Opinion
G053304
04-11-2018
In re Marriage of JAMES L. and MICHELLE ANN WATTS. JAMES L. WATTS, Respondent, v. MICHELLE ANN WATTS, Appellant.
Douglas Honig for Appellant. James L. Watts, in pro. per., for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 06D011311) OPINION Appeal from orders of the Superior Court of Orange County, Paula J. Coleman, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Douglas Honig for Appellant. James L. Watts, in pro. per., for Respondent.
INTRODUCTION
A 21-volume appellant's appendix in an appeal from post-dissolution family court orders usually indicates that something has gone terribly wrong. That was certainly the case in the divorce of Michelle and James Watts.
Michelle has appealed from two orders of the family court, one denying her request for attorney fees and a subsequent order denying her request for a new trial on the issue of her attorney fees.
Michelle's notice of appeal identifies a third order, one issued on March 14, 2016, but the only order of that date in the record is a minute order continuing a hearing to April 13, 2016.
The orders from which Michelle appeals arose from her request for attorney fees made in August 2015. The matter was not heard until January 2016, by which time the fees had mounted to over $37,000. In ruling on the request, the court found that 1) the activities generating the fees were unwarranted and 2) James could not pay them. The court's findings roundly criticized Michelle and her counsel.
We affirm the orders denying the request for attorney fees and denying the request for a new trial. In the absence of a reporter's transcript, we must conclusively presume that the evidence presented at the hearing on fees supported the court's decision, and, in any event, substantial evidence in the record supports it. As for the motion for new trial, while Michelle may have timely filed the notice of intent to move for a new trial, she did not subsequently file a memorandum of points and authorities to support the motion. The court was therefore within its discretion to deny the motion without a hearing.
Michelle failed to cite any authority on the subject of the March 14, 2016 order. We treat any claimed error regarding this order as waived or abandoned. (See Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948.)
Michelle has filed several postappeal motions, all of which are denied, as we explain in detail below.
FACTS
Michelle and James were divorced July 6, 2007. At the time, they had two minor children, aged 10 and 8. Michelle and James entered into a stipulated judgment, which included support and property division provisions. This stipulated judgment did not, however, have the desired effect of ending disputes between the former spouses.
In an order dated December 1, 2010, the family court recited the history of the postjudgment litigation up to that point. Michelle filed domestic violence proceedings in December 2007. James filed a petition to modify custody in December 2007. In 2008, both James and Michelle moved to modify or set aside the 2007 judgment. In early 2009, Michelle filed another request for order (RFO), this time seeking to divide the sales proceeds of the home and to enforce the equalization payment that was part of the 2007 judgment. This matter was settled by stipulation in February 2009. Both parties filed RFOs in April 2009, James seeking modification of child support, among other changes, and Michelle seeking fees, costs, and reimbursement. These matters were heard in October 2009, and the family court issued an order in December.
On March 19, 2010, Michelle asked for an order setting aside portions of the 2007 judgment on grounds of duress, intimidation, fraud, concealment, breach of fiduciary duty, and failure to disclose. In essence, Michelle claimed that a payment James received for a postjudgment project was actually made for services he had performed during the marriage. He had, Michelle claimed, arranged for a later payment so that it would not figure in the judgment. The family court heard the matter over seven days in August, September, and November of 2010.
The court's ruling, issued on December 1, 2010, was equally disapproving of both parties for failing to file income and expense declarations or schedules of assets and debts. The court attributed the fraught litigation history up to that point in part to these failures. But the court directed its sharpest criticism at Michelle. It found not only that she had failed to prove her claims of duress, fraud, and the rest, but also that she had lied in her testimony, whereas the court found James' testimony to be reliable and credible. The court denied Michelle's requests for relief and ordered the parties to bear their own attorney fees.
Michelle filed the RFO that forms the basis of this appeal on August 4, 2014. She asked the court to order James to serve a current income and expense declaration and to reimburse her for various expenses, including interest on unpaid attorney fees. She also asked for at least $10,000 in attorney fees, pursuant to Family Code sections 271 and 2030. The hearing, originally scheduled for October 1, 2014, was continued several times.
On the same day, the court ordered the parties into mediation on September 17. James appeared on September 17; Michelle did not.
