Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Super.Ct.Nos. SWD007805, SWD005161. Lori Hunt Kennedy, Pamela Ann Thatcher,* and James T. Warren, Judges. Affirmed with directions.
Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Commissioner Kennedy denied appellant’s request for temporary spousal support. Commissioner Thatcher denied appellant’s first request for attorney fees and costs. Judge Warren entered the orders bifurcating the issue of marital status, terminating the marriage, and denying appellant’s second motion for attorney fees and costs.
Roland Romero, in pro. per., for Appellant.
Dougherty & Landon, Landon Law, and Brad Jefferson Landon for Respondent.
OPINION
RICHLI J.
These three consolidated cases all arise from the dissolution of the marriage between respondent June Romero and appellant Roland Romero.
“We will refer to the parties by their first names for purposes of clarity and not out of disrespect.” (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1; see also Askew v. Askew (1994) 22 Cal.App.4th 942, 947, fn. 6.)
In case No. E040236, Roland appeals the denial of his request for temporary spousal support. In case No. E041131, he appeals the denial of his request that June pay attorney fees and costs so that he could obtain legal representation to defend himself in this action. Finally, in case No. E043640, he disputes the trial court’s ruling granting June’s request for bifurcation and termination of marital status and denial of his oral motion for attorney fees and costs.
Roland has failed to provide an adequate record in order for this court to review his claims that the trial court abused its discretion by denying temporary spousal support and his first request for attorney fees and costs. This court has limited jurisdiction to review trial court rulings. Hence, we conclude the trial court did not abuse its discretion in denying both temporary spousal support and the first request for attorney fees and costs. Further, the trial court did not abuse its discretion by deciding, in a bifurcated proceeding that reserved all future financial and property considerations, to terminate their marital status and denying the second request for attorney fees and costs.
We will, however, remand for the limited purpose of joining all applicable pension plans and retirement plans, if any, pursuant to Family Code section 2337, subdivision (d)(1).
All further statutory references are to the Family Code unless otherwise indicated.
I
FACTUAL AND PROCEDURAL BACKGROUND
We rely on the records in all three cases in setting forth the factual and procedural background in this case.
In November 2004, June filed a petition for dissolution of marriage in Riverside Superior Court, case No. SWD005161, and included an income and expense declaration. In September 2005, Roland forged June’s signature on a document asking that the petition be dismissed. Roland then filed his own petition for dissolution on November 7, 2005, in Riverside Superior Court, case No. SWD007805. June filed a declaration in support of not dismissing her petition.
These aforementioned documents have not been made part of the record but are reflected on the case information sheets.
On November 9, 2005, Roland filed an order to show cause asking for temporary spousal support. In support thereof, Roland claimed that he and June had a relatively high standard of living during their marriage. He was a stay-at-home dad and had been suffering from severe medical problems.
On December 23, 2005, the trial court consolidated case Nos. SWD005161 and SWD007805. It then denied temporary spousal support. The only notation on the minute order is, “There is an active restraining order against FATHER out of San Diego [C]ounty.” No reporter’s transcript of the proceeding was included in the record on appeal.
On January 3, 2006, Roland brought a motion to reconsider the denial of temporary spousal support, with a declaration that he was suffering from severe illness and that the restraining order had not been properly obtained. Roland requested that the trial court reconsider its denial of spousal support. The trial court denied the motion for reconsideration on February 28, 2006. The only notation on the clerk’s transcript was, “The court cannot award spousal support when there is an active restraining order.”
On April 3, 2006, Roland filed a notice of appeal from the December 23, 2005, and February 28, 2006, hearings. In his notice designating records on appeal, he requested that a clerk’s transcript be prepared but did not request any reporter’s transcript.
That same day, Roland filed a notice of motion requesting attorney fees and costs, referring to sections 2030, subdivisions (a), (b), and (c) and 2032. Roland wanted June to pay attorney fees and costs in advance so that he could retain an attorney in a timely manner before any other proceedings were conducted. He apparently attached his income statement, but that has not been included in the record. According to Roland, no income statement for June was submitted. On May 30, 2006, according to the minute order, the motion was denied, with only the notation, “As to the history of the case and information provided.”
On June 6, 2006, Roland filed a motion for reconsideration of the denial of attorney fees and costs. He essentially argued that the trial court abused its discretion by denying the fees and costs, finding that he was capable of finding a job and was capable of representing himself. A minute order shows that the motion for reconsideration was denied on July 18, 2006, because “[n]o new facts and no new law provided to the Court.”
