Opinion
C076590
12-20-2016
In re the Marriage of ADAM JOHN and BRANDI LYNN WALTON. ADAM JOHN WALTON, Appellant, v. BRANDI LYNN WALTON, Respondent.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FL039372)
In this marriage dissolution case, Adam John Walton (Adam) appeals from a judgment on reserved issues, entered following a four-day trial conducted over the course of 18 months. The judgment, among other things, confirmed to Adam's ex-wife, Brandi Lynn Walton (Brandi), a rice farming business and all of its assets as her sole and separate property. Based on evidence presented during the hearing, the trial court concluded the business was started by Brandi before the marriage, and the community had already been compensated in an amount greater than the increase in the business's value attributable to Brandi's management thereof. The trial court declined to award child support or attorney fees to either party.
Adam challenges the foregoing rulings. His appellate arguments are numerous and convoluted. We decline to attempt to summarize them here. For present purposes, it will suffice to state the briefing he supplied to this court and the record he designated for our review are entirely inadequate to enable us to review his claims. We therefore affirm the judgment.
In her respondent's brief, Brandi seeks attorney fees as a sanction against Adam for pursuing a frivolous appeal. In reply, Adam seeks the same against her. Because neither party filed a separate sanctions motion, we deny both requests. (See Kajima Engineering and Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402.)
BACKGROUND
Adam and Brandi were married in June 2000. The marriage produced two children, a son born in 2004 and a daughter born in 2008. Prior to marriage, Brandi began a rice farming business that was primarily operated by her father and brother. Adam was not involved in the business. The spouses separated in November 2010. Adam filed for dissolution of marriage the following January. Over two years later, in February 2013, the parties obtained a judgment of dissolution as to status only that was made effective as of December 2012. The judgment on reserved issues was entered over a year later, in April 2014.
During the more than three years between the initial filing for dissolution and the latter judgment, from which Adam appeals, a multitude of motions, orders to show cause, and responses were filed (most of which involving matters of child custody and visitation), the trial court issued rulings thereon, and a four-day trial was held, during which each side presented evidence on property division issues. Our resolution of this appeal does not require us to recount each of these events.
Relevant Proceedings Leading to Trial
We begin our summary of relevant proceedings with a motion filed by Adam in April 2012 seeking, among other things, to bifurcate child custody and visitation issues from property division issues, to compel Brandi to produce certain documents he claimed were not produced either when he deposed her two months earlier or when she deposed him the following month, and to award him attorney fees and costs. In response, Brandi filed her own motion seeking certain child custody orders and an award of attorney fees and costs. She also opposed Adam's motion. With respect to the portion of his motion seeking to compel the production of documents, Brandi argued the motion did not satisfy the procedural requirements of Code of Civil Procedure, section 2025.450, subdivision (b). A hearing on these competing motions was held in May 2012. The record does not contain a reporter's transcript of this hearing. However, the clerk's transcript reveals the parties were referred to mediation and the matter was continued to July 16, 2012.
Undesignated statutory references are to the Code of Civil Procedure.
In the meantime, five days after Adam filed his aforementioned motion and two days before Brandi filed her responsive motion, Brandi filed an At-issue Memorandum and Statement of Issues, Contentions, and Proposed Disposition, along with other documents required by the Butte County Superior Court Local Rules, rule 16.15, for setting a family law matter for trial. Brandi's filing indicated the parties would be disputing the characterization of the rice farming business that Brandi would be claiming as her sole and separate property, and designated Tim Kelleher as her expert witness regarding the valuation of the business. Adam did not file a Notice of Motion in Opposition to Trial Setting. (See rule 16.15(B)(3).) Thereafter, on the date scheduled to resume the hearing on the aforementioned competing motions, a trial date was set for August 17, 2012.
Undesignated rule references are to these local rules.