James has represented himself in the family court since September 2011, and represents himself on appeal.
Family Code section 271 allows the family court to sanction a party or attorney for impeding settlement and discouraging cooperation. Family Code section 2030 requires the court to insure that each party in a dissolution action has access to counsel. Usually successful invocation of this section results in one party paying the other party's attorney fees.
Between the filing of the RFO in August and the date the matter was eventually heard, in January 2016, James and Michelle entered into two stipulations resulting in orders. The first one, entered on December 1, 2014, took care of all the arrearages Michelle was claiming up to November 30, 2014. The second, entered on May 21, 2015, resolved all the issues in the RFO except for attorney fees. The family court continued the hearing on the attorney fee issue to September. The attorney-fee hearing was subsequently continued twice.
The record does not indicate who asked for the continuances, but after the fifth one, the court put its foot down and said no more.
Michelle's counsel filed supplemental declarations on October 19 and December 18, 2015, each time increasing the amount of attorney fees requested. In each declaration, he cited Family Code section 271 as the basis for the fee award.
The hearing finally got underway on January 6, 2016. By this time, Michelle was requesting over $37,000 in fees. There was no court reporter. The subsequent minute order stated that the hearing lasted one hour. James appeared telephonically, and Michelle was represented by counsel. At the conclusion of the hearing, the court took the matter under submission. The court issued its "Ruling and Order on Submitted Matter" on January 15, 2016, and the clerk served the ruling on Michelle's attorney on the same day.
The ruling was a blistering indictment of Michelle and her attorney. The court found that Michelle's attorney had stoked the emotional tension and trauma, in contravention of the California Attorney Guidelines of Civility and Professionalism, by "name calling and spurious allegations" about James. The court characterized Michelle's repeated discovery activities as a "witch hunt" and said they were "unreasonable for the results attained." "Most importantly, the majority of the legal fees were completely unnecessary." Michelle "needs to stop her fishing expedition for information that fails to materialize." She had "driven this litigation to unreasonable extremes."
In addition, the court found that James did not have the ability to pay $37,000 in attorney fees. "He is collecting Social Security and has substantial debt." The court found James' explanations of his financial situation "more than adequate[]" and "at all times found [James] to be credible and forthright." The court referred to two previous occasions on which James' testimony was found to be credible, while Michelle's was not. The court denied Michelle's request for attorney fees.
Michelle's response to the January 15 ruling and order was to pummel the family court with filings seeking to get it overturned. She filed over 300 pages of "Objections to Ruling on Submitted Matter," which devolved into a sentence-by-sentence disagreement with the order. She followed up with a 175-page motion to vacate the judgment under Code of Civil Procedure section 663 and a notice of intent to move for a new trial under section 657. These were accompanied by a request for judicial notice of the court's own file that exceeded 1,200 pages. She also requested a statement of decision (24 pages), to which, under California Rules of Court rule 3.1590(n), she was not entitled, and filed a proposed statement of decision - another 30 pages. A week later, she filed a supplemental request for judicial notice, consisting of 560 pages.
We are not aware of any statute or rule authorizing "Objections to Ruling on Submitted Matter." The record does not include a request on January 6, 2016, for a statement of decision before the matter was submitted. (See Cal. Rules of Court, rule 3.1590(n).)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The court declined to consider the motion for new trial, through a return sheet dated February 16, 2016, on the ground that the notice of intent to move for a new trial was untimely filed. Michelle's response was a motion to restore both motions to the calendar, although the return sheet made no mention of the motion to vacate. This added another 1,037 pages to the court's file.
As near as we can tell from this record, the court did not formally deny Michelle's other motion, to vacate the judgment, until April 14, 2016, - after the notice of appeal had been filed. The reason for the denial was that the time to hear the motion under section 663a, subdivision (b), had expired.
The record with regard to the filing of the notice of intent to move for a new trial - confusing at the very least - will be discussed in detail below.
The court held a hearing on March 14, 2016, at which it stated that the motion to vacate the judgment was filed untimely. The court and Michelle's counsel disagreed about the date on which the notice of intent to move to vacate the judgment was filed. The court stated the notice was filed on February 2; Michelle's counsel stated February 1. The court continued the hearing to April 13, to try to sort out when the notice had been filed.
