IN RE: Marriage of MARLENE and SHAHROKH KOJOORI. (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Marlene Kojoori (“Marlene”) and Shahrokh Kojoori (“Sean”) separated in 1995 after about 15 years of marriage.   About six years later, in 2001, Marlene petitioned for dissolution and determination of the parties' property rights.

The judgment-entered December 19, 2008, after eight or more days of trial extending over a period of years-resolved many disputed factual issues.   Sean filed a timely appeal from the judgment, arguing that the trial court erred with respect to five specific determinations and rulings.   We affirm the judgment.

BACKGROUND

Except as otherwise specified, we view the relevant evidence in the light most favorable to the judgment.  (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 604 [reviewing court applies substantial evidence standard of review to trial court's factual findings];  see also 9 Witkin, Cal. Procedure (5th ed.   2008) Appeal, § 365, p. 421.)   Our inquiry therefore is “whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted,” supporting the court's finding.  (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)  “We must accept as true all evidence ․ tending to establish the correctness of the trial court's findings ․, resolving every conflict in favor of the judgment.”  (Ibid.)

The 20th Street Property

In 1983, the parties purchased a Santa Monica residence, which included a few rental units (the “20th Street property”), taking title in Sean's name.   Although Marlene apparently signed a quitclaim deed to Sean (for reasons and with consequences that were disputed), shortly thereafter the parties transferred title to Marlene as her separate property, apparently in order to avoid creditor's claims against Sean.

After the parties' separation, Sean and their then-minor daughter, Lilah, continued to live in the 20th Street property.   Sean and Lilah managed the property, collected rents, and paid the mortgage and other expenses.   In 2001, about six years after the separation and shortly after Marlene filed for dissolution, Sean (a real estate broker) transferred the 20th Street property by quitclaim to Lilah, who was by then an adult.   To accomplish the transfer, Sean used a 1987 power of attorney, without Marlene's knowledge, that Marlene had given him while she was seriously ill and in pain shortly before undergoing major abdominal surgery.¹

The Tehachapi Property

In 1989, the parties purchased an unimproved parcel in Tehachapi, California, taking title in Marlene's name.   In 2001, Sean used the 1987 power of attorney to transfer that property to Lilah, also without Marlene's knowledge.   After separation, Sean or Lilah made payments on the Tehachapi mortgage;  however the mortgage remained in Marlene's name until it was paid in full in 2004.   In 2005-after the transfer to Lilah became known to Marlene and to the court-Lilah conveyed the property by unrecorded quitclaim deed to Sean.

The Parties' Contentions

In addition to resolving the disputed character of these and other properties as separate or community assets, the trial court was called upon to determine the appropriate accounting for the properties and the parties' interests in them.   Sean sought reimbursements and equalizing payments from the community for the down payment, mortgage payments, and expenses he made after separation for the 20th Street property;  for mortgage payments after separation for the Tehachapi property;  and for his community property share of Marlene's pension after separation.   Marlene sought reimbursements and equalizing payments for damages arising from the allegedly wrongful property transfers;  for the rental value of the 20th Street property unit occupied by Sean after separation;  for spousal support;  and for attorney fees, reformation of deeds, and injunctive relief with respect to her power of attorney.

The Statement of Decision and Judgment

Resolving the various factual disputes, the trial court held that the parties separated on February 14, 1995, and the marriage terminated as of December 19, 2008, the date of the judgment.   It held that the 20th Street property was community property with a value as of trial of $1,000,000, and that the Tehachapi property was also community property, with a value of $35,000.   It found that neither party could afford to pay support or attorney fees to the other.   This appeal does not challenge these determinations.

The trial court also found, by clear and convincing evidence, that by using the stale power of attorney to transfer these properties after Marlene had filed for dissolution, Sean and Lilah had fraudulently conspired to deprive Marlene of her community property interests in the 20th Street and Tehachapi properties;  that Sean did so knowing that Marlene's consent was required by law for any property transfer;  and that the transfers violated Family Code sections 1100, subdivision (e), and 1101,² violated the Automatic Temporary Restraining Order provided in Family Code section 2040,³ and breached Sean's fiduciary duties to Marlene.   It specifically found that Sean's breach of fiduciary duty with respect to the 20th Street property was done with the fraudulent intent to permanently deprive Marlene of her interest in this community property, coming within the requirements of Civil Code section 3294 for the proof of punitive damages.

