Opinion
D055717
02-01-2012
In re the Marriage of CAROL and LEWIS DONALD GUESS. CAROL 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. D424131)
APPEALS from postjudgment orders of the Superior Court of San Diego County, Joel R. Wohlfeil and Lisa C. Schall, Judges. Dismissed in part; affirmed in part; and constructive writ petition denied.
Lewis Donald Guess (Husband) appeals orders following a 1999 judgment incorporating a stipulation in the proceeding dissolving his marriage to Carol Guess (Wife). Husband challenges an order denying his motion to modify the amount of spousal support the judgment required him to pay to Wife. He also challenges an order granting Wife's missed asset motion and awarding her 100 percent of certain missed community property assets that Husband deliberately hid and therefore were not included in the judgment. Husband contends the evidence is insufficient to support: (1) the order denying his motion to modify his spousal support obligation; (2) the court's findings that his representations were not credible and the special master's findings adopted by the court; and (3) the trial court's finding that he willfully did not disclose a community property asset.
FACTUAL AND PROCEDURAL BACKGROUND
In 1996, Wife filed a petition for dissolution of her 30-year marriage to Husband. In 1999, the trial court entered a supplemental judgment (Judgment) adopting the parties' stipulation dividing their property and providing for payment of $12,000 per month in spousal support to Wife.
In 2007, Husband filed an order to show cause (OSC) requesting modification of his obligation under the Judgment to pay spousal support based on his alleged changed financial circumstances. Husband filed an income and expenses declaration in support of the OSC. In April 2008, the trial court appointed Gordon Cruse to act as a special master "to evaluate the credibility of [Husband] regarding his income and expenses, in the context of whether or not [he] has the ability to pay the current amount of support or another appropriate amount." On June 16, 2008, Cruse issued a report setting forth his finding that Husband's representations in his income and expense declaration were not supported by any credible evidence, and recommending the court deny Husband's motion to modify his spousal support obligation. On July 23, 2008, after receiving and considering additional documentation submitted by Husband, Cruse issued a supplemental report again finding Husband's supporting documents were not credible and recommending the court deny Husband's modification motion because he had not met his burden to show there should be a reduction in the amount of his spousal support obligation.
On July 31, 2008, the trial court conducted a hearing on Husband's motion to modify his spousal support obligation. On August 6, the court issued its written order denying Husband's modification motion. On September 5, Husband filed a motion for reconsideration of that order. The court denied that motion as untimely because it was not filed within 10 days after the order as required by Code of Civil Procedure section 1008, subdivision (a).
All statutory references are to the Code of Civil Procedure.
On December 2, 2008, Husband filed a renewed modification motion based on alleged new evidence (presumably pursuant to § 1008, subd. (b)). On May 7, 2009, the trial court conducted a hearing on Husband's renewed motion. On July 6, the court issued a written order denying Husband's renewed motion, finding he "failed to provide any evidence to the Court that the alleged new facts, set forth in the current motion, were not available to him or that his information could not have been provided prior to the time of the original July 31, 2008, ruling." On August 13, 2009, the court conducted a hearing on Wife's request for an award of attorney fees and sanctions against Husband. On November 9, the court issued an order restating its finding that Husband had not presented any new facts or information in support of his renewed motion and awarding Wife attorney fees and sanctions against Husband for his bad faith filing of that motion.
On April 9, 2009, Wife filed a motion for a determination that the money (allegedly $2,089,000) used by Husband to purchase a Coronado residence was a missed asset not divided between Husband and Wife pursuant to the Judgment. On June 18, the trial court conducted a hearing on Wife's motion and found she had shown, by clear and convincing evidence, that the source of the $1,956,089.47 amount used by Husband to purchase the Coronado residence was an undivided community property asset Husband had deliberately not disclosed to Wife. The court found Husband's conduct was both egregious and fraudulent and awarded Wife 100 percent of that undisclosed community property asset. On August 13, the court conducted a hearing on, and granted, Wife's request for an award of attorney fees and sanctions against Husband. On September 3, the court issued a written order restating its findings and granting Wife's motion. Husband filed multiple notices of appeal challenging the court's orders.
