Marriage of MacKinnon and Gilbert CA4/1 ( 2016 )

Filed 2/9/16 Marriage of MacKinnon and Gilbert CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of
LAURA CARMEN MACKINNON
and ANDREW ERNESTO GILBERT.
D066200
LAURA CARMEN MACKINNON,
Respondent, (Super. Ct. No. DS46531)
v.
ANDREW ERNESTO GILBERT,
Appellant.
APPEAL from a judgment and order of the Superior Court of San Diego County,
Roderick W. Shelton, Robert C. Longstreth, Albert T. Harutunian III, Judges. Affirmed.
Andrew Ernesto Gilbert, in pro. per., for Appellant.
Pyle Sims Duncan & Stevenson and Michael Y. MacKinnon for Respondent.
Appellant Andrew Ernesto Gilbert, a self-represented litigant, appeals from a
judgment of dissolution and on reserved issues following trial. In its judgment, the
family court resolved issues of child custody and visitation, child and spousal support,
property division, attorney fees and costs, and Family Code1 section 271 sanctions. It
also found that no evidence showed respondent Laura Carmen MacKinnon had willfully
disobeyed a "right of first refusal" order permitting the noncustodial parent under
specified circumstances an option to care for the children when the custodial parent
needed childcare. On appeal, Gilbert challenges a posttrial order in which the family
court found Gilbert's order to show cause (OSC) for contempt based on the right of
refusal order was barred because the issue had been addressed in the underlying trial, and
alternatively dismissed it on grounds Gilbert's papers failed to set forth a prima facie case
of contempt. Gilbert challenges other aspects of the family court proceedings and orders
before and during trial. Because Gilbert has not demonstrated error, much less
prejudicial error, we affirm the judgment and order.
FACTUAL AND PROCEDURAL BACKGROUND
We state the background facts and procedure from documents in the appellate
record.2 Gilbert and MacKinnon obtained a judgment of dissolution as to marital status
1 Statutory references are to the Family Code unless otherwise stated.
2 We are compelled to point out that Gilbert's "statement of the case" and "statement
of facts" sections in his opening appellate brief are one-sided presentations of the "facts"
and procedure, which is threaded throughout with a mixture of general contentions and
rambling argument. Gilbert asserts he lacked sufficient time to prepare for trial or review
MacKinnon's exhibits and witness list, and that he was not permitted to present witnesses.
He intersperses his claims with assertions and arguments about improper service of
process; the family court's failure to hold pretrial his contempt proceeding or hear his fee
waiver request, which somehow affected Gilbert's appeal relating to discovery; and the
unfairness of his trial. Gilbert reargues the merits of his case rather than tailoring the
2
only in December 2012. In May 2013, the family court, Judge Roderick Shelton, granted
MacKinnon's request to retain a forensic accountant. That month, Gilbert filed a motion
to compel production of documents by MacKinnon, and asked the court to order that she
pay his attorney fees and costs. Gilbert was granted a fee waiver in connection with his
request.
In July 2013, Judge Shelton tentatively denied Gilbert's motion to compel
production and set the matter for further hearing in October 2013. A few days later, the
court set a December 16, 2013 trial date. Eventually, the court appointed certified public
accountant Karen Kaseno by the parties' stipulation.
On October 18, 2013, MacKinnon successfully moved ex parte for an order that
Gilbert comply with accountant Kaseno's requests for certain financial information to
permit Kaseno to complete a support analysis. That same day, Judge Shelton denied
Gilbert's motion to compel production of documents.
On November 15, 2013, MacKinnon filed a Judicial Council findings and order
after hearing (FOAH) form. This form reflected that the court had tentatively denied
Gilbert's motion to compel discovery as well as its rulings on Gilbert's other requests to
modify child support and for attorney fees and costs. Several days later, Gilbert filed an
order to show cause re contempt, alleging MacKinnon had violated an August 2012
factual statement to the issues on appeal. We acknowledge that Gilbert has chosen to
represent himself on appeal. Nevertheless, he is bound to follow the rules and principles
that govern the presentation of facts and arguments in appellate briefs. (Nwosu v. Uba
(2004) 122 Cal.App.4th 1229, 1246-1247.)