On July 18, 2006, Roland filed a notice of appeal from the order entered on May 30, 2006, denying his request for attorney fees. In his request for record on appeal, he asked only for the clerk’s transcript. No reporter’s transcript of the hearing has been provided.
On July 31, 2006, Roland filed his opening brief in case No. E040236, addressing the denial of temporary spousal support. On November 16, 2006, June filed her respondent’s brief in case No. E040236, in which she argued in part that the issue could not be reviewed on appeal because Roland had failed to provide an adequate record.
On December 7, 2006, likely in response to the arguments made in the respondent’s brief, Roland requested that this court augment the record with the reporter’s transcript of the December 23, 2005, hearing, claiming that he had no money to pay for the cost of preparation of the reporter’s transcript. He also requested, pursuant to sections 2030, 2032, and 270, that this court grant him attorney fees and costs to pay for the transcript and legal representation on appeal. On that same day, he filed a similar motion in case No. E041131, in which he had not yet filed his opening brief, requesting augmentation of the record with the May 30, 2006, and the July 18, 2006, hearings and also requesting attorney fees and costs.
On January 26, 2007, we denied Roland’s augmentation request and his request for fees to pay for the transcript both because it was untimely and due to Roland’s failure to seek a settled statement in lieu of the reporter’s transcript. However, we consolidated case Nos. E040236 and E041131.
On February 14, 2007, Roland filed a motion for prepayment of attorney fees and costs to be granted by this court to assist him in the appeals in case Nos. E040236 and E041131. On March 20, 2007, we denied Roland’s request for prepayment of attorney fees and costs.
Roland thereafter filed a petition for review in the Supreme Court, appealing this court’s denial of prepayment of attorney fees and costs in case Nos. E040236 and E041131. On June 27, 2007, the Supreme Court denied review.
On July 16, 2007, Roland filed his reply brief in case No. E040236. He indicated he was unable to present the reporter’s transcript. Also on July 16, 2007, Roland filed his opening brief in case No. E041131. On August 20, 2007, June filed her respondent’s brief in case No. E041131, again arguing that Roland had not provided an adequate record on appeal.
Meanwhile, on April 23, 2007, June filed an order to show cause in the trial court to move for bifurcation and a determination of marital status only pursuant to section 2337. She agreed to maintain health insurance for Roland. June stated that irreconcilable differences between her and Roland existed and had been pending for two years. Roland filed a responsive declaration asking that the court comply with sections 2030, 2031, and 2032. He argued that the trial court lacked jurisdiction to hear the issue on marital status.
At the hearing, the trial court granted bifurcation to determine marital status, finding it had jurisdiction to hear the matter. It terminated marital status, as will be more fully explicated, post, in part IV.B. Roland made an oral motion for attorney fees and costs, which was denied. Roland filed a notice of appeal (case No. E043640). He requested the clerk’s transcript only, not the reporter’s transcript. A notice of judgment was filed by June on June 25, 2007.
Roland filed a motion to consolidate case No. E043640 with case Nos. E041131 and E040236. He also requested that this court augment the record with the reporter’s transcript from the hearing conducted on May 31, 2007, regarding the change in marital status, and requested that June be ordered to pay the cost of the transcript. Finally, Roland requested that this court grant him temporary spousal support. On November 7, 2007, we granted Roland’s consolidation request for purposes of oral argument and decision. We ordered that the record be augmented with the reporter’s transcript, assuming Roland paid the cost. Finally, we denied Roland’s request that June pay for the reporter’s transcript and his request for temporary spousal support. Apparently Roland paid the cost of the reporter’s transcript, and it was filed on February 13, 2008.
Roland filed another similar motion on November 16, 2007, which we denied as moot due to our prior ruling.
Roland filed his appellant’s opening brief in case No. E043640 on February 25, 2008, claiming that the trial court erred by granting a change in marital status. June filed her respondent’s brief on March 27, 2008, and Roland was allowed to file a late reply brief.
II
DENIAL OF TEMPORARY SPOUSAL SUPPORT (CASE NO. E040236)
Roland’s claim in case No. E040236 is that the trial court erred by denying him temporary spousal support authorized by section 3600 by relying solely on the fact that there was a restraining order against him. He also argues that he has a need for such support. Roland additionally claims that the trial court erroneously relied upon section 4320, subdivision (i). He also claims that the trial court erred by denying his motion for reconsideration. June faults Roland for failing to provide an adequate record on appeal, including the reporter’s transcript and a declaration filed by her in opposition to the request for spousal support.
