Opinion
A152323
08-30-2021
In re the Marriage of JENNIE HEARN and ROCKFORD HEARN. JENNIE HEARN, Respondent, v. ROCKFORD HEARN, Appellant.
NOT TO BE PUBLISHED
Marin County Super. Ct. No. FL-1601048
MILLER. J.
Rockford Hearn appeals from the judgment dissolving his marriage to Jennie Hearn. Because he does not show any prejudicial error by the trial court, we will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Rockford Hearn (Husband) and Jennie Hearn (Wife) were married in 2008; Wife petitioned for dissolution of the marriage in March 2016. In July 2016 the court issued temporary orders that the parties would share joint legal and physical custody of their two minor children, as well as responsibility for the children's health, education and welfare. The case was set for a March 2017 trial on financial issues only.
The May 2017 judgment of dissolution provided that these temporary custody orders were to remain in effect pending further orders.
Because Husband and Wife stipulated to a mutual waiver of spousal support and to a reservation of child support, the trial focused on the characterization and division of the parties' debts and assets. According to Husband's trial brief, among the issues to be adjudicated were the parties' separate property contributions to the acquisition of the family home; income tax liability for 2015; the assignment of debt; and the enforceability of a 2015 promissory note in which Husband promised to pay Wife $200,000 for his student loan debt.
A bench trial, which was not reported, was conducted on March 6 and 8, 2017, before the Honorable Verna A. Adams. The court heard testimony from Husband, Wife, Wife's parents, and several experts, and admitted numerous exhibits into evidence.
The record before us includes the family court's settled statement of the trial proceedings and documents submitted to the trial court by the parties in connection with the settling of the statement.
On March 10, 2017, the family court announced its tentative decision and proposed statement of decision. Two months later, on May 10, the court issued a judgment of dissolution and a 13-page statement of decision. Among other things, the court assigned each party liability for certain debts. The court concluded that the equity in the family home was $1,221,918 at time of trial, that Wife was entitled to reimbursement of $695,953 under Family Code section 2640 for her separate property contributions to the acquisition of the home, and that the promissory note was valid and enforceable.
Subsequent undesignated statutory references are to the Family Code.
Husband moved for a new trial, and in the alternative to vacate the judgment and to correct the judgment. In July 2017, the trial court denied the motion for new trial and the motion to vacate judgment, and granted the motion to correct the judgment in two respects: the court assigned Husband sole responsibility for a Bank of America credit card account, and made orders concerning the disposition of Husband's personal effects remaining at the former family residence.
The trial court denied Husband's 2017 motion to use a settled statement on appeal. After the appeal was fully briefed, we vacated the trial court order denying the motion for settled statement, directed the trial court to grant the motion, and ordered the parties to prepare amended briefs after the preparation of the settled statement. The settled statement was filed in October 2020, and the last of the parties' briefs on appeal was filed in this court in May 2021.
DISCUSSION
A. Principles of Appellate Review
Before turning to Husband's arguments, we summarize standards that apply to appeals where parties represent themselves, as Husband does here, as well as to appeals where parties are represented by counsel. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210 [self-represented litigant is “treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys”].)
Husband, who is an attorney, represented himself throughout most of the proceedings below, and represents himself on appeal.
An order challenged on appeal is presumed to be correct, and it is the appellant's burden to affirmatively show that the trial court erred. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It is also the appellant's burden to show prejudice from any error. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963 (Century Surety Co.).) The California Constitution permits reversal only if “the error complained of has resulted in a miscarriage of justice.” (Cal. Const., Art. VI, § 13.) The Code of Civil Procedure provides that appealed judgments and orders may be reversed only if the record shows that an error was “prejudicial”; the error caused appellant “substantial injury”; and absent the error, “a different result would have been probable.” (Code Civ. Proc., § 475.) To show prejudice, an appellant must do more than simply state that he was prejudiced and contend that absent the error, he could reasonably expect to have obtained a more favorable outcome. (See Century Surety Co., supra, 139 Cal.App.4th at p. 963 [appellant must provide legal argument as to how the error was prejudicial].) If these burdens are not met, we reject the argument on appeal.
The appellant (here, Husband) must support the arguments in his brief by appropriate reference to the record. (Air Couriers International v. Employment Development Dept. (2007) 150 Cal.App.4th 923, 928 (Air Couriers).) We are not required to search the record for evidence, and we may disregard unsupported factual assertions. (Ibid.; see Cal. Rules of Court, rule 8.204(a)(1)(C) & (a)(2)(C) [appellant's opening brief must include a summary of significant facts limited to matters in the record, with any reference to a matter in the record supported by a citation to the volume and page number of the record].) Failure to provide adequate record citations forfeits a contention of error. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte).) Husband largely disregards not only this broadly applicable requirement, but also the specific order we issued in this appeal reminding Husband that his opening brief “must comply with the Rules of Court, and in particular with all the provisions of Rule 8.204(a), including appropriate citations to the record.”
We issued this order when we instructed the parties to file amended briefs after preparation of the settled statement.
We review the trial court's findings of fact under the substantial evidence standard, which requires us to examine the evidence in the light most favorable to the prevailing party. (In re Marriage of Rossi (2001) 90 Cal.App.4th 34, 40.) We resolve conflicts in the evidence in favor of the prevailing party, and we make “ ‘ “ ‘all legitimate and reasonable inferences' ”' ” to support the trial court's findings. (Ibid.) This means we do not consider whether there might be substantial evidence to support a finding different from the trial court's, but only whether there is substantial evidence, contradicted or uncontradicted, to support the findings that were made. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570, 581-582 (Schmidt).) We do not reweigh the evidence or reappraise the credibility of witnesses. (Ibid.) In any substantial evidence challenge, the appellant has the burden to set forth in his brief all the material evidence on the point, and not merely his own evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Foreman & Clark).) Failure to meet this burden results in the forfeiture of the claim. (Ibid.)
An appellant also has the burden “to support claims of error with meaningful argument and citation to authority. [Citations.] When legal argument with citation to authority is not furnished on a particular point, we may treat the point as forfeited and pass it without consideration. [Citations.] In addition, citing cases without any discussion of their application to the present case results in forfeiture. [Citations.] We are not required to examine undeveloped claims or to supply arguments for the litigants.” (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 (Allen).)
We generally do not consider theories raised for the first time on appeal which could have been, but were not, presented to the trial court for consideration. (In re Marriage of Nassimi (2016) 3 Cal.App.5th 667, 695 (Nassimi).) The policy behind this rule is fairness. “ ‘ “[I]t would be unfair, both to the trial court and the opposing litigants, to permit a change of theory on appeal.”' ” (Ibid.)
