Filed 3/15/13 Marriage of Chiu CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re the Marriage of LEEYUNG P. and 

NEWTON P. CHIU.

LEEYUNG P. CHIU,

Respondent,

v.

NEWTON P. CHIU,

Appellant.

 A132290

 (San Francisco County

 Super. Ct. No. FDI-03-753401)

In this dissolution proceeding, appellant Newton Chiu appeals from the trial 

court‟s order imputing to him $450,000 in fictive income based on his alleged failure to 

collect sufficient rents from community-owned apartment buildings during a 45-month 

period of marital separation. He claims the court relied on an erroneous legal theory in 

making this determination. He also contends the court erred in failing to award him 

reimbursement for separate property he used to maintain and repair one of the parties‟ 

buildings. 

We conclude the trial court erred in imputing $450,000 in lost rental income to 

appellant. We remand the matter to the court for proper determination of the amount of 

the parties‟ equalization payment. We also conclude the trial court‟s decision to deny his 

reimbursement request is supported by substantial evidence. We therefore reverse the 

order in part, and affirm in part. 
2

FACTUAL BACKGROUND AND PROCEEDURAL HISTORY

I. Factual Background and Pretrial Proceedings

The parties have been married twice. They were first married in May 1969 in 

China. Appellant emigrated to the United States in 1974 and has been employed by the 

Port of Oakland as a janitor since 1977.1 Respondent came to the United States to join 

him in 1979. Over time, appellant purchased several inexpensive properties with the goal 

of fixing them up in order to rent or sell them. The parties separated for the first time in 

March 1987. After the separation, appellant commenced a dissolution proceeding in 

Alameda County. A default judgment was filed in December 1988. The judgment 

addressed only one of the properties owned by the parties. 

Appellant married and divorced another woman between 1989 and 1991. The 

parties were again married in December 1992. They separated for the final time in June 

1994. By then, they owned four properties in Oakland. 

On April 3, 2003, respondent filed a petition for dissolution of the second 

marriage. 

On May 9, 2005, respondent filed a complaint for joinder as to appellant‟s sister 

and brother-in-law. The complaint alleges that appellant, along with his sister and her 

husband, had bought a property located at 900 Foothill Boulevard in Oakland in 1985, 

two years before he filed for dissolution of the first marriage. The building was not 

mentioned in the judgment of dissolution. Respondent claimed appellant‟s interest in the 

property was a community property interest subject to division. 

On May 11, 2005, the trial court directed that the property at 1710 15th Avenue be 

listed for sale. In December 2005, appellant bought out respondent‟s interest in the 

property. 

On April 18, 2008, the trial court filed a stipulation and order appointing John 

Mangini as the court‟s accounting expert under Evidence Code section 730. He was 

directed to prepare a written tracing of income, rents, and expenses related to the parties‟ 

 

1 Appellant was 74 years old at the time of trial. 
3

real estate holdings. The parties were to cooperate in providing him with all necessary 

documentation. 

On May 26, 2009, the trial court filed an order naming Roxanne Ekhos as its new 

accounting expert, in place of Mangini. Appellant was directed to provide her with any 

information that Mangini had previously requested. 

On January 21, 2010, the trial court filed a judgment determining that 50 percent 

of the 900 Foothill Boulevard property was the parties‟ community property. 

On September 10, 2010, a status-only divorce judgment was entered. All other 

issues were reserved. 

On February 24, 2010, the trial court filed an order after settlement conference. 

The order sets forth nine issues to be addressed at trial, including whether appellant 

breached his fiduciary duty to respondent by mismanaging three of the properties during 

periods of marital separation. The order also states that the trial was to address 

appellant‟s claims for reimbursement, conditioned on him providing a list of claims and 

supporting documentation to Ekhos and respondent‟s counsel at least 60 days prior to 

trial. 

II. Trial

A. Management of the Parties’ Rental Properties

Matthew Smith testified on behalf of respondent as an expert in real estate 

appraisals. The property at 900 Foothill Boulevard has six units. In March 2009, he 

estimated $19,000 in repairs were necessary to make the property rentable. Only three of 

the units were habitable at that time. He estimated the property‟s market value at 

$835,000. By May 2010, the value had dropped to $600,000. The reason for the decline 

was lowered rental rates, which lowers the potential income that can be generated. In 

May 2010, he estimated the potential monthly rental income for all of the units was 

$6,050. 

