Marriage of M.D.N. and A.D.N. CA1/4 filed 6/30/26

Filed 6/30/26 Marriage of M.D.N. and A.D.N. CA1/4
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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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re Marriage of M.D.N. and A.D.N.

M.D.N.,
Plaintiff and Appellant,
v.
A.D.N.,
Defendant and Respondent.

A171022

(San Francisco City & County
Super. Ct. No. FDI13780367)

Plaintiff M.D.N. appeals from a judgment that resolved issues of property characterization, reimbursement, spousal and child support, and sanctions in the marital dissolution proceeding between the parties. For the reasons explained herein, we reject most of M.D.N.’s claims on appeal. We will, however, reverse and remand for a redetermination on A.D.N.’s request for Family Code section 271 sanctions and for clarification regarding the court-ordered “50% sanctions” under section 1101, subdivision (g). In all other respects, we affirm the judgment.
BACKGROUND
The parties were married in 2001, and M.D.N. petitioned for dissolution of marriage on October 30, 2013. The parties have one son. On October 31, 2013, M.D.N. filed a request seeking orders for child custody, child support, visitation, spousal support, attorney fees and costs, and a “DV restraining order; move out order” (October 2013 RFO). That same day, M.D.N. filed a separate request for a domestic violence restraining order (DVRO).A.D.N. filed a response, and the court issued temporary domestic violence restraining orders in November and December 2013.
On December 20, 2013, and February 4, 2014, the court held hearings on the permanent DVRO request. At the conclusion of these hearings, the court issued a three-year DVRO against A.D.N. after finding he had assaulted M.D.N. The court issued its written three-year DVRO on March 20, 2014, expiring on February 4, 2017. The court renewed the DVRO in 2017 for a five-year term.
Meanwhile, on January 9, 2014, the court held a hearing on the October 2013 RFO for child support, spousal support, and attorney fees. The court took up temporary spousal support at the hearing and reserved on child support and attorney fees. The court made an order for temporary spousal support, reserved jurisdiction to modify temporary spousal support upwards or downwards, and set a long cause hearing for February 14, 2014. The court stated it would take up further evidence and argument on the issue of attorney fees at the February 14, 2014, hearing.
The court issued the “Findings and Order After Hearing” for the January 9, 2014, hearing on March 5, 2014 (March 2014 FOAH). The March 2014 FOAH ordered A.D.N. to pay spousal support to M.D.N. of $6,162 per month, effective October 31, 2013. The order stated that a long cause hearing on the issue of temporary spousal support, child support and attorney fees was set for February 14, 2014, and the court reserved jurisdiction to retroactively modify the amount of spousal support upwards or downwards with retroactivity reserved to the date M.D.N. filed her initial notice for support and attorney’s fees.
Meanwhile, the long cause hearing set for February 14, 2014, was continued multiple times, with the parties eventually agreeing to the appointment of a temporary judge to resolve the issues that were to be determined at the long cause hearing. The parties participated in a settlement conference in August 2014 and resolved the issues of temporary spousal support, child support, and attorney fees. The court entered a “Stipulation and Order Regarding Temporary Spousal Support, Child Support, and Other Issues,” on December 31, 2014 (December 2014 order).
Trial in this matter proceeded in two phases many years later. In the 2022 phase 1 trial, the court addressed the characterization and division of community property, child and spousal support arrears, permanent spousal support, and separate property reimbursement claims. The court issued a tentative statement of decision, and the parties submitted objections.
In the phase 2 trial in June 2023, the court heard additional evidence on child support and spousal support arrears, child support add-ons, an issue of characterization of debt, A.D.N.’s request for section 271 attorney fees and costs, and the allocation of rents that had been received by M.D.N. post-separation from a condominium at the Four Seasons (unit 31F), a property that the court determined was community property after the phase 1 trial.
The parties objected to the court’s proposed statement of decision for phases 1 and 2, and the court issued its final statement of decision in May 2024. M.D.N. appealed from the court’s subsequent judgment.
DISCUSSION
M.D.N. raises numerous issues in this appeal and we discuss each separately post, incorporating additional relevant facts into our discussion of each issue.
Payments under the DVROs and Credits for Preserving a Community Asset
Additional Background
M.D.N. and A.D.N. purchased unit 31F in 2003. The 2014 DVRO required A.D.N. to move out of unit 31F and to pay the monthly mortgage ($6,400/month) to Chase and the home owner’s association (HOA) fees ($2,300/month) to the HOA. The 2017 renewed DVRO incorporated this same order. A.D.N. did not pay these amounts. M.D.N. moved out of unit 31F and signed a one-year lease to rent unit 31F starting on February 2, 2014, for $17,000 a month, and she continued to rent the unit thereafter.
The mortgage and HOA payments under the DVROs and unit 31F’s rental profit were issues at trial. M.D.N. acknowledged in her trial brief that A.D.N. could claim reimbursements for her use and rental of unit 31F, citing In re Marriage of Watts (1985) 171Cal.App.3d 366 (Watts) and In re Marriage of Epstein (1979) 24Cal.3d 76 (Epstein), but she argued that any reimbursement would be unreasonable because of A.D.N.’s failure to pay the mortgage and HOA fees under the DVROs, and because M.D.N. had to incur costs to rent an apartment. A.D.N. argued that, per Watts, he could seek to charge M.D.N. with the fair rental value of unit 31F given her exclusive use, and he was entitled to half the rents from unit 31F. He stated, “The equitable result would be to subtract the mortgage and HOA dues from rents received and divide any surplus rental income evenly between the parties. To the extent [unit 31F] sat vacant for any period of time or was rented at below-market rent, M.D.N. should be charged with the fair rental value for those periods because she had exclusive use and possession of the property.”
The court’s tentative statement of decision for the phase 1 trial ordered A.D.N. to pay M.D.N. for the mortgage and HOA fees under the DVROs, for the period of November 1, 2013, through January 31, 2022, for a total of $826,500. The court reserved additional trial days to adjudicate the allocation of rents for unit 31F.
During the phase 2 trial, the parties presented competing analyses regarding the cash flow from the rental of unit 31F. A.D.N.’s expert, Lucy Chung, presented trial exhibit 542, a table totaling the rent received for unit 31F and deducting expenses. To conducther analysis, Chung used M.D.N.’s tax returns and a profit and loss statement that M.D.N. produced for 2022 and 2023. Chung deducted the expenses for unit 31F from the rental income and calculated a net cash flow. She explained that she did not include the mortgage and HOA payments as an expense in her net cash flow analysis, because, pursuant to the court’s tentative statement of decision, A.D.N. had been ordered to pay those expenses. For the total time period at issue, Chung calculated that M.D.N. received $978,534 net cash flow, and A.D.N.’s share was $489,267. Interest on this amount totaled $200,030.
M.D.N. prepared her own summary of income and expenses for unit 31F, using her tax returns as a reference. She conceded that she was “not the best bookkeeper” and estimated there were more expenses than she had listed. She calculated that she incurred $335,623.71 in loss on renting unit 31F. Among other things, M.D.N. included in her analysis an “other” category, which listed a $48,928.64 payment that she made to take the property out of foreclosure in 2014.
On cross-examination, Chung conceded that she had not included the expenses M.D.N. had listed for supplies, moving/storage, parking, postage, shipping, and travel. Chung testified that she had included expenses claimed on M.D.N.’s tax returns that appeared reasonable in her professional judgment, and she excluded costs claimed on the tax returns that did not appear to reasonably relate to the rental of the apartment where M.D.N. had not produced back-up documentation.
The court issued a proposed statement of decision denying the claim for rental income for unit 31F and interest and the claim for amounts due under the DVROs. M.D.N. objected, requesting that the court indicate that $826,500 was due under the DVROs, and maintaining that the court must consider the net rental income on unit 31F after all carrying costs if the court had decided to call the payments under the DVROs and the rental income claims “a wash.”
On these issues, the court’s final statement of decision provides: “[M.D.N.’s] testimony, which the court finds credible, is that the rents were used primarily to pay for the condo mortgage, [the parties’ son’s] private school tuition, living expenses for herself and [their son], and expenses related to the maintenance of the Bulgarian properties after the parties separated.” The court noted that A.D.N. conceded he had not paid the mortgage or HOA fees after he moved out, and the court found that the evidence supported the conclusion that M.D.N. collected rents of various amounts during that time and used the rental income to pay for the mortgage, HOA fees, brokers fees, parking, storage, maintenance of the condo, and to supplement her living expenses.
The court continued, “[M.D.N.] seeks payments from [A.D.N.] for the mortgage and HOA fees from November 1, 2013, through entry of judgment. Her claim ignores the rents collected and used to pay the mortgage and HOA fees from 2014 through November 2023. The court finds that [M.D.N.’s] actions of renting the condo and using the rents received to pay the mortgage principal and interest, property taxes, HOA fees, broker’s commissions, cleaning fees, maintenance, parking, and storage fees, served to preserve the community property asset. [¶] Family law cases are equitable proceedings in which the court must have the ability to exercise discretion to achieve fairness and equity. (In re Marriage of E[g]edi (2001) 88 Cal.App.4th 17, 22–23.) [A.D.N.] failed to pay for the mortgage and HOA fees, and [M.D.N.] decided to use the proceeds from the rents to pay for the mortgage, HOA fees, maintenance, and living expenses. [M.D.N.] should not be financially penalized for using the rents to support herself and [the parties’ son] post separation. ‘Those who seek equity, must do equity and have clean hands.’ (In re Marriage of Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 38.) [¶] [A.D.N.’s] hands are not entirely clean in this situation, and any other result would be patently unfair. Accordingly, the court denies [M.D.N.’s] request for mortgage payments and HOA fees for Unit 31F and [A.D.N.’s] request for $709,899 ($489,267 in principal and $220,632 in simple interest at 10% per annum) for rents received from the condo. The court finds that the rents were used to preserve the community property asset and pay for ongoing mandatory child-support add-ons for unreimbursed medical and dental expenses, tutoring, piano lessons, and discretionary expenses for private school tuition.”
