Filed 8/31/16 Marriage of O’Brien and Exley CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

In re the Marriage of LOIS O’BRIEN and                                  B262119
RAY EXLEY
                                                                        (Los Angeles County
LOIS O’BRIEN,                                                           Super. Ct. No. BD468094)

                                 Respondent,

         v.

RAY EXLEY,

                                 Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Mark
Juhas, Judge. Affirmed.


         Kaplan, Kenegos & Kadin, Jerry Kaplan and David Scott Kadin for Appellant.


         Honey Kessler Amado and James A. Karagianides for Respondent.
       Ray Exley (appellant) appeals from a final judgment entered after trial in this
marital dissolution action. Appellant and Lois O’Brien (respondent) were married for
one month, divorced, lived together for 14 years, then remarried for 15 years before
divorcing again. This matter arises from the second divorce. We find no reversible error
and affirm.
                                     CONTENTIONS
       Appellant argues that the trial court lacked jurisdiction to enter the judgment due
to the parties’ failure to comply with Family Code section 2105 before trial.1
       Appellant also argues that the trial court erred in failing to find the existence of an
oral sharing agreement. As a result of this error, appellant argues that the trial court
incorrectly divided several assets, including a house in Beverly Hills, pension plans, and
artwork.
       Finally, appellant argues that the trial court erred in failing to award him attorney
fees under sections 271 and 1101 due to respondent’s alleged undue influence in claiming
the Beverly Hills house as her sole and separate property.
                              FACTUAL BACKGROUND
       Appellant and respondent met in 1973 in medical school. Appellant had just
entered his anesthesiology residency at Stanford and respondent was a junior instructor in
anesthesia.
       The parties began living together when they purchased a home in Palo Alto in
1974 or 1975. The Palo Alto home was held in respondent’s name because she was
Stanford faculty, which made her eligible to purchase the home. Appellant testified that
respondent provided the eligibility and he provided the down payment.
       The couple married in April 1977 and filed for divorce approximately one month
later. The divorce was finalized on May 22, 1978. Appellant testified that the reason for
the first divorce was appellant’s fear of liability from a medical malpractice insurance




1      All further statutory references are to the Family Code unless otherwise noted.

                                              2
exchange he was involved with. The parties continued to live together after the first
divorce.
        Appellant testified that around the time of the parties’ first marriage, they made an
oral agreement to share equally all of their assets. Appellant could not recall exactly
when the agreement was made, but stated that it was discussed several times. Appellant
testified that the agreement continued and was reaffirmed subsequent to the parties’
divorce. Respondent denied the existence of such an agreement.
        Sometime around 1978, respondent got a job in Los Angeles at UCLA. The Palo
Alto house was sold.
        Appellant’s physical condition began to deteriorate and as a result in early 1982 he
retired from active medical practice.
        In 1982, when the parties were not married, they purchased the Beverly Hills
house. Appellant testified that the parties negotiated a lease purchase option. Appellant
produced evidence that he wrote a check on his account payable to the owner of the
house for $15,600. The total cost of the house was approximately $700,000.
        Respondent testified that she bought the Beverly Hills house herself and that
appellant had no interest in the house at the time. The purchase was financed in part by a
series of notes and deeds of trust. All of the notes and deeds of trust were signed by
respondent alone. Respondent testified that appellant lived with her in the house, but that
she made all payments. The note due the seller was paid in 1985 with two cashier’s
checks signed by appellant.
        Respondent and appellant were living together in the Beverly Hills house when
they married again in 1992. They continued living there after the second marriage as
well.
        The residence was refinanced in 1986. Title to the property was transferred to
“Lois O’Brien, an unmarried woman, and Ray W. Exley, an unmarried man, as joint
tenants.” Shortly after their second marriage in 1992, the parties refinanced the residence
again. The property was transferred to appellant and respondent, husband and wife, as
joint tenants.


                                              3
       The residence was refinanced twice more, in 2002 and 2003. After the 2003
refinance, the title was changed to respondent’s name alone. Appellant never asked
respondent to put his name back on the title.
       The parties continued living together in the house until respondent moved out in
August of 2007.
                               PROCEDURAL HISTORY
       Respondent filed the petition for dissolution on June 21, 2007. Appellant’s
amended response was filed February 8, 2008.
       On October 14, 2009, appellant filed a separate civil action entitled Exley v.
O’Brien, Los Angeles Superior Court Case No. BC423736. In it, appellant alleged
breach of an oral agreement concerning the ownership of property purchased during the
time that the parties were not married. The trial court deemed the matter related to the
dissolution action and it was transferred to the Family Law court. In November 2013,
trial commenced on the civil action. After opening statements, appellant voluntarily
dismissed the civil case with prejudice. The parties stipulated that all discovery produced
in the civil action could be used in the dissolution action, subject to relevance and
foundation.
       On October 20, 2011, the trial court joined the parties’ pension plans as third-party
claimants. On April 10, 2013, the pension plans removed the related state court actions
to federal court, asserting that the federal court had exclusive jurisdiction to hear claims
under the Employee Retirement Income Security Act of 1974 (29 USC § 1001 et seq.)
(ERISA). The federal court remanded the action back to state court because, as third-
party claimants, the plans did not have standing to effectuate removal.
       Trial of the dissolution action took place over seven days in February 2014.
       On April 8, 2014, the trial court issued a detailed tentative ruling. The court
invited the parties to specify controverted issues or make proposals for issues not covered
by the ruling. Appellant and the pension plans filed a joint response to the court’s
tentative decision following trial, and appellant later filed a supplemental response.
Respondent filed responses to these documents.