Brandi filed her final trial papers at least five days before trial, as required by rule 16.15(D). With respect to the rice farming business, Brandi asserted the business was started by her prior to the marriage, was therefore a separate property asset, and while the community was entitled to any profits "generated primarily from [her] time, labor and skill during the marriage," the evidence adduced at trial would show her "time, labor and skill contributed at most 6% to the profits generated" by the farming business. Brandi also argued the evidence would establish the community already received more than it was entitled to receive during the marriage, resulting in no balance left owing to the community. Adam filed no final trial papers.
Day One of the Trial
Trial commenced as scheduled. Adam's attorney, Craig A. Leri, stated at the start of trial that he believed his "motion for the bifurcated trial" was "the only thing that's properly before the Court." In accordance with that belief, he examined both Brandi and the court-appointed mediator, Dr. Christine Murphy, concerning only custody and visitation issues. After Leri indicated he was finished examining Brandi, the trial court asked whether he had any questions for her regarding the "other issues before the Court," to which Leri answered: "I'm not sure what issues the Court believes is before it." The trial court responded: "I think I told counsel that all issues are before the Court." Leri objected, arguing there were "no final declarations of disclosure that have been filed in this matter," Brandi's deposition was "not able to be concluded until July 27th," over 400 pages of documents "were turned over in a disheveled manner" (over three months earlier), and Brandi did not file a "current income and expense declaration." Leri also argued he did not believe discovery had been completed.
The trial court asked Brandi's attorney, Martin S. McHugh, to respond to Leri's assertion he had not filed the required Declaration Regarding Service of Final Declaration of Disclosure and current Income and Expense Declaration (see rule 16.15(B)(1)). McHugh responded that he filed these documents with the at-issue memorandum, which the trial court confirmed. Leri again stated he was not prepared to proceed, claimed he never received the Final Declaration of Disclosure, and further stated that had he received it, he "would have filed a motion to strike." McHugh then pointed out Leri could have filed a notice of motion in opposition to trial setting if he believed the case was not ready for trial (see rule 16.15(B)(3)), but did not do so. McHugh continued: "He has not filed any trial brief in this case. He has not filed any motion to continue. No motion to reopen discovery, which [is] now closed."
The trial court indicated it would grant Leri a continuance based on Adam's right to "effective assistance of counsel." At this point, Leri pointed out Adam had not yet testified, to which the trial court responded: "You just indicated that you're not ready to proceed, sir." Leri stated: "I'm ready to proceed on the custody and visitation, pursuant to my motion." McHugh objected to Leri's attempt to "de facto bifurcate this case" and correctly pointed out Adam did not have a right to effective assistance of counsel in a civil case. The trial court allowed Leri to proceed with his examination of Adam on custody and visitation issues. Following the examination, the matter was continued to October 15, 2012.
Adam's Request to Reopen Discovery
On October 15, 2012, the trial court set the second day of the trial for November 9, 2012. Three days later, Adam filed a request to vacate this trial date and reopen discovery. In an eight-page declaration attached to the request, Leri asserted the case was not ready to be tried on all issues. In support of this assertion, he set forth various examples of what he called, "disclosure aberrations and bad faith conduct" he attributed to both Brandi and McHugh, including the filing of a preliminary declaration of disclosure in March 2011 that "did not provide any tracing documentation . . . to support [Brandi's] separate property contentions" and filing the at-issue memorandum immediately after turning over "403 pages of financial documents (in no order and not addressed to any particular document demand)." Leri then chronicled a series of transactions he claimed Brandi entered into on behalf of the farming business that, according to Leri, amounted to the "diversion of property . . . to deprive [Adam] of his community property interest." Leri also claimed neither party had filed a final declaration of disclosure and argued: "It is simply not acceptable to proceed without a Final Declaration of Disclosure and forensic examination of [Brandi's] new separate property claim." The points and authorities attached to the request is essentially a case brief of In re Marriage of Feldman (2007) 153 Cal.App.4th 1470 (Feldman), a case dealing with the imposition of sanctions based on one party's nondisclosure of financial information, without any analysis of how this case supported Adam's request to reopen discovery.
