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In Re the Marriage of Rod R. and Donna L. Hogue. v. Donna L. Hogue

November 9, 2011


(Super. Ct. No. SDR0027759)

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

Marriage of Hogue



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Petitioner Rod Hogue challenges the trial court's characterization of an escrow account as community property and the award of the account to him in the division of the community assets of his 27-year marriage despite his failure to comply with court orders to provide an accounting, his failure to introduce sufficient evidence at trial to rebut the presumption the asset was community property, and his failure on appeal to provide a reporter's transcript of the entire trial. On this paltry record, we must affirm the judgment.


During their lengthy marriage, Rod and Donna Hogue achieved a moderately high standard of living with a large home in Granite Bay, a boat, a motor home, a second home in Kona, Hawaii, and a business that provided a stable source of income including income to invest in development property and stock accounts. By 2006, when Rod petitioned the court for a dissolution of the marriage, however, their lives were unraveling. By the time of trial in 2009, their son, an Iraq war veteran, had committed suicide, Rod had been arrested for violating a restraining order, their homes had no value, Donna alone operated the family business, and Rod had either encountered and/or caused major obstacles to developing 24 acres of land in Granite Bay.

This appeal involves, however, a solitary escrow account. The relevant facts pertain only to this account. The parties owned 24 acres of undeveloped property known as the Granite Lakes East project. Rod managed the development of the property. Before the parties separated in 2006, Russel Kuhn and John Masha deposited $950,000 into a Placer Title escrow account to provide the funds for development. The development hit many snags for a variety of reasons, and as a result, the court found that the value of the project at the time of trial was zero.

As for the escrow account, we are hampered by Rod's failure to account for his unilateral withdrawals and to present evidence at trial. Shortly after separation, Donna requested, and Rod was ordered to provide, an accounting of all disbursements made from the account. Yet the trial court found that "[f]or nearly three years, despite repeated reminders and requests to produce such an accounting, he failed and refused to do so. As late as 45 days before the trial, Rod maintained in a declaration to the court that: (1) the funds were not community, and (2) that Donna's possession of an escrow statement (exhibit 59) showing the persons to whom draws and withdrawals were made was a sufficient accounting." (Fn. omitted.)

Nevertheless, at the outset of trial, the court denied Donna's motion in limine to bar Rod from presenting evidence regarding the withdrawals from the Placer Title account as a sanction for his flagrant disregard of the court orders during discovery. (Code Civ. Proc., § 2023.010, subd. (g).) Donna also requested the court to charge the proceeds in the escrow account entirely to Rod except for those amounts traced to the community property joint checking account. The court initially denied this request as well, without prejudice.

There is only a partial reporter's transcript of part of the first day of trial. Many of the exhibits referred to by Rod were never introduced into evidence at trial. The court eventually ruled: "The court denied each of these motions without prejudice, but allowed the issues and requests to remain open during the course of the trial to determine, upon hearing the evidence, whether those motions should be granted. After having heard the evidence and arguments of counsel, the court now finds that the motions are well-taken and each is now granted. Evidence presented by Rod regarding withdrawals from the Placer Title escrow account is hereby stricken, and Rod is charged with the net amount of funds received and not otherwise accounted for. As a result, Rod is granted the entirety of the escrow account proceeds as his distribution of community property, save and except those amounts which Donna was able to verify and agree were legitimate withdrawals. The net amount to be attributed to Rod is $840,332.00."

Much to Rod's disappointment, Donna was awarded the Aquatique Pool Business she had been operating pursuant to court order for several years. The court found Rod had "actively sought to damage" the business, sowed seeds of dissension, and deliberately attempted to influence employees to "side with him." The court determined that "awarding this business to Rod would place the principal asset of the community in the hands of a spouse who failed to make any genuine effort at accounting for substantial sums over which he had control for the Granite Lakes East project. His failure to do so renders his reliability as an obligor to Donna in substantial doubt."

Rod appeals. He contends the escrow account was not community property as a matter of law, and the distribution of the entirety of the escrow account to him constitutes an abuse of discretion as does the granting of Donna's in limine motion at the conclusion of trial. The threshold question is ...

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