Opinion
F083723
06-14-2023
In re the Marriage of KARL H. and HEATHER R. PASSEGGER. v. KARL H. PASSEGGER, Appellant. HEATHER R. PASSEGGER, Respondent,
Karl H. Passegger, in pro. per., for Appellant. Heather R. Passegger, in pro. per., for Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Kern County No. S1501-FL-627387. Stephen D. Schuett, Judge.
Karl H. Passegger, in pro. per., for Appellant.
Heather R. Passegger, in pro. per., for Respondent.
OPINION
THE COURT [*]
Karl H. Passegger appeals as a self-represented litigant from a postjudgment order requiring him to pay his ex-wife, Heather R. Passegger, for misappropriating and damaging property awarded to Heather in the marital dissolution judgment, as well as for attorney fees she incurred in enforcing the judgment. Karl argues there is insufficient evidence to support the trial court's findings and the amount of fees awarded was unreasonable. In preparing the record on appeal, Karl elected to proceed with a settled statement, which he failed to procure, and designated only a partial clerk's transcript. Since the record is insufficient to review Karl's claims of error, we affirm the order.
We refer to the parties by their first names because they (do or did) share a surname. We intend no disrespect.
BACKGROUND
We take our recitation of the factual and procedural background from the trial court's findings and orders after hearing, and the register of actions. This appeal concerns Heather's petition for an order related to her claim that Karl breached his fiduciary duty to her by removing or selling assets awarded to her under the terms of a judgment of dissolution entered on November 12, 2015, in the parties' marriage dissolution action. The judgment's terms were based on an agreement the parties reached in court on July 28, 2015, which was reflected in a minute order entered that day.
The relevant portion of that agreement awarded Heather a lot and residence in Tehachapi (the Jacks Hill Road property) and stated:" '[Karl] shall vacate this residence by October 15, 2015. When [Karl] vacates this residence, he shall only take his clothing and personal tools. All furniture, furnishings, appliances, tractors, attachments, equipment, and any other items at this residence, or the three lots adjacent to it, shall be left and awarded to [Heather]. Until [Karl] vacates this residence, he shall maintain liability insurance for this residence. [Karl] shall make sure this residence is in a reasonably good shape when he vacates it.' "
During the pendency of the action and before judgment was entered, Heather filed a series of ex parte requests-on December 18, 2014, April 15, 2015, and September 1, 2015-alleging Karl was selling assets without her consent, collecting rents from various properties without sharing them with her, and failing to disclose various accounts. At a September 1, 2015 ex parte hearing, the trial court ordered Karl to return the property he removed from the Jacks Hill Road property and gave Heather temporary exclusive possession of the Jacks Hill Road property.
The present proceeding addressed Heather's claims that Karl violated the trial court's orders and his fiduciary duties by removing or selling assets awarded to her in the judgment and by not returning all the items as the trial court ordered. The proceeding was based on the ex parte request Heather filed on September 1, 2015, which on May 8, 2017, the trial court ordered to be treated as a postjudgment enforcement action.
A bench trial was conducted over three days in April and May 2021. The trial court heard testimony from both parties and admitted numerous exhibits. Following the conclusion of the hearing, the parties submitted written closing arguments. The trial court announced its ruling on September 27, 2021, and issued its written findings and order after hearing on October 28, 2021.
The trial court rejected Heather's argument that she should be entitled to replacement value of the items Karl removed and instead used the fair market value at the time of the loss. The trial court "heard considerable testimony from the parties concerning the value of many of the disputed items," and admitted into evidence an appraisal report of DiGiovanni &Co. valuing much of the disputed personal property located on the Jacks Hill Road property as of July 28, 2015, which was prepared pursuant to a March 27, 2017 court order.
With respect to the parties' testimony concerning their opinions of the value of the items at issue, in most cases, the trial court rejected Heather's opinions concerning value as she relied only on the sales price of the items when new, and in some cases, the items were not identical. The trial court also had difficulty accepting Karl's estimates of value since he had a strong motive to undervalue the items. The trial court found much of his testimony lacked credibility, as his answers were frequently evasive and often contradicted by other physical evidence the trial court considered.
Based on the evidence, the trial court found Heather established by a preponderance of the evidence that Karl removed the personal property from the Jacks Hill Road property contrary to the court's prior orders. The trial court determined Heather's testimony was supported by numerous photographs that indicated the items were present prior to the court order and absent when she took possession of the Jacks Hill Road property, as well as by video evidence the trial court viewed which documented Karl's entry onto the Jacks Hill Road property after Heather was awarded exclusive possession and control.
The trial court determined the personal property removed, which included both personal household items as well as machinery and equipment and for which Heather established loss by a preponderance of the evidence, was valued at $30,003. Since the valuations were determined by the court's expert in March 2017, the trial court included interest on the liquidated amount at 10 percent per annum totaling $13,431.
