Opinion
A115669
4-19-2007
In re the Marriage of RACHELLE A. and RICHARD R. BLAKE. RACHELLE A. BLAKE, Respondent, v. RICHARD R. BLAKE, Appellant.
NOT TO BE PUBLISHED
Richard R. Blake, appearing in propria persona, filed this appeal from the judgment in a marital dissolution proceeding initiated by his former wife, Rachelle A. Blake. Rachelle filed a motion to dismiss this appeal, which we denied, but she has not filed a respondents brief. We affirm.
As is customary in marital dissolution appeals, we refer to the parties by their first names for the sake of convenience and clarity only, and intend no disrespect. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
Facts and procedural background
At the outset, we note that our review of the issues presented by this appeal has been materially hampered by Richards failure to designate an adequate record, and to provide a coherent, properly supported statement of facts in his opening brief. Richards status as a pro se litigant does not excuse him from the duty to comply with these requirements. As our Supreme Court has instructed, an appellant in propria persona is held to the same standard of conduct as that of an attorney on appeal. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) "When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation]." (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639, fn. omitted, disapproved on other grounds by Dumas v. Stocker (1989) 213 Cal.App.3d 1262, 1268, fn. 13; see also Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284-1285.)
For example, the clerks transcript does not contain copies of the petition for dissolution, the register of actions, or the child custody order that is referred to in the judgment as having been filed on April 3, 2006. It also does not include the trial brief filed by Rachelles counsel on her behalf.
The California Rules of Court require that every factual and procedural statement in an appellate brief must be supported by a citation to the appellate record. (Cal. Rules of court, rule 8.204(a)(1)(C) [formerly rule 14(a)(1)(c)].) "It is the duty of [the appellant] to refer the reviewing court to the portion of the record which supports appellants contentions on appeal. [Citation.]" (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; see also Arbaugh v. Procter & Gamble Mfg. Co. (1978) 80 Cal.App.3d 500, 503, fn. 1 [failure to comply with California Rules of Court requiring summary of material facts supported by appropriate reference to the record may constitute waiver of error].) The obvious purpose of this rule is to enable the justices and court staff to locate the relevant portions of the record expeditiously. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) "It is not the task of the reviewing court to search the record for evidence that supports the partys statement; it is for the party to cite the court to those references. Upon the partys failure to do so, the appellate court need not consider or may disregard the matter. [Citations.]" (Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826, fn. 1; see also Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1140-1141; Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1; Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003-1004.)
In the present case, Richards citations to the record consist primarily, if not exclusively, of quotations from the trial transcript recording colloquies involving himself, the trial judge, and Rachelles counsel. Accordingly, in summarizing the facts in this opinion, we have disregarded all statements of fact in Richards brief that are not supported by specific references to the record. Instead, we have gleaned the relevant facts, to the extent it is possible to do so, directly from the scanty record with which we have been provided.
The exact date of the parties marriage does not appear in our record, but it apparently occurred in 1987. The parties two daughters were born in May 1991 and June 1993. The record indicates that the parties separated on or about January 1, 2005, but it does not reveal the date on which Rachelle filed the petition for dissolution.
On October 14, 2005, Rachelle obtained a restraining order against Richard, effective through October 14, 2007. The order precludes Richard from harassing Rachelle, or from contacting her directly or indirectly "[e]xcept for brief and peaceful contact as required for court-ordered visitation of children . . . ." An attached child custody and visitation order awarded legal and physical custody of both children to Rachelle "pending mediation." Richards contact with the children was limited to telephone calls "pending the hearing." Richard was given the right to call the children each Friday evening, and the children were permitted to call him whenever they wished. Rachelle was ordered to encourage the children to speak to Richard. Our record does not reflect when or whether any mediation took place, or what specific changes in custody and visitation, if any, ensued.
On May 24, 2006, Richard filed a document entitled "motion to acknowledge child support paid in advance," which was set for hearing on June 27. The motion was supported by Richards unsworn statement explaining that the parties had sold their marital home and divided the proceeds equally, and that Rachelle had asked him to pay $100,000 from his portion towards the childrens future education. Richard contended that he had agreed to do so only on condition that the $100,000 would be considered an advance against child support, and that Rachelle would not collect any further child support unless and until the total amount of child support ordered by the court exceeded $100,000. Richard stated that he and Rachelle had "entered into a verbal contract under the[se] conditions," and that it was with this intent that he had given Rachelle the $100,000 that had been used to open the section 529 accounts, to which both parties are signatories. Richard also contended that he had paid additional advance child support to Rachelle in the form of a check for $278.20 which Richard had mailed to Rachelles counsel on January 26.
All further references to dates are to the year 2006 unless otherwise noted.