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family court services report on 53 occasions because MacKinnon did not relinquish
visitation to him (give him the "right of first refusal") when she required childcare for
more than four hours.
On December 3, 2013, Gilbert moved to vacate the upcoming December 16 and
17 trial dates and also asked the court to order MacKinnon's counsel to file a FOAH for
the October 18, 2013 hearing on Gilbert's motion to compel discovery. In part, Gilbert
argued he had "good cause to file an appeal in regards to the decisions that the court
ordered on October 18, 2013 due to erroneous legal errors that jeopardized my open
discovery." He asserted, "In order to proceed and not have my window of appeal
jeopardized the FOAH for October 18, 2013 should have been filed by opposing counsel
within 10 days of the ruling."
On December 4, 2013, the family court, Judge Robert Longstreth, ordered
Gilbert's prior fee waivers to be retroactively withdrawn and that Gilbert pay the court
$825 in initially-waived fees. The court ruled that "[i]nformation in the record in this
action shows that [Gilbert] has at all times during this action had the ability to pay for
ordinary expenses [and] Court fees, as well as an excess of $20,000 in [attorney] fees."
That day, Gilbert filed a notice of appeal of the family court's October 18, 2013 order.
On December 10 and 11, 2013, MacKinnon filed her witness and exhibit lists. On
December 12, 2013, the court granted Gilbert's request for a hearing on his fee waiver,
ruling that the hearing would follow the trial.
The matter proceeded to trial on Monday, December 16, 2013. Before trial,
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Gilbert objected that he had not been timely served with MacKinnon's trial brief, and
asked that the trial be "canceled" and that service be made on him. On the court's
questioning, Gilbert stated he had received the trial brief the previous Monday. The court
found a week was sufficient time to read it and denied his request. Gilbert then raised his
request for a fee waiver hearing, and the court explained that it had granted the hearing,
which would be held at the conclusion of the trial. When Gilbert stated he was unable to
pay to subpoena witnesses, the court explained to him he was incorrect: that the hearing
"stays the effect of the [previous] denial of the fee waiver until we have the hearing, so
you can't possibly be prejudiced . . . ." Finally, Gilbert stated that discovery was not
complete, and mentioned that he had a pending appeal. The court explained: "If you had
wanted a stay, you should move for a stay. You essentially did move for a stay by asking
for a continuation of the trial. I denied that. You are now essentially rearguing the same
thing. I'm denying it again. [¶] And it's up to the higher court at this point to stay if
that's what they want to do. I don't have jurisdiction over them. But if they think the trial
shouldn't go forward, there are things that they can do, which apparently they haven't
done."
The matter proceeded to trial before Judge Longstreth on December 16, 17 and 18,
2013, and January 16 and 17, 2014. On January 17, 2014, the court held the contested
hearing on Gilbert's fee waiver, and ordered Gilbert to pay $825 in fees to the court.
Later that month, MacKinnon filed a new FOAH reflecting that on October 18, 2013, the
court had denied Gilbert's discovery motion to compel production of documents.
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In February 2014, Judge Albert Harutunian III heard Gilbert's OSC re contempt.
After hearing argument on the matter, the court found that Gilbert's claim that
MacKinnon had repeatedly violated the right of first refusal order had been litigated in
the prior trial. It also ruled in the alternative that Gilbert's papers lacked the specificity
necessary to justify arraignment for a contempt claim, and did not set forth a prima facie
case. The court therefore dismissed the OSC re contempt. The court's FOAH was filed
on April 22, 2014.
On May 8, 2014, the family court filed its judgment on the reserved issues of the
modification of child custody, child support, visitation, spousal support, attorney fees and
costs, and the parties' requests for section 271 sanctions. In part, the court found "there
has been no showing of willful disobedience by mother of the right of first refusal . . . ."
It granted MacKinnon's request for section 271 sanctions in the amount of $5,000.
