Opinion
A124777
01-26-2012
In re the Marriage of PATRICIA ALBRIGHT LEAN and JOHN H. STEWART. DAVID PARRIS, as Administrator, etc., Respondent, v. JOHN H. STEWART, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Humboldt County Super. Ct. No. FL070587)
John H. Stewart (John) appeals from a judgment dissolving his marriage to Patricia Albright Lean Stewart (Patricia). Patricia died shortly after judgment was entered, and three days after John filed motions for a new trial and to vacate the judgment. The family court denied John's posttrial motions. On appeal, John contends Patricia's death rendered the family court judgment void and the court made numerous errors requiring reversal, in any event. We affirm.
We refer to the parties by their first names to avoid confusion and intend no disrespect. (See In re Marriage of Witherspoon (2007) 155 Cal.App.4th 963, 967, fn. 2.)
B ACKGROUND
Patricia and John married in late October 1994. John claims the year before they married, they entered into the sort of agreement permitted by Marvin v. Marvin (1976) 18 Cal.3d 660 (Marvin). John asserts that in this agreement, he and Patricia "agreed to support the other for life, to hold their property in common, [and] to make each other their sole heir." Further, Patricia agreed to purchase a ranch in Humboldt County, while John would give up his law practice, move to Humboldt County, and care for the property and Patricia, who suffered from multiple sclerosis. John contends the agreement was modified in early 1994, still before the marriage, to entitle the survivor to remain on the ranch for life and obligate him or her to do so until the last of the parties' pets died.
A few months before the wedding, Patricia purchased a ranch at 5000 Crooked Prairie Road in her own name as "a single woman," and she and John took up residence on the acreage.
More than 10 years later, in early 2005, John asked James Lamport, a legal document assistant, to prepare an interspousal deed transferring the property to him and Patricia as "husband and wife as community property with right of survivorship." John and Patricia executed the deed before Lamport on May 17, 2005.
Two and a half years later, in November 2007, Patricia filed a petition for dissolution of the marriage based on irreconcilable differences brought on, she claimed, by John's violent behavior.
Two months later, on January 31, 2008, John filed a petition to establish a conservatorship of Patricia's person and property and sought appointment as conservator (Humboldt County case No. PR080037). Two weeks later, he asked the family court to stay the dissolution proceeding to allow assessment, either in the dissolution proceeding or in the conservatorship proceeding, of Patricia's competency and her capacity to pursue the dissolution proceeding. The family court denied John's stay request, but noted his continuing objection that Patricia lacked capacity to prosecute the dissolution proceeding and stated it was "awaiting decision" in the pending conservatorship proceeding.
The conservatorship petition is not in the record before us, but was in the record of John's appeal from an August 29, 2009, order memorializing a jury verdict that no conservatorship was necessary (Conservatorship of Stewart (Aug. 23, 2011, A123544) [nonpub. opn.]). We take judicial notice of the petition pursuant to Evidence Code sections 452, subdivision (d), and 459, subdivision (a).
On April 21, 2008, John filed a response in the dissolution proceeding. John alluded to the alleged Marvin-style agreement, claiming "[e]verything we own is owned jointly with right of survivorship pursuant to a premarital property agreement."
The response was on the required Family Law Form FL-120.
Six months later, on October 12, 2008, John moved to sever his claim based on the premarital, Marvin-style agreement and to have the family court first decide whether it had jurisdiction over the couple's property in light of the agreement.
On October 20, 2008, John filed an amended response, this time contesting the disposition sought by Patricia (dissolution) and requesting the marriage be declared a nullity. He also asked for a declaration, "after jury trial," that the property at issue was his "separate" property.
Form FL-120 includes a section whereby the responding spouse can take issue with the requested disposition and identify the disposition he or she contends is proper.
On November 5, 2008, John filed a new civil action against Patricia for breach of the alleged Marvin-style agreement (Humboldt County case No. DR081020).
On November 18, 2008, the family court, noting the newly filed breach of contract action, ruled John's motion to sever was moot and denied it without prejudice.
Two weeks later, on December 3, 2008, with the conservatorship proceeding and Marvin civil suit still pending, the family court commenced a two-day trial in the dissolution proceeding. The court refused to hear any evidence about the alleged Marvin-style agreement. It also refused to allow John to pursue his claim that the marriage should be declared a nullity, rather than declared dissolved. The parties presented conflicting testimony about whether John obtained the interspousal transfer deed by undue influence. Patricia, who took medication for her multiple sclerosis, testified she had no recollection of signing the deed, did not know who prepared it, and was not told what the deed would accomplish. Lamport, who had prepared the deed and witnessed its signing, testified Patricia was competent at the time she signed the deed and acted voluntarily.
On December 16, 2008, the family court issued its written decision, granting Patricia's petition and declaring the marriage dissolved. The court found Patricia competent and able to participate in the dissolution proceedings, despite John's objections and the still pending conservatorship proceeding. The court also found the interspousal deed invalid on the ground John had not rebutted the statutory presumption of undue influence applicable to such interspousal transfers. It therefore ruled the ranch, a Charles Schwab account, and a Dodge pick-up truck were Patricia's separate property. It awarded several automobiles and other personal property to John. It did not address spousal support.
During trial and in posttrial briefing, John had asked the family court for "clarification that any judgment in this case would be without prejudice to the pending Marvin action." The court provided no such "clarification," and entered judgment on February 5, 2009.
