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In Re the Marriage of Evelyn J. Haqq-Hall and Timothy H. v. Timothy H. Hall

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT


December 28, 2010

IN RE THE MARRIAGE OF EVELYN J. HAQQ-HALL AND TIMOTHY H. HALL. EVELYN J. HAQQ-WHITE, RESPONDENT,
v.
TIMOTHY H. HALL, APPELLANT.

Super. Ct. No. FL331373

The opinion of the court was delivered by: Raye, P.J.

Marriage of Haqq-Hall and Hall CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115

San Joaquin

Husband Timothy H. Hall appeals from an order wherein the trial court found real property, purchased by wife Evelyn J. Haqq-Hall during the parties' marriage, was her separate property. Consequently, the court ruled that any money received through refinancing the property was Evelyn's separate property. We shall affirm the court's order for the reasons discussed below.

FACTUAL AND PROCEDURAL BACKGROUND

On appeal, Timothy has elected to designate only a clerk's transcript. (Cal. Rules of Court, rule 8.121.) Thus, the record does not include a reporter's transcript of the hearing in this matter. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083 (Allen); Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)

The limited record we have been provided establishes the following: Injured in 1986 while working as a brakeman for the United States Navy, Timothy received monthly worker's compensation benefits through the Federal Employees Compensation Act (FECA; 5 U.S.C. § 8101 et seq.) and disability benefits from the Veteran's Administration (VA).

Timothy and Evelyn were married in August 1998. In May 1999 Timothy was sentenced to prison for a felony conviction. While Timothy was incarcerated, Evelyn received from the Secretary of Labor a percentage of Timothy's FECA benefits pursuant to section 8148(b)(3) of title 15 of the United States Code.

In January 2000, while Timothy was in prison, Evelyn bought a house. Evelyn made the down payment on the house with a monetary gift from her parents. Title to the house was recorded as Evelyn's sole and separate property. The following month, Timothy executed a grant deed, transferring any and all of his interest in the house to Evelyn. Mortgage payments on the house were then made with a combination of Evelyn's own disability payments and the money she was receiving as FECA benefits from the Secretary of Labor.

In December 2006 Timothy was released from prison. Evelyn served defendant with a petition for dissolution on March 2, 2007, alleging the date of separation to be May 7, 1999.*fn1 Timothy responded, alleging the date of separation to be March 9, 2007.

A status only judgment was entered on August 16, 2007, reserving determination on the date of separation, spousal support, and the division of community property. The court subsequently determined the date of separation to be March 9, 2007, reserving the issue of property division for a later hearing.

Prior to trial, Timothy and Evelyn each filed trial briefs identifying the numerous issues to be litigated. Supplemental briefs were then filed on the sole issue of whether the community had an interest in the real property purchased by Evelyn during Timothy's incarceration. Timothy argued the mortgage payments on the house were made with community property, including the money paid to Evelyn by the Secretary of Labor during the period of Timothy's incarceration. Thus, he argued, he was entitled to 50 percent of the $92,000 Evelyn received from refinancing the house, along with any growth in that money as a result of Evelyn's investments.

Evelyn argued the money paid to her by the Secretary of Labor during Timothy's incarceration was her separate property because, pursuant to section 8148(b) of title 5 of the United States Code, Timothy forfeited the right to those benefits when he was convicted of a felony and incarcerated. Thus, she argued, he also was precluded from benefitting from that money after he was released from prison.

The court agreed with Evelyn, finding the money paid to her by the Secretary of Labor was "in the nature of derivative benefits for the family," and thus Evelyn's separate property. The court further explained that "[Timothy's] current effort to receive some interest in the property would amount to benefitting from payments that were forfeited if the amounts received by [Evelyn] were considered community property earnings."

Fifteen days later, Timothy filed a "Request to Modify Order." In his request, Timothy asked the court to delete language from its order, arguing the court ruled on issues not litigated at trial. Evelyn opposed the request, arguing there was no authority for the motion, which was, in her opinion, without merit.

The following month, Timothy appealed from the court's August 18, 2009, order as well as his "Request to Modify" that order. The record on appeal does not include an order on Timothy's "Request to Modify."

DISCUSSION

When an appeal is "on the judgment roll" (Allen, supra, 172 Cal.App.3d at pp. 1082-1083), we must conclusively presume evidence was presented that is sufficient to support the court's findings (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154 (Ehrler)). Our review is limited to determining whether any error "appears on the face of the record." (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; see Cal. Rules of Court, rule 8.163.)

