Marriage of Spath CA4/1

California Court of Appeal · D066279 · 2015-10-20 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. ED74039
Trial judge: Steven E. Stone
Outcome: modified — Affirmed as modified.
Area: family
Panel: Patricia D. Benke (author), Richard D. Huffman, Sr., Gilbert Nares

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T02:54Z · confidence high

The trial court ordered the appellant to reimburse the respondent the full $29,140 amount he borrowed from a community home equity line of credit, in addition to a separate equalization payment. The Court of Appeal modified the order to require reimbursement of only $14,570, holding that the respondent was entitled to only half of the community credit for the debt, and affirmed the order in all other respects.

Ruling reviewed	Standard	The court	The model
Order requiring appellant to reimburse respondent $29,140 for HELOC borrowings “Nothing on the face of the record or in any principle of law to which we have been cited, or are otherwise aware, supports giving Patricia more than credit for one-half of what Brian borrowed.”	de novo	error	agree with court The trial court erred by awarding the respondent the full amount of the community debt credit rather than her one-half share. Because the home was community property and the proceeds were to be divided equally, the community was entitled to a credit for the debt, but the respondent could only claim her half of that credit absent a showing of 'calculated thievery' under Family Code section 2602, which was not present here. The appellate court correctly identified this as a legal error apparent on the face of the judgment roll, allowing it to be corrected despite the limited record.

Authorities

relied: Ehrler v. Ehrler (1981) 126 Cal.App.3d 147 — On appeal from a judgment roll without a transcript, the court must conclusively presume that the evidence is ample to sustain the trial court's findings.
relied: Estate of Fain (1999) 75 Cal.App.4th 973 — Where no reporter's transcript is provided, the judgment is presumed correct as to evidentiary matters, precluding arguments regarding the sufficiency of the evidence.
relied: Stauffacher v. Stauffacher (1964) 227 Cal.App.2d 735 — Appellate courts may correct errors that appear on the face of the judgment roll even when the record is limited to the judgment roll.
relied: In re Marriage of Schultz (1980) 105 Cal.App.3d 846 — Family Code section 2602 permits an exception to the equal division of community property in cases of 'calculated thievery' by one spouse.

The appellate opinion: sound — The opinion is sound because it correctly applies the legal principle that a spouse is entitled to only half of a community credit for debts incurred by the other spouse, absent a showing of 'calculated thievery' under Family Code section 2602. It properly distinguishes between the community's right to a credit for the debt and the individual spouse's right to reimbursement, ensuring the final division remains equitable under Family Code section 2550.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

Following sale of the former family home, the trial court ordered that, from the net sale proceeds, husband pay wife a $25,000 equalization payment required by the prior judgment plus a $29,140 credit because he had drawn that sum from a home equity line of credit without wife's consent. On husband's judgment-roll appeal, the Court of Appeal presumed the factual findings correct but held that error appeared on the face of the order because wife was entitled to only one-half of the community's $29,140 credit, and modified the order to a $14,570 credit, affirming in all other respects.

Ruling reviewed	Standard	The court	The model
Finding that husband borrowed $29,140 from the post-separation HELOC without wife's consent, diminishing the community interest in the home “The trial court found that Brian borrowed $29,140 from the HELOC, without Patricia's consent.”	substantial evidence	correct	agree with court Husband supplied no reporter's transcript, so under Ehrler and Estate of Fain the appellate court was required to presume the evidence supported the finding; husband was precluded from attacking its sufficiency. The court correctly applied the judgment-roll presumption.
Ordering husband to pay wife the full $29,140 HELOC draw from the sale proceeds, in addition to the equalization payment “While the community was therefore entitled to a credit of $29,140, at most Patricia was entitled to one-half of that credit, or $14,570.”	de novo	error (law misapplied)	agree with court Because the home proceeds were to be divided equally as community property, husband's unauthorized $29,140 draw is a community asset already in his hands; charging it to his share yields wife an additional $14,570, not $29,140. Awarding the full amount gives wife a windfall absent a finding supporting an unequal division under Family Code section 2602 or a 100 percent award under section 1101, subdivision (h), and the order on its face contains no such finding. The court's arithmetic and reliance on section 2550 are correct, though it did not discuss section 1101 and its statement that this was not 'calculated thievery' sits somewhat uneasily with the judgment-roll presumption.
Requiring husband to make the $25,000 equalization payment to wife from the sale proceeds as directed in the prior judgment “Brian did not and does not dispute the required $25,000 equalization payment, which was required both by the earlier judgment and the order he now challenges.”	unclear	correct	agree with court The payment was undisputed and mandated by the earlier judgment; the court affirmed this portion of the order without analysis, which is appropriate where no challenge is raised.

Authorities

relied: Ehrler v. Ehrler (1981) 126 Cal.App.3d 147 — On a judgment-roll appeal without a transcript of oral proceedings, the reviewing court must conclusively presume the evidence is ample to sustain the trial court's findings.
relied: Estate of Fain (1999) 75 Cal.App.4th 973 — Where no reporter's transcript is provided and no error appears on the face of the record, the judgment is conclusively presumed correct as to evidentiary matters and appellant cannot challenge sufficiency of the evidence.
relied: Stauffacher v. Stauffacher (1964) 227 Cal.App.2d 735 — Error appearing on the face of the judgment roll may be corrected on appeal even without a reporter's transcript.
relied: In re Marriage of Schultz (1980) 105 Cal.App.3d 846 — The statutory exception permitting an unequal division of community property for deliberate misappropriation is reserved for 'calculated thievery,' not ordinary post-separation use of community funds.
missed: In re Marriage of Rossi (2001) 90 Cal.App.4th 34 — Under Family Code section 1101, subdivision (h), a spouse whose breach of fiduciary duty regarding community assets involves fraud, oppression, or malice may be ordered to pay the other spouse 100 percent of the asset; the court did not consider whether this provision could have supported the full $29,140 award.