On February 20, 2009, John filed motions for a new trial and to vacate the judgment.
Although John sometimes characterizes his motion to vacate the judgment as a motion for "new judgment" or for "judgment notwithstanding the verdict," it is in substance a motion to vacate the judgment pursuant to Code of Civil Procedure section 663 a, and we refer to it as such.
Three days later, on February 23, 2009, Patricia died.
On March 9, 2009, without a hearing, the family court issued an order denying John's posttrial motions. On the same day, John filed a challenge under Code of Civil Procedure section 170.3, subdivision (c), seeking to disqualify the family court judge who had presided over the trial and was ruling on his posttrial motions. It is unclear which event, the denial of the posttrial motions or the filing of the section 170.3, subdivision (c) challenge, occurred first. A week later, on March 17, 2009, the family court judge filed a verified answer to John's section 170.3, subdivision (c), challenge, denying any bias. The judge assigned to hear the challenge determined there was no basis to disqualify the family court judge.
John filed an original writ proceeding in this court challenging this ruling (case No. A124828), which we denied.
John filed a timely notice of appeal seeking review of the judgment of dissolution and denial of his posttrial motions.
An order denying a motion for a new trial is not directly appealable, but is reviewable on appeal from the underlying judgment. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19-20.) "[A]n order denying a motion to vacate under Code of Civil Procedure section 663 a is [itself] appealable even though the grounds for the motion can be urged on appeal from the judgment . . . ." (Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corp. (2003) 111 Cal.App.4th 1328, 1337, fn. 6.) Accordingly, issues urged in an unsuccessful section 663 a motion can be raised on appeal by appealing "from the underlying judgment, the postjudgment order or, theoretically, both." (Eisenberg et al. (The Rutter Group 2011) Civil Appeals & Writs, ¶ 2:171, pp. 2-94 to 2-95.)
DISCUSSION
Standard of Review
In general, on appeal from a judgment of dissolution we review the family court's legal conclusions de novo but review its factual findings for support by substantial evidence. (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1421; In re Marriage of Stitt (1983) 147 Cal.App.3d 579, 586.)
Impact of Patricia's Death
Patricia died on February 23, 2009, after entry of judgment, but while John's posttrial motions were pending. John asserts Patricia died a "married" woman by virtue of Family Code section 2341, subdivision (b). He thus further contends Patricia's death voided the non-final judgment of dissolution, immediately terminated the marriage, and left him the surviving spouse. John misconstrues section 2341. While the statute provides for a stay of a dissolution judgment pending review by an appellate court, it does not preclude an affirmance and subsequent finality of the judgment.
Family Code section 2344, subdivision (a), expressly provides: "The death of either party after entry of the judgment does not prevent the judgment from becoming a final judgment . . . ." (Fam. Code, § 2344, subd. (a).) Indeed, a family court has "power in a marital dissolution action to enter a judgment on all issues submitted to the court for decision before the death of a party." (In re Marriage of Mallory (1997) 55 Cal.App.4th 1165, 1176 (Mallory).) This accords with Code of Civil Procedure section 669, which states in pertinent part: "If a party dies after trial and submission of the case . . . and before judgment, the court may nevertheless render judgment thereon." (Code Civ. Proc., § 669; see Mallory, supra, at pp. 1170, 1176.)
In Mallory, the family court issued an order after trial dissolving the marriage and characterizing contested property (as separate or community)—just hours after the husband died. (Mallory, supra, 55 Cal.App.4th at pp. 1167-1168.) The Court of Appeal held the wife could not challenge the order as void due to the husband's death. (Ibid.) The appellate court explained the family court had authority to decide both status and property issues despite the husband's death because "the issues . . . were submitted before the party died." (Id. at pp. 1173, 1176.) A family court "under such circumstances has the inherent power with respect to all issues, and the statutory power with respect to the termination of marital status, to enter a judgment nunc pro tunc as of a date preceding the date of death of the party." (Id. at pp. 1176-1177.) Mallory is apposite here. Indeed, in this case, the family court had not only taken the status and property issues before it under submission, but had issued a statement of decision and entered judgment before Patricia's death.
The near century old case of In re Estate of Seiler (1912) 164 Cal. 181, 182-183 (Seiler), which John cites, does not alter the conclusion compelled under Mallory. In Seiler, the wife died after entry of an "interlocutory decree" of dissolution, but before entry of the final decree. The Supreme Court held the interlocutory decree was void and could not "deprive[] the former husband of the right of inheritance from his wife." (Seiler, at p. 182.) Seiler is inapposite for two reasons. First, it did not interpret Family Code section 2344, subdivision (a)—which now provides that death does not prevent a family court judgment that has been entered from becoming final—but interpreted former Civil Code section 132, a predecessor to Family Code section 2344. Former Civil Code section 132 did not apply to ordinary judgments, as Family Code section 2344 now does, but to "interlocutory" decrees, a procedural creature of a now-defunct family law regime. (See Mallory, supra, 55 Cal.App.4th at p. 1174, fn. 8 [describing interlocutory decrees].) Second, the Supreme Court implicitly overruled Seiler in In re Marriage of Hilke (1992) 4 Cal.4th 215, 220 (Hilke). Hilke held "[t]he death of one of the spouses abates a cause of action for dissolution, but does not deprive the court of its retained jurisdiction to determine collateral property rights if the court has previously rendered judgment dissolving the marriage." (Ibid.) Thus, in Hilke, the Supreme Court determined the family court properly decided property characterization issues despite the spouse's death; the appellate court's conclusion that the husband's right of survivorship prevailed was error. (Id. at pp. 217, 220; see Mallory, supra, 55 Cal.App.4th at p. 1174 ["We think the Hilke court[] . . . effectively retracts any implication . . . that a judgment dissolving the status of the parties' marriage is annulled by the later death of a party."].)
