In the present case, the parties opted not to provide a reporter’s transcript and
elected to proceed on a clerk’s transcript. This is known as a judgment roll appeal.
(Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082–1083; Krueger v. Bank of America,
supra, 145 Cal.App.3d at p. 207; Code Civ. Proc. § 670.) “In a judgment roll appeal
based on a clerk’s transcript, every presumption is in favor of the validity of the judgment
and all facts consistent with its validity will be presumed to have existed. The sufficiency
of the evidence is not open to review. The trial court’s findings of fact and conclusions
of law are presumed to be supported by substantial evidence and are binding on the
appellate court, unless reversible error appears on the record.” (Bond v. Pulsar Video
Productions (1996) 50 Cal.App.4th 918, 924 (Bond); see also Cal. Rules of Court,
rule 8.163.)
“[T]he record before us consists properly of only the judgment, findings of fact
and conclusions of law in support thereof, and the pleadings; we are not concerned with
evidence taken in the trial court, either orally or through the admission of exhibits
(whether or not said exhibits are incorporated into the clerk’s transcript) . . . .” (Millbrae
Assn. for Residential Survival v. City of Millbrae (1968) 262 Cal.App.2d 222, 226-227.)
Appellants cannot enlarge the scope of appellate review by designating for inclusion in
1 Undesignated statutory references are to the Family Code.
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the clerk’s transcript documents not properly a part of the judgment roll, such as the
exhibits received in evidence. (Tibbets v. Robb (1958) 158 Cal.App.2d 330, 337.)
Furthermore, a judgment or order of the trial court is presumed to be correct, and
all intendments and presumptions are indulged to support it on matters as to which the
record is silent. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of
Gray (2002) 103 Cal.App.4th 974, 977-978.) It is the appellant’s burden to affirmatively
demonstrate reversible error by: (1) providing an adequate record that affirmatively
demonstrates error; (2) supporting all appellate arguments with legal analysis and
appropriate citations to the material facts in the record; and (3) showing exactly how the
error caused a miscarriage of justice, else his or her contentions are deemed forfeited.
(Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; City of Lincoln v. Barringer (2002) 102
Cal.App.4th 1211, 1239-1240; In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327,
337; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502;
Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)
Appellants may not simply incorporate by reference arguments made in papers
filed in the trial court rather than brief the arguments on appeal. (Garrick Development
Co. v. Hayward Unified School Dist. (1992) 3 Cal.App.4th 320, 334.) They must present
each point separately in the opening brief under an appropriate heading, showing the
nature of the question to be presented and the point to be made. (Cal. Rules of Court,
rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826,
1830–1831, fn. 4.)
These procedural rules are not mere technical requirements; they are essential to
the appellate process. Appellants must “present their cause systematically and so
arranged that those upon whom the duty devolves of ascertaining the rule of law to apply
may be advised . . . of the exact question under consideration, instead of being compelled
to extricate it from the mass.” (Landa v. Steinberg (1932) 126 Cal.App. 324, 325;
accord, Opdyk v. California Horse Racing Bd., supra, 34 Cal.App.4th at p. 1830, fn. 4.)
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With these rules in mind, we turn to the parties’ appellate contentions.
DISCUSSION
I
Victor contends the trial court erred in determining that his residence in Petaluma
was transmuted to community property. He argues there was no compliance with section
852, subdivision (a), which states: “A transmutation of real or personal property is not
valid unless made in writing by an express declaration that is made, joined in, consented
to, or accepted by the spouse whose interest in the property is adversely affected.” He
believes there was no transmutation because there was no express written language
indicating the intent to transmute the property.
The requirements for a valid transmutation under section 852 can be divided into
two basic components: (1) a writing that satisfies the statute of frauds, and (2) an
expression of intent to transfer a property interest. (Estate of Bibb (2001) 87 Cal.App.4th
461, 468 (Bibb).) In Bibb, there was no dispute that the grant deed at issue was a writing
satisfying the statute of frauds, and the appellate court held the use of the word “grant” in
the grant deed was an expression of intent to transfer a property interest. (Bibb, supra, 87
Cal.App.4th at pp. 468-469.)
