Filed 3/17/23 Marriage of Duncan CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of GRACE DUARTE AND JEROME DUNCAN.
GRACE GALVAN DUARTE, E075329 Appellant, (Super. Ct. No. RID1604626) v. OPINION JEROME ANDREW DUNCAN,
Respondent.
APPEAL from the Superior Court of Riverside County. Dorothy McLaughlin,
Judge. Reversed in part, affirmed in part.
Holstrom, Block & Parke and Ronald B. Funk, for Appellant.
The Blonska Firm, Shannon R. Thomas and Jason A. Blonska, for Respondent
1 I.
INTRODUCTION
In this marriage dissolution action, appellant Grace Duarte challenges five aspects
of the family court’s distribution of property between her and her ex-husband, respondent
Jerome Duncan, and the court’s award of attorney’s fees to Jerome. She also seeks
appellate sanctions for Jerome’s unsuccessful motion to dismiss her appeal as untimely.
We reverse in part, affirm in part, and deny Grace’s sanctions motion.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Grace and Jerome married in April 2012 and separated in July 2016. Grace
petitioned to dissolve their marriage a few months later. During the proceedings, Jerome
learned that Grace had given her son, Orlando Duarte, about $150,000 to pay for law
school. Jerome then successfully moved to join Orlando to the case and asserted various 1 fraud-based claims against him.
The case concluded with a multi-day bench trial that resolved Grace and Jerome’s
remaining disputes over the distribution of 11 items of property. After the trial, the
family court issued a tentative decision and solicited objections to it from the parties.
The family court overruled Grace’s objections, sustained Jerome’s only objection, and
tentatively awarded Jerome $80,000 in attorney’s fees. The court later overruled Grace’s
1 The family court ruled entirely in Orlando’s favor on Jerome’s claims and entered judgment for him. Jerome does not challenge that judgment and Orlando is not a party to this appeal.
2 objections to the fee award and directed Jerome to submit a proposed judgment. The
family court adopted Jerome’s proposed 33-page judgment in full and entered judgment
accordingly. Grace timely appealed.
III.
DISCUSSION
Grace argues the family court’s judgment is erroneous in six respects. We address
each in turn. Because In re Marriage of Prentis-Margulis & Margulis (2011) 198
Cal.App.4th 1252 (Margulis) guides Grace’s argument about the first four items and our
corresponding analysis, we address it first.
1. Margulis
In Margulis, the husband had “complete control” of the community’s investment
accounts and paid all of their bills during 33 years of marriage and 12 years of separation.
(Margulis, supra, 198 Cal.App.4th at p. 1257.) Right before the dissolution trial,
however, the husband disclosed that the investment accounts were “virtually empty,” and
attributed the losses to proper expenditures and stock market fluctuations. (Ibid.) The
family court rejected the wife’s argument that the husband bore the burden of proof of
accounting for the funds that he controlled postseparation. (Id. at pp. 1265-1266.) The
family court thus refused to charge the husband for those funds because the wife failed to
rebut his argument that he used them on the community or lost them on the stock market.
(Id. at pp. 1262-1263, 1265-1266.)
3 After an extensive analysis about burden-shifting, the court adopted the following
rule: “[O]nce a nonmanaging spouse makes a prima facie showing concerning the
existence and value of community assets in the control of the other spouse postseparation,
the burden of proof shifts to the managing spouse to rebut the showing or prove the
proper disposition or lesser value of these assets. If the managing spouse fails to meet
this burden, the court should charge the managing spouse with the assets according to the
prima facie showing.” (Margulis, supra, 198 Cal.App.4th at p. 1267.)
Applying these rules, the Margulis court held that the husband, as the managing
spouse, had a “duty to account for his postseparation management of” missing funds, and
thus the burden shifted to him to prove they were properly used. (Margulis, supra, 198
Cal.App.4th at pp. 1266-1267, 1280.) The Margulis court therefore reversed because of
the family court’s “erroneous placement of the burden of proof” on the wife instead of
the husband. (Id. at p. 1280.) The court declined to address the wife’s arguments that the
family court improperly charged her with two other items totaling nearly $150,000
because the family court’s improper burden-shifting “as to the disposition of assets
necessitates a complete retrial of the community property issues.” (Ibid.)
