The opinion
Filed 4/4/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of ROD ALAN and
HUB ALAN FREEMAN.
ROD ALAN FREEMAN,
G064552
Respondent,
(Super. Ct. No. FLIN2001192)
v.
OPINION
HUB ALAN FREEMAN,
Appellant.
Appeal from an order of the Superior Court of Riverside County,
Johnnetta E. Anderson, Judge. Affirmed.
Sheila A. Williams and Laura J. Fuller for Appellant.
Holstrom, Block & Parke and Ronald B. Funk for Respondent.
* * *
Appellant Hub Alan Freeman and respondent Rod Alan Freeman
were domestic partners and then spouses for over 15 years before
separating.1 After their marital dissolution trial, the family court ordered
Hub to pay Rod $2,100 a month in permanent spousal support. It also found
the community had a 60.2 percent interest in a rental property that Hub had
purchased prior to their domestic partnership. The parties submitted expert
opinions as to the rental property’s value. The court found Rod’s expert to be
more persuasive and used his opinion to determine the rental property’s
value.
On appeal, Hub primarily challenges the amount of the spousal
support award. He also asserts the family court denied him due process by
failing to give his counsel adequate time to question witnesses on the final
day of trial. We are unpersuaded by either argument.
Hub’s remaining contention appears to arise from a
misunderstanding of the Moore/Marsden rule.2 Under this rule, “the
community acquires a pro tanto interest” in a party’s separate property
“[w]hen community property is used to reduce the principal balance of a
mortgage on” the property. (Bono v. Clark (2002) 103 Cal.App.4th 1409,
1421–1422.) Once the community’s pro tanto percentage interest is
calculated, it is multiplied by the total value of the property to determine the
dollar value of the community’s interest. We publish this case to clarify that
the community’s pro tanto percentage interest is calculated as of the time of
1 We refer to the parties by their first names since they share a
surname.
2 This rule is named after the cases from which it was derived: In
re Marriage of Moore (1980) 28 Cal.3d 366, and In re Marriage of Marsden
(1982) 130 Cal.App.3d 426.
2
the parties’ separation, while the value of the property is generally
determined as near as practicable to the time of trial.
For the above reasons, we affirm the court’s order.
FACTS AND PROCEDURAL HISTORY
Rod and Hub registered as domestic partners in December 2004,
married in June 2008, and then separated in April 2020. Rod filed a petition
for dissolution of their domestic partnership and marriage in May 2020.
The parties had ownerships interests in two properties at the
time of separation. The first was their residence in Indio, which listed both
Hub and Rod on title. The second was a rental property on Micheltorena
Street in Los Angeles (the Micheltorena property). Title to the Micheltorena
property was solely in Hub’s name. He had purchased it in 1992 prior to the
parties’ union, but it was not paid off until 2013. Following their separation,
the parties agreed the community had an interest in the Micheltorena
property, but they disputed the amount of that interest and the property’s
value.
At the time of their separation, both Hub and Rod had been
unemployed for about seven years. Hub had supported the parties for the last
five years of their relationship using income from the Micheltorena property,
Social Security, and annuities and dividends. The parties stipulated that
Hub’s gross monthly income available for support was $11,391, and the
monthly marital standard of living was $12,381.
The family court entered a status-only judgment in January
2023, dissolving the parties’ marriage and domestic partnership but
reserving jurisdiction over all other issues. The matter proceeded to trial,
where two of the primary disputes involved the amount of spousal support
3
Hub would pay Rod and the value of the community’s interest in the
Micheltorena property.
As to spousal support, the family court applied the relevant
support factors under Family Code section 4320.3 Among other things, it
found Hub’s earning capacity was sufficient to maintain the marital standard
of living, but Rod did not earn enough to meet this standard. The court
explained that “ROD will suffer harmful consequences if support is denied.
ROD has the need for spousal support and has been living off of temporary
spousal support and a $1,000 a month dividend.”
The family court also made findings as to Rod’s job prospects.
