Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 02FL07804
DAVIS , J.
Sukhdev Rye appeals in propria persona from the judgment of dissolution of marriage entered on the petition of Rajvir Uppal. He contends that the trial court erred in denying his request for a continuance; in denying his request after the court took the matter under submission for a statement of decision; in computing interest on community funds at the legal rate rather than the actual return; in calculating the credit to the community for community funds he had expended on legal fees; and in imputing an earning capacity to him. We shall reverse the judgment and remand to the trial court for a determination of limited issues.
He purports to appeal as well from a separate order filed the same day that denied his request for a statement of decision. As it is not an independently appealable order (embraced instead in the appeal from the judgment), we dismiss that portion of his appeal. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 138, p. 204.)
Given the nature of his arguments, we do not need to relate many of the facts to which the parties testified. We therefore will not include a separate summary of the facts, and instead will incorporate the pertinent details in the Discussion where relevant.
Discussion
I
A
Rye contends that the trial court erred in denying his request for a statement of decision. He is mistaken. The trial in this matter took place over the course of two days. Neither the reporter’s transcript nor the clerk’s minutes reflect the actual time that the morning and afternoon sessions began or ended (beyond a recital in the minutes that the court’s morning session on the first day was scheduled to begin at 8:30 a.m.).
At one point during the first morning’s session, the court noted that it would be leaving for a meeting at 11:45 a.m., but there is no indication how long before that point the court recessed the proceedings after respondent Uppal’s counsel reminded it of the appointment. Forty pages into the transcript of the afternoon proceedings, the court stated that it would be leaving in 40 minutes. It reminded the parties that they would have at most four hours on the following day. It adjourned 20 pages later (with counsel remarking that there was “some time” left). After the morning session on the second day (which also included the court declaring a five-minute break for the reporter’s benefit), the court announced the lunch break and told the parties they would have at most one more hour to wrap up their presentation afterward.
The court declared a “couple minutes break” during the session for the benefit of the court reporter.
Before the court took the matter under submission, appellant Rye asked, “a statement of decision, is that something I would ask for now or after the decision?” The court told him that it usually made findings; a formal statement of decision would “be an added cost, which the [c]ourt may or may not assess against a party, but certainly you can ask for,” at which point appellant Rye interrupted, “I just wanted to make sure that I didn’t have to do it now [or] foreclose myself. If it’s something I can do afterward --.” The court answered, “That is something you need to consult the law books about.”
On February 14, 2006, the court mailed minutes reflecting its written findings to the parties. Appellant Rye mailed a request for a statement of decision a week later. As noted, the court filed an order with the judgment denying the request, which stated that the request was untimely because the proceedings were less than eight hours over the two days of hearings.
B
In a trial that concludes in fewer than eight hours over the course of more than one court day, a party must request the court to prepare a statement of decision before it takes the matter under submission. (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 975 (Gray); Code Civ. Proc., § 632.)
We must presume that a judgment is correct in the absence of affirmative contrary evidence. (Gray, supra, 103 Cal.App.4th at pp. 977-978.)
As we summarized above, nothing in the record reflects the actual time at which the four court sessions began and ended. As anyone familiar with a trial is well aware, there is often a major disparity between the intended time for the commencement of court proceedings and their actual beginning. As a result, the various remarks in the record are not proof that the trial court erred in its calculation of the time consumed at trial (including breaks (Gray, supra, 103 Cal.App.4th at p. 980)).
Appellant Rye contends that a handwritten notation on the minutes (“9:32”) is the actual amount of court time, because we stated in Gray that “in the future the courtroom clerk should keep track in the minutes so that the court, counsel, and the parties will know when a request for a statement of decision must be made” (103 Cal.App.4th at p. 979). But this requires that we speculate about the significance of this notation, which is not a proper inference to draw. (Shandralina G. v. Homonchuk (2007) 147 Cal.App.4th 395, 411.) He also contends that his own records (and those of his sister) reflect that this was indeed the amount of time consumed at trial. However, this information is outside the record on appeal, and therefore we cannot consider it in resolving the case. (9 Witkin, Cal. Procedure, supra, Appeal, § 328, pp. 369-370.)
