Trespv.Griech (In re Marriage of Tresp)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIAJan 10, 2018
D071843 (Cal. Ct. App. Jan. 10, 2018)

D071843

01-10-2018

In re the Marriage of JULIE and BRIAN TRESP. BRIAN TRESP, Appellant, v. JULIE GRIECH, Respondent.

Brian Tresp, in pro. per., for Appellant. Tipton Legal and Amy R. Lovegren-Tipton 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DN164107) APPEAL from an order of the Superior Court of San Diego County, Michael D. Washington, Judge. Affirmed. Brian Tresp, in pro. per., for Appellant. Tipton Legal and Amy R. Lovegren-Tipton for Respondent.

I.

INTRODUCTION

Appellant Brian Tresp appeals from an order dividing the proceeds of a sale of real property previously owned by Tresp and his former wife, Julie Griech. On appeal, Tresp claims that the trial court erred in determining that Griech did not transmute her interest in the real property to Tresp.

The record on appeal does not contain Griech's "Request for Order" pursuant to which the court found that Griech did not transmute her interest in the property. The record on appeal also does not contain the declarations that Griech offered in support of her request, nor several of the exhibits that she lodged with the declarations. The record also does not contain a full reporter's transcript of the hearings pursuant to which the court found that Griech did not transmute her interest in the property.

The record indicates that while a commissioner held two days of testimony on Griech's request, only the second day of testimony was reported.

The law is clear that where an appellant does not provide an adequate record to permit review of the merits of his claim, a reviewing court must affirm the order at issue. Given the deficiencies outlined above, we conclude that the record is inadequate to permit this court to determine whether the trial court erred in determining that Griech did not transmute her interest in the real property at issue. Accordingly, we affirm the court's ruling that Griech did not transmute her interest in the property and the order dividing the proceeds of the sale of the real property.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The marriage, marital settlement agreement, and dissolution

Tresp and Griech married in February 1995.

In approximately January 2011, Tresp and Griech separated. The parties entered into a marital settlement agreement (MSA) in February 2011. The MSA provides in relevant part:

"Community Real Property.

"A. The parties agree that they own [a piece of property located on Castro St. in Solana Beach (the Castro Property)]. Said Property shall be sold and the net proceeds shall be divided equally between the parties. Upon the sale of said property, any proceeds from the sale will go toward paying off debt."

The MSA also provides, "This agreement may be amended or revoked only by a writing expressly referring to this agreement and signed by both [Griech] and [Tresp]. Each of the parties waives the right to claim in the future that this agreement was modified, canceled, or superseded by oral agreement or conduct."

The trial court entered a judgment of dissolution in April 2011, declaring the parties' marriage dissolved as of August 11, 2011. The court ordered the parties' property divided as set forth in the MSA. B. The quitclaim deed

On May 23, 2011, Tresp and Griech, as grantors, signed a quitclaim deed conveying the Castro Property to Tresp as grantee. The deed states, "This property is being transfered as part of the division of property in a divorce. . . . Grantor further declares this conveyance is made due to the dissolution of marriage by one spouse to the other." C. Griech's request for order

Griech signed as "Julie Ellen Tresp AKA Julie Tresp."

Griech filed a "Request for Order" in July 2014. Although Griech's Request for Order is not in the record, it appears that Griech requested that the court divide the proceeds of the sale of the Castro Property between the parties, among other requests. It is also clear from the record that Griech filed several declarations and a memorandum of points and authorities in support of her request. These documents also are not in the record. D. Tresp's opposition

As noted in part I, ante, Griech's Request for Order is not contained in the record. In his designation of the record on appeal, Tresp appears to have attempted to designate Griech's Request for Order as a "record of [an] administrative proceeding that was admitted into evidence, refused, or lodged in the superior court . . . ." Griech's Request for Order was not a record of an administrative proceeding.

Tresp filed a memorandum of points and authorities opposing Griech's Request for Order. In his memorandum, Tresp stated that Griech argued that a "presumption of undue influence arises in this case because [Griech] received 'clearly inadequate consideration,' for executing the Quit Claim Deed in 2011." Tresp argued that this was "factually incorrect," and that he could "easily overcome the presumption."

