Rey v. Rey (In re Rey)

• Decision Date: 12 May 2014
• Docket Number: B242418
• Court: California Court of Appeals Court of Appeals
• Parties: In re the Marriage of TERESA and MANUEL REY. TERESA REY, Respondent, v. MANUEL REY, Appellant.

In re the Marriage of TERESA and MANUEL REY.TERESA REY, Respondent, v. MANUEL REY, Appellant.

B242418

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

Filed: May 12, 2014

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. BD424077)

APPEAL from a judgment of the Superior Court of Los Angeles County, Frederick C. Shaller, Judge. Affirmed as modified.

John Viljoen and Rudy Aguirre for Appellant.

Teresa Rey, in pro. per., and Pete A. Urquijo for Respondent.

INTRODUCTION

Manuel Rey appeals from a final judgment of dissolution of his marriage to Teresa Rey. Manuel challenges the award of permanent spousal support to Teresa.¹ He also challenges the trial court's determinations of which properties were community property and which were his separate property, contending the trial court's ruling gave Teresa a windfall. Finally, he challenges decisions regarding surcharges and reimbursement. We agree in part with Manuel's challenges to the amount of the community property share of Teresa's real estate commissions and modify the judgment accordingly. In all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Manuel and Teresa were married on December 17, 1983 and separated on February 11, 2005. On April 5, 2005 Teresa filed a petition for dissolution of marriage. The trial court bifurcated the trial into the issue of status and the issues of spousal support and property. On June 27, 2006 the court entered a judgment of dissolution. On May 4, 2012 the court entered a final judgment on the reserved support and property issues after a trial.

The trial court awarded Teresa $1,500 in monthly permanent spousal support. In making this award the trial court considered the parties' ages (Manuel was 69 and Teresa was 61 in January 2011), the length of their marriage, their income, debts, and earning capacity, the community assets awarded, and other appropriate factors. The court ordered Manuel to pay spousal support until Teresa died or remarried, or until further court order.

Prior to the marriage, Manuel owned income properties. He also owned and operated a number of businesses, including California Auto Wholesalers, Safeway Auto Body, Rey Auto Sales, Rey Used Cars, Beeline Body Shop, and a Shell gas station. Both prior to and during the marriage, the parties purchased, sold, and received income from a number of properties. The parties also had a number of bank accounts. The trial court determined whether each of these assets was community or separate property and how each property should be distributed.

Specifically, the trial court determined that the property located at 1027 Western Avenue in Los Angeles was Manuel's separate property and awarded it to him. The court used the Moore/Marsden² apportionment formula to determine that there was a pro rata community property interest of $322,039 in the property, and awarded Teresa half of that amount, subject to equalization.

The trial court determined that an income property located at 15462 Beckner Street in La Puente was community property with net equity in the amount of $156,855.82. The court awarded it to Manuel as his separate property, subject to equalization. The court declined Manuel's request for reimbursement for separate property payments he claimed he made toward the down payment on the property.

The court determined that the property located at 4812 Cloverly Avenue in Temple City was community property. The court valued the property at $344,740 and awarded it to Manuel as his separate property, subject to equalization. It ordered the community to reimburse Manuel $15,786 for mortgage and tax payments pursuant to Family Code section 2626³ and In re Marriage of Epstein (1979) 24 Cal.3d 76. Thecourt also found Manuel was entitled to reimbursement of $33,948 under section 2640.⁴ The court denied the remainder of Manuel's requests for reimbursement of separate property used for the down payment on and improvement of the property.

The trial court awarded the property located at 1992 Bunker Avenue in El Monte to Teresa as her separate property. The Bunker Avenue property was an income property the parties purchased during their marriage, and they agreed it was community property. It had a net community equity of $320,137 after a $78,889 reimbursement to Manuel. The court denied Manuel's request for additional sums he claimed he spent on the acquisition and improvement of the property out of his separate property.

