IN RE: the MARRIAGE Of Peter and Susanne C. FINK.

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Court of Appeal, Second District, Division 3, California.

IN RE: the MARRIAGE Of Peter and Susanne C. FINK. Peter FINK, Respondent and Respondent, v. Susanne C. FINK, Plaintiff and Appellant.

No. B036724.

Decided: November 22, 1989

Smith & Smith, Chester Leo Smith and Ann Smith, for plaintiff and appellant. Schenck & Edelman, John D. Schenck and Emily Shappell Edelman, for respondent and respondent.

Susanne C. Fink (Susanne) appeals from the “Further Judgment” entered June 7, 1988, awarding the family residence to herself and Peter Fink (Peter), as tenants in common.

We affirm the judgment.

THE QUESTION ON APPEAL

This appeal turns on whether there was substantial evidence to support the trial court's finding that the family residence at 1342 Avenida de Cortez, Pacific Palisades, (the Cortez house) “is the community property of [Susanne and Peter Fink].   The title was placed in [Susanne's] name for the purpose of avoiding or defrauding creditors,” and whether the court erred in ordering that both of the parties “are awarded one-half interest in said property as tenants-in-common.”

FACTUAL AND PROCEDURAL STATEMENT

Susanne and Peter were married on December 18, 1968, and were separated on May 29, 1982.   Their two children, Peter Todd Fink and Tamara Renee Fink, were born, respectively, on November 22, 1970, and September 16, 1977.

On November 2, 1984, Peter filed a petition for dissolution of marriage from Susanne.   Susanne filed her response on February 4, 1986.

Trial was held on March 11, 14 and 15, 1988.   The basic issue raised was whether the Cortez house was the separate property of Susanne or was community property of Susanne and Peter.   On this issue the following evidence was presented:

Prior to acquisition of the Cortez house, Peter and Susanne resided in a condominium unit located at 1305 Palisades Drive, Pacific Palisades (the condo).   The condo was purchased in 1973 for $52,000 with an $11,000 down payment.

The testimony was conflicting as to the source of the $11,000 down payment.   Peter testified that the source was a loan from his mother, Mrs. Fink, Sr.   Susanne testified that the down payment came from community funds, i.e., her earnings from teaching which were withdrawn from their joint account.   At that time Susanne had no bank account of her own.   Susanne testified that she did not know that the $11,000 down payment originated as a loan from Peter's mother.   She denied signing any promissory note evidencing such a loan.   However, Susanne admitted that her signature was affixed to the promissory note to Peter's mother for $11,000 signed August 27, 1973, by Peter and Susanne, which was Exhibit 5 at trial.   Exhibit 5 was admitted into evidence without objection.

Community funds were used to pay the $450 monthly payments for the condo.   When the condo was bought, Peter's annual income was about $45,000, and Susanne was not working.

Title to the condo was taken in Susanne's name as her separate property.   Susanne testified that she wanted to buy the condo as an investment because Peter was going to buy an airplane.   According to Susanne, Peter and a few others were going to buy a new airplane for $3,000 or $4,000.   However, she later testified that she did not “know what it was.”

Susanne testified that it was not safe for their two-year old son to continue to live with Susanne's mother at the latter's house in Glendale on a busy, four-lane highway.   But she denied that the condo was for the family.   When asked if she and her family were going to move into the condo and use it as their residence, however, she replied:  “yes and no.”

Peter testified that title to the condo was taken in Susanne's name solely to protect the family because in 1971, two years previous, he had been named as a defendant in a lawsuit for $50,000 arising from his activities as an employee of Shearson Hammill.   At that time his net income was less that $50,000.   He felt threatened by the lawsuit because his employer would not cover any judgment against him.   After discussing the problem with Susanne, he placed the title in her name in order to protect the condo from creditors.   Susanne testified that in 1973, she was not aware of the lawsuit against Peter.

Peter testified that he had joined the flying club in San Fernando Valley in 1973 for a total investment of $475 plus $40 per month fee.   The club owned two planes.

