Anunti- Brown v. Brown

Full title: In re the Marriage of DEBRA ANUNTI- BROWN and TERENCE BROWN. DEBRA…

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO

Date published: Oct 26, 2011

A126266 (Cal. Ct. App. Oct. 26, 2011)

Opinion

A126266

10-26-2011

In re the Marriage of DEBRA ANUNTI- BROWN and TERENCE BROWN. DEBRA ANUNTI-BROWN, Appellant, v. TERENCE BROWN, Respondent.

Lambden

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. RF07314491)

Debra Anunti-Brown (Wife) appeals from a judgment of dissolution of marriage, challenging the trial court's division of the marital estate, the reimbursement it ordered her to pay respondent Terence Brown (Husband), and the spousal support and child support it awarded her. We conclude that substantial evidence does not support the trial court's findings regarding: (1) Husband's right to reimbursement for his alleged separate property contributions to two specific community assets; and (2) its characterization of another asset as Husband's separate property. We reverse the judgment in accordance with these conclusions but affirm it in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

The Marriage

The parties married in December 1999, after living together for several years. Wife's minor grandson, Joseph, lived with them, and they adopted him in 2001. At the time of the marriage, Husband owned a house and lot at 2915 Monticello Avenue in Oakland (the house), and an adjacent lot at 2907 Monticello (Virginia Avenue parcel). In October 2006, he converted ownership of the house to a joint tenancy with Wife. The parties made improvements to both properties during the marriage.

The primary source of the parties' income during the marriage was a home remodeling business (the business) that Husband started before the marriage. Husband, a licensed general contractor, ran the business as a sole proprietor from an office in the house, and Wife assisted with accounting and other office work. Wife also brought in occasional income from design and color consulting work.

Initial Dissolution Proceedings

The parties separated on March 7, 2007, after more than seven years of marriage. Wife retained counsel and filed a petition for dissolution of marriage. (Fam. Code, § 2310, subd. (a).)¹ She sought exclusive possession of the house, custody of Joseph, child support and spousal support under the guidelines, determination of the parties' respective property rights, and attorney fees.

1 All undesignated statutory references are to the Family Code.

On May 29, 2007, Judge Wynne S. Carvill granted Husband exclusive possession of the house and ordered him to pay Wife $5,000 to assist her "in making a payment of first and last month's rent plus security deposit and moving expenses . . . ." The judge awarded joint custody of Joseph and ordered Husband to pay retroactive child support ($1,357) and spousal support ($2,287), based on an annual income of $140,000. Income over that amount would be deemed "bonus" income requiring additional support, payable annually on April 30, and Husband was required to produce his income tax return each year by April 15. The judge granted Wife attorney fees of $5,000.

Less than two months later, on July 16, 2007, Wife filed a motion to modify the May 2007 order, seeking possession of the house. She claimed she was unable to obtain suitable housing because she needed a "live/work space" and had inadequate income and no credit. She said she was living on the parties' sailboat (the boat), a 30-foot cutter rig, and that Joseph often said he wanted to live with her in the house.

Shortly thereafter, Husband moved to compel answers to interrogatories and a vocational evaluation of Wife. Wife opposed a vocational evaluation, contending her recent move exacerbated a chronic neck and low back condition, and her earning capacity would be difficult to determine before it stabilized. She said an evaluation might not be needed, in any case, as she "already has an avocation as a color consultant" and hoped to reestablish her business.

Judge Carvill continued both motions to November 2007. On October 9, 2007, before the motions were heard, Wife filed another motion to modify the May 2007 order, seeking sole custody of Joseph, possession of the house, and additional attorney fees ($25,000).

Judge Carvill denied Wife's request for possession of the house as "an untimely and improper motion for reconsideration of a prior order," noting his original order was based in part on "the role the residence plays in [Husband's] business, which is currently the sole support for the family." The judge continued joint custody of Joseph, ordered a vocational evaluation, and awarded Wife additional attorney fees of $15,000, from which he deducted $3,000 to compensate Husband for his attorney fees in responding to "the de facto motion for reconsideration."

On January 18, 2008, Wife indicated that she would be representing herself.² She retained new counsel in May 2008, but gave notice less than a month later that she was proceeding once again in propria persona.

2 Between March 2007, and January 18, 2008, Wife was represented by three different attorneys.

The July 2008 Order Setting the Case for Trial

In July 2008, Judge Carvill set trial for January 30, 2009, "to allow a full six months for preparation." He expressed concern "that given [Wife's] views on the case and apparent ineffectiveness in pursuing her issues, she may never be ready for trial," and suggested she retain counsel or "devote[] substantial time in the next several month[s] to preparing for trial." In addition, he ordered: "Any party seeking reimbursement for any cost shall present a written demand to the other side with receipt or proof of payment and a reference to the basis for the claim . . . ." The parties were ordered to pay undisputed claims and make written objections to those in dispute. The judge noted that, unless the parties had done so, such claims were not ripe for presentation to the court. The parties were ordered to meet and confer before a settlement conference in early January 2009.

Judge Carvill's November 2008 Order

Two weeks later, Wife filed a motion contending Husband had not paid the retroactive child support ordered in May 2007. On October 31, 2008, she filed an application to enforce the order requiring Husband to produce his 2007 tax return for purposes of calculating bonus support.

Wife represented herself at the November 2008 hearing on the motions. Judge Carvill denied her motion for retroactive child support without prejudice, providing: "[T]he arrears, reimbursements and offsets are all to be determined at trial." He ordered the parties to exchange written accountings of their claims for reimbursement, supported by receipts if possible, and to meet and confer.

Pretrial Proceedings

On January 2, 2009, Judge Carvill held a mandatory settlement conference. Attorney Susan Jeffries made a special appearance on behalf of Wife, who had retained her "within the last day or so."³ Wife had not complied with the judge's order to provide a written accounting of her reimbursement claims, and the parties had not met and conferred. Husband's counsel, Carol Amyx, said his reimbursement materials were produced in mid-December and that she had tried to set a time to meet[,] but Wife "didn't really respond about a date . . . ." Jeffries informed Amyx that the parties could not settle the matter at that time. Judge Carvill said he was "seriously concerned that this thing is dragging on because [Wife] is not being diligent and following the orders."

3 Jeffries noted that Wife had talked to another attorney "10 days ago," who referred the case to her after discovering it was not well-organized.

Wife made an oral motion for an additional $20,000 in attorney fees and a four-month continuance of trial. Judge Carvill denied Wife's request to continue trial, noting that she had waited over five months after his admonishment to hire an attorney and did so within 30 days of trial. The judge found it would be unfair to vacate the trial date and force Husband to pay more attorney fees to Wife, when she had ignored prior orders, and Husband had incurred substantial fees in preparing his reimbursement claims. The judge found that the $20,000 in fees she received was not "well-spent," as she resisted a vocational evaluation and repeatedly attempted to relitigate possession of the house, "squander[ing] the fees she was awarded" and causing Husband additional expense. Judge Carvill said he had "zero confidence that any award now would be spent preparing for trial rather than squandered on peripheral matters." He noted the parties had incurred $80,000 in fees and that "[t]his is not a case with substantial assets . . . . This is a case of wasting assets. The retirement accounts have been exhausted, and the [house] has declined in value since [Wife's] name was added to it. It is very likely now 'underwater.' To entertain [Wife's] proposed course of action now would waste what little remains." Judge Carvill ordered the parties: (1) to serve, by January 16, 2009, final declarations of disclosure and updated income and expense declarations; and (2) to provide, no later than January 23, 2009, a list of all claims for reimbursement to be advanced at trial, with supporting documentation.

On January 5, 2009, the courtroom clerk mailed the parties' counsel a notice of trial and pretrial order indicating that trial was set to commence on January 30, 2009. The pretrial order noted that the morning of the first day of trial would be used for a settlement conference and that no evidence would be received that day. The pretrial order provided: "No later than [five] court days before the date set for trial, counsel shall exchange a list of witnesses." The order also required the exchange of all nonimpeachment exhibits "between counsels [sic]," at least five court days "prior to the date set for trial . . . ." The order noted that the court, in the exercise of its discretion, might exclude the testimony of any witness not disclosed and any exhibits not exchanged.

The same day, a deputy clerk mailed counsel a "Notice of Hearing (Amended)," captioned: "Non-Jury Trial (Long Cause) - Family Law on 01/30/2009 has been vacated and rescheduled." It provided: "Notice is hereby given that the above entitled action has been set for: Settlement Conference - Family Law," and directed the parties to appear for a settlement conference on January 30, 2009.

Husband personally served his proposed witness list and trial exhibits on January 23, 2009, five court days before January 30, 2009. The Jeffries firm timely filed Wife's income and expense declaration but did not provide any other pretrial materials, including her witness list and trial exhibits. Wife's attorney, Edward Price, declined to meet and confer, "asserting that the case is only on for settlement conference and not for trial."

On January 27, 2009, the Jeffries firm served what Amyx characterized as "a list of subjects as to which [Wife] seeks what she calls reimbursements, with many pages of documents." Wife maintains that she also produced a report by an expert she had retained to appraise the business.⁴

4 The only indication in the record of when Wife provided this report is her representation to the trial court that "Miss Amyx has had the report since the 28th of January." In responding to this assertion, Amyx did not dispute the date she received the report. We also note the trial court's statement at trial: "[T]he order that I made in limine specified that there would be no expert testimony on behalf of the business evaluation," which suggests that the report was exchanged before the January 30, 2009 hearing on the motion.

Husband filed a motion in limine to preclude Wife from offering exhibits and witness testimony at trial because she had not provided her witness list or exhibits, as the pretrial order required. In addition, he sought to exclude evidence of Wife's reimbursement claims because she did not provide an accounting of these claims with receipts, as required by the court's November 2008 order, and did not comply with its subsequent order to provide reimbursement documentation by January 23, 2009. Husband also noted: "[I]t is impossible to determine from her list what amounts she is claiming or what the documents are meant to show . . . ."

