Opinion
G062678
04-30-2024
In re the Marriage of MARGARET SUZANNE LUKOWSKI and HARDY LEE WIETING, JR. MARGARET SUZANNE LUKOWSKI, Respondent, v. HARDY LEE WIETING, JR., Appellant.
Hardy Lee Wieting, Jr., in pro. per., for Appellant. Strong Appellate Law, Jeanine G. Strong; Law Offices of Jeffrey N. Stivers and Jeffrey N. Stivers for Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 20D000713 Thomas James Lo, Judge. Affirmed, as modified.
Hardy Lee Wieting, Jr., in pro. per., for Appellant.
Strong Appellate Law, Jeanine G. Strong; Law Offices of Jeffrey N. Stivers and Jeffrey N. Stivers for Respondent.
OPINION
GOODING, J.
Hardy Lee Wieting, Jr., representing himself, appeals from the judgment dissolving his marriage to Margaret Suzanne Lukowski. He argues the trial court erred by awarding Lukowski: (1) a community interest in a house located in Washington, D.C.; (2) a community interest in two retirement accounts; and (3) attorney fees. We find no error in the division of the house or the award of attorney fees. We agree with Wieting, however, as to the court's award of a community interest in the retirement accounts and direct the court to modify the judgment as to those accounts. The judgment is affirmed as modified.
FACTS
Wieting and Lukowski were married in Virginia on February 22, 1989. The couple lived in Washington, D.C. at the time of the marriage but moved to California in 2006. Lukowski filed a petition for dissolution of the marriage in the Superior Court of California, County of Orange in January 2020.
Approximately three years before the couple married, Wieting purchased a home in Washington, D.C. (D.C. House). Wieting and Lukowski lived in the D.C. House from 1989 through 2005. While they lived there, Lukowski paid for numerous improvements to the house, including a new shed in the backyard, an alarm system, security grills, air conditioning/heating, storm windows, marble tile floors for the bathroom, shutters (inside and outside), outdoor lighting, a new fence, appliances, lawn furniture, and various decorative items. She also painted every room in the D.C. House (some twice), touched up the exterior paint, maintained the garden, stained the woodwork in the great room, and fixed a fountain. Financing for the improvements came both from her separate money and from joint accounts.
During their more than 30 years of marriage, Wieting financially supported Lukowski and paid for her living expenses. Wieting and Lukowski filed joint tax returns throughout the marriage. They had joint credit cards. They shared a joint bank account from 2005 until late 2018 or early 2019.
After Lukowski petitioned for dissolution of the marriage, the parties stipulated to spousal support and an order was entered thereon. The only matters to be determined at trial were interests in the D.C. House, Wieting's financial accounts, and any award of attorney fees.
At trial, Lukowski acknowledged Wieting held title to the D.C. House, but she nevertheless claimed a community interest in the property. She presented expert testimony from a forensic accountant who testified: (1) the current fair market value of the D.C. House was $1,658,719; (2) Wieting's separate property interest in the D.C. House was $362,072; (3) Wieting and Lukowski shared a community interest of $1,171,501 in the D.C. House; and (4) Lukowski and Wieting were each entitled to 50 percent of the community interest. Wieting did not present evidence refuting the expert's testimony.
The trial court followed Lukowski's expert's findings and awarded Lukowski one-half of the community interest in the D.C. House in the amount of $585,750.50. Wieting was ordered to pay Lukowski the $585,750.50 within 90 days of the entry of judgment. If Wieting was not able to do so, he was ordered to list the D.C. House for sale and pay $585,750.50 directly to Lukowski after the sale of the property.
The trial court also found two accounts at Fidelity Investments totaling approximately $15,441.27 were community property and ordered Wieting to pay Lukowski one-half of the amount in those accounts ($7,720.63) within 30 days of the judgment being entered.
Finally, the court awarded Lukowski attorney fees in the amount of $50,000, due either after the sale of the D.C. House or no later than six months after entry of the judgment.
Wieting appeals the judgment, arguing the trial court erred in awarding Lukowski: (1) a community interest in the D.C. House; (2) a community interest in the retirement accounts; and (3) attorney fees. Each claimed error is addressed below.