Our Supreme Court has held that an order granting or denying temporary spousal support “is directly appealable as a final judgment independently of the main action.” (Greene v. Superior Court (1961) 55 Cal.2d 403, 405.)
Section 3600 provides in: “During the pendency of any proceeding for dissolution of marriage . . . the court may order (a) the husband or wife to pay any amount that is necessary for the support of the wife or husband, consistent with the requirements of subdivisions (i) and (m) of Section 4320 and Section 4325 . . . .” Section 4320, subdivision (i) provides that in considering the amount of temporary spousal support, the trial court should consider “[d]ocumented evidence of any history of domestic violence, as defined in Section 6211, between the parties, including, but not limited to, consideration of emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party, and consideration of any history of violence against the supporting party by the supported party.” Section 6211 provides that domestic violence includes abuse perpetrated against a spouse.
Although Roland asserts in the reply brief that law enforcement concluded that domestic violence did not occur, he provides no support from the record for such a conclusion.
Section 4325, subdivision (a) provides, “In any proceeding for dissolution of marriage where there is a criminal conviction for an act of domestic violence perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding, or at any time thereafter, there shall be a rebuttable presumption affecting the burden of proof that any award of temporary or permanent spousal support to the abusive spouse otherwise awardable pursuant to the standards of this part should not be made.” Based on the plain language of section 3600, a trial court can take into account any domestic violence in making its decision to grant or deny temporary spousal support.
“Awards of temporary spousal support rest within the broad discretion of the trial court and may be ordered in ‘any amount’ [citation] subject only to the moving party’s needs and the other party’s ability to pay.” (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) An award of temporary support will only be reversed on appeal “on a showing of clear abuse of discretion.” (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327.) Based on the foregoing, the denial of temporary spousal support is completely within the trial court’s discretion.
When a claim is reviewed for an abuse of discretion, the burden is on the appellant to demonstrate error by an adequate record. (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127.) Failure to provide an adequate record requires that the issues on appeal be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) When the appellate record is devoid of necessary documents, the appellant cannot affirmatively demonstrate error by the trial court. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141 [[i]t is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error]; Hernandez v. California Hosp. Medical Ctr. (2000) 78 Cal.App.4th 498, 502 [[a]ppellant challenged trial court’s order granting a motion to strike but failed to include copies of the motion and opposing papers and only had the notice of ruling in the record].)
“‘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 of Los Angeles County (1970) 2 Cal.3d 557, 564.) “‘[I]f the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’ [Citations.]” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416; see also County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274; Duarte v. Chino Cmty. Hosp. (1999) 72 Cal.App.4th 849, 856.)
We do not have the reporter’s transcript from the proceeding denying temporary spousal support. June contends that, not only did Roland fail to provide the reporter’s transcript of this hearing, but he also did not include in the appellate record a second responsive declaration filed by June that explained the circumstances of the restraining order and her opposition to the request for spousal support. Roland does not dispute that a second declaration was filed.
Unfortunately, Roland has failed at every turn to provide this court with adequate records to make a determination on this appeal. We must “presume[] that the unreported trial testimony would demonstrate the absence of error. [Citation.]” (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
Roland also claims that the trial court erred by disallowing further evidence to be presented at the hearing. Since the record is not before us, we cannot review this claim.
Since Roland failed to provide an adequate record for determining whether the trial court abused its discretion, our review is limited to determining whether any error “appears on the face of the record.” (National Secretarial Serv., Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; see also Cal. Rules of Court, rule 8.163.)
Here, the only notation in the minute order is that “[t]here is an active restraining order against FATHER out of San Diego County.” We cannot conclusively determine that this was the only information upon which the trial court relied. We note that, according to the case information sheets, on May 16, 2005, June did file some sort of income and expense declaration with the original petition. She also was granted a waiver of court filing costs. The trial court had all of this information in front of it when it made its ruling. Since it is possible that the trial court also took into account June’s ability to pay, along with other factors, in denying temporary spousal support to Roland, no error appears on the face of the record.