Section 2341, subdivision (b), on which John relies, provides: "Notwithstanding any other provision of law, the filing of an appeal or of a motion for a new trial does not stay the effect of a judgment insofar as it relates to the dissolution of the marriage status and restoring the parties to the status of unmarried persons, unless the appealing or moving party specifies in the notice of appeal or motion for new trial an objection to the termination of the marriage status. No party may make such an objection to the termination of the marriage status unless such an objection was also made at the time of trial." (Fam. Code, § 2341, subd. (b), italics added.) Thus, section 2341, subdivision (b), is merely a stay provision, and specifies when a dissolution judgment is stayed on appeal and when it is not. Because John did object to termination of the marriage, the family court's dissolution judgment as to status was stayed on appeal. These stay provisions, however, do not in any way implicate section 2344, subdivision (a), which, as we have discussed, specifies the death of a party to a dissolution proceeding does not prevent a judgment from becoming a final judgment. Accordingly, Patricia's death postjudgment did not terminate the dissolution proceedings, void the judgment and leave John a married man. We therefore turn to John's attack on the family court's handling of the dissolution trial and assertion the court committed numerous errors, requiring reversal.
Trial Rulings
The Marvin Agreement
As we have recited, John contends a premarital, Marvin-style agreement with Patricia governs the ownership of certain property that was at issue in the dissolution proceeding, including the ranch. John asked the family court to sever his Marvin-style claim and decide it first. But before the court ruled, John filed a separate, civil action to enforce the alleged agreement. In light of this action, the family court denied John's request to sever and separately try his Marvin-style claim. The family court thereafter disregarded the Marvin-style claim and characterized the property in dispute on the basis of the evidence presented during the dissolution trial. John contends the family court erred by (1) denying his motion to sever and separately try his Marvin-style claim and (2) thereafter excluding evidence of the alleged Marvin-style agreement during trial.
In general, however, family courts may not resolve Marvin breach of contract claims. (See, e.g., Velez v. Smith (2006) 142 Cal.App.4th 1154, 1175 [Marvin claims "may be cognizable in a civil action, but they are not family law matters that may be adjudicated as part of a dissolution petition"]; see also Marvin, supra, 18 Cal.3d at p. 675, fn. 11 [noting a "deliberate decision to avoid the strictures of the community property system" as a reason to reach a cohabitation agreement without marriage].)
Nor need a family court delay a dissolution proceeding involving property allegedly governed by a Marvin agreement, pending disposition of the latter by a civil court. (See Porter v. Superior Court (1977) 73 Cal.App.3d 793, 805; see also In re Marriage of McNeill (1984) 160 Cal.App.3d 548, 557, disapproved on other grounds in questionable precedent by In re Marriage of Fabian (1986) 41 Cal.3d 440, 451, fn. 13.) In Porter, for example, the husband "insisted" that the ownership of certain real estate be determined in a civil action. While he was entitled to pursue such an action, said the Court of Appeal, he could not, "by so doing prevent the [family] court from proceeding with the dissolution action insofar as it involves the status of the parties and the wife's claim that the property is community property." (Porter v. Superior Court, supra, at p. 805.)
There is authority suggesting the parties can agree to have a Marvin claim heard and decided by a family court in conjunction with a dissolution proceeding. (See In re Marriage of Gagne (1990) 225 Cal.App.3d 277, 289 [noting parties might nevertheless consent to resolution of Marvin claim in family court].) However, there was no such agreement by the parties here.
Accordingly, the family court did not err in denying John's motion to sever and to separately try his Marvin-style claim. Indeed, absent agreement by the parties, the family court had no jurisdiction over the claim. The family court likewise did not err in proceeding with trial in the dissolution proceeding, excluding evidence of the asserted Marvin-style agreement and leaving John to pursue his Marvin-style claim in the separate civil action.
The Interspousal Transfer of the Ranch
The family court determined the ranch was Patricia's separate property. John raises two challenges to this determination. He initially asserts the ranch is subject to the Marvin-style agreement. However, as we have discussed above, the Marvin-style agreement was not before the Family Court, and it is not before us now.
John also focuses on the interspousal transfer deed that purportedly conveyed the ranch from Patricia, as a single woman, to Patricia and John, as community property with a right of survivorship. The family court invalidated the deed on two grounds. First, it found no evidence Patricia intended to pass title immediately. Second, it found John had not rebutted the presumption of undue influence that attaches to interspousal transactions that benefit one spouse over the other. We need not, and do not, address the first ground, since we conclude the family court properly employed the presumption of undue influence and substantial evidence supports the court's finding John failed to overcome the presumption.
The courts have read Family Code section 721 as creating a presumption that an interspousal transaction is the result of undue influence when the transaction "advantages one spouse to the disadvantage of the other." (In re Marriage of Delaney (2003) 111 Cal.App.4th 991, 996 (Delaney).) The burden is on the benefiting spouse to overcome the presumption by a preponderance of evidence. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1519-1520.)