Finally, we disregard purported incorporations by reference of documents or arguments from the trial court proceedings, or arguments set forth in other appellate briefs. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 294, fn. 20 (Soukup); see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 9:30.1 [incorporation of such documents or arguments is “entirely inappropriate”].)
B. Adequacy of the Settled Statement
Husband's first argument on appeal is that because the trial court failed to follow legal requirements in preparing the settled statement, the resulting record is inadequate for review through no fault of his and therefore we must reverse. Husband cites no authorities to support his position; instead, he seeks to incorporate by reference the motion he filed in this court to correct the record and strike the settled statement. We disregard this improper argument. (Soukup, supra, 39 Cal.4th at p. 294, fn. 20; Allen, supra, 234 Cal.App.4th at p. 52.) In any event, we denied Husband's motion.
Husband does not provide adequate citations to the record to support his argument. His dissatisfaction with the settled statement is not an excuse for this; he had other means of supporting his arguments, including citations to exhibits admitted into evidence at trial and to the documents he submitted to the trial court concerning the settled statement, but he has not made use of them. Thus, although Husband provides copies of some of the trial exhibits in his appendix on appeal, he rarely provides citations to them, and when he does, he typically does not identify the documents as trial exhibits or explain how they might support his positions. Similarly, although Husband supplemented his appendix on appeal with documents submitted to the trial court by the parties in the process of obtaining a settled statement, he rarely refers to them.
In response to Wife's objection that Husband's appendix does not include copies of the original trial exhibits, which have a clerk's stamp, Husband informs us that his copies of the original trial exhibits that were admitted into evidence were stolen from his car, and that as a result he has produced accurate copies of the exhibits, lacking only the clerk's stamp. We disregard Wife's objection. The problem with Husband's citations is not the absence of citations to stamped copies of exhibits, but instead that Husband does not identify the copies as exhibits that were admitted into evidence, or explain how they correlate to the exhibit list that he has provided in his appendix.
C. Adequacy of the Statement of Decision
Husband attempts to make two points concerning the family court's statement of decision. He begins by claiming that we must reverse because the trial court failed “to issue consistent, unambiguous findings on material issues.” He follows this claim with what appears to be a fallback argument that the doctrine of implied findings does not apply in this case. We consider the arguments in turn.
Husband's first argument is that the judgment must be reversed because the trial court's statement of decision does not meet the requirements of Code of Civil Procedure section 632, which requires the statement to “explain[ ] the factual and legal basis for its decision as to each of the principal controverted issues at trial.” Husband has forfeited this argument because he does not support it with citations to the record. (Duarte, supra, 72 Cal.App.4th at p. 856.)
Husband's brief provides a list of 9 purported “omissions, ambiguous, and/or inconsistent findings, ” which, according to the brief, are just a sample of the deficiencies in the statement of decision, limited to “those which prejudice me, financially or otherwise, significantly enough to warrant appellate review.” But Husband's brief does not provide citations to the statement of decision in the record, which are necessary for us to identify the purported errors. The brief also omits citations to the record that would support his contentions that the court's findings are contrary to “undisputed evidence” or ambiguous or inconsistent, or pertain to a controverted issue. Husband's belated attempt in his reply brief to supply citations to the record to support some of his contentions is to no avail. By not providing citations in his opening brief, he deprived Wife of the opportunity to fairly counter his arguments. (See Los Angeles Unified School District v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 509-510 [declining to consider documents provided for the first time in reply brief]; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 [“ ‘[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument”].)
Further, although Husband's brief offers general statements of the law drawn from a number of cases, it provides no explanation of how those statements apply to the case before us. (Allen, supra, 234 Cal.App.4th at p. 52.) Nor does the brief explain how the purported errors have prejudiced Husband. (Century Surety Co., supra, 139 Cal.App.4th at p. 963.)
We move now to Husband's argument concerning the doctrine of implied findings. When we review a statement of decision on appeal, we presume that the court impliedly made any omitted findings in favor of the prevailing party unless the omissions in the statement's factual findings were brought to the trial court's attention. (Fladeboe v. American Isuzu Motors, Inc. (2007) 150 Cal.App.4th 42, 59 (Fladeboe).) When a party requests clarifications and additions to a statement of decision and the request is denied, however, the judgment “ ‘ “must stand or fall on the finding expressly made unless the evidence on the issue in controversy is undisputed, is of such a nature that it cannot be disbelieved, and no conflicting inferences can be drawn therefrom.”' ” (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 360, emphasis added.)
Husband contends that the doctrine of implied findings is inapplicable “to issues not clearly addressed in the statement of decision to which [he] properly objected.” Again, the argument concerning the doctrine of implied findings is not supported by citations to the record, or any explanation of how the statutes or the case law that Husband mentions pertain to his case. (Duarte, supra, 72 Cal.App.4th at p. 856; Allen, supra, 234 Cal.App.4th at p. 52.) Accordingly, we infer that the family court made factual findings favorable to the prevailing party on all issues necessary to support the judgment, and we review the court's implied findings under the substantial evidence standard. (Fladeboe, supra, 150 Cal.App.4th at p. 60.)
D. Income and Expense Declarations
Husband contends we must set aside the judgment because the family court “does not consider financial disclosures from either party.” The argument lacks merit in several respects.
To begin, the factual predicate of the argument is belied by the record where Wife's disclosures are concerned: the trial court stated in its statement of decision that it had reviewed an income and expense declaration from Wife. As to Husband's disclosures, Husband observes that the trial court stated that it had not seen an income and expense declaration from him. It is not clear what conclusion Husband wants us to draw from the trial court's statement. If Husband submitted a declaration and the trial court failed to consider it, he could have, and should have, notified the trial court when it announced in its tentative decision that it had never seen such a declaration. But Husband provides no record citation to show that he submitted an income and expense declaration, or that he called the issue to the attention of the trial court. (Air Couriers, supra, 150 Cal.App.4th at p 928.)
Moreover, Husband's argument is not supported by legal authority. (Allen, supra, 234 Cal.App.4th at p. 52.) Husband's argument that we must set aside the judgment appears to rest on section 2107, subdivision (d), which states that, with some exceptions, “if a court enters a judgment when the parties have failed to comply with all disclosure requirements of this chapter, the court shall set aside the judgment.” But this code section refers to action to be taken by the family court, not the Court of Appeal, as we see from subdivision (e) of section 2107, which sets forth orders the family court can make in response to a motion to set aside the judgment made under this section. There is no indication in Husband's brief or in the record that he ever made such a motion. To the extent Husband contends that Wife failed to comply with the disclosure requirements by filing what he calls “incomplete and erroneous” disclosures, the argument has been forfeited, because Husband did not raise the issue in the family court. (Nassimi, supra, 3 Cal.App.5th at p. 695.)