In response, Brandi argued Adam "failed to comply with any of the statutory requirements" of section 2024.050, specifically: "There was NO meet and confer declaration as [r]equired. There has been no due diligence. This motion was filed almost SIX MONTHS after [Brandi] had filed her At-Issue [Memorandum] and almost TWO MONTHS after we already started the trial. Again [Adam] is attempting to obfuscate th[e] facts by claiming discovery was not 'complete' for a myriad of reasons. Simply put he is wrong." (Footnote omitted.) Brandi then pointed out that "discovery is considered completed on the day a response is due or on the day a deposition begins" (§ 2024.010) and argued at the time the at-issue memorandum was filed, all responses to discovery requests were completed and all depositions had either begun or been completed, with only Brandi's deposition left to be completed, which was done prior to the start of trial.
A hearing on the request to reopen discovery was held on October 30, 2012. At the start of the hearing, the trial court noted Adam previously filed a motion to compel the production of documents in April 2012 and asked Leri whether that motion was still being raised in light of the documents referred to in his declaration as having been turned over after that motion was filed. Leri answered: "Yes, Your Honor." McHugh objected that the previous motion "was dropped because the documents were produced." Leri responded that the previous motion "was not dropped." After repeating his assertion McHugh held onto "hundreds of pages of documents for weeks and weeks and weeks," Leri argued: "We need to be able to proceed on some basis of knowledge. We can't even attempt to settle a case when you don't have full disclosures and declarations, and you have depositions that are without documents, and the documents are produced later." He suggested the "custody and visitation issues" should go forward, as requested in his bifurcation motion, prompting the trial court to respond: "I think I told you several times that it was the intention of the court to go forward on all issues." Leri then indicated he would be filing an appeal because the case was "not even close to being ready to be tried," adding that "hundreds of thousands of dollars" were "diverted" from the farming business "in the last several months . . . with no explanations."
Again, we do not have a reporter's transcript of the May 2012 hearing on Adam's multi-faceted bifurcation motion that included the motion to compel document production, so we have no way of knowing whether that portion of the motion was "dropped" at that time, as claimed by McHugh, but it was certainly rendered moot by the fact the documents sought in that previous motion were admittedly produced, albeit in an allegedly "disheveled" state.
In response, McHugh again argued the procedural requirements of section 2024.050 for reopening discovery were not met and added: "We don't even really know what discovery he's seeking because he failed to do the meet and confer letter. He wants to talk about a business transaction that occurred two years post separation on a separate property business. That's a red herring. It has absolutely nothing to do with this trial. [¶] Simply put, he has failed to follow procedures continuously throughout this trial. He has failed to file the necessary court documents, and he is again, through the back door, trying to get some relief."
The trial court denied both the April 2012 motion to compel document production and the October 2012 request to reopen discovery.
Day Two of the Trial
Day two of the trial occurred on December 20, 2012, having been continued from the November 9 date due to a scheduling conflict on the part of Leri. The record does not contain a reporter's transcript of this day of the trial. However, according to the minute order in the clerk's transcript, Brandi's expert witness, Kelleher, testified regarding valuation of the rice farming business. The minute order also reveals the trial court granted an oral motion to bifurcate the proceeding as to the status of the parties' marriage and declared the marriage dissolved. Judgment of dissolution as to status only was thereafter entered.
Day Three of the Trial
Day three of the trial occurred on March 7, 2013, having been twice continued in the meantime. When the trial court asked whether the parties were ready to proceed, Leri stated he was moving for a mistrial based on an income and expense declaration filed by Brandi the previous week. Specifically, he argued Brandi "perjured herself" in her previous deposition by claiming "she was not farming" in 2012, while her federal tax filing for that year (attached to her income and expense declaration) included Schedule F, Profit or Loss From Farming. According to Leri, Brandi's failure to disclose she was farming in 2012 violated Feldman, supra, 153 Cal.App.4th 1470, prevented Adam from seeking an alternative valuation date, and entitled Adam to a mistrial. In response, McHugh argued the motion was "specious" and "a further delaying tactic in an attempt to overcome [Leri]'s lack of preparedness for this trial." The trial court took a brief recess to review the Feldman case and then denied the motion.
