IN RE: the MARRIAGE OF Max C. and Sybil FINK. (1979)

Sybil Fink appeals the order of the trial court granting a new trial. Max C. Fink cross-appeals in order to preserve objections to the judgment.¹

FACTS

On January 10, 1972, Max C. Fink (hereinafter referred to as Husband) filed a petition for dissolution. Husband and Sybil Fink (hereinafter referred to as Wife) were married on April 2, 1940, and separated on April 17, 1971.

On March 12, 1974, the trial court ordered the bifurcation of the underlying dissolution action and an early trial on the issue of dissolution, reserving all other issues for later determination. The dissolution was granted and an interlocutory judgment of dissolution was entered on April 9, 1974. On June 7, 1974, Wife appealed from these orders, claiming that the judgment deprived the trial court of the jurisdiction to hear the reserved issues. The appellate court held that the trial court had reserved its jurisdiction on those issues and on that basis affirmed. (In re Marriage of Fink (1976) 54 Cal.App.3d 357, 126 Cal.Rptr. 626.)

During the pendency of the above described appeal, trial was held on the reserved issues concerning the division of community property, award of spousal support and attorney fees, and other related matters. On December 31, 1975, the trial court rendered its judgment on these matters.

On January 9, 1976, Husband filed a notice of intention to move for a new trial. The motion was granted on condition that Husband prior to trial pay Wife $52,000 as attorney's fees and the order was entered on February 26, 1976.

On March 29, 1976, Wife filed a notice of appeal from the order of the trial court granting a new trial. On the same date Husband filed a notice of cross-appeal, pursuant to Rules of Court, rule 3(c), in order to preserve his objections to the judgment as entered.

ISSUES

The issues presented on Wife's appeal are: (1) Did the division of the Florida property violate Civil Code section 4800.5; and (2) if the division of that property was improper, did that constitute sufficient cause to order a new trial.

The issues presented on Husband's cross-appeal are that the trial court erred in (1) the conditioning of a new trial on the payment of Wife's attorney's fees; (2) the valuation of property and unequal division of community assets; (3) its findings that the Rolls Royce was separate property of Wife; (4) its finding that two paintings were community property rather than the separate property of Husband; and (5) imposing certain restrictions on Husband's use of property awarded to him.

DISCUSSION

I

In granting the motion for a new trial, the court acknowledged that it committed an error of law in failing to take into consideration the mandate of Civil Code section 4800.5² with respect to the distribution of the community assets and that this may have worked an injustice to the parties. We conclude as a matter of law that the designated error occurred and that the trial court was required under the evidence presented at trial to distribute the community assets in kind in accordance with section 4800 as mandated by section 4800.5. This result comes about by virtue of the fact that the community assets included real property situated in Florida, the value of which exceeded the value of community assets situated in California.

Under the terms of the judgment, the court valued and distributed the community property as follows:

The judgment in addition requires that Wife pay Husband $11,390 to offset the differential in value in the distribution of community property.

The “Luster trust property” and the 39 lots constitute real property in which the parties have an ownership interest which is located in Florida. Record title to the 39 lots is in the name of Husband. Record title to the Luster trust property is in the name of Elizabeth Luster except for two parcels which stand in the names of “Max Fink and Elizabeth Luster.” It was undisputed that despite the status of the title Elizabeth Luster in fact has only a two-third interest while Husband and Wife as community property hold a one-third interest in the Luster trust property. Husband testified that he manages this property, that the division of the property interests was accomplished very informally and was subsequently documented. However, the transcript is silent with respect to the precise manner in which the legal and equitable interests in this property are divided and the formal agreement was not presented in the trial record.

Section 4800.5 mandates that the trial court attempt to distribute the community property in a manner which will not necessitate a change in the nature of interests held in out-of-state real property.³ This is permitted when the value of the out-of-state real property is less than or equal to the value of the other community property.⁴

The court in the present case determined the value of the Florida property to be $473,000 (Luster trust property at $377,100 plus 39 additional real property lots at a total of $96,300). The value of all other community property was placed at $407,138.⁵ Since the value of the Florida property Exceeded the value of all other community property, the division of property was controlled by section 4800.⁶ No agreement or stipulation of the parties to the contrary appearing the court was thereby required to order that Husband transfer to Wife a one-half interest in all Florida property. The court is authorized, pursuant to section 4800.5, to order either party to execute a conveyance of the out-of-state real property in accordance with its judgment.⁷

The court is required to order an equal division of all property, both community and quasi-community, unless the evidence presented at trial discloses economic circumstances which warrant a different distribution. In In re Marriage of Brigden (1978) 80 Cal.App.3d 380, 145 Cal.Rptr. 716, the appellate court reversed a judgment which distributed to the husband the entire community interest in shares of a listed corporation. The trial court awarded these shares to the husband because he was on the board of directors and was a senior vice president of the corporation. The trial court inferred that the wife wanted half of the shares in order to extend the marital dispute into the corporate boardroom.