Finally, Husband does not show in his opening brief how the family court's purported error prejudiced him. (Century Surety Co., supra, 139 Cal.App.4th at p. 963.)
E. Enforcement of the Promissory Note
Husband raises a host of unpersuasive arguments and sub-arguments to support his contention that the family court erred in enforcing a 2015 promissory note in which Husband agreed to repay Wife $200,000 that she had paid to satisfy his student loans. The arguments are conclusory and repetitive, and for the most part lack supporting citations to the record and appropriate citations to legal authority. To the extent the arguments are at least minimally developed and supported, we address them below.
For example, we disregard Husband's two-sentence argument that there is “insufficient evidence of the requisite mutual assent and ascertainable terms, ” his two-sentence argument that the trial court erred in enforcing the promissory note as an accord and satisfaction, and his one sentence argument that “Severance Is Inappropriate.”
1. Additional Factual Background
We summarize the facts and evidence in the light most favorable to the judgment, disregarding purported statements of fact in Husband's brief that are not supported by citations to the record. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787; Air Couriers, supra, 150 Cal.App.4th at p. 928.)
In 2012, Husband and Wife wanted to move to Marin County and buy a house there, but Husband's outstanding student loans made it difficult for them to qualify for a home loan. Wife testified that Husband told her they would have to repay his student loans to qualify for a home loan; Husband said he would repay her for paying off the loans, and she believed him. Husband contends that at the time Wife paid off his loans, he did not intend to repay her. In any event, Wife paid off Husband's student loans with her separate property.
In 2015, Husband and Wife met with an estate planning attorney, Cynthia Trutner, and discussed their assets and obligations, including Husband's 2012 promise to repay Wife $200,000 in connection with his student loans. According to correspondence from Husband to Trutner, Husband and Wife asked Trutner to “prepare a promissory note with the intent to document [Wife's] payment of $200,000 in satisfaction of my student loans in the event of our separation.” Trutner drafted a promissory note concerning the obligation, which Husband signed on March 12, 2015.
Under the terms of the March 2015 note, Husband agreed to pay Wife “the principal sum” of $200,000, with the full amount due and payable upon Wife's death or upon either Husband or Wife filing for separation or divorce. No interest was to accrue absent Husband's failure to make payment when due; in such an event, interest would accrue from the date of default. The note stated that it could be changed only in writing.
On July 16, 2015, Husband sent an email to Trutner, copying Wife. He acknowledged that he and Wife had asked Trutner to prepare a promissory note regarding Wife's payment of $200,000 for his student loans, and stated that he and Wife had agreed that “any provision for payment of interest is contrary to the original oral agreement.” He wrote that in 2012, when Wife used her separate funds to pay the balance of his student loan debt, “[t]here was no discussion of the terms of repayment, nor reference to interest of any kind, ” and that when he and Wife asked Trutner to prepare the promissory note Wife “did not request, nor did we discuss, any interest.” He wrote that he and Wife agreed that the promissory note should be revised to eliminate any interest provision, and that there should be no provision for mandatory repayment in full of the note, except that upon the sale of their home or other jointly owned real estate after separation or divorce, Wife would be entitled to his share of the profit up to $200,000, and if necessary, any remaining balance of the $200,000 would be repayable to Wife without interest and pursuant to a mutually agreeable schedule. He also stated that he and Wife were amenable to discussing recommended payment terms. He asked Trutner to prepare a draft of the revised promissory note for review and execution.
Trutner responded by email on July 21, explaining that she could not represent both of them in connection with an amendment of the note, because once the note had been signed, Husband and Wife technically had separate interests. She recommended they each have their own counsel with regard to any amendment of the note, and offered to provide the names of some local family law attorneys who could assist them.
Wife testified that Husband, who is an attorney, declined to consult a family law attorney. She also testified that in July 2015 she had a consultation with the family law attorney who represented her at trial.
Husband drafted an “Amended Promissory Note, ” which he and Wife signed in August 2015. The August amendment included a number of recitals. The amendment stated that it was “expressly intended to modify the terms of the March 12, 2015 Promissory Note signed by [Husband] providing for the repayment of $200,000 paid by [Wife] to satisfy [Husband's] student loans in/around 2012 (‘Debt').” The March 2015 note was attached as an exhibit, as was the July 2015 email exchange with Trutner described above.
The recitals are “conclusively presumed to be true.” (Evid. Code, § 622.)
The August 2015 amendment stated that although Trutner had advised them to have separate counsel, Husband and Wife believed that separate counsel was not necessary for them to confirm the amendments they laid out in the document, because they “are in complete agreement as to the following terms for the repayment by [Husband] of the Debt”: there would be no payment or accrual of interest, whether during or after marriage; upon the sale of any real estate Husband or Wife may own after separation or divorce, Wife was entitled to Husband's share of the profit up to $200,000, and the terms for repayment of any remaining balance of the $200,000 were to be agreed upon by Husband and Wife.
2. The Family Court's Ruling
The trial court concluded that the promissory note, as amended in August 2015, was valid and enforceable. The court found that “Husband had a separate property debt, Wife paid it, and Husband signed a promissory note in connection with the transaction, ” and that Husband “signed not just one, but two versions of it, the second one of which he drafted.”
The trial court rejected Wife's argument that Husband should pay her $240,000, the amount she actually paid to cover Husband's student loans, rather than $200,000.
Husband makes the unsupported assertion in his appellate brief that one-third of the $200,000 was community debt, reflecting a loan he took out after marriage. In finding that the student loans were Husband's separate property debt, the trial court noted that although Husband asserted after trial that about one-third of his loans were taken out during marriage, he did not provide evidence of that at trial.
The trial court rejected Husband's claims regarding the note: “Husband's argument that the note is promotive of divorce, obtained through fraud, etc., is not persuasive either. Husband cannot induce Wife to pay his student loans, accept the benefit of that payment, and then rescind the deal (unless he tenders back the $200,000).”
The court ordered that Husband's loan obligation would be charged against his half of the equity in the house despite Husband's contention that the obligation (if it were enforced at all) “should be satisfied through monthly payments with terms to be agreed upon by the parties.”
At trial, Husband took the position that the note is void in its entirety as against public policy because it is promotive of divorce. In the alternative, he argued that “the provision regarding satisfaction from equity in [the marital home] upon divorce” is void as promotive of divorce and should be severed and that since the note contains no severability clause, the note is voided in its entirety. As a fallback, Husband argued that the promissory note “should be satisfied through monthly payments with terms to be agreed upon by the parties.” The family court found that the equity in the home was about $1.2 million, and that Wife was entitled to reimbursement for separate property contributions of about $700,000 dollars for the down payment, renovations, and paydown of capital. So there remained about $500,000 in equity to be shared between the parties, or about $250,000 for each of them. After taking into account various amounts owed by the parties to each other, the court determined that the net cash owed by Wife to Husband was about $65,000.