Gilbert appeals from the May 8, 2014 judgment.
DISCUSSION
I. Principles of Appellate Review
Before we turn to Gilbert's contentions, we emphasize that he as the appellant
"must be able to affirmatively demonstrate error on the record before the court." (In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.) We apply the settled
rule that the family court's orders are presumed correct, with " ' "[a]ll intendments and
presumptions . . . indulged to support [them] on matters as to which the record is
silent . . . . This is not only a general principle of appellate practice but an ingredient of
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the constitutional doctrine of reversible error." ' " (In re Marriage of Bower (2002) 96
Cal.App.4th 893, 898, quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see
In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) If the order is correct on any
theory, this court will affirm it regardless of the family court's reasoning. (See Estate of
Beard (1999) 71 Cal.App.4th 753, 776-777; D'Amico v. Board of Medical Examiners
(1974) 11 Cal.3d 1, 18-19.) If Gilbert fails to support issues with pertinent or cognizable
legal argument we may deem them abandoned without discussion. (Dietz v.
Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 799; Associated Builders &
Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352. 366, fn. 2.) " 'It
is not our place to construct theories or arguments to undermine the judgment and defeat
the presumption of correctness. When an appellant fails to raise a point, or asserts it but
fails to support it with reasoned argument and citations to authority, we treat the point as
waived.' " (Dietz, at p. 799.)
Further, it is Gilbert's obligation to tailor his arguments to the applicable standard
of appellate review. (People v. Foss (2007) 155 Cal.App.4th 113, 126 ["When an
appellant fails to apply the appropriate standard of review, the argument lacks legal
force"]; Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d 1372, 1388.)
Finally, "error alone does not warrant reversal. 'It is a fundamental principle of
appellate jurisprudence in this state that a judgment will not be reversed unless it can be
shown that a trial court error in the case affected the result.' [Citation.] ' "The burden is
on the appellant, not alone to show error, but to show injury from the error." ' [Citation.]
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'Injury is not presumed from error, but injury must appear affirmatively upon the court's
examination of the entire record.' [Citation.] 'Only when an error has resulted in a
miscarriage of justice will it be deemed to be prejudicial so as to require reversal.'
[Citation.] A miscarriage of justice is not found 'unless it appears reasonably probable
that, absent the error, the appellant would have obtained a more favorable result.' " (In re
Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at pp. 822-823.)
These rules apply to self-represented litigants like Gilbert, who are entitled to the
same, but no greater, consideration than other litigants and are held to the same rules of
procedure. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985; Wantuch v. Davis
(1995) 32 Cal.App.4th 786, 795.) Gilbert's decision to act as his own attorney does not
warrant exceptional treatment. (Rappleyea, at p. 985.)
II. Gilbert Has Not Shown Error or Prejudice
Applying these appellate review principles compels us to reject Gilbert's
arguments. Though Gilbert includes a heading for the relevant review standard in his
arguments, in virtually all of them he recites the purportedly erroneous actions taken by
the family court, rather than the principles that are to guide this court in reviewing his
claims. This deficiency can constitute, in and of itself, a concession of lack of merit.
(James B. v. Superior Court (1995) 35 Cal.App.4th 1014, 1021.) At a minimum, the flaw
results in his arguments constituting a mere rehashing of arguments about the strength of
the evidence, which is not open on appeal. (Paterno v. State of California (1999) 74
Cal.App.4th 68, 102.) It is not appropriate to place on this court the burden of
discovering without his assistance any weakness in the respondent's arguments. (Ibid.)
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Though we briefly address Gilbert's arguments seriatim, in short, Gilbert has shown
neither error nor prejudice.
A. Judge Harutunian's Order Dismissing the OSC re Contempt
Gilbert challenges the family court's order dismissing his OSC re contempt.