Analysis
M.D.N. maintains that the trial court erred by failing to require A.D.N. to pay her $843,900 for the mortgage and HOA payments he did not make under the DVROs and by impliedly denying her Epstein credits for the alleged $335,623 loss she incurred to maintain unit 31F and her $505,450 in housing costs. (Epstein, supra, 24 Cal.3d at pp. 83–84 [court may order reimbursement for spouse who uses separate property funds postseparation to improve community asset or pay preexisting community obligations].) For the reasons set forth post, we reject M.D.N.’s claims.
Addressing the Epstein claims first, M.D.N.’s evidence did not compel a finding that she incurred a $335,623 loss in maintaining unit 31F. (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2026), § 8:843.1 [requesting spouse has burden to establish Epstein credits and demonstrateseparate propertyfunds were used]; Patricia A. Murray Dental Corp. v. Dentsply Internat., Inc. (2018) 19Cal.App.5th 258, 270 [setting forth appellate standard where burden of proof not met].) M.D.N. presented a self-composed profit and loss summary, her tax returns listing certain rental expenses, receipts from the bank holding the mortgage for many (but not all) mortgage payments, the check used to take unit 31F out of foreclosure, and two emails that listed monthly HOA fees for 10 years and costs related to parking for two years. M.D.N. conceded that she was “not the best record-keeper,” and she did not provide documentation showing the actual payments for many of her claimed expenses. The court credited M.D.N.’s testimony that unit 31F’s rents were used to pay the property’s expenses, but the court did not expressly credit the specific amounts of expenses that M.D.N. claimed in her profit and loss summary. And the court determined that M.D.N. did not testify truthfully on other issues. In addition, the court implicitly rejected M.D.N.’s contention that she suffered significant losses on her rental and upkeep of unit 31F, as the court specifically found that she used the rental income for expenses other than the condominium, such as tutoring, piano lessons, and private school tuition for the parties’ son. Considering this record, the court was not compelled to accept M.D.N.’s evidence regarding her alleged $335,623 loss.
M.D.N. also fails to point us to undisputed and unimpeached evidence of sufficient weight to compel a finding that she paid for any alleged losses with respect to unit 31F with separate property. In her opening brief, M.D.N. refers to her trial testimony wherein she stated generally that she paid for the expenses on unit 31F without specifying the source of the funds used. M.D.N. also refers to her testimony that she paid the money to take unit 31F out of foreclosure “out of [her] account,” but M.D.N. testified inconsistently about how she made this payment. She testified at one point that she used her parents’ money and her parents paid the bank directly; she testified at another point that she used student loan money combined with money borrowed from family and friends; and, early in the case, she submitted a declaration stating that she used funds from the sale of one of the Bulgarian properties (which the court later determined to be a community asset). M.D.N. also conceded that she did not provide any documentation showing the source of the funds used to take unit 31F out of foreclosure. In sum, M.D.N.’s evidence does not compel a conclusion that the court erred in rejecting her Epstein claim.
M.D.N. additionally argues that the court should be required to give her an Epstein credit for her housing costs after separation, but these housing expenses were not payments for a preexisting community obligation or improvements to community property. (Epstein, supra, 24 Cal.3d at pp. 83–84 [court may order reimbursement for spouse who uses separate property funds postseparation to improve community asset or pay preexisting community obligations].) M.D.N. does not provide any other authority suggesting these housing costs are recoverable, and she has not established the court erred in denying her the $505,450 as an Epstein credit.
Next, M.D.N. fails to show error or prejudice with respect to her contention that the court failed to order A.D.N. to pay her $843,900 under the DVROs. M.D.N. cites cases standing for the rule that a DVRO order is final if not appealed, and we have no quarrel with that rule. But the DVROs required A.D.N. to pay the mortgage to Chase and the HOA fees to the HOA, and M.D.N. never sought a court order to force A.D.N. to make these payments. Instead, she chose to rent unit 31F while failing to provide any contemporaneous accounting regarding the property, and the court found that she used the rental income to pay the mortgage and HOA fees. As a result, what M.D.N. presented at trial was a request that A.D.N. pay her the money he should have paid to Chase and the HOAunder the DVROs. But, as the trial court aptly observed, in requesting that A.D.N. pay her the full amount due under the DVROs, M.D.N. ignored that she used community property, not separate property, to pay the mortgage and HOA fees. Because M.D.N. used community property, A.D.N. in essence paid for half of the mortgage and HOA fees. On appeal, M.D.N. asks only that we order A.D.N. to pay her $843,900, but she provides no authority to support her contention that A.D.N. was required to pay M.D.N. the full $843,900 when he had already effectively paid half. For this reason alone, her claim on appeal fails.
But even if M.D.N.’s claim was that A.D.N. should be required to reimburse the community $843,900 (in effect giving M.D.N. half), we cannot conclude that the court erred by denying reimbursement. A.D.N. asked the court to achieve an equitable result “with respect to the rents M.D.N. received from [unit 31F] and her reimbursement request related to the mortgage and HOA,” arguing that “[t]he equitable result would be to subtract the mortgage and HOA dues from rents received and divide any surplus rental income evenly between the parties.” He argued that M.D.N. would receive an inequitable windfall if he were ordered to pay the amounts due under the DVROs because she paid the mortgage and HOA fees with community income. And, while A.D.N. maintained that M.D.N. made a reimbursable profit off unit 31F under Watts, supra, 171 Cal.App.3d 366, he nonetheless acknowledged there were bigger issues in the case and submitted that the court could just decide “there’s nothing owed between either party here.” In essence, A.D.N. suggested that the court could deny his claim to half of any profits from the rent and find that the equitable result would be for the community to ultimately bear the postseparation costs of the mortgage and HOA fees. The court impliedly agreed with A.D.N. when it denied both parties’ claims and recognized that M.D.N. had ignored her use of community funds. The DVROs do not address reimbursement, and M.D.N. does not establish in her opening brief that it was impermissible for the court to conclude that the community should be responsible for the mortgage and HOA fees. It would have been pointless for the trial court to require A.D.N. to reimburse the community for the unpaid mortgage and HOA fees, and then give him that same amount back as an Epstein credit for his separate property payment to a community obligation; the court therefore did not err in simply denying M.D.N.’s request for reimbursement. For these reasons, we see no error in the court’s ruling.
For similar reasons, M.D.N. has not shown a reasonable probability of a better result. (Cal. Const., art. VI, § 13.) The trial court clearly determined that equity required that both parties walk away with nothing on these claims, stating that “any other result would be patently unfair.”
DVRO Attorney Fees
Additional Background
M.D.N. requested attorney fees in the marital dissolution petition and in the October 2013 RFO under sections 270, 2030, 2032, 3121, and 3557. The court continued hearings on her early attorney fees requests and the matter was taken off calendar after the December 2014 order.
M.D.N.’s separate request for a DVRO is not in our appellate record, and her phase 1 trial brief did not mention section 6344. After the court issued a tentative statement of decision for phase 1, M.D.N. filed objections wherein she claimed entitlement to attorney fees under section 6344. The phase 2 trial was set to address child support and spousal support arrears, child support add-ons, one debt characterization issue, A.D.N.’s request for section 271 sanctions, and the allocation of rents received by M.D.N. post-separation from unit 31F.
During the phase 2 trial, M.D.N.’s counsel introduced M.D.N.’s June 2023 income and expense declaration (exhibit 184) and asked her, “Are you claiming attorney’s fees and costs in this case?” She responded affirmatively. When asked to state the total amount of attorney fees she had paid, A.D.N. objected that the question was “beyond the scope.” The court overruled the objection, and M.D.N. testified that she had paid attorneys $248,904.49. Exhibit 184 listed the total amounts paid to M.D.N.’s attorneys, including “$56,000” to “Morgan Duffy Smith.” M.D.N. testified that Morgan Duffy Smith represented her in the 2014 DVRO trial and acted as her counsel for a year, the law firm charged her over $320,000, and they settled on $56,000 “for the domestic violence.” The reporter’s transcript for the phase 2 trial indicates that M.D.N. requested attorney fees and sanctions under section 271 at some point as well.
The court’s statement of decision did not provide a ruling on M.D.N.’s request for attorney fees under section 6344 or otherwise, and the court reserved jurisdiction “for determination of all other pending issues.”
Analysis
M.D.N. maintains in her opening brief that the court did not address attorney fees under section 6344 in its statement of decision, and, in failing to do so, denied her request. This was error, she continues, because under current law those fees “shall” be awarded to a successful petitioner. (§ 6344, subd. (a).) The parties debate whether the mandatory provision of section 6344 applies retroactively to the 2014 DVRO proceeding and many other issues, including whether laches bars M.D.N.’s attorney fee request. And in M.D.N.’s reply brief, she contends that the court did not decide the DVRO attorney fees issue and requests that we remand this omitted matter for a determination by the trial court.
A trial court with a mandatory duty to provide a statement of decision commits reversible error by failing to provide a statement upon a timely and proper request. (Karlsen v. Superior Court(2006) 139 Cal.App.4th 1526, 1530–1531.) When a trial court fails to provide a statement of decision on a principal controverted issue, appellate courts generally decline to reach the merits of the challenge and remand the matter for the trial court to complete the process and issue a statement of decision. (See Karlsen, at p. 1531.)