The Brigden appellate court reversed the judgment because there was no showing of economic circumstances which would exempt the trial court from the statutory obligation to make a division in kind. In the case at bench, Husband is the manager of the trust with respect to the Luster trust property in which Husband and Wife own a one-third community property interest. It may be argued that the expertise of Husband, who is the manager of this property, is essential to the continued economic success of the trust and that therefore economic circumstances warrant a distribution in kind of this entire asset to Husband.

“In evaluating (this contention) the meaning of ‘(w)here economic circumstances warrant’ must first be considered. Since this clause triggers an exception to the general rule of equal in kind division it should be strictly construed so that the exception does not become broader than the basic rule itself. (Citations.) Moreover, a narrow construction of the clause is required because the award of an asset to one spouse alone involves the elimination of the other spouse's prior equal interest in that asset. (Citations.)

“There are other policy considerations, as well, which favor a narrow reading of the phrase ‘economic circumstances.’ Equal in kind division avoids valuation problems. It eliminates the need to place a disproportionate risk of loss on either party, is impervious to charges of favoritism, and apportions the risk of future tax liabilities equally (citations). It also accomplishes an immediate division of property and provides the parties with the most post-dissolution economic stability.

“Finally, the legislative history of the Family Law Act in the form of the Assembly Committee Report thereon also supports a limited reading of the phrase ‘economic circumstances.’ The report indicates that the application of the exception is confined to situations where an asset cannot be divided Without impairment. ‘The new act requires an equal division in all but two specific instances without regard to the reasons for the dissolution. The first exception (Civ.Code, s 4800, subd. (b)(1)) is that If the nature of the property is such that An equal division is not possible without impairment of a principal asset, then the court shall have discretion to establish conditions which will result in substantially equal division.’ (Italics added.) The report then goes on to give the example of an ongoing family business and to say ‘(I)t could well be destructive to award each spouse a half interest therein.’ (Citation.) A later Assembly Committee Report adds the example of the award of the family residence to the spouse with the custody of minor children as another situation where economic circumstances warrant the application of this exception to the equal division requirement. (Citation.)” (In re Marriage of Brigden, supra, 80 Cal.App.3d 380, 391-392, 145 Cal.Rptr. 716, 724-725, fns. omitted.)

The trial court in the case at bench, instead of dividing the real property situated in Florida equally and in kind, erroneously awarded the Luster trust property to Husband and the 39 lots to Wife. In addition, it awarded Wife the family residence, a home of over eight thousand square feet with an elevator. There are no minor children and Wife resides in the residence by herself. Pursuant to section 4800 the court was required to award the spouses equal shares in the Florida property and the residence.

II

The court based its decision to grant a new trial on its conclusion that “the rights of the parties may have been substantially affected by the failure of the Court to divide the Florida property as provided by Civil Code Section 4800.5, particularly in view of matters presented subsequent to the trial which indicated that the valuation of the Florida properties upon which the Court's Judgment was based, have not proven to be accurate.”

Counsel for Wife argues that even if the trial court erred in applying section 4800.5 a new trial is not required but the case may be remanded with instructions to the trial court to equitably redistribute the community and quasi-community assets. This remedy will not suffice in the present case.

“The distinctive feature of California marital property law is that the marital community is viewed as a partnership in which the spouses are equal partners. It has long been recognized in California ‘that the marriage, in respect to property acquired during its existence, is a community of which each spouse is a member, equally contributing by his or her industry to its prosperity, and possessing an equal right to succeed to the property after dissolution.’ (Citation.) ‘The spouses are seen as contributing equally to acquisition regardless of the actual division of labor in the marriage and regardless of which spouse actually ”earned“ the property.’ (Citations.) Both spouses have ‘present, existing and equal’ interests in community property (citation) . . . .” (In re Marriage of Brigden, supra, 80 Cal.App.3d 380, 389, 145 Cal.Rptr. 716, 722-723.)