We interpret the court's statement to be shorthand for a ruling that the notice of intent to move to vacate the judgment was untimely. A party seeking to vacate the judgment must file a notice of intent within the time limits prescribed by section 663a, subdivision (a).
Apparently Michelle did not show up for this hearing.
Michelle filed her notice of appeal on March 15, 2016. Attached to the notice was a copy of the January 15 ruling and order and a copy of the handwritten notice from the Court Child Support Unit return sheet, dated February 16, 2016, explaining that the motion for a new trial was denied for untimeliness. The notice of appeal identified the January 15 ruling on attorney fees, the denial of the motion for new trial, and the "March 14, 2016 order denying [Michelle's] Request for Order to Vacate Order Dated 01/15/2016 (entered 01/25/2016) and Enter New Order filed on February 1, 2016" as the orders from which she was appealing.
DISCUSSION
Michelle has identified four issues on appeal. She argues the family court abused its discretion when it denied her request for attorney fees. She also argues the court erred in deciding her notices of intent to move to vacate the judgment and to move for a new trial were untimely. Finally, she asserts the January 15 ruling and the subsequent denial of the posttrial motions stem from judicial bias against her and her attorney.
I. Order Denying Attorney Fees
Michelle contends the family court erred by refusing to award her attorney fees under Family Code sections 271, subdivision (a); 2030, subdivision (a); 2032, subdivision (a); and 3557, subdivision (a)(1)(A). We cannot find any reference in the record to a request by Michelle for an award of fees under Family Code sections 2032 or 3557. As neither issue was raised in the family court, we address neither one here. (See In re Marriage of Huxley (1984) 159 Cal.App.3d 1253, 1260, disapproved on other grounds in In re Marriage of Fabian (1986) 41 Cal.3d 440.) In addition, by the time the matter was heard in January 2016, the only code section upon which the fee request was based was Family Code section 271. It is also apparent that this section was the sole basis of the court's January 15 ruling. Accordingly, we do not address an attorney fee award under Family Code section 2030.
Michelle's counsel asserted at oral argument that Family Code section 271 and section 3557 provide the same access to attorney fees; this assertion is incorrect. Provided the court makes the appropriate determinations, the award of fees under section 3557 is mandatory. An award of fees pursuant to section 271, including the amount awarded, is discretionary.
Michelle acknowledges that we review orders granting or denying attorney fees for abuse of discretion. (In re Marriage of Sorge (2012) 202 Cal.App.4th 626, 652, 662 [award under section 271]; In re Marriage of Shaffer (1984) 158 Cal.App.3d 930, 935-936 [need of spouse and amount of award matters of trial court discretion.]) "'"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 . . ." [Citations.]' [Citation.]" (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.) "In reviewing such an award, we must indulge all reasonable inferences to uphold the court's order." (In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 991, criticized on other grounds in In re Marriage of LaMusga (2004) 32 Cal.4th 1072.)
Family Code section 271, subdivision (a), allows a court to sanction a party for interfering with settlement and increasing the cost of litigation by discouraging cooperation. The section requires the court to make two basic determinations. First, did a party or an attorney act in such a way as to discourage settlement and cooperation? Second, would sanctioning this person impose an unreasonable financial burden on him or her, taking into account the person's income, assets, and liabilities?
Family Code section 271, subdivision (a), provides: "Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award."
Michelle argues that the court abused its discretion in failing to award her sanctions under Family Code section 271. But her challenge is actually to the evidence upon which the court relied to make its decision. She maintains, in essence, that all the evidence - including James's refusal to disclose his financial situation, to comply with court orders, and to respond to discovery - mandated sanctions against him. So the court had to award attorney fees to her.
Michelle's argument runs into a principle of appellate review that requires us to presume all evidentiary matters correct in the absence of a reporter's transcript. "'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]" (Estate of Fain (1999) 75 Cal.App.4th 973, 992; see Aguilar v. Avis Rent-a-Car Sys. (1996) 50 Cal.App.4th 28, 35; Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 576 ["In the absence of a proper record, which would include . . . a reporter's transcript . . ., we must presume the trial court acted properly."].)