DISCUSSION
I
Order Denying Husband's Motion to Modify Spousal Support
Husband contends the evidence is insufficient to support the trial court's order denying his motion to modify his Judgment obligation to pay Wife spousal support, its underlying finding that his representations were not credible, and the special master's findings adopted by the court.
A
On August 6, 2008, the trial court issued its written order denying Husband's motion to modify his spousal support obligation. However, Husband did not file his first notice of appeal until August 17, 2009, more than one year later. That notice of appeal challenged an order dated July 6, 2009, that denied Husband's renewed motion for modification of spousal support. Because Husband did not timely file a notice of appeal challenging the August 6, 2008, order denying his modification motion, it became a final order and he cannot now either directly or collaterally challenge it. A notice of appeal generally must be filed on or before the earliest of the following: "(1) 60 days after the superior court clerk serves the party filing the notice of appeal with a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, showing the date either was served; [¶] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled 'Notice of Entry' of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or [¶] (3) 180 days after entry of judgment." (Cal. Rules of Court, rule 8.104(a).) Because Husband did not file a notice of appeal within 180 days after the August 6, 2008, order (or any earlier applicable notice of appeal deadline), his first notice of appeal, to the extent it challenged that order, was untimely. Because that order became final we do not have jurisdiction to consider an appeal challenging it. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 ["The time for appealing a judgment is jurisdictional; once the deadline expires, the appellate court has no power to entertain the appeal."].) Therefore, we must dismiss his appeal of the order denying his motion to modify spousal support.
"As used in [California Rules of Court rule 8.104](a) and (d), 'judgment' includes an appealable order if the appeal is from an appealable order." (Cal. Rules of Court, rule 8.104(e).)
All rule references are to the California Rules of Court.
Furthermore, although his first notice of appeal (filed on August 17, 2009) was "timely" as to the July 6, 2009, order denying his renewed modification motion, identified as the order being appealed, we have held that an order denying a renewed motion pursuant to section 1008, subdivision (b), is not an appealable order. (Tate v. Wilburn (2010) 184 Cal.App.4th 150, 160 ["an order denying a renewed motion pursuant to section 1008, subdivision (b)" is not appealable.].) Accordingly, we dismiss Husband's appeal of the order denying his renewed motion for modification of spousal support based on alleged new facts or circumstances. (Tate, at pp. 160-162.)
Nevertheless, we exercise our discretion and construe Husband's appeal of the order denying his renewed modification motion as a petition for writ of mandate. (See, e.g., Tate v. Wilburn, supra, 184 Cal.App.4th at pp. 160-161, fn. 10.) However, we conclude Husband has waived or forfeited his challenge to that order by not presenting any substantive legal analysis on the issue of whether the trial court erred in finding he did not present any new evidence pursuant to section 1008, subdivision (b). (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 ["The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived."]; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862.) The California Supreme Court stated: " '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.] This principle is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence." (People v. Stanley (1995) 10 Cal.4th 764, 793.) Although Husband's brief extensively argues there is insufficient evidence to support the initial August 6, 2008, order denying his modification motion, it does not present any "cogent legal argument or citation to authority" challenging the court's subsequent July 6, 2009, order denying his renewed modification motion. Husband's brief does not contain any legal analysis or argument on the issue of whether the court abused its discretion by finding he did not present "new" evidence pursuant to section 1008, subdivision (b). (In re Marriage of Falcone & Fyke, at p. 830.) In any event, Husband does not carry his burden to persuade us the court erred in denying his renewed modification motion. Accordingly, we deny Husband's constructive petition for writ of mandate challenging the order denying that motion.
II
Order Granting Wife's Missed Asset Motion
Husband contends the evidence is insufficient to support the trial court's order granting Wife's missed asset motion and the underlying finding that he willfully did not disclose a community property asset.