It would violate the concept of equal division of the community property to have the distribution of assets made in 1979 but based upon valuations determined by the trial court in 1975. The error of law upon which the trial court based its order for a new trial and the passage of time require new valuations of certain assets.

III

The court did not err in conditioning its order for new trial on the payment by Husband to Wife of the sum of $52,000 for attorney's fees. (Brooks v. S. F. & N. P. Railway Co. (1895) 110 Cal. 173, 42 P. 570.) On retrial, Husband is entitled to raise once more his contentions relative to the award of attorney's fees including his claim that the fees were excessive. His claim is entitled to serious consideration by the trial court in view of the fact that he initially attempted to reach an early and just settlement to preclude the necessity for what turned out to be a long and expensive trial.⁸

IV

In view of the fact that we herein affirm the order of the trial court granting a new trial, Husband's cross-appeal is dismissed and we need not address the issues raised by Husband in his cross-appeal.⁹

DISPOSITION

The order granting a new trial is affirmed; the purported cross-appeal by Husband is dismissed. Respondent Husband is to recover costs on appeal.

While fully appreciating the scholarship of the majority opinion, its precision of organization, and its clarity of articulation, I cannot agree with its result.

The appeal at bar involves two categories of issues. The first concerns the propriety of the trial court order granting a new trial for “error of law.” The second involves a collage of issues raised by husband's cross-appeal from the judgment itself filed in response to wife's appeal from the order granting a new trial.

Order Granting a New Trial

I analyze the order granting a new trial for “legal error” as raising two separate problems: (1) Did the original judgment violate Civil Code section 4800.5 by affecting record title to out-of-state property although it was “possible” to accomplish a division of the community without doing so? and (2) Did the original judgment violate Civil Code section 4800 by failing to divide essentially all of the community property in undivided interests? In my view, neither error occurred.

Civil Code section 4800.5. The order of the trial court recites the presence of two sets of Florida properties as community assets. It reiterates a conclusion in the judgment that one parcel should be awarded to wife and one parcel to husband, and that “(T)he Court believed, in accordance with the evidence adduced at this trial, that such a division of the Florida property would result in an equal and equitable division of the community property, notwithstanding that Civil Code Section 4800.5 provides that real property situated in another state shall, if possible, be divided in such manner that it is not necessary to change the nature of the interests in the real property situated in the other state.” The order continues: “Civil Code Section 4800.5 has not . . . been construed . . . to permit the trial court to exercise its discretion to change the interests of the parties in real property in another state unless it is impossible to effect an equal division of the community property as required by Civil Code Section 4800. A division of the real property in Florida in the manner provided by Civil Code Section 4800.5 would have been possible, although, as the Court viewed the evidence at the time of trial, such manner of division would not have been the most practicable or reasonable. However, the rights of the parties may have been substantially affected by the failure of the Court to divide the Florida property as provided by Civil Code Section 4800.5, particularly in view of matters presented subsequent to the trial . . . .”

It seems to me that the trial court order perceives an error in the judgment because of a conception from the evidence that a division of the community property without modifying record title to the Florida property would have been theoretically possible although not necessarily feasible or practicable. If my analysis is correct, the judgment of the trial court was free from the legal error described in the order granting a new trial if either: (1) the relative value of in-state and out-of-state community property and the manner in which it was held of record rendered it theoretically possible to divide the community assets equally by awarding husband the Florida property which stood in his name (see discussion in footnotes 3 and 4 of the majority opinion); or (2) Civil Code section 4800.5 must be construed to read “reasonably possible in light of the objectives of the Family Law Act” rather than “possible in theory.”

Under either possibility, there was no trial court error in the original judgment. As the majority opinion ably and perceptively demonstrates, it was not theoretically possible to avoid application of Civil Code section 4800.5 because the value of the Florida property exceeded the value of the property in California. Hence, recourse to out-of-state property to divide the Florida property contrary to its record title was necessary to accomplish an equal division. If, conversely, section 4800.5 is read as inapplicable when an equal division of community property consistent with the objectives of the Family Law Act is not reasonably possible without recourse to change in the record title of out-of-state property, then the trial court did not err in not applying the section to reach its original judgment. Recourse to the Florida property was required as a practical matter to equalize the division because of the award to husband of his law practice and other assets very personal to him as his sole property.