The court's ruling of January 15 addressed all the issues Michelle raised on appeal. It just disagreed with her positions. Michelle claims James frustrated the discovery process. The court found that the discovery she propounded was a "fruitless" "fishing expedition" and "witch hunt." The majority of the fees were "completely unnecessary." Moreover, it found that in his present financial condition, James could not pay fees; they would therefore "impose an unreasonable financial burden" on him. (Fam. Code, § 271, subd. (a).)
We must assume, in the absence of a reporter's transcript, that during the one hour of the hearing, whatever evidence was provided to the court supported these conclusions. We must also assume that Michelle had an adequate opportunity to present her side of the story. The fact that two bench officers had, on previous occasions, found her to be lacking in veracity - while James enjoyed an unbroken reputation for forthrightness and truthfulness - may have handicapped Michelle in her quest for fees, but that fact does not indicate abuse of discretion.
II. Order Denying Motion for New Trial
Michelle complains on appeal that the court improperly denied her motion for new trial because the notice of intent to move for a new trial was untimely filed. Section 659, subdivision (a), provides, "The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both, either: [¶] (1) After the decision is rendered and before the entry of judgment. [¶] (2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of that notice upon him or her to file and serve a notice of intention to move for a new trial." Michelle argues that her notice of intent to move for a new trial was timely filed, on February 1, 2016.
The record regarding the filing date of the notice of intention to move for a new trial is extremely confused. The last day to file the notice of intent was February 1, 2016, since the 15th day after the entry of the January 15 order fell on a weekend. (See § 12a.) The appellant's appendix contains a copy of a document entitled "Respondent's [i.e., Michelle's] Notice of Intention to File a Request for Order to Vacate Order Dated 1/15/16," file stamped February 1, 2016. A document entitled "Respondent's Notice of Intent to File a Request for Order for New Trial" is also included in the appendix, stamped "Attachment Feb 01 2016." The appendix contains a proof of mail service, file stamped February 1, 2016, on James of, among other things, the notice of intent to move for new trial and the notice of intent to move to vacate.
The appendix also contains two RFO forms requesting vacation of the January 15 order, one file stamped February 1 and the other file stamped February 2. There is no corresponding form for a motion for new trial.
The register of actions contains four entries dated February 1. These are "Notice - Other," "Request - Statement of Decision," "Notice - Lodging," and "Proof of Service - Mail (Civil) 02/01/2016." Entries dated February 2 are "Notice - Other 02/02/2016 of Intent to File Request for Order," "Motion - Vacate/Set Aside 02/02/2016 Order of 01/15/16," "Notice - Other 02/02/2016," and "Proof of Service - Mail (Civil) 02/02/2016."
We have no way of knowing at this remove whether Michelle's notice of intent to move for a new trial was filed on February 1 or February 2. Given this confusion, we are inclined to afford Michelle the benefit of the doubt and assume, without deciding, that the notice was timely filed.
This does not end Michelle's difficulties, however. Section 659a and California Rule of Court, rule 3.1600 require the party giving notice of an intent to move for a new trial to follow up within 10 days with a brief, supporting documents, affidavits, and a memorandum of points authorities. The record does not indicate that Michelle ever filed a memorandum of points and authorities within the prescribed time limit.
Section 659a provides, in pertinent part, "Within 10 days of filing the notice, the moving party shall serve upon all other parties and file any brief and accompanying documents, including affidavits in support of the motion." California Rule of Court, rule 3.1600 provides, "(a) Time for service of memorandum Within 10 days after filing notice of intention to move for a new trial in a civil case, the moving party must serve and file a memorandum in support of the motion, and within 10 days thereafter any adverse party may serve and file a memorandum in reply. [¶] (b) Effect of failure to serve memorandum If the moving party fails to serve and file a memorandum within the time prescribed in (a), the court may deny the motion for a new trial without a hearing on the merits."
Before oral argument, we ordered Michelle's counsel to identify the volume number and page numbers in the appendix of the timely filed memorandum of points and authorities in support of the motion for new trial and to indicate the docket number showing the filing of this document. This order should have prompted a one- or two-page response. Although 184 pages were filed, counsel was unable to point us to a timely filed memorandum in the appellant's appendix or to a docket number indicating such a memorandum was timely filed. The only memorandum of points and authorities to support the motion for new trial in the record is one filed as an exhibit to the much later request to restore both the motion for new trial and motion to vacate the judgment to the court's calendar. This document does not have a file stamp.