At the outset we address Evelyn's argument that Timothy has appealed from a non-appealable order. Specifically, she contends the August 18, 2009, order (the August order) is not appealable because it is not final. She argues it is not final because at the time the appeal was filed, the court had not yet ruled on Timothy's "Request to Modify" the August order. Timothy's request, which is not supported by any authority, does not impact the finality of the court's August order. The August order is an order after judgment and is appealable pursuant to Code of Civil Procedure, section 904.1, subdivision (a)(2).

Timothy contends the trial court erred in refusing to award him an interest in the proceeds Evelyn received from refinancing the house purchased in part with the FECA benefits she received during his incarceration.*fn2 Evelyn argues that Timothy is not entitled to an interest in the refinancing proceeds because FECA's forfeiture provision, section 8148 of title 5 of the United States Code, precludes Timothy from benefitting from the money paid to Evelyn by the Secretary of Labor while Timothy was incarcerated.

Section 8148 of title 5 of the United States Code, entitled "Forfeiture of benefits by convicted felons," provides as follows: "(a) Any individual convicted of a violation of section 1920 of title 18, or any other Federal or State criminal statute relating to fraud in the application for or receipt of any benefit under this subchapter or subchapter III of this chapter, shall forfeit (as of the date of such conviction) any entitlement to any benefit such individual would otherwise be entitled to under this subchapter or subchapter III for any injury occurring on or before the date of such conviction. Such forfeiture shall be in addition to any action the Secretary may take under section 8106 or 8129.

"(b)(1) Notwithstanding any other provision of this chapter (except as provided under paragraph (3)), no benefits under this subchapter or subchapter III of this chapter shall be paid or provided to any individual during any period during which such individual is confined in a jail, prison, or other penal institution or correctional facility, pursuant to that individual's conviction of an offense that constituted a felony under applicable law.

"(2) Such individual shall not be entitled to receive the benefits forfeited during the period of incarceration under paragraph (1), after such period of incarceration ends.

"(3) If an individual has one or more dependents as defined under section 8110(a), the Secretary of Labor may, during the period of incarceration, pay to such dependents a percentage of the benefits that would have been payable to such individual computed according to the percentages set forth in section 8133(a)(1) through (5)." (Italics added.)

We need not resolve this complex legal issue in this appeal. Even assuming Timothy is correct and he is entitled to an interest in the refinancing proceeds obtained by Evelyn, the trial court found the "great majority" of the proceeds went to "improvements" in the home, and the debt secured by the home exceeded the home's value. Consequently, the court ruled, there was no asset to divide. Without a reporter's transcript, we "'must conclusively presume that the evidence is ample to sustain [these] findings . . . .' [Citations.]" (Ehrler, supra, 126 Cal.App.3d at p. 154.) That is, the law compels us to assume the evidence presented to the trial court supports its decision that the refinancing proceeds were reinvested in the home, which Timothy concedes has no value.*fn3

At oral argument, Timothy argued the trial court's ruling left open the possibility that at least some of the refinancing proceeds were invested somewhere other than the home. Thus, he contends, Evelyn is obligated to trace at least those proceeds. We disagree.

At trial, Timothy argued, as he does here, that Evelyn diverted the equity of the home to other property, making it irrelevant that the home was a zero asset because the proceeds may be found elsewhere. In response to Timothy's claim, the court ruled that "the balance on the current mortgage is far in excess of current fair market value for the property - there is no equity to divide even if it was determined that the home was at least partially community property. The Court can find no authority for requiring wife to account for funds she may have received through refinancing prior to separation. It is her position that the great majority of those funds went for improvements, and there is no contrary evidence. Husband is not entitled to any interest in the residence property."

On appeal, "'[a]ll reasonable inferences are to be indulged to support the findings and verdict.'" (Lincoln v. Averill (1941) 47 Cal.App.2d 335, 337.) When considered in the context of the issues before the trial court, the more reasonable inference to be made from the court's ruling is not that proceeds were left unaccounted for, as Timothy contends, but that all of the proceeds were reinvested into the home -- now a zero asset. That only a "great majority" of the proceeds were used for improvements does not foreclose the inference that whatever proceeds were left were used for something other than improvements, i.e., maintenance. To find otherwise would result in a trial court order that failed to address one of the primary issues raised by Timothy: whether the refinancing proceeds were diverted from the home.

Timothy further contends the parties agreed to "expressly limit[] the residential property division issue at trial to determination of whether [Timothy] had an interest in the real property." There is no evidence of such an agreement in the record. Accordingly, his contention fails.

DISPOSITION

The trial court order is affirmed. Evelyn shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

We concur:

BLEASE,J.

SIMS, J.*fn4


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