Appellant Rye suggests that the court’s remarks regarding the possibility of liability for the cost of a statement of decision were improper because they could discourage a party from exercising his or her right to a statement of decision. The short answer is that the court’s remarks did not have any effect on him, so they are manifestly harmless.
Finally, appellant Rye suggests that the trial court should have treated his questions about the timing of a request for a statement of decision as the equivalent of a request. However, a party appearing in propria persona is not entitled to any special consideration or advice from the court in fulfilling procedural requisites for trying the case. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055-1056.) The court was correct in leaving appellant Rye to suffer the consequences of his ignorance of procedure rather than warning him to speak then or forever hold his peace. Since he failed to commit himself to requesting a statement of decision before the court recessed, he did not trigger the duty of the court to prepare one.
In short, the trial court correctly denied the request for a statement of decision. As a result, in the remainder of the discussion we will presume any finding that is supported by substantial evidence. (Smith v. City of Napa (2004) 120 Cal.App.4th 194, 198-199.)
II
Appellant Rye contends that the trial court deprived him of due process when it denied his request for a continuance. As a quick review of the pertinent facts will show, the court did not abuse its discretion in doing so. (7 Witkin, Cal. Procedure, supra, Trial, § 10, p. 36.)
A
In May 2005, appellant Rye and his attorney filed a notice of the limited scope of counsel’s representation in this matter. His participation did not include correspondence or preparing pleadings, and he would not be accepting service on behalf of his client or communicating with opposing counsel. He would only appear for any hearings on the issues of custody, visitation, and child support.
Apparently this occurred twice in mid-2005, with appellant Rye preparing the pleadings for both hearings.
On November 1, 2005, the parties appeared for a settlement conference, which continued a trial set for mid-November 2005. At this conference, appellant Rye requested that notice of the new trial dates be sent directly to him. In response to respondent Uppal’s at-issue memorandum indicating the parties’ availability for a settlement conference on January 27, 2006, and a two-day trial on February 9 and 10, 2006, the court sent appellant Rye a notice confirming those dates on November 30, 2006. On December 9, 2005, appellant Rye learned that his attorney would not be available on the new dates for trial.
Appellant Rye contacted opposing counsel to ask if he would agree to a continuance of a couple of weeks. Opposing counsel replied in a December 12 letter that he would be amenable to a continuance. However, in the past the extent to which appellant Rye was appearing through counsel had been ambiguous. Therefore, opposing counsel stated that appellant Rye would need to provide express authority that he would be appearing through counsel at trial, and to have his attorney act on his behalf in requesting a continuance. It would be appellant Rye’s responsibility to apply for the continuance and bear any related cost.
On January 27, 2006, the parties appeared for the settlement conference. Appellant Rye prepared the pretrial statement and apparently moved to continue the trial date (the record does not include any written motion or supporting materials). The court denied the request without elaboration.
Both at trial and in his motion to set aside the judgment, appellant Rye claimed that the court denied the motion on the basis of the court’s belief that he was proceeding at trial in propria persona.
Thereafter, his attorney asked that appellant Rye execute a substitution of attorneys for the impending trial dates for which counsel was not available. When appellant Rye failed to act, his attorney filed a motion ex parte (after appellant Rye did not to respond to messages left at three different phone numbers) to withdraw as attorney of record (or alternately to bifurcate issues within his limited-scope representation that he had not been aware would be addressed at this trial until a few days earlier when appellant Rye first told him). The motion noted that opposing counsel had rejected a proposal for a continuance. The motion also noted that the court was aware of his limited-scope representation not extending to trial. The court approved the application to proceed ex parte and granted the motion to withdraw.
Other than the minutes of January 27, 2006, the appellate record does not include anything in relation to the settlement conference at which appellant Rye first moved to continue the trial date. We therefore do not presume the existence of any grounds establishing good cause other than the facts reflected in the clerk’s transcript. (9 Witkin, Cal. Procedure, supra,Appeal, §§ 351-352, pp. 398-399.)
We also take into account the statements of appellant Rye at trial and in his declaration supporting his motion to set aside the judgment to the extent they confirm these facts; we must presume the trial court rejected any contrary facts in denying the continuance.
