Opinion
C081276
07-30-2018
In re the Marriage of BRIAN and CATHERINE WILKIE. BRIAN WILKIE, Appellant, v. CATHERINE WILKIE, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SDR-0031098)
Brian Wilkie appeals from a judgment dissolving his marriage to Catherine Wilkie. The judgment resolved numerous issues including claims of reimbursement, separate property contributions to community property, and attorney fees. Each of Brian's claims fail because Brian failed to provide an adequate record on appeal and/or he failed to comply with the rules of court. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Brian's "Statement of Facts" fails to include even a single citation to the record in violation of California Rules of Court, rule 8.204(a)(1)(C). (See Pierotti v. Torian (2000) 81 Cal.App.4th 17, 29 ["an appellant must support all statements of facts in his briefs with citations to the record"].)
A. Pretrial Litigation
Brian and Catherine were married in November 2004 and separated on July 12, 2006. Brian filed a petition for dissolution in November 2006. Brian and Catherine subsequently reconciled and that petition was dismissed on January 17, 2008.
The reconciliation did not last and, in February 2008, Brian and Catherine separated again; Brian filed a second petition for dissolution days later. Over the next several months Brian and Catherine "periodically tried to reconcile."
In May 2008, during a period of separation, Judge Jeffrey Penney ordered Brian to pay to Catherine monthly child and spousal support. As described by the trial court in the judgment, Judge Penney also ordered "that in the event that the prenuptial agreement executed by the parties prior to marriage was found to be valid, [Catherine] would be required to reimburse [Brian] for any support paid."
Judge Penney's order is not included in the record.
During a later period of reconciliation, Brian and Catherine agreed that "all support payments would terminate on September 30, 2008." According to the judgment, in November 2008, they also entered into a "Marital Agreement."
Neither the "Marital Agreement" nor the agreement to terminate spousal support is included in the record.
Months later, in July 2009, Brian sought an ex parte order for custody of the parties' minor child. Brian's motion was continued repeatedly until June 11, 2010, when Brian and Catherine stipulated to "drop all motions." The trial court quoted from their stipulation in the judgment: " 'All issues to be heard at that time may be reset and retroactive modification of support shall continue to be retroactively modifiable upon the request of either party.' "
This stipulation is not in the record.
By December 2010 Brian and Catherine "reconciled fully and [Catherine] moved back in with [Brian]." There was more litigation between the parties in 2011 and in April 2011 they entered into a stipulation dropping the settlement conference, the trial confirming conference, and the trial from the court's calendar.
This stipulation is not in the record.
In January 2013, Catherine moved out of the house and the final date of separation was determined to be January 1, 2013. Following a bifurcated trial, the court determined the parties' prenuptial agreement was valid. The parties then proceeded to trial on the remaining issues.
This order is not in the record.
At trial on the remaining issues, Brian sought reimbursement totaling $11,040 for the interim spousal support payments he made to Catherine. He also sought, among other things, reimbursement for car insurance payments made on Catherine's car, reimbursement of his separate property contribution to the family home, and attorney fees. Catherine also requested attorney fees. B. Judgment
Following a two-day trial, the trial court ruled Brian "waived" "[a]ny right to reimbursement" for the interim spousal support he paid to Catherine. In reaching its decision, the court found Judge Penney's order "specifically stated that in the event that the Prenuptial Agreement was found to be valid, [Catherine] was to reimburse [Brian] for any spousal support paid." The court, however, made two additional findings: (1) the prenuptial agreement itself did not preclude interim spousal support; and (2) Brian waived his right to reimbursement by executing the agreement to terminate interim spousal support with no provision for reimbursement.
The trial court also denied Brian's request for reimbursement for car insurance payments he made on Catherine's car. The court found it was not Brian who made the payments but Wilkie Masonry, Inc., "a C Corporation, which has not been made a party hereto." The court acknowledged Brian was the sole owner of the corporation but found it could not order reimbursement to an entity that was not a party to the litigation. The court also refused to order reimbursement of the insurance payments because "for some of this period" Brian was refusing to pay support to Catherine.
Brian's claim that he made a separate property contribution of $55,000 to the family home also was rejected by the trial court. The court noted that in October 2004, Brian received $176,007.72 from the sale of separate property and that he produced February and March 2006 portfolio management account statements for an account number ending in 3120 that showed his balance decrease from $71,689.92 to $10,935.12. Brian also produced a copy of a check for "cash" dated March 20, 2006, totaling $55,588.76 from a checking account number ending in 9131. Finally, the court reported that Brian also produced a copy of a "money order" to Financial Title Company for $53,588.76.
The only statement included in the record from the account ending in 3120 is dated December 2005.
This evidence, the court ruled, was insufficient "to trace the $55,588.76 to a separate property source." The court concluded "[t]here is absolutely no proof of where the funds from the sale of the property were deposited. There is no proof that the funds in the checking account number ending with 3120 were separate property funds."