DISCUSSION
Before reaching the substantive issues raised on appeal, we address defects in Wieting's opening brief. An appellant's opening brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." (Cal. Rules of Court, rule 8.204(a)(1)(C).) Wieting did not support his statement of facts by any reference to trial record. "Statements of facts not supported by references to the record may be disregarded as a violation of rule 8.204(a)(1)(C) of the California Rules of Court." (Princess Cruise Lines, Ltd. v. Superior Court (2009) 179 Cal.App.4th 36, 45.)
Wieting is self-represented, but this does not change the applicable standards. Selfrepresented litigants are "treated like any other party and [are] entitled to the same, but no greater consideration than other litigants and attorneys." (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.)
To compound the problem, in his argument section, Wieting refers to his pretrial filings as if they were evidence. Unsworn statements in briefs and unauthenticated documents are not evidence. (Evid. Code, §§ 1200, 1401; Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 292 [exhibits not accepted into evidence at trial should not be considered on appeal because "[t]heir foundation ha[s] not been tested in the trial court"]; In re Heather H. (1988) 200 Cal.App.3d 3d 91, 95 ["unsworn testimony does not constitute 'evidence' within the meaning of the Evidence Code"].) "Factual matters that are not part of the appellate record will not be considered on appeal and such matters should not be referred to in the briefs." (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 102; see Evid. Code, § 1400.) We do not consider the unauthenticated documents and unsworn statements offered by Wieting in support of his appeal.
I. DIVISION OF THE D.C. HOUSE
On appeal, Wieting identifies three agreements he believes make the D.C. House his separate property: (1) an oral agreement allegedly entered in 1974; (2) an assignment of rights allegedly executed in 1986; and (3) a written premarital agreement entered into just minutes before the couple's marriage in 1989. As explained below, none of the three agreements governs ownership of the D.C. House.
A. The Alleged 1974 Oral Agreement
Wieting asserts when he and Lukowski decided to live together in 1974, they "'made a deal'" to maintain their separate assets for their entire relationship. Although he raised the alleged 1974 oral agreement in his pretrial briefing, Wieting did not present any evidence of the claimed agreement at trial. "'[W]hen reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered.'" (J&A Mash &Barrel, LLC v. Superior Court (2022) 74 Cal.App.5th 1, 22.) By failing to introduce evidence of the alleged 1974 oral agreement at trial, Wieting forfeited his claim that the agreement governed division of the D.C. House.
B. The Alleged 1986 Assignment of Rights
Wieting claims that in 1986, before he bought the D.C. House, Lukowski executed an assignment of rights (assignment) regarding the D.C. House. The alleged assignment read, in full, "For valuable and other consideration received, I, Margaret Susan Lukowski, hereby assign to Hardy Wieting, Jr. all of my rights, if any, in the matter of the sale of 1622 32d St., N.W. under pertinent statutes of the District of Columbia, including Law 3-86, as amended." The date at the top of the assignment, March 15, 1986, predates both Wieting's purchase of the D.C. House and the couple's marriage. At trial, Lukowski testified she had never seen the assignment before filing for divorce.
Wieting, who represented himself at trial, did not move the assignment document into evidence. But after Lukowski's counsel referred to the document in closing argument, the trial court raised the issue whether, for the sake of a "clear record," it should admit the document into evidence or perhaps just take judicial notice of it. Lukowski's counsel objected to the document being admitted into evidence, arguing that it was Wieting's "duty" to move it into evidence if he contended it was enforceable. Counsel indicated he would prefer the court to simply take judicial notice of the document. The court agreed to take judicial notice of the document as an attachment to a pretrial filing, noting it was "just for appellate purposes, so the Court of Appeal can refer to something." Ultimately, the court found that Wieting "did not lay a proper foundation for this document or articulate what this document purports to represent," leaving it "unclear what legal effect, if any, this document has."
We understand the trial court to have simply taken judicial notice of the existence of the document in the court files, not the authenticity or validity of the document. (See Martin v. Gladstone (2023) 96 Cal.App.5th 681, 689, fn. 7 [a court may take judicial notice of the existence of court filings but "not of disputed or disputable facts stated in" such documents].)
The trial court noted: "[Wieting] testified [Lukowski] prepared this document. But [Lukowski] testified she has never seen this document. She did not prepare it or sign it. She also testified the middle name on the document, 'Susan,' is not her middle name."
