Opinion
H043162
10-31-2017
In re Marriage of CHRISTIANA and EDISON BECKER BONJARDIM. CHRISTIANA BONJARDIM, Respondent, v. EDISON BECKER BONJARDIM, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. FL036878)
Edison Becker Bonjardim appeals from the judgment after trial dissolving his marriage to Christiana Bonjardim. Edison questions the trial court's impartiality based on the court's admission that it improperly conducted an independent investigation of facts related to Edison's business. Edison also challenges the characterization and division of the estate, particularly in relation to certain property holdings and expenditures in Brazil, and the award of permanent spousal support to Christiana.
" 'As is customary in family law cases, we will refer to the parties by their given names for purposes of clarity and not out of disrespect.' " (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 817, fn. 1 (Falcone).)
We find no reversible error on the record provided and affirm the judgment.
I. BACKGROUND
Edison elected to proceed without a record of the oral proceedings in the trial court. Our summary of the factual and procedural background, as well as the legal issues in the case, is drawn from the limited record on appeal—including the trial court's statement of decision and the parties' written statements at trial—and Edison's opening brief, since no respondent's brief was filed. When possible, we have confirmed factual references to the documentary evidence in the record.
Edison and Christiana married in March 2004, shortly after Christiana came to the United States from Brazil, and separated after about nine-and-a-half years. They have one daughter together. Edison also has two adult children from a prior marriage.
Edison is the sole-proprietor of his business, which designs and installs swimming pools and water features, and supplies related equipment. Christiana helped part-time with the administration of Edison's business during the marriage and, since the dissolution, has been self-employed as a nail technician.
After Christiana petitioned for dissolution of the marriage in November 2013, the parties entered into a stipulation addressing shared child custody, living arrangements, certain financial accounts, and spousal and child support. The resulting court order, pursuant to the stipulation, required Edison to pay $3,000 per month in temporary family support. In August 2014, the trial court issued an order denying a request by Edison to reconsider the stipulation and temporary support order.
The remainder of the disputed issues were tried over four days in October, November, and December 2014. The trial court issued a tentative statement of decision in March 2015, followed a few days later by an amended tentative statement of decision in which the trial court acknowledged having conducted an independent investigation into certain facts. After recognizing its mistake, the court slightly modified its decision and restarted the timeline for the parties to object to its amended ruling. The court issued a final statement of decision on April 29, 2015, addressing the following issues as relevant to this appeal.
A. GAROPABA PROPERTY
About one year before the marriage, Edison purchased a lot in a coastal resort community in Brazil called Garopaba. He worked with a local building firm to prepare the lot for development by subdividing it into four equal parcels, under an agreement that the firm would build two units for Edison in exchange for the other two parcels.
Edison maintained that he purchased the lot for approximately $60,000 and funded the construction costs almost entirely with his traceable separate property, including an initial payment to the building firm of $20,000, and an additional $45,000 in installments to a second building firm in 2008 and 2009 after problems with the first building firm resulted in litigation. He denied the use of community property earnings or a community property equity line for either the first or second phase of construction, citing his use of two Brazilian accounts that he maintained were funded by the sale of two separately-owned Brazilian apartments in July and November 2009. He also asserted in his trial brief that Christiana and her mother conspired in March 2011 to alter title to the property by recording Christiana's name on the title documents in Brazil. As a result, Edison had to take legal action against them in Brazil in May 2014 "to rectify the fraud and breach." Edison argued that this breach of fiduciary duty defeated any claim by Christiana to a share of the Brazilian property.
All amounts listed are in U.S. dollars, unless otherwise specified.
Christiana argued that Edison had squandered substantial sums of community property during the nearly 10-year marriage and had failed at trial to effectively trace his claimed use of separate property funds for his expenditures in Brazil, including on the development of the Garopaba property. She asserted that she had an interest in one of the bank accounts and that her efforts and community income funds had contributed to the Garopaba development.