Although M.D.N. requests that we remand with directions to the court to resolve the section 6344 attorney fees issue, we are not convinced that the court committed reversible error by failing to provide a ruling on such fees, given the ambiguity in the scope of the issues set for determination in the phase 2 trial and the court’s reservation of jurisdiction “for determination of all other pending issues.” Nonetheless, in light of our reversal and remand on the issues of sanctions pursuant to sections 271 and 1101, subdivision (g) (see Sections VIII and IX, post), we believe it appropriate for M.D.N. to seek a determination on these section 6344 fees, and for the parties to litigate this issue, in the first instance in the trial court.
Section 2640 Reimbursement for Unit 31F’s Down Payment
M.D.N. next argues the court erred in determining that A.D.N. should be reimbursed for the $1,104,706 in separate property he contributed to the down payment on unit 31F. The court relied on a tracing analysis by A.D.N.’s expert, Lucy Chung, who in turn relied on statements from the couples’ Wells Fargo bank account (the joint account) to construct her tracing analysis. M.D.N.’s main contention is that the bank statements for thejoint account were inadmissible, but she also argues that Chung’s opinion was based on unsupported assumptions. After a review of the rules governing section 2640 reimbursement and the relevant facts, we address both of M.D.N.’s claims post.
Legal Principles Governing Separate Property Tracing
Absent a written waiver, separate property contributions to the acquisition of community property must be reimbursed to the extent the party seeking reimbursement traces the contributions to a separate property source. (§ 2640, subd. (b).) Where a bank account holds both separate property and community property funds, the commingling does not forfeit a section 2640 reimbursement right where the separate property contribution can be traced. (In re Marriage of Carpenter (2002) 100Cal.App.4th 424, 427.) When there is a dispute over whether a party’s contribution wasderivedfrom a separate property source, use of the traditional “ ‘direct’ ” or “ ‘family expense’ ” tracing methods ordinarily will be appropriate. (In re Marriage of Walrath (1998) 17 Cal.4th 907, 920, fn. 5.)
“ ‘Direct tracing’ can be used to demonstrate a spouse’s separate property was used to purchase an asset, even though the purchase is made with funds from a commingled account containing both separate and community property. It requires (a)documentary proof that sufficient separate property funds were available in the account at the time of purchase[;] and (b)proof that the spouse making the purchase intended to use separate, rather than community, funds.” (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 95–96.)
“ ‘Exhaustion tracing’ is sometimes also called ‘Recapitulation,’ ‘Family expense,’ ‘Family living expense,’ or ‘Family income exhaustion’ tracing. Whatever the name, it attempts to trace a payment or purchase from a commingled mass to separate property funds by process of elimination;i.e., by showing that — because all community property funds were exhausted at the time the purchase or payment at issue was made — separate property funds necessarily must have been used. [Citation.] This approach presumes that available community property funds are used for family expenses before separate property funds are used for that purpose.” (In re Marriage of Ciprari, supra, 32 Cal.App.5th at pp. 96–97.)
However, tracing “is simply a method of proof.” (In re Marriage of Ciprari, supra, 32 Cal.App.5th at p. 97.) Accordingly, courts may consider any credible evidence and evaluate alternative tracing methods to determine whether the proponent of the tracing carries his or her burden of proof. (Ibid.) “Thus, trial courts are free to consider and credit reasonable, well-supported, and nonspeculative expert testimony, when determining whether the proponent has successfully traced commingled assets to a separate property source.” (Ibid.)
Additional Background
The joint account was the parties’ joint Wells Fargo Bank checking account. A.D.N. testified that, in 2003, bank statements for this account were mailed to his post-office box in Larkspur.
After A.D.N. was served with divorce papers, he contacted Wells Fargo and learned the bank could not provide documents that were more than seven years old. In April 2014, A.D.N. subpoenaed Wells Fargo bank records pertaining to the parties. Wells Fargo produced some documents accompanied by an employee declaration under oath stating that bank “cannot provide documents from 09/01/00 to 05/12/07 because of standard retention.”
In 2014, A.D.N. contacted a friend, Jeff Capaccio, who introduced him to a Wells Fargo regional manager, and the Wells Fargo regional manager told A.D.N. “he would do all he could to retrieve documentation.” Wells Fargo eventually provided documents from 2002 forward. A.D.N.’s counsel showed him an exhibit marked “KKKKKK,” which appeared to be copies of bank statements for the joint account for May 29, 2003, through August 27, 2003. When A.D.N.’s counsel sought to admit exhibit KKKKKK, M.D.N.’s counsel objected on hearsay and authentication grounds. The trial court stated that it did not believe A.D.N. was a qualified witness to speak to the preparation of the bank statements as contemplated by Evidence Code section 1271. After further discussion, the court deferred ruling.
The next day discussion resumed, and the court stated that it did not believe that A.D.N. was qualified to testify to the process by which the bank statements were created under Evidence Code section 1271. A.D.N. requested time to locate the Wells Fargo employee who had produced the records to him, and the court granted A.D.N.’s request. M.D.N. then argued that A.D.N.’s expert had relied on the bank statements and she requested that Chung’s analysis, exhibit EEEEEE, be excluded from evidence. The court deferred ruling on the issue.
A.D.N. subpoenaed prior Wells Fargo employee, Gregory Weitzman, and Weitzman objected to the subpoena by declaration. Weitzman said he had no recollection of the events at issue and he had received copies of account statements for May, June, July, and August of 2003 from M.D.N.’s attorney. He continued, “After a short review of the account statements and one email dated August 22, 2014, I am unable to swear under oath that these account statements are official records of Wells Fargo Bank. [¶] [ ] The email address was my Wells Fargo email address at the time. My signature block contains my correct title, work address and phone number. I do not recall how I retrieved these documents to forward them to [A.D.N.]. [¶] [ ] My primary job function in 2014 was as an outbound salesperson brin[g]ing new small business banking relationships to Wells Fargo. I did not meet [A.D.N.], although from the one email it appears there were additional communications of which I have no recollection.” The court compelled Weitzman to testify at trial.
Weitzman testified at trial that he was a business development officer at Wells Fargo in 2014. Weitzman did not recall being contacted in 2014 by Jeff Capaccio. When shown exhibit 525, which on its face appeared to be a 2014 thread of emails between Weitzman, Capaccio, and A.D.N., Weitzman confirmed that the email listed on the document for “Gregory Weitzman” was his email address at the time. The email referenced a search, but Weitzman did not remember specifics related to the search. A.D.N.’s counsel asked, “Do you recall generally what you were looking for?” Weitzman responded, “Yes. Generally[,] we were looking for, I believe [A.D.N.’s] bank statements.” Weitzman did not recall conversations he had with Capaccio or the emails with A.D.N., and exhibit 525 did not refresh his recollection as to any specifics.
Weitzman testified that he worked for Wells Fargo for two periods of time between 2010 and 2018. He assisted customers with obtaining historical bank statements during his time at Wells Fargo “[g]enerally, quite often,” and he would use Wells Fargo’s computer system to locate those bank statements. Weitzman sometimes reached out to the Wells Fargo help desk to assist with obtaining statements for clients if he could not find the information, but he did not recall the specific instance of engaging its services to get statements for A.D.N. in 2014. In his role as regional manager in 2014, Weitzman did not routinely help obtain bank statements for his clients, and if he did so then, it would have been a “unique instance.”
A.D.N. then presented exhibit 526, a one-page transmittal email dated August 22, 2014, from “Gregory.Weitzman” to “tdnprivate,” to which documents were attached. Weitzman reviewed the document and said that he could see that it was an email from him to A.D.N. from Weitzman’s Wells Fargo email account. Weitzman then identified bank statements as being attached to the email. When asked if the email refreshed his memory, Weitzman said, “It does not refresh my recollection. I do read that it happened here from my — from Gregory Weitzman at Wells Fargo com to [A.D.N.]. I see — I can see that this did occur through the statement. I don’t have a — I don’t have a recollection of it.”
Weitzman testified that, during his time at Wells Fargo, he never sent a customer bank statements for an account to which the customer did not hold title, and he did not recall ever sending a customer bank statements from a source other than Wells Fargo. He had no reason to doubt that bank statements he produced to customers were Wells Fargo documents. With respect to exhibit 526, Weitzman testified, “From what I see here, it appears that this was sent to [A.D.N.] I do not have a personal recollection of this exchange.”
M.D.N. objected to the admission of exhibits 525 and 526 for lack of foundation and failure to establish a hearsay exception. The court heard argument and asked counsel what specific testimony had been given about the mode of preparation of the bank statements, and the court questioned whether Weitzman had personal knowledge of the mode of preparation of these statements. After hearing additional argument, the court overruled the objections and admitted both exhibits.
During cross-examination, Weitzman stated that he stood by his earlier declaration, including his statement that he did not recall how he retrieved the bank statements to send to A.D.N. Weitzman testified that he did not recall having knowledge of Wells Fargo’s record-keeping system, he had no knowledge of how Wells Fargo kept and maintained bank records in 2003, and he did not know whether the documents attached to exhibit 526 followed the record-keeping process used by Wells Fargo. The court expressed concern about Evidence Code section 1271, subdivision (c) after cross-examination and asked A.D.N.’s counsel to address this issue on redirect.