A
Wife filed a motion for a court determination that the money used by Husband to purchase a Coronado residence was an undisclosed community property asset not divided pursuant to the Judgment. Husband apparently obtained distributions of the cash values of certain insurance policies, but those policies and their cash values allegedly had not been disclosed by Husband to Wife before the Judgment. Following a hearing, the trial court found Wife had shown, by clear and convincing evidence, that the source of the $1,956,089.47 amount used by Husband to purchase the Coronado residence was an undivided community property asset he deliberately did not disclose to Wife during their marriage. The court found Husband hid that asset "by a series of financial maneuverings deliberately designed to prevent [Wife] from being informed or reasonably able to locate that asset through Family Court process." The court further found that although Husband had prior notice of his obligation of full and complete disclosure, he deliberately did not disclose that asset. Because Husband's conduct was found to be both egregious and fraudulent, the court awarded Wife 100 percent of that undisclosed, missed community property asset. The court subsequently conducted a hearing on, and granted, Wife's request for an award of attorney fees and sanctions against Husband. On September 3, 2009, the court issued a written order restating its findings and granting Wife's motion.
B
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.)
C
We conclude Husband has waived or forfeited his substantial evidence contention. 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. [Citation.]' " (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 Corp., 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 does not do so, the reviewing court may deem the substantial evidence contention to have been waived. (Ibid.; Foreman & Clark Corp., at p. 881.)
Based on our review of the record on appeal, it is clear 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, Husband also has not provided an adequate record that includes all lodged exhibits and other documents submitted to and considered by the trial court. Rather, the appellant's appendix provided by Husband appears to primarily consist of selected pleadings and evidence favorable to his position. Because Husband has not presented us with a sufficient statement of facts setting forth all the material evidence on the disputed issues or a record containing all of that material evidence, we deem Husband to have waived or forfeited his contention that the evidence is insufficient to support the trial court's September 3, 2009, order granting Wife's missed asset motion and its underlying findings in support of the order.(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 supported by very few citations to the record on appeal. Statements of fact not part of, or supported by citations to, the record on appeal are improper and cannot be considered on appeal. (Rule 14(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.) We disregard any statements of fact set forth in Husband's brief 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 adequate citations to the appellate record in violation of rule 14 (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 adequate citations to the record on appeal to support his statement of facts, we consider his contentions on appeal to have been 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 appears to have omitted from his appellant's appendix evidence favorable to Wife, including exhibits lodged in support of her missed asset motion. Without an adequate record on appeal, we cannot determine whether there is substantial evidence to support the trial court's findings. 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.)
D
Assuming arguendo Husband did not waive or forfeit his contention that substantial evidence does not support the trial court's order granting Wife's missed asset motion and its underlying findings (e.g., that he willfully did not disclose a community property asset), we nevertheless would conclude he has not carried his burden on appeal to persuade us the evidence is insufficient to support that order and 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., 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."].) Husband's entire substantive argument challenging the sufficiency of the evidence to support the trial court's finding that he willfully failed to disclose a community property asset is as follows:
"In this case, [Wife] knew of the existence of the policies at issue. Premium payments by [Husband's] employer to [his] supplemental disability insurance policy prior to settlement were awarded to [Wife] in the settlement agreement. [Citation.] The joint company appraisal completed prior to the settlement identified no retained earnings in 1995. [Citation.] No retained earnings existed in the companies to pay premiums to [Husband's] supplemental insurance policies after the 10/31/95 date of separation. [Citation.] Employer earnings allocated to pay additional premiums on the policies were earned post-separation. [Citation.] Policy reserves distributed to [Husband] from the supplemental insurance policies resulted from post separation premium payments by [his] employer and investment growth on the policy reserves."In so arguing, Husband cites evidence and argues inferences only favorably to him and does not cite or discuss evidence, and reasonable inferences therefrom, favorable to the order. Husband has not persuaded us that the evidence, including all reasonable inferences therefrom, construed favorably to support the order is insufficient to support the trial court's order granting Wife's missed asset motion and its underlying finding that he willfully did not disclose a community property asset.
DISPOSITION
The appeal challenging the August 6, 2008, order is dismissed. The constructive petition for writ of mandate challenging the July 6, 2009, order is denied. The September 3, 2009, order is affirmed. Husband shall pay Wife's costs on appeal.
_______________
McDONALD, J.
WE CONCUR:
__________________
HALLER, Acting P. J.
____________
IRION, J.