Leri then examined Brandi concerning her prior deposition, her 2012 federal tax filing, and various figures contained in a previous Income and Expense Declaration and Schedule of Assets and Debts. After Brandi answered, "I don't know" to certain questions regarding these figures, Leri renewed the motion for mistrial. In response, McHugh argued: "Your Honor, [opposing counsel] has been disclosed absolutely everything. He's received boxes of all these documents. He has all of them. He is badgering this witness. He has spent an hour now and basically introducing no relevant evidence to where we need to go. This case is really very simple, but [opposing counsel] wants to make it as complex as possible. My client isn't an accountant. In fact, there aren't going to be any accountants brought before this Court, because there's no experts listed. He's asking her about documents she doesn't understand." McHugh continued: "And once again, the problem here is [opposing counsel] is not prepared for this trial. He wasn't prepared when we filed our [at-issue memorandum]. He has made multiple attempts, back-door attempts to reopen discovery and obtain things that he didn't get before. He's failed to disclose witnesses. He's failed to do everything." The trial court again denied the motion for mistrial.
Day three continued with testimony from Brandi and Adam. We decline to provide a summary of their testimony because the trial court explicitly based its separate property ruling on Kelleher's testimony, which has been omitted from the record, requiring us to presume such testimony is adequate to support the ruling. We do note Brandi testified the farming business "was started before [she and Adam] were married." We also note an exhibit introduced by McHugh during Brandi's testimony and admitted into evidence (Respondent's G) provides us with some insight into Kelleher's testimony. This exhibit lists the value of the farming business at the time of separation at $903,858.04 (comprised of $770,545.04 in assets plus $133,313.00 in profits from 2000 to 2010), multiplies this number by 7.8 percent (which McHugh stated, without objection or contradiction, was testified to by Kelleher as the percentage of the value of the business that was attributable to Brandi's management thereof) to total $70,500.93 as the community property interest in the business. The exhibit calculation then subtracts $85,119.00 from this amount (which is the amount Brandi testified she withdrew from the farming business during the marriage and used for community expenses), resulting in no remaining interest owed to the community.
Day Four of the Trial
On March 14, 2013, the trial court ordered an independent accounting of the farming business "to assist the court in evaluating the evidence presented" at trial. Thereafter, Michael Hinz, CPA, was appointed to conduct the accounting. Day four of the trial was then continued multiple times and finally commenced on February 7, 2014, nearly a year after the accounting was ordered and 18 months after the trial began. In the meantime, Hinz filed a report unfavorable to Adam's position regarding the valuation of the farming business that prompted Adam to call a different accountant, Jerome Crippen, CPA, to testify in response. Adam also recalled Brandi. After finishing his examination of Brandi, Leri again argued the trial court was required "to declare a mistrial on the property aspect of this case." This renewed motion was also denied.
Trial Court's Ruling
With respect to the characterization of the farming business, after hearing argument from both counsel, the trial court ruled as follows: "Prior to marriage, Brandi owned Brandi Lynn Farms, a farming business. The Court heard testimony from Tim Kelleher that the value of Brandi's efforts toward the business throughout the marriage was [7.8] percent. [¶] The Court finds that Brandi's farming operation, which was started prior to marriage, is her sole and separate property. [¶] The Court further finds that Brandi did not exert any significant time, labor or skill to the management of her separate property business and that the profits and any increased value are attributed to the return on investment and not in any significant degree to any personal character, energy, ability or efforts of Brandi. [¶] The Court adopts the testimony of Tim Kelleher that [7.8] percent of the revenue generated could be attributable to Brandi's management of the farming operation during the marriage. [¶] . . . [¶] The Court further finds, based in part on the report of court expert Michael L. [Hinz], CPA, that the community has already been compensated for more than the value of such community efforts. [¶] The farming operation and all of its assets, accounts and retains are confirmed to Brandi as her sole and separate property." The trial court declined to award child support to either party "as no evidence was presented" on that issue. The trial court further ordered each side to bear its own costs and attorney fees, finding each side had the ability to pay for its own attorney fees and neither side had the ability to pay for the other's attorney fees.
