In re the Marriage of JEFFREY GRIMES and MINGMING MOU. JEFFREY GRIMES, Respondent, v. MINGMING MOU, Appellant.
H046035
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
January 28, 2020
Certified for Publication February 19, 2020 (order attached); (Santa Clara County Super. Ct. No. 16FL174815)
A. Procedural History
Respondent Jeffrey Grimes and Mou married in January 2004 and separated in July 2015. Grimes filed a petition for dissolution of the marriage in April 2016.
On April 26 and May 10, 2018, the trial court held a hearing on reserved issues in the action, including property division and permanent spousal support requested by Mou. On May 24, 2018, the trial court entered its Findings and Order After Hearing on Spousal Support and Division of Scottrade Account.1 Mou filed a notice of appeal of the May 24 order on July 23, 2018.2
On October 29, 2018, the trial court issued further Findings and Order After Hearing, appending to that order a document titled “Attachment 7 to Findings and Order After Hearing.” In the attachment, the trial court ordered Mou to transfer half of the funds then in the brokerage account to Grimes and ordered Grimes to pay directly to Mou his one-half share of the debt owed to Mou‘s relatives on their loan to the marital community.
On January 23, 2019, the trial court entered an uncontested judgment of dissolution. The judgment incorporated and appended the May 24, 2018 order.3
At the hearing held on April 26 and May 10, 2018, that led to the order at issue in this appeal, the trial court heard testimony from Grimes, Mou, forensic accountant Reagan Wade, and vocational expert Richard Lyness.
Grimes and Mou lived in San Francisco for a few years after they married in 2004—first in a rental property and then in a condominium they purchased.4 They had a child in November 2005. Around August 2008, the family moved into a rental property in Palo Alto. In November of that year, Grimes and Mou had their second child.5
In 2013, Grimes and Mou had talked about purchasing a home. According to Grimes, during their conversations Mou said her family was willing to give them money for the home purchase. Grimes testified that his “understanding, initially, was that [the money from Mou‘s relatives] was to be a gift.”
In a December 2013 e-mail exchange, Grimes and Mou communicated about a $2 million potential bid on a particular home and the funds they could marshal for the purchase. Mou wrote that she “can always borrow some [money] from [her] brother to cover” a temporary shortfall in their bid due to Grimes‘s inability to sell certain stock until February 2014. Mou described in an e-mail the money that she had for purchasing the home as “my cash (400K at today‘s stock price, though $300K is from my brother but we can use it for a while).”
The money that Mou described as being “from [her] brother” had initially been deposited into Mou‘s account at Wells Fargo and then transferred into Mou‘s Scottrade brokerage account. Grimes testified that he did not know about the amounts or dates of
In a March 2014 e-mail exchange regarding “Taxes/Gifts from foreign persons,” Grimes told Mou, “Looks like we need to file [IRS] Form 3520 to avoid being penalized on any gifts received from foreign persons by April 15th.” Mou responded, “[T]hanks. [C]an you take care of that? [W]hat do you need?” Grimes said he “just need[ed] details to fill out the form.” Later, in an e-mail from Mou to Grimes regarding “info for tax filing,” dated April 15, 2014, Mou listed four dates and dollar figures (totaling $299,936)7 and wrote: “those are not gifts, those are loans from my brother. I‘m not sure if you need to file differently.”