The Issues

Sean identifies five specific issues involving the trial court's determination of certain of the reimbursements and equalizing payments found to be due each of the parties with respect to the properties, the finding that Sean breached his fiduciary duties, and the award of attorney fees to Marlene with respect to that determination:

1. The court erred by failing to award Sean reimbursement “of at least $100,000 and as much as $150,000” for his separate property contributions to purchase the 20th Street property, and for its appreciation in value before title was transferred to Marlene's name.

2. The court erred by failing to award Sean reimbursement for his reduction of the 20th Street property's principal mortgage balance by $180,166 between the date of separation and trial.

3. The court erred by sanctioning Sean for breaching his fiduciary duties to Marlene in connection with the property transfers after Marlene filed for dissolution, and the sanctions the court imposed are excessive.

4. The court erred by ordering a fixed-amount equalizing payment to Marlene for the 20th Street property, with interest until it is paid, rather than in an amount that reflects the price at which the property is eventually sold, adjusted for expenses of sale.

5. The court erred by using CACI life expectancy tables, rather than expert testimony, as a basis for its determination of the present value of Marlene's pension.

DISCUSSION

1. The trial court did not err by declining to reimburse Sean for the 20th Street property's appreciation after purchase.

The parties purchased the 20th Street property in 1983, during their marriage, taking title in Sean's name, but transferring title shortly thereafter to Marlene's name.   The trial court expressly found that they had a mutual understanding that their properties were community property, without regard to how title was held.   It held that Sean “established title to the property in his name initially and instigated changes in title during the marriage to suit his then-current needs” The “[e]vidence is clear and convincing that [Sean] manipulated the title to the property to suit his needs to avoid liability [to third parties] and to preserve the community property from claims.”   Sean does not directly challenge these findings or the evidence that supports them.

Sean contends, however, that the trial court nevertheless was required to find that the 20th Street property was Sean's separate property when it was acquired, and that the court therefore erred by failing to award him reimbursement from the community for the $100,000 to $150,000 he claims the 20th Street property appreciated during the time after its purchase and before title was transferred to Marlene's name.   According to Sean, the overriding circumstance is the fact that title was initially taken in his name, precluding the trial court from relying on Family Code section 760's presumption that property acquired during marriage is community property.   According to Sean, the contrary presumption of Evidence Code section 662-that the owner of legal title is presumed to own the beneficial title-is controlling, because “there was no testimony that rebutted” the presumption that Sean acquired the property “as his separate property with the consent of [Marlene].”

Sean's contention fails for its lack of support in both the record and the law.   The trial court expressly found from the evidence-the sufficiency of which Sean's opening brief does not challenge-that from the outset, the parties had acquired the 20th Street property as a community asset;  that clear and convincing evidence established their mutual understanding that the property was community property without regard to the form in which title was held;  and that the transactions in which title to the property was changed “were shams and there was no intention to transmute the property” from community to separate.   Sean has not shown that these determinations are unsupported.

Although Sean testified that he paid the down payment from his separate property, that testimony was contradicted by Marlene's evidence that the down payment came from “money that we had in a joint account,” containing proceeds from a jointly run business enterprise;  that she initially understood the property had been held in both their names;  and that she had been coerced by Sean to sign the original purchase papers, the significance of which she did not understand.   The trial court was entitled to accept Marlene's testimony, and to disregard the quitclaim in which she later recited that the property was Sean's separate property.   The court found, on the basis of clear and convincing evidence, that the parties did not intend the recital to be controlling between them.⁴

Where the evidence is in conflict, as it is here, we are required by the rules to view the evidence in the light most favorable to the trial court's determination.  (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 631;  In re Marriage of Frick (1986) 181 Cal.App.3d 997, 1010 [tracing presents question of fact for trial court, “and its finding will be upheld if supported by substantial evidence”].)   In other words, we must presume that the trial court resolved the conflicting evidence by determining that the down payment came from community funds.