"Where a trial court's ruling is based on a finding of fact, we review the decision for substantial evidence. [Citations.] Under this deferential standard, '"[A]ll factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment."'" (Trinity v. Life Ins. Co. of North America (2022) 78 Cal.App.5th 1111, 1121.) Lukowski testified she did not prepare the document or remembering signing it and that she did not even see the agreement until after she filed for divorce. Further, Wieting never moved the alleged assignment into evidence.
Evidence Code section 1400 defines authentication as "the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or . . . the establishment of such facts by any other means provided by law." Evidence Code section 1401 requires a writing to be authenticated before it may be received in evidence. We find no error in the trial court's finding that Wieting failed to lay a foundation for the document by sufficiently authenticating it and that it therefore did not govern the parties' respective property rights.
Even if the assignment document had been properly authenticated and admitted into evidence, it would not change the outcome. As set forth below, Lukowski acknowledged that Wieting purchased the D.C. House as separate property prior to their marriage. The community interest in the D.C. House arose through the use of community funds towards the house after the marriage.
C. The 1989 Premarital Agreement
Wieting contends the couple's premarital agreement (PMA) controls ownership of the D.C. House. The agreement was prepared by Wieting and signed by Lukowski minutes before their marriage in 1989. Lukowski testified that while she and Wieting were waiting to enter the chambers of the justice of the peace, Wieting, who was a licensed attorney, reached into his pocket, pulled out the PMA, gave her a pen, asked her to sign the PMA, and she signed. Lukowski and Wieting never discussed the PMA. Neither party provided the other with any financial disclosures before the PMA was signed. Lukowski did not sign any waiver regarding financial disclosures before she signed the PMA. Lukowski was not represented by an attorney at the time she signed the PMA and had not consulted with any attorney regarding the PMA. She did not waive her right to counsel in connection with the PMA. She was never informed, in any writing, of the rights and obligations she was giving up by signing the PMA. She was never given a copy of the PMA. There were no witnesses to the signing of the PMA, and it was not notarized.
The PMA reads, in pertinent part: "[A]ll of our assets are separate, having been brought to our relationship, each asset, by one or the other of us and belonging to that person. [¶] Accordingly we maintain separate bank accounts, investments, ownership of real and personal property, and so forth; we do not want our marriage to change this independence and we so agree that existing assets and future ones shall not be joint but shall be the possession of one or the other of us."
"'The law applicable to the validity and enforcement of premarital agreements turns on the date of execution.'" (In re Marriage of Melissa (2012) 212 Cal.App.4th 598, 611.) The PMA Wieting now seeks to enforce was signed in 1989. In 1985, California adopted the provisions of the Uniform Premarital Agreement Act (UPAA). (Fam. Code, § 1600 et seq.; see former Civ. Code, § 5300 et seq., added by Stats. 1985, ch. 1315, § 3.) Following the 1985 adoption of the UPAA and through January 1, 1994, former Civil Code section 5315 governed premarital agreements. Under its provisions, a party could avoid enforcement of a premarital agreement by proving either: (1) he or she did not execute the agreement voluntarily or (2) the agreement was unconscionable when it was executed and he or she did not have actual or constructive knowledge of the property and financial obligations of the other party. (Id., subd. (a).)The trial court found Lukowski met her burden as to both voluntariness and unconscionability.
California's 1985 adoption of the UPAA did not include certain provisions related to waivers of spousal support, which are irrelevant in this proceeding.
Former Civil Code section 5315 was later repealed and replaced by Family Code section 1615. (Stats. 1992, ch. 162, §§ 2, 10.) Family Code section 1615 has since been amended. (Stats. 2001, ch. 286, § 2; Stats. 2019, ch. 115, § 12; Stats. 2019, ch. 193, § 1.) Under the amendments, a party still may avoid enforcement of a premarital agreement by showing it was not voluntarily entered into or was unconscionable.
The trial court based its finding that Lukowski did not voluntarily enter into the PMA on the following uncontroverted facts: (1) Lukowski was not represented by counsel; (2) the PMA was given to Lukowski just minutes before her marriage; (3) Lukowski did not have an opportunity to consult with counsel about the PMA because she received it just before her marriage; and (4) the parties did not discuss the PMA before Lukowski signed it. The court's factual finding is reviewed for substantial evidence.
