Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a postjudgment order of the Superior Court of Orange County, Michael J. Naughton, Judge. Affirmed. Request for judicial notice. Super. Ct. No. 04D006519.
William M. Hulsy for Appellant.
The Law Office of John Derrick and John Derrick for Respondent Melinda Garber.
No appearance for Respondent Orange County Department of Child Support Services.
OPINION
FYBEL, J.
Introduction
Appellant Ronald Garber appeals from an order denying his motion to set aside the judgment in this marital dissolution case. Ronald argues his obligation to pay agreed-upon spousal support to his former wife, Melinda Garber Kirkwood, never arose because Melinda registered her domestic partnership with Kristin Kirkwood before the judgment was entered. Family Code section 4337 provides that spousal support automatically terminates when the former spouse receiving support remarries. Ronald argues spousal support should also automatically terminate when the former spouse receiving support enters into a registered domestic partnership. However, because the trial court did not have before it any evidence that Melinda had actually entered into a registered domestic partnership, the issue of the possible application of section 4337 was not before the trial court, and is not before us. The trial court did not abuse its discretion by denying Ronald’s motion to set aside the judgment. We therefore affirm the court’s order.
We will refer to Ronald Garber, Melinda Garber Kirkwood, and Kristin Kirkwood by their first names to avoid confusion; we intend no disrespect. (In re Marriage of Gerkin (2008) 161 Cal.App.4th 604, 608, fn. 1.)
Statement of Facts and Procedural History
Ronald and Melinda were married on August 17, 1985, and separated March 25, 2004. Melinda filed a petition for dissolution of the marriage on July 21, 2004. In an income and expense declaration filed in January 2005, Melinda disclosed she was living with Kristin, identified as an adult “friend.” A status-only judgment dissolving the marriage was entered March 11, 2005.
On October 7, 2005, Ronald and Melinda signed a marital settlement agreement (the agreement). Under the terms of the agreement, Ronald agreed to pay spousal support to Melinda in the amount of $1,250 per month for five years. The agreement provided, “[t]his amount and duration shall not be modifiable.” The agreement also expressly waived the final disclosure declarations that would otherwise have been required by section 2105, and stated: “Each party understands that by signing this waiver he or she may be affecting his or her ability to have the judgment set aside as provided by law.” Ronald and Melinda agreed in writing that “little or no investigation or formal discovery [had been] conducted with regard to the character and value of the parties’ property, the extent of debt, or the amount of income of each party,” but that they were waiving their rights to further discovery as part of the agreement.
On November 14, 2005, Melinda filed an order to show cause to enforce the agreement. (Also on that date, Melinda filed an income and expense declaration identifying Kristin as her “domestic partner.”) The trial court deemed the order to show cause to be a motion to enforce a settlement agreement, pursuant to Code of Civil Procedure section 664.6, and granted the motion after conducting an evidentiary hearing. Judgment on reserved issues was entered on August 11, 2006, incorporating the agreement.
Ronald filed a motion to set aside the judgment on November 14, 2006. In a declaration filed in support of the motion, Ronald stated that Melinda legally changed her name to Melinda Kirkwood on February 15, 2005, and that Melinda and Kristin registered their domestic partnership on August 26, 2006. There is no evidence of either of those claimed acts in the appellate record.
In a minute order dated January 19, 2007, the trial court denied Ronald’s motion and instructed Ronald’s attorney to prepare a statement of decision. A proposed statement of decision was submitted to the court by Melinda’s attorney on May 3, 2007, and Ronald filed written objections. On June 13, 2007, the court denied Ronald’s objections, and signed the proposed statement of decision.
At a hearing on Ronald’s objections, the trial court ordered Melinda’s attorney to prepare a new statement of decision. Melinda’s attorney did so, and Ronald again filed objections. The court nevertheless signed the statement of decision submitted on May 3, 2007.
Appellate Jurisdiction
We initially address two issues regarding appealability. Ronald appealed from the trial court’s statement of decision, which is generally not an appealable order. We have discretion to treat a statement of decision as appealable when it is signed and filed, and constitutes the trial court’s final decision on the merits of the matter. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 901.) The statement of decision here was signed by the trial court and filed; it represents the court’s findings on the motion to set aside the judgment. We exercise our discretion to treat the statement of decision as an appealable order.