Though he had marketable skills, his “employment was impaired by HUB’s
request for ROD to take leave under FMLA [(Family and Medical Leave Act)]
to care for HUB from April to September of 2015 . . . . HUB further requested
that ROD remain unemployed and travel with the income built over their 23-
year relationship. As of the time of trial, ROD [had been] unemployed for
some seven years.” The court concluded Rod had the ability to earn a salary
of at least $5,400 per month. But it also noted Rod was 60 years old (Hub was
67) and had testified to having health issues that impaired his ability to
obtain a job.
After reviewing all the section 4320 factors, the family court
ordered Hub to pay Rod $2,100 in monthly spousal support. The court
attached an Xspouse report showing “the net spendable income available to
both parties upon imputation of wages and salary to ROD and the spousal
3 All further undesignated references are to the Family Code.
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support order of $2,100.00 a month.”4 The court further noted that “[w]hile
4% more of the combined spendable income is assigned to ROD, HUB’s
temporary support order required him to pay more than this permanent
order, and HUB was still able to maintain the marital standard of living.”
As to the Micheltorena property, Rod and Hub both introduced
expert testimony as to its value. Rod’s appraiser, Alan Fradkin, valued the
Micheltorena property at $2.1 million as of February 2022. Hub provided
testimony from two expert witnesses. His first appraiser, Ho Joo Lee, valued
the Micheltorena property at $1.44 million as of January 2021. His second
appraiser, Scott Gardner, valued the property at $1,620,000 as of March
2022. The court found Fradkin’s appraisal to be more accurate than Lee and
Gardner’s, and it valued the Micheltorena property at $2.1 million.
The family court also calculated the community’s interest in the
Micheltorena property under the Moore/Marsden rule. The court concluded
“that all payments made during the legal union of the parties, were deemed
to be made with community property.” It adopted the findings of Rod’s expert,
who calculated a 60.2 percent community interest in the Micheltorena
property based on the amount of principal paid and improvements made
during the parties’ relationship.
Following trial, the family court issued a statement of decision
(the statement of decision) with the above findings. Hub objected to the
statement of decision, but the court issued an order (the property division
4 Xspouse is a computer program “used to calculate guideline
child support under the formula required by Family Code section 4055.” (In
re Marriage of Bodo (2011) 198 Cal.App.4th 373, 378, fn. 3.)
5
order) overruling his objections and declaring the statement of decision as the
court’s final decision on these issues.
Hub appeals the property division order on three grounds: (1) the
family court abused its discretion in calculating the spousal support order; (2)
the court improperly calculated the Micheltorena property’s value; and (3) the
court violated Hub’s procedural due process rights by giving his counsel
insufficient time to examine the remaining witnesses on the final day of trial.
DISCUSSION
I.
SPOUSAL SUPPORT
A spousal support order is reviewed for an abuse of discretion. (In
re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 197.) This standard of
review requires us to determine whether the family court’s ruling “‘exceeded
the bounds of reason.’” (Ibid.) We must “‘uphold a ruling which a reasonable
judge might have made, even though we would not have ruled the same and a
contrary ruling would also be sustainable. We cannot substitute our own
judgment.’” (Harman v. City and County of San Francisco (2007) 158
Cal.App.4th 407, 428.)
Hub contends the family court made three errors in calculating
spousal support. First, the amount of spousal support awarded was
disproportionate to the parties’ marital standard of living. Second, the court
improperly relied on Xspouse to calculate spousal support. Third, the court
wrongly based its permanent spousal support order on the temporary spousal
support order. We find no error.
A. Spousal Support Amount
Hub’s argument is based on the parties’ stipulation that the
marital standard of living was $12,381 a month. He claims, “[e]ach party is
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entitled to one-half [of this amount] or $6,190.50 per month . . . as permanent
spousal support.” Monthly spousal support of $2,100, he claims, will give Rod
$9,300 in total monthly income, which is 150 percent more than $6,190.50.