California Rule of Court, rule 3.1600(b), excuses a court from conducting a hearing on the merits of a motion for new trial if the party requesting the new trial fails to timely file a supporting memorandum of points and authorities. That is evidently what happened here. Thus, even if the court was mistaken about when the notice of intent to move for a new trial was filed, Michelle in effect abandoned the motion by failing to file a timely memorandum of points and authorities. The failure to timely file the memorandum "alone would justify the trial court's decision as within the bounds of its discretion . . . ." (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 529-530.)
III. Order Denying Motion to Vacate Judgment
Michelle's notice of appeal identified a "March 14, 2016 order denying [Michelle's] Request for Order to Vacate Order Dated 01/15/2016 (Entered 1/25/2016) & Enter New Order filed February 1, 2016" as one of the orders being appealed. The only order dated March 14, 2016, in the appellant's appendix is one continuing a hearing to April 13, 2016. Michelle filed her notice of appeal on March 15.
Michelle offers no argument or authority to support a reversal of the order continuing the hearing (see Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699 [issue presented without argument or legal authority abandoned]), and matters occurring during the pendency of the appeal, which are outside the superior court record on appeal, are not reviewable. (See In re K.M. (2015) 242 Cal.App.4th 450, 456.)
If we have understood her correctly, Michelle's sole issue with the order of March 14 continuing the hearing was that it was evidence of bias, because the continued date was beyond the 60-day limit imposed by section 663a, subdivision (b), within which the court must determine a motion to vacate a judgment. Michelle has cited no authority to support this meager argument.
Even if we could review a denial of a motion to vacate, Michelle would not be entitled to any relief. Section 663 provides, "A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶] 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [¶] 2. A judgment or decree not consistent with or not supported by the special verdict."
"Section 663 'is designed to enable speedy rectification of a judgment rendered upon erroneous application of the law to facts which have been found by the court or jury or which are otherwise uncontroverted. [Citation.]' [Citation.] Thus, '"section 663 is a remedy to be used when a trial court draws incorrect conclusions of law or renders an erroneous judgment on the basis of uncontroverted evidence." [Citation.]' [Citations.] [¶] However, relief is available under section 663 only where a '"different judgment"' is compelled by the facts found by a judge or jury. [Citations.] In ruling on a section 663 motion, 'the court cannot "'in any way change any finding of fact.'" [Citation.]' [Citation.] By the same token, section 663 does not authorize a challenge to the sufficiency of the evidence to support the judgment. [Citation.]" (Hassell v. Bird (2016) 247 Cal.App.4th 1336, 1350, italics added (Hassell).)
In this case, the court found that the attorney fees Michelle requested were for an unnecessary and unreasonable "witch hunt" and "fishing expedition" and that James did not have the wherewithal to pay them, as he was collecting Social Security and was heavily in debt. Michelle's motion seeks an order that she is entitled to attorney fees anyway, notwithstanding their unreasonableness and James' inability to pay. "[T]he motion may be made whenever the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts found by it to exist." (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 738; see Hassell, supra, 247 Cal.App.4th at pp. 1350-1351.) To vacate the existing judgment and enter a new one, the family court in this case would have to change the facts. Section 663 is not designed to accomplish this task.
IV. Judicial Bias
Michelle asserts on appeal that the commissioner who conducted the hearing on January 6, 2014, was biased against her and her counsel. She points to, and disagrees with, statements made in the January 15 ruling as well as later events, such as the disposition of the posttrial motions, to support this contention. In essence, she argues that the evidence in her favor was so overwhelming that only judicial bias could account for the unfavorable January 15 ruling. She also takes issue with statements the court made in the ruling, claiming that they are not supported by the evidence.
Michelle offered no legal authority to support her numerous accusations of bias, other than an initial citation to an inapposite case (Ensher, Alexander & Barsoom, Inc. v. Ensher (1964) 225 Cal.App.2d 318) concerning disqualification under section 170. Arguments made without citation to supporting legal authority are deemed waived. (Gonzalez v. City of Norwalk (2017) 17 Cal.App.5th 1295, 1311.)