2. $29,100 Withdrawal
In October 2014, while the parties were still married, Grace withdrew $29,100
from a bank account that was under her sole control and management (Chase #0218), but
contained only community funds. Grace testified that she used the withdrawn funds to
pay for community expenses because she liked to use cash, but did not give any further
4 specifics. Jerome disputed this, and claimed that Grace preferred paying for things with a
check so that she would have a record.
The family court charged Grace for the $29,100 withdrawal. The court reasoned
that the burden shifted to Grace under Margulis to prove that the withdrawal was for the
benefit of the community, and she failed to meet that burden.
We agree with Grace that the family court incorrectly shifted the burden to her
under Margulis. The burden-shifting rule announced in Margulis applies only to funds
expended postseparation. (See Margulis, supra, 198 Cal.App.4th at pp. 1258, 1267.) But
Grace made the $29,100 withdrawal while the parties were still married. Margulis
therefore does not apply.
Because Grace withdrew the funds during marriage, there is a rebuttable
presumption that she properly disposed of the funds for the community’s benefit. (See
Fam. Code, §§ 721, subd. (b), 760, 1100, subd. (a).) If Jerome disputed that Grace did
so, he had the initial burden of rebutting the presumption by proving that Grace
misappropriated the community funds for her benefit. (See Fam. Code, § 1101, subd. (a);
In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 100.) The family court thus
erroneously put the burden on Grace to prove that she used the funds for the community’s
benefit.
5 Without citing any authority or discussing Margulis and Grace’s arguments, 2 Jerome argues the family court’s order should be upheld. In fact, Jerome does not
mention Margulis anywhere in the argument section of his brief. It is not until the
conclusion section that Jerome mentions the case, when he argues without further
explanation that the judgment should be affirmed “even if the [family] court misapplied
[] Margulis.”
We disagree. We agree with Grace that the family court’s improper application of
Margulis erroneously shifted the burden to her, causing her to be charged for the $29,100
may not have been otherwise charged with had the family court correctly put the initial
burden on Jerome. We therefore reverse the family court’s order charging Grace for the
$29,100 withdrawal from the Chase #0218 account.
3. $86,011 Withdrawal
Grace also had sole management and control of another joint bank account, Chase
#6122. During Grace and Jerome’s marriage, Grace withdrew $86,011 from the account.
Again relying on Margulis, the family court charged Grace for these withdrawals, finding
that she failed to meet her burden of proof that she spent the money for the community’s
2 This portion of Jerome’s respondent’s brief, like the rest of the argument section of the brief, is largely copied-and-pasted from the family court’s judgment with non- substantive revisions (e.g., changing the parties names, changing verb tenses).
6 For the reasons explained above, the family court misinterpreted and misapplied
Margulis. As with the $29,100 withdrawal, Grace presumptively withdrew and used the
$86,011 to benefit the community. (See Fam. Code, §§ 760, 1100, subd. (a).) It was
Jerome’s burden to prove that Grace did not do so before she could be charged for the
funds. (See Fam. Code, §§ 721, subd. (b), 1101, subd. (a); In re Marriage of Ciprari,
supra, 32 Cal.App.5th at p. 100.) The family court thus erroneously shifted the burden to
Grace, which led to her being charged for the $86,011 in withdrawals from the Chase
#6122 account. We therefore reverse the family court’s order charging her for those
funds.
4. $13,808 in Schools First #0140 Account
Grace had another bank account in her name, Schools First #0140, which she used
during the marriage. At the date of separation, the account had $25,701 in it, $11,893 of
which was Grace’s separate property. Grace could not prove that the remaining $13,808
was her separate property, so the family court charged her for it as community property.
Grace argues the family court once again misapplied Margulis and inappropriately
shifted the burden to her to prove that she did not misappropriate the $13,808. We
disagree.
The family court did not mention Margulis in its order on the funds and did not
erroneously shift the burden to Grace. The court correctly observed that the funds in the
Schools First #0140 account were presumptively community property at the date of
separation and that Grace had the burden to prove that they were her separate property, as
7 she argued. (See In re Marriage of Ciprari, supra, 32 Cal.App.5th at p. 91 [“‘[T]here is a
general presumption that property acquired during marriage by either spouse other than
by gift or inheritance is community property unless traceable to a separate property
source. [Citation.] This is a rebuttable presumption . . . [that] can be overcome by the
party contesting community property status.’”].) Grace thus misreads the family court’s
order and, in so doing, fails to show the order was erroneous or prejudicial. We therefore
affirm the order. (Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113,
1125 [appellant must show the trial court prejudicially erred].)
