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On Behalf of | Feb 14, 2020 | Firm News

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In this marital dissolution action between Rosalinda Deluca and George Deluca, both parties appeal from a judgment determining the division of property and other matters, including spousal support. During the marriage, George’s sister transferred to him title to an apartment complex referred to in this case as the “Florida Street property” or simply “Florida Street.” Rosalinda contends the trial court erred in ruling the Florida Street property was George’s separate property rather than community property. George has custody of the parties’ two children and contends the court erred by awarding Rosalinda spousal support in an amount greater than his total net income available to support the children.

Specifically, he asserts the court erred by including the amount of monthly loan principal payments he is required to make on his income-producing properties as income available for spousal support.

Section 760 states that “[e]xcept as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property.” Commenting on this general rule, the court in In re Marriage of Haines (1995) 33 Cal.App.4th 277 explained: “A basic rule of a community property system is that all property acquired during marriage is community property unless it comes within a specific exception; the major exceptions to the basic community property rule are those relating to separate property. [Citation.]

Thus, there 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. [Citations.] This is a rebuttable presumption affecting the burden of proof; hence it can be overcome by the party contesting community property status. [Citation.] Since this general community property presumption is not a title presumption, virtually any credible evidence may be used to overcome it, including tracing the asset to a separate property source, showing an agreement or clear understanding between parties regarding ownership status and presenting evidence the item was acquired as a gift.” (Id. at pp. 289-290, fn. omitted.)

” ‘The status of property as community or separate is normally determined at the time of its acquisition.’ ” (In re Marriage of Buol (1985) 39 Cal.3d 751, 757 (Buol), quoting In re Marriage of Bouquet (1976) 16 Cal.3d 583, 591.) In general, “factual findings that underpin the trial court’s characterization of property as separate or community property are reviewed for substantial evidence.”  (In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 734.) However, de novo review is appropriate where ” ‘the determination in question amounts to the resolution of a mixed question of law and fact that is predominantly one of law.’ ” (Ibid..

“Permanent spousal support ‘is governed by the statutory scheme set forth in sections 4300 through 4360. Section 4330 authorizes the trial court to order a party to pay spousal support in an amount, and for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances set forth in section 4320.’ [Citations.] The statutory factors include the supporting spouse’s ability to pay; the needs of each spouse based on the marital standard of living; the obligations and assets of each spouse, including separate property; and any other factors pertinent to a just and equitable award. (§ 4320, subds. (c)-(e), (n).) ‘The trial court has broad discretion in balancing the applicable statutory factors and determining the appropriate weight to accord to each, but it may not be arbitrary and must both recognize and apply each applicable factor.’ ” (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1442-1443.) Failure to consider each applicable factor is reversible error. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.)

In the unpublished portion of this opinion the Court of Appeal reverses that part of the judgment awarding the Florida Street property to George as his separate property and remand with directions to determine the amount of reimbursement credit to which George is entitled for Florida Street, as well as to consider George’s new contention that he should be awarded a fractional separate property interest in the property. In the published portion of this opinion the California Court of Appeal also reverses the spousal support award and direct the trial court to reconsider the amount of support after determining the extent to which George’s loan  principal payments reasonably and legitimately reduce his income for purposes of support. The California Court of Appeal otherwise affirms the judgment.

See In re the Marriage of De Luca.

If you are involved in an acrimonious type divorce, custody or support battle, or family law matter, you need an experienced and capable attorney on your side. Contact the Law Office of Robert Rodriguez! Call (209) 596-4264 or 510-736-4033 immediately!

Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, wrongful termination, workplace and employment matters including sexual harassment, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

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