John asserts the Family Code section 721 undue influence presumption must give way to Family Code section 2581, which creates a presumption that property acquired during marriage is community property, and Civil Code section 682.1, which equates community property and joint tenancy property for purposes of how those types of property pass to survivors. As an initial matter, section 2581 does not even arguably apply in this case, because the ranch was not acquired during the marriage, but was acquired by Patricia as her separate property before the marriage. Further, in Delaney, the Court of Appeal rejected the argument John advances here with respect to Family Code section 2581, holding the presumption of undue influence set forth in section 721 trumps the community property presumption in section 2581. (Delaney, supra, 111 Cal.App.4th at p. 998.) Delaney's reasoning compels the same conclusion as to Civil Code section 682.1. Like the language of Family Code section 2581, the language of Civil Code section 682.1 does not suggest it interferes with or overrides the operation of Family Code section 721 and the presumption arising from it.
Given that the family court properly employed the undue influence presumption of Family Code section 721, we turn to the court's finding that John failed to overcome it. "[F]actual findings that underpin the characterization determination [of a spouse's property] are reviewed for substantial evidence." (In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 734). Thus, whether a spouse has rebutted a presumption affecting characterization of property is " 'a question of fact for the trial court and is binding on the reviewing court unless manifestly without support in the evidence.' " (In re Marriage of Orchard (1990) 224 Cal.App.3d 155, 161.)
Substantial evidence supports the family court's determination John did not rebut the presumption of undue influence. The court credited Patricia's testimony that she was on medication while signing the deed, had no recollection of signing it, did not know who prepared the deed, and was not told what the deed would accomplish. The testimony of even one witness is sufficient to support the court's determination. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) John never took the stand and provided no testimony concerning the deed. Instead, he relied on testimony by Lamport, who testified Patricia seemed to be competent when she signed the transfer deed. However, it was within the province of the family court, sitting as the trier of fact, to credit Patricia's testimony over that of others. (See Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968 [appellate court defers to the trier of fact on the credibility of witnesses]; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 [appellate court does not reverse a trial court's decision simply because the evidence could have been weighed differently].)
Patricia's Competency and Capacity
John repeatedly objected to Patricia's participation in the dissolution proceeding on the ground she lacked competence to testify and the mental capacity to seek dissolution. As we have discussed, shortly after Patricia filed for dissolution, John filed a conservatorship proceeding to establish a conservatorship of her person and estate and to have himself appointed conservator. He then sought a stay of the family court dissolution proceeding so the court could either assess Patricia's competency and capacity, itself, or allow these issue to be resolved in the conservatorship proceeding. The family court denied a stay, noting John's continuing objection Patricia lacked capacity and stating it was "awaiting decision" in the pending conservatorship action. John renewed his competency and capacity objections at trial, at which point the family court overruled them.
John first contends the family court "abdicated" its power when it denied his stay request and stated it was "awaiting decision" in the conservatorship proceeding. John cites no authority in support of this assertion, and we are aware of none.
John also takes issue with the family court's finding that Patricia was competent and had the capacity to seek dissolution. "A person is incompetent and disqualified to be a witness if he or she is '[i]ncapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him' (Evid. Code, § 701, subd. (a)(1)), or is '[i]ncapable of understanding the duty of a witness to tell the truth' (Evid. Code, § 701, subd. (a)(2).)" (People v. Lewis (2001) 26 Cal.4th 334, 360.) The party challenging the witness bears the burden of establishing incompetence. (Ibid.) A witness's competence "is determined exclusively by the court" and the " 'a trial court's determination will be upheld in the absence of a clear abuse of discretion.' " (Ibid.)
Here, the family court, although noting Patricia's ongoing struggle with multiple sclerosis, repeatedly found Patricia competent to participate in the dissolution proceeding. On the first day of the two-day trial, the judge commented "[i]t appears she's very competent as she answers these direct questions this morning . . . ." Later that day, the judge reaffirmed his conclusion stating: "Ms. Stewart is highly competent today and I'll state that categorically once again . . . . She does appear—she's told us that she's on medications. She suffers from severe disabilities. She acknowledges that, but she appears highly competent today and able to listen and answer the questions." At the beginning of the second day, the judge sought to make a still clearer record on competency and stated, "without any doubt, that [Patricia is] highly aware of these proceedings, and certainly in a position to participate in the proceedings." The judge continued: "So we'd like the record to clearly reflect that through the eyes of the court, there is absolutely no issue regarding Mrs. Stewart's ability to participate cognitively or otherwise in the proceedings."
Having reviewed the record, we see no abuse of discretion in the family court's determination. Indeed, John's evidence of incompetency consists of answers to two questions Patricia gave during cross-examination at a hearing on a motion for control of property in July 2008, nearly half a year before trial. He asserts Patricia's lack of knowledge about the value of an IRA account and one-off-remark that her stove runs on "garbage" show a lack of capacity. This sparse, pretrial evidence by no means undermines the family court's competency and capacity determination made at the time of trial and based on extended personal observation of Patricia. We also observe that when the conservatorship proceeding finally reached a jury, the jury declined to impose a conservatorship on Patricia and the court barred John "from filing further petitions to appoint a conservator of Patricia Stewart."