Ignoring the court's alternative order that the matter had been litigated and resolved at
trial, Gilbert argues the court erred in finding that he did not prove his prima facie case
with substantial evidence. Though Gilbert states that this court reviews the record to
determine whether there are facts to support it, he does not provide any authority for that
proposition. Furthermore, Gilbert's arguments, as we stated above, merely rehash the
evidence he maintains supports his request for a finding of contempt. Gilbert recounts
the trial proceedings before Judge Longstreth in an attempt to show that MacKinnon's
counsel was "manipulative" and "ignore[d] Court orders . . . ." Gilbert argues the family
court "did not have all available information regarding first right of refusal, nor was [he]
allowed a fair and objective trial with all the points described above . . . ." He asks this
court to "review the judgment and allow for all information that was submitted by
[MacKinnon] to not be allowed as exhibits allowed due to non-legal compliant Proof of
Service . . . ." Finally, Gilbert asks for an "arraignment of [MacKinnon] . . . once all
information is gathered . . . ."
None of these arguments acknowledge the standard of review, or apply that
standard or any other applicable legal principles to the contempt issue. Assuming we
review the issue for substantial evidence, in view of Gilbert's failure to provide a fair and
complete summary of the evidence in favor of the family court's judgment, he has
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forfeited any contentions regarding the sufficiency of the evidence. (Foreman & Clark
Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Nwosu v. Uba, supra, 122 Cal.App.4th at
pp. 1246-1247.) Elsewhere in his brief, Gilbert sets out some of the legal standards
applicable to a contempt proceeding but he does not apply those principles to the specific
facts or the family court's determination of the issue, as he is required to do. (See
Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 [appellate brief failed to
present any issue where it cited only general legal principles without relating them to any
specific facts or admissible evidence].) Because Gilbert makes no pertinent or cogent
legal argument to demonstrate error, we do not consider his claims. (Dietz v.
Meisenheimer & Herron, supra, 177 Cal.App.4th at p. 799; Sims v. Department of
Corrections & Rehabilitation (2013) 216 Cal.App.4th 1059, 1081; Strutt v. Ontario Sav.
& Loan Assn. (1972) 28 Cal.App.3d 866, 873.)
B. Insufficient Trial Preparation
Gilbert contends the family court "allowed [him] a little more than a day
reviewing only the brief and no exhibits, witness lists etc., reflecting moving the trial
forward is with prejudice against [him]." Gilbert argues, "It clearly shows for a long trial
that [he] was entitled 5 court days to be provided all information . . . ."3 Though it is
3 Gilbert relies on California Rules of Court, rule 5.394, which sets out the contents
of briefs in cases in which the judge orders each party to complete a trial or hearing brief
or other pleading (Cal. Rules of Court, rule 5.394(a)), and further states that "[t]he parties
must serve the trial or hearing brief on all parties and file the brief with the court a
minimum of 5 court days before the trial or long-cause hearing." (Cal. Rules of Court,
rule 5.394(b).) Gilbert does not provide a record citation to any order indicating that the
family court required the parties to file trial briefs.
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apparent that Gilbert maintains he was prejudiced by untimely service of MacKinnon's
trial brief and other exhibits and not having enough time to review documents or do
research, in the body of this section, Gilbert raises his inability to proceed with his
appeal, which is somehow related to delay in filing the related FOAH. He confusingly
maintains he was "handicapped to not be able to continue appeal; right to discovery; and
subpoena witnesses for trial" and he was "not allow[ed] . . . a fair trial without prejudice."
Gilbert does not set forth a coherent standard of review for these propositions.
Gilbert's arguments are advanced without any meaningful legal argument or supporting
case authority, and on that ground alone, we could disregard the contention. (Associated
Builders & Contractors, Inc. v. San Francisco Airports Com., supra, 21 Cal.4th at p. 366,
fn. 2.) In any event, his assertions are contradicted by the record, which reflects that
based on Gilbert's representation that he had received MacKinnon's trial brief a week
earlier, the family court found Gilbert had sufficient time to review it. The record further
reflects that MacKinnon's exhibit and witness lists were served on Gilbert on December
10 and 11, 2013, before the December 16 trial. Gilbert's briefing has not shown any due
process violation or any other error, much less prejudicial error, in connection with his
trial preparation. We will not presume prejudice. It is an appellant's burden to persuade
us that the court erred in ways that result in a miscarriage of justice. (In re Marriage of
Dellaria (2009) 172 Cal.App.4th 196, 204-205; Cal. Const., art. VI, § 13.) Gilbert has
made no such showing.