The trial court found that other than the initial purchase and preparation of the lot, all development of the Garopaba property occurred during the marriage and that the community had "a substantial interest" in the property. Of the four subdivided lots, two were the subject of ongoing litigation with the first building firm, leaving the other two units with the parties; one of those units was sold in 2011 for $143,352. The court found that the remaining unit was "a virtual duplicate" and thus had the same value at the time of trial.
The court credited Edison for the land value and demolition expenses incurred before marriage—which the court valued at $46,000—but found that he had not shown the cost of constructing the remaining two units could be traced to separate property resources. The court concluded that "all of the development costs of the property, less the value of the contributed land and the demolition costs, were made from community sources and created a community interest in both the first unit sold and the remaining unit." The court confirmed all rights and claims to the first two units as Edison's separate property and calculated a $23,000 credit for his separate property contribution, to be applied against the amount needed to reimburse Christiana for other expenditures of community property. The court ordered that the remaining unit was owned equally by the parties, with Edison and Christiana each entitled to one-half of any rents generated and one half of the net sale proceeds if the unit is sold. Either party also can purchase the other's interest by tendering one-half of the value, or $71,676, to the other person.
The statement of decision did not mention Edison's fraud allegations.
B. REIMBURSEMENT CLAIMS AND TOTAL EQUALIZATION DUE
The court evaluated the parties' claims regarding reimbursement and separate and community debt, focusing in part on Edison's management of the financial accounts and provision of funds to his children from a prior marriage.
Financial Accounts
Edison apparently managed all financial accounts during the marriage, which included business, personal, joint, retirement, and their daughter's 529 savings account; he did not consult with Christiana about the transfer of funds between accounts. The court found that "around the time of separation, Edison withdrew substantial funds from the accounts, leaving a negligible balance. The largest balance of the funds appears to have been around April 1, 2012, when the aggregate accounts then existing contained $201,448. By the end of March, 2014, several months after separation, the accounts contained about $1,000." Christiana argued that the funds were community property, used for Edison's personal purposes, and that the community was entitled to reimbursement. Edison contended that the funds could be traced to his separate property, or alternatively that most of the expenditures after April 2012 were to pay community expenses, including the family's "crippling" credit card debt in early 2013 and, by agreement of the community, a contribution of $35,000 to Edison's daughter's wedding in Brazil.
The court found that Edison's efforts to trace the flow of funds from various Brazilian property transactions to the other accounts did not satisfy either the traditional test for direct tracing or the family expense tracing method. Since it was Edison's burden to overcome the presumption on extensively "commingled" property, the court found that he had used community funds to maintain his business, to pay community expenses, and to help fund certain ventures in Brazil. Specifically, the court found that Edison had spent $38,000 on his daughter's wedding and $35,000 on his son's business venture to open a hostel. After subtracting the $23,000 credit for Edison's purchase and demolition of the Garopaba property, discussed ante, the court found that Christiana was entitled to reimbursement for her net half share of community property totaling $25,000.
Other Community and Personal Property
The court accepted Edison's valuation of his condominium in Capitola, which he had purchased before marriage and retained at the time of trial, and valued Christiana's equity share at $26,585. It found that Edison had spent $20,000 of community income on improvements, entitling Christiana to $10,000 in reimbursement.
The court found that Christiana's Audi was a gift purchased by her mother, a Brazilian resident who testified at trial. The court awarded the Audi to Christiana but found that Edison was entitled to reimbursement of $1,847 for a community property trade-in at the time of the Audi's purchase. The court found there was no reimbursement due for certain Rolex watches, which were gifts of the couple to each other.
Edison's Businesses
Edison claimed that his water feature design and installation business "was never particularly successful" and made on average approximately $50,000 before taxes, other than his two, more profitable years in 2010 and 2011, and had a business debt at the time of trial of approximately $32,000. The trial court evaluated Edison's business income as reported in several years of jointly-filed tax returns. It questioned how Edison could maintain his business based on his reported cost of goods sold and sales amounts, indicated that Edison had failed to provide the court with comprehensive business income information for 2014, and questioned Edison's apparently contradictory claims at trial about filing for bankruptcy. The court found that Edison's businesses were community property but "did not have a substantial value as of the date of separation" and assigned the businesses and all related debt to Edison as his separate property.