The property at 309 Foothill Boulevard also has six rental units. In March 2009, 

Smith estimated it needed about $33,000 in repairs to bring it to market condition. All 

the units were habitable, though the building itself needed repairs for problems such as 
4

termite damage. At that time, he estimated the value of the property was $870,000. By 

July 2010, the value had declined to $500,035. The projected potential total rental 

income from all the units was $6,500 per month. 

The final property is a four-unit building located at 1444 9th Avenue. Smith 

deemed all the units to be habitable, though the building needed about $19,000 in repairs. 

The estimated value of the property in March 2009 was $500,000. Similar to the other 

two properties, the value had declined to $330,000 by July 2010 due to market 

conditions. In July 2010, he estimated the total potential rental income for the building at 

$3,900 per month. Taking all three properties into account, there were 11 habitable units 

that were not being rented out in 2009.2

The rental properties had also been appraised in 2005. At that time, the appraisal 

report indicated that the units at 1444 9th Avenue and 309 Foothill Boulevard could have 

been made ready for occupancy with only minor repairs. However, seven of the 10 rental 

units in these two buildings were vacant at that time. Appellant testified the properties 

had water damage that the appraisal report did not take into account. By 2009, there were 

a total of 11 vacant units in the three buildings. Appellant testified the empty units were 

not habitable.3

Respondent testified she was unhappy with appellant‟s management of their rental 

properties. She also submitted a written trial declaration. After the parties formally 

separated, the number of units he rented out had decreased. The decrease in tenancy 

occurred mainly after 2003. Based on the low occupancy of the parties‟ rental properties 

during the time when they were under appellant‟s exclusive management and control, she 

requested he be charged with the rents lost due to his failure to ready all units for the 

rental market and/or rent those units deemed habitable. In her declaration, she did not 

allege that appellant had ever lied to her or withheld information from her concerning the 

 

2 Appellant occupies one of the units at 900 Foothill Boulevard. 

3

The report indicated that the three unoccupied units at 900 Foothill Boulevard were in need of 

extensive repairs. 
5

management of the rental properties. Nor did she allege he had ever stolen rents or 

managed the properties to benefit only himself. 

On cross-examination, respondent conceded that even when she had sufficient 

funds she never offered to give appellant money to help manage or improve their 

properties. She claimed, however, that he never asked her to do so. After he gave her a 

buy-out payment in 2005 for the family residence on 15th Avenue, he prohibited her 

from entering the rental properties. He has been solely and exclusively in control of 

those properties since the parties separated in 1994. 

Appellant testified that beginning in June 30, 1994, there were 14 units available 

to be rented among all three properties. He conceded occupancy of the buildings had 

declined since 2003. The reason for the decline was that tenants were moving out due to 

the deteriorating condition of the properties. He denied the decline had any relationship 

to respondent‟s filing of dissolution proceedings that year. 

In 2009, appellant hired Victor Jin to manage the three rental properties and 

oversee needed repairs. The biggest job was to have the foundation repaired at 1444 9th 

Avenue. The job was not done because respondent was not willing to help appellant pay 

for it. The initial estimate for that job came in at $25,000, but had increased to $50,000 

by November 2009. Jin did not complete all the repair jobs he was slated to do, and 

respondent did not help pay for any repairs during that year. However, some painting 

was completed. 

In calculating lost rental income, Ekhos compared actual rents to the full rental 

value as stated in the appraisers‟ reports. As a second method of calculation, she also 

considered comparing the actual rents collected from 2005 through 2009 to the maximum 

rents ever collected by the properties. Using the first method, for the stated period of 45-

months (July 2005 through March 2009), she estimated the total lost rents were $450,000, 

or $10,000 per month. She did not make a calculation using the second method. 

B. Appellant’s Reimbursement Claims

Ekhos testified that she has been a certified public accountant since 1999. The 

instant case was the first time she had served as a court-appointed expert. She previously 
6

worked for Mangini, the expert initially appointed by the trial court. She assisted him by 

preparing most of the schedules that he would present and testify about in family law 

cases. She had accompanied him to about a dozen trial dates and settlement conferences. 

A prior settlement conference order required appellant to provide Ekhos with a list 

of his claims for separate property reimbursements, along with supporting documents. 