Catherine asked the court for Family Code section 2030 attorney fees totaling $25,000. The court considered numerous factors in resolving her claim, including the nature of the litigation, the impact on either party's separate estate, the parties' relative need and ability to pay, and its own experience and knowledge in determining the reasonable value of attorney services.
The court found the attorneys for the parties worked hard and neither party had failed to cooperate or prolonged the litigation; indeed, the court found the parties worked out many difficult issues "between themselves." The court also found it relevant that Brian had not been paying Catherine support since their final separation, choosing instead to buy things for their child and calling that child support. Taking all of this information into consideration, the court ordered Brian to pay to Catherine $18,000 for her attorney fees. C. Settled Statement
In June 2017, the court filed a certified settled statement in the trial court pursuant to California Rules of Court, rule 8.137 et seq. Commissioner John H. Paulsen settled the statement but noted he was not the trial judge; the trial judge had retired and was not available.
Undesignated rule references are to the California Rules of Court. --------
In addition to the information already contained in the judgment, the settled statement noted the exhibits that were admitted into evidence and documents of which the trial court took judicial notice, including the November 2008 marital settlement agreement and a November 2010 stipulation and order. Commissioner Paulsen also noted the trial judge "stated she had read the entire court file, including prior orders."
Commissioner Paulsen reported that, during trial, the trial court ordered Brian's attorney "to limit his examination of Respondent, Catherine Wilkie, who had been called by Brian pursuant to Evidence Code Section 776." He also reported there was testimony regarding custody of the parties' child and discussion that the parties recently participated in a hearing with child support services.
The settled statement also reflected the trial court's ruling that Brian was the sole shareholder of Wilkie Masonry, Inc. Catherine testified the business was a community asset, Brian testified otherwise, and they ultimately agreed to award the business to Brian. They each testified about the value of the "Mercedes automobile," and Brian said it was an asset of Wilkie Masonry, Inc.
The settled statement also recited Brian's claims and evidence regarding his separate property contribution to the family residence. The recitation included reference to Brian's and Catherine's testimony: They both testified the balance of the money used to buy the residence was community money, and Catherine testified the net equity in the home was $40,000.
Finally, Commissioner Paulsen indicated that following the trial, neither party requested a statement of decision.
DISCUSSION
1.0 Standard of Review
" '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, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics.)
" '[A] party challenging a judgment [or order] has the burden of showing reversible error by an adequate record.' [Citation.] . . . A proper record includes a reporter's transcript or a settled statement of any hearing leading to the order being challenged on appeal." (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574.)
Here, the record on appeal does not contain a reporter's transcript of the trial. This is referred to as a judgment roll appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083.) "On such an appeal, '[t]he question of the sufficiency of the evidence to support the findings is not open.' " (Id. at p. 1082.) Instead, we presume that all findings by the trial court are supported by substantial evidence, and we can only consider whether the judgment is supported by the findings or whether reversible error " 'appears on the face of the record.' " (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324-325.)
Moreover, although Brian obtained a settled statement, he did not request a statement of decision. " 'Under the doctrine of "implied findings," when parties waive a statement of decision expressly or by not requesting one in a timely manner, appellate courts reviewing the appealed judgment must presume the trial court made all factual findings necessary to support the judgment for which there is substantial evidence.' [Citations.] A party who does not request a statement of decision may not argue the trial court failed to make any finding required to support its decision. [Citations.]" (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1248.)
"[T]he use of a settled statement in lieu of a reporter's transcript does not negate the doctrine of implied findings where the parties waived a statement of decision." (A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1282.) "As a 'condensed narrative of the oral proceedings,' a settled statement does not guarantee the reviewing court has before it the factual and legal basis for the trial court's determination" as a statement of decision provides. (Id. at p. 1283.) Accordingly, "we are not at liberty to ignore the doctrine of implied findings and reverse the trial court on factual and legal grounds it may have actually considered but not expressed in writing. We thus apply the doctrine of implied findings as we review the trial court's decision." (Ibid.)
2.0 Trial Court's Failure to Participate in Settled Statement
Brian asks this court to vacate the judgment and order a new trial because the trial court failed to participate in preparing a settled statement. Brian failed to make this argument under a separate point heading in violation of rule 8.204(a)(1)(B). "An appellant must '[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.' ([R]ule 8.204(a)(1)(B); see Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4.) Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading." (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.)
Additionally, Brian failed to include a single citation to the record in support of this argument in violation of rule 8.204(a)(1)(C). "Because '[t]here is no duty on this court to search the record for evidence' [citation], [we] may disregard any factual contention not supported by a proper citation to the record [citation]." (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379, original italics; see City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239 [appellate court need not consider any matter asserted without appropriate reference to the record].)
Finally, Brian failed to cite any relevant legal authority to support his claim in violation of rule 8.204(a)(1)(B). We reject Brian's claim for this reason as well. (People v. Hardy (1992) 2 Cal.4th 86, 150 [a reviewing court need not address any issue purportedly raised without argument or citation to relevant authority].)