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C. Gilbert's Fee Waiver Hearing
Gilbert challenges the family court's ruling on his fee waiver, contending he
"brought the attention to the court regarding the fee waiver hearing" but the court put the
issue of his fee waiver off until after trial. According to Gilbert, he "could not move
forward with appeal, nor exercise his right to have witnesses at trial, file a motion to
postpone trial in order to ascertain appellate court decision on open discovery, and have
[his] contempt proceeding heard." As the applicable "standard of review," Gilbert states:
"The court instead stated it would not be prejudice to have the hearing trail the trial."
Gilbert's arguments are utterly without legal authority or reasoned argument. We
deem them forfeited.
D. Admission of MacKinnon's Documents into Evidence
Gilbert contends the family court "showed prejudice by allowing [MacKinnon] to
move evidence forward" and by not allowing him to "move evidence forward." He
maintains MacKinnon's counsel did not follow local rules or procedures by failing to give
him five court days to look at the documents, "tag teamed" him, and did not timely give
him her exhibits or witness list.
We interpret this claim as a challenge to the court's admission of MacKinnon's
evidence, which we review for abuse of discretion. (City of Ripon v. Sweetin (2002) 100
Cal.App.4th 887, 900 [appellate court applies abuse of discretion standard of review to
trial court rulings on the admissibility of evidence].) Doing so, we are unable to discern
from all of these somewhat repetitive points and Gilbert's briefing a coherent legal
argument that would justify reversing the family court's judgment. Gilbert does not
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undertake any analysis relating to the abuse of discretion standard of review. He
provides no coherent legal analysis or discussion of the local rules on which he relies.
Nor does he engage in any analysis explaining how MacKinnon's purported misconduct
(or that of her counsel) impacted the family court's ruling on the reserved issues. We
shall not reverse the judgment absent a showing of error resulting in a miscarriage of
justice. Gilbert makes no such showing here.
E. Family Court's Finding on Gilbert's Income
Gilbert contends the "trial court erred [in finding] that [he] had available income
for support." He argues the court's imputation of income to him was "in error due to no
more clients and business closed . . . ." Because these arguments challenge the family
court's finding without setting forth all of the material evidence on the point or explaining
how it is insufficient to support those findings, the contention is forfeited. (Foreman &
Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881; Nwosu v. Uba, supra, 122 Cal.App.4th
at p. 1246.) Gilbert is not free to ignore facts that support the judgment. (In re A.R.
(2014) 228 Cal.App.4th 1146, 1152.)
F. Family Court's Orders Excluding Evidence and Regarding Attorney Fees and Section
271 Sanctions
Gilbert makes a somewhat confusing set of arguments that begin with a contention
that the family court "refused to accept" some unspecified documents. Gilbert then
purports to recite his asserted income and debts. He points to the family court's order on
attorney fees and, apparently based on that order, challenges its order that Gilbert pay
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section 271 sanctions, asserting that "[MacKinnon] too should be sanctioned for her
behavior."
The family court denied both parties an award of attorney fees because "[t]here is
not a sufficient level of income or asset disparity such to allow the Court to make an
award." However, it granted MacKinnon's request for section 271 sanctions in the
amount of $5,000 in connection with forensic expert Kaseno's efforts to analyze Gilbert's
income, finding Gilbert "repeatedly violated the court orders by refusing to participate in
the income for support analysis and repeatedly manufactured allegations about
[MacKinnon] throughout the case and advanced arguments and positions that were not
reasonable and which were pursued beyond the point they should have been."