Tresp also lodged a declaration in opposition to the request. Tresp supported his opposition with declarations from a real estate broker and his new wife, Elizabeth Tresp. E. The hearings on the request for order

A commissioner held at least two days of hearings on Griech's request. The record contains a reporter's transcript for the second day of these hearings, which occurred on October 1, 2014. The reporter's transcript for the October 1 hearing makes clear that Tresp had testified extensively with respect to Griech's Request for Order during a prior hearing held on September 24, 2014. For example, the October 1 hearing includes the following testimony:

Although the court's February 26, 2015 order on Griech's Request for Order indicates that a commissioner held hearings on September 24, 2014, October 20, 2014, and November 3, 2014, the record contains a reporter's transcript from a hearing held on October 1, 2014. The commissioner conducting the October 1 hearing indicated at the conclusion of that hearing that she would issue an oral ruling on October 20. The record is not clear as to what occurred at the October 20 hearing or the November 3 hearing. Even assuming that the commissioner did not hear testimony or issue orders relevant to the issues presented on appeal at either the October 20 hearing or the November 3 hearing, the record is clear that the commissioner did hear relevant testimony at the September 24 hearing. As noted in the text, the record contains no reporter's transcript of the September 24 hearing and thus, this court has no way to evaluate the content of that testimony.

"[Griech's counsel:] And last time when [we] were in court on the 24th, I believe you testified that you and Ms. Griech drafted the quitclaim deed together; is that correct?

"[Tresp:] That's correct." (Italics added.)
"[Griech's counsel:] And so what about -- just moving on. The last time we were in court on the 24th, and you also testified that you didn't receive any communication from either my client or our office about, you know, the issues we're here for today until July 7th, which was after the home sold. Is that correct? Are my notes correct on that issue?

"[Tresp:] I believe that what I testified was that I -- my recollection was the same as your declaration to the Court on July 10th,[] where you stated that the first time your office contacted me was on July 7th." (Italics added.)

"[Griech's counsel:] You testified on the 24th as well that you thought that Ms. Tresp had legal counsel around the time that the two of you prepared the quitclaim. Do you remember that testimony?

"[Tresp:] I do." (Italics added.)

"[Griech's counsel]: You were also questioned on the 24th about the MSA that was submitted to Chase for the loan modification in July 2012. Do you remember that?

"[Tresp:] I do.

"[¶] . . . [¶]

"[Griech's counsel:] And you were questioned on the 24th and then again today about Exhibit D to her declaration,[] the -- what you contend is the altered e-mail. Do you remember that?

"[Tresp:] I do." (Italics added.)

This declaration is not in the record.

As discussed in the text below, Griech's declaration and the exhibits attached to that declaration are not in the record.

The record does not contain a reporter's transcript of the September 24 hearing.

The October 1 reporter's transcript also makes numerous references to declarations and exhibits that are not contained in the record. For example, Griech's counsel questioned Griech about "the declaration of yours filed on August 25," and "Exhibit B" of her reply declaration. Neither the declarations nor the exhibit is in the record.

At the October 1 hearing, Griech testified concerning the circumstances of the execution of the May 2011 quitclaim deed. Griech testified that Tresp prepared the deed and that Griech signed the deed only to facilitate Tresp's assumption of a loan on the Castro Property. Griech also testified that she received no consideration for her execution of the deed. Griech's counsel asked Griech, "At any time after signing the original MSA, did you ever agree to revise the provisions [of the MSA] regarding sharing the proceeds of the [Castro Property]?" Griech responded, "No." Griech also testified that she received a May 30, 2011 e-mail referencing the Castro Property that stated, " 'I would always split any profit with you.' "

In his declaration, Tresp contended that he did not send the e-mail. Griech has lodged the May 30, 2011 e-mail, together with several other e-mails, as an exhibit with this court.

During closing arguments, Griech's counsel argued in part:

"The MSA between the parties is very specific. In accordance with her Paragraph 36 of the MSA, it can only be amended or revoked if it's in writing. And that writing has to expressly refer to the MSA and has to be signed by both parties. In this particular case, that never happened. The quitclaim deed executed by Ms. Griech in 2011, did not specifically reference the MSA.