Civil Code section 4800. Unquestionably, the majority opinion correctly analyzes In re Marriage of Brigden (1978) 80 Cal.App.3d 380, 145 Cal.Rptr. 716 as construing Civil Code section 4800 to require that community property of a fungible nature must, to the extent feasible, be divided equally in kind upon dissolution of a marriage. Unquestionably, the majority opinion also correctly appraises Brigden as holding that in general in-kind division is the preferred methodology regardless of the nature of community property. My reasoning differs from that of the majority opinion only in the scope to be given to the exception to the preferred process articulated by the Brigden court. Brigden recognizes that in some instances it is destructive to award undivided interests in the same property to the warring ex-spouses particularly where management of the property will continue to be vested in one of them. The Brigden exception to the rule of preference for division in kind parallels the holding of the Court of Appeal in In re Marriage of Davis (1977) 68 Cal.App.3d 294, 137 Cal.Rptr. 265. The Davis court declared: “It would be unreasonable and wholly inappropriate to limit the court to awarding undivided interests in property . . . and then compel the parties to file a new and independent action for partition when the same result can more easily and readily be accomplished in the dissolution proceeding.” (68 Cal.App.3d at pp. 306-307, 137 Cal.Rptr. at p. 273.) The Davis limitation upon the Brigden rule is confirmed by the recent decision of our Supreme Court in In re Marriage of Connolly (1979) 23 Cal.3d 590, 153 Cal.Rptr. 423, 591 P.2d 911. There the high court holds that Brigden is “clearly distinguishable on its unique facts and should not be construed as uniformly applicable to all divisions of community-held, stock.” (23 Cal.3d at p. 602, 153 Cal.Rptr. at p. 430, 591 P.2d at p. 918.)

Thus, as I view the law, if substantial evidence supports the division of community property encompassed in the judgment, no error of law occurred.¹ I believe the record discloses that substantial evidence.

Here the division of community property accomplished by the trial court's original judgment avoided the necessity of distributing to husband and wife undivided interests in the Luster trust property. By so doing, the judgment equally avoided the specter of the need for a future lawsuit to establish title by wife against the person in whose name the Luster trust property was held, a person not a party to this action. The judgment recognized the substantial evidence in the record that husband is the manager of the Luster trust property and accomplished a division which awarded him the property he managed while allocating other property of equal value to the wife. The process avoided the necessity of a future action by the wife in Florida to partition, assuming one were available. Hence, it seems to me that the Brigden exception and the Davis holding preclude a reviewing court from holding that the trial judge abused his discretion in dividing the property in a fashion that avoided the necessity to tamper with the interest in husband's name in the Luster trust property. (In re Marriage of Barnert (1978) 85 Cal.App.3d 413, 421, 149 Cal.Rptr. 616.)

I thus would conclude that the trial court erred in granting a new trial.

Husband's Cross-Appeal

I confess to a great difficulty in construing the tenor of husband's brief in support of his cross-appeal. As best I can determine, there are within that document contentions that: (1) the trial court was required to divide all community assets and particularly the Florida properties in kind to achieve an equal division of the community property; (2) trial court determinations of the value of one of the Florida properties, of the value of the family residence, of obligations for taxes on one of the Florida properties, of the nature and amount of family debts, of the community property or separate character of two paintings, of a Rolls Royce and various other properties, and of the valuation of husband's law practice are not supported by substantial evidence; (3) the trial court failed to value husband's law practice as of the date of separation rather than as of the date of trial; (4) it erroneously deferred the due date of cash payments due from wife to husband to equalize the community property division; (5) the court erroneously imposed a lien upon the portion of the Florida property awarded to husband to secure his obligations to wife; (6) it similarly erred in subjecting husband's life insurance to such a lien and restricting husband's ability to deal with the insurance; (7) the court's award of spousal support and a requirement as a condition of its order granting a new trial that husband pay wife's attorneys' fees abused the trial court's discretion; and (8) misconduct of wife's counsel and bias of the trial judge denied husband a fair trial.

Division of community assets. Husband's contention of trial court error in the division of community property is based upon an application of the Brigden rule in the manner adopted by the majority opinion in its discussion of the propriety of the trial court action granting a new trial. I have already discussed my disagreement with that position.

Substantial evidence. The bulk of husband's argument concerning a lack of substantial evidence to support various segments of the trial court's original judgment is based upon a highly selective recitation of the record. Husband relies upon evidence favorable to him while ignoring all to the contrary.