Rachelle confirmed in her trial testimony that she received half of the $539,000 proceeds from the sale of the house, which was not encumbered by a mortgage. Rachelle testified that of the other half, $100,000 was put into two accounts (one for each of the parties children) set up under Internal Revenue Code section 529 (the section 529 accounts), and the remainder went to Richard.
In her trial testimony, Rachelle flatly denied having waived future child support in exchange for Richards commitment to put $100,000 from his share of the house sale into the section 529 accounts.
Richard attached to the motion unauthenticated copies of various documents evidencing the sale of the parties marital home, the division of the proceeds, and the establishment of the section 529 accounts at the time of the sale of the home in May 2005. He also provided declarations from his parents and his two adult daughters (who are not the issue of his marriage to Rachelle) confirming that Richard had told them that Rachelle had agreed not to ask for further child support if he put $ 100,000 from his share of the sale of the home into a college fund for the parties two daughters. Richards adult daughters also reported in their declarations that Richard had told them that Rachelle declined to put in writing her agreement to waive further child support.
On June 21, Richard filed a trial brief requesting joint legal and physical custody of the couples daughters; an order acknowledging that the $100,000 in the section 529 accounts was advance child support, as asserted in his pending motion; and an award of spousal support from Rachelle, based on the disparity of their incomes, to be credited against child support if ordered, with any excess placed into a court-supervised account for the benefit of Richards offspring (including his adult children and his grandchildren).
On June 27, the trial court held a trial on the petition. On August 21, the trial court filed the judgment from which this appeal was taken. Reflecting the courts oral ruling at the conclusion of the trial, the judgment dissolved the marriage as of June 27; declared that the community property had been previously divided; confirmed the distribution to each party of the items received in that division; continued in effect the existing order regarding child custody and visitation ; provided for the childrens medical insurance and uninsured medical expenses; declined to award spousal support to either party; ordered Richard to comply with Family Code section 4505 with regard to seeking employment effective November 1; and reserved jurisdiction over spousal support, child support, and all other issues.
Richards objections to Rachelles counsels proposed form of judgment appear in the clerks transcript, albeit without a file stamp or proof of service.
As already noted, this order, which the judgment indicates was filed on April 3, is not attached to the judgment, and was not included in the record designated by Richard for this appeal.
An attachment to the judgment confirmed the trial courts oral ruling at the conclusion of trial that the section 529 accounts were "not found to be an advance against child support" and were "specifically found to be for the benefit of the children," and that the trial court would "reserve jurisdiction to resolve any dispute that should occur in the future between the parties over the distribution of those accounts, which do at this point require the signature of both parties."
Richard filed a timely notice of appeal from the judgment on October 17.
Discussion
Unfortunately, Richards discussion of the legal issues raised by this appeal also suffers from a lack of familiarity with the applicable rules and standards. On any appeal, "it is the appellants responsibility to affirmatively demonstrate error and, therefore, to point out the triable issues the appellant claims are present by citation to the record and any supporting authority. In other words, review is limited to issues which have been adequately raised and briefed. [Citations.]" (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116, disapproved on another ground as recognized in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 41-42.)
Accordingly, we would be justified in limiting our review to issues in Richards brief that are properly raised and supported by citations to the appellate record and to relevant legal authority. (See, e.g., Trinkle v. California State Lottery (2003) 105 Cal.App.4th 1401, 1413 ["[U]nless a partys brief contains a legal argument with citation of authorities on the point made, the court may treat it as waived and pass on it without consideration. [Citations.]"]; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 ["If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived."].) None of the issues Richard raises are discussed in his brief in accordance with these criteria.
In the exercise of our discretion, however, we will briefly and informally address those of his arguments that appear to merit a response.
Richard complains first that the trial judge erred in stating during the trial that Richards motion regarding the section 529 accounts had not been filed. Richard does not show how this error prejudiced him, however. Our state Constitution provides that "No judgment shall be set aside . . . for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) In keeping with these constitutional and statutory mandates, appellate courts will not reverse on the basis of a procedural error unless the appellant affirmatively demonstrates that the error was prejudicial. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.)
Here, notwithstanding the trial judges comment about Richards motion not having been filed, he did in fact consider Richards arguments and evidence regarding the source and intended disposition of the funds in this account, and ruled on the merits of Richards motion—albeit not in his favor. Thus, Richard was not prejudiced by the trial judges apparent misconception, if such it was, that Richards motion had not been officially filed.
On the merits, obviously, the trial judge simply chose to believe Rachelle when she testified that she had not, in fact, agreed to waive future child support in exchange for Richards agreement to fund the section 529 accounts. We are not at liberty to disturb this credibility determination on appeal. (See, e.g., Stafford v. Mach (1998) 64 Cal.App.4th 1174, 1182.) In any event, even if Rachelle had waived child support, such an agreement would not have been binding on the trial court. (See In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410, 1426-1428.)