                                                4
       On June 27, 2014, respondent filed her final declaration of disclosure and current
income and expense declaration.
       On July 1, 2014, the trial court issued a nine-page final ruling.
       On November 5, 2014, appellant filed his final declaration and current income and
expense declaration.
       On November 5, 2014, the trial court issued its order regarding attorney fees. The
court declined to make a need based award, but noted that it cost respondent to litigate
against the alleged mutual sharing agreement theory put forth by appellant. The court
noted that appellant put on “virtually no evidence at all” regarding this alleged
agreement. Because appellant persisted in arguing for the existence of the sharing
agreement with insufficient evidence to support it, the court granted respondent $75,000
in attorney fees to be accounted for and paid as part of an equalization payment. The
amount cited by the trial court took into account the fact that respondent’s insistence that
the Beverly Hills home was her separate property undoubtedly cost appellant some
amount of fees.
       On December 10, 2014, appellant filed written objections to the proposed
judgment. Appellant argued, among other things, that several requests had been made to
respondent regarding her disclosures, and respondent had refused to respond. Thus,
appellant argued, the trial court could not enter judgment pursuant to section 2107.
       On December 12, 2014, appellant filed a request for order regarding respondent’s
alleged noncompliance with section 2107. The hearing on appellant’s request was set for
January 20, 2015.
       A further judgment on reserved issues was entered on December 22, 2014.
       On January 14, 2015, the trial court advanced the hearing date on appellant’s
request for order, and issued an order. The court indicated that it had read and considered
appellant’s request for order for the production of all documents required under section
2107. The court ruled that because judgment was entered on December 22, 2014,
appellant’s request was moot. In addition, appellant’s supplemental request, filed



                                              5
January 5, 2015, to set aside the judgment was untimely. The request for order was
denied.
        Appellant filed another request for order on January 26, 2015, requesting that the
judgment be set aside for noncompliance with section 2107. The first available date for
hearing was February 25, 2015, which would have been after the time to file an appeal on
the judgment had expired. Therefore, appellant filed an ex parte application seeking to
advance the February 25, 2015 hearing date. The ex parte request was denied. Appellant
withdrew the pending request for order.
        On February 20, 2015, appellant filed a timely notice of appeal. Appellant
appealed from both the judgment entered December 22, 2014, and the minute order of
January 14, 2015, denying his request for order regarding noncompliance with section
2107.
                                       DISCUSSION
I. Standard of review
        We review the trial court’s factual findings under the substantial evidence
standard. Under this rule, the court’s factual findings must be affirmed if they are
supported by “substantial evidence.” (Winograd v. American Broadcasting Co. (1998)
68 Cal.App.4th 624, 632.) We must accept as true the evidence most favorable to the
order and assume that the trier of fact did not accept the contradictory evidence. (In re
S.A. (2010) 182 Cal.App.4th 1128, 1140.)
        Attorney fee orders are reviewed for abuse of discretion. (In re Marriage of
Feldman (2007) 153 Cal.App.4th 1470, 1478; In re Marriage of Keech (1999) 75
Cal.App.4th 860, 866). Abuse of discretion exists only when the court exceeds the
bounds of reason. (Marriage of Berland (1989) 215 Cal.App.3d 1257, 1261.)
        When no conflict in the evidence exists, a challenge to a court’s jurisdiction is
reviewed as a matter of law. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14
Cal.4th 434, 449.)




                                              6
II. Jurisdiction
       Appellant’s first argument is that the trial court lacked jurisdiction to conduct the
trial due to the parties’ failure to comply with section 2105. The statute mandates that the
parties serve on each other a final declaration of disclosure no later than 45 days before
the first assigned trial date. In the absence of compliance, appellant argues, the trial court
lacked the jurisdiction to conduct the trial and to enter judgment. Appellant argues that
the trial court was required to set aside the judgment due to the parties’ noncompliance.
       A. Applicable law
       Section 2105, subdivision (a) provides:
               “Except by court order or for good cause, before or at the time the
       parties enter into an agreement for the resolution of property or support
       issues other than pendente lite support, or, if the case goes to trial, no later
       than 45 days before the first assigned trial date, each party, or the attorney
       for the party in this matter, shall serve on the other party a final declaration
       of disclosure and a current income and expense declaration, executed under
       penalty of perjury . . . unless the parties mutually waive the final
       declaration of disclosure.”

       Section 2105, subdivision (d) permits the parties to waive the requirements of
subdivision (a) “by execution of a waiver under penalty of perjury entered into in open
court or by separate stipulation.”
       Section 2105, subdivision (c) provides that in making an order setting aside a
judgment for failure to comply with this section, “the court may limit the set aside to
those portions of the judgment materially affected by the nondisclosure.”
       Pursuant to section 2107, subdivision (d): “[I]f a court enters a judgment when the
parties have failed to comply with all disclosure requirements of this chapter, the court
shall set aside the judgment. The failure to comply with the disclosure requirements does
not constitute harmless error.”
       B. Relevant procedural history
       First, we briefly review the relevant procedural facts in the proceedings below.
Appellant is correct that neither party served the final declaration within the 45-day