Sean's contention that the presumption of Evidence Code section 662 was unrebutted therefore is wrong, even if he were right that the presumption of Evidence Code section 662 would otherwise overcome the presumption of Family Code section 760.   Marlene's testimony, cited above, was sufficient to rebut any such presumption, and Sean does not address why it was not.   (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1057-1058 [“Whether the spouse claiming a separate property interest has adequately met his or her burden of tracing to a separate property source is a question of fact and the trial court's holding on the matter must be upheld if supported by substantial evidence.”].)

Because under the trial court's fully supported findings that the community-not Sean-owned the property during the period between its initial purchase and the date title was placed in Marlene's name, any post-purchase appreciation therefore accrued to the community, not to Sean. (In re Marriage of Walrath (1998) 17 Cal.4th 907, 924 [“any appreciation to the value of a community asset ․ belongs to the community]”;  see In re Marriage of Cochran, supra, 87 Cal.App.4th at p. 1057 [spouse who contributed separate funds to community is entitled to reimbursement for contributions, but not for property's appreciation in value].)   The trial court correctly declined to require the community to reimburse Sean for any appreciation in the 20th Street property after its purchase.

2. The trial court did not err by declining to order reimbursement to Sean for certain post-separation reductions of the 20th Street property's principal mortgage balance.

The trial court found that from the date of separation until trial, Sean reduced the mortgage debt encumbering the 20th Street property by $180,166.   During the same period, he discharged the $26,410 Tehachapi property mortgage.   Sean contends that these findings entitled him to reimbursement from the community for the $206,576 ($180,166 plus $26,410) by which the community's mortgage debt was reduced between the dates of the parties' separation and the trial.

The trial court agreed that Sean was entitled to reimbursement in that amount, under the Family Code and relevant case law.  (Fam.Code, § 2626;  In re Marriage of Epstein (1979) 24 Cal.3d 76, 89;  In re Marriage of Stallworth (1987) 192 Cal.App.3d 742, 752.)   But it also held that the 20th Street property's mortgage reductions were reflected as expenses in Sean's accounting for net losses on that property.   Relying on expense figures from tax returns for that property, “and from testimony of husband,” the court found a total of $516,704 expenses were paid after separation, and specifically that “these sums include mortgage payments that appear to have been deducted as expenses.”   In order to avoid counting the 20th Street property's mortgage reduction payments twice, the court awarded reimbursement to Sean from the community for only $26, 410, the amount by which the Tehachapi property's mortgage balance was reduced after separation.⁵

Sean's appeal contends that the trial court was wrong, because the expense payments on which the court relied reflect only the payments of mortgage interest, not payments to principal reduction.   He apparently contends (although his briefs are less than clear on this point) that he therefore should have been awarded reimbursement from the community for the mortgage balance reduction, as well as for the net loss on the property's operations during the parties' separation.

On the record in this appeal, we cannot agree.   Neither party has identified evidence in the record showing with certainty that the trial court was either justified or unjustified in finding that the expenses for the 20th street property's operation during the period of separation included payments attributable to mortgage principal reduction;  but the burden of demonstrating any error was Sean's.  (In re Marriage of Cochran, supra, 87 Cal.App.4th at p. 1056.)   Sean's testimony-offered after the court had expressed its tentative decision on this issue-generally supported the proposition that he was entitled to additional reimbursement for mortgage reduction on the 20th Street property, but he presented no documentary evidence compelling that conclusion.   Two pages of a 1998 tax return were the only documentary evidence before the court on the issue.   His self-prepared profit and loss statements for the post-separation period (Exh. 127) -which his counsel conceded were “the only reliable evidence of the actual income and expenses”-were not admitted into evidence, and would not have been decisive even if they had been admitted.

Here, as in In re Marriage of Cochran, supra, 87 Cal.App.4th at pages 1059-1060, Sean failed to meet his burden of establishing the portion of his expense payments attributable to paydowns of mortgage principal.   In the absence of that showing, we accept as justified the trial court's finding on that issue.