B
Continuances are disfavored, and granted only on a showing of good cause. (7 Witkin, Cal. Procedure, supra, Trial, § 8, p. 34; Cal. Rules of Court, rule 3.1332.) Even where the denial of a continuance results in a litigant being deprived of representation, it is not an abuse of discretion if the litigant was not diligent in making sure that counsel would be available for the hearing. (7 Witkin, Cal. Procedure, supra, § 13, p. 39.)
While there is some debate about the degree to which they are disfavored (compare County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781 [court should grant only rarely] with Pham v. Nguyen (1997) 54 Cal.App.4th 11, 16-17 [should not treat continuances as “precious metal”]), it is clear that litigants do not have any entitlement to one and any reference in older cases to a “liberal” standard are not valid any longer.
This record is replete with evidence of appellant Rye’s lack of diligence. Apparently his own attorney did not believe that the nature of his limited responsibility included the trial in this matter, and appellant Rye did not even inform him that issues within its scope would be addressed at trial until after the denial of the motion for a continuance. Moreover, he did not do anything for more than a month after receiving the letter from opposing counsel that set out the circumstances under which he would agree to a continuance. Nor did he seek to find alternate counsel. Under these circumstances, the court did not abuse its discretion, even if it were mistaken in its belief that the scope of his counsel’s representation was not involved in the trial.
III
A
The parties were married a little over two years before separating in late 2002. Their two children were born in 2001 and 2003.
At trial, appellant Rye had testified that he had maintained control over funds from their joint account after separation in the form of certificates of deposit, and had moved them from bank to bank to maximize interest. At times the interest had been as high as 4 percent, but on the average it ranged from 2 to 3 percent. He had not received any request from respondent Uppal for a disbursement until a November 2005 letter from her attorney. He disputed the extent of the interest that she claimed and admitted using $35,000 of these community funds to pay for his own legal fees, although he did not provide documentation of this figure.
Respondent Uppal is a medical doctor who works less than full time with the Veteran’s Administration. She testified that in order to make ends meet since the separation, she had borrowed upward of $50,000 from her parents for expenses and legal fees, and she has not made court-ordered payments to appellant Rye for child support.
Appellant Rye has a bachelor’s degree from U.C. Berkeley in economics, a law degree from UCLA, and a master’s degree in tax law from Georgetown. In March 2005, he was dismissed from his job as an advisor to a State Board of Equalization member, and was in the midst of administrative hearings on the issue of his reinstatement at the time of trial in this matter. He had not applied for unemployment benefits because he believed this would prejudice his case. He has looked for job openings in the Daily Recorder every couple of days, and has networked with people he knows in large law or accounting firms, but claims he has not been able to find a new job. He had been focusing on positions combining business and tax law, because in the small Sacramento legal market there are few positions limited to the specialty of tax law. There have been only entry-level listings in this field. Moreover, his experience in the public sector had been with the more arcane areas of state sales, use, and property tax law, and he does not have litigation experience. He had worked at large private law firms before entering state service, but had fallen victim to the “up or out” principle and believed the allegations against him in his dismissal have a negative effect. His salary had been roughly $7,400 per month, but he did not have any idea what salary he might presently command in the market. At present, he was living on his savings and rental income from the other half of the duplex in which he lived, with financial help from his parents. He had previously taken a leave of absence for a year (2003-2004) from his position to provide daycare for their two children.
Respondent Uppal called an expert who ordinarily worked as a vocational rehabilitation counselor for injured workers who cannot return to their former occupations. He has not previously worked with any attorneys in this capacity. He conducted two “labor market survey[s]” of the legal job market in October 2005 and February 2006, which included listings in the Daily Recorder, the Sacramento Bee, recruiting firms, and Internet job boards. As there was a limited market for tax attorneys in Sacramento, he included listings from San Francisco as well. Asked about a person with appellant Rye’s qualifications, he identified a number of job openings. However, as his written report reflects, the area of practice for many of these is not listed (including the type of tax attorney sought), or were for attorneys with experience in fields other than tax. In his salary survey from several sources, he came up with an average income of $120,000 per year. In his experience, a rule of thumb exists that it takes one month of searching for every $10,000 in income involved. He did not think there were any obstacles to appellant Rye’s return to the labor market, but was unaware of his dismissal from his previous position. He did not think it was necessary to limit a job search to a narrow specialty.