Moreover, to the extent that Roland argues that the trial court erred by denying his motion for reconsideration, the denial of a motion for reconsideration is not an appealable order. (Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1458-1459; Rojes v. Riverside Gen. Hosp. (1988) 203 Cal.App.3d 1151, 1160.) Regardless, even if the order were appealable, we could not consider it because Roland was required to present new facts and circumstances in support of the motion for reconsideration. (Code Civ. Proc., § 1008, subd. (a).) We do not have an adequate record of facts from the first hearing and cannot determine if the circumstances presented with the motion for reconsideration were new or different than those presented at the original hearing on temporary spousal support.
Based on the foregoing, we find that Roland has failed to show the trial court abused its discretion in denying temporary spousal support.
III
DENIAL OF ATTORNEY FEES (CASE NO. E041131)
Roland argues that the trial court abused its discretion by refusing attorney fees and costs requested pursuant to sections 2030, 2031, and 2032, for the purpose of allowing him to obtain legal representation and to pay court reporter fees necessary for an appeal. Roland claims that even without the reporter’s transcripts from the hearing denying the fees, the record shows the trial court abused its discretion.
Our Supreme Court has concluded that an immediate appeal can be taken from an order denying attorney fees. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368-369.)
A need-based award of attorney fees and costs is authorized by statute to “ensure that each party has access to legal representation” during the dissolution proceeding. (§ 2030, subd. (a)(1).) Such an award is permitted where “just and reasonable under the relative circumstances of the respective parties.” (§ 2032, subd. (a).) The key considerations are the payee-spouse’s need for the award and the payor-spouse’s ability to pay. (§ 2030, subd. (a)(2).) On the question of ability to pay, relevant factors include assets and earning capacity. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167; see §§ 2032, subd. (b), 4320, subds. (a), (e).)
“‘“California’s public policy in favor of expeditious and final resolution of marital dissolution actions is best accomplished by providing at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation.”’” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.)
Despite this public policy, the trial court retains broad discretion to award attorney fees. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314.) “‘The need of a spouse for an award of attorney’s fees and the amount of that award are matters addressed to the sound discretion of the trial court. [Citation.] The exercise of this discretion will not be disturbed on appeal “without a clear showing of abuse.”’ [Citation.]” (In re Marriage of Schaffer (1984) 158 Cal.App.3d 930, 935-936.) We must affirm the award “unless no judge reasonably could make the order.” (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) “‘The discretion invoked is that of the trial court, not the reviewing court, and the trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made. [Citations.]’ [Citation.]” (In re Marriage of Keech, supra, 75 Cal.App.4th at p. 866.)
Here, Roland filed a motion for attorney fees claiming that he needed adequate representation and that June had the ability to pay. At the hearing on the matter, of which we have no transcript, both June and Roland testified. Based on the court’s minute order, after such testimony, it denied the motion for attorney fees and costs “[a]s to the history of the case and information provided.” This is the only competent evidence before this court as to the trial court’s denial of Roland’s request for attorney fees and costs.
The clerk’s transcript includes Roland’s motion for reconsideration purportedly outlining the trial court’s ruling, but we cannot rely on this self-serving declaration in determining whether the trial court abused its discretion.
Here, based on the record before us, Roland cannot show that the trial court abused its discretion. The trial court apparently heard testimony from both sides and made its determination after hearing such testimony. Without the reporter’s transcript showing otherwise, we must presume that the trial court properly exercised its discretion in denying Roland’s request for attorney fees. (Denham v. Superior Court, supra, 2 Cal.3d at p. 56; Estate of Fain, supra, 75 Cal.App.4th at p. 992.)
Roland continually refers to June’s failure to file an income and asset declaration. However, according to the case information sheets, she did file an income declaration with the court, at the beginning of the case. It is reasonable to assume that the trial court reviewed that document in reaching its decision.
Based on the record before us, we cannot say that the trial court abused its discretion in denying Roland’s request that June pay for legal representation for him.
IV
TERMINATION OF MARITAL STATUS AND DENIAL OF ORAL MOTION FOR ATTORNEY FEES AND COSTS (CASE NO. E043640)
Although it is difficult to discern Roland’s claims from his brief in case No. E043640, it appears he is claiming that the trial court erred by granting June’s request for bifurcation as to marital status only. Roland argues that the trial court did not have jurisdiction to hear the matter because this court issued a stay in case Nos. E041131 and E040236 pending review in the Supreme Court. He additionally claims that the trial court abused its discretion by granting the change in marital status. He seems to assert that, in order for there to be a termination of status, he must be assured medical insurance and legal representation. He also claims that the trial court erroneously denied his oral motion for attorney fees and costs.