On January 30, 2009, the parties appeared with counsel before a different superior court judge (the trial court), who moved the trial to February 18, 2009,⁵ and granted Husband's motion, excluding evidence of Wife's reimbursement claims at trial and precluding her from offering witness testimony and exhibits during her case in chief. The trial court said this evidence could be "used in rebuttal."

5 The record does not indicate why the case did not proceed immediately to trial. The respondent's brief notes: "Because of calendaring constraints, the court asked the parties to return for trial . . . two weeks later."

Trial and the Trial Court's Decision

The matter came on for a three-day bench trial on February 18, 2009. At issue were the division of the marital estate, Husband's claims for reimbursement, and permanent spousal support and child support. Wife appeared in propria persona. The trial court allowed her to testify but precluded her from offering other witness testimony or exhibits during her case in chief, noting again that this evidence would be allowed in rebuttal. All evidence of her reimbursement claims was excluded. The trial court denied multiple requests from Wife to call her business appraiser as a witness, relying instead on the parties' opinions valuing the business. The parties also testified regarding the value of the boat, a 2000 Porsche Boxster, a 1977 Mercedes, and a pickup truck used in the business (business truck). Husband called a real estate appraiser to testify regarding the value of the real property and a vocational expert to testify regarding Wife's earning capacity.

On May 18, 2009, after issuing a tentative decision and affording the parties an opportunity to respond, the trial court filed its statement of decision, which provided as follows:

Division of the Community Estate: The trial court found that Wife had no interest in the house or the Virginia Avenue parcel and awarded both to Husband. The trial court also assigned him the obligations on the house, which exceeded its value by $14,500 at the time of trial. Wife was ordered to reimburse him for half of the negative equity.

The trial court valued the goodwill of the business at zero, found it had negative value at the time of trial, and awarded its assets and obligations to Husband.

The trial court awarded the business truck and the Mercedes to Husband as his separate property. The trial court concluded that the boat and the Porsche were community property and awarded them to Wife.

Husband's Reimbursement Claims: Finding that the parties purchased the boat and Porsche with loan proceeds secured by the house while it was still Husband's separate property, the trial court concluded that Husband was entitled to reimbursement (§ 2640) for their full value ($40,000). In addition, the trial court ordered Wife to pay Husband $5,000, as reimbursement to the community for her exclusive use of the boat since July 2007. The trial court also ordered Wife to reimburse Husband for her share of the state and federal income taxes he paid for 2006 ($14,658), plus $24,769 for other expenses he paid on her behalf.

Husband's Support Obligations: The trial court reduced Wife's spousal support from $2,287 to $800 a month, to be paid through September 30, 2010. It also awarded her $4,074 in bonus spousal support for 2007, but offset this obligation against Husband's right to reimbursement.

The trial court reduced Husband's monthly child support obligation to $982, based on his monthly income and income it imputed to Wife. The trial court also awarded Wife bonus child support for 2007, and $2,205 in arrears. The trial court denied Husband's request to offset his child support obligation against the amount Wife owed him.

Attorney Fees: The trial court denied Husband's request for attorney fees, finding that Wife's conduct had inhibited cooperation between the parties, frustrated the policy in favor of settlement, and increased the cost of litigation, but that any award would be an unreasonable financial burden on her. (See § 271.)

In total, the trial court found that Wife owed Husband a net reimbursement of $80,509, and that Husband owed her $2,205 for child support arrears.

The judgment of dissolution was entered on June 22, 2009. Wife filed a timely notice of appeal from the judgment.

DISCUSSION

I. The Trial Court's Exclusionary Rulings

Wife challenges the trial court's rulings precluding evidence during her case in chief and in support of her reimbursement claims. We review these exclusionary rulings for abuse of discretion, viewing the evidence " ' " 'most favorably in support of [the] order' " ' " and " 'indulg[ing] all reasonable inferences to uphold [it].' " (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478 (Feldman) [analogous to civil discovery sanctions]; see Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore (2008) 162 Cal.App.4th 1331, 1337-1338 [standard of review for ruling on motion in limine is determined by motion's substance and effect].) We must uphold these rulings unless we conclude that " ' " 'no judge could reasonably make the order.' " ' [Citation.]" (Feldman, at p. 1478.) "[W]e will reverse only if the trial court's action was ' " 'arbitrary, capricious, or whimsical.' " ' [Citation.] 'It is [the appellant's] burden to affirmatively demonstrate error . . . .' [Citation.]" (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 401; accord, Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1286 (Clement).)

A. Factual Background

Attorney Price represented Wife at the hearing on Husband's motions in limine. Price maintained that he believed, in reliance on the amended notice of hearing, that the trial date had been vacated, noting that the trial court, in fact, had reset the trial for mid-February. He denied that his office was trying to "be obstructive or unduly delay the proceeding . . . ." He said he served Wife's reimbursement materials "a few days late" because of their volume and his time constraints. He argued exclusion of her evidence was "unduly harsh and clearly unfair," as she has health problems and "has been trying to represent herself . . . for an extended period of time without extensive . . . assets . . . ."

Attorney Amyx acknowledged "there might be some basis for confusion" but said it was unreasonable for Price to assume the clerk's notice superseded the pretrial order. She also claimed Wife's reimbursement materials were not sufficient under the court's orders, contending: "[I]n light of the rest of the history of this case . . . that involved motions to reconsider and resistance to formal discovery procedures, . . . this is simply another delaying tactic on her part . . . ."

Noting it was "familiar from [its] review of the file of the prior conduct," the trial court found Judge Carvill had been "extremely clear . . . as to what the circumstances were in this case and what he expected the parties to do. . . . [Family law cases] are to be treated with the same respect for the rules and orders . . . . If you fail to do this there are consequences. This is a consequence." In addition, noting that it was aware of offers of evidence showing Husband was going to put forth significant claims, the trial court said: "[T]here isn't any money in this to respond to that. And so in order to get it over and done with the court feels it can't delay it any further."

Trial commenced almost three weeks later, on February 18, 2009. Wife urged the trial court to continue trial. The trial court denied her request and reminded her: "[Y]our exhibits may not be entered into your case in chief; however, if any of your exhibits . . . can be used as [r]ebuttal to any evidence that is supplied by [Husband], we can use it for those purposes." Over Husband's objection, the trial court allowed Wife to testify at trial but did not permit testimony or other evidence regarding her reimbursement claims. During her case in chief, she informed the trial court that her business appraiser was present in court and asked to "put him on the stand." Based on its in limine ruling, the trial court denied her request. Again before beginning her cross-examination of Husband, Wife indicated that her business appraiser "is here waiting" and asked the trial court to reconsider its ruling. She said this expert was "key to [her] case": "Without the evaluator it will be nearly impossible for me to show what the business is worth. [¶] . . . [¶] . . . I do not believe that there can be a fair determination [of] the value of the business without . . . his testimony."

Attorney Amyx contended Husband would be prejudiced if the trial court allowed testimony from the business appraiser after Wife had completed her case in chief, noting Husband would have retained a rebuttal expert if the trial court had not ruled earlier that this evidence was excluded.

The trial court stood by its earlier ruling: "I previously ruled that if there was any confusion as a result of a clerk's notice, not something from the judge, but a clerk's notice with respect to whether or not a trial was going to take place as previously scheduled[,] a phone call would have satisfied, that . . . the clerk's notice was sent out in error and this is what we expect of counsel . . . ." The trial court explained further: "There was no doubt—there should have been no doubt in anybody's mind that the trial was going forward. [¶] The failure to . . . check into this controversy or . . . this notice and the validity of what that notice meant rests solely upon your counsel at the time. [¶] There was no meeting and conferring with respect to exchange of witnesses in this case, that is without a doubt." The trial court found that Husband would be prejudiced if it allowed the testimony. Noting it had "heard the evidence of what this business consists of, nonexpert, but personal evidence," the trial court said it believed it could make a fair ruling. As there was no expert opinion regarding the value of the business, the trial court relied on "the evidence provided and its knowledge and understanding of the law."

B. Analysis

Wife contends the trial court abused its discretion in "preclud[ing] [her] from introducing any evidence at trial, except in rebuttal, as a sanction for failing to comply with the court's deadlines . . . ." At the outset, we note that the record does not fully support this characterization of the trial court's rulings, as Wife was permitted to testify at trial.⁶ Accurately stated, the trial court's rulings precluded her from offering (1) any witness testimony or exhibits during her case in chief that were not disclosed in accordance with the pretrial order; and (2) any evidence to support her claims for reimbursement for expenses she made on behalf of the community.

6 Wife testified regarding the parties' income and lifestyle, their assets and obligations, including the value of the business and other assets, her separate property contributions and financial needs, and marital improvements to the house.

Wife maintains that the trial court precluded her "from presenting [her] case in chief" and "from producing critical evidence on the issues before the court . . . ," and that no judge could reasonably have ordered these "draconian" sanctions in the circumstances presented here.⁷ We disagree. We are not unmindful of the impact such broad exclusionary rulings may have on a party's ability to establish his or her case and a trial court's ability to fairly decide the merits. We also recognize that the manner and circumstances in which a trial court imposes such limits on a party's evidence reflect upon the court's integrity as an institution of justice.⁸ We ultimately conclude, however, that the trial court in this case acted within the bounds of its discretion.

7 Wife also relies on Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659, 669-670. Kelly is inapposite, as it addressed a motion in limine precluding the plaintiffs from offering evidence contrary to their deposition testimony. (Id. at pp. 667, 672-673 [abuse of discretion to "preclude[] a party from trying a case on a theory consistent with existing evidence, even though the [party's] pretrial testimony . . . is contrary to the theory"].)