Factors to be considered in determining whether a party voluntarily entered into a premarital agreement include "the coercion that may arise from the proximity of execution of the agreement to the wedding, or from surprise in the presentation of the agreement; the presence or absence of independent counsel or of an opportunity to consult independent counsel; inequality of bargaining power-in some cases indicated by the relative age and sophistication of the parties; whether there was full disclosure of assets; and the parties' understanding of the rights being waived under the agreement or at least their awareness of the intent of the agreement." (In re Marriage of Bonds (2000) 24 Cal.4th 1, 18.) Here, the PMA was signed just minutes before the wedding ceremony, without any prior discussion; Lukowski was not represented by counsel; Wieting was a licensed attorney (although he testified he practiced law for only three years), and there was no disclosure of assets. Substantial evidence supports the trial court's finding Lukowski did not enter the PMA voluntarily.
The trial court's determination the PMA was unconscionable is a legal finding subject to de novo review. (In re Marriage of Facter (2013) 212 Cal.App.4th 967, 981.) "To the extent that there are conflicts in the evidence or in the factual inferences which may be drawn from the evidence a finding of unconscionability by the trial court will be upheld if it is supported by substantial evidence," however. (Patterson v. ITT Consumer Financial Corp. (1993) 14 Cal.App.4th 1659, 1663.)
The court determined the PMA was unconscionable based on the following factors: (1) Lukowski did not have adequate knowledge of Wieting's financial assets and obligations before signing the PMA; (2) Lukowski did not waive her right to disclosure of Wieting's financial assets and obligations; (3) Lukowski had no opportunity to consult with an attorney and she did not waive, expressly or impliedly, her right to counsel; (4) Wieting was a licensed attorney and was in a superior bargaining position; (5) there were no witnesses to the signing of the PMA; (6) the PMA was not notarized; (7) Lukowski was never informed of the rights she was relinquishing in signing the PMA; (8) Lukowski was never given a copy of the PMA; and (9) the PMA was handed to Lukowski just minutes before the marriage ceremony.
"A contract is unconscionable if one of the parties lacked a meaningful choice in deciding whether to agree and the contract contains terms that are unreasonably favorable to the other party. [Citation.] [The] unconscionability doctrine '"has both a procedural and a substantive element."' [Citation.] 'The procedural element addresses the circumstances of contract negotiation and formation, focusing on oppression or surprise due to unequal bargaining power. [Citations.] Substantive unconscionability pertains to the fairness of an agreement's actual terms and to assessments of whether they are overly harsh or one-sided.'" (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 125.) We conclude substantial evidence supports the factual findings made by the trial court and those factual findings, in turn, support the court's legal finding of unconscionability.
Wieting argues California law should not apply because the PMA was signed in Virginia by a couple who resided in Washington, D.C. "California's marital property laws are designed to provide for uniform treatment of quasi-community and community property when the parties have changed their domicile to this state and seek to legally alter their marital status in a California court." (In re Marriage of Craig (1990) 219 Cal.App.3d 683, 686.) California applies its own law to matters filed in California courts "unless a party litigant timely invokes the law of a foreign state." (Hurtado v Superior Court (1974) 11 Cal.3rd 574, 581.) Wieting did not raise either Virginia or D.C. law in connection with the PMA at trial. The trial court properly applied California law.
D. Community Interest in the D.C. House
Wieting purchased the D.C. House, as his separate property, in 1986. The couple married in 1989 and lived in the D.C. House from 1989 through 2005. The mortgage was fully paid off in 2005 while they still lived in Washington, D.C. On New Year's Day 2006, the couple moved to California. Because there is no enforceable premarital agreement and the divorce petition was filed in California, division of the D.C. House is determined under California community property law. (In re Marriage of Craig, supra, 219 Cal.App.3d at p. 686.)
Marital property in California is classified as separate, community, or quasi-community property. (In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 732.) Property acquired before marriage is separate. (Patrick v. Alacer Corp. (2011) 201 Cal.App.4th 1326, 1339 (Patrick).) Property acquired during the marriage is presumed to be community property. (Ibid.; see Fam. Code, § 760.) Property acquired while a spouse is domiciled somewhere other than California which would have been community property had the acquiring spouse been domiciled in California is quasi-community property. (Fam. Code, § 125.) In a marital dissolution proceeding such as this, quasicommunity property is deemed part of the "'community estate'" and divided as if it were true community property. (Fam. Code, § 63.) Unless the parties agree otherwise, the court is required to divide the community estate "equally." (Fam. Code, § 2550.)
