This opinion is so, so right. And I'd have been harsher -- in tone if not in content -- to the appellant, Kevin J. Berman.
Of course Mr. Berman was trying to shaft his ex-wife out of alimony when he transferred his business that had over $200,000 of annual income to his current wife for absolutely no consideration. When I read the facts of the opinion, I thought that this was an obvious sham. Sure, Berman said that he was merely old and decided to retire -- all of this on top of the $30,000+ disability payment he receives every year from his prior career as a police officer. But the trial court found him uncredible and said he was in fact doing this merely he could reduce his alimony yet simultaneously retain all the benefits (through his current wife) of the business that he was now ostensibly "giving up".
Darn tootin'.
Every word the Court of Appeal says in affirming the decision below is spot on. As Justice Flier recounts:
"It is
undisputed that Kevin transferred to his wife an asset that had
generated $220,000 in business income the previous year. It is
undisputed that there was no consideration for the transfer of
this apparently valuable asset. As the court noted, Kevin presented no evidence to explain the lack of consideration for the
transfer. The court could reasonably infer that Kevin had
arranged this transaction to eliminate his business income on
paper while still enjoying its benefits through his wife’s
ownership. Similarly, the court could infer that Kevin’s wife
“could . . . be expected to act at his behest” (Dick, supra, 15
Cal.App.4th at pp. 164-165), and therefore Kevin had the ability
to pay spousal support despite the transfer of his business. The only evidence that the transfer was in good faith came
from Kevin’s declarations and papers below, in which he insisted
that he did not transfer the business to avoid his support
obligations. The court did not believe him, and that credibility
determination is binding on this court."
Totally, indisputably right. As is the remainder of the opinion.
If I was Mr. Berman, I'd be embarrassed to even bring this appeal. And if I were on the Court of Appeal, you could be darn sure that I'd award his ex-wife her attorney's fees, an issue that the opinion (in a footnote) leaves to the trial court to resolve on remand.