8 There is a " ' "strong policy favoring the disposition of cases on their merits . . . ." ' " (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1363-1365 (Elkins), fn. & italics omitted.) This policy serves not only to provide justice to litigants but also to provide the appearance of justice, which is essential to maintaining the public's trust in the integrity of the courts. (Id. at p. 1369.) Accordingly, although a trial court has discretion in the proper circumstances to restrict the parties' evidence in such a manner, it should not do so lightly. (Id. at p. 1364 [cautioning against "treating a curable violation of local procedural rules as the basis for crippling a litigant's ability to present his or her case"].) It may not enforce its orders mechanically and must exercise its sound discretion, giving these policies due consideration. (Id. at p. 1365; Stephen Slesinger, Inc. v. The Walt Disney Co. (2007) 155 Cal.App.4th 736, 764 [in exercising its inherent powers to dismiss an action, a trial court must consider all relevant circumstances, including: "the nature of the misconduct . . . , the strong preference for adjudicating claims on the merits, the integrity of the court as an institution of justice, the effect of the misconduct on a fair resolution of the case, and the availability of other sanctions to cure the harm"].)

1. Relevant Legal Principles

Trial courts have inherent power " ' "to exercise reasonable control over all proceedings connected with pending litigation . . . in order to insure the orderly administration of justice. [Citation.]" ' [Citation.]" (Elkins, supra, 41 Cal.4th at p. 1351; see Code Civ. Proc., § 128, subd. (a)(3) [power "[t]o provide for the orderly conduct of proceedings"].) Under this authority, trial courts have the power "to implement and enforce effective conduct of judicial [pretrial] proceedings" (Mellone v. Lewis (1965) 233 Cal.App.2d 4, 12 (Mellone)), and " 'to make orders [that] prevent the frustration, abuse, or disregard of the court's processes.' " (Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287 (Peat); see Code Civ. Proc., § 128, subd. (a)(4) [power "[t]o compel obedience to its judgments, orders, and process"].) These powers extend to the preclusion of evidence. (Peat, at p. 288; see Code Civ. Proc., § 187 ["[I]f the course of proceeding [is] not specifically pointed out by . . . statute," a trial court may adopt "any suitable process or mode of proceeding . . ."].)

In Mellone, the court concluded that, when a party fails to produce evidence in accordance with the deadlines in a pretrial order, the sanctions available for failure to comply with a discovery order "provide a suitable method of practice harmonious with the purposes of implementing and enforcing the portions of the present pretrial order relating to evidence and discovery." (Mellone, supra, 233 Cal.App.2d at p. 13, citing Code Civ. Proc., § 187;⁹ see Elkins, supra, 41 Cal.4th at p. 1354 [" '[T]he rules . . . applicable to civil actions generally . . . apply to, and constitute the rules of practice and procedure in, [family law] proceedings . . . .' "].) A trial court has broad discretion under this provision to order sanctions for discovery abuse, including "refusing to allow the disobedient party to support or oppose designated claims . . . , or prohibiting him from introducing in evidence designated documents or things or items of testimony." (Mellone, at p. 13; In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1317.)

9 The court relied on former Code of Civil Procedure section 2034. (Ibid., as amended by Stats. 1961, ch. 496, § 3, pp. 1592-1595; see Mellone, supra, 233 Cal.App.2d at p. 13.) Sections 2023.010 and 2023.030 now authorize the imposition of issue and evidence sanctions for "a misuse of the discovery process," including "[d]isobeying a court order to provide discovery." (Code Civ. Proc., §§ 2023.030, 2023.010, subd. (g).)

2. We Find No Abuse of Discretion.

Wife presents no authority discussing the limits of these powers and has not met her burden on appeal to demonstrate error.¹⁰ We are not persuaded, in any case, that these rulings were " ' " 'arbitrary, capricious, or whimsical.' " ' " (See Clement, supra, 177 Cal.App.4th at p. 1286.) First, Wife's failure to provide her witness list, trial exhibits, and reimbursement materials, as ordered, were not isolated incidents, but the latest omissions in an ongoing pattern of resisting the court's orders and frustrating its efforts to move proceedings toward disposition by settlement or trial. "A trial court[,] in circumstances such as these, is not required to further tolerate such behavior." (Young v. Rosenthal (1989) 212 Cal.App.3d 96, 119 (Young); accord, Waicis v. Superior Court (1990) 226 Cal.App.3d 283, 288 (Waicis).) "[It] must exercise its inherent and statutory powers to prevent abuse of the system which causes delay." (Waicis, at p. 288.)¹¹

10 Wife distinguishes Mellone because the evidence excluded in that case related only to special damages, was not included in the appellate record, and was not produced until seven days before trial, "too late to verify it." We do not find these distinctions persuasive. Although the rulings here were broad, they were tailored directly to Wife's noncompliance with the pretrial orders. Moreover, the only evidence the record shows she would have presented at trial is her business appraiser's testimony, and the holding in Mellone did not turn on prejudice. (See Mellone, supra, 233 Cal.App.2d at pp. 12-14.)

11 Young involved repeated and willful violations of a court order. (Young, supra, 212 Cal.App.3d at p. 119.) "[W]illfulness is no longer a [statutory] requirement for the imposition of discovery sanctions. [Citation.]" (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1291; Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971.)

Second, Wife had ample time and opportunity to prepare her trial evidence and reimbursement materials, but never produced them as ordered. Judge Carvill set a trial date almost two years after the petition for dissolution of marriage, allowing the parties over six months to prepare for trial. He gave Wife three opportunities over this six-month period to identify and document her reimbursement claims. When he finally set a date certain for the production of these materials, he gave Wife three more weeks to provide them. She also had three weeks after the pretrial order to prepare to disclose her trial evidence but did not timely comply with any of these orders. The record does not show she ever identified her witnesses and trial exhibits, and Husband characterized the reimbursement materials she produced as: "two and a half inches of papers with a list of categories . . . [for] which she requested reimbursement, not saying . . . the dollar amount of the reimbursement in any category and . . . [giving] no indication of what the documents were supposed to show . . . ."¹²

12 The record does not show whether the trial court deemed these materials sufficient, but we presume its ruling is supported by the record and indulge all inferences to support it when the record is silent. (Higdon v. Superior Court (1991) 227 Cal.App.3d 1667, 1671; Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) As the record does not include these materials, it does not permit a contrary determination. (See Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859-860 [appellant's burden to provide an adequate record that shows error].)

Third, Wife received fair notice that her evidence could be excluded if she did not comply with the court's orders. The pretrial order warned the parties specifically that failure to comply with the disclosure requirements could result in the exclusion of their witnesses and exhibits at trial. Likewise, the July 2008 order indicated that the parties' reimbursement claims were not ripe for presentation to the court until the relevant information was exchanged. Having repeatedly failed to heed these admonitions, Wife cannot now complain that she has suffered the consequence.

We recognize that Wife was acting without legal representation for a substantial portion of the proceedings below. Nonetheless, we treat litigants proceeding in propria persona like any other party, affording them " 'the same, but no greater consideration than other litigants and attorneys.' " (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) In any case, Wife was represented by counsel when she failed to comply with the court's January 2009 orders and at the time of the trial court's rulings.

Wife contends the trial court's rulings were unreasonable because her omissions: (1) were not calculated, but due to her counsel's mistaken belief, based on the clerk's notices, that the deadlines no longer applied; and (2) caused Husband no prejudice, given the delay of trial. Neither of these contentions has merit. Wife provides no authority showing a trial court abuses its discretion in imposing sanctions absent a finding of willfulness. (See ante, fn. 11.) In any case, willfulness is a factual question, and we defer to the trial court's findings if supported by substantial evidence. (Waicis, supra, 226 Cal.App.3d at p. 287; Feldman, supra, 153 Cal.App.4th at p. 1479.) The trial court did not expressly find willfulness here, but substantial evidence supports such a finding. The record reasonably permits an inference that, in failing to disclose Wife's trial evidence, attorney Price took advantage of the confusion created by the conflicting clerk's notices to buy more time to prepare for trial.¹³ We note, in any case, that the pretrial order requires the exchange of evidence before "the date set for trial" and does not relieve the parties of their obligations if trial is continued. In addition, we observe that Price did not attribute the delay of Wife's reimbursement materials to the conflicting clerk's notices, and Wife said at trial that she did not give them to counsel until 3:00 p.m. the day they were due.

13 Indeed, Price was on notice that Husband's attorney disagreed with his position, as she attempted to meet and confer regarding trial, and the trial court found he could have easily clarified the matter with a phone call to the clerk's office.

Wife also presents no authority showing a finding of prejudice is a prerequisite of an evidentiary sanction, and we do not accept her assumption, in any case, that the trial continuance prevented prejudice to Husband. Her delay in complying with the court's orders afforded Husband significantly less time to prepare to rebut her evidence than his timely responses allowed her. In any event, we cannot conclude that the trial court acted unreasonably, even without prejudice, given Wife's conduct during the proceedings. II. The Trial Court's Division of the Marital Property

A. Standard of Review

"The trial court has broad discretion to determine the manner in which community property is divided, [but] . . . it must be divided equally. [Citations.]" (In re Marriage of Sivyer-Foley & Foley (2010) 189 Cal.App.4th 521, 526 (Foley); In re Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th 196, 201.) Accordingly, we review the judgment dividing the marital estate for abuse of discretion, (Foley, at p. 526; Dellaria, at p. 201), presuming it is correct and indulging "all intendments and presumptions" in its favor. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).) We will uphold the trial court's factual findings as to the value of the property if supported by substantial evidence. (Foley, at p. 526; Dellaria, at p. 201.)

B. The Real Property

Wife disputes the trial court's valuation of Husband's separate interest in the house and seeks compensation for community-funded improvements to the real property.

1. Factual Background

Husband purchased the house at 2915 Monticello and the adjacent Virginia Avenue parcel before marriage. At the time of marriage, the mortgage balance on the house was $138,500, and the Virginia Avenue parcel was unencumbered. During the marriage, mortgage payments were paid out of the joint account. Husband refinanced the house twice during the marriage, in 2002 and 2004. At the time of the second refinance, he also obtained a $50,000 home equity line of credit.

The parties made extensive improvements to the real property during the marriage, including some in 2005 that cost $25,000. Wife said these were funded by the business and the loan proceeds. Husband said the parties used the "refinance money."

In 2006, Husband used $1,000 from the joint account to build a "blacksmith shop" on the Virginia Avenue parcel. The parties also built an art studio on this parcel.