                                              7
pretrial deadline. Trial took place in February 2014, and neither party had served its final
declaration at that time.
       On April 8, 2014, the trial court issued its detailed tentative decision, which was
not finalized until July 1, 2014.
       Respondent’s final disclosure declaration was served on June 27, 2014.
       Appellant’s final disclosure declaration was served on November 5, 2014.
       The further judgment on reserved issues was entered on December 22, 2014.
       C. Jurisdiction to proceed with trial
       Appellant has provided no authority for his position that the trial court lacked
jurisdiction to proceed with trial in the absence of compliance with section 2105,
subdivision (a). The statute requires that the final disclosure declarations be served no
later than 45 days before the first trial date. However, it does not provide that a trial court
lacks jurisdiction to proceed with trial in the absence of compliance with section 2105,
subdivision (a). Instead, the Family Code provides that the trial court may not enter
judgment if the parties failed to comply with the statutory requirements. (§§ 2105, subd.
(c); 2107, subd. (d).)
       At the time of trial, appellant did not object to the commencement of trial on the
ground that the parties had not complied with section 2105, subdivision (a). By
voluntarily participating in trial and failing to object, appellant forfeited his argument that
the trial court lacked jurisdiction to proceed. (See, e.g., Conservatorship of Joseph W.
(2011) 199 Cal.App.4th 953, 967 [where trial court misinterpreted request for hearing as
request for court trial, appellant forfeited jury trial by failing to object and participating in
trial]; Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1761 [plaintiff forfeited
any objection to defendants’ failure to verify their answer when she did not object to
defendant’s failure to verify their answer before trial].)
       “The term ‘jurisdiction’ . . . has so many different meanings that no single
statement can be entirely satisfactory as a definition.’ [Citation.] Essentially,
jurisdictional errors are of two types. ‘Lack of jurisdiction in its most fundamental or
strict sense means an entire absence of power to hear or determine the case, an absence of


                                               8
authority over the subject matter or the parties.’ [Citation.] When a court lacks
jurisdiction in a fundamental sense, an ensuing judgment is void, and ‘thus vulnerable to
direct or collateral attack at any time.’ [Citation.]” (People v. American Contractors
Indemnity Co. (2004) 33 Cal.4th 653, 660.) However, appellant is not arguing that the
trial court in this matter lacked fundamental jurisdiction. Instead, he argues that the trial
court lacked the authority to act as it did.
               “‘[T]he phrase “lack of jurisdiction” is not limited to these
       fundamental situations.’ [Citation.] It may also ‘be applied to a case
       where, though the court has jurisdiction over the subject matter and the
       parties in the fundamental sense, it has no “jurisdiction” (or power) to act in
       a particular manner, or to give certain kinds of relief, or to act without the
       occurrence of certain procedural prerequisites.’ [Citation.] ‘“[W]hen a
       statute authorizes [a] prescribed procedure, and the court acts contrary to
       the authority thus conferred, it has exceeded its jurisdiction.”’ [Citation.]
       [W]hen a court has fundamental jurisdiction, but acts in excess of its
       jurisdiction, its act or judgment is merely voidable. [Citations.] That is, its
       act or judgment is valid until it is set aside, and a party may be precluded
       from setting it aside by ‘principles of estoppel, disfavor of collateral attack
       or res judicata.’ [Citation.]”

(People v. American Contractors Indemnity Co., supra, 33 Cal.4th at p. 661.)

       Appellant’s claim that the trial court exceeded its jurisdiction falls under this
second category of claims of lack of jurisdiction. There was no fundamental lack of
jurisdiction over the parties or the subject matter. The court merely failed to act with the
occurrence of certain procedural prerequisites. Under the circumstances, appellant was
required to object at the trial level to give the trial court the opportunity in the first
instance to correct the error. Because appellant failed to do so, he acquiesced in the error
and forfeited his claim on appeal. (People v. Braxton (2004) 34 Cal.4th 798, 813 [“a
party may not challenge on appeal a procedural error or omission if the party acquiesced
by failing to object or protest” in the trial court].) “‘“In the hurry of the trial many things
may be, and are, overlooked which would readily have been rectified had attention been
called to them. The law casts upon the party the duty of looking after his legal rights and
of calling the judge’s attention to any infringement of them.”’ [Citations.]” (Id. At p.


                                                9
814.) Appellant failed to call the judge’s attention to the lack of compliance with section
2105 before trial. Therefore, he cannot now claim that the court’s decision to proceed
with the trial was error.
       D. Jurisdiction to enter judgment
       Section 2107, subdivision (d) provides that if a court has entered judgment where
the parties have failed to comply with all disclosure requirements, the trial court “shall”
set aside that judgment.
       The facts before us do not show that the trial court entered judgment prior to
receiving respondent’s final disclosure declaration. On June 16, 2014, when the parties
appeared in court to discuss the objections to the court’s preliminary statement of
decision, the court stated: “I’m very troubled by the fact that there’s no final declarations
of disclosures, and the [appellant], apparently, is not going to waive his -- [appellant] is
not going to waive [respondent’s] final declaration of disclosure, so I can’t enter
judgment no matter what until there’s that.” Eleven days later, on June 27, 2014,
respondent served the required document. The finalized judgment was not filed until July
1, 2014, after service of respondent’s declaration, and a further judgment on reserved
issues was not filed until nearly six months later in December 2014. Under these facts,
the trial court was not required to set aside the judgment under section 2107, subdivision
(d).
       Appellant complains that respondent never provided certain supplemental
disclosures that appellant requested in October 2014. Appellant contends that
respondent’s June 27, 2014 declaration of disclosure did not address previously
undisclosed financial activity and assets. Appellant argues that he was entitled to receive
the documents he requested in his request for supplemental disclosures. In his December
10, 2014 response to the court’s order to show cause re: judgment, appellant pointed out
to the court that respondent had not answered his requests regarding supplemental
disclosures. Appellant included the following language in his response:
             “As set forth in the attached Declaration of [appellant’s] attorney
       David Scott Kadin, several requests were made to [respondent’s] attorney


                                              10
       for information and documentation regarding disclosures pursuant to
       California Family Code § 2107, and [respondent] has refused to respond or
       produce the information or documents. Therefore, pursuant to Family Code
       § 2107, the Court may not enter judgment, and if any judgment is entered,
       it shall be set aside.”