A. Additional Factual Background
On April 23, 2007, June filed an order to show cause for status only pursuant to section 2337. June stated as support for bifurcation and termination that there were irreconcilable differences that could not be resolved. The matter had been pending for two years, with no end in sight due to Roland’s numerous appeals. On May 22, 2007, Roland filed opposition in which he argued that the superior court had lost jurisdiction due to the pending appeals in case Nos. E041131 and E040236 and asserted he had numerous health issues.
The matter was called for hearing on May 31, 2007. Roland appeared by telephone. The trial court clarified that the only issue to be heard was the motion to bifurcate to obtain status. June argued that an appellate action does not stay a request for bifurcation of status unless that is the issue raised in the appeal. Roland claimed that he was objecting to the proceedings because he had been denied legal representation under section 2030.
Roland also objected that a declaration of income and assets was required to be filed and served with the bifurcation and termination request, and it had not been. Roland then made a “formal” request for attorney fees under sections 2030 and 2031 and for temporary spousal support under section 3600. The trial court indicated it was not deciding those issues. The sole issue before it was whether to bifurcate the case and allow termination of the marriage. The trial court stated that, based on June’s only requesting a change in marital status and reservation of the remaining issues until later, no income and expense declaration was required to be “filed.” Roland objected and referred the trial court to section 2337, subdivision (b). Also, Roland claimed that under section 2030 he could ask for attorney fees at any time.
Roland started citing to other provisions of the Family Code. June objected because it went beyond his written opposition, and the trial court sustained the objection. June assured the trial court that Roland’s medical insurance would be maintained despite the dissolution of marriage.
The trial court asked Roland why he wanted to remain married to June when she clearly did not want to be married to him, and he replied that he did not want to be married to her. The trial court granted the motion to bifurcate and terminated their marriage.
Roland then asked about his request for attorney fees and costs. June objected on the ground that he had failed to file a motion, the issue was not raised in the order to show cause, and it was the subject of the appeal. Roland did not file an updated income and expense declaration as required by California Rules of Court, rule 5.128. The trial court denied the request for attorney fees and costs.
B. Appealability and Jurisdiction
Roland first claims that the trial court could not terminate marital status because the case was stayed pending a petition for review filed by him in the Supreme Court for case Nos. E041131 and E040236.
Code of Civil Procedure section 916, subdivision (a) provides that “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, . . . but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” A trial court may act on any “collateral” matter not implicated in the pending appeal. (In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381.) An award of need-based attorney fees and costs pending final disposition of the action has been found to be collateral to, and not an adjudication of, the action on its merits. (See In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1039.) The same is true for an appeal of temporary spousal support. (In re Marriage of Skelley, supra, 18 Cal.3d at p. 369; see also In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 743.)
As such, even though the issues of temporary spousal support and pendent lite attorney fees were on appeal, those matters did not foreclose the trial court from determining the bifurcated issue of dissolving the marriage.
June relies on California Rules of Court, rule 5.180(b)(1) and (2), to claim that the instant appeal should be dismissed because Roland has not perfected the appeal by obtaining a certificate from the trial court. However, June completely ignores rule 5.180(a), regarding applicability, which provides, “This rule does not apply to appeals from the court’s termination of marital status as a separate issue . . . .” Further, it is longstanding precedent that an immediate appeal may be taken from the interlocutory judgment dissolving the marriage to review the correctness of the court’s decision terminating the marriage. (In re Marriage of Van Sickle, supra, 68 Cal.App.3d at pp. 736-737, and cases cited therein.)
Finally, to the extent Roland is appealing the denial of his oral request for attorney fees and costs, we find he did not properly raise the issue in the lower court. Section 2031, subdivision (a)(1) provides that “during the pendency of a proceeding for dissolution of marriage, for nullity of marriage, for legal separation of the parties, or any proceeding subsequent to entry of a related judgment, an application for a temporary order making, augmenting, or modifying an award of attorney’s fees, including reasonable retainer to hire an attorney, or costs or both shall be made by motion on notice or by an order so show cause.”
Here, Roland did not file a written motion or order to show cause as required under section 2031, subdivision (a)(1), despite the fact that he cited it as authority for granting such fees. Further, even if were to consider Roland’s request an original request for attorney fees for this bifurcated issue, under section 2032, subdivision (d), a written notice would still be required. Roland knew how to prepare a motion for attorney fees, since he had previously prepared one when he originally requested attorney fees and costs. Therefore, as the trial court concluded, it need not consider Roland’s oral motion requesting attorney fees, and we find that such denial was proper.