Grimes testified that he and Mou filed joint tax returns for 2014 and 2015, and those returns included income from Mou‘s brokerage account. He reiterated his belief that the $299,936 received from Mou‘s relatives “was originally intended as a gift or at worst an interest[-free] loan.”8 Grimes claimed that Mou “recharacterized it as a loan”
Mou testified that the $299,936 in her brokerage account “was originally borrowed from her family members. At the time it was borrowed, it was intended to be used to help [Mou and Grimes] as a loan for the down payment on a piece of property that they were looking to purchase.”9 At the time the money was received, Mou discussed with Grimes “that this was money that they would be borrowing and that they would be responsible to repay the money.” “When the money was not used for the purchase of a home, [Mou] had deposited this money in a Scottrade account under her name solely, which she managed. She offered to return the funds to her relatives and they asked her to continue to manage the money on their behalf. [Mou‘s] understanding with her relatives was that she would be managing it for them and that gains or losses on that money would be for her relatives, not for her benefit.” The home Mou and Grimes intended to purchase would have been a community property home and the $299,936, had it been used to fund the purchase, would have been a community property debt. After depositing the money from her relatives into the brokerage account, in 2013 Mou deposited approximately $40,000 belonging to the community into the account and, in 2014, an additional $33,000 of community funds.
In response to questioning by the trial court, Mou testified that when she and Grimes decided not to purchase a home, she told Grimes that she was going to return the
When asked on cross-examination if there were any letters sent by her relatives “indicating that [the money] was a gift or a loan,” Mou answered, “Not letter. It‘s something like we just casually draft it [sic].” When asked further if there were “any documents that indicated that [her relatives] would get interest on their alleged money,” Mou said, “It was -- Yeah. They were saying it‘s to be determined.” Mou offered no documentary evidence to corroborate this portion of her testimony. None of her relatives testified at the hearing.
Mou withdrew $67,800 from the brokerage account after she and Grimes separated. According to the parties’ joint forensic accountant Reagan Wade, as of March 31, 2017, the brokerage account included $91,177.60 in community funds and $340,217.03 in Mou‘s relatives’ funds; that is, it was 21.14 percent community funds and 78.86 percent relatives’ funds. Wade testified that she was unable to determine which specific funds in the brokerage account were used when securities had been purchased and sold. Thus, Wade used a pro-rata approach based on the total amount of community funds and relatives’ funds in the brokerage account to apportion the funds as of March 31, 2017.10 Wade testified that because Mou had deposited her relatives’ money and
During the marriage, the family enjoyed what Grimes described as a middle to upper-middle class lifestyle. One child attended private school. The family owned three cars: a Subaru Legacy station wagon purchased new in 2005, a 2002 Lexus purchased around 2008, and a 2012 Porsche 911 purchased in 2013. The family went on vacation regularly during marriage, at a cost of around $5,000 annually. They dined out about once per month, spending about $60 to $70 per meal. At the time of their separation in July 2015, Grimes and Mou were renting a home in Palo Alto. Grimes continued to pay the rent and utilities (a cost of about $5,000 to $5,300 per month) voluntarily for about a year after the separation. Grimes estimated that he paid Mou around $250,000 to $300,000 in spousal support from July 2015 to May 2018.
In May 2018, Grimes was 43 years old and worked as an engineering manager at Google/YouTube. He had been employed at Google/YouTube since November 2006. Grimes earned a base salary of $230,000 per year in 2018, and received Google Stock Units (GSU), the most recent grant of which was worth approximately $200,000 and vested monthly over a four-year period. In addition, Grimes was eligible for a discretionary bonus. From 2011 through 2015, Grimes and Mou had a yearly total gross income of $316,260, $342,294, $447,639, $543,443, and $778,660, respectively.
In May 2018, Mou was 49 years old. She immigrated from China in 1997 after having completed a bachelor‘s degree there. Mou is fluent in Mandarin and English and obtained a master‘s degree in finance in 1999. Thereafter, Mou worked at several companies as a treasury analyst, which is a “mid-level contributor professional position.”
Until she left the Spectraforce position in October 2015, Mou had worked consistently throughout the marriage, only taking off for a few months on occasion to care for the children. In May 2016, the trial court ordered Mou to seek work. In addition, in early 2018, Mou agreed to having the trial court impute $90,000 of income to her for the purposes of determining temporary spousal and child support. In April 2018, Mou obtained contract employment as a “Treasury Services Consultant” at $48 per hour, which was her first paid employment since 2015.