In October 2006, Husband executed a quitclaim deed transferring ownership of the house to himself and Wife as joint tenants. At that time, the house was valued at $425,000, and the encumbrances exceeded $371,000, over $233,000 more than at the date of the marriage. The encumbrances on the house were substantially the same when the parties separated in March 2007.

Husband's real estate appraiser valued the house at $345,000, as of December 5, 2008. The encumbrances around that time were $361,466.

The trial court found that Wife had no interest in the Virginia Avenue parcel, but agreed that she had a community property interest in the house because her name was added to the deed in October 2006. The trial court valued Husband's separate property interest at $53,342, deducting the encumbrances in October 2006 from the value of the house at that time. The trial court found the house had negative equity of $14,500 at the time of trial. As Husband's separate interest exceeded the equity, the trial court awarded the house and its obligations to him, ordering Wife to pay him half the negative equity.

The trial court also concluded Wife had "no viable Moore/Marsden claim" based on the community's mortgage payments, as it was reimbursed for all principal reductions before the last refinance by its use of the refinance proceeds. (See In re Marriage of Moore (1980) 28 Cal.3d 366 (Moore); In re Marriage of Marsden (1982) 130 Cal.App.3d 426 (Marsden).) The court found the community's $11,360 principal reduction was "swallowed up" by its use of the $50,000 credit line.

2. Analysis

The House

Wife contends the trial court erred in valuing Husband's separate property interest in the house at the time her name was added to the deed. She maintains that, under Moore/Marsden, the trial court should have valued Husband's separate interest at the date of the marriage, when the parties began using community funds to reduce the mortgage principal, because the community began acquiring an interest at that time. "[W]here community funds contribute to the owner's equity in separate property, the community obtains a pro tanto quasi-ownership stake in the property." (In re Marriage of Allen (2002) 96 Cal.App.4th 497, 502 (Allen).) Wife does not assert a pro tanto interest in the house, however; she seeks valuation of Husband's separate interest at an earlier date. She has not shown that community mortgage payments require an earlier valuation of this interest, and the authority on which she relies does not hold that a spouse's separate interest must be determined at the time community funds were first expended.¹⁴ Indeed, when a community's contributions increase the equity of separate property, a formula is used to calculate the respective interests.¹⁵ Wife does not discuss this formula or cite to evidence permitting its application here.

14 In In re Marriage of Geraci (2006) 144 Cal.App.4th 1278, 1287 (Geraci), the court noted that the community acquired a pro tanto interest in the property "from the very beginning" if it took out a loan a few months after the marriage to "retire a possible construction loan and/or [one spouse's] original mortgage." The court did not mean the separate interest should be valued at the date of marriage. (Id. at pp. 1287-1288.)

15 See In re Marriage of Branco (1996) 47 Cal.App.4th 1621, 1626-1627 (Branco); Moore, supra, 28 Cal.3d at pp. 372-374 [" 'a pro tanto community property interest in the ratio that the payments on the purchase price with community funds bear to the payments made with separate funds' "]; Marsden, supra, 130 Cal.App.3d at p. 426 [dividing the amount by which community payments reduced the loan principal by the purchase price, then multiplying the community and separate percentages by the appreciation of the property during the marriage].)

Wife maintains, in any case, that the community acquired an interest in the house "no later than the first refinancing." (See Branco, supra, 47 Cal.App.4th at p. 1627 [there is "no meaningful difference, for purposes of determining whether the community acquires an interest in real property, between the use of community funds to make payments on one spouse's preexisting loan and the use of proceeds from a community property loan to pay off the preexisting loan"].) This contention has no merit. The trial court concluded that the proceeds of both refinances were Husband's separate property, and Wife has not shown a lack of substantial evidence to support this finding.¹⁶ As community funds were not used to satisfy Husband's earlier mortgages, the community did not obtain a Moore/Marsden interest in the house when it was refinanced.

16 At the time of both refinances, the house was Husband's separate property. "The proceeds of a loan obtained upon the credit of separate property . . . are separate funds." (Hicks v. Hicks (1962) 211 Cal.App.2d 144, 153 (Hicks); In re Marriage of Neal (1984) 153 Cal.App.3d 117, 125 (Neal), disapproved on other grounds in In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, fn. 13.) The mortgage statements after each refinance are addressed to Husband alone. Wife contends "the parties jointly paid off the loans . . ." but provides no authority showing this requires a finding that the original mortgage was satisfied with community funds.

Wife also contends: "The community should have been credited with an interest [in the house] commensurate with the value that [community-funded improvements] added to the property . . . ." Where the parties use community funds to make improvements to a residence purchased by one of the parties before marriage and those improvements increase the property's equity value, the community has a pro tanto interest in the property. (Allen, supra, 96 Cal.App.4th at p. 502.) Wife has not shown the trial court erred in denying the community a pro tanto interest in the house based on the improvements it funded.¹⁷ The evidence on which she relies does not permit calculation of the community's interest, as it does not show how much the improvements increased the house's equity value.¹⁸ (Branco, supra, 47 Cal.App.4th at pp. 1626-1627.)

17 The trial court did not address the viability of Wife's Moore/Marsden interest in the house based on community-funded improvements. As Wife did not object to the trial court's findings, we imply all findings necessary to support the judgment. (Arceneaux, supra, 51 Cal.3d at pp. 1133-1134; Code Civ. Proc., § 634.)

18 Wife values the improvements at $44,320, relying on Husband's real estate appraiser's valuation of the "below grade" improvements and multiplying this amount by the square footage of the house "above grade." The appraiser did not identify at trial or in her report the square footage of the "below grade" area. Wife does not provide evidence, in any case, showing the value of this area before the improvements or how much they increased the house's equity value.

For the first time on appeal, Wife contends the community is entitled to $25,000 reimbursement for its contributions to the improvements. She has waived this contention by failing to assert it in the trial court. (See In re Marriage of Eben-King & King (2000) 80 Cal.App.4th 92, 117 (King).) She argued below that the improvements to the house increased its value and were funded by business earnings and commingled funds. She emphasized these points, however, in asking the trial court to deem the house community property during the entire marriage, not in seeking reimbursement for the community's contributions.

Wife also has waived the argument, asserted for the first time in her reply brief, that "[she] should not be forced to pay $7,250 in negative equity to [Husband] . . . , who gets to enjoy the much larger home that the community built." (Cold Creek Compost, Inc. v. State Farm Fire & Casualty Co. (2007) 156 Cal.App.4th 1469, 1486.)

We observe that Wife cannot establish prejudicial error, in any case, based on the community's alleged Moore/Marsden interest in the house as of October 2006. Although recognition of such an interest would have reduced Husband's separate property interest in the house, the trial court did not reimburse him for his separate interest. Because it found the house had negative equity at the time of trial, it awarded the house to him. (See Geraci, supra, 144 Cal.App.4th at p. 1286 [" 'If there is insufficient equity at the time of dissolution . . . to fully reimburse the contribution, the entire asset is awarded to the contributing spouse' "].) Thus, its acknowledgement of the community's pro tanto interest would not have produced a different result.

The Virginia Avenue Parcel

Wife contends the community is entitled to recover the value of the studio and the cost of the blacksmith shop on the Virginia Avenue parcel. (See In re Marriage of Wolfe (2001) 91 Cal.App.4th 962, 972-973 (Wolfe) [implying the community may recover reimbursement for its contribution or the appreciation in the asset's value attributable to the improvement].) Husband argues that she "did not raise this theory at trial and so must be deemed to have waived it." (See King, supra, 80 Cal.App.4th at p. 117.) Wife does not claim to have raised the issue below but maintains we can address it nonetheless, as it is "a legal issue involving the undisputed facts." (See Ward v. Taggart (1959) 51 Cal.2d 736, 742.) We disagree. These claims require determination of at least two factual questions on which the record was not sufficiently developed at trial. First, we would have to identify the source of the funds used for the improvements. There was evidence that the studio and the blacksmith shop were built with the refinance proceeds and funds from the joint account, but it is undisputed that separate and community funds were commingled in this account. Because Wife did not assert her claims below, Husband has not had a fair opportunity to trace these improvements to his separate funds. Second, Wife's claims are viable only if the improvements increased the parcel's equity value. (See In re Marriage of Sherman (2005) 133 Cal.App.4th 795, 799-800 [pro tanto interest in a separate asset to the extent community's contributions increase the equity value]; Wolfe, supra, 91 Cal.App.4th at pp. 972-973 [distinguishing between mortgage payments and improvements, which "do not always enhance the value of an asset"].)¹⁹ She does not cite any evidence showing the blacksmith shop increased the parcel's value, and we find none in our review of the record. As to the studio, her reliance on the testimony of Husband's appraiser, Susan Overton, is misplaced. When asked whether the studio "add[s] value to the property," Overton responded, "We have given it some value. It's not at all like a living unit . . . . [¶] . . . [W]e have given it a value of $7,000." This testimony does not establish that the studio increased the value of the Virginia Avenue parcel. To the extent Overton's valuation may be deemed an increase in equity value, it relates to the value of the house with the "excess land" of the Virginia Avenue parcel included. At trial, no evidence was presented regarding the parcel's separate value or the increase attributable to the studio.

19 Wife does not seek a pro tanto interest in the blacksmith shop, but rather, reimbursement for its cost. Some authority indicates that, when improvements do not increase the property's equity value, the community is entitled to reimbursement instead of a pro tanto interest. (See, e.g., Bono v. Clark (2002) 103 Cal.App.4th 1409, 1425.) To the extent Wife's claim requires a determination of whether an increase in value must be shown to obtain reimbursement, it presents a legal issue that the trial court has not considered and the parties have not briefed.

C. The Business

Wife challenges the trial court's finding that the business had negative value, including its characterization of the business truck as Husband's separate property and its decision "valu[ing] the goodwill of the business at zero." We disagree with the trial court's finding regarding the truck but otherwise reject Wife's contentions.

1. Factual Background

Husband has been a general contractor for over 20 years and runs a home remodeling business out of an office at the house. He does relatively small jobs. He employs an office staff person a few hours a week and two hourly employees who help out as needed. He spends six to eight hours a day in the field, bills his time at $75 an hour, and adds a 21 percent markup to labor and supplies.