3. The trial court did not err by finding that Sean breached his fiduciary duties.

The trial court found that Sean breached his fiduciary duties with respect to the 20th Street and Tehachapi properties:  “Clear and convincing evidence proves that [Sean] and his daughter Lila fraudulently conspired to deprive [Marlene] of her interest in the Santa Monica and Tehachapi properties without wife's consent by the improper use of wife's medical power of attorney executed ten years previous to the fraudulent transfers.”   Sean knew that Marlene's consent and signature was required for any property transfer, “since husband was a real estate broker,” and because the property was held in her name alone.   Sean nevertheless “found a way to take the Santa Monica property from his wife” without her knowledge, consent, or signature, shortly after she filed for dissolution, by using the stale power of attorney to transfer the property to his daughter without consideration.   And when he later caused title to the property to be retrieved from the daughter during trial, it was transferred to Sean alone, not to Marlene.   Sean does not dispute the sufficiency of the evidence to support these factual findings.

These breaches of fiduciary duty, the trial court held, were clearly fraudulent and sufficient to meet the punitive damage requirements of Civil Code section 3294.   The appropriate remedy, it found, was to award Marlene a 50 percent interest in the 20th Street property and a 100 percent interest in the Tehachapi property, and to require Sean to pay Marlene's attorney fees incurred in the proceeding, pursuant to subdivision (h) of Family Code section 1101.⁶  The court held that Lilah is jointly and severally liable for the breach as a co-conspirator, and declined to require the community to reimburse her attorney fees;  but it also declined to require Lilah to pay any of Marlene's legal fees.

Sean contends that, because Marlene failed to plead any such claim under Family Code section 1100 et seq., the trial court should not have concluded that there was a breach of fiduciary duties;  that the evidence does not support the conclusion that Sean acted with malice;  and that the court was without authority to hold Lilah jointly liable with Sean for a breach of duty “that she did not owe to her mother at all.”   Here, too, Sean has failed to meet his burden of demonstrating error or prejudice.   The record provides ample support for the determinations that Sean breached his fiduciary duties to Marlene, and that in doing so he acted with malice under Civil Code section 3294;  it shows that Sean was not prejudiced by the absence of a separate pleading charging him with breaches of fiduciary duty;  and it shows that Sean's third point is not properly before this court.

Sean's first point boils down to an assertion that the trial court lacked discretion to apply the remedies of Family Code section 1101 sua sponte, without a formal pleading of claims by Marlene.   We find nothing in the language of Family Code sections 1100 or 1101, nor in any authority cited by Sean, that so limits the trial court's discretion.   But even if the trial court's discretion were so narrowly circumscribed, on this record Sean is unable to show the slightest prejudice resulting from the lack of a formal pleading seeking the remedies the Code provides for his breaches of fiduciary duties.

The trial in this case took nine days over a period of three years beginning in December 2005 and concluding in September 2008.   The trial court announced its Statement of Decision on March 14, 2008, about six months before Sean presented his final testimony and about nine months before judgment was entered, setting forth the court's intended findings and the remedies that it intended to impose pursuant to Family Code sections 721 and 1101.   Sean thus had ample notice of the trial court's intended findings, and ample opportunity to make any contrary evidentiary showing on those issues, before judgment was entered.   And he also had ample opportunity to interpose objections to the intended rulings on the grounds he asserts here.   If Sean had objected in the trial court on these grounds, the pleadings could have been amended if necessary, and any surprise or prejudice could have been alleviated.  (Code Civ. Proc., § 576 [“Any judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order”];  see also Code Civ. Proc., § 473.)

Thus even if the absence of formal pleadings asserting claims for breach of fiduciary duties with malice were sufficient to show error (a determination we have not made), Sean's appeal must fail due to the absence of resulting prejudice.  (Cal. Const., art.   VI, § 13 [reversal for error is required only if it has resulted in a miscarriage of justice].)   Having failed to identify in the trial court (or even in this court) how he was prejudiced by the absence of formal pleadings seeking the remedies that the trial court announced in advance that it intended to impose, Sean's assertion of prejudice in this appeal comes too late.

