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Nirshberg v. Nirshberg (In re Marriage of Nirshberg)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Mar 5, 2020
B287324 (Cal. Ct. App. Mar. 5, 2020)

Opinion

B287324

03-05-2020

In re the Marriage of ALINA and ALEX NIRSHBERG ALEX NIRSHBERG, Appellant, v. ALINA NIRSHBERG, Appellant.

Alex Nirshberg, in pro per., for Appellant Alex Nirshberg. Alina Nirshberg, in pro per., for Appellant Alina Nirshberg.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BD565752) APPEAL from an order of the Superior Court of Los Angeles County. Amy M. Pellman, Judge. Affirmed. Alex Nirshberg, in pro per., for Appellant Alex Nirshberg. Alina Nirshberg, in pro per., for Appellant Alina Nirshberg.

Alina Nirshberg and Alex Nirshberg cross-appeal from the trial court's decision after a bench trial in this marital dissolution action. Each party challenges various aspects of the trial court's decision. Alina challenges the amount of spousal support awarded; the trial court's decision not to award retroactive child support; and the issuance of a "Gavron warning," among other things. Alex contends that the trial court failed to consider his medical condition, and erroneously favored Alina in its orders. Both parties have failed to acknowledge the standard of review, or adequately present and cite to the relevant evidence. Neither party has shown that substantial evidence did not support the various factual decisions they challenge. Therefore, we affirm the order in its entirety.

As is customary in family law cases, we refer to the parties by their first names for convenience and clarity. No disrespect is intended. (Kuehn v. Kuehn (2000) 85 Cal.App.4th 824, 828, fn. 2.)

A "Gavron warning" is "a fair warning to the supported spouse he or she is expected to become self-supporting." (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 55; see In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712.)

BACKGROUND

The parties have provided a limited record on appeal. The background facts are taken from the trial court's statement of decision. Where the parties have asserted facts not supported by citation to the record, we disregard such facts. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

Alex and Alina were married on June 21, 1991, and separated on May 1, 2012. They continued to live together after the date of separation and were living together at the time of the trial of this matter. Alex and Alina have two children: Amenda, who was age 21 at the time of trial, and Emma, who was age 12 at the time of trial.

During the marriage, Alex worked as a business analyst for Molina Healthcare. For part of the marriage Alina worked as a Certified Public Accountant doing specialized work for the music industry. Alina now takes care of her elderly mother, but plans to return to work after she completes the necessary credits to upgrade her certification.

Alex filed a petition for dissolution of marriage on June 7, 2012. The trial was held on August 7, 8, and 14, 2017. On August 29, 2017, the trial court filed its statement of decision after trial.

The 17-page statement of decision after trial initially discussed custody issues pertaining to the couple's minor child, Emma. Alex is required to pay monthly child support of $1,056. After consideration of all of the factors set forth in Family Code section 4320, as well as the length of the marriage and the marital standard of living, the court determined that Alex should pay to Alina the sum of $875 per month in spousal support, until Alina remarries, either party dies, or until further order of the court. The court then addressed "Reimbursements and Potential Breach of Fiduciary Duties." The court declined to award either party funds for breaches of fiduciary duty because neither party provided sufficient evidence to support such a claim. However, the court found that Alex withdrew community funds and placed them in his separate account. Only a portion of those funds were used for the support of the community.

Specifically, Alina alleged that Alex liquidated community funds including CISCO stock, a life insurance policy, and cash advances from community credit cards. Alex claimed that the money was used solely for community expenses such as the mortgage, insurance, gas and electricity. The court noted that Alex was employed earning close to $100,000 per year for most of the marriage, with the exception of a 13-month period of unemployment. During that time, the family received assistance from "Keep your home California" in the amount of $54,000. Alina argued that the $54,000 was more than sufficient to pay the mortgage and bills during that time.

The court made the following relevant factual determinations as to the various community reimbursements:

1. Discover card -- the court confirmed that the balance of approximately $8,000 was separate property debt of Alex. The debt was acquired after the date of separation and Alex provided no evidence that it was used to pay community debt.