Husband testified that, at the time of the marriage, he had a "pickup truck and some tools," and that, at the time of separation, he had "about the same." The parties purchased a truck for the business in 2003 or 2004. Husband said he obtained a certificate of deposit "for the annual of a [contractor's] bond" (bond CD) in the amount of $12,500. He borrowed $7,500 of this amount from his father in 2001, and has not repaid it. He added $5,000 from his earnings in 2002 and 2004.

Husband did not call an expert at trial to establish the value of the business. He said the business "has value in whatever my efforts are that I put out, and other than that it has no sellable value." Wife testified that the value of the business, which was based primarily on its goodwill, was $621,000, given the increase in its earnings during the marriage, its ongoing revenue, and the 21 percent markup on invoices that resulted in $90,000 revenue in 2006.

The trial court found: "For the most part, and notwithstanding [Wife's] assistance and [Husband's] use of employees, he is truly 'hands on' in its operation." As no expert opinion was admitted regarding the value of the business, the trial court relied solely on the evidence provided and its own understanding of the law. It found that Husband's business had little or no value at the time of the marriage, noting that Husband had been discharged from bankruptcy 10 months earlier. In valuing the business as of the date of trial, the trial court considered its income, assets and obligations, and goodwill value. The trial court purported to apply the "excess earnings" method of determining the business's goodwill value, asking, "[W]hat could the business earn independent of the reasonable value of the services provided to the business by [Husband]. In other words[,] if [Husband] were to hire a person to take his place, after the cost of such hiring were deducted from the earnings what would be left[?]" The trial court "value[d] the goodwill of the business at zero," finding: "[I]f he had to hire someone (or 2 people) to do everything he did, there would be no money left over and therefore no excess earnings." The trial court found no evidence of any significant capital purchases during the marriage and no evidence Husband's equipment and tools were any different than at the time of marriage. Noting he owed $7,500 for the bond CD, the trial court found the remaining portion ($5,000) was community property, but awarded it to him. A current balance sheet was not provided, so the trial court relied on Husband's estimates of the accounts receivable ($10,000) and accounts payable ($12,000) and found the business had a negative value. The trial awarded the business truck to Husband as his separate property, without explanation.

2. Analysis

In determining the value of the business, the following factors are relevant: (a) its fixed assets, including equipment and supplies; (b) its other assets, including accounts receivable; (c) its goodwill as a going concern; and (d) its liabilities. (See In re Marriage of Garrity and Bishton (1986) 181 Cal.App.3d 675, 688-689 (Garrity).) Wife challenges the trial court's award of the business truck and the contractor's bond to Husband, as well as its finding that the business had no goodwill value. As the business's value "devolves largely from the personal skill, industry and guidance of the operating spouse, as opposed to its capital assets," we proceed first to the trial court's goodwill determination. (In re Marriage of Stevenson (1993) 20 Cal.App.4th 250, 254.)

The Goodwill Value

Wife contends: "[T]he court's determination that there was absolutely no goodwill value in this profitable, well-established remodeling business was an abuse of discretion not supported by substantial evidence . . . ." "Because goodwill value of a business is a question of fact for the trial court, its determination will be upheld if supported by substantial evidence. [Citation.]" (In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 200 (Ackerman).)

The goodwill in a sole practitioner's business is an asset that must be factored into the community property division. (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 817-818 (Rosen).) ²⁰"Goodwill [is] defined as: ' " 'the advantage or benefit which is acquired by an establishment beyond the mere value of the capital stock, funds or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on account of its local position, or common celebrity, or reputation for skill or affluence, or punctuality, or from other accidental circumstances, or necessities, or even from ancient partialities or prejudices. [Citation.] [I]t is the probability that the old customers will resort to the old place. It is the probability that the business will continue in the future as in the past, adding to the profits of the concern and contributing to the means of meeting its engagements as they come in.' " [Citations.]' [Citation.]." (In re Marriage of Fenton (1982) 134 Cal.App.3d 451, 460-461 (Fenton).)

20 Rosen considers goodwill in the context of a law practice, but the same principles apply where one spouse "intends to continue in his old business, continuing to attract the customers his reputation in that business has already attracted." (In re Marriage of Winn (1979) 98 Cal.App.3d 363, 367 (Winn) ["It is as much a proper exercise of the trial court's power . . . to compel [the spouse running a horse auction business] to pay for what he retains as it is in the law and medical practice cases"]; see Bing v. Bing (1959) 168 Cal.App.2d 348, 350 [value of general contracting business depends on personal skill and industry].)

" 'The value of community goodwill is not necessarily the specified amount of money that a willing buyer would pay . . . . ' " (Fenton, supra, 134 Cal.App.3d at p. 461.) It may be intangible, but still have value to the spouse continuing the business after dissolution of the marriage. (Ibid.; Winn, supra, 98 Cal.App.3d at p. 367.) In this case, the trial court purported to apply the "capitalization of excess earnings" method of valuation, which " 'focuses on the " 'earning power' " of the business to determine what " 'rate of return' " the predicted earnings will yield in light of the risks involved to attain them. [Citation.]' [Citation.]" (Ackerman, supra, 146 Cal.App.4th at p. 200.) Generally, in determining the goodwill of a business using this method, expenses and reasonable officer's salaries are subtracted from the business's gross earnings to arrive at its net earnings, from which a percentage return on the business's tangible assets is deducted. (Redevelopment Agency of San Diego v. Attisha (2005) 128 Cal.App.4th 357, 363, fn. 1 (Attisha), citing People ex rel. Dept. of Transportation v. Muller (1984) 36 Cal.3d 263, 266.) The resulting "excess earnings" are deemed to be attributable to intangibles, presumably goodwill. (Attisha, at p. 363, fn. 1.) A variation of this method is used in the context of a professional's sole proprietorship, where " 'the excess earnings approach is predicated on a comparison of the earnings of the professional in question with that of a peer whose performance is "average." ' [Citation.]" (Ackerman, supra, 146 Cal.App.4th at p. 200.) A trial court first determines the practitioner's average annual pretax earnings by reference to any period that is reasonably illustrative of the current rate of earnings. (Garrity, supra, 181 Cal.App.3d at p. 688, fn. 14.) It then determines reasonable compensation based on " ' " ' "the cost of hiring a nonowner outsider to perform the same average amount that other people are normally compensated for performing similar services . . . ." ' " ' [Citation.]" (Ackerman, at p. 200 ["similarly situated professional"].) Next, it deducts from the business's average net pretax earnings a " 'fair return' " on the tangible assets used by the business. (Garrity, at p. 688, fn. 14.) From the net pretax earnings that remain, the court subtracts the average reasonable compensation, to arrive at the business's excess earnings. (Ibid.) "Finally, [it] capitalizes the excess earnings over a period of years . . . ." (Ibid.)

Wife correctly contends that substantial evidence does not support the trial court's valuation of goodwill under the excess earnings method. Although the trial court purported to rely on this method, it did not actually do so, as it did not determine and apply the facts that permit the necessary calculations under Garrity. The trial court did not expressly determine a representative earnings figure for Husband, reasonable compensation for an average, similarly situated professional, or a fair return on the business assets. Although we imply findings in favor of the judgment, there is no evidence in the record showing the compensation a comparable employee would reasonably earn (reasonable compensation).

Nonetheless, "[g]oodwill value may be measured by 'any legitimate method of evaluation that measures its present value by taking into account some past result,' so long as the evidence 'legitimately establishes value.' " (Rosen, supra, 105 Cal.App.4th at p. 819.) " '[E]ach case must be determined on its own facts and circumstances . . . .' [Citation.]" (Ackerman, supra, 146 Cal.App.4th at p. 200.) Although the trial court did not follow the excess earnings method recognized in Garrity, it applied the rationale of this method, finding the business had no goodwill because there were no excess earnings. Substantial evidence supports this finding. We note the following colloquy between Husband and his attorney at trial:

"Q. Is this a business where you could hire somebody to do what you've been doing and you would still have—if you didn't work in the business but hired someone and paid that person a going rate, that you would have profits left over afterwards?

"A. [N]o, because my clients hire me specifically, . . . to look at their jobs, to come up with ideas on how they can do the jobs, design a lot of the work they do, and I can't see that they would want someone else other than me, because they wouldn't be hiring me otherwise.

"Q. And if you—if you paid a salary to someone to do what you do, would you . . . then have a profit after paying the salary?

"A. If someone was doing what I was doing?

"Q. Right. And you were paying that person a salary.

"A. No, because there wouldn't be anything left. It would be me. It would be either me or them. "²¹ We also note evidence regarding the business's size, location, and staffing, as well as Husband's testimony that contractor work is "cyclical" and seasonal, and that, at separation, the business had $10,000 accounts receivable and $12,000 accounts payable. Acknowledging the question is a close one, we conclude that this evidence, along with exhibits showing the business's net profits since 1998, reasonably permits a finding that it has no excess earnings and therefore no goodwill value.²²

21 As Wife did not object to this testimony below, we consider it in evaluating her substantial evidence challenge. "[I]ncompetent testimony, such as hearsay or conclusion, if received without objection, takes on the attributes of competent proof when considered upon the question of sufficiency of the evidence to support a finding." (Berry v. Chrome Crankshaft Co. (1958) 159 Cal.App.2d 549, 552; Forslund v. Forslund (1964) 225 Cal.App.2d 476, 495-496.) Rosen is therefore distinguishable, as there is no indication the appellant waived his objection to the evidence by failing to raise it in the trial court. (Rosen, supra, 105 Cal.App.4th at pp. 817-823 [expert's conjecture regarding reasonable compensation did not legitimately establish value].)

