Opinion
D071277
11-17-2017
Conservatorship of the Estate of STANLEY M. ZEDALIS. MARYANN JOLIN, Petitioner and Appellant, v. MARCIA ZEDALIS MAIRE, Objector and Respondent.
Maryann Jolin, in pro. per., for Petitioner and Appellant. No appearance for Objector and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2012-00150220-PR-CP-NC) APPEAL from a judgment of the Superior Court of San Diego County, Julia Craig Kelety, Judge. Affirmed. Maryann Jolin, in pro. per., for Petitioner and Appellant. No appearance for Objector and Respondent.
INTRODUCTION
Maryann Jolin appeals a judgment after a court trial approving in part and denying in part an amended accounting of a temporary conservatorship. Jolin challenges the court's imposition of a surcharge against her of $9,857.19 for failing to comply with a court order, commingling conservatorship assets with other funds, and failing to properly account for the assets of the conservatorship estate. Jolin contends the court erred in imposing the surcharge because there was no breach resulting in loss to the conservatee's estate and there was no basis for ordering payment as directed by the court. Jolin also contends the court exceeded its jurisdiction and abused its discretion in awarding costs to Marcia Zedalis Maire, who is Jolin's sister, because it did not find Jolin opposed Maire's objections to the accounting without reasonable cause and in bad faith as required by Probate Code section 2622.5. We conclude Jolin has not met her burden to establish reversible error because she did not request a statement of decision or provide a record of the oral proceedings to evaluate the issues raised for substantial evidence. We presume, as we must, the court made all findings necessary to support the judgment and those findings are supported by substantial evidence. As a result, we affirm the judgment.
Further statutory references are to the Probate Code unless otherwise stated.
BACKGROUND
Although this litigation has a lengthy history, we summarize only the facts pertinent to the appeal.
After the death of his wife, Jolin's father, with the assistance of Maire and another sibling, opened two new Wells Fargo accounts on May 12, 2012, a checking account with $9,900 and a savings account with $100.
Jolin petitioned for and obtained appointment by the court to serve as temporary conservator for her father on May 22, 2012. She was ordered not to take possession of money or other property of her father, the conservatee, without a specific court order.
According to a court order of June 15, 2012, Jolin was "specifically authorized to marshal the social security and retirement income and any other funds of [the conservatee]." She was authorized to pay the conservatee's "regular bills and any other bills agreed upon by the parties" and $1,000 per month for monthly expenses of the conservatee.
On June 18, 2012, Jolin transferred title to a mobile home out of the conservatee's name into the name of her parents' trust (trust). A month later, Jolin transferred $9,962.19 out of the conservatee's Wells Fargo checking account to another bank account in the name of the trust.
The court terminated the temporary conservatorship on August 24, 2012, finding Jolin was inappropriate to serve as conservator. The court ordered Jolin to file an accounting of the conservatee's assets.
Jolin appealed the order terminating the temporary conservatorship and approving fees for the guardian ad litem (Jolin v. Zedalis, D062959), but she dismissed the appeal in June 2013. A separate conservatorship proceeding ensued in Hawaii regarding the father of Jolin and Maire, but terminated in 2013 after his death. Proceedings continued in Hawaii regarding a trust account.
The court eventually heard issues related to the conservatorship inventory in August 2015. The court found the assets of the conservatorship were the two Wells Fargo accounts and a one-half tenant-in-common interest in the mobile home. The court ordered Jolin to submit an amended inventory reflecting the balances for those assets as of her appointment on May 22, 2012. It also ordered Jolin to account for the assets from May 22, 2012, through July 31, 2015.
Nearly a year later, the matter came on for a court trial regarding Jolin's request for approval of her accounting of the temporary conservatorship along with her request for reimbursements for various items. The court found the assets of the conservatorship totaled $31,099.49 and consisted of one-half interest in the mobile home and the two bank accounts.
The court concluded Jolin breached her duties as temporary conservator when, without a court order, she transferred the mobile home into the trust, which was not under the supervision of the court. The court stated she would be subject to surcharge for the breach, but because the mobile home was later sold and the proceeds were deposited into a trust account, which was the subject of review by a court in Hawaii, the court did not order damages for the improper transfer.