Sean also fails to substantiate his opening brief's assertion that there was “no evidence of malicious intent” or of an intent to deprive Marlene of ownership of the properties.   Beyond making these bare assertions, however, he provides no supporting citation or discussion of the evidence that reflects on those issues.   He does not specifically deny that substantial proof supports the trial court's findings that after Marlene filed for divorce, Sean fraudulently conspired with Lilah to deprive Marlene of her interests in the 20th Street and Tehachapi properties;  that he did so by improperly using Marlene's stale medical power of attorney to transfer Marlene's interest to Lilah without consideration, knowing that he did not have Marlene's required consent and that his use of the power of attorney without her consent was illegal;  that he did so in violation of the Automatic Temporary Restraining Orders imposed on him under Family Code section 2040;  and that he did so with the fraudulent intention to permanently deprive Marlene of her ownership interest in the properties.   Sean's failure to summarize and address the evidence on which the trial court relied to find that he acted with fraudulent and malicious intent to deprive Marlene of her share of the properties renders it unnecessary for us to review its sufficiency on appeal.  (Baker v. Wadsworth (1970) 6 Cal.App.3d 253, 260-261.) ⁷  The trial court's findings would have justified an award to Marlene of “an amount equal to 100 per cent” of both those properties.  (Fam.Code, § 1101, subd. (h).)  The court's determination to award her less than that-just 50 percent of the 20th Street property and 100 percent of the Tehachapi property-is fully supported.

Sean's third point, that the trial court erred by finding Lilah jointly and severally liable for Sean's breaches, is beyond our jurisdiction.   The extent (if any) to which Lilah might be prejudiced by the challenged finding is unclear;  but Lilah has not appealed from the judgment, and the issue is not before us.  (Whalen v. Smith (1912) 163 Cal. 360, 363, 365-366 [appellate court does not decide issues that adversely affect only nonappealing parties].)

4. The trial court did not err in declining to retain jurisdiction until after a sale of the 20th Street property in order to adjust the reimbursement due Marlene.

The trial court found that the 20th Street property had a net value of $930,000 at the time of trial, accounting for the cost of required repairs.   Based on that figure, it held that Sean could retain the property upon making an equalizing payment to Marlene of $287,010, along with any unpaid portion of the attorney fee award, within six months after the judgment's entry;  otherwise, he must sell the property in order to fund the equalizing payment.

Sean argued in the trial court, and contends on appeal, that the trial court abused its discretion by declining to retain jurisdiction to adjust the amount of the equalizing payment to Marlene depending on the actual expenses and proceeds of the sale.   He denies that this amounts to a contention that the property should be valued as of the date of sale, rather than the date of judgment-which he concedes would contradict the rule that value is to be determined at time of trial (In re Marriage of Hahn (1990) 224 Cal.App.3d 1236, 1240-1241)-and he does not argue that the value that the trial court found as of the date of trial was unsupported or wrong.   In the trial court he sought a somewhat different result, which he does not raise on appeal:  He argued that the property “need not be sold”, but that instead, title should remain with him and he should be permitted to refinance the property to enable him to make his equalizing payment.⁸

The plain implication of Sean's argument that the trial court should have retained jurisdiction to adjust the amount due Marlene after the property's eventual sale is that he should be permitted to retain title, possession, and control over the property, but Marlene should be required to share in the risk that the property might decline in value after judgment, or that his judgment about when and how to sell might be less than optimal.

Trial courts are vested with broad discretion to determine the manner in which marital property should be divided in order to accomplish the equal division that the law requires.  (In re Marriage of Connolly (1979) 23 Cal.3d 590, 603;  see In re Marriage of Gray (2007) 155 Cal.App.4th 504, 514 [trial court has broad discretion to fashion apportionment of property interests that is equitable under the circumstances of the case].)   Sean has offered no authority for his charge that the apportionment of interests represented in this judgment exceeded or abused the trial court's discretion, and we find that it did not.

The judgment did not and does not require Sean to relinquish title to the 20th Street property.   Nor does it require the property's sale and a division of proceeds, either as part of the judgment (as Marlene had requested) or in order to enable Sean to make the equalizing payment.   Just as Sean had requested, it permits Sean to retain title to the property in his name and to determine for himself whether, when, and on what terms the property will be retained, sold, or refinanced.