Allocation of Community Debt
Each party accused the other of overspending and squandering community resources. The court analyzed statements for 10 credit cards under Edison and Edison's business's name and five cards under Christiana's name. After accounting for payments made on various cards since separation, it calculated the aggregate balance remaining on Edison's cards as of the date of separation to be approximately $63,711, and the aggregate balance remaining on Christiana's cards to be approximately $30,998. The court found that each party was responsible for the cards in their name, subject to equalization, in the amount of $16,356 from Christiana to Edison.
Edison admitted owing back taxes of approximately $75,000 for tax years 2010 and 2011, as well as approximately $7,000 in tax liability for 2013. He argued the approximately $82,000 tax debt was a community debt since the community had benefited from the income received in those years. The trial court rejected the community debt argument. It found that although Edison attributed the reporting errors to their accountant, Christiana was an innocent spouse and "had no input or control" over income expense reporting for Edison's business. The court assigned the back-tax debt to Edison as a separate obligation.
Total Equalization Due
The trial court found, based on the determinations summarized above, that Edison owed Christiana an equalizing payment of $43,382.
C. PERMANENT SPOUSAL SUPPORT
Edison contended that due to factors including his age, health issues, debt, and pressure on his business, he could not provide support that would maintain the marital standard of living. He also contended that Christiana was underreporting her income from her cash-based beautician business and had the ability to earn more. He requested that the trial court limit spousal support to one-half the length of the marriage, with incentives to Christiana to become self-supporting, followed by guideline child support for their daughter. Christiana responded that Edison had unilaterally removed a substantial portion of the parties' savings and community assets postseparation and should be required to pay guideline child support and appropriate spousal support based on the statutory factors and considering the nearly 10-year length of marriage.
The court found that the parties were married for nine years, seven months and "chronically spent more than they took in." It determined that the marital standard of living was based on average household expenditures of $100,000 per year and that, even after imputing to Christiana the ability to earn full-time minimum wage income, accumulated debt and consequent probable restrictions on access to credit reduced the likelihood that either party could be lifted to their prior marital standard of living. The court indicated that it had considered all of the factors under Family Code section 4320, including the length of the marriage which "verge[d] on a long-term one," Christiana's agreed-upon role to stay at home and raise their daughter shortly after coming to the United States with "language and experience limitations," and the business and health-related hardships suffered by Edison in recent years, as well as his age and eventual retirement. Based on these factors, the court set permanent spousal support at $2,000 per month, for a period of six years. The court reserved jurisdiction over spousal support until December 31, 2021 and ordered each side to bear their own attorney fees and costs.
Unspecified statutory references are to the Family Code.
II. APPELLANT'S CONTENTIONS AND PRINCIPLES OF REVIEW
Edison asks this court to reverse the judgment and vacate the order to the extent it awarded permanent spousal support to Christiana and assigned "all community debts" to Edison. We understand Edison's appeal, filed in propria persona, to raise the following issues. First, Edison questions the integrity and impartiality of the trial judge. Second, he contends that the trial court abused its discretion in determining the length and amount of permanent spousal support. Third, he contends that the trial court erred in determining the division of property, specifically regarding the Garopaba house in Brazil and reimbursement to Christiana for expenditures on his son's hostel venture and his daughter's wedding in Brazil. He argues that the trial court excluded evidence of fraudulent conduct by Christiana and her mother regarding the Garopaba property and ignored a foreign judgment in his favor that resolved the property issue in Brazil.
This court's ability to review the issues that Edison raises is largely constrained by the inadequate record and lack of discernable evidentiary support for appellant's arguments. As we have previously stressed, "to be successful on appeal, an appellant must be able to affirmatively demonstrate error on the record before the court. ' " 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)' " (Falcone, supra, 164 Cal.App.4th at p. 822.)