B
The court entered handwritten findings in the minutes after the hearing, three of which are pertinent to this appeal. First, it ruled that appellant Rye “is well qualified to find employment but has chosen not to”; based on the evidence of available jobs, it would “impute income to [him] at a level commensurate with his ability and qualifications effective 3/1/06.” Second, it ruled that community assets of “$130,031 [plus] interest are to be divided equally [with] appropriate offsets (reserve [jurisdiction] over fiduciary breaches).” Finally, it ruled that appellant Rye had expended $35,000 of these community assets on his legal fees, which the court “awarded to [respondent Uppal] out [of appellant Rye]’s [community property] funds.”
Apparently this figure represents the original corpus of community funds that appellant Rye placed in interest-bearing accounts before he withdrew money for his legal fees.
On March 7, 2006, opposing counsel mailed a courtesy copy to appellant Rye of the letter enclosing a proposed judgment for the trial court’s signature, without seeking his approval as to its form. The trial court apparently signed it without modification on March 16, 2006, and mailed notice of its entry to appellant Rye on March 20. In dividing the community assets, the judgment computed interest “at the legal rate of 10%” on the original amount at the time of separation for a total of $173,000 (we will round to the nearest thousand). It added amounts reflecting community assets spent on appellant Rye’s separate real property ($2,600) and respondent Uppal’s separate property spent on community tax debts ($5,000), for an adjusted total of $181,000 before dividing it equally between the parties. It then applied a $210 credit to appellant Rye’s half for his separate funds spent after separation on a community debt, and a $210 debit to respondent Uppal’s half. Similarly, it applied a $35,000 debit to appellant Rye’s half for community funds spent on his legal fees, and a $35,000 credit to respondent Uppal’s half. Finally, it provided that the parties were to bear their own legal costs.
There is no formal proof of service of the proposed judgment. Appellant Rye asserts that he never received it.
Appellant Rye moved to set aside the judgment. He contended that the judgment did not accurately incorporate the court’s findings because the interest rate of 10 percent was greater than the interest actually earned on the community funds, and the method of accounting for his expenditure of the community funds on his legal fees resulted in double-counting of the full amount as both a credit and debit.
In her opposition, respondent Uppal pointed to admissions in appellant Rye’s pretrial statement supporting an interest rate of at least 4 percent. She also appeared to contend that the higher rate of interest was warranted as a remedy for a breach of fiduciary duty (Fam. Code, § 1101) because he had maintained exclusive control over the community funds ever since the date of their separation in October or November 2002 (the discrepancy over which remained an unresolved issue). She also asserted ipse dixit that “the application of [the] legal rate of interest is appropriate absent further instruction of the court.” If the court were to accept a limit of 4 percent, then the total before division would be $154,000. She calculated the two post-division credits in the same manner without responding to the claim of double-counting.
Depending on the nature of the breach, the statute entitles the other spouse either to 50 percent of improperly transferred funds (and any related legal fees and costs) or 100 percent of them. (Fam. Code, § 1101, subds. (g), (h).)
In closing argument, her attorney had initially suggested that the court should make unspecified adjustments in dividing the community property pursuant to this authority.
Before the combined hearing on the motion to set aside (and a motion to recall the writ of execution), appellant Rye sent a letter to the court dropping the motion to set aside; on the same day, he filed his notice of appeal. The minutes for the hearing on the motions show that the clerk interlineated a ruling that initially denied the request to modify the rate of interest, and instead included a remark that appellant Rye “rejects effort to resolve short [of] appeal.”
For informational purposes only, we note that appellant Rye supplies extrajudicial information in his reply brief that the court had initially ruled on the merits of his motion to set aside until he reminded it that the motion had been dropped, at which point it made the remark recorded in the minutes.
