Opinion
D056604 Super. Ct. No. D508133
08-24-2011
In re the Marriage of DARA L. PATTERSON and LEWIS DONALD GUESS. DARA L. PATTERSON GUESS, Respondent, v. LEWIS DONALD GUESS, Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of San Diego County, Lisa C. Schall, Judge. Affirmed.
Lewis Donald Guess (Husband), in propria persona, appeals a judgment dissolving his marriage to Dara L. Patterson Guess (Wife). On appeal, he contends the evidence is insufficient to support the trial court's findings. Wife filed a motion to dismiss Husband's appeal based on the court's finding him in contempt of its child and spousal support orders.
FACTUAL AND PROCEDURAL BACKGROUND
Because Husband's statements of the case and facts are supported by few citations to the record on appeal, we limit our discussion of the factual and procedural background to only those matters supported by citations to the record.
In 2000, Husband and Wife were married. In 2007, they separated. In February 2008, Wife filed a petition for dissolution of their marriage. At that time, they had three minor children. During the period of June 25, 2009, through September 25, 2009, the trial court conducted multiple evidentiary hearings on various contested matters.
By the date of the judgment of dissolution, one of their children had become an adult.
However, the record on appeal filed by Husband is incomplete, including the reporter's transcript for only one of those hearings (i.e., the September 25, 2009, hearing) and none of the court's minute orders for any of those hearings. Accordingly, the record is devoid of what occurred at hearings prior to September 25, 2009.
On December 10, 2009, the trial court issued its final statement of decision making various findings of fact and orders. On August 23, 2010, the court entered its judgment of dissolution, terminating the parties' marriage as of September 25, 2009, and dividing their property as set forth in its prior statement of decision. Husband timely filed a notice of appeal.
In January 2010, Husband filed a notice of appeal challenging the trial court's order (i.e., statement of decision) dated December 10, 2009. We deem that notice of appeal to be a timely challenge to the subsequently entered judgment of dissolution that incorporated the court's statement of decision.
DISCUSSION
I
Motion to Dismiss
On January 27, 2011, Wife filed a motion to dismiss Husband's appeal. Pending determination of her motion, Wife requested that we issue a temporary stay of her obligation to file a respondent's brief. On February 17, we issued an order denying Wife's request for a temporary stay of briefing and stating that her unopposed motion to dismiss would be considered with the appeal.
Despite our denial of a temporary stay of her obligation to file a respondent's brief, Wife did not file a respondent's brief responding to Husband's opening brief.
In her motion to dismiss, Wife argues that because the trial court found Husband to be in contempt for his willful failure to pay child and spousal support as required by its April 7, 2008, order, he should not be allowed to avail himself of the judicial system to obtain relief in the instant appeal. She argues we should exercise our discretion under the equitable disentitlement doctrine to dismiss his appeal. (See, e.g., MacPherson v. MacPherson (1939) 13 Cal.2d 271, 277; In re Marriage of Kottemann (1957) 150 Cal.App.2d 483, 487-488.) However, we are not persuaded we should exercise our discretion to dismiss Husband's appeal in the circumstances of this case. Therefore, we deny Wife's motion to dismiss the appeal.
II
Substantial Evidence to Support Findings
Husband contends the evidence is insufficient to support the trial court's various findings.
In his briefing, and at oral argument, Husband complained about the fairness of the family law process. He asserted the family law court ignored his evidentiary submissions, relied on documentation containing mathematical errors and charts not admitted into evidence, and made verbal comments evidencing a bias against him. As an appellate court, we are, of course, concerned with the fairness of the trial process and trial courts' adherence to the rule of law. We are, however, handicapped in our ability to review Husband's claims because he did not submit an adequate appellate record, including transcripts of the hearings about which he complains.