Furthermore, " 'when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.' [Citation.] Closely related is the rule that ' "contentions not raised in the trial court will not be considered on appeal." ' " (Martinez v. Vaziri (2016) 246 Cal.App.4th 373, 383 (Martinez).) And "[s]tatements of fact that are not supported by references to the record are disregarded by the reviewing court." (McOwen v. Grossman (2007) 153 Cal.App.4th 937, 947.) Edison, as a self-represented party, is not exempt from these rules. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
III. DISCUSSION
A. IMPROPER JUDICIAL CONDUCT CLAIM
Edison challenges the integrity and impartiality of the trial court proceedings. He points to the judge's statement in which he acknowledged having improperly conducted an independent investigation into Edison's businesses. Edison also asserts that before he put on his case-in-chief at trial, and presumably based on the improper investigation, the judge stated in open court that he believed Edison was dishonest and a liar. Edison contends that the judge should have disqualified himself from the case.
Without a reporter's transcript of the proceedings, we are unable to verify Edison's claim that the judge called him a liar. And although Edison is correct that the judge's independent investigation of facts presented possible grounds for disqualification, the record reflects no objection by Edison or effort to seek disqualification at the time. The failure to do so renders the argument forfeit on appeal: "In general, if the trial court refuses or fails to disqualify itself, the complaining party must seek disqualification at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification. In doing so, the party must bring to the trial court's attention 'all of the facts' later cited on appeal in support of the judicial bias claim." (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 994.) By failing to complain "when the relevant events occurred," the complaining party forfeits the right to assert the claim on appeal. (Ibid.)
Here, the judge informed the parties of his mistaken conduct by letter and in an amended tentative statement of decision, dated and filed on March 6, 2015. This was more than a month before the trial court issued its final statement of decision in late April 2015. In the letter, the judge acknowledged that he had engaged in "independent investigations regarding" matters in the case, specifically by gathering information about Edison's "prior projects" from his Web site. The judge indicated his belief that the information was "probably accurate and probably would be stipulated to" but nevertheless removed the information from the decision and "also made a minor adjustment in the equalizing calculations." The judge attached an amended tentative statement of decision to the letter and informed the parties that their time for objecting to the tentative decision would start over.
For completeness, the judge's letter, which was addressed to counsel for both parties and filed with the court, reads as follows: "Gentlemen: Immediately after rendering my decision in this matter I attended an ethics training which reminded me that we are proscribed from engaging in independent investigations regarding the matters before us. I did that in gathering information about Mr. Bonjardim's prior projects using his website. While the information is probably accurate and probably would be stipulated to, I determined that I must remove it from the decision and have done so in the Amended Statement of Decision that is attached. I have also made a minor adjustment in the equalizing calculations as a consequence. I apologize for any inconvenience. Your time for objecting to the Tentative Statement will start over from the publication of this revision."
Edison filed objections to the amended tentative statement of decision but did not refer to the judge's letter or raise the issue of disqualification. Edison's counsel later filed a supplemental response regarding the tentative decision, which again made no mention of the judge's independent research exercise. The record thus reflects no objection to the trial court's conduct and no effort to seek disqualification pursuant to statutory authority. (See People v. Freeman (2010) 47 Cal.4th 993, 999 ["The statutory basis for disqualifying judges is set forth in Code of Civil Procedure section 170.1, and other sections outline the procedures for determining the motion and the effect of the disqualification"]; Code Civ. Proc., § 170.3, subd. (c)(1) [party may file a "written verified statement objecting to . . . trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge," if judge should but fails to disqualify himself or herself].)
Edison argues that his Web site, which "displays 38 years in the business" should not have been the basis for the judge's evaluation of his financial capacity at the time of trial. Our Code of Judicial Conduct indeed provides in part that "a judge shall not independently investigate facts in a proceeding and shall consider only the evidence presented or facts that may be properly judicially noticed. This prohibition extends to information available in all media, including electronic." (Cal. Code Jud. Ethics, canon 3B(7).) Even when the misstep is quickly disclosed—as appears to have occurred here—such self-initiated sleuthing by the court can subject the adjudicative process to the appearance of impropriety and erode public confidence in the proceeding. (See id., canons 2 and 2A.) Disqualification is appropriate when "[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii).)