Hub arrives at this $9,300 figure by adding together (1) $5,400, which is the
amount the family court found Rod was able to earn; (2) $1,000, which is
Rod’s monthly income from dividends; (3) $800, which is Rod’s purported
community share of Hub’s military pension; and (4) $2,100, which is the
amount of spousal support.5 Hub argues that spousal support should be
reduced, or eliminated, so that Rod’s total monthly income will be closer to
half the marital standard of living (i.e., $6,190.50). We disagree.
To begin, Hub cites no authority for his assertion that Rod is only
entitled to half the marital standard of living. Nor does it appear any such
authority exists. Rather, family courts have broad discretion in fashioning
spousal support orders to address the specific needs of the parties. (In re
Marriage of McLain (2017) 7 Cal.App.5th 262, 269.) The marital standard of
living is only a general reference point. (In re Marriage of Khera & Sameer
(2012) 206 Cal.App.4th 1467, 1483–1484.) “‘The Legislature has never
specified that spousal support must always meet the needs of the supported
spouse as measured by the marital standard of living.’ . . . ‘[T]he trial court
5 Hub’s calculation appears to be inflated. He claims Rod will
receive $800 in monthly income due to the community’s interest in Hub’s
pension. But Hub provides no citation for this assertion. Rather, the
statement of decision indicates the family court had not determined the
community’s interest in this pension at the time it awarded spousal support.
Specifically, it states that the parties had stipulated that the community’s
interest in “all retirement accounts” would be divided by a qualified domestic
relations order (QDRO). The court ordered the parties to meet and confer as
to the accounts subject to the QDRO, and it appointed a third party to
prepare the QDRO.
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may fix spousal support at an amount greater than, equal to or less than
what the supported spouse may require to maintain the marital standard of
living, in order to achieve a just and reasonable result under the facts and
circumstances of the case.’” (Ibid.)
Further, nothing in the record shows it was unreasonable for the
family court to award Rod $2,100 in spousal support even if that gave him
$9,300 in total monthly income. While the court found Rod could make $5,400
a month, it is unclear how many years he will be able to work (assuming he
finds a job). He was 60 at the time of trial and there was evidence he had
health issues impairing his ability to obtain employment. The court also
found Hub “impaired” Rod’s employment by asking him to take FMLA leave
for several months, then asking him to remain unemployed so they could
travel together. Due to Hub’s requests, Rod had been unemployed for seven
years by the time of trial. We can reasonably infer Rod would have had a
higher potential income than $5,400 had he not chosen to remain
unemployed for Hub.
In sum, the family court could have determined $2,100 in spousal
support was reasonable based on Rod’s age, job prospects, and the fact that
Hub was partly responsible for Rod’s unemployment. As such, we find no
abuse of discretion.
B. Xspouse Software and the Temporary Spousal Support Order
Hub’s second and third arguments are related. He contends the
family court erred by “solely” relying on Xspouse to calculate permanent
spousal support. Likewise, he asserts the court improperly based the amount
of permanent support on the temporary spousal support order.
Hub’s arguments are unsupported by the record. The statement
of decision clearly indicates the court’s spousal support award was based on
8
the section 4320 factors. The statement of decision discusses each section
4320 factor in great detail before ordering Hub to pay $2,100 a month. It then
discusses Xspouse and the temporary spousal support order to provide
additional context for the permanent support award. Specifically, the
statement of decision states that “the court orders HUB to pay ROD spousal
support in the amount of $2100.00 . . . continuing until death of either party
or remarriage of ROD or termination date, whichever occurs first. The
attached XSpouse [sic] provides the net spendable income available to both
parties upon imputation of wages and salary to ROD and the spousal support
order of $2100.00 a month. While 4% more of the combined spendable income
is assigned to ROD, HUB’s temporary support order required him to pay
more than this permanent order, and HUB was still able to maintain the
marital standard of living.”
Put differently, Xspouse was not used to calculate spousal
support. Instead, the Xspouse printout was attached to the statement of
decision to show how the spousal support award calculated under section
4320 would affect the parties’ net spendable income. Similarly, the family
court’s comment about the temporary support order does not show this order
served as the basis for the permanent support award. Rather, this comment
only underscored that Hub would still be able to maintain the marital
standard of living under the permanent award since he had been able to
maintain it under the temporary support order.
