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Behary v. Malik3/19/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
SUMMARY
In this dissolution proceeding, the trial court determined a business started during the marriage to be community rather than separate in character and rendered judgment in accord with this finding. The husband appeals, claiming all proceeds of the business to be his separate property and challenging other related findings. We affirm but remand with instructions to the trial court to correct an error in the judgment conceded in the husband's opening brief.
FACTUAL AND PROCEDURAL SYNOPSIS
Tara Behary and Raj Malik were married in January 1992. At the time, Behary was employed as an administrative assistant at the LAC/USC Medical Center. Malik had worked as a metallurgical engineer in the aerospace industry for 29 years but was unemployed. In light of Malik's most recent layoff, the two discussed starting a business. In April, because it required minimal start up costs, the two started a public pay phone business known as Hollywood Gong. They attended training together to learn how to run such a business, including how to repair the phones and how to use a computer program to monitor them.
Behary and Malik agreed they "would go half and half." Referring to the business as a "partnership," Malik said that Behary would be the "co-owner" of the phones and that he would put both their names on "all the legal documents." Behary used her salary, and Malik used his unemployment checks to buy each phone as well as the computer and other equipment to start the business which the couple operated out of their single (one-room) apartment . Whatever money came in from the phones was reinvested in the business, primarily to buy new phones. A few months later, Behary won $5,000 in Las Vegas and invested all of it in Hollywood Gong.
The business grew "one location at a time," "one phone at a time." On evenings and weekends, the two would "scout out locations." They would contact a property owner, discuss installing a phone on the premises, and, if the owner was willing, enter into a contract for the location and then install a pay phone. From 1992 through 1998, Behary maintained, cleaned and "zeroed out" the phones and assisted Malik with repairs; she collected the coins, counted them and handled the deposits (rolling the coins by hand until 1995 when a coin counter was purchased); and she performed data entry and secretarial work for the business. Money from the business was deposited into the same account used for groceries and other living expenses as well as new phone purchases.
One day in mid-1992, Malik called Behary at work from the airport. To Behary's surprise, Malik said he was going to India and would be back in three months. Because Behary did not drive, she had to take the bus from her apartment in Hollywood to maintain and handle the bank deposits from 5 phones in Inglewood and Westchester. On his return, Malik said he did not have any money and stopped paying his half of the rent. Behary said she would pay for the living expenses; the money from the phones continued to be reinvested in the business. Behary also used her credit card to pay for business expenses.
By 1994, the business started making a profit (and grew each year until the couple separated). That year, Behary saw documents for "C.S.J. Pay Phones," initials which corresponded to the first letter of
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