A
In Denham v. Superior Court (1970) 2 Cal.3d 557, the court stated:
"[I]t is settled that: '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, and error must be affirmatively shown [by the appellant]. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' " (Id. at p. 564.)"A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.) Alternatively stated, "[A] record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provides the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed."(Uniroyal Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285, 302.) "The burden of affirmatively demonstrating error is on the appellant." (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) The appellant has the burden to provide an adequate record on appeal to allow the reviewing court to assess the purported error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) If the record on appeal does not contain all of the documents or other evidence submitted to the trial court, a reviewing court will "decline to find error on a silent record, and thus infer that substantial evidence" supports the trial court's findings. (Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 955.)
"When the trial court has resolved a disputed factual issue, the appellate courts review the ruling according to the substantial evidence rule. If the trial court's resolution of the factual issue is supported by substantial evidence, it must be affirmed." (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) The substantial evidence standard of review involves two steps. "First, one must resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences. [Citation.] Second, one must determine whether the evidence thus marshaled is substantial. While it is commonly stated that our 'power' begins and ends with a determination that there is substantial evidence [citation], this does not mean we must blindly seize any evidence in support of the respondent in order to affirm the judgment. . . . '[I]f the word "substantial" [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633, fns. omitted.) "[T]he power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
B
We conclude Husband has waived or forfeited his substantial evidence contention because his statement of facts is deficient because it does not state all the material evidence relevant to the trial court's disputed findings and, instead, appears to cite only evidence in his favor. Furthermore, the record on appeal filed by Husband is inadequate for a determination whether there is substantial evidence to support the trial court's findings.
If an appellant challenges a finding for insufficiency of the evidence to support it, he or she is required to set forth in the appellant's opening brief all the material evidence on that issue or finding and not merely evidence favorable to his or her position. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) "In furtherance of its burden, the appellant has the duty to fairly summarize all of the facts in the light most favorable to the judgment. [Citation.] Further, the burden to provide a fair summary of the evidence 'grows with the complexity of the record.' " (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.) An appellant must state fully, with transcript citations, the evidence claimed to be insufficient to support the trial court's findings. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887.) Unless this is done, the asserted error is deemed waived. (Foreman & Clark, at p. 881.) "An appellate court will consider the sufficiency of the evidence to support a given finding only after a party tenders such an issue together with a fair summary of the evidence bearing on the challenged finding, particularly including evidence that arguably supports it." (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410.) Furthermore, "[a] party who challenges the sufficiency of the evidence to support a finding must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable." (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218, italics added.) If the appellant fails to do so, the reviewing court may deem the substantial evidence contention waived. (Ibid.; Foreman & Clark, at p. 881.)
Based on our review of the record on appeal filed by Husband, it is clear that Husband has not set forth a sufficient statement of facts stating all of the material evidence, both favorable and unfavorable, to his position on the disputed issues. Rather, Husband appears to have cited only evidence favorable to his position. Furthermore, as noted above, Husband also has not provided an adequate record that includes reporter's transcripts and the trial court's minute orders for all of the evidentiary hearings on the disputed issues (i.e., hearings during the period of June 25, 2009, through September 25, 2009). Rather, the record on appeal consists of only the reporter's transcript for the September 25, 2009, hearing and selected pleadings and evidence favorable to Husband's position. Because Husband has not presented us with a sufficient statement of facts setting forth all the material evidence on the disputed issues, much less a record containing all of that material evidence, we deem Husband to have waived or forfeited his contention that there is insufficient evidence to support the trial court's various findings. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881; Huong Que, Inc. v. Luu, supra, 150 Cal.App.4th at pp. 409-410; Doe v. Roman Catholic Archbishop of Cashel & Emly, supra, 177 Cal.App.4th at p. 218.) Both Husband's briefing and record on appeal are "manifestly deficient." (In re Marriage of Fink, supra, 25 Cal.3d at p. 887.) Like the court in Fink, "we summarily reject [Husband's] arguments based upon a lack of substantial evidence. It is neither practical nor appropriate for us to comb the record on [Husband's] behalf." (Id. at p. 888.)