B
At the outset, we must reject the claim of respondent Uppal that the withdrawal of the motion to set aside acts as some species of forfeiture of appellate consideration of the two issues embraced in it that are reiterated in the present appeal. A litigant is not required to seek post judgment relief in the trial court to preserve issues for appeal. (9 Witkin, Cal. Procedure, supra, Appeal, § 397, p. 449.) All of the cases she cites that apply forfeiture involve the context of litigants having the formal opportunity before entry of judgment to raise the issue foreclosed on appeal.
1. To begin with, the 10 percent rate of return that the court imputed to the community funds while in appellant Rye’s exclusive control lacks any evidentiary basis as required in valuing community property for the purpose of division. (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 631-632.) It therefore must be justified under some legal theory permitting the selection of an interest rate unrelated to the evidence. Unfortunately, neither the handwritten findings in the minutes nor the judgment expressly invoke the legal authority under which the court purported to act.
In response to appellant Rye’s argument that the record lacks evidence to support the rate of 10 percent, respondent Uppal invokes cases that assert a court is not limited to the legal rate of interest in setting the rate of interest on a post judgment promissory note securing an equalizing payment, and may exceed it in interests of “‘fairness and equity.’” (In re Marriage of Escamilla (1982) 127 Cal.App.3d 963, 967, quoting In re Marriage of Stallcup (1979) 97 Cal.App.3d 294, 302.) She also fashions what we might term a rather novel argument that since marriage is a contractual arrangement, a breach of fiduciary duty between the parties should be treated as a breach of contract entitling the injured party to a prejudgment interest rate of 10 percent from the date of the breach. (Civ. Code, § 3289, subd. (b).) However, even if either one of these arguments had any merit, neither of them were her theory of trial, and she is consequently foreclosed from raising them for the first time on appeal. (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 872-873.) And as she does not present any argument regarding the theory she did urge at trial, we deem that theory forfeited. (Craddock v. Kmart Corp. (2001) 89 Cal.App.4th 1300, 1307.)
We will therefore vacate the judgment and remand for a recalculation of the interest actually earned up to the entry of judgment, unless the court expressly articulates a basis for departing from the evidence. This does not preclude applying the legal rate to the funds post judgment if still in the control of appellant Rye.
2. With respect to the accounting for the use of $35,000 in community funds for appellant Rye’s separate debt, the judgment lacks any consistent approach. It adds back before division the expenditure of community funds on his separate realty, but does not take the same approach with the expenditure on his legal fees. It also reimburses respondent Uppal for the use of her separate funds for a community debt before division, yet does not take this approach with a similar expenditure on appellant Rye’s part. However, the basis for this methodology is not at issue on appeal, and we eschew any attempt to reconcile it beyond the item at issue.
It would seem more logical first to subtract the credits for use of separate property from the existing corpus, then divide the result, then add the credits back to each share, and finally transfer half of the misappropriated total from his share to hers.
The mathematical treatment of the $35,000 is incorrect. Simply put, appellant Rye spent $35,000 of money in which he had only a one-half interest. This is why the customary remedy is to order the breaching spouse to pay half of misallocated funds to the other spouse. (Fam. Code, § 1101, subd. (g); In re Marriage of Czapar (1991) 232 Cal.App.3d 1308, 1317.) Therefore, only the misappropriated half should have been transferred from his share of the community to hers after dividing the total between the parties. By transferring the entire figure, there is a double recovery because the difference between their shares (to reflect the extent he took an “advance on his allowance”) is now in the neighborhood of $70,000 rather than $35,000.
Respondent Uppal does not offer a remotely tenable rationale for this result. She again invokes the remedy for a breach of fiduciary duty that she weakly urged in the trial court, and claims the calculations reflect a finding sub silentio of conduct in committing the breach that would merit exemplary damages (Civ. Code, § 3294) such that Family Code section 1101, subdivision (h), would allow “an award to the other spouse of 100 percent . . . of any asset undisclosed or transferred.” In addition, she cites a statute allowing unequal division of community property through an award from one spouse’s share to the other’s of any sums that were deliberately misappropriated, the benchmark for which is conduct amounting to “‘calculated thievery’” and not the mere “‘mishandling of assets.’” (In re Marriage of Partridge (1990) 226 Cal.App.3d 120, 126; Fam. Code, § 2602.) The flaw in these theories is the absence of any substantial evidence of conduct satisfying these standards.