Melinda argues we do not have discretion to treat the statement of decision as an appealable order because it was followed by a formal order or judgment. (Alan v. American Honda Motor Co., Inc., supra, 40 Cal.4th at p. 901.) The minute order filed on the same date as the statement of decision merely denied the objections to the proposed statement of decision and noted that the statement of decision was signed and filed.
The minute order denying the motion to set aside the judgment was entered on January 19, 2007, and the time to appeal from that order would have run before Ronald’s notice of appeal was filed on July 31, 2007. The minute order, however, directed the preparation of a statement of decision. When a minute order directs a party to prepare a formal order, the time to appeal does not begin to run until that formal order is signed and filed. (Cal. Rules of Court, rule 8.104(d)(2).) We construe the trial court’s direction in the minute order to prepare a statement of decision as a direction to prepare a formal order.
Ronald’s opening brief fails to comply with California Rules of Court, rule 8.204(a)(1)(C), because it fails to support references to matters in the record with citations. We could find that Ronald has waived his right to challenge any factual issues on appeal. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) We will nevertheless proceed to the merits of the appeal despite Ronald’s failure to comply with the California Rules of Court.
Discussion
I.
Standard of Review
Ronald’s motion to set aside the judgment sought relief under Family Code section 2122, subdivisions (a), (b), (e), and (f), and Code of Civil Procedure section 473, subdivision (b). Ronald could not seek to set aside the judgment based on Code of Civil Procedure section 473, subdivision (b), because the judgment was not entered by default. In response to our request for supplemental briefing on this issue, Ronald did not argue his motion was properly brought under Code of Civil Procedure section 473, subdivision (b). Additionally, Family Code section 2122, subdivision (e) applies only in cases where the parties made a mistake in a stipulated or uncontested judgment. Entry of the judgment in this case was contested by Ronald, making Family Code section 2122, subdivision (e) inapplicable. Therefore, we will not further consider Code of Civil Procedure section 473, subdivision (b) or Family Code section 2122, subdivision (e).
Ronald’s motion papers and appellate briefs actually refer to Code of Civil Procedure section 473, “third paragraph.” We presume this is a reference to section 473, subdivision (b) before its most recent amendment which, inter alia, added subdivision designations. (Stats. 1996, ch. 60, § 1.)
We review a motion to set aside a judgment under Family Code section 2122 for abuse of discretion. (In re Marriage of Brewer & Federici (2001) 93 Cal.App.4th 1334, 1346.)
II.
There was no evidence before the trial court of a registered domestic partnership between Melinda and Kristin. The court therefore did not abuse its discretion in denying Ronald’s motion to set aside the judgment, which relied on the existence of a registered domestic partnership.
Ronald argues his obligation to pay spousal support to Melinda terminated before the agreement was ever signed, citing Family Code section 4337, which provides: “Except as otherwise agreed by the parties in writing, the obligation of a party under an order for the support of the other party terminates upon the death of either party or the remarriage of the other party.” Ronald contends registered domestic partnership is the legal equivalent of marriage. Melinda, however, argues that marriage means only marriage between a man and a woman.
We need not reach this legal issue. Ronald did not provide to the trial court any evidence establishing Melinda had entered into a registered domestic partnership. In a supplemental letter brief responding to this court’s request that the parties identify the evidence in the appellate record that Melinda and Kristin registered their domestic partnership with the California Secretary of State, Ronald identified the following: (1) Melinda’s income and expense declaration filed on November 14, 2005, in which Melinda identified Kristin as her “domestic partner”; (2) what Ronald describes as Melinda’s tacit admissions in her opposition to the motion to set aside the judgment; and (3) Ronald’s references to Melinda’s registered domestic partnership in various filings with the court.