3.0 Termination of Cross-examination
Brian contends he was "deprived . . . of [h]is constitutional right to due process" because the trial court limited his cross-examination of Catherine. On this limited record, Brian's claim fails. Because there is no reporter's transcript of the trial in this matter, the only information we have on appeal is that the trial court ordered Brian's trial attorney "to limit his examination of Respondent, Catherine Wilkie, who had been called by Brian pursuant to Evidence Code Section 776."
Absent a reporter's transcript of the trial, we cannot entertain Brian's contention that the trial court violated his right to due process by limiting his cross-examination of Catherine. We presume the trial court knew the law as it relates to the admission and exclusion of evidence and applied it correctly. (Evid. Code, § 664; Ross v. Superior Court (1977) 19 Cal.3d 899, 913-914; People v. Adanandus (2007) 157 Cal.App.4th 496, 503.)
Brian relies on this court's decision in In re Marriage of Carlsson (2008) 163 Cal.App.4th 281 to support his claim. In Carlsson, however, there was a reporter's transcript for this court to review. (Id. at pp. 286-289.) Brian's reliance on that decision, therefore, is inapt.
4.0 Reimbursement of Interim Spousal Support
The trial court refused Brian's request for reimbursement of interim spousal support payments he made to Catherine in 2008. Brian claims this was error and he should receive a new trial. We disagree.
When an appeal is "on the judgment roll," we presume the evidence supports the trial court's ruling unless error "appears on the face of the record." (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521-522.) Having reviewed the limited appellate record, we conclude Brian has not met his burden of establishing error.
5.0 Attorney Fees
Brian also contends the trial court abused its discretion in ordering him to pay $18,000 in attorney fees to Catherine. He argues the court abused its discretion because there is no "itemized statement of Catherine's attorney fees nor reference to any other information provided of the extent and notice of the services render[ed] by Catherine's attorney." This contention also fails.
First, Brian mischaracterizes the record on appeal. The settled statement clearly indicates that both Catherine and Brian "testified as to the amounts they incurred as and for attorney's fees and costs." In addition, the settled statement lists as an exhibit at trial "Catherine's . . . attorney's fees memorandum" and that memorandum is included in the record on appeal. Accordingly, though we cannot know what information her testimony contained, we do know Catherine provided information regarding the services rendered by her attorney.
Second, we presume on this limited record that the trial court properly exercised its discretion by correctly applying the law and giving due consideration to the evidence before it, including Catherine's testimony, regarding the attorney fees she incurred (see Olivia v. Suglio (1956) 139 Cal.App.2d 7, 9), and that the evidence was sufficient to justify issuing the order (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154).
6.0 Tracing Separate Property Contribution
Brian claims the trial court "abused its discretion in failing to find sufficient evidence in tracing separate property funds to the down payment on the family residence." This claim also fails.
A party may be reimbursed for his or her contributions to the acquisition of community property to the extent the party traces the contributions to a separate property source. (Fam. Code, § 2640, subd. (b).) Whether a separate property interest was adequately traced to a separate property source is a question of fact, and we will uphold the family court's ruling if supported by substantial evidence. (In re Marriage of Cochran (2001) 87 Cal.App.4th 1050, 1057-1058.)
Here, the claim fails because on a judgment roll appeal " 'every presumption is in favor of the validity of the judgment and any condition of facts consistent with its validity will be presumed to have existed rather than one which will defeat it. [Citation.] The sufficiency of the evidence to support the findings is not open to review. [Citation.]' [Citation.]" (Estate of Kievernagel (2008) 166 Cal.App.4th 1024, 1031.) In any event, the evidence we do have in the record supports the court's ruling.
As noted in the judgment and the settled statement, Brian claimed a separate property contribution of $55,000 toward the family residence. Brian produced evidence that on October 15, 2004, he received $176,007 from the sale of separate property. He also produced February and March 2006 bank statements for a portfolio management account number ending in 3120, to which he attached a check written to "Cash" for the sum of $55,588.76, and a cashier's check written to Financial Title Company in the amount of $53,588.76. Brian did not, however, offer any evidence that the money he received from the sale of his separate property was deposited into the 3120 account or that the funds in the 3120 account were otherwise his separate property.
Accordingly, on this record, we can find no abuse of discretion.
7.0 Reimbursement of Insurance Payments
Finally, Brian contends the trial court erred in refusing to reimburse Wilkie Masonry, Inc., for insurance payments made on Catherine's car. Again, he fails to include this argument under a separate point heading in violation of rule 8.204(a)(1)(B).
In addition, while he argues that Wilkie Masonry, Inc., is his separate property and "should have been reimbursed" for the insurance payments, he does not explain why the company should be reimbursed. He also fails to support his argument with any citation to legal authority or the record. We will not consider claims made in a perfunctory fashion and without supporting argument. (People v. Redd (2010) 48 Cal.4th 691, 744; People v. Earp (1999) 20 Cal.4th 826, 881.)
DISPOSITION
The judgment is affirmed. Catherine Wilkie is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
BUTZ, Acting P. J. We concur: MAURO, J. RENNER, J.