In the hope that the view may someday command a majority of some panel of this court, I would conclude that where contentions of a lack of substantial evidence to support a judgment are based upon a recitation of the record that does not substantially accord with the test on appellate review of trial court factual determination the contentions must be summarily rejected.

That principle will conserve the resources of the reviewing court. It seems to me grossly unfair to penalize by delay or lack of adequate attention other litigants whose counsel have diligently followed the procedures required by law while we sift through the mass of a grossly inaccurate fact statement to look for a possible pearl. Worse, however, there is the risk that in the looking the appellate judge may unwittingly become the advocate for the litigant who did not properly recite the facts. My fear is that we encourage an aristocracy of the inept. The worse the brief, the more attention it may be given with the danger that the attention may result in judicial advocacy rather than judgment.

Applying that test in the case at bar, I would summarily reject all of husband's arguments based upon a lack of substantial evidence to support the judgment.

Date of valuation of law practice. Wife concedes that, as husband asserts, husband's law practice should have been valued at the date of separation rather than at the date of trial. Wife points out, however, that the trial court found, in effect, that after separation husband so commingled his post-separation operations with his pre-separation ones that it was impossible to determine value as of the date of separation. Husband's brief does not contain an analysis of the record which would support a conclusion that there is not an evidentiary support for that finding.

Deferment of payments by wife. In order to equalize the division of community property, the trial court ordered wife to pay husband $11,390. While judgment was entered on December 30, 1975, the trial court ordered that the sum was not due until July 1, 1976, or at such earlier date as wife should sell the parcel of Florida property awarded to her. The judgment provides that the deferred payment shall carry interest at 7 percent per annum. Husband contends that the provision of the judgment violates what he contends is a rule precluding deferment of payments used to equalize divisions of community property and that the interest rate is too low.

I do not see how the trial court can be said to have abused its discretion by the short six-month period of deferment. I find no evidence in the record to support the contention of an inadequate interest rate.

Lien on Florida property. The trial court ordered that wife be granted an unrecordable lien upon the portion of the Florida real property awarded husband by the judgment in order to secure husband's obligation to pay some $52,000 of wife's attorneys' fee imposed as a condition to the trial court's order granting husband a new trial. Husband asserts the provision for the lien was erroneous. I would not reach the contention. Husband's brief concedes that he paid the $52,000. Hence, the issue of the propriety of the lien is moot.

Spousal support, condition to order granting new trial, “misconduct” of wife's counsel, and “bias” of trial judge. I see nothing in the record to support husband's contentions that the trial court abused its discretion in awarding spousal support to wife, in awarding her attorneys' fees and making their payment a condition of its order granting husband a new trial, that wife's counsel was guilty of misconduct, or that the trial judge was biased.

Insurance. Husband was awarded the property interest in policies of insurance on his life with a cash surrender value of $20,110. He was, however, required to maintain the insurance in force and to retain wife as the irrevocable beneficiary of the policies. Husband was precluded from exercising rights of ownership. The judgment provides that husband's obligations with respect to the life insurance policies shall continue as long as he is obligated under the judgment.

Here I conclude that the judgment is in error. While, as I see it, the trial court had discretion to impose a lien upon husband's property to secure the judgment-imposed obligations for spousal support and the like, the imposition of the lien upon post-judgment accruals of both cash surrender and face value through the payment of premiums goes too far.

Conclusion

I would reverse the order granting a new trial, modify the judgment to eliminate the provisions respecting life insurance, and affirm it as modified with costs on appeal to wife.

FOOTNOTES

1.  This is a companion case to 2 Civil Nos. 51478 and 52571.

2.  Unless otherwise indicated, all statutory references are to the Civil Code.Section 4800.5 provides as follows:“(a) Except as provided for in subdivision (b), if the property subject to division under Section 4800 includes real property situated in another state, The court shall, if possible, divide the community property and quasi-community property in accordance with Section 4800 in such a manner that it is not necessary to change the nature of the interests held in the real property situated in the other state.“(b) If it is not possible to divide the property in the manner provided for in subdivision (a), the court may do any of the following in order to effect a division of the property in accordance with Section 4800:“(1) Require the parties to execute such conveyances or take such other actions with respect to the real property situated in the other state as are necessary.“(2) Award to the party who would have been benefited by such conveyances or other actions the money value of the interest in such property that he would have received if such conveyances had been executed or other actions taken.” (Added by Stats.1970, ch. 312, p. 707, s 2) (italics added.)