But at the same time, the judgment requiring an equalizing payment in a fixed amount, without regard to whether the property is or is not eventually sold, reflects the trial court's recognition that Marlene is entitled to receive her equalizing payment within a reasonable time after judgment.   The trial court was entitled to conclude that unless the judgment embodied that requirement, and provided a realistic means to enforce it, the judgment would fail to protect Marlene's right to the share of the separate and community property interests to which she is entitled.⁹

The record does not fully disclose all the considerations on which the trial court might have based the division of property that its judgment provides.   It apparently determined that Sean wished to retain the 20th Street property, while Marlene did not;  that Sean was not then able to fund his equalizing payment to Marlene;  and that Sean might not be able to make that payment within a reasonable time unless he were to sell the property, or to refinance it-as he had suggested.   Because the wisdom and availability of a future refinancing transaction would necessarily be uncertain, the trial court wisely neither prohibited nor required that measure, but instead ordered that unless Sean could otherwise finance his equalizing payment to Marlene, he must sell the property in order to do so.   The judgment thus seeks to approach as closely as possible a workable balance of the parties' rights and objectives, just as it is required by law to do.  (Fam.Code, § 2553 [court may make any orders it considers necessary to carry out purposes of property division provisions of statute].)

The fact that Sean was afforded the right to retain the property if he could make the equalizing payment to Marlene within 180 days did not change the court's valuation of the property as of the date of trial, and did not change the fact that Marlene was entitled to be paid for her equalizing share as of that date.   It merely imposed a means to ensure that Sean would actually pay the required amount, without either imposing needless restrictions on his ability to control his use of the property or requiring Marlene to engage in burdensome additional proceedings in the event the payment is not made before the deadline.   The trial court was not without discretion to provide Marlene with the assurance that she would be reimbursed for her share of the property on a schedule that was not wholly at the mercy of Sean's wishes.  (See Bonner v. Superior Court (1976) 63 Cal.App.3d 156, 165-166 [“Failure of [party] to sell the property within three years as the judgment contemplated, or otherwise arrange for [other party] to receive [her] share, justified the court in making a further order to prevent frustration of the intended division.”].) ¹⁰

The trial court plainly intended not to “convert [Marlene] to a mere creditor” (as the court in Bonner, supra, 63 Cal.App.3d at p. 165 put it) by granting Sean the opportunity to retain the property without paying Marlene in a timely manner, while at the same time acceding to his request to retain the property and control over it.   We see nothing unreasonable about the manner in which the trial court chose to resolve the parties' competing interests.

5. The trial court did not err in awarding Marlene $40,000 attorney fees.

Family Code section 1101, subdivision (g) authorizes an award of attorney fees as a sanction against a party the trial court finds breached his fiduciary duties.   The trial court ordered Sean to pay $40,000 attorney fees to Marlene's counsel, “as the reasonable sum that was incurred to prove the breach of fiduciary duty claim,” at the rate of $400 a month with 10 percent simple interest or when the 20th Street property is sold, whichever is sooner.   Sean argues that the trial court erred in making that award, both because Marlene did not request fees on that ground in her pleadings, and because the trial court made the award without receiving evidence of Marlene's actual fees.   Neither point has merit.

As with its findings of breach of fiduciary duties, its statement of intended decision some nine months before judgment was entered signaled the trial court's intention to award fees and costs of $40,000 to Marlene.   Sean's assertion that he was deprived of required notice of the award therefore lacks any basis.   Nor has Sean provided this court with citations of law, or to the record, showing either that the trial court lacked discretion to fix an appropriate award of fees and costs in the absence of an evidentiary hearing, or that the amount of the $40,000 award in this case abused the trial court's discretion.  (See In re Marriage of Hokanson (1998) 68 Cal.App.4th 987, 992-993 [award of attorney fees against party who breaches fiduciary duties is mandatory under Family Code section 1101, subdivision (g) ].)

In awarding attorney fees, the trial court was required to determine what amount would be reasonable and just under the circumstances, taking into consideration the conduct of each party and their ability to pay.  (In re Marriage of Czapar (1991) 232 Cal.App.3d 1308, 1318-1319.)  “ ‘[W]hen the trial court is informed of the extent and nature of the services rendered, it may rely on its own experience and knowledge in determining their reasonable value.’ ”  (In re Marriage of Munguia (1983) 146 Cal.App.3d 853, 863.)   “The ‘experienced trial judge is the best judge of the value of professional services rendered in his court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong.’  [Citations.]”  (Serano v. Priest (1977) 20 Cal.3d 25, 49.)   In this case, Sean failed to carry that burden.