Although Richard disputes Rachelles testimony on this point, he has never denied that he did in fact agree to fund the section 529 accounts with part of the proceeds he received from the sale of the marital home. Given this acknowledged fact, it is not legally relevant whether or not the home was community property. For this same reason, it is also irrelevant whether or not Washington, where the home was located, is a community property state.
Richard also argues that the trial court unconstitutionally took private property by its "assumption of jurisdiction" over the section 529 accounts. Richard appears to misunderstand the effect of the trial courts order. The trial court did not take away the parties right to control the funds in the section 529 accounts. If the parties agree on a particular disposition of the funds in the future, the court need not be involved. All the courts order does is to provide a mechanism by which the parties may return to the family court to resolve any disagreements about the section 529 accounts, if and when they occur. This is simply an exercise of continuing jurisdiction over the resolution of disputes between the parties relating to property essentially held in trust for the children, under the control of both parties. It is not a "taking" for constitutional purposes.
Richard asserts that the trial court erred in including a provision in the judgment precluding him from removing the children from the State of California without Rachelles prior written permission, because that provision was not discussed at trial. However, neither the prior custody order nor Rachelles trial brief are in the record. Without reviewing those documents, we have no way of ascertaining whether or not Richard was given notice that such a provision would be requested at trial. If notice was given, and Richard objected, it was his burden to raise the issue at trial. As already noted, it is Richards burden to provide us with a record adequate to demonstrate error. On this point, he has not done so.
Richard also complains that the trial court erred in entering a final judgment while leaving custody, visitation, and spousal and child support in dispute. Because of the nature of marital dissolution proceedings, however, it is common for trial judges to enter judgments of dissolution while leaving other issues unresolved. (See 11 Witkin, Summary of Cal. Law (10th ed. 2005) Husband and Wife, §§ 104-106, pp. 158-161.) Custody, visitation, and support issues are almost always subject to modification based on changed circumstances. (10 Witkin, supra, Parent and Child, §§ 249-251, pp. 337-340 [custody award]); 11 Witkin, supra, Husband and Wife, § 273, pp. 354-356 [child or family support order]; id., §§ 356-358, pp. 460-464 [spousal support].) As the trial judge explained to Richard during the trial, "nothing is final with regard to the kids."
Moreover, once again, Richard fails to explain how the asserted error has prejudiced him. If anything, the reservation of jurisdiction over custody and visitation works to Richards advantage. Nothing in the trial courts judgment, or in this opinion, precludes Richard from moving to modify the existing custody order, particularly as to visitation, if and when he can establish sufficient legal grounds to do so. (See generally In re Marriage of Brown & Yana (2006) 37 Cal.4th 947 [discussing showing necessary to obtain hearing on motion to modify custody due to changed circumstances].)
With respect to custody and visitation, Richard complains of the trial courts asserted refusal to allow him to introduce "evidence" that Rachelle had induced parental alienation syndrome in the children. Such evidence, however, would require the presentation of qualified expert testimony. (See generally, e.g., In re Marriage of De Bates (2004) 212 Ill.2d 489, 518-521 [noting existence of dispute within scientific and legal community regarding validity of parental alienation syndrome].) Richard does not contend that he had a properly qualified expert available to testify at trial. His only "evidence" on the subject consisted of a reference to a law journal article in his trial brief, and questions at trial directed to Rachelle, who disclaimed any knowledge of the subject other than what she had gleaned from Richards trial brief.
Finally, Richard complains of the trial judges failure to recuse himself due to his friendly relationship with Rachelles trial counsel, and of the judges failure to control that counsels assertedly unprofessional behavior during the trial. Mere social acquaintance with a party or counsel does not require a trial judge to recuse himself or herself. (See Weiss v. Hunna (2d Cir. 1963) 312 F.2d 711, 714 [judge was not disqualified from legal malpractice case by virtue of common membership with defendant attorney in international legal associations, and attendance at meetings of such associations]; United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97 [in action by employer against union arising out of strike, fact that judges wife had worked for employer for brief period during strike, which judge had forgotten until nearly two months into trial, did not disqualify judge from hearing case, where judges conduct during trial did not support inference of partiality].) Moreover, this issue was waived by Richards failure to file a timely motion for disqualification. Similarly, Richards complaints regarding the conduct of Rachelles trial counsel were waived by his failure to present them to the trial court. Failure to object to a trial courts ruling or method of proceeding is "the most obvious type of implied waiver" of the right to raise an issue on appeal. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.)
DISPOSITION
The judgment is affirmed. Rachelle is awarded costs on appeal.
We concur:
Sepulveda, J.
Rivera, J.