The trial court denied Manuel's request to surcharge Teresa for misappropriation of $30,000 in community funds under section 2602.⁵ The court found that Teresa earned$15,100 in real estate commissions prior to separation that were not paid until after the parties had separated. The court found that these commissions were community property and ordered that Teresa reimburse Manuel in the amount of $7,550.

DISCUSSION

A. Spousal Support

An award of permanent spousal support "'is governed by the statutory scheme set forth in sections 4300 through 4360. Section 4330 authorizes the trial court to order a party to pay spousal support in an amount, and for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances set forth in section 4320.' [Citations.]" (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1442; see In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594-595.) These circumstances "include the supporting spouse's ability to pay; the needs of each spouse based on the marital standard of living; the obligations and assets of each spouse, including separate property" (Blazer, supra, at p. 1442); the marketable skills of each spouse; the length of the marriage; the age and health of each spouse; the public policy that the supported spouse become self-sufficient; and any other relevant factors. (§ 4320.) "'The trial court has broad discretion in balancing the applicable statutory factors and determining the appropriate weight to accord to each, but it may not be arbitrary and must both recognize and apply each applicable factor.' [Citation.]" (Blazer, supra, at pp. 1442-1443; accord, In re Marriage of Left (2012) 208 Cal.App.4th 1137, 1150.)

We "act with 'cautious judicial restraint' in reviewing spousal support orders. [Citation.]" (In re Marriage of Left, supra, 208 Cal.App.4th at p. 1150.) We review the spousal support award "under the deferential abuse of discretion standard. [Citation.]We examine the challenged order for legal and factual support. 'As long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it.' [Citations.]" (In re Marriage of Blazer, supra, 176 Cal.App.4th at p. 1443; In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1286.) To the extent an appeal raises a question of law, however, our review is de novo. (Blazer, supra, at p. 1443.)

Here, the trial court analyzed all of the factors in section 4320 and stated its reasoning and the evidence on which it relied with respect to each factor. Manuel does not challenge the trial court's analysis or its reasoning. Rather, he contends that, to the extent the trial court relied on the parties' income and expense declarations, the support award is not supported by substantial evidence because income and expense declarations are not admissible evidence.

It is true that in Elkins v. Superior Court (2007) 41 Cal.4th 1337, on which Manuel relies, the California Supreme Court held that "declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the parties stipulate to the admission of the declarations or fail to enter a hearsay objection. [Citations.]" (Id. at p. 1354.) It is also true, as Manuel argues, that the parties' income and expense declarations were hearsay. Trial counsel for Manuel, however, never objected to the admissibility of the income and expense declarations on the ground they were inadmissible hearsay. (See People v. Eubanks (2011) 53 Cal.4th 110, 142 [failing to raise hearsay objection at trial forfeits the objection on appeal]; Fry v. Pro-Line Boats, Inc. (2008) 163 Cal.App.4th 970, 974 [failure to raise hearsay objection at trial waives argument on appeal]; In re the Marriage of Kerry (1984) 158 Cal.App.3d 456, 466 [even if a declaration contains hearsay or other inadmissible matter, "failure to object on these grounds in the trial court waives the defects"].)

Manuel argues that his trial attorney objected to the income and expense declarations by making the following statement during closing argument: "Now, with regard to the issue of spousal support, we are at trial and at trial it is the burden of the petitioner to present evidence under . . . section 4320 upon which the court can base anyorder for permanent support. Not one word was spoken during this entire trial on [Teresa's] behalf with regard to the issue of spousal support. For [Teresa's counsel] to ask the court for the court to make a spousal support order based on the income and expense declaration of his client and my client is totally inappropriate and the court cannot do that. At best, what the court can do in this case in this matter is to reserve jurisdiction over the issue of spousal support and not make any order with regard to either [Manuel] or [Teresa]." This statement, however, was not an objection to the introduction of evidence, let alone an objection to the admissibility of the income and expense declarations on the ground that they were inadmissible hearsay. A general objection to...