6. The trial court did not err in failing to require expert testimony to determine the present value of Marlene's future retirement pension.

Sean argues in three sentences that the trial court abused its discretion by applying present value tables set forth in the CACI jury instructions in order to determine the present value of Marlene's pension, rather than inviting the parties to retain experts to calculate that value.   He offers no citation to the trial court's determination of the issue, no indication that he sought to introduce any such evidence in the trial court, and no suggestion even that the trial court's determination of the issue was in any way erroneous, or that he was prejudiced by it.   Moreover, the record shows that the factual premise of his claim is simply wrong:  According to the judgment, the court looked to the BAJI tables-not the CACI tables-to determine Marlene's statistical life expectancy and appropriate discount rate.

The record shows that in its statement of decision, the trial court had stated that it was relying on the CACI present value tables.   Sean objected and requested “clarification” about how the trial court reached its pension value allocations.   But in the trial court-as here-Sean did not suggest that expert testimony was required, he did not proffer expert testimony, and he did not suggest that the result the trial court reached was erroneous.   If he had raised any of these grounds, the trial court could have heard further evidence on the subject during the following nine months before judgment was entered, and could have alleviated the supposed error.   For each of these reasons, we find that Sean has shown neither error nor prejudice.

DISPOSITION

The judgment is affirmed in its entirety.

NOT TO BE PUBLISHED.

We concur:

FOOTNOTES

FN1. On Marlene's petition, Lilah was joined in the dissolution proceedings in order to resolve the parties' and Lilah's conflicting claims.   None of the issues raised by this appeal involve these conflicts, and Lilah is not a party to this appeal..  FN1. On Marlene's petition, Lilah was joined in the dissolution proceedings in order to resolve the parties' and Lilah's conflicting claims.   None of the issues raised by this appeal involve these conflicts, and Lilah is not a party to this appeal.

FN2. Family Code section 1100, subdivision (e), provides that parties must adhere to rules governing fiduciary relationships when acting with respect to community assets.   Section 1101 specifies remedies available when those rules are violated..  FN2. Family Code section 1100, subdivision (e), provides that parties must adhere to rules governing fiduciary relationships when acting with respect to community assets.   Section 1101 specifies remedies available when those rules are violated.

FN3. Family Code section 2040 provides that the summons in a dissolution matter must include an Automatic Temporary Restraining Order barring the parties from “transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court․”  (Fam.Code, § 2040, subd. (a)(2).).  FN3. Family Code section 2040 provides that the summons in a dissolution matter must include an Automatic Temporary Restraining Order barring the parties from “transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, without the written consent of the other party or an order of the court․”  (Fam.Code, § 2040, subd. (a)(2).)

FN4. The opening brief's identification of issues in this appeal does not mention Sean's suggestion that the trial court should have ordered reimbursement to him for $16,000 to $26,000 that he claims to have contributed from his separate property for the down payment for the 20th Street property's purchase.   The suggestion lacks merit in any event, because the trial court determined, on conflicting testimony, Sean had failed to trace the down payment funds to a separate property source..  FN4. The opening brief's identification of issues in this appeal does not mention Sean's suggestion that the trial court should have ordered reimbursement to him for $16,000 to $26,000 that he claims to have contributed from his separate property for the down payment for the 20th Street property's purchase.   The suggestion lacks merit in any event, because the trial court determined, on conflicting testimony, Sean had failed to trace the down payment funds to a separate property source.

FN5. The trial court determined that Sean's residence in one of the 20th Street property's units since the date of separation had a value of $156,000, but it declined to require Sean to reimburse the community for that use in light of his management of the rental property during that period..  FN5. The trial court determined that Sean's residence in one of the 20th Street property's units since the date of separation had a value of $156,000, but it declined to require Sean to reimburse the community for that use in light of his management of the rental property during that period.

FN6. Family Code section 1101, subdivision (h), provides:  “Remedies for the breach of the fiduciary duty by one spouse, as set forth in Sections 721 and 1100, when the breach falls within the ambit of Section 3294 of the Civil Code shall include, but not be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty.”.  FN6. Family Code section 1101, subdivision (h), provides:  “Remedies for the breach of the fiduciary duty by one spouse, as set forth in Sections 721 and 1100, when the breach falls within the ambit of Section 3294 of the Civil Code shall include, but not be limited to, an award to the other spouse of 100 percent, or an amount equal to 100 percent, of any asset undisclosed or transferred in breach of the fiduciary duty.”