She testified that he never provided her with an itemized list of improvements made to 

the parties‟ properties. Instead, he gave her boxes of receipts documenting business 

expenses he had claimed on his tax returns over several years. The files were organized 

by year and by line item of the Schedule E filed with his tax returns. The information 

was not compiled in such a manner as to allow her to verify any claims he may have had 

for improvements made to the properties during the post-separation period. The 

difficulty arose from the tremendous volume of documents that would need to be 

individually reviewed and analyzed. 

In conducting her analysis, Ekhos sampled the tax documents and did not go 

through every piece of paper. In each tax year she found claims made for improvements 

that she was unable to verify. In many cases, receipts for personal items were mixed with 

files that purportedly contained receipts for building materials. Thus, some of the 

receipts did not reflect appropriate deductions for building expenses. Additionally, she 

could not determine whether the building expenditures that she was able to verify were 

actually used for improvements to the rental properties. 

A month or two after she received the tax documents, she asked appellant to 

provide further proof of his claims. She received spreadsheets from his accounting 

expert, Stuart Weil, reflecting adjustments to the returns. The adjustments showed 

business expenditures, but did not indicate whether the expenditures were made for 

improvements. They also did not address the receipts for miscellaneous personal 

expenses that she had discovered before, so the information was not much more specific 

than what she had already received. Weil did set forth a schedule of repairs and 

improvements for the period 1994 through 2008 totaling approximately $757,000. 

According to Ekhos, actual and theoretical rents collected and potentially collectable 
7

from tenants would have been sufficient to cover the properties‟ fixed costs as well as the 

costs of appellant‟s claimed repairs and improvements. 

Weil testified as a rebuttal witness on behalf of appellant. He is licensed as an 

attorney as well as a certified public accountant. He has testified as an expert witness in 

about 20 cases, the majority of which were family law cases. He read Ekhos‟s report and 

found it lacked a conclusion with respect to how much money, if any, appellant was 

entitled to as reimbursement. To arrive at an estimate of these costs, Weil‟s employees 

examined all the documents in the boxes of appellant‟s tax records.4

Weil‟s analysis showed there was a negative cash flow on the properties, and that 

money was spent on improvements that could not have been funded by the properties 

themselves. These would represent reimbursable claims, made with his separate property 

for the benefit of community assets. Weil‟s initial figure for these costs was $600,534 for 

the years 1994 through 2008. However, Weil recommended adjusting the amount, 

primarily to compensate for various accounting irregularities in appellant‟s records. Weil 

offset the initial amount by $314,271.50, leaving the total amount of estimated expenses 

for improvements at $286,262.50. 

At the close of respondent‟s case, appellant moved for a directed verdict on her 

claim for breach of fiduciary duty. His counsel argued that while she might have been 

unhappy with his management skills, his conduct did not amount to a breach of fiduciary 

duty. In rebuttal, respondent‟s counsel relied on In re Marriage of Munguia (1983) 146 

Cal.App.3d 853 (Munguia), in asserting that the spouse with control over community 

property after separation has a duty to maximize its value. The motion was denied. 

III. Posttrial Proceedings

At the close of trial, in lieu of closing argument, the parties each submitted a 

proposed statement of decision. 

On February 2, 2011, the trial court filed its tentative statement of decision. 

 

4 At this point in the proceedings, the trial judge noted that the settlement conference order had 

specifically required appellant to have provided Ekhos with a list of all the improvements along 

with documentation. This was not provided to her, so therefore she had not gone through the 

boxes to categorize the documents and review all the receipts, as that was not her mandate. 
8

On March 25, 2011, the trial court filed its final statement of decision. The court 

found in favor of respondent on her claim of breach of fiduciary duty. In particular, the 

court noted that of the 16 units in the three rental properties, 13 were habitable and, of 

these, 11 remained vacant. While not directly stating whether Munguia stands for the 

proposition that the spouse who controls community property after separation has an 

affirmative duty to maximize its value, the court found “The facts adduced in the present 

case demonstrate that far from maximizing the properties [sic] values, [appellant] ran 

them into the ground. The [appellant] ignored tenants‟ requests to perform repairs and 

the quality of the premises disintegrated under his regime. Occupancy declined and 

although the appraiser indicated that a significant number of the units were habitable and 

ready to be rented, they were not.” The court used Ekhos‟s figure of $450,000, requiring 

him to give respondent $225,000 as the measure of her half of the lost community rents. 