Lukowski acknowledges the D.C. House is Wieting's separate property. She claims, however, a community property interest in the house under the Moore/Marsden rule. The Moore/Marsden rule decrees, "'[w]hen community property is used to reduce the principal balance of a mortgage on one spouse's separate property, the community acquires a pro tanto interest in the property.'" (In re Marriage of Nelson, supra, 139 Cal.App.4th at p. 1552.) The same is true when community property is used to pay for capital improvements to the separate property. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1423.) "'[T]he fruits of the community's expenditures of time, talent, and labor are community property.'" (Patrick, supra, 201 Cal.App.4th at p. 1339.) Accordingly, if community funds were used to pay for the mortgage or any improvements on the D.C. House, the community has an interest in the house.
The Moore/Marsden rule is named after the two cases from which it is derived: In re Marriage of Moore (1980) 28 Cal.3d 366 and In re Marriage of Marsden (1982) 130 Cal.App.3d 426. (In re Marriage of Nelson (2006) 139 Cal.App.4th 1546, 1552, fn. 5.)
Lukowski testified the parties' assets were commingled during the marriage. Wieting paid for most or all the living expenses, vacations, medical bills, car repairs, and the like. The couple filed joint tax returns. Wieting confirmed he paid for the family's expenses and that he and Lukowski had joint financial accounts and credit cards. As, under California law, all income, assets, and property acquired during marriage are presumed to be community property, substantial evidence supports a finding that community property was used to pay the mortgage during the period of the marriage. (Patrick, supra, 201 Cal.App.4th at p. 1339; Fam. Code, § 760.) In addition, Lukowski testified she paid for and made substantial improvements to the D.C. House during the time she and Wieting lived there. Substantial evidence also supports a finding that community property was used to pay for improvements to the D.C. House.
On appeal, Wieting contends the D.C. House maintained its separate property character because the payments he made during the marriage (to pay the mortgage and make improvements) were gifts made from his separate property. Other than testifying the payments for vacations were a gift to Lukowski and the payments he made for the care and maintenance of the couple's daughter were gifts to the daughter,Wieting did not testify or otherwise present evidence at trial to support his claim that all payments for the mortgage and improvements were made from his separate property.
The daughter is no longer a minor. There are no minor children of the marriage.
A trial court's factual determination of the character of property within a marriage is reviewed under the substantial evidence standard. (In re Marriage of Dekker (1993) 17 Cal.App.4th 842, 849.) Here, substantial evidence supports the court's findings that community funds were used to pay the mortgage on the D.C. House during the marriage and that Lukowski paid for and made substantial improvements to the house, giving the community an interest in the house.
A trial court must value the assets and liabilities before dividing the community property. (Fam. Code, § 2552.) At trial, Lukowski's expert presented evidence that the community interest in the D.C. House was $1,171,501 and Lukowski is entitled $585,750.50, which is one-half of the community interest. That evidence was unrefuted. There is substantial evidence to support the court's award of $585,750.50 to Lukowski.
Wieting asserts the trial court erred in requiring that he pay Lukowski the full amount of her community interest, even if he sells the D.C. House. The court ordered Wieting to: (1) pay Lukowski the $585,750.50 within 90 days of the judgment; and (2) if he could not pay within that time, to list the D.C. House for sale and pay $585,750.50 directly to Lukowski after the sale of the property. Wieting argues, if he sells the D.C. House, Lukowski should have to pay half of the resulting taxes, capital gains, and costs. A trial court is required to consider tax and other consequences flowing from its order only if a showing of "immediate and specific" tax liability is made. (In re Marriage of Clark (1978) 80 Cal.App.3d 417, 422-423 ["the trial court shall consider the tax consequences when dividing community property when there is proof of an immediate and specific tax liability"].) "Regardless of the certainty that tax liability will be incurred . . . the trial court is not required to speculate on or consider . . . tax consequences in the absence of proof that a taxable event has occurred during the marriage or will occur in connection with the division of the community property." (In re Marriage of Fonstein (1976) 17 Cal.3d 738, 749, fn. 5.)
A trial court has "'broad discretion to determine the manner in which community property is awarded in order to accomplish an equal allocation.'" (In re Marriage of Greaux &Mermin (2014) 223 Cal.App.4th 1242, 1250.) The court's orders are reviewed for abuse of discretion. (Ibid.) The court did not require the sale of the D.C. House. The judgment provides Wieting, first, with the option of paying Lukowski the value of her community share. The sale is a contingent option, exercised only if Wieting does not pay within the specified time. Because the sale may or may not take place, the court was not required to consider possible tax consequences. (In re Marriage of Fonstein, supra, 17 Cal.3d at p. 749, fn. 5.)