But Edison's failure to object or to seek statutory relief "at the earliest practicable opportunity" following the judge's disclosure of potentially disqualifying conduct is determinative as stated above. (Code Civ. Proc., § 170.3, subd. (c)(1); People v. Lewis and Oliver, supra, 39 Cal.4th at p. 994.) The "strict promptness requirement" for seeking disqualification under the statutory mechanism "is not to be taken lightly, as a failure to comply constitutes forfeiture or an implied waiver of the disqualification." (Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337 (Tri Counties); see also Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038; Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218.)
By way of example, in Tri Counties, the trial court issued a tentative ruling in which it referred to a publicly-filed "10-K" financial report as evidence for granting a class certification motion. Neither party had referred to the 10-K report in their papers. The party opposing class certification filed a supplemental brief in which it objected to the court's use of the 10-K report, though it did not invoke disqualification. (Tri Counties, supra, 167 Cal.App.4th at p. 1335.) After losing a petition for writ of mandate challenging the order granting class certification, the party "returned to the trial court and presented a written statement of objection pursuant to [Code of Civil Procedure] section 170.3, subdivision (c), seeking to have [the judge] disqualified from presiding at trial on the ground that he had conducted an independent investigation of the facts." (Id. at p. 1336.) The trial court struck the statement of objection as untimely. On petition for writ of mandate, the appellate court agreed that the failure to timely object under the statutory scheme forfeited the right to pursue disqualification later, on both statutory and due process grounds. (Id. at pp. 1337-1339.)
Like in Tri Counties, Edison in this case "was aware of the asserted ground for disqualification long before the trial court issued its" final statement of decision. (Tri Counties, supra, 167 Cal.App.4th at p. 1339.) The delay in complaining of any impropriety forfeited Edison's statutory right to disqualify the judge. (Ibid.; People v. Lewis and Oliver, supra, 39 Cal.4th at p. 994.) Accordingly, we turn to consider the other bases for Edison's appeal.
B. AWARD OF PERMANENT SPOUSAL SUPPORT
Spousal support is governed by statute. Section 4330 "authorizes the trial court to order a party to pay spousal support in an amount, and for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances set forth in section 4320." (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1559 (Nelson); In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 302 (Cheriton).)
The circumstances listed in section 4320 include: "(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: [¶] (1) The marketable skills of the supported party . . . . [¶] (2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties. [¶] . . . [¶] (c) The ability of the supporting party to pay spousal support, taking into account the supporting party's earning capacity, earned and unearned income, assets, and standard of living. [¶] (d) The needs of each party based on the standard of living established during the marriage. [¶] (e) The obligations and assets, including the separate property, of each party. [¶] (f) The duration of the marriage. [¶] (g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party. [¶] (h) The age and health of the parties. [¶] . . . [¶] (k) The balance of the hardships to each party. [¶] (l) The goal that the supported party shall be self-supporting within a reasonable period of time." (§ 4320, subds. (a), (c)-(h), (k), (l).)
" 'In making its spousal support order, the trial court possesses broad discretion so as to fairly exercise the weighing process contemplated by section 4320, with the goal of accomplishing substantial justice for the parties in the case before it.' [Citation.] In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each. [Citation.] But the 'court may not be arbitrary; it must exercise its discretion along legal lines, taking into consideration the applicable circumstances of the parties set forth in [the statute], especially reasonable needs and their financial abilities.' " (Cheriton, supra, 92 Cal.App.4th at p. 304; In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 207 (Ackerman).)
Here, the trial court explained its consideration of the most relevant factors under section 4320. The statement of decision noted that (1) the nine-year, seven-month marriage "verge[d] on long-term," (2) Christiana was in good health and self-employed as a nail technician making $450 per month according to her posttrial income and expense statement, (3) Edison was 60 years old at the end of trial, had suffered business and health-related hardships in recent years, claimed his health insurance had been cancelled and claimed inability to pay support given arrears on the mortgage, property taxes, and car and bill payments, and (4) the parties during marriage "chronically spent more than they took in" and, even after imputing to Christiana the ability to earn full-time minimum wage income, significant debt and probable credit restrictions made it unlikely that either party could be lifted to the prior marital standard of living. Based on these factors, the court ordered Edison to pay Christiana $2,000 per month in permanent spousal support, effective April 1, 2015 and continuing for a period of six years. The court reserved jurisdiction over spousal support until December 31, 2021, unless extended by a subsequent order; support could terminate sooner if either party dies, or if Christiana remarries, or if the court otherwise orders.