2. Liquidation of CISCO stock -- both parties agreed that CISCO stock valued at $54,000 was acquired by the parties during marriage. Alex cashed in the stock after the date of separation. While there was little evidence as to how it was spent, the court felt it was equitable to offset a portion towards community expenses. The court determined that Alex spent $2,500 per month on family expenses, and charged the rest of the debt to Alex ($21,500). Thus, Alex owes Alina one-half the remainder of the debt, or $10,750.

3. State Farm Life Insurance -- the parties agreed that a whole life insurance policy valued at $9,998 was acquired during the marriage. Alex cashed in the policy after the date of separation. Alex provided no evidence that the funds were used to pay community debt, thus Alex owes Alina one-half value of the policy, or $4,999.

4. Citi Diamond Preferred card -- both parties agreed that this card was used during the marriage. Alina presented evidence that the balance at the date of separation was $13,055. Alina presented evidence that she paid off the card in full. Thus, Alex owed Alina $6,527 for one-half of this community debt.

5. Retirement Accounts -- both parties had retirement accounts that were acquired during marriage and were thus community property. Alex's retirement account was larger. The court ordered that Alex pay an offset to Alina of $95,299.

6. First Republic bank account -- Alina presented evidence that Alex withdrew $27,000 on June 21, 2012, from a joint credit card and deposited the funds into his separate bank account at First Republic. Alex failed to provide evidence that the funds were used to pay community debt or expenses, thus the court ordered Alex to pay Alina one-half of the cash transfer amount, or $13,500.

On September 6, 2017, Alina filed objections to the statement of decision. She argued that the spousal support was too low considering Alex's salary throughout the marriage, and asked that the court provide a mechanism for her to adjust it. Alina also objected that the court did not order retroactive spousal support. Alina requested that the court recalculate child support and order retroactive child support. Alina objected to the court's finding that Alex did not breach his fiduciary duties by selling stock during the post-separation period, and grant her a remedy for such breaches. Alina asked that the court grant her 100 percent of the balance withdrawal from the Discover credit card, since Alina paid 100 percent of the balance.

The parties have not included in the record any response from the court as to Alina's objections. However, the case summary shows orders made subsequent to the filing of the objections, on October 17, 2017, and November 27, 2017.

It does not appear that any notice of entry of judgment was mailed or served. Alina filed her notice of appeal on December 28, 2017. Alex filed his notice of appeal on February 1, 2018.

DISCUSSION

I. Applicable law and standards of review

Both Alina and Alex appeal from the trial court's statement of decision. They disagree with factual determinations the trial court has made as to how to equitably divide the parties' assets and settle their financial disputes. "Generally, we review a ruling dividing property under the abuse of discretion standard. [Citation.]" (In re Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th 196, 201.) "Factual findings are upheld if supported by substantial evidence." (Ibid.) Under this standard, "'we examine the evidence in the light most favorable to the prevailing party and give that party the benefit of every reasonable inference. [Citation.] We accept all evidence favorable to the prevailing party as true and discard contrary evidence. [Citation.]' [Citation.]" (In re Marriage of Rothrock (2008) 159 Cal.App.4th 223, 230.)

Both parties in this matter are proceeding in pro. per. Thus, the basic rules of appellate practice bear repeating. A judgment or order of the lower court is presumed 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 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.]" (Ibid.) It is appellant's obligation to articulate claims of reversible error and "present argument and authority on each point made." (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591 (Lackner).) An appellant's failure to meet this burden may be considered an abandonment of the appeal. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)

Furthermore, we are "'not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. . . . Accordingly every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.' [Citation.] [¶] It is the duty of [appellant], not of the courts, 'by argument and the citation of authorities to show that the claimed error exists.' [Citation.]" (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050 (Sprague).) Appellants must provide citations to the record and supporting legal authority for each of the points they attempt to make.