Respondent Uppal had a right of access to the funds that appellant Rye retained. However, she does not identify any testimony or evidence to reflect that she had communicated her financial need for access to the funds directly to appellant Rye before the November 2005 letter from her attorney, other than through entries in her declarations of income and expense of which appellant Rye was skeptical. That letter does not in any manner reproach him for his retention of the funds during the previous three years, and in fact states “you have showed the appropriate stewardship in safeguarding the community assets” before suggesting that “you would agree that it [is] appropriate that you relinquish one-half of the undisputed community funds at this time.” That he used some of these funds as an advance on his ultimate interest in them does not transform this acquiesced stewardship into oppressive or malicious conduct sufficient to satisfy the standards for exemplary damages, nor does it reflect calculated thievery of the funds. The fact that he disputed the extent of her entitlement to the funds and did not respond to her request before a resolution of her claim at the imminent trial is also insufficient to satisfy these standards. As a result, our remand will also include directions to modify the credit for this expenditure on legal fees in the manner we have described.
Respondent Uppal does not identify any basis for requiring appellant Rye to accept the claims in these documents, prepared in anticipation of litigation, on their face.
C
This leaves appellant Rye’s challenge to the imputation of income to him. He acknowledges that a court may impute income where a spouse is unemployed or underemployed despite the ability and opportunity of finding employment, regardless of whether this represents a deliberate bad-faith strategy. (In re Marriage of LaBass & Munsee (1997) 56 Cal.App.4th 1331, 1337-1338 (LaBass & Munsee); Fam. Code, § 4058, subd. (b).) He contends, however, that the record will not support a finding of available jobs or that he could earn in solo practice the $95,000 attributed to him.
We are assuming that this issue has not been mooted through his success in obtaining an order of reinstatement from the State Personnel Board.
Appellant Rye misapprehends the burden of production on the issue of opportunity to work. There was evidence of job openings in the Sacramento market (even ignoring the positions out of the market or for which he was not facially qualified, such as insurance defense or litigation). At that point, it became his burden to demonstrate that such employers would not hire him. (LaBass & Munsee, supra, 56 Cal.App.4th at p. 1339.) Other than attest to his perusal of the job listings or passing the word to friends that he needed a job, he did not provide any evidence of actual unsuccessful attempts to apply for these positions. He simply expressed his personal belief that he would be considered overqualified for entry-level positions, or might be rejected because he had been dismissed from his prior position, or would run afoul of the “up or out” principle (without considering the possibility of a position not on the partner track). By way of contrast, In re Marriage of Cohn (1998) 65 Cal.App.4th 923 (Cohn), involved an experienced attorney who produced a lengthy list of his actual unsuccessful attempts at finding any sort of work (even in positions such as paralegal, contract attorney, or car salesman). (Id. at pp. 926-927, 929.) Consequently, the evidence supports the court’s finding that appellant Rye could find work in the Sacramento market if he made a greater effort or were less fastidious about what work he would find acceptable.
As for the issue of the amount of income imputed, appellant Rye did not even attempt to estimate his earning capacity. The expert consulted various sources for average attorney income, among which was a national wage survey of small firms that showed that associates (or attorneys not on the partner track) with the same number of years of experience as appellant Rye earned over $120,000, and a wage survey of the Employment Development Department showing a median income of $96,000 and a mean income of $104,000. Therefore, even if he did not have the opportunity to find a position as a tax attorney commensurate with his training and experience, there was evidence to support the imputed income for such attorneys in general.
The trial court did not purport to hypothesize appellant Rye’s earnings as a solo practitioner. We therefore do not need to consider his argument that the court did not have evidence of the average income of first-year solo practitioners of his age and experience. (Cohn, supra, 65 Cal.App.4th at p. 931.)
Disposition
The portion of the appeal from the order denying the request for a statement of decision is dismissed. The judgment is reversed and the matter remanded to recalculate the interest rate on the community assets, and to debit and credit the respective parties only one-half of the $35,000 expended on appellant Rye’s legal fees. Neither party shall recover costs of appeal. (Cal. Rules of Court, rule 8.276(a)(3).)
We concur: BLEASE, Acting P.J., SIMS , J.