IN RE: Marriage of ERIN J. WRIGHT and BERNARD WRIGHT. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Bernard C. Wright (husband) appeals, in propria persona, from the judgment entered in the marital dissolution action filed against him by Erin J. Wright (wife).   Husband contends he was denied a fair trial and that the judgment is against the weight of the evidence.   We find no error and affirm.

FACTS

Wife and husband were married in August 2003.   They separated in January 2008 and wife petitioned for a default dissolution of marriage.   Husband answered, requesting custody of their minor child, L.W., and confirmation that $100,000 in a certificate of deposit was his separate property.   Husband contended that in April 2008, wife began an extramarital affair and then disappeared with their child, her two children from previous relationships, and his money.   He contended the money was his separate property which he obtained from the sale of a home he purchased before marriage.

During the pendency of the proceedings, wife was incarcerated for a period of time and husband was awarded primary legal and physical custody of their child.   In March 2009, the court set a trial date of May 18, 2009, and issued various pretrial orders.

A bench trial was held on May 18, 2009.   Both husband and wife were present, but neither was represented by counsel.   Neither party presented witnesses.   Wife admitted on the record that she received the disputed funds ($122,908.24) from the sale of the home husband had purchased before their marriage and that she agreed to have the funds placed in her separate account.   She contended this was done because husband did not want any assets in his name in order to avoid paying child support to a former spouse.   She believed the money was their money, “50/50,” and represented to the court that it had all been spent by 2007 on their general living expenses, the purchase of a vehicle, a down payment for a house, and the opening of a body shop business.

Husband represented to the court that he trusted his wife to hold and invest his separate property funds and that she routinely presented him with documents claiming that his money was in an “e-bank” account and not being spent.   He said the truck that wife contended was purchased with some of the funds was not purchased with any of the disputed funds but with insurance proceeds he received after an accident.   He did not directly deny that some of the funds were used to decorate and landscape a house he bought with wife and to pay business expenses of the body shop they opened and operated for a while.   Wife said their house was lost in foreclosure, and husband did not challenge that statement.   There was no real property identified in the record for division among the parties.

Several documents were discussed and shown to the court, but no exhibits were offered or received into evidence and none are contained in the record.   At the conclusion of the parties' presentations, the court took the matter under submission.   Judgment was entered on November 24, 2009, and notice of entry of judgment was served by mail by the clerk the same date.   The judgment dissolved the marriage effective November 24, 2009, awarded sole custody of the minor child to husband with a reservation of jurisdiction on child support, awarded visitation to wife, and awarded no spousal support.   As to the disputed $122,908.24 in funds, the court determined it was used to pay down community expenses and that none remained for division.   The court noted it was reserving jurisdiction over the issue of the disputed expenses “if either party can present authentic documentation to the court showing that some of the funds still existed after the date of separation which was 1/17/08.”

Husband appealed by way of notice dated October 8, 2009.   Wife did not file any respondent's brief.

DISCUSSION

Husband appeals from the judgment of dissolution.   His notice of appeal was filed before the entry of judgment on November 24, 2009.   Following customary practice, we treat husband's premature notice of appeal as having been filed immediately after entry of judgment.  (Cal. Rules of Court, rule 8.104(d);  In re Marriage of Jones (1998) 60 Cal.App.4th 685, 689, fn. 2;  9 Witkin, Cal. Procedure (5th ed.   2008) Appeal, § 620, p. 698.)   Husband's sole challenge on appeal relates to the portion of the judgment concerning the disputed funds.   We deem the judgment to be a final, appealable judgment of dissolution that resolved the issues between the parties, including their contested property issues, notwithstanding the court's reference to a reservation of jurisdiction to consider any new evidence the parties may procure on that issue.  (In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 689.)   Husband contends he was denied a fair trial and that the judgment of dissolution is against the weight of the evidence.   We disagree.

Husband failed to present much at all in the way of evidence.   At best, it appears the parties agreed that husband obtained $122,908.24 from the sale of a home he acquired before marriage and the money was properly characterized as his separate property.  (Cal. Const., art.   I, § 21;  Fam.Code, § 770;  In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 731–732.)   The parties also agreed the funds were placed in an account bearing wife's name only.   They disputed what happened to the money thereafter, as well as their intentions regarding use of those funds.

Wife itemized a list of community expenses and debts that were paid with the funds until they were completely gone by 2007, before the parties' legal separation in January 2008.   Other than stating to the court, without any supporting documentation, that the truck was not purchased with any of the disputed funds and that the down payment for the house purchased during marriage was also paid from a separate source, husband did not deny the disputed funds were knowingly used to pay community expenses.   One document husband showed the court apparently contradicted his position that at least some of the disputed funds remained in an e-bank account.   Husband showed the court a letter from the bank's counsel advising that in response to husband's subpoena it could find no evidence of the existence, at any time, of an account with the number he provided, or in the name of wife, or in the various aliases she had used.   The court noted on the record that husband was in essence making wife's case.

Further, there is nothing in the record showing the trial court prevented husband from presenting evidence or erroneously excluded any proffered evidence.   Husband was aware through pretrial orders he was entitled to present evidence and witnesses on his behalf but simply failed to have them present on the day of trial.

Other than arguing generally about the denial of a fair trial and that wife lacked credibility, husband's brief does not specifically articulate the basis on which he contends he is owed an award of separate property.  “ ‘The reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment․  [E]very brief should contain a legal argument with citation of authorities on the points made.   If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’  [Citation.]”  (McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)   This rule applies equally to persons appealing in propria persona.  (Id. at p. 523.)

Notwithstanding the foregoing principle, to the extent husband was seeking an award of money due him based on a right of reimbursement under Family Code section 2640, husband failed to present any evidence his separate property funds were used to contribute to the acquisition or improvement of community property within the meaning of the statute.   He showed no reimbursable expenses, as he failed to challenge the representations made by wife that the disputed funds were knowingly used by them to pay community expenses during the marriage.   There is no right to reimbursement, absent an express agreement, for separate property expenses used to pay family living expenses before the date of legal separation.  (In re Marriage of Nicholson & Sparks (2002) 104 Cal.App.4th 289, 297;  accord, In re Marriage of Lange (2002) 102 Cal.App.4th 360, 365.)

It is true that wife also did not present the court with supporting documentation confirming that the funds were used on family living expenses.   But credibility determinations and resolving questions of fact are uniquely within the province of the trial court.   And, it is a general principle of appellate practice that the “order of the lower court is ‘ “presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.”  ‘ [Citation.]”  (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)   It was husband's burden as appellant to overcome that presumption of correctness.  (Ibid.) He failed to do so.

Husband's earnest belief that wife fraudulently dissipated his separate property is no substitute for admissible evidence to establish that fact and a corresponding right to reimbursement or other grounds for a property award in his favor.   The trial court was not presented with evidence of any legal basis upon which to make a separate property award or award of reimbursement in husband's favor, nor did it act in any way to deny husband a fair trial on that issue.   We find no basis for disturbing the judgment and therefore affirm.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WE CONCUR:

RUBIN, Acting P. J. FLIER, J.