       A further judgment on reserved issues was entered on December 22, 2014. In its
judgment, the trial court failed to explicitly address appellant’s argument that the trial
court was not permitted to enter judgment pursuant to section 2107. We interpret the
court’s failure to issue a formal ruling on this portion of appellant’s response as an
implied rejection of appellant’s position. (People v. Jacobs (1987) 195 Cal.App.3d 1636,
1650-1651.)
       We find that the trial court’s implied disagreement with appellant’s position was
not error. Appellant provided no law supporting his position that the trial court was not
permitted to enter judgment until respondent provided further information regarding her
disclosure. Section 2107 provides no direction regarding requests for further
information. Nor did appellant elaborate as to the specifics of what he was seeking and
how such information could impact or change the outcome of the case in any respect.
Because appellant provided no legal or factual basis for a delay of the judgment, the trial
court did not err in implicitly denying appellant’s request that the court refrain from
entering judgment.
       In sum, appellant has failed to show that the trial court lacked jurisdiction to enter
judgment.2
III. Appellant’s requests for order
       On December 12, 2014, appellant filed a request for order regarding respondent’s
alleged noncompliance with disclosure requirements. A hearing was set for January 20,
2015. On January 5, 2015, appellant filed a supplemental request. On January 14, 2015,

2      Because we have determined that the trial court did not enter judgment in violation
of sections 2105 and 2107, we decline to address the parties’ competing arguments
regarding the necessity of a showing of prejudice under section 2107, subdivision (d).


                                              11
the trial court advanced the hearing date on appellant’s request for order, and issued an
order, indicating that it had read and considered appellant’s request for order for the
production of all documents required under section 2107. The court ruled that because
judgment was entered on December 22, 2014, appellant’s request was moot. In addition,
appellant’s supplemental request, filed January 5, 2015, was untimely. The request for
order was denied.
       Appellant does not provide any convincing legal authority that the trial court erred
in determining that the request was moot after judgment was entered. 3 Appellant again
relies on section 2107, which he explains, was “specifically and expressly written in
contemplation that a judgment would, in fact, have issued and would, therefore, need to
be set aside.” However, appellant’s December 12, 2014 request for order was not a
motion to set aside the judgment.4 Instead, it was a request for orders regarding
noncompliance with disclosure requirements. Appellant cites no legal authority
suggesting that such a request for order was not moot where final judgment in the case
has already been rendered.
       Appellant does not specifically challenge the trial court’s determination that the
supplemental request was untimely. He provides no rules regarding the timeliness of
supplemental requests. Nor does he make any attempt to argue that the trial court abused
its discretion in judging the document untimely under the particular circumstances of this
case. Therefore, we decline to address this issue further. (Benach v. County of Los
Angeles (2007) 149 Cal.App.4th 836, 852 [“An appellant must provide an argument and


3      We reject appellant’s position that “The Court essentially guaranteed that the
Request for Order would be ‘moot’ by setting the hearing date after it would enter
judgment, substantially prejudicing [appellant].” Appellant’s suggestion that the trial
court chose the hearing date based on a particular agenda against appellant is completely
unsupported. In making this argument, appellant appears to agree that the request
became moot, admitting that “the court set a hearing date that would inherently render it
moot.”

4      In fact, the request for order was filed before the final judgment on reserved issues
was filed.

                                             12
legal authority to support his contentions. This burden requires more than a mere
assertion that the judgment is wrong. . . . It is not our place to construct theories or
arguments to undermine the judgment and defeat the presumption of correctness”].)
       Appellant filed a request for order on January 26, 2015, requesting that the
judgment be set aside for noncompliance with section 2107. The first available date for
hearing was February 25, 2015, which would have been after the time to file an appeal of
the judgment had expired. Therefore, appellant filed an ex parte application seeking to
advance the February 25, 2015 hearing date. The ex parte request was denied. Appellant
timely filed his appeal from the judgment on February 20, 2015, and because the trial
court lost jurisdiction with the filing of the appeal, appellant withdrew the pending
request for order set for hearing on February 25, 2015.
       Appellant argues that the filing of an ex parte application to advance the hearing
date so as to avoid the running of the time to file an appeal was appropriate. Appellant
cites California Rules of Court, rule 3.1202,5 which provides that an ex parte application
must make an affirmative factual showing of “irreparable harm, immediate danger, or any
other statutory basis for granting relief ex parte.” (Rule 3.1202(c).) Appellant fails to
cite any legal authority suggesting that this particular situation qualified for ex parte
relief. Appellant was not in danger of losing his right to appeal. While appellant has
provided no legal authority on this question, we note that an order denying a
postjudgment motion to vacate or set aside the judgment may be directly attacked on
appeal. (Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 857, fn. 3 [“An order
denying a motion to set aside the judgment is appealable, regardless of whether the time
to appeal from the underlying judgment has expired”].) In addition, the decision whether
to advance a hearing date is well within the trial court’s discretion. (Salinas v. Atchison,
Topeka & Santa Fe Ry. Co. (1992) 5 Cal.App.4th 1, 9.) We will not disturb such a ruling
on appeal in the absence of an affirmative showing that the trial court acted outside the



5     In fact, appellant cited California Rules of Court, rule 3.2101, which does not
appear to be a current rule, thus we assume this was unintended error.

