Opinion
A164517
11-09-2023
In re the Marriage of JIMMY and ELLEN ZHOU. v. ELLEN ZHOU, Appellant. JIMMY ZHOU, Respondent,
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. FDI-20-792937)
Cal. Stds. Jud. Admin., § 8.1; Ct. App., First Dist., Local Rules of Ct., rule 19.
Jackson, P. J.
In January 2020 Jimmy Zhou petitioned the San Francisco Superior Court to dissolve his marriage to Ellen Zhou, for irreconcilable differences. The pleadings requested orders on marital status, the community property estate, spousal support, and attorney fees and costs. Unable to settle, the parties went to trial for two days in January 2022; Jimmy had counsel while Ellen represented herself. For each day's proceeding, the court issued a minute order and a conforming signed findings and order after hearing (Judicial Council Forms, form FL-340). After the trial, the court directed Jimmy to prepare the judgment of dissolution, which the court entered on February 15, 2022. The judgment dissolved the marriage, divided the community property estate, reserved jurisdiction over spousal support, and awarded no attorney fees and costs. One month before the court entered the judgment, Ellen, still representing herself, appealed the two minute orders. Though the orders are nonappealable, we construe the notice of appeal to include the judgment, deem all of Ellen's arguments waived, and affirm.
We use first names for ease of reference. (See In re Marriage of Smith (1990) 225 Cal.App.3d 469, 475-476, fn. 1.)
First we address the minute orders' nonappealability and the notice of appeal's prematurity. Appealability is a jurisdictional requisite; if at all doubtful, a reviewing court must raise the issue on its own. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126-127.) The right to appeal in a civil action, including for marital dissolution, is statutory and limited by the one final judgment rule: A final judgment is appealable while an interlocutory judgment or order is not, unless a statute makes it so. (Code Civ. Proc., §§ 901, 904, 904.1; Fam. Code, § 210; In re Baycol Cases I &II (2011) 51 Cal.4th 751, 754, 756 &fn. 3, 759, fn. 5.) "As a general test . . ., [if] no issue [remains] for future consideration except the fact of compliance or noncompliance with the terms of [a] decree, that decree is final, but [if] anything [more] on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory." (Lyon v. Goss (1942) 19 Cal.2d 659, 670; accord, Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5; see Fam. Code, § 100 [" 'Judgment' and 'order' include a decree"].) Put another way: "A judgment is the final determination of the rights of the parties (Code Civ. Proc., § 577) '" '[if] it terminates the litigation . . . on the merits of the case and leaves nothing to be done but to enforce . . . what has been determined.'"' (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 304 [citations], quoting Doudell v. Shoo (1911) 159 Cal. 448, 453 [citation].)" (Dana Point Safe Harbor Collective v. Superior Court, at p. 5.)
Both minute orders appealed here fail this finality test. Per the order of January 4, after dissolving the marriage, the court heard from both parties on the division of their residence and took the issue under submission, reserving ruling to later. The court then continued the trial "for further proceedings" on property division, spousal support, and fees and costs because Ellen did not comply with her fiduciary duty of disclosure before trial (see Fam. Code, §§ 2102, 2105, subds. (a), (b), 2106). Because more was required to finally determine the parties' rights, the order of January 4, which did not terminate the litigation, is interlocutory and nonappealable. (Dana Point Safe Harbor Collective v. Superior Court, supra, 51 Cal.4th at p. 5; see In re Marriage of Griffin (1993) 15 Cal.App.4th 685, 686-687, 689 [minute order valuing part of community property estate not final because other property and support issues remained].)
Per the order of January 11, after the trial concluded, the court directed Jimmy "[to] prepare [the] Judgment of Dissolution and submit it to the Court for review and processing." Though the trial was over, the litigation was not: "[If] the order entered in the minutes directs that a written order be prepared, signed and filed, the appeal does not lie from the minute order but from the written order. (Herrscher v. Herrscher (1953) 41 Cal.2d 300, 304306 [citation]; [citations].)" (Wright v. Groom Trucking Co. (1962) 206 Cal.App.2d 485, 488; accord, In re Marriage of Wood (1983) 141 Cal.App.3d 671, 677; see In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 15701571 [statement of decision not final because it directed preparation of judgment based on it].) The order of January 11 is, thus, also interlocutory and nonappealable.
So, too, is each conforming signed findings and order after hearing, for the same reasons.
Our review might otherwise end here. "Generally, Courts of Appeal strictly adhere to the one final judgment rule" (Boyer v. Jensen (2005) 129 Cal.App.4th 62, 69) and dismiss appeals of nonappealable judgments and orders (In re Marriage of Deal (2022) 80 Cal.App.5th 71, 78). But the Appellate Rules (Cal. Rules of Court, rule 8.1 et seq.) mandate liberal construction of timely notices of appeal (Cal. Rules of Court, rule 8.100(a)(2))"' "to protect the right of appeal if it is reasonably clear what [the] appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced." '" (K.J. v. Los Angeles Unified School Dist. (2020) 8 Cal.5th 875, 882.) "[T]he liberal construction requirement compels a reviewing court to evaluate whether the notice [of appeal], despite any technical defect, nonetheless served its basic function-to provide notice of who is seeking review of what order or judgment-so as to properly invoke appellate jurisdiction." (Id. at p. 883.) This standard is met here. The statement of appealability in Ellen's opening brief begins, "At the end of trial court on January 11, 2022, [the judge] made the final judgement," and Jimmy's respondent's brief acknowledges, "[Ellen] appeals from the trial court's judgment of dissolution." Though Ellen actually appealed the trial minute orders, it is clear to all that she intended to appeal the judgment, which we construe the notice of appeal to include, treating the premature notice as filed immediately after entry of judgment. (Cal. Rules of Court, rules 8.100(a)(2), 8.104(d)(2); K.J. v. Los Angeles Unified School Dist., at pp. 882-883; Boyer v. Jensen, at p. 69.)