An appellant's decision to act as his own attorney on appeal does not entitle him to any leniency as to the rules of practice and procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

Where issues in an appellant's opening brief are not properly presented or sufficiently developed to be cognizable, we decline to consider them and treat them as waived. (People v. Stanley (1995) 10 Cal.4th 764, 793; In re David L. (1991) 234 Cal.App.3d 1655, 1661.)

Both Alex's and Alina's opening brief present procedural problems to review. However, to the extent we can ascertain their arguments and the relevant facts, we address them below. Each appeal is addressed separately.

II. Alina's appeal

A. Amount of spousal support; retroactive spousal support; Gavron warning

Alina's opening brief first addresses three issues: the amount of spousal support, the issue of retroactive spousal support, and the issuance of a Gavron warning. For each of these topics, Alina fails to address the standard of review or explain how the trial court's decision constitutes an abuse of discretion under the circumstances. Alina recites facts from the record but fails to explain how such facts lead to reversal under the relevant standards of review. Alina cites one nonpublished case, In re Marriage of Lillestrand (2009) 2009 Cal.App.Unpub. LEXIS 8294, contrary to the California Rules of Court. (Cal. Rules of Court, rule 8.1115.) Alina cites the case for the proposition that a court should assess if a supported spouse could ever become fully self-supporting. However, she provides no pincite to this discussion within the nonpublished decision. Further, the appellate record reveals that the trial court thoroughly considered Alina's ability to become self-supporting.

Rules of Court, Rule 8.1115, subdivision (a) provides that, with limited exceptions, "an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action."

Alina cites In re Marriage of Morrison (1978) 20 Cal.3d 437 for the proposition that the Gavron warning should be dispensed with. Once again, Alina provides no pincite nor any reasoned legal argument as to the applicability of this case to the present matter. In Morrison, the trial court abused its discretion by "divesting itself of jurisdiction to award future spousal support," not by issuing a Gavron warning. (Morrison, at p. 454.)

Alina has failed to meet her obligation to articulate claims of reversible error and "present argument and authority on each point made." (Lackner, supra, 97 Cal.App.3d at p. 591.) Thus, we presume the trial court's decision is correct on these issues. (Denham, supra, 2 Cal.3d at p. 564.)

B. Retroactive child support

Alina next addresses the issue of retroactive child support. She takes issue with the trial court's decision that since the parties were residing in the same household and each contributing to the minor child's welfare, there was insufficient evidence to order retroactive child support. Alina cites Helgestad v. Vargas (2014) 231 Cal.App.4th 719 for the proposition that Alex has the burden of proving in-home child support. Again, Alina has failed to provide a pincite or any reasoned discussion of the case and its relevance to the present matter. Helgestad involved the issue of whether a father who was never married to his children's mother was eligible for credit for in-home child support during a period of reconciliation with the children's mother. (Id. at p. 721-722.) It does not appear to be relevant in the present divorce matter, and we are not required to make an independent analysis in search of error. (Sprague, supra, 166 Cal.App.3d at p. 1050.) "It is the duty of [appellant], not of the courts, 'by argument and the citation of authorities to show that the claimed error exists.' [Citation.]" (Ibid.) Alina has failed to meet her burden of showing reversible error.

C. CISCO stock

Alina contests the trial court's decisions regarding Alex's sale of the CISCO stock in three ways. First, she contests the trial court's finding that she failed to show a breach of fiduciary duty in violation of Family Code section 1100, subdivision (e). She further contends that the trial court erred in its assignment of monetary value to the sale of the stock, and in offsetting a portion of it for presumed use on community expenses.

Family Code section 1100, subd. (e) provides, in part: "Each spouse shall act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships which control the actions of persons having relationships of personal confidence . . . until such time as the assets and liabilities have been divided by the parties or by a court."