The court noted Jolin testified she used the $9,962.19 she transferred from the estate account to a trust bank account to pay for the conservatee's expenses. However, the court found Jolin provided insufficient evidence for the court to consider the propriety of the expenses paid from the trust. The court found "Jolin's commingling of estate funds with [t]rust funds was improper and has generated substantial confusion, expense and delay" in the proceedings.
The court surcharged Jolin $9,857.19 for failing to comply with a court order, commingling of conservatorship assets, and failing to account for the assets of the conservatorship estate. This represented the transferred amount of $9,962.19 less credit for reimbursement of $105 for a conservatorship expense which Jolin established she paid from personal funds with permission of the court. Since the administration of the conservatorship was concluded, the judgment ordered Jolin to pay the surcharged amount to the trustee of the trust. The court denied Jolin's request for reimbursement of filing and investigation fees because Jolin did not establish she paid the fees personally as opposed to from the trust or some other source.
Notice of entry of judgment was served on August 24, 2016. The court summarily denied Jolin's application for an order nunc pro tunc in which Jolin asked the court to conform the judgment to the exact wording of the court's minute order.
The court denied Jolin's motion for reconsideration under Code of Civil Procedure section 1008 stating it could not rule on such a motion after entry of the judgment. The court declined to construe the motion as a motion for new trial because it did not meet the procedural requirements for such a motion. The court noted the judgment conformed to the court's order after trial and there was no basis for relief under Code of Civil Procedure section 473, subdivision (b) for "surprise" or under subdivision (d) for a clerical error. The court also concluded there was no basis for relief under Code of Civil Procedure section 473.5 because the judgment was not entered by default.
DISCUSSION
I
Surcharge and Payment
A
Jolin contends the court exceeded its jurisdiction in imposing a surcharge because there was no evidence of breach of loss warranting surcharge. We conclude the court was within its jurisdiction and Jolin has not met her burden of establishing an abuse of discretion.
"The relationship of guardian and ward and of conservator and conservatee is a fiduciary relationship that is governed by the law of trusts, except as provided in this division." (§ 2101.) The conservator is "subject to the regulation and control of the court in the performance of the duties of the office." (§ 2102.) If a conservator breaches his/her fiduciary duty, he/she may be surcharged for loss or depreciation in value of the estate, any profit made by the conservator through the breach, or any profit that would have accrued to the estate if the loss was the result of the breach. (§ 2401.3, subd. (a).) The court in this case had jurisdiction to impose a surcharge for Jolin's breaches of her fiduciary duties as temporary conservator.
We review the court's factual finding in denying approval for substantial evidence. (Manson v. Shepherd (2010) 188 Cal.App.4th 1244, 1259.) We review for abuse of discretion a court's decision to surcharge the conservator for breaches of fiduciary duty. (Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 911.) "An abuse of discretion occurs only if the reviewing court, considering the applicable law and all of the relevant circumstances, concludes that the trial court's decision exceeds the bounds of reason and results in a miscarriage of justice." (Ibid.)
In this case, the parties appeared and were sworn for the trial regarding Jolin's petition for approval of the amended accounting. The court minutes state the court went over the accounting schedules "item by item." It appears from the trial briefs that issues regarding whether or not the conservatorship funds originated from the family trust and whether or not the funds were exhausted by the conservator's expenses were disputed factual issues in the proceedings below.
The court advised Jolin at the time of the inventory hearing that issues of how the assets came into the conservatorship and her role in transferring assets out of the conservatorship would be an issue for the hearing on the accounting.
Jolin did not request a statement of decision regarding the petition for approval of the accounting. "[I]n the absence of a statement of decision [pursuant to Code of Civil Procedure section 632], an appellate court will presume that the trial court made all factual findings necessary to support the judgment for which substantial evidence exists in the record. In other words, the necessary findings of ultimate facts will be implied and the only issue on appeal is whether the implied findings are supported by substantial evidence." (Shaw v. County of Santa Cruz (2008) 170 Cal.App.4th 229, 267.) We, therefore, imply the court made all necessary findings to support the judgment.