Final Declaration of Disclosure
Neither Patricia nor John properly served a final declaration of disclosure setting forth assets and liabilities as required by Family Code section 2105. John never served one, and Patricia served hers late, on the eve of trial.
In his reply brief, John for the first time also complains Patricia failed to serve a preliminary declaration under Family Code section 2104 and of an alleged defect in the late-served final declaration. Arguments raised for the first time in a reply brief are waived. (Reo Broad. Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 ["This court will not consider points raised for the first time in a reply brief for the obvious reason that opposing counsel has not been given the opportunity to address those points."].)
John first asserts Patricia's late final declaration was per se prejudicial, citing Family Code section 2107, subdivision (d), which states "failure to comply with the disclosure requirements does not constitute harmless error." (§ 2107, subd. (d).)
However, in In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 527-528 (Steiner), the Court of Appeal rejected the argument John raises here. As the court explained, if Family Code section 2107, subdivision (d), compelled reversal of a family court decision absent prejudicial error, it would run afoul of the California Constitution's prohibition on setting aside a judgment due to a procedural error unless the error resulted in a "miscarriage of justice." (Steiner, at pp. 526-527, citing Cal. Const., art. VI, § 13.) Further, a per se rule does not comport with the rest of the statutory scheme surrounding section 2107. First, section 2105, subdivision (c), permits a court "setting aside a judgment for failure to comply with this section" to "limit the set aside to those portions of the judgment materially affected by the nondisclosure." (Steiner, at p. 527.) Second, under section 2107, subdivision (a), only a spouse who complies with his or her disclosure obligations may compel, before trial, disclosures from the other spouse. Thus, "[t]o read subdivision (d) of the same statute to mean that a non-complying party can unilaterally undo a judgment after trial when he or she would have to comply to obtain disclosure before trial creates a most perverse set of incentives." (Steiner, at pp. 527-528.)
John asserts Steiner was wrongly decided, but cites no case calling Steiner's holding into doubt despite the passage of some seven years since it was decided. Moreover, numerous cases have embraced Steiner's holding and required that actual prejudice be shown when challenging similar procedural defects on appeal. (E.g., In re Marriage of Dellaria (2009) 172 Cal.App.4th 196, 205 ["Because David has fulfilled his duty to tender a proper prejudice argument," Steiner does not foreclose his claim on appeal concerning faulty disclosures in a dissolution case.]; with Heaps v. Heaps (2004) 124 Cal.App.4th 286, 292 [citing Steiner and holding "the premature signing of a proposed statement of decision does not constitute reversible error unless actual prejudice is shown"].) We also agree with Steiner that section 2107, subdivision (d), cannot be read to create perverse incentives in which "a party could deliberately not comply with disclosure requirements, keep mum, see if the trial results in an acceptable judgment, and then have the opportunity to obtain a better result by pulling the non-disclosure card out of his or her sleeve on appeal or new trial motion." (Steiner, supra, 117 Cal.App.4th at pp. 527-528.)
John argues he was actually prejudiced by his late receipt of Patricia's final declaration of disclosure. But he made no showing in that regard in the family court when he sought a continuance of the trial, in part, on the ground of the late declaration. Other than generically claiming he was prejudiced and needed more time, John provided no explanation as to why that was so. In his posttrial motions which, among other things, continued to complain about the late service of Patricia's final declaration, John itemized a host of alleged defects in Patricia's final declaration, but provided no further elaboration about how he was actually prejudiced by those defects. At oral argument, John asserted he is now burdened by medical bills Patricia had incurred but not disclosed in her declaration. Our review, however, is confined to the record on appeal and the matters that were before the family court. (Cal Rules of Court, rule 8.204(a)(2)(C) [appellant's brief must provide summary of "facts limited to matters in the record"]; People v. Szeto (1981) 29 Cal.3d 20, 35; Harvey v. The Landing Homeowners Assn. (2008) 162 Cal.App.4th 809, 824 [" ' "[m]atters not presented by the record cannot be considered" ' "].) Because the record does not show any prejudice to John from Patricia's late final declaration of disclosure, he is not entitled to a reversal on this ground.
Spousal Support Evidence
John next complains the family court prevented him from asking questions he contends related to spousal support for himself. While it is true that John, as well as Patricia, requested spousal support in their pleadings, and John sought (but did not win) temporary spousal support before trial, neither party made permanent spousal support an issue at trial or afterwards. The parties' trial and posttrial briefs are silent on spousal support. When the family court judge, at the opening of the second day of trial, stated spousal support was not an issue, John made no objection. In fact, John never told the family court judge any of his objected-to questions pertained to spousal support, and John did not request spousal support in his closing argument. John has therefore waived any request for spousal support. (See Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486 ["Points not raised in the trial court will not be considered on appeal."].)
The trial court found "spousal support is not warranted" because of John's "ability to practice law" and Patricia's "advanced multiple sclerosis, requiring that she have the income that she is now receiving from her father's trust" which "expire[s] in 22 months."
We construe John's complaint that the family court awarded him "0%" of all property as part of his complaint that the court failed to address spousal support. The only case he cites for his "0%" argument concerns spousal and child support. (See In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1379.) As discussed, John is not in a position to complain of a lack of spousal support. If John's "0%" argument concerns characterization of the ranch as separate property or failure of the trial court to consider his alleged Marvin agreement, we have also concluded the family court properly declined to resolve his Marvin claim. John's characterization of having obtained "0%" of all property is also not a fair statement. The trial court awarded him several automobiles and the property listed on "Exhibit 10."