On redirect, Weitzman testified that it would be his practice to use the help desk to obtain customer bank statements if he needed to do so. Weitzman also testified that, when he provided bank statements to customers, he had no concerns about their accuracy. “[I]f I’m providing statements to customers, these are statements that I’m generating or pulling from Wells Fargo systems or from the help desk.” Weitzman was reasonably confident that those bank statements were accurate. The court stated that Weitzman’s redirect testimony had addressed its concerns.
On recross, Weitzman testified that he did not recall if he had knowledge of the mode of preparation for the bank statements in exhibit 526, and he did not have knowledge of the record-keeping system that Wells Fargo used to create those records.
Subsequently, A.D.N. sought to admit exhibit EEEEEE, Chung’s tracing report. M.D.N. objected that there had been no showing that the bank statements that Chung relied on were the same as those that had been admitted in trial. A.D.N. then testified that the records contained in exhibit 526 were “the same and only documents” he had received from Weitzman, and these were sent through his counsel to Chung. The court overruled M.D.N.’s objection and admitted Exhibit EEEEEE.
Authentication and Hearsay
M.D.N.’s main contentions on appeal are that the bank statements for thejoint account, upon which Chung relied, were not properly authenticated and constitute inadmissible hearsay. We reject each argument in turn,post.
Authentication
“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.” (Evid. Code, §1400.) A writing can be authenticated by circumstantial evidence and by its contents. (People v. Skiles (2011) 51 Cal.4th 1178, 1187.) “Essentially, what is necessary is a prima facie case. ‘As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document’s weight as evidence, not its admissibility.’ ” (People v. Goldsmith (2014) 59Cal.4th 258, 267.)
M.D.N. and A.D.N. testified that they had a joint accountat Wells Fargo, and they both identified the last four numbers of the joint account. A.D.N. testified that Weitzman provided him with bank statements for this joint account in 2014 upon request, those bank statements were in exhibit 526, and the statements included the same information as the monthly bank statements A.D.N.had received by mail during the marriage. Weitzman identified the documents attached to exhibit 526 as bank statements, and, although he could not recall sending them to A.D.N., Weitzman testified that he had no reason to doubt that the bank statements he provided to customers in the course of his employment were accurate Wells Fargo records. The documents at issue were sent from Weitzman’s Wells Fargo email in 2014, Weitzman identified his email address, and Weitzman also acknowledged that exhibit 525 was an email chain including his Wells Fargo email address with the subject line, “[A.D.N.].” The bank statements included in exhibit 526 are entitled, “Account Statement”; they reflect a joint account in the parties’ names; they are dated; they list the account number identified by the parties for the joint account; and they include deposits and withdrawal transactions listed by date. Despite the fact that Weitzman was unwilling to swear under oath that the bank statements were Wells Fargo documents, this evidence was sufficient for the court to conclude that exhibits 525 and 526 were authentic.
M.D.N. counters that, given Wells Fargo’s response to A.D.N.’s 2014 subpoena, there was a presumption that the exhibits did not contain Wells Fargo documents under Evidence Code sections 1561 and 1562. But even if these statutes created a presumption that Wells Fargo did not retain records related to the parties other than those produced pursuant to the subpoena, the court could find that the presumption had been rebutted. (Evid. Code, § 1562 [this is “a presumption affecting the burden of producing evidence”].) Once A.D.N. produced evidence that the documents at issue were, in fact, authentic Wells Fargo records, the court was to determine the fact “without regard to the presumption.” (Evid. Code, § 604.)
The Business Records Hearsay Exception
At issue next is whether the bank statements for the joint account were properly admitted under the business records exception, Evidence Code section 1271. To qualify for this exception to the hearsay rule, the writing must have been made in the “regular course of (the) business,” the writing must have been made “at or near the time of the act, condition or event” recorded, the record’s “custodian or other qualified witness” must testify to its identity and mode of preparation, and the sources of information on which the record is based and method and time of the record’s preparation must be “such as to indicate its trustworthiness.” (Evid. Code, § 1271, subds. (a)–(d).) These are preliminary fact determinations subject to the trial court’s broad discretion. (Exclusive Florists, Inc. v. Kahn (1971) 17 Cal.App.3d 711, 716.)
The foundation for admitting a business record “is properly laid if in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.” (People v. Williams (1973) 36Cal.App.3d 262, 275.) Additionally, the foundation requirements may be inferred from the circumstances. (People v. Dorsey (1974) 43 Cal.App.3d 953, 960–961 (Dorsey).) A trial court has wide discretion in determining whether sufficient foundation is laid to qualify evidence as a business record. (Grail Semiconductor, Inc. v. Mitsubishi Electric & Electronics USA, Inc. (2014) 225 Cal.App.4th 786, 798 (Grail).) We find no abuse of the court’s wide discretion for the reasons set forth post.
We start with Evidence Code section 1271, subdivision (a). Weitzman testified that he obtained historical bank statements for customers “[g]enerally, quite often” when he worked for Wells Fargo from 2010 to 2018. He used Wells Fargo’s computer system to locate these documents and sometimes obtained assistance from the Wells Fargo help desk. Weitzman testified that he had no reason to believe that the bank statements he provided to customers were not Wells Fargo records, and he also identified the documents attached to exhibit 526 as bank statements. On this record, we cannot conclude the court abused its discretion in finding there was sufficient testimony to infer that Wells Fargo maintained the customer bank statements in the regular course of its business.
Next, Evidence Code section 1271, subdivisions (b) and (c) state the writing must have been made “at or near the time” of the act, condition or event recorded, and a “qualified witness” must testify as to its identity and mode of preparation. As to identity, Weitzman, who worked at Wells Fargo for many years and generally provided customers with historical bank statements, identified the documents attached to exhibit 526 as bank statements.
With respect to the timing and mode of preparation requirements, we agree with A.D.N. that Dorsey, supra, 43Cal.App.3d 953, is instructive. Dorsey involved charges of writing bad checks, and a bank operations officer testified that “he was the custodian of the bank’s records and that all the records involved were kept in the normal course of business.” (Id. at pp. 956, 958.) Based on the bank’s records, including monthly bank statements, the officer testified about the date the defendant opened an account, the date the bank closed the account, and the fact that numerous insufficient funds checks were presented and rejected on the account. (Id. at pp. 958, 960.)
On appeal, the defendant contended the witness did not provide sufficient foundation to admit the bank records testimony under Evidence Code section 1271. (Dorsey, supra, 43 Cal.App.3d at pp. 959–960.) The court first observed that possible deficiencies in the witness’ testimony were the witness’ failures to testify to the mode and time of preparation of the bank statements, but the defendant forfeited the objection by not specifically highlighting those foundational deficiencies. (Id. at p. 960.) The court continued, “Moreover, we believe that bank statements prepared in the regular course of banking business and in accordance with banking regulations are in a different category than the ordinary business and financial records of a private enterprise. It is common knowledge that bank statements on checking accounts are prepared daily and that they consist of debit and credit entries based on the deposits received, the checks written and the service charges to the account. We fail to see where appellant has been prejudiced by the absence of testimony as to the ‘method’ of preparation of the records, i.e., whether by hand or by computer and from what sources. Such testimony would not have a bearing on the basic trustworthiness of the records. While mistakes are often made in the entries on bank statements, such matters may be developed on cross-examination and should not affect the admissibility of the statement itself.” (Id. at pp. 960–961.) “A trial judge has broad discretion in admitting business records under Evidence Code section 1271, and it has been held that the foundation requirements may be inferred from the circumstances.” (Id. at p. 961.)
We also find Grail,supra, 225 Cal.App.4th 786, instructive. There, the defendant allegedly violated a nondisclosure agreement by using confidential information to develop new technology for computer memory chips for its joint venture, Renesas. (Id. at pp. 789–791.) One issue on appeal was whether, during the testimony of Renesas’ senior director, Keeley, the trial court had erred in admitting two pages from Renesas’ American and European websites that represented Renesas’ memory chip used a certain technology. (Id. at pp. 796–798.) Keeley testified that he did not know what technology was used in the memory chip at issue, and he could not confirm that Renesas represented that its memory chip used any specific technology. (Id. at pp. 796–797.) When showed the Renesas website pages, Keeley testified that one exhibit had the “look and feel” of a Renesas marketing document, and the other looked the same generally. (Id. at p. 798.) Defendant challenged the admission of the exhibits under the business records exception because Keeleywas not the custodian of the records and he lacked knowledge of their creation, maintenance, or accuracy. (Id. at pp.797–798.) The court admitted the exhibits based on Keeley’s testimony and the exhibits’ URL indicating they came from Renesas’ websites, and the defendant thereafter introduced evidence attempting to show a mistranslation between the original Japanese content and the websites. (Id. at pp. 797–798.)
The appellate court affirmed. (Grail, supra, 225Cal.App.4th at p. 798.) Keeley’s “testimony was very general and thus could have been the ground for sustaining [defendant’s] hearsay objection.” (Ibid.) However, Grail found that the trial court had not abused its wide discretion to assess foundation under Evidence Code section 1271 by concluding that the evidence of authenticity and trustworthiness supplied by Keeley’s testimony was adequately supplemented by the URL notation on the exhibits and the original Japanese versions offered by defendant. (Grail, at p. 798.)