Our review of this issue is guided by several well-established rules of appellate practice. First, "a judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).) Second, any recitation of the facts by the appellant must include all material evidence. A one-sided recitation waives error regarding the sufficiency of the evidence. (Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 34, disapproved on other grounds in Webb v. Special Electric Co. (2016) 63 Cal.4th 167.) Finally, as stated above, in the absence of a reporter's transcript, we presume that the lower court acted properly and that the evidence presented at the trial supported the court's decision. (Estate of Fain, supra, 75 Cal.App.4th at p. 992; Aguilar v. Avis Rent-a-Car Sys., supra, 50 Cal.App.4th at p. 35; Elena S. v. Kroutik, supra, 247 Cal.App.4th at p. 576.)
With these rules in mind, we recite some of the background facts leading up to January 6 hearing and the January 15 ruling. Michelle and James married in 1997. At the time of their divorce in 2007, James was 58 and Michelle was 40. They had two minor children, aged 10 and 8. James had been admitted to the bar in Washington, D.C., but he had not practiced law since 1986, when he moved to California. Instead, he had a career in investment banking.
Apparently James and Michelle enjoyed considerable affluence before the divorce. But in 2008, when James was 59 years old, the recession took hold, and he found himself without a steady source of income. In the meantime, Michelle had married another affluent man and was living in Pacific Palisades.
In 2013, at age 64, James moved to Texas to try to rebuild his earning power. He appears to have been living more or less hand-to-mouth. He would get a respectable payment for some work, but each was a one-time payment. When it was gone, there was no guarantee that there would be another one.
As of the hearing on Michelle's RFO on January 6, 2016, there were two competing narratives. According to Michelle, James was a deadbeat dad, who had failed to support his children and who refused to respond to discovery designed to ferret out his concealed millions. She had incurred substantial attorney fees trying to make him comply with his support and disclosure obligations. According to James, he was heavily in debt (including a significant amount owed to the IRS), borrowing money left and right to keep his head above water, living from deal to deal (some of which fell through), and being harassed by Michelle and her counsel, who kept demanding more and more documents that they knew either did not exist or had already been produced. He was doing what he could to support his children in the style to which they had once been accustomed (e.g., $12,500 for summer camp), but sometimes the money simply was not there.
For example, the parties resolved all issues regarding payments and arrearages by stipulation on May 21, 2015. Only attorney fees remained to be determined. Nevertheless, on July 28, 2015, Michelle served a 142-item notice to appear and produce documents on James. On September 11, Michelle served another notice to appear and produce, this one containing 202 items. Yet another one was served on November 20, with 304 items.
The court went with James' narrative. This is where the standards of appellate review come into play. First, an order is presumed correct on appeal. (Arceneaux, supra, 51 Cal.3d at p. 1133.) Next, if the appellant challenges the sufficiency of the evidence to support the order, we must view all factual matters in the light most favorable to the prevailing party. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 925.)
In this case, we start with the presumption that the court correctly chose James' narrative over Michelle's and that the facts stated in James' declarations support the court's decision. This presumption is bolstered by two prior orders, one from 2011 by the same commissioner who held the January 6 hearing and the other from 2010 by a different bench officer. In both cases, the bench officers found that Michelle was lying and James was telling the truth. In addition, the parties had been appearing before the commissioner at least since 2011; she was consequently quite familiar with the case.
The 21 volumes of the appellant's appendix do not include a copy of the 2011 order by the commissioner, which was mentioned in the January 15 ruling. We augmented the record on our own motion to obtain a copy of this order.
Most important, however, the absence of a reporter's transcript compels us to conclusively presume that the evidence presented at the hearing supported the court's decision. (Estate of Fain, supra, 75 Cal.App.4th at p. 992; Aguilar v. Avis Rent-a-Car Sys., supra, 50 Cal.App.4th at p. 35; Elena S. v. Kroutik, supra, 247 Cal.App.4th at p. 576.) There was, moreover, sufficient evidence in the record, in the form of James' declarations, to support the court's determination regarding whom to believe without drawing a conclusion of bias.
The court was certainly very severe about the conduct of Michelle and her counsel. But this was not an indication of bias. It was, rather, an expression of disapproval of what the court perceived as conduct likely to raise the emotional temperature of an already overheated situation. In light of the state of the record after the January 15 ruling, we find nothing to indicate the family court got it wrong.