Edison contends that the court should not have treated the nine-and-a-half-year marriage as "long-term" and abused its discretion in weighing the evidence related to Christiana's earning potential and Edison's health problems and inability to pay.
Section 4320 requires the trial court to consider the duration of the marriage and the "goal that the supported party shall be self-supporting within a reasonable period of time" (§ 4320, subd. (l)), which the statute defines as generally "one-half the length of the marriage" (ibid.), except in the case of a marriage of long duration. (Id., subd. (f).) Section 4336 creates a limited presumption, for the purpose of the court retaining jurisdiction indefinitely, that a marriage of 10 years or more is of long duration, though "[n]othing in this subdivision precludes a court from determining that a marriage of less than 10 years is a marriage of long duration." (§ 4336, subd. (b).) Furthermore, section 4320 provides that "nothing in this section is intended to limit the court's discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, [s]ection 4336, and the circumstances of the parties." (§ 4320, subd. (l).)
Given these statutory guidelines and the trial court's consideration of the factors noted above, we find no abuse of discretion in the court's treatment of the nine-year, seven-month marriage as verging on long-term. This is not a case in which the trial court failed to terminate jurisdiction over spousal support following a marriage of short duration. (Cf. In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260, 1264 [finding abuse of discretion in trial court's permanent retention of jurisdiction over spousal support after a marriage of two years, two months, where supported party was healthy and gainfully employed].) To the contrary, the court set a termination date for Edison's obligation to pay spousal support. Although six years is longer than the "one-half the length of the marriage" period sought by Edison and generally deemed appropriate for a shorter marriage, section 4320 expressly provides that the court may order support for a greater length of time, including based on the statutory presumption of 10 years as a long-term marriage and the circumstances of the parties. (§ 4320, subd. (l).)
Edison's references to the statutory factors considered by the trial court do not demonstrate error. In fact, most of Edison's assertions merely criticize the trial court's conclusions. For example, he argues regarding ability to pay spousal support (§ 4320, subd. (c)) that his tax returns for 2012 and 2013 "show[] clearly his ability not to support any standard of living beyond the current facts." And he points out regarding the parties' obligations and assets (§ 4320, subd. (e)) that the trial court left Edison with obligations and awarded half of his house (presumably the remaining unit of the Garopaba property) to Christiana. These conclusory statements, unsupported by any citation to authority, and the absence of a reporter's transcript together limit this court's ability to review the trial court's exercise of discretion in considering the evidence presented at trial.
It is clear from the record provided, however, that the trial court did consider the statutory factors, including among others Edison's age, health, financial circumstances and eventual retirement, Christiana's imputed earning potential at minimum wage, and the irremediable gap between the parties' marital standard of living and their current circumstances. The court also assessed in detail the parties' claims regarding assets and liabilities, including Edison's separate property tracing claims for the Garopaba property, and explained its basis for the division of property, discussed in greater detail below. Accordingly, there is no indication that the court ignored any relevant circumstance enumerated in the statute. (Cf. Cheriton, supra, 92 Cal.App.4th at p. 305 [trial court's apparent failure to analyze spouse's ability to pay spousal support based on substantial assets beyond income constituted abuse of discretion].) Nor does Edison attempt to show that the court acted arbitrarily, outside the bounds of reason, or outside the range of evidence presented, as generally defines the test for abuse of discretion. (Ackerman, supra, 146 Cal.App.4th at p. 197; In re Marriage of Connolly (1979) 23 Cal.3d 590, 598 ["Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether . . . the trial court exceeded the bounds of reason, all of the circumstances before it being considered."].)
We find no abuse of discretion in the trial court's award of permanent spousal support under the circumstances presented here.