Here, as in Dorsey and Grail, the court exercised its wide discretion under Evidence Code section 1271 to admit the bank statements. There was sufficient evidence for the court to conclude that the bank statements were made in the regular course of Wells Fargo’s business, and that the documents within exhibit 526 were Wells Fargo bank statements, including, akin to Grail, testimony from the business employee allowing an inference that the documents at issue were company documents. (See Grail, supra, 225 Cal.App.4th at p. 798.) Testimony about the timing and mode of preparation of the bank statements was absent, but Dorsey supports the court’s conclusion that these requirements could be inferred from the circumstances and common knowledge. (Dorsey, supra, 43 Cal.App.3d at pp. 960–961.)
M.D.N. argues that Dorsey’sdiscussion with respect to the foundation for bank statements as business records is dicta and this case is distinguishable because Weitzman was not knowledgeable about Wells Fargo’s record-keeping process, retention policy, or the method of preparation for bank statements. Dorsey’s discussion is not dicta (see Varshock v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635, 646, fn. 7), but it is not binding on us in any event. Dorsey’s reasoning, however, was that foundational requirements under Evidence Code section 1271 can be inferred by circumstances, and it is common knowledge that bank statements on checking accounts are prepared daily and consist of debit and credit entries based on the deposits received, the checks written, and the service charges to the account. (Dorsey, supra, 43 Cal.App.3d at pp. 960–961.) We find Dorsey persuasive on these points.
Citing Chambers v. Crown Asset Management, LLC (2021) 71Cal.App.5th 583, 597 (Chambers), which upheld the exclusion of documents related to a credit card agreement, M.D.N. suggests that Chambers disagreed with Dorsey. But Chambers found Dorsey distinguishable based on the records at issue. (Chambers, pp. 596–598.) “Dorsey does not aid Crown under the circumstances here. First, even accepting that bank statements may be more readily found to be business records than other hearsay documents, bank statements are not at issue here. What is at issue are the records showing the mailing of the credit card account agreement to Chambers.” (Ibid.) And Chambers also distinguished Dorsey because the court there upheld the trial court’s broad discretion to admit business records, whereas the Chambers court was being asked to reverse the trial court’s exercise of discretion to exclude the records. (Id. at pp. 597–598.) Here, like Dorsey, we uphold the trial court’s broad discretion.
Finally, Evidence Code section 1271, subdivision (d) requires that the “sources of information and method and time of preparation were such as to indicate [the record’s] trustworthiness.” Again, we find no abuse of discretion. “It is common knowledge that bank statements on checkingaccounts are prepareddailyand that they consist of debit and credit entries based on the deposits received, the checks written and the service charges to the account. We fail to see whereappellant has been prejudiced by the absence of testimony as to the ‘method’ of preparation of the records, i.e., whether by hand or by computer and from what sources. Such testimony would not have a bearing on the basic trustworthiness of the records.” (Dorsey, supra, 43 Cal.App.3d at pp. 960–961.)
Accordingly, we find no abuse of discretion in the court’s admission of the Wells Fargo bank statements for thejoint account.
Chung’s Tracing Analysis
Additional Background
Chung reviewed bank statements for thejoint account for the report she prepared using what she deemed “direct transactional tracing.” Chung reviewed bank statements from May 28, 2003, through October 3, 2003, the date of the downpayment on unit 31F. She treated the starting balance in the account on May 28, 2003, as community property, all deposits that were not traced to separate property as community funds, and all withdrawals from the account as being for community obligations or expenses. Chung identified deposits on June 23, 2003, from the sale of A.D.N.’s separate property home in Florida totaling $719,000 as the first deposits of separate property funds, and testified that the community balance in the account prior to these separate property deposits was $3,887.90. Thereafter, if there were community funds available in the account when a withdrawal occurred, she applied those community funds to each withdrawal and A.D.N.’s separate property funds if community funds were insufficient. Chung identified only one additional separate property deposit in the account, a June 27, 2003, deposit of $1,728,226.29, also from the sale of A.D.N.’s Florida property.
Chung testified that unit 31F was purchased with an $84,000 earnest money deposit on June 24, 2023, from A.D.N.’s separate property, as community funds had been exhausted before that withdrawal. From there, she “tracked all of the activities in that bank account based on the bank statement, and follow[ed] that account activity through the time that the...closing funds were used to finalize a purchase on [unit 31F].” She testified that the $1,395,821.62 payment to close on unit 31F consisted of $291,115.79 of community funds and $1,104,705.83 of A.D.N.’s separate property funds.
On cross-examination, M.D.N.’s counsel asked Chung about a “missing transaction[ ]” indicated on Chung’s analysis between September 25, 2003, and September 30, 2003. The parties’ Wells Fargo account balance increased by $298,210.71 during this time, but Chung testified that she had no source bank records for these days, as the bank statements she had reviewed were missing these days for some reason. Chung presumed there was a $298,210.71 deposit of community funds during this time, although she testified, “[A.D.N.] thinks that some of those may have been transferred from another account that could be separate property.”
When asked whether she had testified at her deposition that she did not have the source information to determine whether or not the outflows for many transactions were benefitting the community or separate property, Chung replied, “Well, during the marital period, the presumption is that to the extent I cannot identify the source of the deposit[,] that’s presumptively community, as with the payments out of that account. The same treatment, that during the marital period is presumptively community use of the funds. I was not made aware of — that the money was used for a separate property source. And [A.D.N.] is not making a separate property claim other than monies going directly to the acquisition of properties.”
Analysis
M.D.N. argues that the section 2640 reimbursement should be reversed because Chung made unsupported assumptions. Specifically, she challenges Chung’s treatment of expenditures from the Wells Fargo joint account, and her conclusion about what M.D.N. contends is “missing data” regarding the source of one net positive increase in thejoint account shortly before the parties closed on unit 31F.
We address our standard of review for this part of M.D.N.’s section 2640 challenge first because there appears to be a disagreement between the parties on this issue. M.D.N. essentially claims that there is an absence of evidence to support the court’s ultimate finding that A.D.N. traced the funds expended on unit 31F to a separate property source. Whether a party has adequately traced funds expended to a separate property source is a question of fact for the trial court, and the court’s finding must be upheld so long as supported by substantial evidence. (In re Marriage of Ciprari, supra, 32 Cal.App.5th at p. 95.)
To support her challenge, M.D.N. points to Chung’s testimony that, where the reason for a withdrawal was not identified on the banking records for thejoint account, Chung treated the withdrawal as a community withdrawal, and to Chung’s analysis, which showed blanks for the “activity” column of many withdrawals. But M.D.N. also testified at trial that the joint account was the parties’ “primary account” during the relevant time period, they had only one joint checking account at a time, both parties deposited their salaries into this account; and M.D.N. confirmed that the account was used to purchase groceries, clothing and family necessities, and to pay utilities. Chung also testified that she was not made aware that any withdrawals (other than the downpayment on unit 31F) were done for a separate property purpose.
Considering the evidence and standard of review, M.D.N.’s challenge to the treatment of withdrawals from the joint account during the relevant period fails. First, M.D.N. fails to discuss all evidence on this issue in her briefing. If an appellant’s brief cites only evidence favorable to the appellant and disregards evidence that supports the judgment, we may treat a substantial evidence argument as forfeited. (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177Cal.App.4th 209, 218.) Second, given M.D.N.’s testimony, the trial court could reasonably infer that the withdrawals from the joint account were for community purposes. (In re Marriage of Ciprari, supra, 32 Cal.App.5th at p. 94 [all reasonable inferences will be resolved in support of court’s order].)
Next, it is true that there are no banking records for the joint account for the period from September 25, 2003, to September 29, 2003. However, the record shows that $1,395,821.62 was due on October 3, 2003, to close on unit 31F (which the parties would have known about), and the joint account had a balance of $1,262,731.16 on September 24, 2003. Bank records show the account had a net positive increase of $298,210.71 during the five-day period from September 25, 2003, to September 29, 2003. And with respect to this “net positive increase,” Chung testified without objection that A.D.N. indicated to her that “some of those [funds] may have been transferred from another account that could be separate property.” Giving the judgment the benefit of every reasonable inference (In re Marriage of Ciprari, supra, 32 Cal.App.5th at p. 94), the court could conclude it was more likely than not that the net increase of $298,210.71 was a result of deposits to the joint account and that Chung reasonably presumed those to be community funds, virtually all of which ($291,115.79) were then used to pay part of the $1,395,821.62 payment to close unit 31F on October 3, 2003.
For the reasons set forth ante, we affirm the court’s award of $1,104,706 for A.D.N.’s section 2640 separate property contribution to the downpayment on unit 31F.
The Bulgarian Properties
Additional Background
The characterization of six apartments in Sofia, Bulgaria, was another main issue at trial.M.D.N. maintained in her trial brief that these properties were her separate properties because her parents gifted her the money to make the downpayment on some of the properties or because her parents gifted her the properties after they purchased them with funds received from selling other properties they had received back from the government after the fall of communism.A.D.N. claimed the funds for the purchase and improvement of the Bulgarian properties came from community property accounts, with M.D.N.’s parents contributing nothing. After hearing the parties’ testimony, the court found that five of the Bulgarian apartments were community property and one apartment was jointly owned by M.D.N. and A.D.N. with each having a 50 percent interest.