                                              13
bounds of reason. Appellant has failed to provide the required showing to overturn the
ruling.
          Appellant has failed to show reversible error regarding the trial court’s failure to
make a determination as to whether the judgment should have been set aside under
section 2107. No timely request to set aside the judgment ever came before the court.
          Because the trial court never considered a motion to set aside the judgment, there
is no trial court ruling on the question for this court to evaluate.
          In sum, appellant has failed to show error in the rulings on his requests for order.
IV. The alleged sharing agreement
          Appellant next argues that the trial court erred in determining that no valid sharing
agreement existed. We analyze the trial court’s decision under the substantial evidence
standard of review. (Crail v. Blakely (1973) 8 Cal.3d 744, 747.) Under this standard, the
trial court’s decision must be upheld if it is supported by substantial evidence in the
record as a whole. (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1401.)
          The trial court indicated that appellant bore the burden of proof regarding his
contention that the parties entered into a sharing agreement dictating that all of their
assets should be shared communally. The trial court commented that there was
“remarkably little evidence” concerning the agreement. What little evidence there was
consisted of appellant’s testimony that the parties discussed an agreement to share their
assets. Appellant could not recall exactly when this agreement took place, but he testified
that “it was discussed several times.” Subsequent to the parties’ first divorce, appellant
testified, the agreement was “reaffirmed.” Appellant testified that he was unsure whether
the agreement was made during the first marriage or not.
          The court found that there was no sharing agreement between the parties at any
time. There was insufficient detail as to the creation and the terms of the agreement, and
that fact alone prevented enforcement of the agreement. Further, the court explained:
                 “To the extent that the agreement was entered into either before the
          parties’ first marriage or between the parties’ marriages, it must be in
          writing to be a valid pre-marital agreement; both parties agree that there is
          no such writing. Additionally, if the agreement was reached during the


                                                14
       short pendency of the parties’ first marriage, it would be a post-marital
       agreement, and there is a significant question as to whether this type of
       agreement is valid once the marriage ends. . . . As a result, the court does
       not find that the agreement would be valid under any legal theory.”

       The court further rejected any claim that the alleged agreement could be a
“‘Marvin’ type arrangement.”6 The court reiterated that there were insufficient details of
the agreement, and held “because in the case at bar there are simply no detailed terms or
clearly identifiable agreements, the court cannot and will not enforce something that is
this vague.”
       Appellant argues that the trial court erred by characterizing the agreement as an
invalid pre-marital agreement. Section 1610 defines “premarital agreement” as “an
agreement between prospective spouses made in contemplation of marriage and to be
effective upon marriage.” Section 1611 requires that any such agreement be in writing
and signed by both parties. Appellant argues that he never testified that any agreement
was made in contemplation of marriage. Instead, their agreement was made without any
contemplation of a subsequent marriage. Appellant argues that the court’s failure to
recognize this distinction was error.
       We find that the record does not support appellant’s claim of error. The trial court
was very clear that the evidence did not support the existence of an enforceable oral
agreement to share under any theory. This was because there was insufficient detail as to
the creation and terms of the agreement. The trial court mentioned that the agreement did
not qualify as a valid pre-marital agreement only to specifically discard that particular
theory. The court’s rejection of the alleged sharing agreement as a valid pre-marital
agreement served only to bolster the court’s main finding that there was insufficient
evidence to support appellant’s claim that such an agreement existed.
       In his reply brief, appellant argues that, at the very least, he showed an implied
sharing agreement. In support of this argument, he cites two cases, Alderson v. Alderson
(1986) 180 Cal.App.3d 450 (Alderson), and Maglica v. Maglica (1998) 66 Cal.App.4th

6      Marvin v. Marvin (1976) 18 Cal.3d 660.

                                             15
442 (Maglica). Preliminarily, we note that appellant does not provide any citation to the
record showing that he raised this argument at the trial court level or that the trial court
considered this theory of an implied agreement to share based on these cases. It seems
that appellant’s position below was that he and respondent made an express sharing
agreement. If the argument was not raised before the trial court, we need not consider it
on appeal. This is especially true where, as here, the existence of an implied agreement
to share is a heavily fact-based argument.
       In addition, the cases cited by appellant are distinguishable. Both cases involved
couples who cohabitated for long periods of time but never married. However, the
couples held themselves out as married couples. Under those circumstances, courts of
appeal have held that there could exist an implied agreement to share. However, the facts
before us are different. Appellant does not argue that he and respondent held themselves
out as husband and wife during the time that they were cohabitating. In addition,
appellant and respondent did marry, twice, and the second time they were married for 15
years. Thus, unlike the parties in Alderson and Maglica, appellant and respondent legally
changed the status of their relationship from one of long-term cohabitation to one of
marriage.
       Alderson and Maglica set forth certain factors which a fact finder may consider in
determining whether a couple that engages in long-term cohabitation had an implied
agreement to share. Those factors include: direct testimony of an agreement; the couple
holding themselves out as husband and wife; the woman and her children taking the
man’s surname; the pooling of finances to purchase a number of joint rental properties;
rendering services for those joint rental properties; and the nature of title taken in those
properties. (Maglica, supra, 66 Cal.App.4th at p. 456.) However, even the existence of
several of these factors does not mandate a finding of a sharing agreement. The Maglica
court stated: “We certainly do not say that living together, holding themselves out as
husband and wife, and being companions and confidants, even taken together, are
sufficient in and of themselves to show an implied agreement.” (Id. at pp. 456-457.)
However, the court concluded, such facts “can be part of a series of facts which do show