Here, the trial court found the residence was transmuted from Victor’s separate
property into community property when Victor transferred the property to a family trust,
and then Victor and Sandra, as trustees of the trust, deeded the property to Victor and
Sandra as joint tenants. Victor has not shown error and no error appears on the face of
the record. Under these circumstances, the trial court’s findings of fact and conclusions
of law are presumed to be supported by substantial evidence and are binding on the
appellate court. (Bond, supra, 50 Cal.App.4th at p. 924.)
Victor also argues the trial court erred in determining that Sandra was only
required to reimburse the community for $51,612.50 that she used for her separate
property duplex in Santa Rosa, instead of the $370,872 that Victor alleged was owed to
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the community. He claims the trial court’s analysis “unfairly reject[ed] his community
property evidence and goes out of its way to establish separate property status for the
parties[’] funds for purposes of [Sandra’s] duplex.” In other words, Victor challenges the
sufficiency of the evidence to support the judgment.
But we cannot review the sufficiency of the evidence if the record does not include
all the evidence. In this judgment roll appeal, the limited record does not include a
reporter’s transcript of the five-day trial and Victor did not object to the statement of
decision or bring any asserted errors or omissions to the attention of the trial court.
Without a complete record, we must imply findings to support the judgment and we must
presume there is evidence to support the implied findings. “If the party challenging the
statement of decision fails to bring omissions or ambiguities in it to the trial court's
attention, then, under Code of Civil Procedure section 634, the appellate court will infer
the trial court made implied factual findings favorable to the prevailing party on all issues
necessary to support the judgment, including the omitted or ambiguously resolved issues.
[Citations.] The appellate court then reviews the implied factual findings under the
substantial evidence standard. [Citations.]” (Fladeboe v. American Isuzu Motors, Inc.
(2007) 150 Cal.App.4th 42, 59–60.) “ ‘In a judgment roll appeal every presumption is in
favor of the validity of the judgment and any condition of facts consistent with its validity
will be presumed to have existed rather than one which will defeat it. [Citation.] The
sufficiency of the evidence to support the findings is not open to review. [Citation.]’
(Wheelright v. County of Marin (1970) 2 Cal.3d 448, 454.)” (Estate of
Kievernagel (2008) 166 Cal.App.4th 1024, 1031; see also 9 Witkin, Cal. Procedure (5th
ed. 2008) Appeal, § 360, pp. 415-416.)
Because the appellant is confined to showing errors which are affirmatively
demonstrated by the record, “showing any such error is extraordinarily hard to do, given
that a challenge to the sufficiency of the evidence cannot be made.” (In re Marriage of
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Hall (2000) 81 Cal.App.4th 313, 316.) Here, Victor has not shown error and no error
appears on the face of the record.
II
In her cross-appeal, Sandra contends the trial court erred in failing to order Victor
to return all the money he withdrew from the community certificate of deposit and
deposited into his separate account. She argues there is no substantial evidence to
support the trial court’s ruling that the community is only entitled to reimbursement for
$110,000, which reflected the amount remaining in Victor’s separate property account,
rather than awarding the community the full $151,699.67 of community funds that he
deposited into the account.
As we have explained, however, the sufficiency of the evidence is not open to
review in a judgment roll appeal. (Bond, supra, 50 Cal.App.4th at p. 924.) We must
presume the trial court’s findings of fact and conclusions of law are supported by
substantial evidence. (Ibid.) Sandra has not shown error and no error appears on the face
of the record.
Sandra further contends the trial court erred in excluding evidence concerning
Victor’s misappropriation of community funds. Specifically, she argues the trial court
“erred in excluding admissible evidence in the form of records submitted by subpoena
from Bank of America under seal at trial demonstrating that [Victor] secretly, and
without [her] consent, transferred $51,500.95 between 2004 and 2009 from jointly-held
bank accounts into his separate bank account . . . .”
Nothing in the limited record demonstrates that Sandra made known to the trial
court the substance, purpose, and relevance of the excluded evidence such that we may
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say a miscarriage of justice occurred. (Evid. Code, § 354.) Under the circumstances,
Sandra has failed to meet her burden of providing a record establishing reversible error.
DISPOSITION
The judgment is affirmed. Each party shall bear their own costs on appeal.
MAURO , J.
We concur:
NICHOLSON , Acting P. J.
HULL , J.
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