3.  The comment to Civil Code section 4800.5 provides as follows:“Section 4800.5 has been added to specify the procedure to be followed when the property subject to division under Section 4800 includes real property situated in another state.“When real property is acquired in another state with community funds, the property is treated as community property for the purpose of division on dissolution of the marriage or on legal separation. See Rozan v. Rozan, 49 Cal.2d 322, 317 P.2d 11 (1957); Tomaier v. Tomaier, 23 Cal.2d 754, 146 P.2d 905 (1944); Recommendation Relating to Quasi-Community Property, 9 Cal.L. Revision Comm'n Reports 113, 119 n. 12 (1969). Quasi-community property likewise may include real property situated in another state. See Section 4803; Recommendation Relating to Quasi-Community Property, 9 Cal.L. Revision Comm'n Reports 113 (1969).“Section 4800.5 recognizes that the judgment of the court dividing the property cannot directly affect real property in another state, even though the court has jurisdiction in personam over both spouses, unless the judgment is allowed that effect by the laws of the state in which the property is situated. Fall v. Eastin, 215 U.S. 1, (30 S.Ct. 3, 54 L.Ed. 65) (1909); Rozan v. Rozan, 49 Cal.2d 322, 317 P.2d 11 (1957); Taylor v. Taylor, 192 Cal. 71, 218 P. 756 (1923). On the other hand, where the court has jurisdiction in personam over both parties, it may order one of the parties to execute a deed by acting in personam; if the person so ordered does execute the deed, it effectively conveys the interest transferred, even though executed under threat of contempt proceedings. Fall v. Fall, 75 Neb. 104, 113 N.W. 175 (1907), aff'd, Fall v. Eastin, 215 U.S. 1, (30 S.Ct. 3, 54 L.Ed. 65) (1909).“Section 4800.5 requires that the court first attempt to effect the equal division of the community property and quasi-community property required by Section 4800 without making any change in the nature of the interests held in the real property situated in the other state. This will be the result where the value of the other community and quasi-community property is equal to or exceeds the value of the real property situated in the other state that is subject to division. Where the court determines that the real property situated in another state or an interest in such property must be transferred from one party to the other to effect the equal division of community and quasi-community property required by Section 4800, the court may order the parties to execute the necessary conveyances or to take such other actions such as selling the property and including the proceeds in the property division as may be necessary to effect an equal division of the community and quasi-community property and may enforce its order by contempt proceedings. If a party refuses to execute the instrument necessary to effect the transfer or sale of the property or to take some other necessary action, the problem may be dealt with by awarding the money value of the property or interest therein to the other party, which award must be given full faith and credit. Fall v. Fall, 75 Neb. 104, 113 N.W. 175 (1907), aff'd, Fall v. Eastin, 215 U.S. 1, (30 S.Ct. 3, 54 L.Ed. 65) (1909).” (Cal.Law Revision Com. com. to Civ.Code, s 4800.5, 12A West's Ann.Civ.Code (1979 pocket supp.) p. 88; italics added.)

4.  Section 4800.5 has as its aim the convenience of the parties and avoidance of the necessity for court orders cumbersome to enforce in a case involving dissolution of marriage where the out-of-state real property is held by the parties. It contemplates that where the value of the out-of-state property is less than or equal to the value of other community property the court can award the out-of-state real property to the party in whose name legal title to the property appears of record. The court can then distribute the other real or personal community property situated in California, to the extent of the value of the out-of-state real property, to the other party. The remainder of the other community property is then required to be distributed equally.

5.  The court arrived at this figure by adding the total of the values of the California assets and deducting therefrom the total community liabilities. The total liabilities attributable to the Florida property were deducted by the court in the determination of the net value of the Florida property, and these liabilities were not deducted by the court from the total value of all other community property.