DISCUSSION
I
Appellant's Obligation to Provide Adequate Briefing and Appellate Record
On appeal, the trial court's judgment is presumed to be correct, and it is the appellant's burden to affirmatively demonstrate otherwise. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Equilon Enterprises LLC v. Board of Equalization (2010) 189 Cal.App.4th 865, 881; In re S.C. (2006) 138 Cal.App.4th 396, 408.) To demonstrate error, the appellant must not only present an intelligible factual analysis and legal authority on each point made, but also support any argument with appropriate citations to the material facts in the record; otherwise, the argument may be deemed forfeited. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)
This court is not obligated to perform these functions on appellant's behalf. (Estate of Hoffman (1963) 213 Cal.App.2d 635, 639; Metzenbaum v. Metzenbaum (1950) 96 Cal.App.2d 197, 199.) This is so because it is not the province of an appellate court to act as counsel for either party to an appeal by undertaking a search of the record for the purpose of discovering error or grounds for appeal not pointed out in the briefs. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1117, fn. 2.) Moreover, points raised in the opening brief must be set forth separately under an appropriate heading, showing the nature of the question to be presented and the point to be made. (Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4 (Opdyk).) This is not a mere technical requirement, but is "designed to . . . requir[e] the litigants to present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised, as they read, of the exact question under consideration, instead of being compelled to extricate it from the mass." (Landa v. Steinberg (1932) 126 Cal.App. 324, 325; Opdyk, supra, 34 Cal.App.4th at p; 1831, fn. 4.)
Finally, an appellant must provide an adequate record from which the asserted error may be demonstrated. Because the judgment is presumed to be correct, the failure to do so requires that the issue be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) For example, an appellant may not successfully challenge the sufficiency of the evidence to support a judgment where there is no transcript of the oral proceedings. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
II
Each of Appellant's Claims is Forfeited
Adam's opening brief purports to raise seven issues. It does so under three headings. The first such heading states: "THE TRIAL COURT SHOULD HAVE GRANTED A CONTINUANCE, ORDERED DISCOVERY REOPENED, OR IN THE ALTERNATIVE GRANTED THE REQUEST FOR MISTRIAL AS THERE WAS NO EVIDENCE UPON WHICH TO FIND THE FARMING OPERATION WAS SEPARATE PROPERTY." Thus, it would appear Adam would be arguing the trial court prejudicially erred by (1) denying a request for a continuance, (2) denying a request to reopen discovery, or (3) declining to declare a mistrial, each such argument premised on an underlying claim that (4) there was no evidence to support the trial court's separate property finding.
This is improper for a number of reasons. First, this shotgun approach to raising issues under a single heading in the opening brief violates the aforementioned rule that each point raised must be set forth separately under an appropriate heading, showing the nature of the question to be presented and the point to be made. (Cal. Rules of Court, rule 8.204(a)(1)(B); Opdyk, supra, 34 Cal.App.4th at p. 1830, fn. 4.) Second, each error asserted in the heading is explicitly premised on the claim the evidence was not sufficient to support a finding the farming business was Brandi's separate property. However, as we have explained, the testimony relied upon by the trial court in making that finding was provided by Brandi's expert, Kelleher, during the second day of the trial. We have no record of this testimony and must therefore presume it is adequate to support the trial court's separate property finding. (See Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296; Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
Third, turning to the body of the argument, aside from providing citation to authority supporting the general proposition that denial of a continuance that deprives a litigant of a fair hearing is reversible error (see Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395), Adam does not provide any legal analysis regarding the requirements for obtaining a continuance, reopening discovery, or having a mistrial declared. Nor does he even attempt to argue he satisfied these requirements. Thus, the four claims raised in Adam's first heading are forfeited by his failure to adequately support them with reasoned legal argument and his concomitant failure to supply this court with a record adequate to demonstrate error.