"Further, Ms. Griech executed a quitclaim deed based upon Mr. Tresp's representations that it was necessary in order -- that she had to sign the quitclaim deed in order to have, you know, a more
favorable return on the loan. And she -- Ms. Griech did that based solely on Mr. Tresp's representation. That was the only reason, the only impetus for executing that quitclaim deed."

Tresp's counsel argued in part:

"This is a he-said, she-said on what they intended was [sic] the MSA and what they intended was [sic] the quitclaim. And it's clear to me, your Honor, that at the time she executed the quitclaim she absolutely wanted to be done with that house."

Tresp's counsel also urged the court to reject Griech's contention that Tresp had "unduly influenced" her.

At the conclusion of the hearing, the commissioner stated that she would issue an oral ruling on October 20 and that counsel could appear by telephone on that date. F. The trial court's order finding that Griech did not transmute her interest in the Castro Property

The record does not contain any reporter's transcript or minute order from proceedings on October 20, 2014.

The trial court entered an order on February 26, 2015 that states in relevant part:

"The court finds that [Griech] did not transmute all of her interest under the MSA in the [Castro Property]."
G. The trial court's November 10, 2016 order dividing the proceeds of the sale of the Castro Property

The trial court entered an order on November 10, 2016 that divided $198,781 in net proceeds of the sale of the Castro Property evenly between Tresp and Griech (i.e., $99,390 to each). The court then offset this award with various credits and charges, and ordered Tresp to pay Griech $24,237.99. H. Tresp's appeal

The offsets are not relevant to the issues raised on appeal.

Tresp appeals from the trial court's November 10, 2016 order. On appeal, Tresp seeks review of the trial court's February 26, 2015 order insofar as the court found that Griech did not transmute her interest in the Castro Property to Tresp.

Although not addressed by the parties, we have determined that we have appellate jurisdiction to review the trial court's February 26, 2015 order in this appeal from the November 10, 2016 order. The February 26, 2015 order was not an appealable postjudgment order because it contemplated further proceedings, namely those pertaining to the division of the proceeds of the sale of the Castro Property. (See In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 403 [postjudgment order determining that former wife had community property interest in asset was nonappealable because it was "interlocutory in nature, merely preliminary to an anticipated final order evaluating and dividing the asset"].) Thus, Tresp was not required to appeal from the February 26, 2015 order and he may seek review of that order in his appeal from the November 10, 2016 order dividing the proceeds. (Ibid. [postjudgment order determining that asset was community property "could be reviewed upon appeal from the subsequent final judgment on reserved issue that actually divides the asset"].) --------

III.

DISCUSSION

A. Tresp has not established that the trial court erred in determining that Griech did not transmute her interest in the Castro Property

Tresp claims that the trial court erred in determining that Griech did not transmute her interest in the Castro Property.

1. Governing law

a. Substantive law and standard of review

i. Transmutations of marital property

In re Marriage of Lafkas (2015) 237 Cal.App.4th 921, 937, the Court of Appeal summarized the law governing transmutations of marital property:

"A married person may transmute the character of property from separate to community or from community to separate by agreement or transfer, with or without consideration. ([Fam. Code,] § 850.) However, the transmutation must meet statutory requirements to be valid. (In re Marriage of Haines (1995) 33 Cal.App.4th 277, 293.) 'A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.' ([Fam. Code,] § 852, subd. (a).)" (Ibid.)

Whether a transmutation has occurred is a question for the trier of fact. (Haseltine v. Haseltine (1962) 203 Cal.App.2d 48, 59.) On appeal, a reviewing court must affirm a court's factual determination as to whether a transmutation has occurred if the decision is supported by substantial evidence. (In re Marriage of Frick (1986) 181 Cal.App.3d 997, 1016-1017 ["Given substantial evidence supports the trial court's decision [that a transmutation had not occurred], we are compelled to reject [appellant's] argument"].)

ii. Undue influence

" '[T]he requirements of [Family Code] section 852 are prerequisites to a valid transmutation but do not necessarily in and of themselves determine whether a valid transmutation has occurred.' " (In re Marriage of Lund (2009) 174 Cal.App.4th 40, 55 (Lund).) A transmutation that is obtained by undue influence is invalid. (In re Marriage of Haines, supra, 33 Cal.App.4th at pp. 293-294.)