Vocational expert Richard Lyness testified that Mou “may be at this point a little disadvantaged” in the job market due to her age and her absence from the workforce could be an added liability. Nevertheless, Mou presented as a “knowledgeable and pleasant professional,” and the fact that she had two academic degrees and a consistent work history with recognizable and well-known companies was “certainly an asset.” Lyness believed Mou was “readily employable and certainly capable of working toward becoming self-supporting.” He described the job market in the area as “robust” and said “there are a range of available jobs that are appropriate to [Mou‘s] portfolio.” Lyness had expected that Mou could have found new, appropriate employment within one year of the end of her employment in 2015. Lyness estimated Mou‘s current earnings capacity was
C. The Trial Court‘s Ruling
After hearing evidence and argument, the trial court issued its order on May 24, 2018. The trial court concluded the $299,936 from Mou‘s relatives held in the brokerage account was a loan to the community. The trial court observed that the lack of documentation about how funds in the brokerage account, which consisted of both community property and the funds from Mou‘s relatives, were invested meant that “[a]ny current attempt to ‘track’ particular purchases or returns to either funds from Ms. Mou‘s relatives or community funds appears to be based solely on conjecture or Ms. Mou‘s current recollection unsupported by any documentary evidence.” Further, all taxes on the interest, dividends, and capital gains/losses from the brokerage account were reported as income on Grimes and Mou‘s joint income tax returns.
The trial court rejected as unsupported by the evidence Grimes‘s primary contention that the funds from Mou‘s relatives were a gift to the community. The trial court observed that Grimes and Mou did not treat the money as a gift for tax purposes.
The trial court equally did not credit Mou‘s contention that the money (although originally a loan to the community) had been returned to her family and she was investing it on their behalf. There was no documentation evincing an “investment agreement” or supporting that Mou and her relatives had changed the character of the funds from a ” ‘loan’ ” to a ” ‘managed investment.’ ” Mou was not a trained or licensed broker/dealer. There was no record that Mou segregated her relatives’ funds or would have been able to track the gains or losses from those funds. The trial court found it “[s]ignificant[]” that “all gains and losses on these funds loaned to the community were treated as belonging to the Parties.” The trial court implicitly did not credit Mou‘s testimony to the contrary.
Regarding Mou‘s request for permanent spousal support, the trial court analyzed the evidence under the factors in
The trial court found a current impairment of Mou‘s earning capacity due to the two-year gap in her employment beginning around when the parties separated in July 2015. That impairment, however, did not result from Mou‘s spending time on domestic duties. Further, prior to 2015, Mou worked consistently for approximately 15 years before and during the marriage, only taking off for a few months on occasion for pregnancy disability or family leave in connection with child-bearing. Although Mou “took on greater responsibility for child-care, enabling [Grimes] to work the long hours required to achieve success as an engineering professional and manager,” there was “no evidence
The trial court found that Mou had “benefitted from temporary spousal support throughout the marital dissolution process, which was at a higher level and for a greater duration than was warranted under the facts of this case.” The trial court determined that Mou had not been involuntarily terminated from her position with Spectraforce in 2015; rather it was “more of a mutual separation.” The trial court observed that it had issued a “seek work order” in May 2016, and had ordered in early 2018 the imputation of income to Mou in the amount of $90,000 per year—soon after which Mou resumed work at a rate of $96,000 per year. The trial court found that Mou‘s job-search efforts had not been “appropriately and fully focused,” and if Mou had engaged in a good-faith job search, “she would have been employed within 12 months from commencing a diligent search, i.e. by August 1, 2016.” Further, “because of her unemployment, Ms. Mou was not required to contribute to the financial support of the Parties’ children, thus imposing a further burden on Mr. Grimes.”