The court began its statement of decision by stating that M.D.N. presented evidence that her mother received after the collapse of communism agricultural land parcels that had been taken by the communist regime in Bulgaria. “From there the testimony and evidence concerning the acquisition of property in Sophia [sic]and whether it is community or separate becomes almost hopelessly unclear.”
The court observed that the parties gave contradicting stories about how the Bulgarian properties were acquired. M.D.N. presented copies of deeds, her testimony, and her mother’s testimony, but she did not present any additional documentary evidence — for example, documents relating to pre-marital employment or income, documents substantiating monetary gifts or real property transfers from her mother, financial records, letters, or communications — supporting her separate property claim. “Considering all of the contradictions and inconsistencies in [M.D.N.’s] testimony, combined with the lack of any credible corroborating evidence, the court finds that [M.D.N.’s] testimony that her alleged pre-marriage savings and gifts from her mother were used to purchase all the Bulgarian properties is not credible.”
The court stated that A.D.N. had presented his testimony and bank records for three of the six properties in dispute and testified about the community property financing of the remaining three properties. The court credited A.D.N.’s testimony, finding that bank records he provided were the best evidence verifying that the properties were acquired with traceable community funds. “Accordingly, the Bulgarian properties acquired during marriage will be characterized as community property based upon the evidence presented for [A.D.N.’s] separate property tracing: (l) San Stefano Street, (2) Georgi Benkovski Street,and (3) Kliment Ohridski Street. The court finds that the presumption of community property applies to two of the properties in light of [M.D.N.’s] failure to bear her burden of proof and provide credible evidence of separate property tracing: (4) 27 Moskovska Street, No. 12; and (5) 11 August Street [No. 10].”
Analysis
On appeal, M.D.N. claims that the court erred in its characterization of the Bulgarian properties because the court “based [its] conclusion on a fundamental misunderstanding of the contentions and evidence.” “The glaring problem,” M.D.N. argues, is that the court rejected her separate property claim because she failed to provide documentation of pre-marital savings or monetary gifts from her mother, which M.D.N. contends shows the court failed to understand her argument was that her parents bought the properties with their own money and gifted them to M.D.N.
We cannot agree with M.D.N.’s claim that the court misunderstood her theory with respect to her separate property claim. M.D.N. wrote in her trial brief that she acquired some of the Bulgarian properties with money given to her by her mother and the others were purchased by her parents with their money and gifted to her. A.D.N., in contrast, contended that all properties were purchased with community property funds and he learned after the separation that three of the properties were acquired in M.D.N.’s name and three were acquired in the name of her parents. The statement of decision provides that M.D.N. “offered no documents into evidence related to her pre-marriage employment or income . . . and presented no documents reflecting or substantiating the gifts of money or real property transfers from her mother.” M.D.N. points out that she provided deeds showing title transfers from her parents’ names to her name for three properties, but the court acknowledged that M.D.N. provided these titles. Viewing the court’s statements in context with A.D.N.’s claim that community funds were used to purchase all of the properties, some of which (unbeknownst to him) had been acquired in M.D.N.’s parents’ names, deeds showing that M.D.N.’s parents later transferred the properties to her do not shed any light on what funds her parents used to acquire them in the first place. That is how we understand the court’s reference to the absence of documentation substantiating real property transfers from M.D.N.’s mother. So read, the court’s comments reflect an understanding, and rejection, of M.D.N.’s claim that the Bulgarian properties were her separate property, acquired either through monetary gifts or transfers of property purchased by her parents.
M.D.N. raises additional claims of error regarding the court’s community property characterization of specific properties. Regarding San Stefano, Kliment Ohridski, and Georgi Benkovski, she contends that the court erroneously concluded that A.D.N. presented testimony and bank records for these three properties when A.D.N.’s banking records (exhibits AAAA, LLLL, and GGGG) were not admitted into evidence and/or did not support his testimony. She similarly contends that the court improperly relied on unadmitted exhibit AAAA to award A.D.N. a section 2640 contribution for San Stefano’s down payment.
Turning first to San Stefano, M.D.N. inaccurately asserts that the court relied on exhibit AAAA to characterize this property and award A.D.N. a section 2640 contribution when exhibit AAAA was not admitted into evidence. The court did not cite exhibit AAAA in its statement of decision, and, as M.D.N. concedes, the contents of exhibit AAAA are duplicated in the bank statements in exhibit 526, which the trial court cited. Specifically, exhibit 526 contains an entry reflecting a $125,000 wire transfer listing M.D.N.’s mother’s name within its entry. The court properly admitted the bank statements in exhibit 526, so M.D.N.’s argument that no banking record supported the San Stefano purchase or the section 2640 reimbursement necessarily fails.
Regarding Kliment Ohridski, exhibit LLLL reflects a foreign, outgoing wire of $172,000 on July 23, 2007, from a bank account in M.D.N.’s and A.D.N.’s names. A.D.N. testified that this transfer was for the purchase of Kliment Ohridski and he sent the money to M.D.N.’s mother. The court could reasonably have concluded that exhibit LLLL supported A.D.N.’s testimony.
Regarding Georgi Benkovski, M.D.N. argues that the court improperly relied on exhibit GGGG, which was not admitted into evidence, to credit A.D.N.’s testimony regarding how the Bulgarian properties were acquired. Even accepting the court improperly relied on exhibit GGGG, we discern no prejudice. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.) A.D.N. testified without objection that the money used to purchase Georgi Benkovski was sent by wire and the account statement reflecting this transaction said, “Foreign outgoing wire, U.S. dollars.” When provided with exhibit GGGG, A.D.N. testified that the exhibit was a Washington Mutual joint account statement, he saw a foreign outgoing wire transaction on the statement for $130,000 on November 2nd, and that was him sending the funds to buy Georgi Benkovski. The court sustained M.D.N.’s objection to the admission of exhibit GGGG itself on hearsay grounds, but A.D.N.’s testimony regarding the bank statement’s content was part of the record. And bank records supported A.D.N.’s testimony about the purchases of San Stefano and Kliment Ohridski. M.D.N. simply does not show a probability of a more favorable result with respect to Georgi Benkovski. (Watson, supra, 46 Cal.2d at p.836.)
Finally, M.D.N. contends that A.D.N. did not provide testimony to support the court’s conclusion that August 11 Street No. 10 was community property. The court stated that A.D.N. presented bank records and testimony about three Bulgarian properties and testimony about the remaining three properties. However, the court went on to find that M.D.N. failed to rebut the community property presumption with respect to August 11 Street No. 10, which was purchased during the parties’ marriage in 2004. M.D.N. testified that August 11 Street No. 10 was purchased in her name with funds from her mother and grandmother, but the court specifically found that M.D.N.’s evidence was not credible. We have no cause to reweigh the court’s credibility finding (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 622), so M.D.N.’s argument with respect to August 11 Street No. 10 necessarily fails.
The Merrill Lynch Account
The court determined that a Merrill Lynch account held in A.D.N.’s name was community property and the money was to be equally divided. M.D.N. challenges the court’s decision to value the account as of the date of trial rather than the date of separation, but she fails to show the court abused its discretion. (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1572 [if court exercises discretion under section 2552 in legal manner, decision will be affirmed where supported by substantial evidence].)
Under section 2552, the court shall value the assets and liabilities of the community estate as near as practicable to the time of trial. (§ 2552, subd. (a).) However, upon 30 days’ notice by the moving party, the court for good cause shown may value all or any portion of the assets and liabilities at a date after separation and before trial to accomplish an equal division of the community estate. (§ 2552, subd. (b).) M.D.N. listed the value of the Merrill Lynch account at separation in her brief for the phase 1 closing argument and sought half, but on appeal she fails to provide a record citation showing that she gave 30 days’ notice of a request to value this asset at the time of separation. (§ 2552, subd. (b).) She also fails to point to a good cause showing below such that we could conclude on appeal that the court abused its discretion in valuing the account.
Temporary Spousal Support Arrears
The March 2014 FOAH required A.D.N. to pay $6,162 per month for temporary spousal support, effective October 31, 2013. This order provides, “The [c]ourt reserves jurisdiction to retroactively modify the amount of spousal support ordered, either upward or downward, based on the evidence . . . that will be presented at the long cause hearing . . . . Retroactivity is reserved to the date [M.D.N.] filed her initial motion for support and attorney’s fees.” A.D.N. conceded at trial that he did not pay the support required by the March 2014 FOAH.
As noted, the parties subsequently agreed to a stipulated order regarding temporary spousal support. This December 2014 order states:
1. [A.D.N.] shall pay [M.D.N.] interim temporary spousal support in the amount of $1,400.00 (One Thousand Four Hundred Dollars) per month.
2. This order shall be effective August 1, 2014.
3. This monthly spousal support payment is deductible by [A.D.N.] and taxable to [M.D.N.] as income.
4. The first payment shall be due August 18, 2014, and on the first of the month thereafter.
5. The parties understand and agree this spousal support is a negotiated figure, which may or may not, be consistent with the Guideline formula. This order is retroactive to October 31, 2013, the date [M.D.N.] filed her initial motion for temporary spousal support, and all arguments regarding the appropriate amount of spousal support are reserved.