22 Husband's standard markup on labor rates and materials does not establish that the business had excess earnings.

The Fixed Assets

Wife also challenges the trial court's disposition of the business assets, namely, the business truck and the bond CD. A trial court's characterization of an asset must be upheld if supported by substantial evidence. (Foley, supra, 189 Cal.App.4th at p. 526.) Still, characterization issues are mixed questions of fact and law that we ultimately review independently. (Ibid.) We agree that substantial evidence does not support the characterization of the truck as Husband's separate property. He concedes it was purchased during the marriage but maintains it was a replacement for a truck he owned at the time of marriage and was purchased with refinance proceeds: "[W]hether the truck is considered simply a part of the continuation of the original business . . . , or as an asset separate from the business, it was paid for with separate property loan proceeds . . . ." The trial court did not treat the truck as a business asset, and the testimony on which Husband relies does not establish that it was a "replacement" for his earlier truck. We find no evidence in the record showing what became of the earlier truck or tracing it to the current truck. In addition, as we explain below in discussing Husband's alleged separate contributions to community assets (post, part III.A), we conclude he did not meet his burden to trace the truck to the loan proceeds.²³ (See v. See (1966) 64 Cal.2d 778, 783 [burden to overcome presumption that assets acquired during marriage are community property].)

23 The trial court's characterization of the business truck implicates the same principles we consider in reviewing its findings regarding Husband's separate property interests in other marital assets and is more effectively addressed in that discussion.

We find no error, however, in the trial court's award of the bond CD to Husband. The trial court offset its award of Wife's share of the bond to Husband by relieving her of her obligation to reimburse Husband for her share of the negative value of the business.²⁴ III. Reimbursement Claims

24 Wife's share of the business assets, the bond CD and accounts receivable, was consumed by her share of its obligations, a $7,500 loan and its accounts payable. We reject Wife's contention that substantial evidence does not show part of the bond CD was borrowed. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614 (Mix) [the testimony of a single, credible witness may constitute substantial evidence].)

A. Husband's Separate Property Contributions

Wife challenges the trial court's reimbursement award to Husband for his separate property contributions to the boat and the Porsche.

1. Factual Background

Husband refinanced the house in 2002 and 2004. Wife testified generally that "the loan proceeds" went into the joint account and were commingled with money from the business.

Husband said he received $130,000 in cash from the first refinance. His counsel asked: "[W]hat did you use the loan proceeds for?" and he responded: "One thing that we purchased was the boat, that was like $40,000 alone, and personal expenses, working on the house." Over $420,000 in community funds flowed through the account after the loan proceeds were deposited.

The record shows refinance proceeds of $127,205.33 were deposited into the joint account on March 5, 2002. Seven months later, in October 2002, the parties purchased the boat, with a $4,000 down payment and a $36,300 final payment. Bank statements show a $4,000 withdrawal from the joint account on October 15, 2002, and a $36,300 withdrawal on October 22, 2002.

In early 2004, Husband refinanced the house again. He testified as follows:

"Q. Did you receive about $60,000 in cash loan proceeds from [the second] refinance?

"A. Yes, I did.

"Q. And what was that used for?

"A. Well, I believe the Porsche was purchased at that point from proceeds from that refinance. We also at that same time got a $50,000 credit line. I'm not sure exactly which of those two the Porsche was purchased from."

Husband said the parties paid $30,000 for the Porsche, and that "it was paid in full, cash, when it was purchased." The remaining refinance proceeds were used for the family, living expenses, and income taxes. He said the business truck was purchased with the "same combined lump sum of money, . . . either the second loan or the refinance . . . ." Wife said the parties paid cash for the truck in 2003, before the second refinance.

The trial court found that the boat and the Porsche were community property, but concluded that Husband was entitled to reimbursement for their full value ($40,000) because the security for the loan used to purchase both items—the house—was his separate property at the time. (See Hicks, supra, 211 Cal.App.2d at p. 153 ["The proceeds of a loan obtained upon the credit of separate property . . . are separate funds"]; Neal, supra, 153 Cal.App.3d at p. 125 [same].)

2. Analysis

A party is entitled to reimbursement for his contributions to the acquisition of community property to the extent he traces the contributions to a separate property source. (§ 2640, subd. (b).) "Whether a spouse claiming a separate property interest has adequately traced an asset to a separate property source is a question of fact for the trial court, and its finding must be upheld if supported by substantial evidence. [Citations.]" (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 823 (Braud).)

The Boat

The parties agree that the funds used to purchase the boat were drawn from the joint account, but Wife contends Husband has not adequately traced these funds to the loan proceeds, which were commingled with community funds in that account. "[T]he mere commingling of separate property and community property funds does not alter the status of the respective property interests, provided that the components of the commingled mass can be adequately traced to their separate property and community property sources. [Citation.] But if the separate property and community property interests have been commingled in such a manner that the respective contributions cannot be traced and identified, the entire commingled fund will be deemed community property pursuant to the general community property presumption of section 760. [Citation.]" (Braud, supra, 45 Cal.App.4th at pp. 822-823; see § 760 ["Except as otherwise provided by statute, all property, real or personal, . . . acquired by a married person during the marriage . . . is community property"].)

A party may trace a disputed asset to a separate property source using one of two methods: direct tracing or the "family living expense" method. (Braud, supra, 45 Cal.App.4th at p. 823.) At trial, Husband relied on the "family living expense" method (See v. See, supra, 64 Cal.2d at p. 783), and the trial court agreed with his analysis in concluding the boat was purchased with separate property funds. To trace an asset to a separate property source using this method, a party must show that, at the time the asset was purchased, family living expenses, which are presumed to be paid from community funds, had exhausted community funds "so that the payments or purchase necessarily must have been made with separate property funds." (Ibid. [a showing "that community expenses exceeded community income at the time of acquisition . . ."]; Braud, at p. 824.)

Substantial evidence does not support a finding that family living expenses had consumed all community funds in the commingled account when the boat was purchased. Bank statements show over $420,000 in community deposits to this account from March through October 2002.²⁵ These statements also show hundreds of checks and withdrawals. Husband presented no evidence regarding the separate or community nature of these transactions.²⁶ Even if we assume that all the checks and withdrawals shown on the bank statements represent community obligations, community funds were not depleted at the time of the purchase. (See Hicks, supra, 211 Cal.App.2d at p. 160 [when community expenses are paid from a commingled account, they are presumed paid from the community funds].) Indeed, they show that enough community funds remained in the account in October 2002, to cover the purchase price.²⁷

25 The parties stipulated these deposits were from the business.

26 Husband's attorney argued below: "Under See v. See[,] the assumption is that the community money went to pay community bills[,] and it was the separate money that stayed in the account . . . ." The flaw in this argument is its assumption, unsupported by evidence, that all the bank transactions were for "community bills."

27 The October 2002 bank statement is incomplete and does not show the checks that cleared before the purchase. A withdrawal summary indicates there were an additional $22,465.48 in withdrawals that month. Even if these unidentified withdrawals are all checks that cleared before the purchase, over $40,000 in community funds remained in the account at the time of purchase.

Noting that the judgment must be upheld if it is correct on any theory (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32), Husband maintains, "[T]he evidence shows direct tracing." To trace an asset to the withdrawal of separate property funds from a commingled account using this method, a party must demonstrate (1) that separate funds remained in the account at the time the withdrawal was made, and (2) that " 'it [was] the intention of the drawer to withdraw separate funds specifically . . . .' " (In re Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 329; In re Marriage of Frick (1986) 181 Cal.App.3d 997, 1010-1011.) Wife contends: "[Husband's] evidence fell far short of 'the exacting standards of proof required for tracing funds in a commingled account.' " (See Braud, supra, 45 Cal.App.4th at p. 824.) We agree. Direct tracing requires a transaction-by-transaction analysis, which Husband has not provided. (Id. at p. 823.) A party relying on this method must provide "specific records reconstructing each separate and community property deposit, and each separate and community property payment as it occurs." (Ibid.) Indeed, "[t]he exact amount of money allocable to separate property and . . . to community property must be ascertained before it can be said the money allocable to separate property is not so commingled that all funds in the account are community property. [Citations.]" (Frick, at p. 1011.) Without evidence of the nature of each transaction, it is impossible to determine the amount of separate funds in the account at the time of purchase.²⁸

28 The record shows that the funds in the joint account were used for both separate and community purposes. Husband said the parties used the loan proceeds to remodel the house, his separate property at the time. The parties also used these proceeds and the business income for living expenses.

Husband's testimony alone is not sufficient to trace the boat to loan proceeds commingled with community funds. A party cannot establish an asset's separate character "by mere oral testimony of intent or by records that simply total up all separate property funds available during the relevant period and all the separate expenditures during that period; such records do not adequately trace to the source of the purchase . . . ." (Braud, supra, 45 Cal.App.4th at p. 823; Estate of Murphy (1976) 15 Cal.3d 907, 919 ["the burden . . . is not simply that of presenting proof at the time of litigation but also one of keeping adequate records"]; See v. See, supra, 64 Cal.2d at p. 784 [" '[t]he husband may protect his separate property by not commingling community and separate assets and income. Once he commingles, he assumes the burden of keeping records adequate to establish the balance of community income and expenditures at the time an asset is acquired' "].) Indeed, we question whether Husband's conclusory testimony is sufficient even to show an intent to withdraw separate funds from the account.

The authority on which Husband relies highlights the inadequacy of his showing here. In Mix, the wife commingled her community earnings with the proceeds from her separate property in several accounts and sought to establish the separate character of items purchased during the marriage with funds from those accounts. (Mix, supra, 14 Cal.3d at pp. 608-609, 612-615.) At trial, she presented a schedule she had compiled with her accountant, itemizing chronologically each source of separate funds, each expenditure for a separate purpose, and the balance of separate funds remaining after each expenditure. (Id. at p. 613.) The schedule showed that her expenditures for separate purposes closely paralleled in time and amount the receipts from separate sources and confirmed her testimony that she intended to use only separate property funds for separate expenses. (Ibid.) Husband presented no such evidence here.