5. $74,186 in Schools First #7814 Account
Grace and Orlando jointly owned a bank account, Schools First #7814. While
Grace and Jerome were still married, Grace gave Orlando a $150,000 cashier’s check to
pay for law school, which he deposited into the Schools First #7814 account. Grace
claimed that Jerome knew about and consented to the gift. Jerome, on the other hand,
claimed he could not have consented to the gift because he did not know about it until
discovering it during the dissolution proceedings.
When the parties separated, the Schools First #7814 account had $159,279 in it,
$85,093 of which was traced to Grace’s separate property. The family court thus found
the remaining $74,186 was community property and that “reimbursement is owed to the
community from this account for the” $150,000 gift to Orlando. In doing so, the family
court found that Grace’s testimony that the “$150,000 was a gift to her son with
8 [Jerome’s] consent does not meet her burden of proof that this transaction was for the
benefit of the community.”
Grace argues the family court yet again erroneously applied Margulis to shift the
burden to her to prove that the $150,000 gift to Orlando was not for the community’s
benefit. But even if Grace is right, she overlooks the fact that the $150,000 was
deposited into the Schools First #7814 account and remained there until the parties’
separation. Given that those funds were presumptively community funds and Grace
proved that only $85,093 of the funds were her separate property, the family court
properly found that the remaining $74,186 was community property. We therefore affirm
the family court’s order charging Grace for the $74,186 in community funds in the
Schools First #7814 account.
6. Attorney’s Fees
In his closing trial brief, Jerome moved for about $114,000 in attorney’s fees 3 under Family Code sections 2030 and 2032. Jerome argued awarding him fees was
appropriate because “he has a need and [Grace] has the ability to pay.” Jerome explained
that Grace had about $400,000 in her bank accounts at the time of trial and made about
$82,000 per month (or $984,000 per year) while he makes only about $136,000 per year
and had to borrow $70,000 from his father to pay for attorney fees and litigation costs.
3 All further statutory references are to the Family Code.
9 The family court awarded Jerome $80,000 in attorney’s fees “[a]fter analyzing
need and ability to pay and also the reasonableness of the free contribution requested.” In
doing so, the family court did not cite any statutory basis for the award.
Grace contends the family court erred prejudicially erred because it did not make
express findings as required by section 2030. We disagree.
Section 2030, subdivision (a)(2) provides that “[w]hen a request for attorney’s fees
and costs is made, the court shall make findings on whether an award of attorney’s fees
and costs under this section is appropriate, whether there is a disparity in access to funds
to retain counsel, and whether one party is able to pay for legal representation of both
parties.” (Italics added.) These findings must be explicit. (In re Marriage of Morton
(2018) 27 Cal.App.5th 1025, 1050.) “‘If the findings demonstrate disparity in access and
ability to pay, the court shall make an order awarding attorney’s fees and costs.’ (Italics
added.)” (Ibid.)
We agree with Grace that the family court did not comply with section 2030,
subdivision (a)(2) insofar as the court did not make explicit findings under the statute as
required. But Grace makes no attempt to explain how this prejudiced her. (See In re
Marriage of Morton, supra, 27 Cal.App.5th at p. 1051 [appellant must show failure to
make findings under section 2030, subdivision (a)(2) was prejudicial].) We affirm the
family court’s attorney’s fee award on that basis alone. (See ibid.; Bianco v. California
Highway Patrol, supra, 24 Cal.App.4th at p. 1125.)
10 In any event, we conclude the error was harmless because it is not reasonably
probable that the family court would have ruled differently had it made explicit findings
under section 2030, subdivision (a)(2). The family court’s findings, although not explicit,
show that the court evaluated the proper factors. To begin with, Jerome expressly moved
for fees under section 2030, subdivision (a)(2) and argued a fee award was appropriate
under the statute’s factors. By awarding Jerome $80,000 of the $114,000 (70%) in
attorney’s fees he requested, the family court found that an award under section 2030,
subdivision (a)(2) was “appropriate.” The record confirms that there is “a disparity in
access to funds to retain counsel” given that Grace makes nearly $1 million per year
while Jerome makes about $134,000 per year. At the time of the fee award, Grace had
$400,000 in her bank accounts. Given Grace’s substantial income and assets and the fact
that Jerome sought only $114,000 (or about 11% of Grace’s annual income and about
25% of her cash assets), she “is able to pay for legal representation of both parties.” We
therefore find Grace was not prejudiced by the family court’s failure to make explicit
findings under section 2030, subdivision (a)(2).