Continuances
John also complains the family court denied his requests for a continuance. " 'The determination of whether a continuance should be granted rests within the sound discretion of the trial court,' " and " '[a]bsent a showing of abuse of discretion and prejudice to the defendant, the denial of a motion for continuance does not require reversal.' " (People v. Jacobs (2007) 156 Cal.App.4th 728, 735-736; see also In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002, fn. 11.) Abuse of discretion in this context typically means "outside the bounds of reason" or "arbitrary, whimsical, or capricous." (Jacobs, supra, at p. 736.)
John, in his appellant's opening brief, lists the reasons he sought a continuance in the family court. These reasons include wanting to wait for a medical examination on Patricia's competency, needing time to digest Patricia's untimely final declaration of disclosure, being misled into believing opposing counsel stipulated in some fashion to one of his motions for continuance, and the lack of a formal trial setting conference (instead of the case management conference at which the court set trial). However, he provides no argument or authority that any of these enumerated instances constituted an abuse of discretion, let alone was prejudicial. We therefore do not consider them. (See Cal. Rules of Court, rule 8.204(a)(1)(B).) The only reason he lists and for which he provides any argument, is his asserted need for Patricia's belatedly filed final declaration of disclosure. However, we have already concluded there was no prejudice to John in this regard.
Nullity of Marriage
John next contends the family court erred by preventing him from presenting evidence on his "cross-complaint" that the marriage should be declared a "nullity" on the ground of "fraud" (and thus determined never to have existed at all), rather than dissolved on the ground of irreconcilable differences.
Family Code section 2210 provides, in pertinent part: "A marriage is voidable and may be adjudged a nullity if . . . at the time of the marriage: [¶] . . . [¶] (d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabitated with the other as husband or wife." (Fam. Code, § 2210, subd. (d).) Nullity on this basis is permitted only in extreme cases and requires that the fraud go " 'to the very essence of the marriage relation,' " particularly where a marriage has been consummated and the parties have assumed the mutual rights and duties of the relationship. (Marshall v. Marshall (1931) 212 Cal. 736, 739-740.) In such cases, public policy considerations come into play, and courts are very reluctant to declare any marriage a nullity. (In re Marriage of Meagher & Maleki (2005) 131 Cal.App.4th 1, 3; Millar v. Millar (1917) 175 Cal. 797, 803.) Thus, the state has a keen interest in ensuring that no marriage is declared void unless fraud is shown by clear and convincing evidence. (Williams v. Williams (1960) 178 Cal.App.2d 522, 525; Bing Gee v. Chan Lai Yung Gee (1949) 89 Cal.App.2d 877, 885.)
The fraud relied upon must directly defeat the marriage relationship. (In re Marriage of Ramirez (2008) 165 Cal.App.4th 751, 757 (Ramirez).) It is not enough to show "such fraud as would be sufficient to rescind an ordinary civil contract." (Ibid.) Rather, one must prove the offending spouse intended not to perform a duty vital to the marriage and that intention existed in the spouse's mind at the moment the marriage contract was made. (Ibid.; Bruce v. Bruce (1945) 71 Cal.App.2d 641, 643.) Fraud-based nullification has been granted almost exclusively in cases involving fraud that relates in some way to the sexual, procreative, or child-rearing aspects of marriage. (In re Marriage of Meagher & Maleki (2005) 131 Cal.App.4th 1, 7-8.) For example, fraud sufficient to support nullification has been found when a prospective spouse concealed his or her intention not to terminate an intimate relationship with a third person after the marriage. (Ramirez, supra, at p. 759.)
Other examples include a spouse concealing his or her intent to not engage in sexual relations with the other spouse (In re Marriage of Liu (1987) 197 Cal.App.3d 143, 156), not live in the same house with the other spouse (Handley v. Handley (1960) 179 Cal.App.2d 742, 747-748,) and not have children with the other spouse notwithstanding a promise to the contrary (Maslow v. Maslow (1953) 117 Cal.App.2d 237, disapproved on other grounds by Liodas v. Sahadi (1977) 19 Cal.3d 278, 287). Nullification has also been justified based on a spouse's concealment of his or her sterility (Vileta v. Vileta (1942) 53 Cal.App.2d 794, 796) and a wife's concealment at the time of marriage that she was pregnant with another man's child (Hardesty v. Hardesty (1924) 193 Cal. 330).
As we have recited, in April 2008, John filed his initial response to Patricia's petition for dissolution, using form FL-120. The form has check boxes, allowing the responding spouse to take issue with the disposition requested in the petition, including asserting the proper disposition is "nullity." John did not check the box provided for "nullity." In October 2008, he filed an amended response, again on form FL-120. This time, he checked the box to request "nullity" of marriage based on "fraud."
Despite John's assertion that nullification was the proper disposition, the family court refused to consider evidence purportedly related to showing the marriage was a "nullity." Specifically, during cross-examination of Patricia on the first day of trial, the following exchange occurred:
"MR. STEWART: At the time we were married, did you intend to be
monogamous?
"MR. DAVIS: Object.
"THE COURT: That is entirely irrelevant.