Jolin has not provided us with an adequate record of the oral proceedings to evaluate whether the implied findings are supported by substantial evidence. " '[A] party challenging a judgment [or order] has the burden of showing reversible error by an adequate record.' [Citation.] ' "A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent ... ." ' [Citation.] A proper record includes a reporter's transcript or a settled statement of any hearing leading to the order being challenged on appeal." (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574.)
The hearing was not reported and there is no indication Jolin attempted to obtain either an agreed statement (Cal. Rules of Court, rule 8.134) or a settled statement (Cal. Rules of Court, rule 8.137) regarding the evidence presented at the hearing. "We cannot presume error from an incomplete record." (Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412.) We are not permitted to speculate as to the contents of the missing portions of the record or the issues that may have raised below. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712.) The failure to provide an adequate record on appeal "precludes an adequate review and results in affirmance of the trial court's determination." (Estrada v. Ramirez (1999) 71 Cal.App.4th 618, 620, fn. 1.) Because there is no record of the oral testimony, we presume substantial evidence supported the court's implied findings and the court did not abuse its discretion in imposing the surcharge.
Although Jolin is representing herself, the rules of civil procedure apply equally to her. "A self-represented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys." (Elena S. v. Kroutik, supra, 247 Cal.App.4th at p. 574; see Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)
B
For the same reasons, we reject Jolin's contention the court had no legal basis for ordering payment of the surcharge to the trustee of the trust. The opening brief refers to matters outside of the record related to litigation of the trust in another state and contends, with no citation to the record or authority, that the trustee to whom the court ordered payment is not actually the trustee and the surcharge should be made payable instead to the father's estate. " ' "When an appellant ... asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived [or forfeited]." ' [Citation.] 'We are not bound to develop appellants' arguments for them.' " (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956; see Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1246 [statements in appellate briefs not supported by citations to the record are improper and cannot be considered].) Again, without an adequate record on appeal, we must presume the judgment is correct.
II
Costs
A probate court may award costs to an objector contesting an accounting if the conservator's opposition to the objection was without reasonable cause and in bad faith. (§ 2622.5, subd. (b).) (Guardianship of K.S. (2009) 177 Cal.App.4th 1525, 1533 [order awarding costs or fees under § 2622.5 based upon finding that opposition to objections to an account were made without reasonable cause and in bad faith is reviewed for abuse of discretion].)
Section 2622.5, subdivision (b) states, "If the court determines that the opposition to the objections was without reasonable cause and in bad faith, the court may award the objector the costs of the objector and other expenses and costs of litigation, including attorney's fees, incurred to contest the account. The amount awarded is a charge against the compensation of the guardian or conservator, and the guardian or conservator is liable personally and on the bond, if any, for any amount that remains unsatisfied."
In her trial brief, Maire requested an award of costs for those incurred by Maire to obtain Jolin's compliance with court orders and a proper account for the conservatee's estate. In entering judgment against Jolin and imposing the surcharge, the court noted Jolin's conduct in commingling of estate and trust funds was improper and generated "substantial confusion, expense, and delay in these proceedings."
Jolin contends the court abused its discretion in awarding Maire costs as the prevailing party because it did not make a finding that Jolin's opposition to Maire's objections was made in bad faith. However, Jolin did not raise the issue of lack of a finding of bad faith in her motion for reconsideration or seek a new trial on this ground. She objected only to the award of costs in the judgment as not specifically identified in the trial court's minute order.
We conclude Jolin forfeited this objection to the award of costs under section 2622.5 by failing to raise the issue in the proceedings below by way of a postjudgment motion. (Avalos v. Perez (2011) 196 Cal.App.4th 773, 776 ["As a general rule, a claim of error will be deemed to have been forfeited when a party fails to bring the error to the trial court's attention by timely motion or objection"].) Due to the lack of an adequate record of the oral proceedings or a statement of decision, we again must presume the court made the necessary findings to support the award of costs.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
MCCONNELL, P. J. WE CONCUR: BENKE, J. HUFFMAN, J.