7. Transmutation of Real Property
While married, the parties bought a house together on Sierra Heights Drive in
Riverside. Grace argued the house was transmuted into her separate property (see § 852)
because Jerome executed a notarized Interspousal Transfer Grant Deed (the deed) giving
his interest in the property to Grace. Jerome testified that he did not sign the deed and
had never seen it before the trial. Grace therefore called the notary as a rebuttal witness.
11 The notary testified that the parties signed and executed the deed in her presence, which
she notarized as part of her routine notarization process.
The family court ruled that the deed was invalid, reasoning that Jerome “testified
that he did not sign [the deed]” and the “deficiencies on the face of [the deed] are such
that it cannot be proven that [Jerome] signed it.” These deficiencies included the lack of
the notary’s signature on the deed and missing “mandatory language” on the deed. The
court also found that the “testimony and documentary evidence received from the notary
do not prove” that Jerome signed the deed. The family court thus “set aside” the deed
and ruled that the Sierra Heights Drive property was not transmuted into Grace’s separate
property.
We review the family court’s finding that Jerome did not sign the deed for
substantial evidence. (See In re Wozniak (2020) 59 Cal.App.5th 120, 135; Ike v.
Doolittle 61 Cal.App.4th 51, 73.) Jerome testified that he did not sign the deed, and the
family court found his testimony credible. His testimony was sufficient for the family
court to find that he never signed the deed and thus the deed was ineffective to transmute
the Sierra Heights Drive house into Grace’s separate property. (In re Wozniak, supra, at
p. 135.) We therefore affirm the family court’s finding that the house was community
8. Sanctions
Grace seeks about $13,500 in sanctions against Jerome and/or his counsel for
attorney’s fees incurred in opposing his unsuccessful motion to dismiss the appeal and
12 $5,000 for attorney’s fees incurred for preparing her sanctions motion. We deny the
request.
Grace filed her notice of appeal on July 1, 2020. The clerk’s transcript, prepared
by the superior court, was filed in December 2020. The clerk’s transcript contained a
Notice of Entry of Judgment (the notice) with a file stamp of March 19, 2020. Superior
court employee “A. Venegas” signed and dated the notice. Venegas also signed and
completed a “Clerk’s Certificate of Mailing,” which stated that a copy of the notice had
been mailed to the parties on March 19, 2020.
About three months later, Jerome moved to dismiss the appeal as untimely filed.
Jerome argued the notice triggered the deadline for Grace to appeal, which was 60 days
under California Rule of Court, rule 8.104, extended by 30 days by this court’s
emergency orders caused by the COVID-19 pandemic. Thus, in Jerome’s view, Grace
had 90 days from March 19, 2020, or until June 17, 2020, to file a notice of appeal, but
she did not do so until July 1, 2020.
In her opposition to the motion to dismiss, Grace argued her appeal was timely
because the trial court did not mail the notice or the judgment in March 2020, but mailed
it on June 9, 2020. Grace claimed the trial court filed the judgment and notice nunc pro
tunc on June 9, 2020, but Venegas made a clerical error by stating March 19, 2020, was
the date of mailing. Grace noted that Jerome filed a proof of service on June 18, 2020,
stating that he served Grace with a copy of the notice on June 15, 2020.
13 After considering Jerome’s motion to dismiss and Grace’s opposition, this court
concluded that it could not determine whether Grace’s appeal was timely because the
record was unclear. We explained that the superior court’s register of actions “contains
entries for the judgment on both March 19, 2020 and June 9, 2020,” so there was “a
conflict in the superior court’s records regarding the actual date of service of notice of
entry of judgment.” We therefore directed the trial court to settle the record as to when
the notice was mailed to the parties.