"A rebuttable presumption of undue influence arises when one spouse obtains an advantage over another in an interspousal property transaction. [Citation.] The burden of rebutting the presumption of undue influence is on the spouse who acquired an advantage or benefit from the transaction." (In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 630.)

" 'When a presumption of undue influence applies to a transaction, the spouse who was advantaged by the transaction must establish that the disadvantaged spouse's action "was freely and voluntarily made, with a full knowledge of all the facts, and with a complete understanding of the effect of" the transaction.' [Citation.] 'The question "whether the spouse gaining an advantage has overcome the presumption of undue influence is a question for the trier of fact, whose decision will not be reversed on appeal if supported by substantial evidence." ' " (Lund, supra, 174 Cal.App.4th at. p. 55.)

b. An appellant's burden to demonstrate reversible error with an adequate record

"As with any civil appeal, we must presume the [order] is correct, indulge every intendment and presumption in favor of its correctness, and start with the presumption that the record contains evidence sufficient to support the [order]." (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1251.) "An appellant has the burden to overcome the presumption of correctness and show prejudicial error." (Silva v. See's Candy Shops, Inc. (2016) 7 Cal.App.5th 235, 260.) An appellant also has the burden of ensuring that an adequate record exists for review. (Roberson v. City of Rialto (2014) 226 Cal.App.4th 1499, 1503.)

The failure to provide this court with an adequate record not only fails to satisfy an appellant's burden to demonstrate error, but also precludes review of any asserted error. Specifically, an appellant may not contend that the record lacks substantial evidence with respect to a factual issue in a case in which the appellant does not provide a proper reporter's transcript. (Estate of Fain (1999) 75 Cal.App.4th 973, 992 (Fain). As the Fain court explained:

"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." (Ibid.)

Finally, an appellant "is not exempt from the foregoing rules because [s]he is representing [her]self on appeal in propria persona. Under the law, a party may choose to act as his or her own attorney. [Citations.] '[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]' [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)

2. Application

The record is clearly inadequate to permit this court to review Tresp's claim on appeal. To begin with, the record does not contain any of Griech's pleadings, briefing, or declarations pursuant to which the trial court found that Griech did not transmute her interest in the Castro Property. We cannot meaningfully review the trial court's finding that Griech did not transmute her interest in the Castro Property without considering the documents on which the court based its finding. (See, e.g., Christie v. Kimball (2012) 202 Cal.App.4th 1407, 1412 ["To the extent the court relied on documents not before us, our review is hampered. We cannot presume error from an incomplete record"].) In addition, while Tresp argues on appeal that the "circumstances surrounding [the] execution of the quitclaim deed" (capitalization omitted) demonstrate that there was a valid transmutation of Griech's interest in the Castro property, the lack of a full reporter's transcript precludes Tresp "from raising an argument as to the sufficiency of the evidence," to support the court's contrary finding on this issue. (Fain, supra, 75 Cal.App.4th at p. 992.) Similarly, Tresp's claim that there is "no evidence of duress to invalidate [the] quitclaim deed" (capitalization omitted), also fails for the lack of a reporter's transcript. (Ibid. ["it is presumed that the unreported trial testimony would demonstrate the absence of error"].)

In sum, the lack of an adequate record precludes us from reviewing Tresp's claims on the merits. Or to put it in more colloquial terms, as Tresp's counsel argued in the trial court, "[t]his is a he-said, she-said," with respect to the parties' intentions in executing the MSA and the quitclaim deed. Without a full record of what he said and she said, we are unable to review the trial court's orders to determine whether the court erred in its ruling.

Accordingly, we conclude that Tresp has not established that the trial court erred in determining that Griech did not transmute her interest in the Castro Property.

IV.

DISPOSITION

The trial court's February 26, 2015 and November 10, 2016 orders are affirmed.

AARON, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.