The trial court also heard testimony about the condition of the residence on the Jacks Hill Road property after Heather gained possession of it in September 2015. The parties' settlement agreement required Karl to keep the residence in reasonably good shape when he vacated it. Karl testified some of the instances of damage were simply the result of his replacing new items he purchased postseparation with items previously present on the residence, but Heather's evidence established that in many cases this is not what happened. It appeared Karl's goal was to simply put something in place of the items he removed, no matter the condition. Based on Heather's estimates, the trial court found the repair damages totaled $18,200.
Finally, the judgment contained an attorney fees provision that required the party who failed to comply with the judgment to reimburse the other party for any expenses, including attorney fees and costs, reasonably necessary to carry out the judgment. The trial court found Heather was the prevailing party in her action to enforce the judgment's terms and was entitled to an award of attorney fees and costs. The trial court reviewed the billing statements submitted by Heather's counsel in his April 21, 2021 declaration and determined: (1) his hourly rate was reasonable for attorneys in the community who practice family law at his level of experience; and (2) the hours incurred were necessary and reasonable in obtaining enforcement of the judgment. Accordingly, the trial court awarded Heather $30,000 in attorney fees and costs.
Consequently, the trial court ordered Karl to pay Heather: (1) $30,003 for the items he removed from the property, plus interest at the rate of 10 percent per annum or $13,431; (2) $18,200 to replace and repair the damages he caused; and (3) $30,000 in attorney fees and costs.
DISCUSSION
Karl raises two issues on appeal which concern sufficiency of the evidence to support the trial court's findings. First, he asserts Heather failed to meet her burden of proving he took the items. He claims the before and after pictures do not prove who took the items. He further claims the video, which he asserts was inadmissible because it was recorded without the consent of the persons in it, shows an item he purchased postseparation. Second, he asserts Heather failed to meet her burden of proving he damaged any of the items, as he upgraded the property despite having no obligation to do so and Heather's pictures did not prove how the damage occurred or who caused it. He also appears to contend the amount of attorney fees awarded was unreasonable.
It is a fundamental rule of appellate review that the judgment is presumed correct, and the appellant has the burden of demonstrating reversible error by an adequate record. (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1178; Construction Financial v. Perlite Plastering Co. (1997) 53 Cal.App.4th 170, 179.)
The clerk's transcript in this case is comprised of the trial court's October 28, 2021 findings and order after hearing, the notice of appeal, Karl's notice designating the record on appeal (in which he failed to designate any other documents for inclusion in the transcript and stated he would proceed with a settled statement, which he failed to procure as set forth in Cal. Rules of Court, rule 8.137), and the register of actions. The record does not contain a reporter's transcript or settled statement of the trial, a complete clerk's transcript that includes the parties' filings concerning Heather's ex parte request, or the exhibits that were entered into evidence and on which the trial court relied in reaching its decision.
" '[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.'" (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.) Absent an official record of the trial (i.e., a reporter's transcript, or an agreed or settled statement), we are precluded from considering the sufficiency of the evidence or other claims of error, because we have no record of what the evidence was or what took place at the trial. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [failure to provide transcript or settled statement of trial precludes review of claims of trial error, because "a party challenging a judgment has the burden of showing reversible error by an adequate record"]; Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1201 [where appellant failed to furnish a reporter's transcript of the relevant hearing, "[w]e must ... presume that what occurred at that hearing supports the judgment"]; Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-188.)
Therefore, Karl's arguments that the trial court's order was incorrect-because the court considered the other ex parte requests Heather submitted, the appraisal was inadequate and arbitrary, there was insufficient evidence he took or damaged the items, and the amount of attorney fees awarded was too high-necessarily fail. Similarly, we cannot review whether the trial court erred in admitting the video into evidence. Karl's attempt to recount the trial testimony based on his personal recollection-not on a reporter's transcript or settled statement-is inadmissible. Without a comprehensive record of the trial proceedings, including the testimony and exhibits received, we cannot undertake a meaningful review of Karl's arguments on appeal.
Karl's argument also fails because he is in essence asking this court to reweigh the evidence and make credibility determinations, neither of which we are empowered to do. (Foust v. San Jose Construction Co., Inc., supra, 198 Cal.App.4th at p. 188.)" '" 'Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.'" '" (Bloxham v. Saldinger (2014) 228 Cal.App.4th 729, 750.)
The absence of a trial transcript and the exhibits admitted at trial requires us to assume Heather presented evidence at trial which would support each of the trial court's challenged decisions. (Sears, Roebuck &Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1352, fn. 7; People v. Seneca Ins. Co. (2004) 116 Cal.App.4th 75, 80; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) Given the state of the record, we have no choice but to apply the presumption of correctness to the trial court's order; we cannot overturn the judgment or determine whether the alleged errors were prejudicial. (Stephens v. Aviation Research etc. Corp. (1966) 243 Cal.App.2d 349, 351-352.) The fact that Karl is self-represented does not excuse his failure to comply with the rules and standards that govern appeals. (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 ["[Self-represented] litigants are held to the same standards as attorneys."].) Accordingly, we reject his contentions of error and affirm the order.
DISPOSITION
The trial court's October 28, 2021 order is affirmed. Respondent shall recover her costs on appeal.
[*]Before Pena, Acting P. J., Smith, J. and DeSantos, J.