The appellate opinion: sound with gaps — The court correctly applied the judgment-roll presumption and correctly reasoned that, under Family Code section 2550, wife's share of a $29,140 community credit is $14,570, so the result is defensible. It did not address Family Code section 1101's 50 and 100 percent remedies for breach of fiduciary duty, and its conclusion that the facts did not amount to 'calculated thievery' under section 2602 relies on characterizing an unreported record it had just said must be presumed to support the trial court.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 10/20/15 Marriage of Spath CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of PATRICIA DORIS and BRIAN FREDERICK SPATH. D066279 PATRICIA DORIS SPATH, Respondent, (Super. Ct. No. ED74039)

BRIAN FREDERICK SPATH,

Appellant.

APPEAL from an order of the Superior Court of San Diego County, Steven E.

Stone, Judge. Affirmed as modified.

Brian Frederick Spath, in pro. per., for Appellant.

Roy Estolano for Respondent.

In this marital dissolution case, the record establishes that after the parties separated, appellant appropriated $29,140 in community assets for his own use. Accordingly, he was required to reimburse respondent approximately $14,570. However, the trial court's order has the effect of requiring that appellant reimburse respondent the entire $29,140. Accordingly, we must modify the trial court's order so that it requires reimbursement to respondent of $14,570. The trial court's order is otherwise proper and thus, as modified, we affirm it.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Brian Spath (Brian) has elected to proceed on appeal with a record that is limited to: 1) the trial court's findings and orders requiring the reimbursement he challenges; 2) a document he offered at the hearing on the reimbursement issue; 3) his notice of appeal, a designation of record and an amended designation of record. Brian elected not to provide us with a transcript of the trial court's oral proceedings.

The trial court's order, entered following the reimbursement hearing, indicates that, under the terms of a prior judgment of dissolution, the parties were ordered to sell the family home and divide the proceeds evenly, subject to the requirement that, from the proceeds, Brian make an equalization payment of $25,000 to respondent Patricia Spath.

The trial court's order further states the sale of the home produced $281,130.16 in net proceeds, which was being held in escrow.

Brian did not and does not dispute the required $25,000 equalization payment, which was required both by the earlier judgment and the order he now challenges.

However, the apparent subject of dispute, both in the trial court and on appeal, is the trial court's treatment of Brian's use of a home equity line of credit (HELOC).

2 After the parties separated, they obtained the HELOC, which was apparently secured by the family home. The trial court found that Brian borrowed $29,140 from the HELOC, without Patricia's consent. In light of that finding, the trial court ordered that in addition to the $25,000 equalization payment, Brian was required to pay Patricia, from the net proceeds of the sale, $29,140.

Brian filed a timely notice of appeal.

DISCUSSION

Where, as here, we have no record of the oral proceedings before the trial court, and appellant has thereby elected to proceed on the judgment roll, our review is limited.

On such appeals, we " 'must conclusively presume that the evidence is ample to sustain the [trial court's] findings.' " (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]"

(Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Thus, we must presume that all of the trial court's factual findings were supported by sufficient evidence and that all of its subsidiary rulings were within its discretion, or that any objection to them was waived by 3 appellant. Nonetheless, where error appears on the face of the judgment roll presented, we may correct it. (Stauffacher v. Stauffacher (19) 227 Cal.App.2d 735, 737.)

Here, error does appear on the face of the trial court's order. Although the earlier judgment to which the trial court referred is not in the record on this appeal, neither party disputes that, as stated by the trial court, the earlier judgment requires that the proceeds of the sale of the family home be evenly divided. The only inference permissible from the required even distribution is that, as is the case in many dissolution cases, the family home was community property. Importantly, there is nothing in the record that suggests or would support an inference that the proceeds of the sale were Patricia's separate property or that for some other reason the proceeds of the sale were to be treated other than as community property and therefore evenly divided. (See Fam. Code, § 2550.)

Plainly, by borrowing from the HELOC, Brian diminished the community's interest in the home by $29,140. While the community was therefore entitled to a credit of $29,140, at most Patricia was entitled to one-half of that credit, or $14,570. (See Fam.

Code, § 2550.) Nothing on the face of the record or in any principle of law to which we have been cited, or are otherwise aware, supports giving Patricia more than credit for one-half of what Brian borrowed. In this regard, although the trial court found that Brian used the HELOC without Patricia's consent, in light of the fact that the record shows that upon sale of the home there were more than sufficient funds to protect Patricia's interest in the home and its proceeds, this was not a case of the "calculated thievery," which, 4 under Family Code section 2602, permits an exception of the equal division of community property otherwise required by Family Code section 2550. (See In re Marriage of Schultz (1980) 105 Cal.App.3d 846, 855.) Thus, the trial court's order must be modified to provide Patricia a credit of $14,570 payable from Brian's portion of the sale proceeds.

DISPOSITION

The trial court's order is modified to reduce the $29,140 credit provided to Patricia to the sum of $14,570. In all other respects, the order is affirmed. Each party to bear their own costs of appeal.

BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

NARES, J.

Cites, in this corpus

In Re Estate of Fain B119122 · 1999-10-21
Ehrler v. Ehrler Civ. 19168 · 1981-11-03
In Re Marriage of Schultz Civ. 56081 · 1980-05-16
Stauffacher v. Stauffacher Civ. 21604 · 1964-06-10