                                              16
such an agreement.” (Id. at p. 457.) Here, the trial court noted that there was
“remarkably little evidence” concerning an alleged agreement to share. To the extent that
the trial court considered the existence of an implied agreement to share, its
determination that no such implied agreement existed is supported by the record.
V. Substantial evidence supported the trial court’s division of property
       Appellant argues that the trial court erred in dividing certain assets. Those assets
include: the Beverly Hills home; the parties’ pension plans; and artwork.
       “‘Appellate review of a trial court’s finding that a particular item is separate or
community property is limited to a determination of whether any substantial evidence
supports the finding.’ [Citations.]” (In re Marriage of Rossin (2009) 172 Cal.App.4th
725, 734.) “Generally speaking, property characterization depends on three factors: (1)
the time of acquisition; (2) the ‘operation of various presumptions, particularly those
concerning the form of title’; and (3) the determination ‘whether the spouses have
transmuted’ the property in question, thereby changing its character. . . . [i]n some cases,
a fourth factor may be involved: whether the parties’ actions short of formal
transmutation have converted the property’s character, as by commingling to the extent
that tracing is impossible. [Citation.]” (Id. at p. 732.)
       A. The Beverly Hills home
       At trial, each party claimed that the Beverly Hills residence was his or her separate
property. The trial court determined that the Beverly Hills residence is the community
property of the parties. The house was awarded to respondent, with an equalization
payment to appellant in the amount of $505,079.65. The trial court explained:
              “According to the title, [respondent] alone originally purchased this
       property in 1982. However in October 1986, (before the second marriage)
       she deeded the property to: ‘Lois O’Brien an unmarried woman and Ray
       W. Exley, an unmarried man’ (exhibit 119). Then, in November, 1992
       (after marriage) they granted the property as unmarried persons to
       themselves as ‘husband and wife as joint tenants’ (exhibit 128). In 2002
       the parties refinanced the property, leaving title in both their names. In
       2003, the house was again refinanced, but this time into [respondent’s]
       name only.”



                                              17
       While there was much testimony regarding the source of the down payment, there
was little documentary evidence. The trial court determined that “[n]either party
sufficiently traced money into this house for the court to make any determination as to
the source of funds.” The court noted that while the property was initially purchased in
respondent’s name, “both well before marriage and immediately after marriage the title to
the property was placed in the parties joint names.” Therefore, a presumption arose that
the property was community in nature. Although appellant’s name was taken off the title
when the house was refinanced, it was respondent’s burden to demonstrate that she did
not exercise undue influence in this transaction. There was evidence that appellant’s
name was removed from the title “as a result of his credit score as part of the refinance.”
The trial court indicated that respondent did not meaningfully refute this evidence. Thus,
the property remained community property in spite of the change in title.
       Appellant argues that the evidence strongly supports a determination that the
house was purchased with his separate property. In addition, appellant argues, all of the
loans obtained for the purchase came from appellant’s pension plans.7 Appellant argues
that the house could only have become a community property asset once the parties were
married, and that the court failed to determine the value of the house at the time of
marriage and make an appropriate apportionment.
       A review of the evidence shows conflicting testimony from appellant and
respondent as to the source of funds for the down payment of the house as well as the
payments. However, it was undisputed that the house was the parties’ primary residence
starting in 1982, when the home was first purchased, through 2007 when respondent
moved out. In addition, the trial court appropriately considered the form of title to the
property, noting that the property was in the parties’ joint names “both well before



7       Appellant fails to cite any evidence in support of his contention that the entire
down payment for the Beverly Hills home was his separate property. While respondent
testified that the purchase was partially funded with money that was borrowed from the
Athena pension plans, respondent also testified that her income was the source of funds
for the payments on the loans.

                                             18
marriage and immediately after marriage,” and that this created a presumption of
community property.
         Our role at this stage is not to reweigh the evidence, but to examine the evidence
in the light most favorable to the prevailing party and assume that the trial court rejected
contradictory evidence. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.)
We find that substantial evidence supported the trial court’s decision that the Beverly
Hills Residence was community property.
         B. The pension plans
         In 1978, appellant formed Athena Medical Group, Inc. (Athena), a California
Corporation. Appellant and respondent were co-owners. Respondent was listed as an
officer and employee of the corporation in order to establish the two requisite employees
necessary to form a “Qualified ERISA” employee pension and benefit plan. Appellant
and respondent were both employed by Athena, and respondent remained an employee
through 1982. The corporation was established to hold earnings as well as two pension
plans, also established in 1978, for the purpose of reducing tax liability.
         In 1983, respondent started her own professional corporation, California
Professional Medical Group (CPMG), with its own ERISA plan. Appellant was
employed as the secretary/treasurer of the corporation. Appellant was also a beneficiary
of the CPMG ERISA pension plan just as respondent was a beneficiary of the Athena
plans.
         In early 1990, before the parties’ second marriage, they elected to hold their assets
in individual retirement accounts (IRAs) instead of ERISA-qualified plans. Accordingly,
nearly all of the assets held by the parties in the Athena and CPMG pension plans were
rolled over into IRAs held separately in each party’s name.
         The trial court noted that the evidence during trial regarding the parties’ pension
plans was “quite confusing.” However, to the extent that the Athena pension plans still
had some existing value, the court confirmed the Athena plans to appellant as his sole and
separate property. In addition, three pieces of artwork which were purchased by



                                               19
appellant’s pension plan were awarded to appellant as his separate property.8 The court
found that the pension plans were eventually rolled over into individual IRAs in the
parties’ names. Respondent admitted to depositing $8,000 of community property into
her IRA, and the court ordered her to reimburse the community that amount. Apart from
that reimbursement, the court confirmed the IRA in each person’s name to that person as
his or her sole and separate property.
        Appellant argues the evidence showed that the Athena plans had more value than
the CPMG plan, yet no effort was made to establish the value of those plans. Appellant
argues that if any money from appellant’s ERISA plan was rolled over into respondent’s
IRA, respondent would need to reimburse appellant for that money. 9 Appellant
complains that the trial court made no effort to value the plans in order to make any
necessary equalizing payment. Without the information sought in his requests for
supplemental disclosures, there was no way to establish how much, if anything, was
owed.