C. Termination of Marital Status
Section 2337, subdivision (a) provides that, “[i]n a proceeding for dissolution of marriage, the court, upon noticed motion, may sever and grant an early and separate trial on the issue of the dissolution of the status of the marriage apart from other issues.” “[C]ourts have encouraged bifurcation of marital status from other issues. [Citations.]” (Gionis v. Superior Court (1988) 202 Cal.App.3d 786, 788.)
“Public policy favors bifurcation for an early ‘status only’ judgment, because it furthers the legislative intent that marriage dissolution not be postponed simply because issues relating to property, support, custody or attorney fees are not ready for decision.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) ¶ 11:479, p. 11-101.) Consistent with this policy, “only slight evidence is necessary to obtain bifurcation and resolution of marital status. On the other hand, a spouse opposing bifurcation must present compelling reasons for denial.” (Gionis v. Superior Court, supra, 202 Cal.App.3d at p. 790.)
Here, a dissolution petition was filed by Roland in November 2005, but the case had been ongoing prior to that date. Hence, when June asked for termination of marital status on April 23, 2007, the case had been pending for over two years, with no end in sight. June did not want to reconcile and wanted to move on with her life. Roland himself stated that he did not want to be married. June agreed to maintain medical insurance for Roland. All of the remaining issues regarding spousal support and division of property were reserved. Based on the evidence presented by June in support of her motion, the trial court properly granted bifurcation and terminated their marriage.
In an apparent attempt to show “compelling reasons” to deny the bifurcation and termination of marital status, Roland claims the trial court abused its discretion when it did not take into account his illness. It had been clearly stated by June that she would maintain Roland’s medical insurance. There was no evidence before the trial court that Roland would be adversely impacted by dissolving their marital status. Further, his claims that he was entitled to legal representation do not present compelling reasons due to the fact that Roland himself admitted he did not want to be married to June. If he was represented by counsel at the hearing, it is unclear that the result would have been different. The trial court properly terminated marital status.
In related claims, Roland insists that the notice regarding bifurcation and termination of marital status was deficient due to June’s failure to file a declaration regarding income and assets. Roland argued in the lower court that the dissolution of marriage could not be ordered due to the failure of June to such a declaration.
Pursuant to section 2337, subdivision (b), “[a] preliminary declaration of disclosure with a completed schedule of assets and debts shall be served on the nonmoving party with the noticed motion unless it has been served previously . . . .” Clearly, based on the plain language of the statute, there was no obligation that June “file” such declaration, only that she “serve” such declaration. The trial court concluded that she was not required to file such income disclosure, which was correct.
Furthermore, according to the case information sheet, it appears that June did serve a declaration of income and assets on Roland “previously” — on May 9, 2007. Since that declaration was not included on the record on appeal, we must presume that it was adequate. Moreover, even if we were to conclude that it was not served, Roland has failed to show how he was prejudiced given that all issues that such a statement could raise, such as division of property and assets, have been reserved. (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 525-528.)
Roland also contends that there was noncompliance with section 2337, subdivision (d)(1), in that the retirement and pension plans were not joined in the dissolution proceeding.
The court “may” impose conditions upon a party seeking a status-only judgment that are designed to protect the nonmoving party from potential adverse consequences from the loss of marital status that might occur during the period between termination of marital status and the time final judgment is entered. (§ 2337, subd. (c).) One of the conditions states that, before entry of judgment terminating status, the party’s retirement or pension plan “shall” be joined as a party. (Former § 2337, subd. (c)(6)(A); see now id., subd. (d)(1).) Roland claims this was not done. Although June stated in her notice that she would join the retirement plans, there is nothing in the record or case information indicating that such joinder was completed.
We do not believe that this requires reversal of the trial court’s termination of the marriage. The reasons for termination clearly are supported by the evidence. Further, we are unsure whether there are in fact retirement and pension plans that need to be joined. We will therefore remand for the limited purpose of compliance with section 2337, subdivision (d)(1), if applicable.
V
DISPOSITION
We affirm the trial court’s orders denying temporary spousal support, attorney fees and costs, and granting bifurcation and termination of marital status. We remand to the trial court for compliance with section 2337, subdivision (d)(1), if applicable. In the interests of justice, both parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278 (a)(5).)
We concur: RAMIREZ P.J., KING J.