The trial court then held a hearing during which superior court employee
(Venegas) testified. She explained that the superior court was shut down because of the
COVID-19 pandemic on March 20, 2020, the day after she had begun processing the
judgment. Venegas did not return to work until mid-June. When she returned, her
supervisor directed her to backdate “anything before the leave” caused by the pandemic
shutdown. Venegas therefore finished processing the notice and backdated it to March
19, 2020, but mailed it on June 9, 2020.
After receiving argument and additional evidence from the parties, the trial court
found that the judgment was processed and mailed on June 9, 2020, meaning that Grace
timely appealed less than a month later. We therefore denied Jerome’s motion to dismiss
the appeal as untimely.
Grace now moves for appellate sanctions. She contends Jerome knew his motion
to dismiss was frivolous. He knew that she timely filed her notice of appeal because he
knew that the superior court did not mail the notice until mid -June, 2020. Grace thus
14 seeks $13,472 for the attorney’s fees she incurred for opposing the motion and $5,000 for
the attorney’s fees incurred for the sanctions motion.
Under California Rules of Court, rule 8.276(a)(3), we may impose sanctions on a
party for filing a frivolous motion. A motion is frivolous if any reasonable attorney
would agree the motion is totally devoid of merit. (See Workman v. Colichman (2019)
33 Cal.App.5th 1039, 1062.) A motion is totally devoid of merit if there are “no unique
issues, no facts that are not amenable to easy analysis in terms of existing law, and no
reasoned argument by [the movant] for an extension of existing law.” (Westphal v. Wal-
Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1081.) We impose sanctions “sparingly”
and “to deter only the most egregious conduct.” (In re Marriage of Flaherty (1982) 31
Cal.3d 637, 651.)
We cannot say Jerome’s motion to dismiss was totally devoid of merit. The
clerk’s transcript contained a copy of the notice, which reflected that it had been served
on the parties on March 19, 2020. As we noted, it was unclear from the superior court’s
records when judgment was entered and when the court mailed the notice given that the
register of actions stated judgment was entered on both March 19, 2020, and June 9,
2020. Moreover, Venegas signed and dated the notice on March 19, 2020, including the
Clerk’s Certificate of Mailing stating that a copy had been mailed to the parties on that
date.
Because we could not discern from the record when the notice was sent to the
parties, and thus when the deadline to appeal was triggered, we directed the trial court to
15 settle the record. This required the trial court to receive testimony from Venegas to find
when she processed and mailed the notice. It was only with this additional evidence that
the trial court—and this court—could clarify the conflicted record and determine when
the notice was actually sent. Under these circumstances, Jerome had at least a colorable
argument that the superior court mailed the notice on March 18, 2020. Sanctions are
therefore not appropriate here. (See Avila v. Continental Airlines, Inc. (2008) 165
Cal.App.4th 1237, 1262; Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047,
1078.)
Grace argues Jerome knew he had no viable argument that her appeal was
untimely filed because he did not receive the notice until around the time he filed the
June 18, 2020 proof of service, which stated that he served Grace with the notice on June
15. But given that Venegas completed, signed, and dated the notice on March 19, she
attested on the notice that a copy of it had been mailed to the parties on March 19, and the
register of actions stated that the judgment had been processed and filed on March 19,
Jerome had a non-frivolous argument that Grace’s time to appeal began 60 days later, or
on June 17, 2020. (See California Rules of Court, rule 8.104(a)(1)(A) 8.104(e); Alan v.
American Honda Motor Co., Inc. (2007) 40 Cal.4th 895, 905 [clerk’s mailing of file-
stamped appealable order along with certificate of mailing satisfies rule 8.104(a)(1)].)
Jerome in turn had a non-frivolous argument that Grace’s notice of appeal, filed about
two weeks later, was untimely. We therefore deny Grace’s motion for sanctions. (See
16 Avila v. Continental Airlines, Inc., supra, 165 Cal.App.4th at p. 1262; Summers v. City of
Cathedral City, supra, 225 Cal.App.3d at p. 1078.)
IV.
DISPOSITION
The judgment is reversed in part and affirmed in part. The family court’s order
charging Grace for the $29,100 withdrawal from the Chase #0218 account and the
$86,011 in withdrawals from the Chase #6122 account are reversed. The family court’s
remaining orders are affirmed. Grace’s motion for sanctions is denied. The parties shall
bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON Acting P. J.
We concur:
SLOUGH J.
RAPHAEL J.