8     An additional piece of artwork purchased by the pension plan, “Two Heads” by
David Park, was sold for fees and is discussed in section D below.

9       Appellant contends, without citation to the record, that “all the assets of merit
came from Athena.” Appellant states that this includes all assets later rolled into IRAs,
insurance policies/plans purchased by Athena, all of the artwork, and respondents’
Huntington Beach trailer park investment. Appellant contends that all these assets should
have been found to be the sole and separate property of appellant. Appellant provides no
citations to any evidence supporting this claim. Respondent testified that she purchased
the artwork and was not reimbursed by Athena. The trial court was entitled to believe
her. Similarly, the evidence showed that respondent created and funded her IRA when
the parties were unmarried, and that she purchased the investment in Huntington Mobile
Estates using her personal income.
        Appellant has the burden to affirmatively show error, including deficiencies in the
evidence. When arguing insufficiency of the evidence, appellant is required to support
his argument with “a fair and adequate statement of the evidence which is claimed to be
insufficient.” (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409.) In the absence
of a clear argument supported by specific evidence, we decline to address these claims
further. (Ibid.)


                                            20
       We have previously addressed appellant’s argument that judgment should not have
been entered in the absence of compliance with section 2105. To the extent that these
issues were not addressed by the trial court, it was appellant’s obligation to raise them by
means of an appropriate and timely request. There is no error in the trial court’s
determination that respondent’s IRA, which was funded before marriage, constituted her
sole and separate property.10
       C. Artwork
       Respondent purchased over 50 pieces of art prior to the parties’ second marriage.
The trial court awarded these works to respondent as her sole and separate property “as
the evidence supports the fact that [respondent] purchased these pieces between
marriages and the [appellant] failed to prove that the money came from him.” There was
no error in the trial court’s determination that this personal property acquired by
respondent prior to marriage was her sole and separate property.
       Appellant argues that respondent produced no evidence of purchase; that the
evidence of her income at the time does not support the claim that she purchased all of
the art with her own money; and that no significant purchases took place after appellant
retired, suggesting that his income was the source of money for these purchases.
       As set forth above, we do not reweigh the evidence or assess credibility at the
appellate level. (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078).
The trial court was entitled to believe respondent’s testimony that she purchased the
artwork with her own money and that appellant never reimbursed her for any of the
artwork.
       D. The “Two Heads” painting
       The “Two Heads” painting was purchased by respondent and the pension plans in
June of 1983 for $9,372. Respondent paid $1,000 with a personal check and the pension
plans paid the balance. In June 1991, before the second marriage, appellant transferred



10   With the exception of the $8,000 that respondent was ordered to return to the
community.

                                             21
the Two Heads painting and three other pieces of art from Athena to himself in his
individual capacity.
       Two Heads was sold at auction after separation for $1 million, yielding a profit of
approximately $800,000. Pursuant to various stipulations of the parties, the money
obtained from the sale of Two Heads was used to pay attorney fees and costs incurred in
the dissolution action, subject to reallocation if necessary.
       In its final ruling on attorney fees, issued November 5, 2014, the trial court
determined that a reallocation of the proceeds of the sale of Two Heads was
inappropriate. The court stated: “From the court’s perspective, this painting was sold for
fees and the money, in excess of $800,000 has now been spent. Regardless of the
ownership of the painting, it is just in this matter that the fee award not be disturbed or
reallocated in any way. As a result, the court does not order reimbursement to any party
or the pension plan from the sale of this painting.”
       Appellant argues that because the court found no sharing agreement, the Two
Heads painting was his separate property. Thus, he argues, respondent owes him
reimbursement for the amount applied to her attorney fees from the sale. Appellant does
not specify how much of the $800,000 was spent on respondent’s attorney fees.
       Because the proceeds of the Two Heads painting were used for attorney fees, the
trial court’s decision not to require reallocation is reviewed for abuse of discretion. (Cruz
v. Ayromloo (2007) 155 Cal.App.4th 1270, 1274 [“[a] trial court order awarding attorney
fees is ‘reviewed using the abuse of discretion standard. [Citation.]’”], fn. omitted.) It is
appellant’s burden to show an affirmative showing of abuse of discretion, and we
presume that the court’s decision was correct. (Ibid.)
       Appellant has failed to show that the trial court abused its discretion in declining
to require a reallocation. Appellant’s argument is simply that because the trial court
determined that there was no sharing agreement, the Two Heads painting was his separate
property and thus respondent should be required to reimburse him $400,000. Appellant
glosses over the complexity of this issue. He fails to provide any information concerning
how much he spent on attorney fees, how much respondent spent on attorney fees, and