We further note that Husband's statement of facts is not supported by any citations to the record on appeal. Statements of fact that are not part of, or supported by citations to, the record on appeal are improper and cannot be considered on appeal. (Cal. Rules of Court, rule 8.204(a)(2)(C); Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632; Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.) Accordingly, we disregard any statements of fact set forth in Husband's brief that are outside of the record on appeal. (Pulver, at p. 632; Kendall, at p. 625; Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1.) Furthermore, to the extent his assertions of fact and procedure ostensibly refer to matters within the record on appeal, his brief does not contain any citations to the appellate record in violation of California Rules of Court, rule 8.204 (a)(1)(C). As in Nwosu v. Uba (2004) 122 Cal.App.4th 1229, at page 1246, Husband's briefs "are devoid of citations to the [record on appeal] and are thus in dramatic noncompliance with appellate procedures." "It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations." (Bernard v. Hartford Fire Ins. Co. (1991) 226 Cal.App.3d 1203, 1205.) "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Because Husband's brief does not contain any citations to the record on appeal to support his statement of facts, we consider his contentions on appeal waived. (Nwosu, at p. 1247; City of Lincoln, at p. 1239; Duarte, at p. 856; Guthrey, at p. 1115.) Finally, we note the fact that Husband filed this appeal in propria persona ("pro per") does not exempt him from compliance with established appellate rules. (Nwosu, at pp. 1246-1247 [pro per litigants must follow the same procedural rules as attorneys].)
Furthermore, we also deem Husband to have waived or forfeited his substantial evidence contention because he did not file an adequate record on appeal. He did not include reporter's transcripts for all of the evidentiary hearings conducted prior to the September 25, 2009, hearing or an appellant's appendix that included the trial court's minute orders for those hearings. Furthermore, he appears to have omitted from the record on appeal evidence favorable to Wife. Without an adequate record on appeal, we cannot determine whether there is substantial evidence to support the trial court's findings. Accordingly, we deem Husband to have waived or forfeited that contention. (Mountain Lion Coalition v. Fish & Game Com., supra, 214 Cal.App.3d at p. 1051, fn. 9; Uniroyal Chemical Co. v. American Vanguard Corp., supra, 203 Cal.App.3d at p. 302; Fundamental Investment etc. Realty Fund v. Gradow, supra, 28 Cal.App.4th at p. 971; Maria P. v. Riles, supra, 43 Cal.3d at p. 1295; Gee v. American Realty & Construction, Inc., supra, 99 Cal.App.4th at p. 1416; Haywood v. Superior Court, supra, 77 Cal.App.4th at p. 955.)
C
Assuming arguendo Husband did not waive or forfeit his contention that substantial evidence does not support the trial court's various findings, we nevertheless would conclude he has not carried his burden on appeal to persuade us that there is insufficient evidence to support those findings. By citing evidence and making inferences therefrom favorably only to him (rather than to Wife), Husband misconstrues and/or misapplies the substantial evidence standard of review. Because we presume the trial court's findings are correct, it is Husband's burden on appeal to show those findings are incorrect (i.e., that there is insufficient evidence to support them). (Denham v. Superior Court, supra, 2 Cal.3d at p. 564; Kuhn v. Department of General Services, supra, 22 Cal.App.4th at pp. 1632-1633; Bowers v. Bernards, supra, 150 Cal.App.3d at pp. 873-874.) Furthermore, Husband's arguments are generally incomprehensible and conclusory. (Cf. Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119-1120; In re Marriage of Green (1989) 213 Cal.App.3d 14, 29 ["From the point of view of grammar and syntax as well as logic, [appellant's] briefs are almost impenetrable. Contrary to rules of appellate practice, [appellant] cites only evidence supporting his contentions on appeal, entirely ignoring facts which support the judgment."].) Accordingly, Husband has not persuaded us that the evidence, including all reasonable inferences therefrom, construed favorably to support the judgment is insufficient to support the trial court's findings.
DISPOSITION
The judgment is affirmed. Wife is entitled to costs on appeal.
McDONALD, J. WE CONCUR:
HALLER, Acting P. J.
IRION, J.