The trial court determined that the March 2014 FOAH “was superseded by [the December 2014 order] and the court finds that [the December 2014 order] is the support order that is current and therefore enforceable in these proceedings.”
On appeal, M.D.N. contends that the December 2014 order modified A.D.N.’s temporary spousal support obligation from $6,162 per month to $1,400 per month, effective August 1, 2014, but it did not modify his obligation to pay temporary spousal support of $6,162 per month from November 2013 through July 2014. A.D.N. argues that the court correctly determined that December 2014 order replaced the prior order for spousal support of $6,162 per month starting on October 31, 2013.
Reviewing the issue de novo (Mayer v. C.W. Driver (2002) 98Cal.App.4th 48, 57), we agree with A.D.N. Paragraph 5 of the December 2014 order states, “This order is retroactive to October 31, 2013.” M.D.N. asserts that this language merely allowed for subsequent retroactive modification of the $1,400 monthly temporary spousal support award. However, unlike the March 2014 FOAH, which “reserve[d] jurisdiction to retroactively modify the amount of spousal support ordered, either upward or downward,” the language at issue in paragraph 5 clearly makes the order pronounced therein “retroactive to October 31, 2013.” We thus agree that the December 2014 order provides on its face that the $1,400 monthly spousal support obligation started on August 1, 2014, and this order was made “retroactive,” hence replacing the March 2014 FOAH that had provided for monthly spousal support starting on October 31, 2013.
Education Expenses as Child-support Add-ons
Per the December 2014 order, from August 1, 2014, onward, A.D.N. paid M.D.N. $1,000/month in temporary child support. As child support add-ons, M.D.N. sought reimbursement at trial for half of $77,147 in private school tuition and $26,244 in after-school educational expenses. M.D.N. argues that the court erred in denying her request—specifically, by failing to state its reasons for the denial. We find no error for multiple reasons.
First, the statement of decision explains the court’s conclusion that M.D.N. paid for these expenses, at least to an extent, with community funds. The court expressly found that M.D.N. had used the rents for unit 31F to pay for private school tuition and living expenses.
Second, M.D.N. does not show that she specified these add-ons as a controverted issue requiring resolution in a request for a statement of decision. This court found M.D.N.’s general request for a statement of decision in her phase 1 trial brief, but she does not point us to a more specific request for a statement of decision. Because M.D.N. made a nonspecific request for a statement of decision that did not specify this issue, the court was not required to provide a written resolution of any issues of fact that served as a basis for its decision. (City of Coachella v. Riverside County Airport Land UseCom.(1989) 210 Cal.App.3d 1277, 1292.)
Third, as M.D.N. acknowledges, the award of these add-ons is discretionary (§ 4062, subd. (b)(1)), and M.D.N. does not argue that the court abused its discretion in denying her requests.
Section 271 Sanctions
Additional Background
A.D.N. sought section 271 sanctions, claiming that M.D.N. and her counsel had engaged in conduct intended to create unnecessary conflict, that failed to promote settlement of the litigation and that unnecessarily increased litigation costs.
The court found that M.D.N. engaged in the following conduct: “Delayed proceedings by claiming first that the court lacked jurisdiction adjudicate the Bulgarian properties, and second, that a court in Bulgaria had already adjudicated Respondent’s claims; [¶] 2. Mischaracterized the Four Seasons condo as her separate property throughout these proceedings; [¶] 3. Denied Respondent’s 2640 reimbursement claim for his separate property down payment for the Four Seasons condo; [¶] 4. Rented the Four Seasons condo and retained all of the rental proceeds without informing Respondent or giving him his half of the rent receipts; [¶] 5. Refused to negotiate in good faith about discovery issues, including failing to meet and confer to exchange tax returns, and failing to provide requested financial information related to the Four Seasons condo and the Bulgarian properties; [¶] 6. Rejected reasonable settlement proposals throughout the litigation, and resisted efforts to either reduce the costs of litigation or narrow the issues in the case; [¶] 7. Repeatedly rejected attempts to expedite the trial proceedings by failing to confirm the identities of fact and expert witnesses, failing to stipulate to documents at trial, and failing to stipulate to appraisals of real property; and [¶] 8. Violated the Automatic Temporary Restraining Orders (ATROS) by encumbering and selling community property after separation.”
The court ordered M.D.N. to pay A.D.N. $100,000 in section 271 sanctions.
Governing Law
Section 271, subdivision (a) provides in relevant part: “Notwithstanding any other provision of this code, the court may 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 and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction.”
Unlike other sanctions statutes, such as Code of Civil Procedure section 128.5, subdivision (a), where the conduct to be sanctionable must be “frivolous or solely intended to cause unnecessary delay,” section 271 “is aimed at conduct that frustrates settlement of family law litigation. Expressed another way, section 271 vests family law courts with an additional means with which to enforce this state’s public policy of promoting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel.” (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1318.)
An award of attorney fees and costs as sanctions undersection271is “reviewed forabuseofdiscretion. [Citation.] . . . [W]e will overturn such an order only if, considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order. [Citations.] ‘We review any findings of fact that formed the basis for the award of sanctions under a substantial evidence standard of review.’” (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225–1226.) The appellant bears the burden of demonstrating that the trial court abused its discretion. (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 16.)
Analysis
M.D.N. argues that the court impermissibly sanctioned her on grounds 1, 2, and 3 for making reasonable legal arguments. She contends that “a party cannot be sanctioned under . . . section 271 merely for taking litigation positions with which the court disagreed or for the filing of a motion unless it is ‘ “so devoid of merit that no reasonable person would have pursued it.”’” She points to Featherstone v. Martinez (2022) 86 Cal.App.5th 775, 785, which reversed section 271 sanctions that were issued for taking a litigation position with which the trial court simply disagreed. We agree that M.D.N. should not be sanctioned for reasonable litigation conduct (Featherstone, at p.785), but, as set forth post, we disagree that Featherstone renders invalid all challenged grounds for the section 271 sanctions.
Ground 1 for the sanctions was that “[M.D.N.] delayed proceedings by claiming first the court lacked jurisdiction to adjudicate the Bulgarian propertiesand, and second, that a court in Bulgaria already adjudicated [A.D.N.’s] claims.” To challenge this ground on appeal, M.D.N. provides a record cite to her motion in limine and argument below and asserts that her motion was “far from frivolous.” Essentially, M.D.N. tosses out a cite to the record and asks us to develop her legal argument for her on appeal for why her litigation position was reasonable. We decline to do so and conclude that M.D.N. forfeited any claim on appeal that the court abused its discretion by utilizing ground 1 as a basis for section 271 sanctions. (Lee v. Kim (2019) 41 Cal.App.5th 705, 721.)
Ground 2 was that M.D.N. “[m]ischaracterized the Four Seasons condo as her separate property throughout these proceedings.” M.D.N. briefly argues this claim was not frivolous because A.D.N. deeded unit 31F to her and the court found some elements in M.D.N.’s favor when characterizing the property. A.D.N. argues that M.D.N.’s claim was premised on false testimony about the reason for the quitclaim deed. Reviewing its statement of decision, the court concluded that the transfer of unit 31F to M.D.N.’s name was intended to avoid a lawsuit creditor, A.D.N.’s testimony that M.D.N. promised to convey the property back in the future was credible, and M.D.N.’s contrary testimony that A.D.N. gave her the condo as a gift was not credible. M.D.N. has failed to establish that no reasonable judge could conclude the standard in section 271 was met because she lied about the transfer of unit 31F and caused A.D.N. to incur more attorney fees.
We reach a different result for ground 3, which was that M.D.N. “[d]enied [A.D.N.’s] 2640 reimbursement claim for his separate property down payment for the Four Seasons condo.” Although we affirm A.D.N.’s section 2640 reimbursement in this appeal, separate property contributions to community property must be traced (§ 2640, subd. (b)), and we do not find M.D.N.’s litigation position regarding the tracing to be unreasonable.
Next, M.D.N. contends that grounds 4 and 8 improperly relied on conduct that occurred outside of the litigation. We disagree.
Ground 4 was “[r]ent[ing] [unit 31F] and retain[ing] all of the rental proceeds without informing [A.D.N.] or giving him his half of the rent receipts.” M.D.N. contends that renting the property was not litigation-related conduct. However, the court could reasonably conclude that M.D.N.’s failure to account for the community property rents delayed the proceedings and increased the costs of litigation, especially considering the court determined that M.D.N. paid for the mortgage and HOA fees for unit 31F with these rents, and, at least to some extent, paid for her living expenses and the child support add-ons she sought to recoup at trial with these rents.
Ground 8 was that M.D.N. “[v]iolated the Automatic Temporary Restraining Orders . . . by encumbering and selling community property after separation.” Here, M.D.N. claims the court sanctioned her for “encumbering and selling” property, but she ignores that the sanctions were for violating court orders. M.D.N. also contends her conduct was not sanctionable because she believed the Bulgarian properties were her separate properties. The court, however, determined that M.D.N.’s testimony about how she acquired the Bulgarian properties was not credible. Having found that M.D.N. was dishonest about the acquisitions, the court reasonably could have concluded that M.D.N. frustrated early resolution of the case and increased the cost of litigation.
Having found one of the court’s reasons for issuing $100,000 in section 271 sanctions invalid, we think remand is appropriate. (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 993[remanding issue of section 271 sanctions because “[h]aving found merit in only one of the court’s three reasons for imposing the attorney fee sanction, we cannot say with any certainty that the court necessarily would have exercised its discretion in the same fashion based only on the one valid reason”], disapproved on another ground in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097.) While it seems probable that the court would issue section 271 sanctions even in the absence of ground 3, we cannot determine what part of the sanctions award is attributable to this conduct and cannot say with “certainty” that the court would exercise its discretion in the same fashion to award the same amount of section 271 sanctions. Hence, we will remand the matter to the trial court for it to reconsider whether it will issue section 271 sanctions, and if so, in what amount. (In re Marriage of Abrams, at p. 993.)
Section 1101, subdivision (g)
Remedies for breach of fiduciary duty under section 1101, subdivision (g) (section 1101(g)) include an award to the claimant spouse of “50 percent, or an amount equal to 50 percent, of any asset undisclosed or transferred in breach of the fiduciary duty[.]” After the interest awarded under this section occurs, there is no longer an asset to divide. (In re Schleich (2017) 8 Cal.App.5th 267, 286.) The “50 percent interest awarded under [section 1101(g)]must be the same 50 percent interest that would be awarded in the overall division of community assets. After a claimant is awarded his or her interest in an asset under subdivision (g), there is no longer an asset to divide in the dissolution proceedings.” (In re Schliech, at pp. 286–287.) Stated otherwise, the court cannot award an interest in the property and then award that same interest as sanctions under section 1101(g).
M.D.N. asks that we order the court to correct an ambiguity on remand with respect to the Bulgarian properties—specifically, the court ordered M.D.N. to pay 50 percent of the value of Georgi Benkovski and Kliment Ohridski (which M.D.N. sold) and equalizing payments for properties awarded to M.D.N., and awarded 50 percent sanctions under section 1101(g).
The court’s order was as follows:
The court finds the following properties in Sophia [sic], Bulgaria are community property and awards these properties as follows:
a. 27 Moskovska Street, #12 is awarded to the Petitioner at a current value of $599,159.