C. DIVISION OF PROPERTY AND REIMBURSEMENT AMOUNTS
Edison challenges the trial court's property and reimbursement determinations. He contends that the court erred in assigning half of the value of the remaining unit of the Garopaba property to Christiana and in requiring him to reimburse her for expenditures paid to support his son's business venture and his daughter's wedding. To the extent we can ascertain his contentions and review the trial court's related determinations, we find no abuse of discretion or reversible error.
We understand Edison's opening brief to assert the following points: (1) Christiana had the burden of proof and did not provide any substantial evidence that community funds from the United States went toward the Garopaba property or paid for the hostel venture and the wedding; (2) Christiana and her mother engaged in fraudulent conduct to add her name to the title as a co-owner of the Garopaba property; (3) a lawsuit in Brazil over ownership of the property resulted in a judgment in his favor, and the Brazilian appellate court affirmed the ruling in a decision issued in May 2016; and (4) the unit should have been valued using the currency exchange rate at the time of trial rather than the rate that applied when the first unit sold in 2011.
We find no error in the trial court's application of the burden of proof as expressed in the statement of decision. The two remaining units of the Garopaba property were constructed during the marriage by using funds from accounts in Brazil. A community property presumption applies to property acquired by purchase, or in this case, constructed, during a marriage, " 'and the burden is on the spouse asserting its separate character to overcome the presumption.' " (In re Marriage of Mix (1975) 14 Cal.3d 604, 611 (Mix).) The presumption applies when funds for the property are "from a disputed source, such as an account or fund in which one of the spouses has commingled his or her separate funds with community funds. [Citations.] . . . 'If the property, or the source of funds with which it is acquired, can be traced, its separate property character remains unchanged.' " (Ibid.)
Stated different, " ' "commingling" is a word of art, used to connote the mixture of separate property or funds with community property or funds.' [Citation.] 'It is a familiar rule that separate property may become community property by the process of commingling in such a manner as to make segregation impossible, thus requiring the application of the presumption that it is community property.' " (In re Marriage of Brandes (2015) 239 Cal.App.4th 1461, 1474.)
It was Edison's burden, as the party seeking to overcome the community property presumption, to show that his separate property funded the construction. (Mix, supra, 14 Cal.3d at pp. 610-611.) The same principle applies to Edison's effort to show that the funds used to support his son's business venture and his daughter's wedding were traceable as his separate property. The trial court properly considered the two possible methods of tracing—direct tracing and consideration of family expenses. (Id. at p. 612 ["post-marital property can be established to be separate property by two independent methods of tracing"].) The court found that the record-keeping provided by Edison at trial did not meet the test for the direct tracing of funds, noting in one instance that separate property funds claimed to support the construction of the Garopaba properties also went to support college expenses for his son and daughter from a previous marriage. The court also found that Edison did not meet the alternate method of tracing by establishing that family expenses had exhausted the available community property, leaving only separate funds for the acquisition. The court observed that Edison managed all of the accounts and did not consult Christiana about the transfers that he made "each week" between the various accounts, which had been reduced to a total of about $1,000 within a few months after the parties' separation.
The determination of whether Edison adequately traced these expenditures to his separate property was a question of fact for the trial court. (Mix, supra, 14 Cal.3d at p. 612.) On appeal, Edison points to bank statements, construction invoices (in Portuguese), and illegible receipts, to show that "[s]ome portion of" funds from his separate apartment sales "were used to finish" the Garopaba units. This is inadequate to demonstrate affirmative error by the trial court. (Falcone, supra, 164 Cal.App.4th at p. 822.) Because we find no error in the trial court's determination that Edison's tracing efforts were insufficient, the community property presumption remains. (Mix, supra, at p. 612; see also In re Marriage of McLain (2017) 7 Cal.App.5th 262, 273-275 [husband's evidence inadequate to establish that funds used to construct house were his separate property].)