Moreover, as Brandi points out in her respondent's brief, the citation to the record Adam provides in support of his assertion he was denied a continuance is to the ruling denying his April 2012 motion to compel document production and October 2012 request to reopen discovery. The latter request also sought to vacate the date set for day two of the trial due to a scheduling conflict on the part of Leri. While the trial court did not grant that request at that time, on the date set for day two of the trial, the trial court continued the matter for over a month because of that scheduling conflict. Thus, it is unclear why Adam is complaining he was denied a continuance that was actually granted.
Fourth, instead of providing a legal argument corresponding to the issues raised in the heading, the body of the argument provides over seven pages of direct quotes from the reporter's transcript, during which Brandi was questioned concerning various aspects of the farming operation and did not know the answers. Adam says these responses "best illustrate the severity of her refusal to disclose financial matters and her breach of fiduciary duties." He then purports to raise a claim under Feldman, supra, 153 Cal.App.4th 1470, and argues "the . . . separate property ruling should be reversed, sanctions and attorney fees should issue, [and] adequate tracing should be undertaken at Brandi's expense so that Adam should . . . be awarded his interest in community property that was diverted with appropriate sanctions against Brandi." Thus, the argument set forth under the heading that purports to raise four separate issues actually sets forth a fifth issue. Not only is it improper to argue an issue not contained in the heading, but Adam also provides insufficient legal analysis in support of this additional claim. There is no analysis of the Feldman case, no application of that case's holding to the facts of this one, and Adam concludes what little argument he provides with an assertion Brandi presented no proof the farming operation was her separate property. As we have explained, Adam's omission of Kelleher's testimony from the record on appeal requires us to presume she did. We conclude this additional claim is likewise forfeited.
Adam also states: "[W]hile some people may not be able to spell Feldman others are certainly able to do so and follow the rules accordingly." The "some people" is apparently a reference to the trial judge. Earlier in the brief, Adam states the trial judge asked Leri to spell the case name, citing the third day of trial when he moved for a mistrial. The pages cited by Adam do not support his assertion. While the trial judge asked for the citation to the Feldman case, she did not ask Leri to spell, "Feldman." Moreover, even if she did, there is no excuse for disrespectfully referring to a Superior Court judge as "some people" or for implying the fault was her spelling ability rather than Leri's poor enunciation of the name of the case. --------
While Adam's final two contentions are raised under separate headings, they are similarly forfeited for failure to provide adequate briefing and an adequate record from which the asserted errors may be demonstrated. With respect to Adam's assertion the trial court should have awarded him attorney fees, he argues Family Code section 2107, subdivision (c), required such an award based on the "overwhelming evidence in the record that [Brandi] breached her fiduciary obligations to report income, assets, and obligations fully and accurately." He again relies on "Feldman and its progeny," but again provides no analysis of the Feldman case or any other case interpreting this statutory provision. He also argues the trial court "may simply make an award of attorney[] fees" under Family Code sections 2030 and 2031 "where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties." (Italics added.) While Adam does not explicitly state the trial court should have done so in this case, he cites his CPA's testimony regarding the amount of income being generated by Brandi's farming business, suggesting he believes the trial court should have awarded attorney fees under these provisions based on that testimony. However, the trial court was not required to accept the testimony of Adam's CPA regarding Brandi's farming business. Instead, it explicitly accepted the testimony of her expert, Kelleher, and the report filed by the court-appointed CPA. Again, because we do not have the transcript of Kelleher's testimony, we must presume it would support the trial court's ruling that Brandi did not possess the ability to pay Adam's attorney fees.
Finally, the same reasoning applies to Adam's assertion the trial court should have awarded him child support. First, there is no legal analysis regarding the requirements of awarding child support. Second, this argument is again based on the mistaken premise that the testimony of Adam's CPA regarding Brandi's income must be credited.
For the foregoing reasons, we conclude each of Adam's appellate contentions is forfeited.
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent, Brandi Lynn Walton. (Cal. Rules of Court, rule 8.278(a).)
/s/_________
HOCH, J. We concur: /s/_________
NICHOLSON, Acting P. J. /s/_________
DUARTE, J.