FN7. “ ‘ “ ‘The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue.   Unless this is done, the error assigned is deemed to be waived.  [Citation.]  It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings․  [Citations.]’ ” ' ”  (Baker v. Wadsworth, supra, 6 Cal.App.3d at pp. 260-261.).  FN7. “ ‘ “ ‘The rule is well established that a reviewing court must presume that the record contains evidence to support every finding of fact, and an appellant who contends that some particular finding is not supported is required to set forth in his brief a summary of the material evidence upon that issue.   Unless this is done, the error assigned is deemed to be waived.  [Citation.]  It is incumbent upon appellants to state fully, with transcript references, the evidence which is claimed to be insufficient to support the findings․  [Citations.]’ ” ' ”  (Baker v. Wadsworth, supra, 6 Cal.App.3d at pp. 260-261.)

FN8. Sean later asked in the trial court that, “in the event the house is to be sold,” the court should retain jurisdiction to adjust the distribution of the actual proceeds of sale.   On the other hand, Marlene asked that the judgment require sale of the property and division of the proceeds according to the trial court's determinations of the community's and the parties' respective interests in it..  FN8. Sean later asked in the trial court that, “in the event the house is to be sold,” the court should retain jurisdiction to adjust the distribution of the actual proceeds of sale.   On the other hand, Marlene asked that the judgment require sale of the property and division of the proceeds according to the trial court's determinations of the community's and the parties' respective interests in it.

FN9. The judgment requiring payment in fixed amount also means that post-judgment interest accrues on that amount until it is paid.  (In re Marriage of Pollard (1988) 204 Cal.App.3d 1380, 1383;  Wuest v. Wuest (1945) 72 Cal.App.2d 101, 111-112.).  FN9. The judgment requiring payment in fixed amount also means that post-judgment interest accrues on that amount until it is paid.  (In re Marriage of Pollard (1988) 204 Cal.App.3d 1380, 1383;  Wuest v. Wuest (1945) 72 Cal.App.2d 101, 111-112.)

FN10. Sean's suggestion that the trial court should have retained jurisdiction over the property and the parties, in order to adjust the equalizing payment in light of the cost and proceeds of an eventual sale, would seem to harbor its own set of problems.   For example, we find no authority approving a long-term delay in the property's sale for any reason other than to provide a home for a minor children and the custodial spouse.  (E.g. In re Marriage of Herrmann (1978) 84 Cal.App.3d 361, 366-367.)   But here there is no such reason;  the only purpose here is to accommodate Sean's desire to retain the property if he can.   Moreover, any long-term retention of the property by one spouse raises difficult and perhaps intractable problems of equalization and valuation.  (Ibid. [long-term note for one spouse's interest in home held by other spouse leads inevitably to unequal property division].)   It is likely that any long-term delay in valuation and equalization of the parties' interests-at least where no compelling interest is at stake-would threaten to violate the code's strong mandate for valuation as of the date of the judgment.   (Fam.Code, § 2552, subd. (a).).  FN10. Sean's suggestion that the trial court should have retained jurisdiction over the property and the parties, in order to adjust the equalizing payment in light of the cost and proceeds of an eventual sale, would seem to harbor its own set of problems.   For example, we find no authority approving a long-term delay in the property's sale for any reason other than to provide a home for a minor children and the custodial spouse.  (E.g. In re Marriage of Herrmann (1978) 84 Cal.App.3d 361, 366-367.)   But here there is no such reason;  the only purpose here is to accommodate Sean's desire to retain the property if he can.   Moreover, any long-term retention of the property by one spouse raises difficult and perhaps intractable problems of equalization and valuation.  (Ibid. [long-term note for one spouse's interest in home held by other spouse leads inevitably to unequal property division].)   It is likely that any long-term delay in valuation and equalization of the parties' interests-at least where no compelling interest is at stake-would threaten to violate the code's strong mandate for valuation as of the date of the judgment.   (Fam.Code, § 2552, subd. (a).)

ROTHSCHILD, Acting P. J. JOHNSON, J.