V. Postappeal Motions
In keeping with her modus operandi in the family court, Michelle has besieged this court with postappeal motions. She has filed two motions to "augment" the record as well as a motion asking us to enforce a "settlement agreement." She has also filed a motion to strike a significant portion of James' respondent's brief.
We have already denied the two motions to augment the record. These motions sought to add a request for order filed on December 17, 2016, and an order filed September 22, 2017, to the record before us. Michelle filed her notice of appeal on March 15, 2016. Obviously the filing dates of these two documents lie well beyond the period relevant to this appeal. Augmentation of the record does not operate to include materials that were not before the trial court at the time the judgment or order appealed from was entered. (See Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 (Vons); In re Marriage of Forrest & Eaddy (2006) 144 Cal.App.4th 1202, 1209.)
Continuing another theme developed in the family court, Michelle has filed a "Motion to Enforce Settlement Agreement" in this court, thereby suggesting we create a new appellate procedure. Michelle claims that everyone stipulated to vacate the January 15 order and to start over in front of a new judge, but the commissioner who had issued the order would not sign the stipulation. Michelle wants us to enforce the stipulation. She has provided no authority to support this unprecedented request.
Michelle cites section 664.6 as the basis of this motion. This code section pertains to enforcing settlements in the trial court between or among parties. It does not apply to a bench officer or to the appellate court.
We are a reviewing court. We have limited jurisdiction. On appeal, we can review only appealable judgments or orders. (See Schmidt v. Townsend (1951) 103 Cal.App.2d 185, 186-187, superseded by court rule on other grounds; § 904.1.) A basic requirement for review is an order of some kind. Michelle has not supplied us with such an order. The motion to enforce the stipulation is denied.
Finally, Michelle has moved to strike 52 items of James' respondent's brief, nearly the entire brief, on the ground that these items are unsupported by the record. Oddly enough, Michelle cites the Vons case for the proposition that "an appellate court will consider only matters which were part of the record at the time the judgment was entered" (Vons, supra, 14 Cal.4th at p. 444, fn. 3) as authorizing this motion, apparently oblivious to its application to her own motions to augment the record. She includes not only statements of fact (e.g., "Michelle's current husband is very wealthy and when I met her she bragged that her father had 'more money than God'") but also arguments (e.g., "Commissioner Coleman made the correct decision based on the behavior of the parties and the totality of the circumstances") as candidates for striking as unsupported by the record.
As stated above, James is representing himself on appeal and has been representing himself since September 2011. He is clearly unfamiliar with the requirements of appellate briefing, and his respondent's brief is not organized along normal lines. It is also short on citations to the record. (See Cal. Rules of Court, rule 8.204(a)(1)(C).) We routinely deal with such transgressions of proper appellate practice by ignoring off-the-record facts. (See, e.g., Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 195; Berg v. Traylor (2007) 148 Cal.App.4th 809, 812, fn. 2.) A lengthy motion to strike is unnecessary. It is particularly redundant in this case, as most of Michelle's reply brief consists of the same points made in her motion to strike.
Even striking James' entire brief would avail Michelle nothing. An appeal can go forward without the involvement of a respondent at all. (See Estate of Supeck (1990) 225 Cal.App.3d 360, 365; Miles v. Speidel (1989) 211 Cal.App.3d 879, 881; Cal. Rules of Court, rule 8.220(a)(2).) If James' brief disappeared completely, we would still be obligated to examine the record to see whether Michelle had made an adequate showing of error. (See Griffin v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 505.) She would still be unable to make up for the lack of a reporter's transcript to support her claim of insufficient evidence, or to change the unavailability of a motion to vacate the judgment, or to remedy her failure to timely file a memorandum of points and authorities to support her motion for new trial. And we can look at the record ourselves, without assistance from James, to determine whether the family court was biased.
The motion to strike is denied.
DISPOSITION
The order of January 15, 2016, is affirmed. The order denying appellant's motion for new trial is affirmed. To the extent that the appeal encompasses appellant's motion to vacate the judgment, the appeal is dismissed. Appellant's motion to strike portions of respondent's brief is denied. Appellant's motion to enforce a settlement agreement is denied. Respondent shall recover his costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.