In 1975, Susanne and Peter decided to sell the condo and use the proceeds from the sale as a down payment on the purchase of the Cortez house, because they wanted a larger home.   The lawsuit mentioned above had been settled before the purchase of the Cortez house.   However, Peter, placed title to the Cortez house in Susanne's name as her sole and separate property in order to protect the family because he had no insurance, feared potential creditors in his business, and was a “shooting duck.” 1

U.S. Life Savings and Loan, the lender for the Cortez house purchase, required both Susanne and Peter to sign all the necessary loan documents, including financial statement, application for the loan, and note and deed of trust.   However, Peter was the principal earner in the family.   These documents along with Peter's quitclaim deed to Susanne were admitted into evidence as Exhibit 4 without objection.

Monthly payments on the Cortez house came primarily from Peter's earnings during the marriage.   Peter testified that he never intended to relinquish his interest in the condo and the Cortez house and that Susanne knew this to be the case just as she knew why title had been placed in her name.

At the conclusion of the trial, the court found that the Cortez house was the community property of Susanne and Peter and that title had been placed in Susanne's name pursuant to the agreement of Susanne and Peter solely to avoid or defraud creditors.

On March 23, 1988, Susanne filed a request for statement of decision.   An “Amendment to Request for Statement of Decision” was received by the court on March 24, 1988.

Peter's counsel was ordered to prepare a proposed judgment and statement of decision.   On April 20, 1988, the proposed statement of decision prepared by Peter's attorney was signed by the court and filed.   On April 24, 1988, Susanne's attorney filed a proposed judgment.   On the same date, Susanne filed objections to the proposed statement.   She then filed a motion to set aside “if necessary” Peter's statement of decision and to have her objections deemed timely filed.   On May 12, 1988, Peter's response was filed.   After hearing on the objections on May 24, 1988, the court took the matter under submission.   On June 7, 1988, the court re-adopted Peter's proposed statement of decision which had been signed by the court and filed on April 20, 1988.   The “Further Judgment” was signed by the trial judge and was filed on June 7, 1988.

ISSUE PRESENTED

The sole issue raised on this appeal is whether the court's finding that the Cortez house was the community property of Peter and Susanne is supported by substantial evidence.2

DISCUSSION

“A trial court's findings regarding a property's separate or community character is binding and conclusive on review when supported by substantial evidence [citations], even though evidence conflicts or supports contrary inferences.  [Citations.]”  (In re Marriage of Grinius (1985) 166 Cal.App.3d 1179, 1185.)

Based on our review of the record we conclude that substantial evidence supports the trial court's findings that the Cortez house was community property.

The record reflects that record title to both the condo and the Cortez house was taken in Susanne's name as her separate property.  “While our courts presume an ownership interest in property is as stated in title [citations], this presumption may be dispelled by an agreement between the parties that the respective interests should be otherwise.”  (Id. at pp. 1189-1190.)

There is ample evidence in the record to support the trial court's finding that the presumption of separate property was rebutted in this case.   That evidence established the community nature of the funds used to acquire the Cortez house and the lack of donative intent on the part of Peter.  (See, e.g., In re Marriage of Frapwell (1975) 49 Cal.App.3d 597, 601.)

The source of the funds was clearly community property.   The down payment for the Cortez house was traced to the price paid for the condo, which had been acquired through community property resources.   The lender for the balance of the Cortez house purchase price looked solely to the community for repayment of the loan.  (Gudelj v. Gudelj (1953) 41 Cal.2d 202, 210;  In re Marriage of Grinius, supra, 166 Cal.App.3d 1179, 1186-1187.)

At trial Peter expressly testified that he had discussions with Susanne about placing title to the condo and the Cortez house in her name for protection against creditors.   In his deposition Peter testified that he did not remember any discussions.   However, during trial he explained that although his deposition testimony was accurate, what he meant was simply that he “did not recall a specific hour, a specific conversation, a specific date that something transpired.   That's why [he] answered that way, but, in fact, [he and Susanne] had to have and [they] did, in fact, have those conversations.”  (See, e.g., In re Marriage of Stitt (1983) 147 Cal.App.3d 579, 582-583.)

DECISION

The judgment is affirmed.

NOT TO BE PUBLISHED

DANIELSON, Justice.

KLEIN, P.J., and ARABIAN, J., concur.

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