Edison's other arguments challenging the division of the Garopaba property are foreclosed by the appellate record and principles of appellate review. Specifically, the record and authorities cited by Edison are inadequate to evaluate his contentions regarding the alleged fraud, effect of the foreign judgment, and valuation of the remaining Garopaba unit based on the sale price of the other, duplicate unit in 2011. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132 [rejecting contention on appeal that reviewing court could not evaluate on the record provided].)
Regarding the allegedly fraudulent efforts by Christiana and her mother to add Christiana to the property title, Edison cites his trial brief and a few documents and e-mails in support. He also claims the trial court excluded some evidence related to the transaction and, despite the fraudulent conduct, "gave full credibility" to the testimony of Christiana's mother at trial. But the record does not reveal whether or to what extent evidence of the alleged fraud was introduced at trial, whether Edison objected to the exclusion of any evidence that he sought to introduce—thereby preserving the issue for appeal, and whether the trial court made any credibility determinations or findings on the issue. The absence of any showing that Edison raised this issue with the trial court—or objected to a determination excluding the pertinent evidence—effects an implied waiver of the right to argue the issue on appeal. (Falcone, supra, 164 Cal.App.4th at p. 826; In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002 [wife's failure to argue error below waived "her right to challenge the computation of the child support award on appeal"].)
The same is true for Edison's argument that Christiana has no legitimate claim to the Garopaba property, as apparently adjudged by a Brazilian court. A single mention of a foreign court ruling in Edison's trial brief does not indicate that the issue argued on appeal—recognition and effect of a foreign judgment—was ever properly before the trial court. What is more, Edison maintains that a Brazilian appellate court affirmed the lower court's judgment in May 2016—more than one year after the trial court's statement of decision in this case. The fact of this apparent ruling, let alone the effect thereof, was not before the trial court. We consequently decline to consider it on appeal. (Martinez v. Vaziri, supra, 246 Cal.App.4th at p. 383 [appellate review generally does not extend to matters not " 'part of the record at the time the judgment was entered' "].)
Edison's trial brief stated that in "May 2014, H commenced a lawsuit in an effort to rectify the fraud and breach. Maria [Christiana's mother] attempted to enjoin the process. On or about September 2014, a trial court in Brazil ruled in favor of H and assigned Maria to pay attorney's fees." Notably, Edison's appellate brief asserts something different, stating that Christiana filed a lawsuit against Edison in March 2014 "for half of the property," and the superior court ruled in his favor. These apparent contradictions demonstrate why appellate review requires an adequate record against which to measure the contentions on appeal. Moreover, there is statutory procedure that governs the recognition of a foreign-country judgment granting or denying recovery of a sum of money, to the extent that judgment was not "rendered in connection with domestic relations" (Code Civ. Proc., § 1715, subd. (b)(3)(A); cf. id., § 1723 [principles of comity may be available to recognize a foreign judgment involving domestic relations]). Edison's cryptic references to a judgment in a foreign court do not enable this court to assess the type of case and judgment rendered there, or the appropriate mechanism for Edison to seek recognition of that judgment.
Edison also contends that the trial court erred in valuing the remaining unit of the Garopaba property, owned equally by the parties, at $143,352, because that value reflects the currency exchange rate applicable when the "duplicate" unit sold in 2011. Edison argues that due to changes in the exchange rate, by applying the same value that was derived using the 2011 exchange rate, the trial court essentially rendered Edison's half of the property worthless. Although the general rule is that community assets must be valued "as near as practicable to the time of trial" (§ 2552, subd. (a); Nelson, supra, 139 Cal.App.4th at p. 1559), we cannot discern from the record whether Edison introduced evidence related to the remaining unit's value at the time of trial based on currency rates. We note that Edison's written objections to the trial court's amended statement of decision did not argue that the court had applied an incorrect methodology to value the remaining Garopaba unit. We therefore find that this argument, like those previously mentioned, was waived for failure to object, and may not now be raised on appeal. (Falcone, supra, 164 Cal.App.4th at p. 826.)
IV. DISPOSITION
The judgment is affirmed.
/s/_________
Premo, Acting P.J.
WE CONCUR: /s/_________
Elia, J. /s/_________
Bamattre-Manoukian, J.