Next, Hub suggests the family court’s analysis of the section 4320
factors was perfunctory, and it really based its decision on the Xspouse report
and the temporary spousal support order. However, the record indicates the
court carefully considered the relevant factors. The statement of decision
spends more than five pages discussing the section 4320 factors and, as set
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forth above, only briefly mentions Xspouse and the temporary spousal
support order. Further, the court awarded permanent spousal support of
$2,100 before mentioning Xspouse and temporary spousal support. This
further indicates that the permanent support award was not based on
Xspouse or the temporary support order. Finally, “‘[i]t is a basic presumption
. . . that the trial court is presumed to have known and applied the correct
statutory and case law in the exercise of its official duties.’” (Keep Our
Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 741.)
Hub has not cited anything in the record to overcome this presumption.
II.
THE MICHELTORENA PROPERTY
Hub argues the family court erred in calculating the value of the
Micheltorena property. He maintains the court improperly valued the
property closer to the time of trial rather than the time of separation.
Specifically, the court valued the Micheltorena property based on the
testimony of Fradkin, Rod’s expert, who valued it at $2.1 million as of
February 2022. In contrast, Lee, one of Hub’s experts, valued the property at
$1.44 million as of January 2021. Hub appears to contend that the court
should have relied on Lee’s valuation because it was calculated closer to the
separation date, April 2020, while Fradkin’s valuation was calculated closer
to trial, which began in November 2022.
Before analyzing Hub’s argument, we must define two important
concepts that Hub appears to have conflated. The first is the community’s pro
tanto ownership interest in the Micheltorena property. Generally, this
“percentage interest is found by dividing the amount by which community
property payments reduced the principal by the purchase price.” (In re
Marriage of Moore, supra, 28 Cal.3d at pp. 373–374.) We will refer to this
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percentage as the community interest. The family court found the community
had a 60.2 percent interest in the Micheltorena property, while Hub had a
39.8 percent separate interest. The second concept is the proper valuation of
the Micheltorena property. The court found it to be worth $2.1 million as of
February 2022.
Hub challenges the family court’s valuation of the Micheltorena
property. Citing In re Marriage of Mohler (2020) 47 Cal.App.5th 788 (Mohler),
he contends the court should have used Lee’s valuation of the Micheltorena
property because it was calculated closer to the time of separation. But Hub
misreads Mohler. As we explain below, the relevant holding in Mohler
concerns the community’s interest in a property, not the property’s value.
In Mohler, the husband bought a home in 1995. He married the
wife in 1998, and the couple lived in the home until their separation in 2011.
After separating, the wife moved out and the husband lived in the home for
over six years until the couple’s dissolution trial in 2017. (Mohler, supra, 47
Cal.App.5th at p. 791.) The couple agreed that the community had a 33.66
percent interest in the home at the time of separation. (Id. at p. 790.)
However, at trial, the wife argued the community’s interest in the home
continued to accrue after separation and had grown to 64.89 percent. (Ibid.)
The family court accepted the wife’s calculation, and the husband appealed.
(Id. at pp. 790–791.)
The appellate court reversed. It held the community’s interest in
the home stopped accruing after separation. (Mohler, supra, 47 Cal.App.5th
at pp. 790–791.) It explained the Moore/Marsden rule “is founded on a
conception that community property is being ‘invested’ in the separate
property by creating equity in it. Thus, during a marriage, only the portion of
community assets that is used to pay off loan principal is relevant to
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establishing the community interest in the property. After separation,
however, the earnings and accumulations of a spouse are that spouse’s
separate property.” (Id. at pp. 794–795.)
As to the home’s valuation, though, the appellate court found “the
trial court [was] correct to value the property as of the trial date. When the
trial court determines the value of the community’s property interest in a
residence, the property is to be valued as of the date of trial, not as of the date
of the parties’ separation. [Citations.] Prior to a dissolution trial, a party may
provide notice that, for equitable reasons, it seeks to value the property as of
an earlier date that is after the separation [citation], but neither [the
husband] nor [the wife] sought the use of an earlier date here.” (Mohler,
supra, 47 Cal.App.5th at p. 794, second and third italics added.)