2. Analysis
a. Promissory Note as Promotive of Divorce
Husband's contention that the promissory note is void as promotive of divorce is unpersuasive.
Husband begins by stating that there is “no evidence whatsoever” in the record to support the family court's finding that he induced Wife to pay off the loans. Husband is mistaken. Wife testified that at the time of the marriage, Husband was a law student, and that when Husband graduated from law school, his debt consisted of student loans he took out before the marriage. The family court found that the student loans were Husband's separate property debt. Wife testified at trial that both Husband and Wife wanted to move from San Francisco to Marin, that they agreed she would pay off his student loans so that they could qualify for a home loan, and that Husband agreed to repay her. This is substantial evidence from which the family court could infer that Husband induced Wife to pay off his separate property debt with her separate property.
Husband's argument that the promissory note is void rests on legal authority that as a general matter, an agreement between spouses that promotes divorce is in violation of public policy. (In re Marriage of Dawley (1976) 17 Cal.3d 342, 350, fn. 6.) He argues that we must look at the language of the note to determine whether it promotes divorce, and contends since Wife receives a substantial financial payment only in the event of divorce, the promissory note promotes divorce. But unlike the agreements in the cases he cites, the promissory note here does not create a new payment obligation that Husband will owe only upon divorce. (Compare In re Marriage of Dajani (1988) 204 Cal.App.3d 1387, 1388, fn. 3 [agreement that in the event of divorce, husband will pay $9,000, plus $6,000 in cash or furniture]; In re Marriage of Noghrey (1985) 169 Cal.App.3d 326, 331 [premarital agreement that in the event of divorce wife will receive a house and at least $500,000].) Instead, the agreement here promises the repayment of money Husband already owes to Wife for paying off his student loans with her separate property, and sets forth some of the terms for the repayment of that money. Under the March 2015 version of the note, the sum was payable in full upon divorce or Wife's death, with interest to accrue if payment was not made when due; under the August 2015 amendment, the sum was payable only upon the sale of jointly owned real estate after divorce.
Husband's July 16, 2015 email to Trutner and the recitals in the August 2015 amendment to the promissory note state that the promissory note is intended to reflect an oral repayment agreement that Husband and Wife reached in 2012.
This is not a situation where Wife receives profits or benefits from a divorce: the effect of the repayment term is to ensure that Husband does not profit from a divorce by failing to repay the $200,000 that Wife paid from her separate property to satisfy his student loan debt. Nor is this a situation where the parties entered an “agreement which provides a significant sum either by way of property settlement or alimony at the time of a divorce, and after the lapse of an undue short period of time one of the parties abandons the marriage or otherwise disregards the marriage vows.” (Gross v. Gross (Ohio 1984) 464 N.E.2d 500, 506 [offering an example of terms that “promote or encourage divorce or profiteering by divorce”].) The promissory note here does not provide a property settlement or alimony-it provides for the repayment of a debt. Accordingly, it does not matter if, as Husband contends, Wife first told him she wanted a divorce shortly after the amended promissory note was executed.
As Wife puts it in her brief on appeal, “it made total sense” for the money to be repaid from equity in the home. The repayment of Husband's loans facilitated the purchase of the family home, and as long as Husband and Wife lived there together, “there was no reason for the debt to be repaid.” With divorce, that was no longer the case.
Husband argues that in asking him to agree that repayment of the loan come from his equity in the family home, Wife was engaging in unlawful “collateral bargaining” that is “promotive of divorce, ” and that the inclusion of that clause renders the August 2015 note void. The argument is conclusory and rests on unsupported assertions of fact as well as citations to cases the relevance of which is unexplained. We disregard these arguments.
b. Claim that Wife Breached Her Fiduciary Duty
Husband argues that Wife breached her fiduciary duty to him in negotiating the promissory note and that the note is voidable or, alternatively, he is entitled to remedies under section 1101.
At trial, Husband contended that the promissory note was invalid because Wife breached her fiduciary duty in negotiating both the March 2015 note and the August 2015 amendment. By concluding that the promissory note was valid and enforceable, the trial court impliedly found that there was no such breach. (Fladeboe, supra, 150 Cal.App.4th at p. 59.)
On appeal, Husband contends that Wife breached her fiduciary duty in negotiating the August 2015 amendment by failing to disclose the material fact that she had met with a divorce attorney, “having decided to end the marriage, ” and that by doing so she took “advantage from her acts relating to [his] interests without [his] knowledge or consent.”
Thus, on appeal, Husband does not contend any breach of fiduciary duty in connection with the negotiation of the March 2015 note.
Husband's argument rests on speculation about Wife's motivation and her consultation with an attorney around the time of the August 2015 amendment. But even if there were substantial evidence to support Husband's account, the issue before us is whether there is substantial evidence to support the judgment, not whether the evidence might support a different result. (Schmidt, supra, 44 Cal.App.5th at pp. 581-852.) Husband has forfeited his substantial evidence argument by not fairly discussing the evidence that supports the trial court's implied finding. (Foreman & Clark, supra, 3 Cal.3d at p. 881.) Evidence was presented at trial that Husband drafted the August 2015 amendment; the amendment stated that he was “in complete agreement” with the terms of the amendment, which provided for repayment without interest and from his equity in the home; those same terms were included in his July 16, 2015 email to Trutner (in which he stated that he and Wife had agreed to those terms); Trutner responded to the email with a recommendation that Husband and Wife retain separate counsel; Husband acknowledged that he had been advised to seek separate counsel in connection with the amendment; and Husband had declined to do so.
In sum, Husband has not shown that the family court erred in impliedly finding that Wife had not breached her fiduciary duty. Accordingly, we reject his argument that any such breach voided the August 2015 amendment to the promissory note, and we need not reach his alternative arguments that even if the amendment is not void, he is entitled to statutory remedies.
c. Applying a Presumption of Undue Influence
Husband argues that the March 2015 promissory note and the August 2015 amendment unfairly advantaged Wife, and thus the trial court should have applied a rebuttable presumption of undue influence. He further argues that Wife did not rebut the presumption. But the presumption of undue influence “does not arise... unless one spouse obtains an unfair advantage or obtains property for which no or clearly inadequate consideration has been given.” (In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 717.) Here, Husband has not shown that the promissory note or amendment unfairly advantages Wife, and has not shown a failure of consideration.
