Opinion
A144271
03-22-2017
In re the Marriage of ELIZABETH L. and CHRISTOPHER J. WRIGHT. ELIZABETH L. WRIGHT, Appellant, v. CHRISTOPHER J. WRIGHT, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 26-43408)
The marriage of Elizabeth and Christopher Wright was dissolved by a judgment filed in June 2013. Elizabeth now appeals from two postjudgment orders, one denying her request to modify spousal report and the other designating a listing broker to sell the family residence. She argues that the superior court erred in issuing those orders after declining to require Christopher to comply in full with a subpoena seeking certain of his financial records. We will affirm.
See In re Marriage of Wright (Oct. 27, 2014, A139626) [nonpub. opn.]. We will refer to the parties by their first names for purposes of clarity. No disrespect is intended.
FACTUAL AND PROCEDURAL BACKGROUND
On September 25, 2014, Elizabeth, representing herself, filed in the superior court a request for an order modifying spousal support from $300 to $1,400 per month, with a hearing set for November 12. In a declaration supporting her request, Elizabeth claimed, among other things, that Christopher had failed to disclose some of his assets, arguing that he must have realized a gain of approximately $1 million between 2009, when his tax return showed a tax loss carryover of about $1.5 million, and 2012, when his tax return showed a tax loss carryover of about $500,000. She stated, "[I]n order to properly calculate support and the division of community assets, I would like full documentation and disclosure of this gain." Elizabeth had a subpoena duces tecum served on Christopher, ordering him to produce the following documents at the November 12 hearing: his "financial records for all brokerage accounts, bank accounts, and any other assets for the years 2000-present (UBS, Bank of America, and all facilities where assets may be held)[; his] Federal Tax returns for years 2000-2013[; and] Supporting documentation for the change of tax loss carryover throughout those years, especially 2009-2012."
On October 15, 2014, Christopher, represented by counsel, filed a request for an order quashing the subpoena. In support of the motion to quash, Christopher submitted a declaration from his counsel, who described some of the financial records that Christopher had previously produced to Elizabeth's counsel, and stated that Christopher had agreed to provide her with "his 2009 and 2010 tax returns and the 1099s issued by his investment accounts, which would establish his capital gains and losses for the year in which his reports of the loss carryover was reduced by approximately $1,000,000." Christopher also asked the court to issue orders implementing the judgment of dissolution, which ordered Elizabeth to allow Christopher access to the family residence to remove his separate property and inventory the community property and which ordered the parties to list the family residence for sale by July 1, 2014, and to award him attorneys' fees and costs. The hearing on Christopher's requests, including his motion to quash, was set for November 10, two days before the scheduled hearing on Elizabeth's request.
On October 27, 2014, Christopher filed a declaration in response to Elizabeth's request for order, in which he asked that his obligation to pay spousal support be terminated. Attached to the declaration were copies of Christopher's 2009 and 2010 tax returns, as well as 1099's from 2009 and 2010.
A hearing was held on Christopher's requests for order on November 10, 2014, with no court reporter present. The court heard comments from Christopher's counsel and from Elizabeth, and then ordered Christopher's counsel to provide Elizabeth with Christopher's tax return from 2011 and statements he received from UBS from 2013 to the present. The court then continued the hearing on Christopher's requests for order to November 24, 2014, and also continued the hearing on Elizabeth's request for order to the same date.
On November 20, 2014, Elizabeth filed a declaration in response to Christopher's request for order. Among other things, the declaration stated, "I have an accountant reviewing the few financial documents we have been given." On November 24, Christopher filed a hearing brief, reporting on the response to Elizabeth's subpoena duces tecum. The brief stated that Elizabeth had subpoenaed Christopher's 2010 and 2011 tax returns from H&R Block, that Christopher intended to produce his 2010 returns "along with the applicable 1099s as documentary evidence on the change from the gains and losses report in his 2009 and 2012 tax returns," and that Christopher had produced the statements for his UBS accounts from January 2013 to the present, as the court had ordered on November 10.
A hearing was held on November 24, 2014, with no court reporter present. The court heard comments from both sides, ordered Christopher to provide Elizabeth with information about his Bank of America account by 5 p.m. that day, and continued the matters to November 25.
A hearing was held on November 25, 2014, again with no court reporter present. At the hearing, the court heard opening statements from Elizabeth and from Christopher's counsel, "noted the capital gain/short-term carryover is not properly before the Court," denied Elizabeth's request to modify spousal support, and denied Christopher's request to terminate spousal support. The court ordered Elizabeth to pay Christopher $1,500 toward his attorney fees; noted that the parties agreed that Christopher could inspect the family residence and retrieve his personal items on December 10; and stated that the parties were required to agree on a broker for the family residence on or before December 8 and that if they could not agree, Christopher's counsel could bring the matter back to court on 10 days' notice. Christopher's counsel was directed to prepare a written order and submit it to Elizabeth for approval as to form. The record shows that Christopher's counsel prepared an order, but Elizabeth refused to sign it because the attorney refused to add a provision that she is "still allowed to buy out [Christopher's] interest in the house if the new realtor values the property at an amount I can afford." Elizabeth contended this provision "was a simple addition and was based on prior agreements"; Christopher's counsel responded that the superior court had made no such order.