Next we turn to Ellen's contentions, noting some established limits on our review. A reviewing court presumes the judgment is correct, and it is the appellant's burden to demonstrate the superior court committed reversible error based on an adequate record. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) To meet this burden, the appellant must support each contention in the opening brief by argument under a separate heading with citations to authority and facts in the record. (Cal. Rules of Court, rule 8.204(a)(1)(B), (C).) The absence of cogent argument or citations to authority or the record allows a reviewing court to treat unsupported contentions as waived. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287.) We do so here as to all of Ellen's contentions because her opening brief is "in dramatic noncompliance" with the Appellate Rules. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
Ellen did not file a reply brief.
Ellen contends the court lacked any power to dissolve the marriage ("Family Court cannot superseded [sic] religious contract") as well as any evidence to support Jimmy's grounds for dissolution ("Appellant did not do anything to cause of action for Appellee to file divorce [sic]"). Her citations to the Constitution (Cal. Const., art. III, § 1) and a contextless document list in her appendix are irrelevant to her otherwise unsupported contentions that the dissolution of this marriage is somehow exempt from the Family Code and that the court erred by granting Jimmy the marital status relief he requested. (See Fam. Code, §§ 200, 2010, subds. (a), (d)-(f), 2310, subd. (a), 2311, 2333, 2335, 2338, subds. (a), (c).) These contentions are thus waived.
Ellen also contends the court erred by ordering the sale of the parties' residence and the equal division of the proceeds, as well as the equal division of "[her] retirement." Her citations to the Bagley-Keene Open Meeting Act and the Ralph M. Brown Act (Gov. Code, §§ 11120, 54950), and to an apparently unfiled income and expense declaration (Judicial Council Forms, FL-150), are irrelevant to her otherwise unsupported contentions that the court erred by adhering to the general rule: Unless the parties agree differently, the court must divide the community property estate equally. (Fam. Code, §§ 2550, 2553, 2610.) While she refers to what was allegedly said in the courtroom to support her contentions, the record on appeal does not include a record of the oral proceedings. (Cal. Rules of Court, rule 8.120(b).)" 'We must therefore presume that what occurred [during the trial] supports the judgment.'" (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 8-9.) These contentions are also waived.
The trial was not reported, and the record does not include an agreed or settled statement.
Ellen also contends Jimmy's disclosure of his income and expenses was untruthful, impacting the court's spousal support order. Her only support for the two sentences she devotes to this contention is a citation to the same contextless document list in her appendix (see p. 5, ante)." '[If] any error is relied on for a reversal it is not sufficient for [an] appellant to point to the error and rest there.'" (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) "We are not bound to develop appellants' arguments for them." (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830; see Alameda County Management Employees Assn. v. Superior Court (2011) 195 Cal.App.4th 325, 350, fn. 21 [declining to consider contention consisting of "a single, conclusory sentence"].) This contention is also waived.
The court did not order support, but because the parties were married for at least 10 years, it reserved jurisdiction over the issue as it was obligated to do. (Fam. Code, §§ 4330, subd. (a) ["In a judgment of dissolution of marriage . . ., the court may order" support], 12 [" 'may' is permissive"], 4336, subds. (a), (b), (d).)
Last, Ellen contends she did not receive due process for myriad reasons, repeating some we have rejected. Summarized, she says the court ignored her evidence on some issues and refused to address other issues altogether; "the court minutes did not reflect the whole trial"; and "[the judge] did not inform [her] that court transcripts were unable [sic]." On the contrary, the record shows that both parties agreed to proceed without a court reporter and that the court received testimony from and allowed cross-examination by both parties on every issue. She cites Yarborough v. Yarborough (1933) 290 U.S. 202 without discussing how it controls or applies, and here too her references to what was allegedly said in the courtroom are unavailing. (In re Marriage of Obrecht, supra, 245 Cal.App.4th at pp. 8-9.) Indeed, "the absence of a court reporter at trial court proceedings and the resulting lack of a verbatim record of such proceedings will frequently be fatal to a litigant's ability to have his or her claims of trial court error resolved on the merits by an appellate court." (Jameson v. Desta, supra, 5 Cal.5th at p. 608.)" 'Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].'" (Id. at p. 609 &fn. 11.) This contention is also waived.
" '[W]e do not consider all of the loose and disparate arguments that are not clearly set out in [the argument section of the opening brief under] a heading and supported by reasoned legal argument.' (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1294; [citation].)" (Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 377378, fn. 3.)
Ultimately, we agree with Jimmy: "In her Opening Brief, [Ellen] does not present a basis for this Court to overturn any of the [appealed] orders. [She] does not provide relevant citations to support her argument that the trial court lacked authority to make those orders, or that, on appeal, there is a lack of substantial evidence to support them." Ellen "is not exempt from the foregoing rules because [she] is representing [herself] on appeal in propria persona. Under the law, a party may choose to act as his or her own attorney. [Citations.] '[S]uch a party is to be treated like any other party and is entitled to the same, but no greater[,] consideration [as] other litigants and attorneys.'" (Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247.)
DISPOSITION
The judgment is affirmed. Jimmy is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
WE CONCUR: Simons, J., Chou, J.