b. San Stefano Street is awarded to Petitioner at a value of $393,740, subject to reimbursement to Respondent for his separate property contribution for the total amount of the purchase price in the amount of $125,000.

c. 11 August Street [No. 10] is awarded to Petitioner at a value of $183,440.

d. Georgi Benkovski Street was community property at the time of its sale by Petitioner. Petitioner shall pay Respondent $84,375, which represents one-half of the January 21, 2014, sale price of $125,000€.

e. Kliment Ohridski Street was community property at the time of its sale. Petitioner shall pay Respondent $148,913, which is equal to one-half of the property value at the time of trial.

f. Petitioner’s actions regarding the Bulgarian properties have breached the fiduciary duties owed to Respondent. Respondent is entitled to 50% sanctions under 1101(g). Respondent’s request that the court impose sanctions under 1101(h) is denied.

g. Petitioner shall pay an equalizing payment for the community property Bulgarian properties, including Respondent’s section 2640 reimbursement for the San Stefano property, in the amount of $883,962.

We agree that the court can only award an interest in the properties once (In re Schleich,supra, 8 Cal.App.5th at pp. 286–287), and there is some ambiguity to the trial court’s statement of decision on this issue. The trial court is thus directed to clarify on remand that A.D.N. is not entitled to 50 percent sanctions under section 1101(g) in addition to the equalizing payment of $883,962.
DISPOSITION
We reverse on the issue of section 271 sanctions and remand the matter for a redetermination on A.D.N.’s request for section 271 sanctions. On remand, the trial court is also directed to clarify that A.D.N. is not entitled to 50 percent sanctions under section 1101(g) in addition to the equalizing payment of $883,962. M.D.N. may also seek a ruling regarding her claimed entitlement to attorney fees under section 6344 on remand. In all other respects, the judgment is affirmed.

BROWN, P. J.

WE CONCUR:

STREETER, J.
GOLDMAN, J.
In re Marriage of M.D.N. and A.D.N.(A171022)