6.  Section 4800 provides as follows:“(a) Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, The court shall, either in its interlocutory judgment of dissolution of the marriage, in its judgment decreeing the legal separation of the parties, or at a later time if it expressly reserves jurisdiction to make such a property division, Divide the community property and the quasi-community property of the parties, including any such property from which a homestead has been selected, equally. For purposes of making such division, the court shall value the assets and liabilities as near as practicable to the time of trial, except that, upon 30 days' notice by the moving party to the other party, the court for good cause shown may value all or any portion of the assets and liabilities at a date after separation and prior to trial to accomplish an equal division of the community property and the quasi-community property of the parties in an equitable manner.“(b) Notwithstanding subdivision (a), the court may divide the community property and quasi-community property of the parties as follows:“(1) Where economic circumstances warrant, the court may award any asset to one party on such conditions as it deems proper to affect a substantially equal division of the property.“(2) As an additional award or offset against existing property, the court may award, from a party's share, any sum it determines to have been deliberately misappropriated by such party to the exclusion of the community property or quasi-community property interest of the other party.“(3) If the net value of the community property and quasi-community property is less than five thousand dollars ($5,000) and one party cannot be located through the exercise of reasonable diligence, the court may award all such property to the other party on such conditions as it deems proper in its final judgment decreeing the dissolution of the marriage or in its judgment decreeing the legal separation of the parties.“(4) Educational loans shall be assigned to the spouse receiving the education in the absence of extraordinary circumstances rendering such an assignment unjust.“(c) Notwithstanding the provisions of subdivision (a), community property personal injury damages shall be assigned to the party who suffered the injuries unless the court, after taking into account the economic condition and needs of each party, the time that has elapsed since the recovery of the damages, and all other facts of the case, determines that the interests of justice require another disposition. In such case, the community property personal injury damages shall be assigned to the respective parties in such proportions as the court determines to be just, except that at least one-half of such damages shall be assigned to the party who suffered the injuries. As used in this subdivision, ‘community property personal injury damages' means all money or other property received by a married person as community property in satisfaction of a judgment for damages for his or her personal injuries or pursuant to an agreement for the settlement or compromise of a claim for such damages, unless such money or other property has been commingled with other community property.“(d) The court may make such orders as it deems necessary to carry out the purposes of this section.” (Italics added.)

7.  Husband in his brief entitled Cross-Appellant's Reply Brief states that pending the determination on this appeal a portion of the Luster trust property situated in Florida has been sold. If this is the case, it may affect the relative values of the out-of-state real property and the other community property and this may have a bearing on the trial court's determination of the applicability of section 4800.5 or 4800 on the distribution of assets on retrial.Valuation problems as to the Florida property plagued the court through the trial, and in its order granting a new trial the court acknowledged that the valuation evidence presented was not accurate. A distribution in kind would eliminate these valuation problems.

8.  We note in passing that Husband, both before and during trial reiterated in his testimony, made offers to Wife's counsel to divide the community property equally, either by a division in kind, or the liquidation of the community and quasi-community assets and equal division of the proceeds, or a combination thereof.

9.  Since we have reviewed the entire record, we nonetheless respond to two issues raised by Husband for guidance to the court on retrial.I. Law Practice. On retrial, Husband is entitled to raise the impropriety of evidence introduced by Wife's counsel in his attempt to support a high valuation of Husband's law practice. It is considered standard accounting procedure that accounts receivable be aged when determining the value of such receivables. For instance, accounts which have been on the books for over three years may not represent fully collectible items; however, the accounts were not aged by the accountant who valued Husband's business. Furthermore, the earnings of Husband after separation of the parties constitute his separate property and the date of separation is the appropriate date for valuing the law practice. (s 5118; In re Marriage of Bouquet (1976) 16 Cal.3d 583, 128 Cal.Rptr. 427, 546 P.2d 1371.)II. Life Insurance. Husband points out further that the trial court erred in respect to its order relating to Husband's duty to maintain life insurance for Wife's benefit. The court imposed restrictions upon Husband's freedom to deal with All insurance policies on his life and he was ordered to continue making payments of premiums thereon while Wife was to be an irrevocable beneficiary.Under section 4801, subdivision (a), the court can order the party required to make support payments to provide reasonable security therefor. In ordering the party to provide security, the trial court is required to look at the same factors it must take into account when ordering support payments. (See s 4801, subds. (a)(1)-(a)(8).) The restrictions imposed in the present case on Husband's right to deal with each of his life insurance policies provides security beyond Reasonable needs.Husband asserts in addition that he is now remarried and that because of his age and state of health he would be unable to easily obtain additional insurance. On retrial, the court is under an obligation to determine whether and to what extent security is necessary to assure Wife's support payments.

1.  Because the trial court did not grant a new trial for insufficiency of the evidence, it was not empowered to reweigh the evidence to support its conclusion. (Code Civ.Proc., s 657; Wade v. De Bernardi (1970) 4 Cal.App.3d 967, 975, 84 Cal.Rptr. 817.)

HANSON, Associate Justice.

LILLIE, Acting P. J., concurs in the judgment.