We begin by addressing the issue of unfair advantage. There is no dispute that in 2012 Wife used $200,000 of her separate property to pay off Husband's separate property student debt so the couple could get a loan to buy a house. There was testimony, and the trial court impliedly found, that Husband agreed to pay the money back. In 2015 Husband and Wife met with an estate planning attorney to discuss their assets and obligations, including Husband's promise to repay Wife for paying off his loans. In these circumstances we see no unfair advantage to Wife in Husband's agreement to the March 2015 promissory note. All it did was fulfill his debt to Wife by paying her $200,000, with payment due upon Wife's death, or a party filing for separation or divorce, and with no interest to accrue unless and until Husband failed to make payment when due.
Nor do we see any unfair advantage to Wife in the August 2015 amendment to the promissory note, which eliminated the interest provision and provided for repayment of the debt upon sale of the home following divorce from Husband's share in the equity, up to $200,000, with the parties to set a schedule for the repayment of any remainder if that should be necessary. The August 2015 amendment was favorable to Husband. It identified a source for repayment, and, because it eliminated any obligation of Husband to pay interest, it also eliminated the possibility that Husband would ever incur any interest on any balance if the debt could not be repaid from his equity in their home (an eventuality that has not occurred). Husband complains that in promising to repay Wife from his equity in the family home, Husband unfairly pledged his “sole asset of any significance.” We see nothing unfair in this; Husband had incurred a debt, and if it ever needed to be repaid, it would need to be paid someday from some asset.
In arguing that the family court should have presumed undue influence, Husband cites In re Marriage of Lange (2002) 102 Cal.App.4th 360. In that case, the Court of Appeal determined that as a matter of law, wife received an advantage from husband's execution of a promissory note secured by a deed of trust for her separate property contributions to acquire and improve the parties' residence. (Id. at pp. 361, 364.) Wife claimed that the promissory note was a substitute for her statutory right of reimbursement for those contributions under section 2640. (Id. at pp. 363-364.) But the result of the transaction was that wife “became a secured creditor additionally entitled to 10 percent interest on [husband's] obligation.” (Id. at p. 364.) Thus, one result of the transaction was that wife would receive interest on her separate property contributions to the home; by the time of trial the interest alone amounted to $625,000 to which she was not otherwise entitled. (Ibid.) This appeal is nothing like Lange. Here, to the extent the August 2015 amendment provides security for Husband's debt, the security is not for Wife's separate property contributions to the family residence; instead, it is security for Wife's separate property contributions to pay off Husband's separate property student loan debt. The only result of the transaction here is that Husband identifies a source from which he can repay at least part of the debt he owes to Wife for her satisfying his student loans. And of course there is no interest.
We turn now to the issue of consideration. It appears that Husband contended at trial that the March 2015 promissory note was invalid as a result of “[n]o/inadequate consideration, ” although it is not clear from the record on what that contention was based. On appeal, Husband acknowledges that as a written instrument the promissory note itself is presumptive evidence of consideration (Civ. Code, § 1614), but claims that the trial court “admitted evidence sufficient to call into question the validity of consideration, ” thus giving Wife the burden of proving consideration. We disregard this argument because Husband does not to explain what evidence was admitted that was sufficient to call the validity of consideration into question.
Husband also contends that the March 2015 note “cannot constitute adequate consideration for the August 2015” amendment, that there was “no expectation of payment in 2012, ” and that “past consideration absent a prior legal obligation does not constitute consideration, ” and that “past consideration cannot support a promise in excess of the alleged existing duty.” These arguments are so conclusory as to be forfeited. They lack supporting citations to the record. They also appear to be contrary to the record: Husband is simply wrong that “there is no evidence of a promise to pay in 2012.” The arguments also lack discussion of how the cases on which Husband purports to rely might apply to the facts before us. (Allen, supra, 234 Cal.App.4th at p. 52.)
In sum, Husband has not shown that the trial court erred in failing to apply a presumption of undue influence.
d. Evidence of Undue Influence
Husband contends that even if the presumption of undue influence does not apply, there is “evidence of actual undue influence, duress, fraud and/or other breach of fiduciary duty sufficient to reverse the trial court's decision to enforce” the promissory note. The argument is unpersuasive.
We previously discussed Husband's contentions that Wife breached her fiduciary duty, and do not discuss them further.
In the trial court, Husband argued that his consent to the March 2015 note was obtained by fraud or undue influence connected with a “promise of tuition.” Husband contends on appeal that in early 2015, Wife told him her parents had offered to pay for private school tuition for the couple's children, but “would feel more comfortable making such a significant financial commitment” if Husband signed a promissory note for repayment of the student loans. Husband claims Wife told him that the only purpose of the note was to satisfy her parents. But Husband cites no evidence to support this contention. And he ignores the trial testimony pertinent to the issue, including testimony by Wife's parents that they had made no agreement to pay for ongoing private school tuition for the children. Further, Wife testified that her parents never agreed to pay for the children's tuition, though they wanted to help pay some of the children's educational expenses, and that Husband never said he would repay the loans only if her parents agreed to pay for private school tuition.
In the trial court, Husband also argued that the August 2015 amendment was “[o]btained through fraud and under duress, ” describing the situation as follows: “Promise of tuition rescinded, [Wife] threating divorce, [Husband] desperate to save both marriage and get out from under” the harsh terms of the March 2015 note. On appeal Husband contends that on May 11, 2015 and again July 16, 2015, Wife's parents rescinded their offer of tuition. Husband also contends that at that time, Wife told Husband she would not cancel the promissory note, but she would amend it. The only supporting evidence that he cites is an email from Wife's mother sent on July 16, 2015 at about 4:20 p.m., stating, “I understand... that our attempt to financially help with [the children's] education has caused friction between you and [Wife] and it would be better for you to deal with this issue by yourselves.... It's best that you and [Wife] solve these financial problems without us.” Husband does not explain how his contentions and purported evidence square with his claim that Wife first threatened divorce after the August 2015 amendment was signed, or with the July 16, 2015 email he sent to Trutner, shortly before 3 p.m., in which he set out in detail the amended terms to which he and Wife had agreed.
The trial court rejected Husband's contentions and enforced the promissory note, impliedly finding that there was no undue influence, fraud or duress. If Husband contends that was error, he must show that the trial court's finding is not supported by substantial evidence. But he does not even attempt to do that here. Instead, he raises unsupported allegations in an effort to convince us that there was evidence before the trial court that might have supported different findings. And although Husband cites a number of cases as authority, he does not explain how any of them apply to the facts of the record in this case. Accordingly, his arguments on this issue are forfeited. (Foreman & Clark, supra, 3 Cal.3d at p. 881; Schmidt, supra, 44 Cal.App.5th at pp. 581-582.)
e. The August 2015 Amendment as an Agreement to Negotiate
Even though the August 2015 amendment states that it is itself a promissory note and that it is an amendment of the March 2015 promissory note, Husband argues that the August 2015 amendment is a new agreement to negotiate that was “intended to cancel, rescind and/or replace” the March 2015 note. We deem this argument forfeited because there is no indication that Husband raised this argument below (Nassimi, supra, 3 Cal.App.5th at p. 695), and because Husband does not discuss the relevance of the cases he cites as legal authority. (Allen, supra, 234 Cal.App.4th at p. 52.)