The Porsche

We also conclude that Husband did not adequately trace the Porsche to a separate property contribution. He was not able to identify the exact source of the funds used for the purchase but testified that the Porsche was either purchased "from proceeds from [the second] refinance" or "a $50,000 credit line" obtained at the same time, and that the parties paid $30,000 in cash for it. Assuming, in accordance with the trial court's findings, that both of these are separate property sources,²⁹ the question before us is whether substantial evidence supports the trial court's finding that "these proceeds were used to purchase [the Porsche]." (Braud, supra, 45 Cal.App.4th at p. 823.) We conclude that it does not. First, Wife testified generally at trial that "the loan proceeds" went into the parties' joint account, where they were commingled with money from the business. This testimony was not contradicted. Husband did not demonstrate that community funds were exhausted at the time of the purchase and provided no transactional analysis to establish the use of separate property funds. Second, even if the trial court found that Wife's vague testimony did not show the proceeds from the second refinance were commingled with community funds, Husband's testimony is not sufficient to establish that the parties actually used loan proceeds or funds from the line of credit to purchase the Porsche. Indeed, it is virtually identical to his testimony regarding the boat, which bank statements revealed as nothing more than an expression of intent to use loan proceeds commingled in the account. Husband presented no evidence of how the lender issued the proceeds or how the parties drew upon the line of credit, and the record does not show whether the cash used to purchase the Porsche came directly from these sources.³⁰

29 The trial court concluded: "[S]ince separate property was the security for the loan under [Neal, supra, 153 Cal.App.3d at p. 125], the proceeds are separate property . . . ." Construing this conclusion in context and in favor of the judgment, we deem it to encompass both the refinance proceeds and the line of credit.

30 If the lender issued a check for the proceeds, as is typically done, it is not possible to determine from the record the disposition of this check and how the parties obtained the cash to purchase the Porsche. Even if Husband's agreement that he received $60,000 "in cash loan proceeds" arguably indicates that he obtained cash directly from the lender, his testimony does not definitively establish that the Porsche was purchased with these proceeds, and the evidence does not show how the parties received funds from the alternative source—the line of credit. The record does not indicate whether they drew directly upon the line of credit or obtained a check that passed through a bank account.

Relying upon Wife's testimony "as to the amounts the parties spent on living expenses and . . . their income during the marriage . . . ," Husband contends that, because the parties lived far beyond their income, they "had no funds to purchase the boat or the Porsche if they did not use loan proceeds." This contention does not alter our conclusion. Even if the parties were living beyond their means, bank statements confirm that community funds were available when the boat was purchased. (See Braud, supra, 45 Cal.App.4th at p. 824 [funds in the account "at the time the particular asset was acquired"].)³¹ The record includes no evidence of the community funds available when the Porsche was purchased, and, in light of evidence that the parties used the loan proceeds for living expenses, Wife's testimony regarding their lifestyle does not establish that the Porsche must have been purchased with separate funds.

31 Even if we assume all of the withdrawals from the joint account were for community purposes, the account held a surplus of community funds from June 2002 through October 2002. Almost $36,000 in community funds was deposited in October 2002 after the purchase of the boat.

The Business Truck

For the same reason, we conclude that substantial evidence does not support the trial court's characterization of the business truck, which Husband testified was purchased with the "same combined lump sum of money . . ." used to purchase the Porsche. In light of our analysis above, Husband's vague testimony is not sufficient to overcome the presumption that property acquired during marriage is community property. (See v. See, supra, 64 Cal.2d at p. 783.)

B. Wife's Exclusive Use and Control of the Boat

Wife challenges the trial court's award of reimbursement to Husband for her exclusive use of the sailboat after the date of separation.

1. Factual Background

Wife moved out of the house on July 1, 2007. She had exclusive use of the boat after that time and used it as her primary residence. The boat is 30 feet long and has a v-berth for sleeping, a small galley, a salon area, and a "head." It has an icebox and does not have hot running water. To obtain water, one must use a foot pump or the hose bib outside.

Husband testified: "I consider [the boat] to have rental value based on a couple things: One is that there was a court order that I pay [Wife] $5,000 to find a place to rent, first and last, which she did not do; instead she moved onto our boat. So the savings she has had by living on the boat—I don't know, it could probably be rented out, if possible; at least there's savings I'd say of about $1,200 a month."

The trial court noted: "[Husband] testified that the fair rental value of the boat was $1,200 per month" and found that the boat had a fair rental value of $500 a month "[g]iven the slip charges paid by [Wife] and the description of the living quarters . . . ." The trial court ordered Wife to pay Husband half the boat's fair rental value through the trial date ($10,000) for its exclusive use since July 2007. (See In re Marriage of Watts (1985) 171 Cal.App.3d 366 (Watts).)

2. Analysis

The community may be entitled to reimbursement for the value of a spouse's exclusive use of a community asset after separation. (Watts, supra, 171 Cal.App.3d at pp. 373-374.) Wife does not dispute that she had exclusive use of a community asset from July 1, 2007, until trial. She contends, however, there is no substantial evidence to support the Watts award because "[t]here was no evidence before the court that the boat could be rented out or, if so, what the reasonable rental value would be . . . ."

Our review of the record confirms that there is no evidence of the boat's fair market rental value. The trial court did not order reimbursement of the boat's fair market rental value, however; it awarded the "fair rental value," i.e., a fair rental amount for Wife's exclusive use. Husband correctly notes that Watts does not limit the community's reimbursement right to "those assets which can actually be rented," contending "[t]he use of the boat had obvious value to [Wife,] and [she] deprived the community of the value of [its] use . . . ." He contends the trial court reasonably could have valued Wife's use of this asset at $500 based on her savings in rent, the size and nature of the accommodations, and the slip fees she paid. Wife has not shown this is an improper measure of value. (See Feldman, supra, 153 Cal.App.4th at p. 1486 [suggesting community may be reimbursed for spouse's use of an asset for his personal benefit].) She characterizes Husband's testimony as " 'guess[ing],' " but did not object below and makes no assertion on appeal that it is not substantial evidence of the benefit she received. The record includes no evidence of the slip fees Wife paid,³² but she has shown no prejudice, as she has not established the payment amounts or that they would reduce the trial court's Watts award.

32 The trial court refused to allow evidence of "expenses with the boat" both during Wife's case in chief and to offset her reimbursement obligations. She contends the trial court erred in excluding this evidence. A spouse is not required to reimburse the community for the exclusive use of a community asset after separation to the extent she has paid for "the acquisition or preservation" of that asset. (In re Marriage of Garcia (1990) 224 Cal.App.3d 885, 891; In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85 (Epstein).) The relevance of this evidence is not the issue. We have concluded that the trial court did not abuse its discretion in excluding evidence of Wife's reimbursement claims (ante, part I.), and she has not shown payment of boat expenses falls outside the scope of this ruling.

C. Husband's Income Tax Payments

The trial court found Husband was forced to file a separate income tax return acknowledging all of the community's income for 2006 because Wife refused to sign the joint returns. He filed state and federal income tax returns as "Married filing separately" and paid $25,647 in taxes. The trial court ordered Wife to reimburse him for her share ($14,658). (Epstein, supra, 24 Cal.3d at p. 84.)

Wife maintains these taxes were not a community obligation. The decision on which she relies, In re Marriage of Fonstein (1976) 17 Cal.3d 738, states that the community obligations to be allocated " 'are those that could be enforced against . . . assets included in the division, . . . because the obligation is secured by an encumbrance on the asset or because [it] could be reached on execution . . . .' [Citation.]" (Id. at pp. 748-749.) Wife does not discuss the character of the tax obligation under this analysis and relies instead on the filing status and federal deduction for "[s]pouse's community share of business net income." There is no dispute the taxes were paid on community income, and Wife has not shown filing a separate return or paying taxes on only half of the community's income converts the taxes to a separate obligation. IV. Support

A. Spousal Support

1. Factual Background

Wife testified that she is a designer specializing in color consulting and custom mixing. The parties consolidated their businesses before marriage, and she continued her design work during the marriage. She had a work space in Husband's office that she had difficulty replacing after separation, and she had no more income that year. She grossed $11,000 in 2008.

Wife has chronic problems with her vision, neck, and back that affect her ability to work. She needs regular physical therapy and pays $5,000 to $10,000 a year for medical treatment and $600 a year for special glasses. In 2008, she could not afford the medical treatment prescribed for her.

The parties enjoyed a "comfortable lifestyle." They liked to entertain and had large parties that cost $6,000. Their son attended private school. They lived off of $250,000 in loans in addition to their income.

At the time of trial, Wife was living on the boat.

Husband's Vocational Evaluator

Betty Kohlenberg assessed Wife in Spring 2008 and concluded, based on reports from Wife's doctors, that she was not able to work full time because she has orthopedic restrictions on repetitive movements, heavy lifting, prolonged sitting, standing, and reaching overhead. Kohlenberg "estimat[ed]," based on the opinion of Wife's chiropractor, that she could work 30 plus hours a week. Kohlenberg strongly recommended against self-employment, as Wife's health problems preclude certain tasks in handling paints, and she has no demonstrated ability to perform the essential tasks of a successful business person. Instead, Kohlenberg opined that Wife should work as an office assistant and expand her skills in project management, customer sales, sales support, and estimation. Kohlenberg recommended 12 to 14 weeks of training at a cost of $4,500 to $7,600, and said it would have taken Wife two to five months to find employment if she had followed this recommendation. Kohlenberg would probably extend this time frame because of the economy. Wife was expected to earn a starting salary of $30,000 to $38,000 a year and $35,000 or $45,000 in two to five years. Wife did not obtain training or seek employment.

The Trial Court's Decision

The trial court ordered Husband to pay Wife reduced spousal support of $800 a month until either party died, Wife remarried, the court ordered otherwise, or September 30, 2010, when the court's jurisdiction would terminate. The trial court found Wife was "living in a dream world to believe [color consulting] was her only way to prosperity," noting that she had "gotten nowhere" with her business, as she did not have the necessary skills. The trial court found she "has not understood her responsibilities to become self supporting," did not cooperate initially with the vocational expert, and made no attempts to follow the expert's reasonable advice, "hanging on to the unreasonable idea that her color consulting career will be her salvation." The trial court suggested that she sell the assets she was awarded to pay for training and find a part-time job.