"MR. STEWART: Under the case of Marriage of Ramirez—
"THE COURT: Mr. Stewart—
"MR. STEWART: It is directly relevant to the issue of annulment.
"THE COURT: We're not doing an annulment, we're doing a divorce.
"MR. STEWART: But there's pleadings in this action on both issues.
"THE COURT: Ms. Stewart is asking for a divorce. She has said that and that's
her position. Mr. Davis, is that correct?
"MR. DAVIS: Yes. Absolutely."
The following day, as Patricia's cross-examination continued, another exchange occurred:
"MR. STEWART: There's a pending petition for annulment. Is that part of the
case?
"THE COURT: No, it's a petition for divorce.
"MR. STEWART: Didn't I file one? Wasn't there one filed and served months ago? Amended response and request for nullity? That was filed in October or something. It has been quite awhile."
Intent to remain monogamous, as John asserts, may be relevant to showing the marriage was a "nullity." (Ramirez, supra, 165 Cal.App.4th at p. 758 ["Jorge manifestly intended not to perform his marriage obligation of fidelity. That is fraud . . . ."].) And as we have recited, John filed an amended response, asserting that the proper disposition was nullification, not dissolution. Accordingly, the family court erred in disregarding the issue of nullification and precluding John from presenting evidence in support of his assertion this was the proper disposition.
However, we will not disturb the family court's judgment unless the error resulted in a miscarriage of justice—that is, unless the error was prejudicial and a different result would have been probable absent the error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Evid. Code, § 354.)
John has failed to demonstrate prejudice. He never took the stand, himself, to attempt to present evidence that would support nullity. He also never disclosed, at any time during the family court proceeding, what the evidence would have been on monogamy and what other evidence he intended to present on nullification. John therefore cannot, on this record, demonstrate how such evidence would have made a different result—nullity of the marriage—probable, had his question of Patricia been allowed. Accordingly, he has failed to carry his "burden of establishing that the alleged error was prejudicial." (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1073; see also In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 [an appellant bears the burden of establishing prejudice by spelling out in his or her brief exactly how an alleged error caused a miscarriage of justice].)
We also observe John has taken actions and staked out positions in this litigation inconsistent with his claim of nullity. John claims, for example, he is entitled to ownership of the ranch, in part, because of the interspousal transfer deed that purportedly conveyed the property to him and Patricia, as husband and wife. John directed preparation of that deed and signed it in May 2005, and he sought its enforcement during the dissolution trial. John's vigorous defense of the interspousal deed that purportedly conveyed the ranch to him and Patricia as husband and wife, was wholly inconsistent with his claim no marriage ever existed and the union should have been declared a nullity.
We also fail to see what John hoped to accomplish by obtaining nullification, instead of dissolution. If his marriage to Patricia never existed at all, the ranch would still be her separate property, subject to any Marvin-style agreement that might exist and govern ownership of the ranch. That would appear to leave John in the same position he is in now.
Bias
John also accuses the family court judge of being biased against him. As we have recited, on the same day the judge issued an order denying John's posttrial motions, March 9, 2009, John filed a challenge under Code of Civil Procedure section 170.3, subdivision (c), seeking to disqualify the judge for bias. It is not clear which document was filed first. On March 17, 2009, the family court judge filed a verified answer to John's challenge. Another judge heard the challenge, dismissed it, and declined to disqualify the family court judge. John sought a writ from this court on the disqualification issue, which we denied.
On appeal, John does not explicitly seek review of the disqualification proceedings, but asserts bias permeated the dissolution trial and deprived him of due process. Such an argument on appeal may be proper, even though the parties have previously litigated the statutory disqualification issue. (See People v. Brown (1993) 6 Cal.4th 322, 335.) However, where the party's argument for bias "in effect, rests on the statutory basis for disqualification and the policy reasons behind such basis," and the party "fails to suggest any way in which he was actually denied due process," the party does not get a second bite at the apple. (People v. Barrera (1999) 70 Cal.App.4th 541, 552, fn. 6.)
While John repeats the asserted alleged transgressions by the family court judge that were the basis of his disqualification request, he provides no cogent argument as to how they gave rise to a due process violation requiring reversal on appeal. We are left with a list of complaints consisting mostly of asserted legal errors addressed elsewhere in this opinion, citations to a few appellate court cases noting the importance of a fair trial, and no roadmap to discern how these cases might apply to the list of transgressions. "An appellate court is not required to consider alleged errors where the appellant merely complains of them without pertinent argument" (Strutt v. Ontario Sav. & Loan Assn. (1972) 28 Cal.App.3d 866, 873), including when "the relevance of the cited authority is not discussed or points are argued in conclusionary form." (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
Moreover, a trial court's "adverse or erroneous rulings, especially those that are subject to review, do not establish a charge of judicial bias." (People v. Guerra (2006) 37 Cal.4th 1067, 1112, disapproved on other grounds in questionable precedent by People v. Rundle (2008) 43 Cal.4th 76, 151.) Thus, the allegedly adverse rulings on competency, disclosures, a continuance, property issues, spousal support and nullification—all of which we have addressed elsewhere in this opinion—cannot serve as a basis for finding bias.
John's other contentions of bias resulting in an unfair trial are meritless. For example, the family court judge's perfunctory denial of a motion to quash a subpoena to a witness, apparently without review of the motion papers, did not show bias. The witness was present and expressed a desire to testify despite the lack of a valid subpoena. John now asserts the summary denial denied him the opportunity to seek sanctions for opposing counsel's use of the subpoena process. But John never mentioned this to the family court, so no bias could have resulted from this purportedly denied opportunity.