According to an email from Christopher's counsel to Elizabeth, "The Judgment provided that the property would be listed by a mutually agreeable real estate broker and sold, unless you and [Christopher] otherwise agreed in writing, by July 1, 2014. Commissioner Langhorne made an order that [Christopher] would obtain an appraisal, and you would have until [D]ecember 1, 2014 to buy his interest based on that value, otherwise the property would be sold. This has not happened. You now must choose [a broker]. Once that broker is chosen, undoubtedly he or she will do a market analysis and recommend a listing price to you, and if, at that time, you want to make an offer to [Christopher] to pay him an equalizing payment in exchange for his interest in the property, based on the proposed listing price, he will be reasonable in his response to such an offer. Neither Judge Ortiz nor Commissioner Langhorne has ever made an order that you could 'buy out' [Christopher] for any amount other than based on the appraisal he obtained, which you chose not to do."
On December 9, 2014, Christopher filed a request for entry of the order prepared after the November 25 hearing, and an order designating a broker, because the parties had not agreed on one. Christopher requested the hearing be set on shortened notice so that any orders could be entered before his attorney's retirement date, set for December 31.
On December 17, 2014, the superior court held a hearing to consider the entry of an order from the November 25 hearing and to determine a listing agent for the family residence. The trial court signed the written order prepared by Christopher's counsel after the November 25 hearing, which Elizabeth had declined to approve as to form. The trial court also signed an order designating a listing broker for the family residence, requiring the parties to perform any actions necessary to sell the property "as is," and requiring Elizabeth to pay an additional $1,000 in attorneys' fees. The two signed orders were filed on December 18. This appeal followed.
DISCUSSION
A. Principles of Appellate Review
It is a fundamental principle of appellate review that a judgment or order challenged on appeal is presumed to be correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham).) "All intendments and presumptions are indulged to support it on matters as to which the record is silent," and it is the appellant's burden to affirmatively demonstrate error. (Ibid.)
This means that the appellant must present an adequate record for review, and appellant's failure to do so requires us to resolve an issue against the appellant. (Oliveira v. Kiesler (2012) 206 Cal.App.4th 1349, 1362.) Furthermore, the appellant must "cite the particular portion of the record supporting each assertion made. It should be apparent that a reviewing court has no duty to search through the record to find evidence in support of a party's position." (Williams v. Williams (1971) 14 Cal.App.3d 560, 565 (Williams).) In addition, an appellant must present reasoned argument and legal authority to support his or her contentions, or the court may treat those contentions as forfeited. (Berger v. California Insurance Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007 (Berger).)
Even if an appellant can show error, we will not reverse a trial court judgment or order unless the appellant shows prejudice from the error, which requires appellant to show that it is " 'reasonably probable that, absent the error, the appellant would have obtained a more favorable result.' " (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823 (Falcone).)
These principles apply not only to appeals where parties are represented by counsel, but also to appeals where the parties represent themselves, as Elizabeth and Christopher do here. (See Stokes v. Henson (1990) 217 Cal.App.3d 187, 198 [self-represented party is entitled to the same consideration as other litigants and attorneys, but not to anything more], citing Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638.) Bearing all this in mind, we turn to Elizabeth's contentions on appeal. B. Analysis
Elizabeth contends that the trial court erred in refusing to order Christopher to produce all the documents identified in her subpoena duces tecum. We review a trial court's discovery order for abuse of discretion. (Venture Law Group v. Superior Court (2004) 118 Cal.App.4th 96, 101 (Venture Law Group)). Judicial discretion " ' " 'implies the absence of arbitrary determination, capricious disposition or whimsical thinking. It imports the exercise of discriminating judgment within the bounds of reason.' " ' " (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) " 'The appropriate [appellate] test for abuse of discretion is whether the trial court exceeded the bounds of reason.' " (Ibid.)
The record reflects that the trial court ordered that Christopher produce some of the documents that Elizabeth requested in her subpoena. Elizabeth does not explicitly acknowledge this in her briefs on appeal.
As we will discuss, Elizabeth has not provided us with a record, or citations to legal authority, or reasoned argument to show that the superior court abused its discretion in its response to Christopher's motion to quash the subpoena. Consequently, she has not met her burden as appellant, and we must affirm.