The trial court found that Husband had the capacity to earn $10,000 a month, was "clearly anything but lazy and . . . willing to put in the time to maintain his economic stability." The trial court awarded "some support consistent with the goal [that Wife become self-supporting within a reasonable period of time]."

The trial court reduced Husband's child support obligation to $982 a month, as of February 1, 2009, based on his monthly income of $10,000 and income it imputed to Wife for 30 hours a week at a minimum wage job.

2. Spousal Support

The Amount of Support

Wife contends the trial court abused its discretion in reducing her spousal support to $800 a month because she is entitled to financial support commensurate with her lifestyle before separation. She maintains the support awarded does not protect her from "a precipitous drop in her standard of living." (See Ackerman, supra, 146 Cal.App.4th at p. 208.) She notes that she "is now living on a small boat with no running water or refrigerator" and cannot afford the medical treatment she needs. These contentions have no merit.

The marital standard of living is a measure of the parties' "reasonable needs commensurate with [their] general station in life," not "an absolute measure of reasonable need, but merely a 'basis' or reference point for determining need and support." (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 484, 491 (Smith).) The parties' standard of living in this case is not in dispute: they enjoyed an upper income lifestyle during the marriage that included a sports car and sailboat, large parties, and private school for their son. (See id. at p. 491 ["a general description of the station in life the parties had achieved by the date of separation"].)³³ The trial court found, however, that the parties funded their lifestyle during the marriage "by significant borrowing against the [h]ouse." "Whether the parties were living beyond their means is an appropriate factor for the trial court to balance against other considerations in order 'to reach a "just and reasonable" result.' " (Ackerman, supra, 146 Cal.App.4th at p. 208, citing Smith, supra, at p. 490, and In re Marriage of Weinstein (1991) 4 Cal.App.4th 555, 566 (Weinstein).) A trial court is not "required to maintain an overextended lifestyle based heavily on borrowing." (Weinstein, at pp. 565-566, fn. omitted.) Thus, when the parties live beyond their means during the marriage, the actual marital standard of living "has reduced significance as a point of reference in determining [a spouse's] reasonable needs and support. Stated simply, [a spouse] cannot reasonably demand support at the actual marital standard of living if that standard had itself been unreasonably high under the circumstances." (Smith, at pp. 485-486, fn. omitted.)

33 Wife contends the trial court erred in failing to make a factual finding as to the marital standard of living under section 4332. She has waived any such deficiency by failing to object below. (Arceneaux, supra, 51 Cal.3d at pp. 1133-1134.)

Additionally, although a trial court must consider the marital standard of living in determining the parties' needs, it also must weigh their financial ability to sustain it, along with the other section 4320 factors. (Smith, supra, 225 Cal.App.3d at p. 484.) In this case, the trial court found that the parties were not financially able to continue the marital standard of living and that the community debt Husband assumed "severely impacted" his ability to maintain a reasonable standard of living.

Wife contends that, in determining the parties' reasonable needs, the trial court should have relied upon their income during the marriage and the standard of living it allowed. (See Smith, supra, 225 Cal.App.3d at pp. 485-486 [when the parties live beyond their means during the marriage, "what would have been a reasonable standard of living eclipses the actual marital standard . . . as the ultimate measure of [a spouse's] reasonable needs"]; Weinstein, supra, 4 Cal.App.4th at p. 569.) She maintains that the trial court ignored these factors and improperly focused on the amount of debt Husband assumed. The authority on which Wife relies holds that a trial court may consider income rather than expenses in determining the appropriate standard of living where the parties lived beyond their means; it did not establish an income-based standard in all such cases. (See Ackerman, supra, 146 Cal.App.4th at p. 208.) Moreover, there is no indication Wife relied on such a standard below. (Ibid.; see Weinstein, at pp. 565-566.) Indeed, she focused on the parties' lavish lifestyle, not Husband's income, and sought support "vital to reestablishing [her] design business and restoring [her] income to . . . the standard of living [she] enjoyed while married . . . ." Moreover, the trial court did not emphasize Husband's debt obligations in determining the parties' needs and the appropriate standard of living, but in properly weighing the totality of the section 4320 factors. (See Smith, at p. 484.) Wife has not shown the trial court abused its discretion in the weight it accorded this factor. Although she correctly observes that Husband's monthly income exceeds the expenses reported on his final income and expense declaration by $2,500, she fails to note that this figure represents his pretax income and does not take into account his total support obligation of $1,782 a month. Wife also maintains the income he reports does not include income deducted for business use of the house, but he said his most recent income statement does not reflect this deduction.³⁴

34 Wife has not shown the income the trial court used, and cites no authority showing it was required to consider Husband's income during the marriage.

Wife contends, nonetheless, that substantial evidence does not show she will be able to maintain any reasonable standard of living with $800 a month in spousal support. The trial court did not expressly consider the parties' needs based on a reasonable standard of living or otherwise. She did not object below to the trial court's findings, however, and we imply all findings necessary to support the judgment. (Arceneaux, supra, 51 Cal.3d at pp. 1133-1134; see Code Civ. Proc., § 634.) In this case, we imply a finding that $800 a month is sufficient to meet Wife's reasonable needs in light of the section 4320 factors, including: Husband's ability to maintain a reasonable standard of living in light of his obligations, Wife's earning capacity, and her unreasonable delay in seeking employment. She has not shown a lack of substantial evidence to support such a finding.

We recognize that at the time of trial, Wife was living on a sailboat with no running water—a standard of living that, on its face, appears unreasonable. She has made no showing, however, that she cannot reasonably afford an apartment with monthly spousal support of $800, given her earning capacity and the luxury assets she was awarded. Indeed, in May 2007, Husband was ordered to pay her $5,000 to help her secure an apartment, but she opted to live on the boat. The trial court also found she had resisted becoming self-supporting. A spouse's unreasonable delay in seeking employment consistent with her abilities is a ground for denying support. (In re Marriage of Sheridan (1983) 140 Cal.App.3d 742, 749; In re Marriage of Rosan (1972) 24 Cal.App.3d 885, 896.) Wife contends the trial court's finding regarding her earning capacity is unrealistic because it requires her to sell the assets she was awarded to pay for training, and, if she did so, she would be homeless, with no transportation. We do not find it unreasonable, however, to infer that the proceeds from the sale of these luxury assets, along with $800 in monthly support and income from a part-time job, would cover the expense of an apartment, reasonable transportation, and job training until she became self-supporting.³⁵

35 Wife does not challenge the trial court's finding that she could "find[] some part time employment to supplement her income."

Wife also takes issue with the trial court's analysis of "[t]he obligations and assets . . . of each party," specifically, its finding that the parties' financial circumstances were "quite similar." (§ 4320, subd. (e).) She correctly notes that the trial court failed to note her obligation to pay Husband the full value of the boat and Porsche.³⁶ We observe, however, that the trial court also did not consider Husband's obligation with regard to the house—his assumption of most of the community debt. The trial court did not give significant weight to this factor, in any case, in light of its conclusions regarding Wife's earning capacity and Husband's ability to pay.

36 Although we conclude Husband has not traced the boat and Porsche to his separate property, he remains entitled to his community share of their value.
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The Duration of Support

Wife also contends that the trial court abused its discretion in terminating spousal support on September 30, 2010, because there is no substantial evidence she would be self-supporting at that time. We disagree. In Ackerman, supra, 146 Cal.App.4th at page 213, the court acknowledged other authority providing "that before the court may order a date-certain termination of a spousal support order, there must be evidence in the record the supported spouse ' "would be able to provide for herself at that time," ' " but found no error, concluding, "Such evidence existed here." (Ibid.) The same is true in this case. Kohlenberg testified that, if Wife had obtained training when it was recommended, she would have found a job within two to five months and no later than March 2009. Kohlenberg also addressed the economic downturn, indicating that she "probably would extend" the time frame, but that it was "hard to estimate at this point" the time it would take for Wife to find a job. Wife points out the trial court's note that it "was not provided with significant evidence regarding [her] likelihood for success in following the [vocational expert's] advi[c]e in California's current job market, that has such high unemployment." We construe this statement in favor of the judgment, in the context of the trial court's other findings, and in light of Kohlenberg's testimony, and do not read it as an indication that Wife would not become self-supporting by September 2010—over 16 months later. Instead, we believe the trial court was acknowledging it was not possible to determine exactly when Wife would find employment in the current economy. The trial court found there was no evidence she could not become self-supporting in a reasonable time "if she is motivated and applies herself." Allowing three and a half months for training, the period of support awarded provided Wife over a year to find employment before her support ended—twice as long as the expert originally anticipated.

We also observe that the trial court's decision provides for modification of the support provisions through September 30, 2010. As in Ackerman, if Wife was unable to obtain employment before her support expired, she could have filed such a motion. (Ackerman, supra, 146 Cal.App.4th at pp. 196-197 [order allowed wife to move for modification if she was unable to become self-supporting]; In re Marriage of Vomacka (1984) 36 Cal.3d 459, 474.)

B. Child Support

Emphasizing her work restrictions and her expected difficulty finding employment in the current economy, Wife contends the trial court erred in basing its child support award on income it imputed to her. We review such awards for abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283.) A trial court "may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children." (§ 4058, subd. (b); Moss v. Superior Court (1998) 17 Cal.4th 396, 407, 423.) Wife has shown no abuse of this discretion here, as she has not provided any legal authority discussing the principles governing a trial court's imputation of income for purposes of calculating child support. Indeed, she has waived this assertion of error. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [an appellant must do more than merely assert that the judgment is wrong]; Cryoport Systems v. CNA Ins. Cos. (2007) 149 Cal.4th 627, 633 [an appellant "must affirmatively demonstrate error through reasoned argument and discussion of legal authority"].)

DISPOSITION

The judgment is reversed as it relates to Husband's right to reimbursement for the value of the boat and Porsche, and the trial court's characterization of the business truck. It is affirmed in all other respects. The matter is remanded to the trial court for the entry of a new and different judgment consistent with this opinion. The parties shall bear their own costs.

Lambden, J. We concur: Kline, P.J. Haerle, J.