As to appellant‟s claim for reimbursement, the trial court found it was unable to 

determine the amount, if any, that he was entitled to, due to the unreliability of his tax 

returns and his failure to comply with the court‟s prior directives. Based on his demeanor 

and his testimony, the court also concluded he lacked credibility. 

On May 2, 2011, the trial court filed a judgment setting forth its property division 

and equalizing the community estate. Respondent was awarded the 1444 9th Avenue 

property (valued at $330,000) and $330,632.50 in proceeds from the sale of 309 Foothill 

Boulevard, along with a net equalizing payment from respondent of $200,069, which 

included her share of the fictive lost rents. Appellant was awarded a one-half interest in 

the 900 Foothill Boulevard property (worth $275,000) and a $5,140 insurance check. 

Respondent was awarded attorney fees. This appeal followed. 

DISCUSSION

I. Standards of Review 

We review factual findings of the family court for substantial evidence, examining 

the evidence in the light most favorable to the prevailing party. (In re Marriage of 

Hokanson (1998) 68 Cal.App.4th 987, 994.) “ „ “In reviewing the evidence on . . . appeal 

all conflicts must be resolved in favor of the [prevailing party], and all legitimate and 
9

reasonable inferences indulged in [order] to uphold the [finding] if possible.” ‟ 

[Citation.]” (In re Marriage of Bonds (2000) 24 Cal.4th 1, 31.) We review issues of 

statutory interpretation de novo. (Eidsmore v. RBB, Inc. (1994) 25 Cal.App.4th 189, 

195.) 

II. $450,000 in Fictive Community Income Charged to Appellant

Respondent alleged in her trial declaration that potential community rental income 

was improperly lost due to appellant‟s “mismanagement” of the parties‟ rental properties 

during a substantial period of separation. This was the basis of her claim for breach of 

fiduciary duty. In support of her claim, she relied largely on Smith‟s finding that in 

March 2009, 11 habitable units had not been rented out. She requested that appellant “be 

charged with the rents lost due to his failure to ready all units for the rental market and/or 

rent those units deemed to be habitable.” In her trial brief, she contended he had 

“provided no evidence that he tried to rent the habitable units or tried to ready the other 

units for rent. In the absence of such evidence, [appellant] breached his fiduciary duty to 

[respondent].” She cited to Munguia for the proposition that, like the husband in that 

case, appellant “had a fiduciary duty to maximize the value of the properties by trying to 

rent them.” The trial court noted appellant‟s contention that this aspect of Munguia was 

dicta only, but essentially agreed with it, finding that appellant “ran [the rental business] 

into the ground.” 

Appellant first claims that the fiduciary duty ruling must be reversed because it is 

based on the erroneous legal theory that he had a duty to maximize the value of the 

parties‟ community property. He also argues that the trial court erred in adopting 

Ekhos‟s calculation of lost rents because the court set a standard that “far exceeded” his 

responsibilities under the law. We agree with appellant that the trial court erred in 

relying on Munguia in imposing a requirement on him to have maximized the value of 

the rental properties. 
10

Spouses have a duty to manage community property in accordance with “the 

general rules governing fiduciary relationships.” (See Family Code, §§ 721, subd. (b)5; 

1100, subd. (e)6.) “This confidential relationship imposes a duty of the highest good faith 

and fair dealing on each spouse, and neither shall take any unfair advantage of the other.” 

(§ 721, subd. (b).) Under section 1101, subdivision (a), “A spouse has a claim against the 

other spouse for any breach of the fiduciary duty that results in impairment to the 

claimant spouse‟s present undivided one-half interest in the community estate, including, 

but not limited to, a single transaction or a pattern or series of transactions, which 

transaction or transactions have caused or will cause a detrimental impact to the claimant 

spouse‟s undivided one-half interest in the community estate.”7

 

5

 All statutory references are to the Family Code unless stated otherwise. 

