Marriage of Braud, In re
| Decision Date | 21 May 1996 |
| Docket Number | No. A067045,A067045 |
| Citation | 45 Cal.App.4th 797,53 Cal.Rptr.2d 179 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 96 Cal. Daily Op. Serv. 3643, 96 Daily Journal D.A.R. 5921 In re the MARRIAGE OF Daniel and Connie BRAUD. Daniel BRAUD, Appellant, v. Connie BRAUD, Respondent. |
Francis B. Mathews, Mathews & Kluck, Eureka, for appellant.
Donald W. Bicknell, Michael S. Gillaspie, Dalton & Bicknell, Eureka, for respondent.
In these cross-appeals, Daniel Braud and his ex-wife, Connie Braud, 1 seek review of an "Order on Reserved Issues," which was entered after trial in this marital dissolution action on June 23, 1994. By that order, the trial court ruled that: (1) Notwithstanding Daniel's substantial separate property investment in the family home, sale would be deferred until the parties' youngest child reaches the age of 18, pursuant to Family Code section 3800 et seq.; 2 (2) At the time of sale, Daniel would be reimbursed (without interest) for a $34,396 lump-sum payment on the parties' mortgage plus $10,000 for improvements to the family home, both of which he claimed to have paid out of funds he inherited from his grandmother; (3) Daniel was entitled to keep $20,734 out of a $25,000 withdrawal he made in September 1991 from a joint account which contained both separate property and community property funds; (4) Daniel was to receive an offset against his monthly child support obligations in an amount equal to one-half the net fair rental value of the family home; and (5) Connie was to receive an award of attorney fees, but the amount would be limited to $500.
We conclude that the trial court had jurisdiction to enter the deferred sale of home order in this case, and did not abuse its discretion in fashioning the deferred sale order and the net fair rental value offset for Daniel's support obligations. We further conclude that substantial evidence supports the trial court's confirmation of Daniel's $20,734 separate property interest in the funds withdrawn in September 1991. Accordingly, we will affirm those aspects of the trial court's order of June 23, 1994.
As to the separate property interest attributable to Daniel's lump-sum payoff of the parties' mortgage in March 1991, however, we conclude that the trial court erred when it refused to consider Daniel's argument that, rather than a fixed sum of $34,396, he should recover a percentage of the proceeds from the deferred sale. Furthermore, as to the $10,000 Daniel claimed for improvements to the family home, we conclude that there was insufficient evidence presented at trial to trace those improvements to a separate property source. Finally, we conclude that the trial court abused its discretion by awarding Connie less than 10 percent of the attorney fees she incurred in the trial court proceedings, without any explanation of the reasons or other apparent basis in the record for such a sharp reduction of this need-based award. In these respects, we will reverse the trial court's June 23, 1994 order, and remand for further proceedings consistent with this opinion.
The parties were married in 1976 and separated in October 1991 after 15 and a half years of marriage. They had three children, who were fourteen, ten, and five years of age at the time of trial in June 1993. 3 In 1985, the parties purchased and moved into the family home on Chestnut Street in Eureka when the two older children were, respectively, six and two years old. The parties borrowed $10,000 from Connie's parents to be applied as a down payment on the total purchase price of $52,000, and the seller (a relative of Connie's) accepted a note for the balance. Daniel later applied $34,396 from his inheritance to pay off this loan. 4 The family home is adjacent to Lafayette Elementary School where, at the time of trial, the parties' middle child had just completed fifth grade and the youngest child had just completed kindergarten. At the time of entry of the judgment below, the family home was found to have a fair market value of $125,000.
During the marriage, Daniel worked as a long-haul trucker earning approximately $3,000 per month. At the time of trial, Daniel was earning substantial overtime pay, but had not filed current income/expense declarations. His most recent financial statements were from December 1992, which included paystubs that were 10 to 12 months old at the time. He had substantial separate property at the time of separation, including: a dune buggy, a jet ski boat and trailer, classic automobiles, $13,000 of liquid assets (including $6,000 in currency), and an interest in an oil well. 5 Daniel also had a future interest in one-third of a piece of real estate valued between $200,000 and $300,000, and lived rent-free on that property.