None of these statements, however, constitutes evidence of a registered domestic partnership. In identifying Kristin as her domestic partner, Melinda omits any reference to the registration of that partnership. Statements by Melinda’s counsel in a legal brief that “[t]here has not been a ‘remarriage’ in this instant case” and that “[a]t the time the Income & Expense Declaration was signed 11/03/04 and filed January 21, 2005 the Petitioner was not a Registered Domestic Partner” do not establish Melinda and Kristin ever registered their domestic partnership. Similarly, Melinda’s statement in a declaration, “I was not a Registered Domestic Partner” when the income and expense declaration was filed, does not prove she was a registered domestic partner at any other time. Unsupported statements in Ronald’s court filings that Melinda and Kristin had entered into a registered domestic partnership prove nothing.
Without such evidence, the issue of application of Family Code section 4337 to registered domestic partnerships is purely academic. We conclude the trial court did not abuse its discretion in denying Ronald’s motion to set aside the judgment because there was no evidence to support the relief Ronald sought.
Whether Ronald could go back to the trial court with evidence of a registered domestic partnership between Melinda and Kristin was not raised or briefed on appeal, and therefore is not an issue for us to decide.
Ronald argues the trial court committed reversible error by failing to prepare a statement of decision addressing all the issues raised in his request for a statement of decision. Generally, a statement of decision is not available in connection with the court’s decision on a motion, even if the resulting order was made after extensive evidentiary hearings and would be appealable. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294; Gruendl v. Oewel Partnership, Inc. (1997) 55 Cal.App.4th 654, 660; Lavine v. Hospital of the Good Samaritan (1985) 169 Cal.App.3d 1019, 1026.) Exceptions to this general rule have been recognized: “‘[T]he new test relative to the necessity for findings of fact . . . involves a balancing of the following factors: (1) the importance of the issues at stake in the proceeding, including the significance of the rights affected and the magnitude of the potential adverse effect on those rights; and (2) whether appellate review can be effectively accomplished even in the absence of express findings.’ [Citation.]” (Gruendl v. Oewel Partnership, Inc., supra, 55 Cal.App.4th at p. 660.) The present case does not meet this test.
In any event, given the circumstances of this case, Ronald had no right to a statement of decision. In the minute order denying the motion to set aside the judgment, the trial court ordered Ronald to prepare a statement of decision. Ronald did not do so within the time provided by the California Rules of Court. Ronald therefore waived his right to a statement of decision, and he cannot complain that the statement of decision actually signed by the trial court was insufficient.
The minute order directs the “[a]ttorney for respondent” to prepare the statement of decision, and Ronald was the respondent in the trial court. Additionally, the reporter’s transcript reflects the trial court ordered Ronald’s counsel to prepare the statement of decision. At oral argument, Ronald’s counsel contended the minute order and the reporter’s transcript contained typographical errors, and Melinda’s counsel had actually been directed to prepare the statement of decision. Without some clear evidence that both the minute order and the reporter’s transcript contain such an error, we must presume their correctness.
“The court in its tentative decision may (1) state whether a statement of decision, if requested, will be prepared by the court or by a designated party . . . .” (Cal. Rules of Court, rule 3.1590(c).) “Any proposals as to the content of the statement of decision must be made within 10 days of the date of request for a statement of decision.” (Id., rule 3.1590(d).) “A party who has been designated or notified to prepare the statement must within 15 days after the expiration of the time for filing proposals as to the content of the statement, or within 15 days after notice, whichever is later, prepare, serve, and submit to the court a proposed statement of decision and a proposed judgment.” (Id., rule 3.1590(e).)
Request for Judicial Notice
Ronald filed a request for judicial notice of legislative history, yet failed to identify the piece of legislation at issue. Ultimately, we find that what has been provided to us is the legislative history for Assembly Bill No. 205 (2003-2004 Reg. Sess.), which enacted the California Domestic Partner Rights and Responsibilities Act of 2003.
Legislative history may be considered by this court when interpreting an ambiguous statute. (In re Domestic Partnership of Ellis & Arriaga (2008) 162 Cal.App.4th 1000, 1004.) Given our holding, we need not consider the California Domestic Partner Rights and Responsibilities Act of 2003, much less whether it is ambiguous. Therefore, we deny Ronald’s request for judicial notice.
Disposition
The postjudgment order is affirmed. Respondent Melinda Garber to recover costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.