The record includes Elizabeth's request for an order increasing spousal support, with her declaration asserting that modification is appropriate because Christopher failed to report assets; Christopher's request for an order quashing the subpoena, with supporting declarations from Christopher and his counsel; and each party's response to the other's request for order. The record includes the subpoena at issue, which is incorporated in the declaration supporting Christopher's motion to quash. The record reflects that the motion to quash came on for hearing on November 10, 2014, and that the superior court heard from Christopher's counsel and from Elizabeth, and ordered Christopher to provide certain financial documents. The record also reflects that at the continued hearing on November 24, the trial court heard from both sides and ordered Christopher to provide additional financial documents. And at the further continued hearing on November 25, the trial court again heard from both sides and "noted the capital gain/short-term carryover is not properly before the Court." We have no reporter's transcripts from those hearings, which means we have only the documents in the Clerk's transcript to rely upon.
In her opening brief, Elizabeth complains that the superior court "deprived [her] of adequate time to secure a court reporter for our first hearing," stating that Christopher's "attorney requested an order shortening time simply due to his impending retirement from the law profession and our hearing was therefore held the day before the Thanksgiving holiday, and no court reporter was available." This complaint is belied by the very portion of the Clerk's Transcript on which Elizabeth relies. The request for an order shortening time was submitted to the court on December 9, and could not have had any effect on a hearing held before Thanksgiving. Furthermore, the record contains five minute orders, from July 25, November 10, 24, and 25, and December 17, 2014. The minutes show that there was no court reporter for any of the first four court dates, but there was a court reporter for the December 17 hearing, which was held on shortened notice.
In addition to the record, we have briefs from the parties. Elizabeth's briefs are replete with unsupported factual assertions. With respect to the law, she cites Family Code sections that set forth the obligations of spouses to disclose their assets and liabilities, and contends that Christopher has not complied with his statutory obligations. These meager citations and contentions do not constitute legal argument that the trial court abused its discretion in ruling on Christopher's motion to quash.
Elizabeth has failed to provide a record that would support her position on appeal, she has failed to provide citations to the record to support the assertions of fact contained in her briefs, and she has failed to provide legal authority or argument to support her contention that the superior court erred. On this record and with these briefs, we conclude that Elizabeth has forfeited her arguments on appeal. (Berger, supra, 128 Cal.App.4th at p. 1007; Williams, supra, 14 Cal.App.3d at p. 565.) But even if we concluded that she had preserved them, we have no basis to conclude from this record and Elizabeth's contentions that the superior court abused its discretion with regard to Elizabeth's subpoena. (Denham, supra, 2 Cal.3d at p. 564; Venture Law Group, supra, 118 Cal.App.4th at p. 101.) And even if we had some basis to conclude that the superior court had erred, Elizabeth has not shown prejudice. (Falcone, supra, 164 Cal.App.4th at p. 822.) In particular, she has not shown that if the superior court had required Christopher to provide all the documents she requested, the court would not have ordered that the parties move forward with selling the family residence. In these circumstances, we must affirm.
For the sake of completeness, we now turn our attention to some additional issues that Elizabeth references in her appellate briefs.
Although Elizabeth states several times in her opening brief that her only request on appeal is that her original subpoena be honored, she also states, without any citations to the record, that "[i]f [her] expert witness had been allowed to testify, it would have been abundantly clear to the court" that Christopher had not made the full disclosures of assets required by the Family Code. In her reply brief, Elizabeth states that, "[t]he trial court erred in not allowing [her] expert witness . . . to testify to the overt omissions, errors and discrepancies in [Christopher's] financial disclosures and tax returns." Neither of Elizabeth's briefs contains any citations to the record, or legal argument or authority to support her contentions about the trial court's refusal to allow testimony from her expert, and consequently we treat this point as forfeited. (Berger, supra, 128 Cal.App.4th at p. 1007; Williams, supra, 14 Cal.App.3d at p. 565.)
Elizabeth raises two further points for the first time in her reply brief. She contends that the trial court "denied [her] rights to due process in receiving full financial disclosures from [Christopher]," and that the trial court erred in stating that the loss of child support when her twins graduated from high school was not a "change in circumstances" pursuant to Family Code section 4326. These contentions are not supported by citations to the record, or to reasoned argument or legal authority and therefore Elizabeth has forfeited them. (Berger, supra, 128 Cal.App.4th at p. 1007; Williams, supra, 14 Cal.App.3d at p. 565.) In any event, "we will not address arguments raised for the first time in the reply brief." (Provost v. Regents of University of California (2011) 201 Cal.App.4th 1289, 1295.)
We conclude that Elizabeth has not met her burden to demonstrate that the superior court erred in issuing the orders filed on December 18, and therefore we will affirm those orders.
DISPOSITION
The orders of the superior court are affirmed. Respondent shall recover his costs on appeal.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Stewart, J.