Mohler’s ruling concerning the home’s valuation was based on
section 2552. Under section 2552, subdivision (a), when dividing the
community estate upon marital dissolution or legal separation, “except as
provided in subdivision (b), the court shall value the assets and liabilities as
near as practicable to the time of trial.” (Italics added.) Section 2552,
subdivision (b), then states that “[u]pon 30 days’ notice by the moving party
to the other 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 of the parties in an
equitable manner.” Like Mohler, other cases have found that section 2552
applies when valuing a property for purposes of a Moore/Marsden calculation.
(See, e.g., In re Marriage of Sherman (2005) 133 Cal.App.4th 795, 802
[“Under [section 2552], the trial court should have valued the residence as
close to the date of trial as practicable in determining the community’s pro
tanto interest”].)
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Here, Hub’s argument concerns the value of the Micheltorena
property. As such, the family court did not err by valuing the property closer
to the trial date instead of the separation date. (Section 2552, subd. (a);
Mohler, supra, 47 Cal.App.5th at p. 794; In re Marriage of Sherman, supra,
133 Cal.App.4th at p. 802.) Hub does not argue the court improperly
calculated the community’s interest in the Micheltorena property, so we will
not review this issue.6
Hub also appears to argue that both his experts’ appraisals (Lee
and Gardner) are more accurate than Fradkin’s appraisal. But the family
court is tasked with determining witness credibility and weighing the
evidence. On appeal, we do not “reweigh the evidence, redetermine the
credibility of the witnesses, or resolve conflicts in the testimony, and we will
not disturb the judgment if there is evidence to support it.” (Harley-Davidson,
Inc. v. Franchise Tax Bd. (2015) 237 Cal.App.4th 193, 213.) As such, we
cannot review the court’s finding that Fradkin’s appraisal was more accurate
than Lee and Gardner’s respective appraisals.
III.
DUE PROCESS
Finally, Hub contends his procedural due process rights were
violated because his counsel was given insufficient time on the last day of
6 Hub’s opening brief implicitly accepts the family court’s finding
that the community has a 60.2 percent interest in the Micheltorena property.
It states, “Since the community interest terminates at the date of separation
and the appraisals of Mr. Lee and Mr. Gardner are more relevant, the
community value on or about the date of separation would be $866,880.00 if
the court accepts Mr. Lee’s value and $975,000.00 if the court accepts Mr.
Gardner’s value.” Hub calculated these values using the 60.2 percent
community interest found by the court.
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trial to cross-examine Rod and directly examine Hub. This purportedly
prevented Hub from rebutting Rod’s evidence. We find no merit to this
argument.
As Hub concedes, the parties “agreed to equally divide the time
for the last day of trial.” He maintains this agreement was violated, and Rod
used more than his allotted time. At the start of trial, though, the family
court had instructed the parties to track their own time: “you guys keep track
of your own time, and you’re more than welcome to keep track of each other.”
Likewise, on the final day of trial, the court reminded the parties to “be
cognizant of your time for -- you guys have to do what you do.” But Hub never
informed the court that he lacked sufficient time to conduct any
examinations. As such, nothing in the record indicates the court did anything
to deny Hub a fair hearing. (See People v. Lowery (2020) 43 Cal.App.5th 1046,
1054 [“[A] party must raise an issue in the trial court if they would like
appellate review”].)
Hub attempts to excuse his failure to object and claims that
“[w]hen it became clear that [Rod] was using more than the time allotted, the
Trial Court should have interrupted and limited [Rod] to the agreed upon
time.” Hub fails to cite any authority for this rule or explain why such a rule
would be reasonable, especially where the court told the parties to track their
time. Thus, the argument is forfeited. (Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 956.)
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DISPOSITION
The property division order is affirmed. Rod is entitled to his
costs on appeal.
MOORE, ACTING P. J.
WE CONCUR:
DELANEY, J.
SCOTT, J.
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