In contesting the trial court's finding on the breach of fiduciary duty issue, Alina merely reiterates the evidence that was before the trial court. Alina asks us to review this evidence and reach a different conclusion from that of the trial court. Alina provides no discussion of the requirements for a breach of Family Code section 1100, subdivision (e), nor does she address the trial court's finding that she failed to sufficiently establish a breach of fiduciary duty at trial. Alina has failed to meet her obligation to articulate a claim of reversible error as to the trial court's decision that Alex did not engage in a breach of fiduciary duty. (Lackner, supra, 97 Cal.App.3d at p. 591.)

To the extent that Alina raises the issue of equal management and control pursuant to Family Code section 1100, subdivision (a), Alina has failed to provide a citation to the record showing that she raised this issue in the trial court. We do not address issues raised for the first time on appeal. (In re Campbell (2017) 11 Cal.App.5th 742, 757.)

Alina next challenges the trial court's assignment of a numerical value of $54,000 to the sold CISCO stocks. Alina points to exhibit 319, which shows the stock was sold for a net of $58,807.24. However, the trial court indicated that "[b]oth parties agree that the CISCO stock valued at $54,000 was acquired during the marriage." Alina provides no citation to the record showing that she did not agree to this numerical value, nor does she show that she made a motion to the trial court to correct the court's purported error. Under the circumstances, we presume that, as the trial court indicated, the parties agreed to the value of the stock. Alina has failed in her burden of showing error. (Lackner, supra, 97 Cal.App.3d at p. 591.)

Alina cites testimony during which she referred to Alex cashing in the CISCO stock for $58,897. However, Alina does not represent that she is citing to the entirety of the evidence on the value of the stock, nor does she indicate that she objected to the court's statement of decision on this issue.

Alina quotes the trial court's decision that it would allocate $2,500 per month from the sale of the CISCO stock towards community expenses. As Alina points out, the trial court indicated that "neither party provided a great deal of evidence on this time period," thus it allocated a "reasonable" amount of the proceeds from the sale of stock to community expenses. Alina cites Fowler v. Seaton (1964) 61 Cal.2d 681, 687 which held that, where proof of negligence is "'under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care,'" that such circumstances afford reasonable evidence that the accident arose from want of care. Alina contends that under this authority, it is Alex's burden to show that the CISCO funds were used for the community.

Alina also cites In re Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.App.4th 1252, but provides no pincite nor reasoned discussion of the case or its applicability to the present circumstances. The Margulis court determined that the trial court erred in failing to shift the burden of proof to the husband where the husband was the managing spouse and substantial community assets had gone missing without explanation. (Id. at pp. 1257-1258.) Margulis is distinguishable in that the husband had moved out of the home and the couples' children were adults living elsewhere. In this matter, the parties shared the home after separation, and shared custody of their minor child.

Alina argues that Alex failed to provide evidence to support a finding that $2,500 per month of the CISCO stock was allocated to the community or their children. Alex responds that he provided evidence of checks written to Alina, and that he cashed out the stock out of necessity. Alex's testimony on this topic was that the parties agreed that it was necessary to cash out the stock and that it would be used for community expenses. Upon the court's inquiry, Alex confirmed that he paid the community expenses such as "mortgage and insurance, clothes, school, [and] food through those proceeds."

Alex fails to provide citations to the record on this point.

The trial court's determination that Alex used some of the proceeds of the CISCO stock cash-out for community expenses must be upheld if supported by substantial evidence. (In re Marriage of Dellaria & Blickman-Dellaria, supra, 172 Cal.App.4th at p. 201.) Under this standard, we must accept all evidence favorable to the prevailing party as true and discard contrary evidence. (In re Marriage of Rothrock, supra, 159 Cal.App.4th at p. 230.) The trial court apparently made this reasonable allocation based on Alex's testimony that the parties agreed the cash out of stock was necessary, that it would be used to support the community, and that it was, in fact, used to support the community. Alina has failed to point to evidence, or make reasoned argument, that the trial court's decision was not supported by this testimonial evidence. Therefore, we decline to find error.