                                              22
utterly fails to argue in what way the trial court abused its discretion in determining that
no reallocation was necessary. Under the circumstances, we will not disturb the trial
court’s decision.
VI. Attorney fees
       The court noted that the fees in this matter were “very high and the issues
somewhat convoluted.” The court concluded: “On balance, the court feels that with one
limited exception, each party is obligated to bear their own fees in this matter.”
       The exception was the fees that respondent incurred to defend against the alleged
sharing agreement. The court stated: “There is no doubt that the [appellant] cost the
[respondent] fees to litigate the ‘mutual sharing’ agreement. . . . What evidence was put
on did not and cannot support an agreement for many reasons. . . . In light of the fact that
[appellant] persisted in the sharing agreement, even when there was truly insufficient
evidence to support it, the court awards fees from the [appellant] to the [respondent] in
the amount of $75,000 to be accounted for and paid as part of the equalization payment.”
       Appellant sought fees under section 271, which permits the trial court to base an
award of attorney’s fees and costs “on the extent to which the conduct of each party or
attorney furthers or frustrates the policy of the law to promote settlement of litigation.”
Appellant argued that the court should award him fees for respondent’s breach of
fiduciary duty in maintaining the position that the Beverly Hills home was her separate
property. The trial court agreed that appellant incurred fees “unnecessarily” on this issue.
However, the court concluded that “the amount of fees spent on this issue is far
overshadowed by the fees the [respondent] incurred in litigating the ‘mutual sharing
agreement.’” As a result, the court declined to award appellant any fees.
       It was well within the trial court’s discretion to determine that the amount of fees
respondent incurred defending against the alleged sharing agreement far outweighed the
amount of fees appellant incurred defending his interest in the Beverly Hills home.
Appellant provides no dollar amounts comparing the amount of attorney fees it cost each
party to litigate these issues. In the absence of an affirmative showing that the trial



                                             23
court’s attorney fee allocation was beyond the bounds of reason, we will not disturb it.
(Cruz v. Ayromloo, supra, 155 Cal.App.4th at p. 1274.)
       Appellant cites In re Marriage of Fossum (2011) 192 Cal.App.4th 336 (Fossum),
which held that a court does not have the discretion to deny fees to a spouse under section
1101, subdivision (g) where the other spouse has breached a fiduciary duty under section
721.11 The Fossum court held that the language of section 1101, subdivision (g) is
“unambiguous and mandatory.” (Id. at p. 348.) Because a breach of fiduciary duty under
section 721 had been shown by the wife’s action in charging money to a credit card
without disclosing the charge to her husband, the trial court erred in denying an award to
the husband for the attorney fees attributable to her violation. (Ibid.)
       Here, appellant is seeking fees because respondent took the position that the
Beverly Hills home was her separate property based on the title of the property.
Respondent’s position was wrong, as the Beverly Hills home was found to be community
property. Unlike the wife in Fossum, the record does not support a finding that
respondent undertook a transaction which specifically impaired a community asset in
violation of section 721. Nor did the trial court make any such finding. Thus, we find
the discussion of section 1101, subdivision (g) in Fossum to be inapplicable.12


11     Section 1101, subdivision (g) states: “Remedies for breach of the fiduciary duty
by one spouse, including those set out in Sections 721 and 1100, shall include, but not be
limited to, an award to the other spouse of 50 percent, or an amount equal to 50 percent,
of any asset undisclosed or transferred in breach of the fiduciary duty plus attorney’s fees
and court costs.”
       Section 721 provides, in part, that transactions between spouses “are subject to the
general rules governing fiduciary relationships that control the actions of persons
occupying confidential relations with each other.” (§ 721, subd. (b).)

12      In Fossum, the husband had caused the wife to quitclaim her interest in the
community residence to the husband to facilitate a lower interest rate on a refinance.
(Fossum, supra, 192 Cal.App.4th at pp. 338-339.) The court held that the residence was
presumptively community property because it was purchased during marriage, and found
that the wife’s quitclaim was subject to the rebuttable presumption of undue influence,
which the husband failed to rebut. (Id. at p. 345.) The court’s decision that the family
residence in Fossum was community property was affirmed on appeal. The trial court in

                                             24
       Appellant further argues that the trial court erred in finding section 1101,
subdivisions (g) and (h) inapplicable.13 Again, appellant refers to respondent’s claim that
the Beverly Hills home was her sole, separate property.
       Appellant has failed to provide a citation to the record showing that the trial court
considered or addressed the application of section 1101 to the facts of this case. “It is
well-established that ‘“[i]f a party fails to support an argument with the necessary
citations to the record, . . . the argument [will be] deemed to have been waived.
[Citation.]”’ [Citation.] This rule applies to matters referenced at any point in the brief,
not just in the statement of facts. [Citation.]” (Conservatorship of Kevin A. (2015) 240
Cal.App.4th 1241, 1253, fn. omitted.) Without reference to any discussion of this statute
in the record below, we decline to address appellant’s argument.
       We note that to the extent that the trial court made an implied finding that
respondent did not breach her fiduciary duties to appellant by impairing an asset,
appellant has failed to affirmatively show that such a finding was error. As explained
above, respondent’s action in refinancing the house to her name alone was apparently
undertaken as a condition of the refinance due to appellant’s lower credit score, not as an
act of fraud or breach of fiduciary duty. Appellant has failed to show error.




this matter reached the exact same conclusion under similar circumstances. Thus,
Fossum merely confirms the trial court’s action with respect to the community home, and
does not assist appellant’s argument that sanctions were warranted under section 1101.

13      Section 1101, subdivision (h), provides that where a spouse’s breach of fiduciary
duty falls within the ambit of Civil Code section 3294, remedies shall include an award to
the other spouse of 100 percent of any asset transferred in breach of the fiduciary duty.
The trial court found that respondent’s actions concerning the Beverly Hills house did not
rise to the level of a violation of Civil Code section 3294. Thus, Family Code section
1101, subdivision (h) is inapplicable.

                                             25
                                  DISPOSITION
      The judgment is affirmed. Respondent is awarded her costs of appeal.
      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



                                              ____________________________, J.
                                              CHAVEZ

We concur:



__________________________, P. J.
BOREN



__________________________, J.
ASHMANN-GERST




                                         26