II. DIVISION OF THE RETIREMENT ACCOUNTS
Wieting appeals the trial court's award of one-half of two Fidelity retirement accounts to Lukowski. The amount in both accounts comes to a total of $15,441.27. Lukowski was awarded $7,720.63-one-half of the total amount. At trial, Lukowski did not testify about the accounts. The only evidence regarding the accounts was Wieting's testimony they were his separate accounts. In the absence of any testimony or other evidence as to when the Fidelity accounts were acquired, there can be no presumption the accounts were community property. The order awarding Lukowski a community interest in those accounts is error and is reversed.
III. AWARD OF ATTORNEY FEES
Wieting contends the trial court erred in awarding attorney fees to Lukowski. Family Code sections 2030 and 2032 govern awards of attorney fees and costs in a marital dissolution proceeding. Pursuant to Family Code section 2030, subdivision (a)(2), "When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs." (Ibid.) "The purpose of an attorney fees award in a marital dissolution proceeding is to provide, as necessary, one of the parties with funds adequate to properly litigate the matter." (In re Marriage of Bendetti (2013) 214 Cal.App.4th 863, 868.)
The trial court's award of attorney fees under Family Code section 2030 is reviewed for abuse of discretion. (In re Marriage of Bendetti, supra, 214 Cal.App.4th at p. 868.) An attorney fees order "'will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made.'" (In re Marriage of Smith (2015) 242 Cal.App.4th 529, 532.)
After considering the evidence, the trial court found a disparity in access to funds to retain counsel and found Wieting had the financial ability to pay fees for both sides. Based on its findings, the court awarded Lukowski $50,000 in attorney fees, an amount it found "just, reasonable and appropriate" given the parties' relative circumstances.
Wieting argues the trial court's award of attorney fees overrules an earlier ruling denying fees to Lukowski. The earlier ruling, issued in connection with a May 13, 2021 spousal support proceeding, stated the "Court . . . will not make orders on attorney fees at this time." The award of fees to Lukowski neither contradicts nor overrules the earlier ruling. No further explanation by the trial court in July 2023-beyond the court's findings of a disparity in funds to retain counsel and Wieting's financial ability to pay fees for both sides-was necessary.
"'"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 ...."'" (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574.) Wieting has the burden of providing an adequate record proving error. (Ibid.) He argues attorney fees should not have been awarded because: (1) he tried to settle the matter prior to trial; (2) Lukowski unnecessarily prolonged the matter by claiming an interest in the D.C. House; (3) Lukowski placed an unnecessary lis pendens on the D.C. House; and (4) the court's judgment was erroneous. Wieting has not met his burden of proving error.
IV.
SANCTIONS
On June 12, 15, and 22, 2023, Wieting filed three successive petitions for writ of supersedeas, each seeking similar relief. Each petition was denied. On June 26, 2023, this court warned Wieting that filing further repetitive petitions could subject him to sanctions. On November 29, 2023, Wieting filed a fourth petition, again seeking a writ of supersedeas. On December 24, 2023, we issued an order denying the fourth petition and, in compliance with the procedural requirements set forth in In re Marriage of Flaherty (1982) 31 Cal.3d 637, informed Wieting the court was considering imposing sanctions of $1,500 pursuant to California Rules of Court, rule 8.276, based on his filing of the fourth petition. In response, Wieting filed a document entitled "Apology to this Court and Opposition to Sanctions" explaining his decision to file a fourth petition and apologizing for filing repetitive petitions. Although the stated reasons did not fully justify Wieting's decision to file the fourth writ petition, it was sufficient to avoid sanctions, which will not be imposed.
DISPOSITION
The trial court is directed to modify the judgment by eliminating the two paragraphs that presently constitute section III, entitled "The Fidelity Retirement Accounts," on page six of the judgment and replacing those paragraphs with the following language: "Petitioner requests one-half of the two Fidelity retirement accounts. Those accounts are Respondent's separate property and Petitioner is not entitled to any share thereof." The judgment is affirmed as modified. Lukowski shall recover her costs on appeal.
WE CONCUR: MOTOIKE, ACTING P. J. DELANEY, J.