D. Transfer of $13,924.90 from community joint account to Alex's personal account

Alina contends that during trial it was established that Alex transferred $13,924 from community funds to his separate checking account. Alina argues that 50 percent of these funds should be returned to her. Alina provides citations to the record showing a discussion of such a transfer taking place prior to the parties' separation. Alina does not provide any reasoned discussion regarding the fact that this transfer allegedly occurred before separation. Nor does she provide any legal authority as to the effect of the timing of the transfer. We are not required to develop this argument on Alina's behalf. (Lackner, supra, 97 Cal.App.3d at p. 591 [appellant must "present argument and authority on each point made"].) Under the circumstances, we decline to address it. (In re David L., supra, 234 Cal.App.3d at p. 1661 [where a claim is "not properly presented or developed," the appellate court need not address it].)

E. One-half Discover card balance

Alina contends that Alex transferred money from her separate Discover card to his separate bank account during the post-separation period, and that there was no evidence that this money was used for community expenses. Alina does not state the amount of the withdrawal, nor point to any record citations to permit this court to evaluate her claim. In the absence of any references to assist us in understanding her argument, we decline to find reversible error. (In re David L., supra, 234 Cal.App.3d at p. 1661 [where a claim is "not properly presented or developed," the appellate court need not address it].)

III. Alex's cross-appeal

Alex's cross-appeal contains no citations to the record and fewer legal authorities than Alina's. Alex's appeal consists mainly of unsupported contentions regarding the outcomes that he feels the trial court should have reached on various issues. These issues include: his entitlement to Epstein credits; the court's failure to consider his health condition; the court's failure to assign half of the community's debt of $50,000 to Alina; Alina's purportedly false statements that Alex had not paid support or expenses for the children since the date of separation; and the trial court's failure to award Alex half of the tax refunds for the year 2012 when the parties filed jointly.

Alex's table of authorities lists only Family Code section 2626 and numerous canons taken from the California Code of Judicial Ethics. Alex provides no legal authority for the proposition that this court may enforce the California Code of Judicial Ethics against a judge. The Commission on Judicial Performance is the entity responsible for disciplining judges. (Cal. Const., art. VI, §§ 8, 18; Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, 384.) Alex's opening brief is completely devoid of any other supporting case law or statutory law, or any pertinent discussion of the law.

Alex does not provide a citation to any case law defining the term "Epstein credits," but provides a citation to Family Code section 2626, which provides that "[t]he court has jurisdiction to order reimbursement in cases it deems appropriate for debts paid after separation but before trial."

Alex includes a request for sanctions against Alina for this alleged perjury. He cites no legal authority for such a sanction under the circumstances of this case. --------

Appellant's failure to provide record citations and citations to legal authority in support of any of his claims is fatal to his appeal. "'[T]o demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.' [Citation.]" (Hernandez v. First Student, Inc. (2019) 37 Cal.App.5th 270, 277.) We are not bound to develop Alex's arguments for him. (Ibid.) "Rather than scour the record unguided, we may decide that the appellant has waived a point urged on appeal when it is not supported by accurate citations to the record. [Citations.]" (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287.) "Similarly, we may disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt. [Citations.]" (Ibid.)

We decline to find error on the points raised by Alex because they lack reference to the record and fail to include any legal basis for reversal.

DISPOSITION

The order is affirmed. Each party shall bear his or her own costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

/s/_________, J.

CHAVEZ We concur: /s/_________, P. J.
LUI /s/_________, J.
HOFFSTADT


Summaries of

Nirshberg v. Nirshberg (In re Marriage of Nirshberg)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO
Mar 5, 2020
B287324 (Cal. Ct. App. Mar. 5, 2020)
Case details for

Nirshberg v. Nirshberg (In re Marriage of Nirshberg)

Case Details

Full title:In re the Marriage of ALINA and ALEX NIRSHBERG ALEX NIRSHBERG, Appellant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

Date published: Mar 5, 2020

Citations

B287324 (Cal. Ct. App. Mar. 5, 2020)