Further, as we understand the argument, it is meritless. Husband contends that “essential elements” of his promise to repay his debt to Wife were reserved for future agreement, and thus no legal obligation could arise under the promissory note as amended. But the August 2015 amendment is far more than an agreement to negotiate. The amendment states that Husband and Wife were “in complete agreement” that repayment of the note was to occur only upon separation or divorce. The only potential issue to be resolved between the parties is one that did not arise: the amendment provided that any terms of repayment not addressed in the amendment itself were to be agreed upon by the parties “if necessary.” The necessity would arise only if Husband's share of the equity in the home was less than $200,000, and that turned out not to be the case.
f. Failure to Enforce Express Terms of the Note
Husband argues that the trial court erred in failing to give force and effect to the August 2015 amendment as it was written, specifically in disregarding the provision that “[u]pon the sale of the Parties' home... following separation or divorce, [Wife] will be entitled to [Husband's] share in the profit derived from the sale of the home up to $200,000 once all fees, costs, loans and related expenses associated with the sale of the home have been paid in full” and in disregarding the provision that repayment terms not addressed in the promissory note “are to be mutually agreed upon by the Parties if necessary upon the final division of assets following divorce.” (Italics added.) Husband's failure to explain the relevance of the contract interpretation cases that he cites as authority to the facts of this case results in forfeiture of the claim of error. (Allen, supra, 234 Cal.App.4th at p. 52.) But even if the trial court had erred in determining that Husband's loan obligation would be charged against his half of the equity in the family home without requiring sale of the home, or in disregarding the provision that alternative terms of repayment be agreed upon by the parties, we would not reverse, because Husband has not shown that he was in any way prejudiced by any error. (Century Surety Co., supra, 139 Cal.App.4th at p. 963.)
g. Promissory Note as an Invalid Transmutation
A “transmutation” is a transaction or agreement between spouses that changes the character of property from community property to separate property. (In re Marriage of Rossin (2009) 172 Cal.App.4th 725, 734.) In the trial court, Husband took the position that the March 2015 promissory note (but not, apparently, the August 2015 amendment) was a transmutation of $200,000 of his community interest in the family home into Wife's separate property. The thrust of his argument appeared to be that the transmutation provided Wife with an advantage at Husband's economic expense, and therefore gave rise to a presumption of undue influence.
On appeal, Husband makes a different argument: he claims that the promissory note was an invalid transmutation because it was not “made in writing by an express declaration that is made, joined in, or accepted by the spouse whose interest in the property is adversely affected.” (§ 852, subd. (a).) From this, we are apparently to conclude that the promissory note is invalid. This argument is forfeited, because Husband provides no indication that it was made at trial. (Nassimi, supra, 3 Cal.App.5th at p. 695.)
In any event, the argument is not persuasive. To begin, Husband does not explain how the March 2015 promissory note, or the August 2015 amendment constitute transmutations. The March 2015 promissory note says nothing about the family home: it simply provides that Husband will repay $200,000 upon Wife's death or upon either party filing for separation or divorce. The August 2015 amendment does not change the character of any interest Husband has in the home. Husband and Wife hold the home as community property, and nothing in the August 2015 amendment changes that. Separately, Husband has a separate debt to Wife of $200,000. The August 2015 amendment identifies Husband's share of the equity in the family home as a source for the repayment of Husband's debt upon divorce or separation.
Even if the August 2015 amendment were a transmutation of property, Husband's argument would not succeed because Husband simply asserts, rather than demonstrating, that the amendment fails to comply with section 852, subdivision (a). This is not adequate appellate argument. (Allen, supra, 234 Cal.App.4th at p. 52.)
F. Evidentiary Issues
Husband contends that the trial court erred in denying his motion to compel responses to deposition questions he posed to Wife's parents and in excluding from evidence a declaration from Rick Scott, a therapist.
Husband omits to say in his appellate briefs that the therapist retracted his declaration three days after signing it.
Husband's arguments are largely devoid of citations to the record, including citations that might provide the context in which the trial court's purported errors were made. Further, the arguments include no citations to relevant legal authority. Accordingly, we deem the arguments forfeited. (Allen, supra, 234 Cal.App.4th at p. 52; Duarte, supra, 72 Cal.App.4th at p. 856.) We disregard Husband's apparent attempt to incorporate into his brief an argument and supporting papers submitted to the trial court regarding the motion to compel. (Soukup, supra, 39 Cal.4th at p. 294, fn. 20.)
Further, although Husband claims that the evidence he sought in deposition and the contents of the declaration were relevant because they “support[ed] defenses to the enforceability of the promissory note, ” and that the exclusion of the evidence prejudiced him by depriving him of a fair trial, those claims are not persuasive. Wife's parents testified at the trial as witnesses for Wife, so it is difficult to see how Husband could have been prejudiced by the failure to compel responses to questions he sought to ask them at their depositions. Husband does not explain why he did not call them as witnesses, or pose his deposition questions, at trial. Further, it is not clear how the Scott declaration could have been admissible as evidence. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1354 [“declarations constitute hearsay and are inadmissible at trial, subject to specific statutory exceptions, unless the parties stipulate to the admission of the declarations or fail to enter a hearsay objection”].) In any event, we see nothing in the declaration that constitutes evidence that Husband was induced by fraud to sign the promissory note.
G. Husband's Entitlement to “Epstein Credits”
Husband argues that the family court erred in denying his request for $10,136 as reimbursement of separate property he used to satisfy the obligations of the community estate after he and Wife had separated. For this argument he relies on In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85, in which our Supreme Court held that such reimbursement is appropriate, absent certain circumstances. To receive reimbursement under Epstein, “the requesting spouse must demonstrate that separate property funds were in fact used to make the payments.” (Hogoboom et al., Cal. Practice Guide: Family Law (The Rutter Group 2021) ¶ 8:843.1, citing In re Marriage of Margulis (2011) 198 Cal.App.4th 1252, 1280-1281.)