 Section 721, subdivision (b), provides: “Except as provided in Sections 143, 144, 146, 16040, 

and 16047 of the Probate Code, in transactions between themselves, a husband and wife are 

subject to the general rules governing fiduciary relationships which control the actions of persons 

occupying confidential relations with each other. This confidential relationship imposes a duty of 

the highest good faith and fair dealing on each spouse, and neither shall take any unfair 

advantage of the other. This confidential relationship is a fiduciary relationship subject to the 

same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, 

and 16503 of the Corporations Code, including, but not limited to, the following: [¶] (1) 

Providing each spouse access at all times to any books kept regarding a transaction for the 

purposes of inspection and copying. [¶] (2) Rendering upon request, true and full information of 

all things affecting any transaction which concerns the community property. Nothing in this 

section is intended to impose a duty for either spouse to keep detailed books and records of 

community property transactions. [¶] (3) Accounting to the spouse, and holding as a trustee, any 

benefit or profit derived from any transaction by one spouse without the consent of the other 

spouse which concerns the community property.” 

6

Section 1100, subdivision (e), provides: “Each spouse shall act with respect to the other spouse 

in the management and control of the community assets and liabilities in accordance with the 

general rules governing fiduciary relationships which control the actions of persons having 

relationships of personal confidence as specified in Section 721, until such time as the assets and 

liabilities have been divided by the parties or by a court. This duty includes the obligation to 

make full disclosure to the other spouse of all material facts and information regarding the 

existence, characterization, and valuation of all assets in which the community has or may have 

an interest and debts for which the community is or may be liable, and to provide equal access to 

all information, records, and books that pertain to the value and character of those assets and 

debts, upon request.” 

7

If a spouse has breached his or her fiduciary duty, but not in a manner displaying fraud, malice, 

or oppression within the meaning of Civil Code section 3294, Family Code section 1101, 

subdivision (g), governs the applicable remedies. (Fam. Code, § 1101, subds. (g), (h).) 

Subdivision (g) provides that these remedies “shall include, but not be limited to, an award to the 

other spouse of 50 percent, or an amount equal to 50 percent, of any asset undisclosed or 

transferred in breach of the fiduciary duty plus attorney‟s fees and court costs.” 
11

Appellant claims he was under a fiduciary duty that merely required him to 

perform to a standard “marginally better than gross negligence.” Under Corporation 

Code section 16404, subdivision (c), made applicable here by operation of Family Code 

section 721, subdivision (b), “[a] partner‟s duty of care to the partnership and the other 

partners in the conduct and winding up of the partnership business is limited to refraining 

from engaging in grossly negligent or reckless conduct, intentional misconduct, or a 

knowing violation of law.”8 (Italics added.) Relying on this provision, he asserts holding 

him culpable for failing to produce the maximum possible rental income is directly 

contrary to the law governing spousal fiduciary duties and is unauthorized. We agree. 

There is nothing in the relevant statutory language that equates a managing spouses‟ 

failure to maximize the value of the community‟s property with a breach of fiduciary 

duty to the non-managing spouse, and the trial court erred in relying on Munguia to 

justify such a finding. 

Munguia involved valuation of a community property business that would have 

been worth at least 50 percent more if the managing spouse were able to renew the 

business‟s lease that was due to expire in eight months. In holding the trial court erred by 

choosing a lower value rather than reserving jurisdiction to see whether the lease was 

renewed, the appellate court observed in an aside that the spouse could have been under a 

“fiduciary duty to maximize the value of the [business] by securing a continuation of the 

lease.” (Munguia, supra, 146 Cal.App.3d 853, 859.) This statement is dicta, and we 

have not located a published decision citing to it for the proposition that spouses have a 

fiduciary duty to maximize community income during periods of separation. 

We find informative the appellate court‟s opinion in In re Marriage of Partridge

(1990) 226 Cal.App.3d 120. As the court in Partridge noted, “The central issue in 

Munguia was the valuation of a community asset, a bar. The value of the bar was 

 

8

“The theory that there are degrees of negligence has been generally criticized by legal writers, 

but a distinction has been made in this state between ordinary and gross negligence. [Citation.] 

Gross negligence has been said to mean the want of even scant care or an extreme departure 

from the ordinary standard of conduct.” (Van Meter v. Bent Construction Co. (1956) 46 Cal.2d 

588, 594.) 
12

directly dependent upon the length of its leasehold, a matter that had yet to be determined 

as of the time of trial. The appellate court simply held it was error for the trial court to 

adjudicate the value of the asset before the length of the leasehold was settled; instead, it 

should have reserved jurisdiction to do so once the lease length was determined. In dicta, 

the court noted that if the husband, who had sole management and control, were to be 

shown to have intentionally mismanaged the lease negotiations to thwart a long-term 

lease (thus breaching his fiduciary duty to the community), this could be taken into 

consideration in redetermining the value. [Citation.] Other than stating the undisputed 

principle that intentional mismanagement is a factor in valuation, the case does not 

support wife‟s position as it does not contain any benchmark by which it can be said 

husband‟s conduct amounted to intentional mismanagement.” (Id. at p. 125.) 