The family court judge's repeated admonitions to John to ask questions on "topic" or "I'll ask [the witness] to step down" reflects the judge's understandable attempt to enforce his rulings about the scope of the proceedings (which we have also already addressed in this opinion). Such admonitions are not "threats" indicating an unfair trial. (See People v. Guerra, supra, 37 Cal.4th at p. 1111 ["[A] trial court has the duty to control the trial proceedings" and "[w]hen an attorney engages in improper behavior, such as ignoring the court's instructions or asking inappropriate questions, it is within a trial court's discretion to reprimand the attorney, even harshly, as the circumstances require."].) Nor does the fact the family court judge suggested an alternative ground for an objection (hearsay) to Patricia's counsel at one point, and sustained an objection without specifying grounds at another point, evince bias and deprivation of a fair trial.
The trial judge's refusal to grant John an extra day to file a posttrial brief to accommodate a doctor's appointment on the due date is not a deprivation of due process. The court offered John the ability to fax file so he would not need to come to the court in person, John never asserted the appointment was unchangeable or related to an emergency procedure, and John has made no argument how his posttrial brief would have been materially different with the extension.
Having reviewed the record as a whole, we conclude the family court judge, though often reprimanding John or ruling against him, acted from a perceived need to control the trial proceedings and enforce his rulings, not from bias. (See People v. Guerra, supra, 37 Cal.4th at p. 1111.) The cases John cites involved egregious examples of misconduct the likes of which were not present here. (See, e.g., Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 998-1001 [a jury trial case in which the judge had ex parte sessions with defense counsel, used placard signs to overrule and sustain objections, used a soccer-style "red card" to impose monetary sanctions for long-winded lawyering, made jokes with defense counsel in front of defense counsel while considering his objections, and encouraged defense counsel's singing of the Twilight Zone theme song in a way that mocked plaintiff].)
Because we reject John's claim that the family court judge was biased, we need not, and do not, consider John's additional argument that the court should not have ruled on his new post trial motions on the same day as he filed his challenge. (Eckert v. Superior Court (1999) 69 Cal.App.4th 262, 265 ["[T]he second trial court's ruling on the merits of the disqualification motion rendered moot the issue of whether the trial court properly proceeded with the trial."].)
Assignment of Trial Judge
John asserts it was error for Judge Watson to try the dissolution proceeding when the judge had little familiarity with the proceeding up to that point. Family Code section 2330.3, subdivision (a), states, "dissolution actions, to the greatest extent possible, shall be assigned to the same superior court department for all purposes." (Fam. Code, § 2330.3, subd. (a).) But it was John, himself, who caused Judge Watson to try the matter when John filed a Code of Civil Procedure section 170.6 challenge and unilaterally disqualified the judicial officer scheduled to hear the case, Judge Brown, who had previously overseen proceedings in the case. John's own actions thus deprived him of the judge most familiar with the matter, and he has no cause or basis to complain of the reassignment.
Posttrial Motions
John finally complains the family law court erroneously denied his motion for new trial and to vacate judgment.
Where, as here, an appellant renews on appeal losing arguments made in posttrial motions and the appellate court rejects them, it follows the trial court did not abuse its discretion in rejecting those arguments in the first instance. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127-128.) In addition, as to John's post trial argument that the family court judge was biased against him, bias is not a proper basis for a new trial motion. "[T]he question of bias or prejudice on the part of the trial judge cannot be raised on a motion for new trial." (Develop-Amatic Engineering v. Republic Mortg. Co. (1970) 12 Cal.App.3d 143, 150.) "[B]ias or prejudice is not an irregularity but a condition of mind which may only be taken advantage of by the method prescribed in Code of Civil Procedure section 170." (Ibid.) In any case, we have also addressed John's assertion of bias, and rejected it.
John additionally complains the family court denied his new trial motion too "early." This argument is frivolous. The court denied his motion on March 9, 2009, four days before the deadline for Patricia to file affidavits in opposition. However, Patricia had already filed her opposition papers on March 4, 2009. John does not contend he had the right to a reply. Accordingly, the new trial motion was fully briefed, and the family court was entitled to rule on it anytime thereafter, before the time limitation to do so imposed by the applicable statute.
In his motion to vacate the judgment, John advanced two arguments for altering or vacating the dissolution judgment—incorrect characterization of the ranch and Patricia's incapacity—both of which we have already addressed and do not address further. John also contends the family court was without authority to pick a "retroactive" effective date for the parties' dissolution. The family court picked the date of December 31, 2008, which fell between the decision granting dissolution issued on December 16, 2008, and entry of judgment on February 5, 2009. John cites Family Code section 2343, but that section does not address the propriety of a retroactive effective date. Nor does John provide any useful discussion of this issue or how he has been prejudiced by the date. We therefore consider it waived. (See People ex rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86 Cal.App.4th 280, 284 ["Their discussion on this point is conclusory and fails to cite any authority to support the claim. Such a presentation amounts to an abandonment of the issue."].)
DISPOSITION
The family court dissolution judgment is affirmed.
____________
Banke, J.
We concur: ____________
Marchiano, P. J.
____________
Margulies, J.