Both Husband and Wife had requested reimbursement under Epstein, and the family court concluded that reimbursement was inappropriate for both of them. As reflected in the statement of decision, the family court found that “[n]either party made any efforts to reconcile these funds [i.e., the parties' separate and community property funds] with the parties' ongoing monthly living expenses.” In other words, neither party had demonstrated that the payments for which they sought reimbursement were made from separate property funds. That finding led the family court to infer that community funds, as opposed to separate property funds, were spent for the support of the family, and that therefore both parties' requests for reimbursement should be denied.
Among the community funds not accounted for were a bonus check that Husband received shortly after separation, tax refunds received before and shortly after separation, and salary shortly after separation that was attributable to a pre-separation period.
Although Husband claims that the family court erred in denying him reimbursement, he does not provide adequate citations to evidence in the record that would support his claim of error. For example, Husband claims the trial court erred in finding that he had not demonstrated that he used separate property funds to make the payments for which he sought reimbursement, but Husband cites no evidence to refute the finding. Accordingly, we regard Husband's claim of error as forfeited. (Duarte, supra, 72 Cal.App.4th at p. 856.)
H. Assignment to Husband of Community Credit Card Debt
Husband contends that the trial court erred in failing to equally divide community credit card debt. His argument on this point is devoid of citations to the record: Husband does not refer us to the relevant portion of the trial court judgment or statement of decision; he does not provide citations to any evidence concerning the “USAA, ” “Chase, ” and “Bank of America” balances that he discusses; and he does not provide citations to support his contentions about the nature of the debt as community debt or separate debt, though he concedes that at least some of those contentions are disputed. In the absence of citations to the record, we pass over this argument without further discussion. (Air Couriers, supra, 150 Cal.App.4th at p. 928; Duarte, supra, 72 Cal.App.4th at p. 856.)
I. Findings on the Issue of Tax Returns
The statement of decision addressed the issue of Husband's and Wife's 2015 income taxes as follows:
“The parties filed separately for 2015. They both filed incorrectly. Each should have reported half of the total income and been entitled to half of the total withholdings from community income. Instead, Husband received all of it. [¶] Wife asks the court to order Husband to pay Wife $10,541, as calculated on [expert's] Ex. 6. Husband proffered evidence (Ex. T) of his receipt of the tax refunds on February 18, 2016 ($13,204 - federal) and on March 31, 2016 ($7,141 - state), for a total of $20,345, half of which is $10,172.50. Husband's number is more accurate, but the difference is slight. [¶] Husband claims that he deposited the refund money in a community bank account... to which Wife had full access and wrote most of the checks [Ex. R]). [¶] It appears that the refund money was spent by the parties jointly for community purposes, so that Husband should not be surcharged for its receipt.”
We understand this to mean that Husband received credit for all the withholdings on the total income.
Husband's argument concerning the tax returns issue is confusing. In his opening brief, under the heading, “The trial court erred in failing to make necessary findings on the issue of tax returns, ” Husband claims that the trial court made erroneous findings that he had incorrectly filed his 2015 tax returns and that he received a state refund on March 31, 2016, and that the trial court “failed to address or make findings as to my requests for relief required due to [Wife's] failure to report her share of the community income on her 2015 tax returns.” He claims that the court's error results in an additional outstanding tax burden of $20,221 to him, which he and Wife should have shared equally. In the alternative, he argues that at the very least he is entitled to half of the $7,680 in tax refund money that Wife obtained after the parties separated.
Husband does not tell us when he received the refund; he tells us only that the refund check is dated March 18, 2016.
Husband's reply brief addresses the issue under a different heading: “The trial court erred in failing to divide community income tax liability from 2015.” The reply brief, contrary to the opening brief, states that the trial court “made the necessary factual findings (however inaccurate--see Opening Brief), ” but “simply failed to order the necessary remedy or divide the outstanding debt.” The reply brief also states that the additional tax burden to be divided is not $20,221 (the figure provided in the opening brief-purportedly drawn from expert reports), but is instead $15,133.
We rely on the opening brief and conclude that Husband has forfeited his arguments by not providing citations to the record to support his claims. (Air Couriers, supra, 150 Cal.App.4th at p. 928; Duarte, supra, 72 Cal.App.4th at p. 856.) Among Husband's unsupported statements are his claim that “it is undisputed that I filed correctly and reported all required income, ” his claim that evidence was produced showing that he used tax refund money to pay off community credit card debt immediately after he received the funds, and his claim that the parties' tax experts reported that the parties' additional tax liability due to unreported income “amounts to approximately $20,221.”
Husband provides some additional citations to the record in his reply brief. Those citations are untimely, as is his attachment to the reply brief of the “relevant pages” of an Internal Revenue Service publication.
J. Status of Wife's Schwab Account
As stated above, the trial court determined that under section 2640 Wife was entitled to reimbursement of $695,953 for her separate property contribution to the acquisition of the family home. The court found that Wife's separate property included a Schwab account ending in 3129 that she had from before the marriage, and that deposits totaling about $1.5 million were made to the account during the marriage. The court found that the deposits (from trust distributions, gifts from Wife's parents, or the proceeds of the sale of her condominium) were Wife's separate property; the Schwab account itself was Wife's separate property; and there was no commingling of separate and community property.
On appeal, Husband contends that the trial court erred in failing to make a finding as to whether funds in Wife's Schwab account “were transmuted into community funds by her execution of the March 12, 2015 trust, and if so whether [Wife] satisfied her burden in tracing” her claims for reimbursement under section 2640. Husband does not show any error.
First, Husband's argument is so abbreviated that it is unintelligible. Further, Husband provides no citations to the record to suggest that any evidence or argument concerning the transmutation of the Schwab account was presented at trial. Notably, neither Husband's trial brief nor his issues and position statement refers to any Schwab account or to any purported transmutation of the account, although several financial institutions are named in the issues and position statement. Similarly, the settled statement includes no references to testimony or evidence concerning the March 2015 trust, and there is no indication that Husband cross-examined Denis Carrade, Wife's retained expert certified public accountant, about the trust.
Husband attempts to support his argument on appeal with a citation to pages of a trust document in appellant's appendix that he has labeled “Trial Exhibit: Will of Rockford M. Hearn and Rockford and Jennie Hearn Trust.” The status of the document is unclear. The family court's trial exhibit list includes an entry for Husband's exhibit X, labeled “Will of Rockford M. Hearn.” But even assuming that exhibit X included the trust document, the exhibit list shows that exhibit X was not admitted into evidence. Accordingly, we disregard citations to the trust document.
Husband also cites a document that appears to be a page of a March 2015 statement for the Schwab account. This document is included in appellant's appendix as an attachment to Husband's objections to the family court's tentative statement of decision, but there is no indication that the document was ever admitted into evidence. To the contrary, it appears that in his objections, Husband was raising a new issue by claiming that the Schwab account included community funds.