We also note respondent does not allege appellant failed to disclose any financial 

information or otherwise acted against her interests to secure any unfair benefit for 

himself. Further, he never concealed the lack of rental revenue from her, suggesting that 

she could have taken legal action to intervene instead of passively allowing the 

apartments to languish unrented. Viewed in that light, the trial court‟s decision to impute 

$10,000 per month in lost rental income to him is unsupported as a matter of law, and is 

arguably both unfair and unjust. We therefore reverse the portion of the judgment 

finding that he breached his fiduciary duty, and remand for the court to recalculate the net 

equalizing payment between the parties. This calculation must reflect the community 

property interest of the Chius as opposed to the ownership by any third party in the 

individual properties. Also, the trial court shall assess the payment obligation according 

to the legislative principles contained in Family Code section 721, subdivision (b), and its 

references to the legal standards articulated in Corporation Code sections 16403 and 

16404, subdivision (c). 

III. Reimbursement for Separate Property Contributions

Section 2640 specifies that when dividing community property, a “party‟s 

contributions to the acquisition of property in the community property estate” shall be 

reimbursed “to the extent the party traces the contributions to a separate property source.” 
13

(§ 2640, subd. (b).) In the seminal case of In re Marriage of Epstein (1979) 24 Cal.3d 

76, superseded by statute on other grounds, our Supreme Court recognized a spouse‟s 

right to reimbursement from community property for payment of postseparation 

community expenses from the spouse‟s separate funds. The high court adopted the view 

expressed in In re Marriage of Smith (1978) 79 Cal.App.3d 725, as follows: “ „[A]s a 

general rule, a spouse who, after separation of the parties, uses earnings or other separate 

funds to pay preexisting community obligations should be reimbursed therefor out of the 

community property upon dissolution.‟ ” (Epstein, supra, at p. 84, quoting Smith, supra,

at p. 747.) Conversely, if the managing spouse uses community money to pay a 

community obligation, there is no basis for reimbursing the spouse for that payment. 

(See Smith, supra, at p. 744 [judgment reimbursing husband for postseparation payments 

on community debts reversed because “there is no showing these payments by husband 

were made with his separate funds”; court ordered retrial rather than entry of judgment 

for wife because evidence suggested “some of the funds paid came from husband‟s . . . 

separate property”].) 

On appeal, appellant asserts the trial court erred in denying his reimbursement 

claim as to the property located at 1710 15th Avenue. He contends it is undisputed that 

he spent over $145,000 in separate property for expenses associated with the property, 

expenses that he asserts were documented by cancelled check, lender statement, and 

similar corroboration. Respondent does not address the merits of this argument in her 

brief. Instead, she contends generally that because he failed to itemize these claimed 

expenditures pursuant to the trial court‟s pretrial order he should be precluded from being 

reimbursed for any postseparation expenses. 

The trial court denied all of appellant‟s claims for reimbursement, finding itself 

unable to accept the assumption that his tax returns and receipts were trustworthy. As the

trier of fact, the trial judge is the sole judge of credibility and “may reject any evidence as 

unworthy of credence, even uncontradicted testimony.” (In re Marriage of Falcone & 

Fyke (2012) 203 Cal.App.4th 964, 979.) It is not the function of this court to reweigh the 
14

evidence. Accordingly, we are unable to conclude that the trial court erred in denying 

appellant‟s request for reimbursement as to 1710 15th Avenue. 

DISPOSITION

The judgment is reversed as to the determination that appellant breached his 

fiduciary duty to respondent. The matter is remanded for determination of the parties‟ 

equalization payment in a manner consistent with this opinion. In all other respects, the 

judgment is affirmed. Parties to bear their own costs on appeal. 

__________________________________

Dondero, J. 

We concur: 

__________________________________

Margulies, Acting P. J. 

__________________________________

Banke, J.