Connie was a full-time homemaker and had no earned income at the time of trial. She had no significant work history outside the home during the marriage, and no success finding employment after the couple's separation. Connie is a high school graduate and attended community college for one year, but did not receive any degree or certificate from that college. She has no special job training except a bus driving course she took after separation. At the time of trial, Connie was receiving a total of $900 per month in temporary child and spousal support. She had no other money with which to pay attorney fees. She had no liquid assets, except a couple of hundred dollars in the bank.
The trial of this matter commenced on June 7, 1993. The matter was argued and submitted upon the receipt of post-trial briefs on June 17, 1993. On January 18, 1994, after a series of post-trial motions, the trial court filed an order awarding Connie child support in the amount of $1244 per month 6 but, at Connie's request, no spousal support. The trial court retained jurisdiction over the issue of spousal support. Also on January 18, 1994, the trial court awarded Connie $500 for attorney fees, plus her actual costs, for the motion to modify spousal support.
After further post-trial proceedings regarding Connie's request for a deferred sale of the family home, the trial court issued an "Order on Reserved Issues" on June 23, 1994. By that order, which was explained in greater detail in a subsequently filed statement of decision, 7 the trial court specifically found that it was in the best interests of the children to defer sale of the family home until the youngest child turned 18, or until further order of the court. The court also determined that it was economically feasible for Connie to remain in the family residence with the children, since there was no outstanding mortgage balance and she did not have the financial ability to obtain other suitable housing for herself and the children. The court also found that Daniel was able to live rent-free in a small house on a piece of property in which his father had a life interest. Alternatively, the trial court found that Daniel had adequate income from his job and separate property resources with which he would be able to obtain housing for himself and his children when they come to visit. Based on these findings, the court ordered that sale of the family home would be deferred until the parties' youngest child turned 18, or until further order of the court. The court retained jurisdiction over the property pursuant to section 3809.
Over Connie's objection, the trial court further determined that the family home had a fair rental value of $700 per month and allowed Daniel an offset of 50 per cent of the "net fair rental value" (the fair rental value, less amounts to be paid by Connie for insurance, taxes and maintenance) against his monthly support obligations. 8 The court also awarded Daniel a separate property interest in the family home of $44,396, which would be reimbursable to him upon sale, without interest, before division of the net sale proceeds between the parties. 9 Connie has at all times conceded that Daniel has a separate property interest for the lump-sum amount he paid on the mortgage. However, she objected to the trial court's award to Daniel of an additional $10,000 separate property interest for improvements made to the house, and a separate property interest in $25,000 that Daniel removed from the parties' joint bank account shortly before they separated. 10 Finally, the trial court awarded Connie "an additional $500.00 attorney's fees and actual costs...."
On August 29, 1994, Daniel filed a notice of appeal "from the 'Order on Reserved Issues' entered June 23, 1994." On September 14, 1994, Connie timely filed a cross-appeal from "the Judgment entered in the above-entitled matter on June 23, 1994."
In the main appeal, Daniel challenges those portions of the trial court's order by which it deferred sale of the family home for up to 12 years, and ruled that his separate property interest in the home would be reimbursed upon sale without interest. Daniel contends that the trial court was without jurisdiction to order a deferred sale of the family home in this case--i.e., a "mixed asset" in which he, as the spouse out of possession (the "nonresident parent" or the "out-spouse"), has a separate property interest. Daniel further contends that Connie's living arrangements with her "carpenter boyfriend," Keith Combs, constitutes a "remarriage" or "change in circumstances" within the meaning of section 3808, creating a rebuttable presumption that deferral of the sale was and is improper. Assuming we find the deferred sale order to be proper, Daniel further contends that the trial court erred in calculating both his interest in the proceeds of the future sale of the family home, and the offset against his current child support obligations for the portion of the net fair rental value attributable to his share of the house. 11 We will discuss each of these issues in turn.
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