Upon consideration of the evidence and argument of the parties, the trial court ordered Grimes to pay Mou long-term spousal support as follows: (a) $3,000 per month in base spousal support from June 1, 2018, through December 31, 2019, plus 20 percent of any additional income earned by Grimes in excess of $300,000 per year in 2018 and 2019; (b) $2,000 per month from January 1, 2020, through December 31, 2021; and (c) $1.00 per month from January 1, 2022, through November 30, 2026. The trial court noted that December 31, 2019, was the “last day of the year in which GSU‘s granted prior to the marital date of separation will presumably vest.”
In addition, the trial court defined “additional income” broadly to include “bonuses, commissions, stock grants, vested stock options, GSUs or other compensation from employment . . . received by [Grimes] on or before March 15, 2020 for work and services performed by [Grimes] prior to December 31, 2019, but [] not . . . regularly
The trial court directed that its order will remain in effect until “either party‘s death, [Mou‘s] remarriage, further court order, written agreement or November 30, 2026 (the last day of the month in which the Parties’ youngest child turns 18).” In addition, the order may be modified as to the amount of support upon a showing of changed circumstances. The trial court‘s jurisdiction to award further support may also be extended for changed circumstances upon a motion filed by December 1, 2026.
II. DISCUSSION
Mou raises two claims on appeal. Mou argues the trial court‘s ruling that the $299,936 received from Mou‘s relatives remained a marital community loan was not supported by substantial evidence and thus the trial court “should not have awarded [Grimes] a community property interest in the proceeds of the investment of those funds.” In addition, Mou contends that the spousal support award amounts to an abuse of discretion because the award was “far below [Mou‘s] actual needs” based on the marital standard of living and was unreasonably short in duration.
Before we examine the merits of Mou‘s claims, we address the appealability of the trial court‘s ruling on the characterization of the brokerage account funds.
A. Appealability of the Order Regarding the Brokerage Account
“The existence of an appealable judgment is a jurisdictional prerequisite to an appeal.” (Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292 (Doran).) Hence, we must first decide whether the trial court‘s order characterizing and dividing the funds in the brokerage account is appealable.
Mou contends that the ruling, which was appealed before the judgment was entered, is appealable under the ” ‘collateral order doctrine.’ ” In the alternative, Mou
“California is governed by the ‘one final judgment’ rule which provides ‘interlocutory or interim orders are not appealable, but are only “reviewable on appeal” from the final judgment.’ [Citation] The rule was designed to prevent piecemeal dispositions and costly multiple appeals which burden the court and impede the judicial process.” (Doran, supra, 76 Cal.App.4th at pp. 1292–1293.) An “exception to the ‘one final judgment’ rule codified in
We agree with Grimes that the trial court‘s ruling on the brokerage account is not an appealable order under the collateral order doctrine.12 The collateral order doctrine does not apply here because the trial court‘s ruling on the brokerage account was not collateral to or “truly ‘distinct and severable from the general subject of the litigation.’ ” (Muller v. Fresno Community Hospital & Medical Center (2009) 172 Cal.App.4th 887, 904.) Instead, the trial court‘s ruling was a necessary step to the ultimate division of the parties’ entire marital estate. (See In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1433 (Lafkas).)
Although Mou‘s notice of appeal of the brokerage account ruling was prematurely filed, we next consider whether we should nevertheless exercise our discretion and address the merits of Mou‘s claim. Eight months after the trial court issued its ruling, the trial court entered a judgment of dissolution that ordered a final division of the marital property. As Grimes acknowledges, “a final judgment has been entered so there is no risk of piecemeal disposition or multiple appeals.”13 Grimes further recognizes that, as an exercise of our discretion, we may treat a premature appeal as a petition for an extraordinary writ. Although we decline to exercise our discretion to deem Mou‘s appeal to be a writ petition, we do not dismiss Mou‘s appeal of the ruling on the brokerage account funds.