The family court's statement of decision notes that Husband's objections include arguments that Husband did not make at trial.
Our review of the record, undertaken despite Husband's failure to provide adequate citations, reveals that Husband attempted to introduce new evidence and make arguments about the effect of the trust on the Schwab account in his objections to the statement of decision and his motion for new trial. Husband cites no authority to support his implied contention that such attempts could preserve the issue for appeal.
We conclude the issue has been forfeited. (Nassimi, supra, 3 Cal.App.5th at p. 695; Allen, supra, 234 Cal.App.4th at p. 52; Duarte, supra, 72 Cal.App.4th at p. 856.)
K. Reimbursements for Childcare Expenses
1. Additional Background
About two months before trial, Husband filed a motion concerning the reimbursement of expenses for work-related childcare. Two weeks later, Wife filed what the trial court characterized as an “apparently retaliatory” motion raising the same issue. The motions were continued to the time of trial.
In his motion, Husband requested reimbursement for past due childcare costs in the amount of $2,413.37. The family court found that Husband's supporting calculation was “virtually impossible to analyze, ” and that Wife's opposing calculation was “not much better, ” and concluded that since Wife “never quantified her position, despite voluminous pleadings on the subject, ” Husband's claim was uncontradicted. Accordingly, the court ordered Wife to pay Husband $2,413.37. Husband does not challenge this portion of the trial court judgment.
In opposing Husband's motion, Wife provided a declaration stating that Husband had sought to charge her for child expenses that had nothing to do with his work. In her own motion Wife requested, among other things, limits on the amount payable for childcare, and stated in her supporting declaration that she had informed Husband about “childcare close to our home which is very reasonably priced.”
The trial court observed that “[t]he parties' apparent appetite for unnecessary conflict is fed by their behavior regarding child care.” In an attempt to limit future conflict, the family court ruled that going forward, Husband was allowed a maximum of 21 hours per week of day care, and Wife was allowed a maximum of 10 hours. And the court “agree[d] with Wife's suggestion that each party's childcare expenses should be limited to the sum charged by a reputable daycare facility in Marin County, defined as the hourly rate charged by Marin Country Day School for after school care.”
2. Husband's Arguments on Appeal
Husband argues that the trial court erred in limiting childcare to the amount charged by Marin Country Day School. His position is without merit.
To begin, Husband claims that the court's findings “constitute reversible error because they are ambiguous and inconsistent, and do not provide or constitute a sufficient legal and factual bases [sic] for the court's decision.” The argument is forfeited because Husband does not accurately describe the trial court's ruling, and he does not acknowledge or provide citations to the motions and declarations on which the trial court relied in reaching its decision. (Duarte, supra, 72 Cal.App.4th at p. 856.)
Husband also claims that the trial court “limit[ed] childcare reimbursement to a rate that was neither possible nor available.” This claim cannot succeed because Husband provides no citations to the record to support his contention, nor any citations to show that he raised the issue in the trial court. (Duarte, supra, 72 Cal.App.4th at p. 856; Nassimi, supra, 3 Cal.App.5th at p. 695.)
Husband cites no legal authority to support his claim that the trial court was required to order payment of the actual costs he incurred and lacked authority to limit reimbursement. Husband is correct that the court must order as additional child support “[c]hild care costs related to employment, ” (§ 4062, subd. (a)(1)), but the other statutory provision on which Husband relies (§ 4063) concerns reimbursement for “reasonable uninsured health care costs for the children” as referenced in section 4062, subdivision (a)(2), not childcare costs, and in any event establishes only a “rebuttable presumption” that the costs actually paid for such health care is reasonable. (§ 4063, subds. (a), (d).) And the opinion on which he relies, In re Marriage of Gigliotti (1995) 33 Cal.App.4th 518, explicitly declined to resolve the unraised issue of whether the trial court could fashion a reasonable child care expense that “does not correlate to the actual expense borne by the parent.” (Id. at p. 525, fn. 2; see Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1607 [“cases are not authority for issues not raised or decided”].)
Husband also contends that the trial court failed to make the factual findings that are required when the court “deviate[s] from the state's child support guidelines.” This argument is forfeited because Husband does not show that the court did in fact deviate from those guidelines.
Finally, Husband complains that the trial court failed to address issues related to childcare reimbursements that he raised in his objection to the proposed statement of decision. We disregard this argument, which is unsupported by any authority holding that the trial court was required to address those objections and issues, or by any showing of prejudice. (Allen, supra, 234 Cal.App.4th at p. 52; Century Surety Co., supra, 139 Cal.App.4th at p. 963.)
In his brief, Husband describes just one of those issues: his request for an order that Wife comply with a specific procedure for reimbursement. Such an order had already been issued, and the judgment stated that it was to remain in effect. In these circumstances, we do not understand how Husband could have been prejudiced by the family court's purported failure to address his request.
L. Denial of New Trial Motion
Husband contends that the trial court erred in denying his motion for new trial. He has forfeited this issue by not supporting the assertions that underlie it with any citations to the record. (Duarte, supra, 72 Cal.App.4th at p. 856; Air Couriers, supra, 150 Cal.App.4th at p. 928.) For example, Husband's argument includes no citations to his motion for new trial. And although one of Husband's arguments on appeal is that “[a] new trial is required to determine the omissions, ambiguities, and errors identified in the statement of decision, as they constitute unresolved material issues, findings for which would have the effect of countervailing or destroying the effect of other findings, ” he does not provide any citations to those purported omissions, ambiguities and errors. Nor does he provide any citations to the record to support his claim of “new evidence regarding [Wife's] company Preserve Skincare, LLC.”
M. Refusal to Correct Errors in the Judgment
Husband's new trial motion included a motion to correct errors in the judgment under Code of Civil Procedure section 473, subdivision (d). As we noted above, the court denied the motion, but amended the judgment to assign Bank of America credit card debt to Husband. According to the trial court, the assignment of the debt to Husband had been announced in the court's tentative statement of decision but “didn't make it into the judgment.”
Husband complains that the trial court “abused its discretion in denying [his] request to correct errors, many of which were shown through undisputed evidence and easily remedied (e.g., date of Audi A6 loss, balance of home mortgage, balance of CitiBank loan, reconciliation of post separation community costs for reimbursement, etc.).” The argument cannot succeed because Husband's opening brief provides no citations to supporting evidence in the record: he cites neither the specific requests that he made, nor the evidence that supposedly supports them. (Air Couriers, supra, 150 Cal.App.4th at p. 928; Duarte, supra, 72 Cal.App.4th at p. 856.)
DISPOSITION
The judgment is affirmed. Wife shall recover her costs on appeal.
WE CONCUR: Kline, P.J., Stewart, J.