Mou claims that the evidence does not support the trial court‘s ruling that the $299,936 she received from her relatives was and continued to be an interest-free loan to the marital community. Mou asserts that after she and her relatives agreed that she would invest the funds for them, the money “ceased to be a ‘loan’ ” and, “[i]n effect, it became a trust, in which she held and invested the funds for her relatives’ benefit.” Mou argues that “there was no substantial evidence to support any ruling contrary to [Mou‘s] explanation” and her testimony was ”the only testimony explaining why the funds had never been repaid, and was the only reasonable explanation.” (Italics and boldface omitted.) Mou claims that, in consequence, the gains that resulted from investing the $299,936 are the property of her relatives, not the marital community.
We begin our analysis mindful that an “order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Further, ” ’ “[t]he finding of a trial court that property is either separate or community in character is binding and conclusive on the appellate court if it is supported by sufficient evidence, or if it is based on conflicting evidence or upon evidence that is subject to different inferences . . . .” ’ ” (Estate of Leslie (1984) 37 Cal.3d 186, 201.) In reviewing the sufficiency of the evidence, ” ‘[t]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,’ to support the trial court‘s findings. [Citations.] ‘We must therefore view the evidence in the light most favorable to the prevailing party, giving [that party] the benefit of every reasonable inference and resolving all conflicts in [that party‘s] favor . . . .’ ” (Id.) “All issues of credibility are [] within the province of the trier of fact.” (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925; see also Karas v. Karas (1951) 107 Cal.App.2d 135, 138.) However, “[s]ubstantial evidence is not any
Examining the entire record, we conclude that substantial evidence supports the trial court‘s finding that “the $299,936 was and is a loan to the community, made for a community purpose.” The testimony of the parties establishes that the funds from Mou‘s relatives were a community debt. Mou admitted that she borrowed the money intending that it would be a community property debt and would be used to purchase a home as community property. Further, Mou‘s e-mail to Grimes in April 2014, titled “info for tax filing,” stated that the $299,936 was a loan from her brother. Grimes, too, acknowledged his belief that the money was “at worst” an interest-free loan. Thus, the evidence supports the trial court‘s finding that the $299,936 in Mou‘s brokerage account was a debt for which the community estate was liable. In addition, the trial court‘s finding accords with
Mou contends that the “only evidence” about how Mou‘s relatives “agreed to treat the funds they had transferred to” Mou came from her testimony. However, Mou ignores that the trial court had before it evidence other than Mou‘s testimony in the form of information about contemporaneous behavior by Mou and Grimes. The trial court noted that Mou did not segregate the $299,936 from other funds in her brokerage account and would not have been able to separately track gains and losses for the relatives’ money. The parties’ joint forensic accountant testified that “if [Mou] had wanted to maintain her relatives’ securities as a whole, she could have and should have probably set up her own
The issue of Mou‘s credibility was a matter for the trial court to resolve, not this court. “[S]o long as the trier of fact does not act arbitrarily and has a rational ground for doing so, it may reject the testimony of a witness even though the witness is uncontradicted. [Citations.] Consequently, the testimony of a witness which has been rejected by the trier of fact cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.) That Mou commingled the funds she received from her relatives with community property before and after the purported investment agreement and reported the income and losses on the parties’ jointly-filed tax returns is evidence of solid value upon which the trial court could properly reject Mou‘s assertion that the character of the funds changed when the couple elected not to purchase a house. Further, under questioning from the trial court, Mou demonstrated some uncertainty about the timing of her purported offer to return the loan proceeds to her relatives and their direction to invest the money. Mou also testified that she told Grimes about offering to return the money and investing it from her brokerage account. But Mou‘s testimony in this regard conflicted with Grimes‘s testimony that he lacked knowledge of the funds in the brokerage account until 2015.
On the present record, we may not disregard as arbitrary or irrational the trial court‘s rejection of Mou‘s testimony about the characterization of the money in the brokerage account. Similarly, we determine that the trial court could reasonably infer from the manner in which the parties treated the $299,936 from the time the money was
C. Permanent Spousal Support
Mou claims that the trial court abused its discretion when it awarded her permanent spousal support, because “a mere $2,000 per month . . . for the two years beginning January 1, 2020, is so far below her actual needs based on the standard of living she enjoyed during the long-term marriage,” and “a mere three-and-a-half years [of spousal support] after the 11.5-year marriage” is unreasonably brief. (Fn. omitted.) Mou asserts specifically that the trial court‘s failure to “specify what income [Mou] would actually need to maintain the marital standard of living, or whether the support as ordered would enable her to maintain the marital standard of living” “suggests the court‘s determination of the amount and duration of support was so arbitrary as to require reversal under the applicable abuse of discretion standard.”
Mou contends that the trial court‘s failure to specify the income Mou needed to maintain an upper-middle class standard of living evinces arbitrariness in its spousal support determination. However, Mou‘s argument rests on an incorrect premise—that the trial court was obligated to award spousal support in an amount that would have supported Mou at the marital standard of living.
The marital standard of living is “a general description of the station in life the parties had achieved by the date of separation,” rather than a “mathematical standard.” (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 491 (Smith).) Furthermore, “[s]ection 4330 does not make ‘marital standard of living’ the absolute measure of reasonable need. ‘Marital standard of living’ is merely a threshold or reference point against which all of the statutory factors may be weighed. [Citation.] It is neither a floor nor a ceiling for a spousal support award.” (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1560 (Nelson).)
While “the marital standard of living is an important factor in determining spousal support, it is not the only factor, and its importance in determining whether it is ‘just and reasonable’ (
California law has long rejected the position argued by Mou—that if Grimes could have afforded to pay spousal support in an amount that would have allowed Mou to maintain the marital standard of living enjoyed by the couple prior to dissolution, then the trial court abused its discretion in not so doing. In Smith, the Court of Appeal refused to adopt the standard proposed by the appellant there that ” ‘[i]f the supporting spouse has returned to the pre-dissolution standard of living, and can also afford to pay support at that level, that is the order which must be made.’ ” (Smith, supra, 225 Cal.App.3d at p. 483, italics omitted.) The court “reject[ed] this use of only one factor in [the spousal support statute], to the exclusion of all others.” (Ibid.)
Instead, “permanent spousal support is supposed to reflect a complex variety of factors established by statute and legislatively committed to the trial judge‘s discretion, including several factors which tend to favor reduced support [when compared to temporary support], such as the ‘goal’ that the supported spouse should become self-supporting within a reasonable period of time.” (In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525;
Having clarified the relevance of the marital standard of living to the overall determination of spousal support under
In its findings and order, the trial court listed all of the factors under
III. DISPOSITION
The trial court‘s May 24, 2018 order is affirmed. Respondent is awarded costs on appeal.
Danner, J.
WE CONCUR:
Elia, Acting P.J.
Grover, J.
H046035 Grimes v. Mou
Filed 2/19/20
In re the Marriage of JEFFREY GRIMES and MINGMING MOU. JEFFREY GRIMES, Respondent, v. MINGMING MOU, Appellant.
H046035
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
CERTIFIED FOR PUBLICATION; (Santa Clara County Super. Ct. No. 16FL174815)
BY THE COURT:
The opinion in this case filed January 28, 2020, was not certified for publication. After the court‘s review of a request under
Danner, J.
Elia, Acting P.J.
Grover, J.
H046035 Grimes v. Mou
| Trial Court: | Santa Clara County Superior Court Superior Court No. 16FL174815 |
| Trial Judge: | Hon. Roberta Hayashi |
| Counsel for Appellant Mingming Mou: | Adam R. Bernstein Law Offices of Adam Richard Bernstein |
| Counsel for Respondent Jeffrey Grimes: | Christopher C. Melcher Walzer Melcher LLP |
H046035 Grimes v. Mou