Gilbert has forfeited any challenge to the court's order awarding MacKinnon
$5,000 in section 271 sanctions. Section 271 advances the policy of the law " 'to promote
settlement and to encourage cooperation which will reduce the cost of litigation.' " (In re
Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.) Thus, "[f]amily law litigants
who flout that policy by engaging in conduct that increases litigation costs are subject to
the imposition of attorneys' fees and costs as a sanction." (Ibid.; see also In re Marriage
of Falcone & Fyke, supra, 164 Cal.App.4th at p. 827.) The standard of review for an
order imposing sanctions under section 271 is abuse of discretion. (In re Marriage of
Feldman (2007) 153 Cal.App.4th 1470, 1478.) " ' " '[T]he 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.' " ' [Citation.] 'In reviewing such an
award, we must indulge all reasonable inferences to uphold the court's order.' " (Ibid.)
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Gilbert does not address these principles, much less acknowledge the family
court's underlying reasoning concerning his compliance with Kaseno's requests. Gilbert
merely argues that if the court declined to award either party attorney fees, but
nevertheless ordered him to pay sanctions, MacKinnon should also have been ordered to
pay sanctions. These arguments do not provide any basis to overturn the court's sanctions
order. To the extent Gilbert maintains the sanctions order is unsupported by the evidence
of his income, he has again failed to meet his burden to set forth "all the material
evidence on the point and not merely [his] own evidence." (Nwosu v. Uba, supra, 122
Cal.App.4th at p. 1246.) Gilbert has purported to set forth his own evidence, but not any
of MacKinnon's evidence on this point, and thereby has waived the contention.
G. Court's Exclusion of Evidence from Animal Control
Gilbert contends the court erred by excluding for lack of foundation a report from
animal control that he sought to admit into evidence at trial. He suggests the court was
"leading [MacKinnon's] attorney for why the evidence should not come in thus showing
prejudice towards [his] cross examination." Gilbert does not address the relevant abuse
of discretion review standard, however, or explain how the court's ruling violated it. He
does not demonstrate that he asserted any timely or specific objection on grounds the
court itself raised the basis for excluding the evidence. For these reasons, his contention
is forfeited.
In any event, a trial court's numerous rulings against a party, even when erroneous,
" 'do not establish a charge of judicial bias, especially when they are subject to review.' "
(People v. Fuiava (2012) 53 Cal.4th 622, 732.) Gilbert challenges the court's rulings in a
15
conclusory manner, and he does not explain with citations to the law and cogent
argument why they were incorrect. We are " 'not required to make an independent,
unassisted study of the record in search of error or grounds to support the judgment.' "
(McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)
Finally, it is settled that an erroneous exclusion of evidence does not require
reversal except where the error caused a miscarriage of justice. (Evid. Code, § 354, subd.
(a) ["A verdict or finding shall not be set aside, nor shall the judgment or decision based
thereon be reversed, by reason of the erroneous exclusion of evidence unless the court
which passes upon the effect of the error . . . is of the opinion that the error . . .
complained of resulted in a miscarriage of justice and it appears of record that: [¶] . . .
The substance, purpose, and relevance of the excluded evidence was made known to the
court by the questions asked, an offer of proof, or by any other means"]; People v.
Richardson (2008) 43 Cal.4th 959, 1001.) Gilbert makes no such showing.
H. MacKinnon's Offer to Give Gilbert Additional Time with Their Children
Gilbert contends the court "erred in believing [MacKinnon's] testimony with no
factual information presented to the Court that she did in fact make the offer she
claimed." Gilbert appears to refer to some sort of settlement discussion or offer
concerning Gilbert's time with their children; he complains that the evidence showed
MacKinnon did not offer him additional time or correspond with him about it and that
MacKinnon's testimony on the subject was "not true." This amounts to a request that we
reweigh or reevaluate MacKinnon's credibility, which we will not do on appeal. (See In
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re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531; In re Marriage of Calcaterra
& Badakhsh (2005) 132 Cal.App.4th 28, 34.)
Gilbert's deficient briefing, combined with the lack of reasoned analysis pertinent
to the questions on appeal, compel us to conclude he has not made any cognizable
appellate contentions. As a result of these failings, and absent any persuasive legal
authority on the question, Gilbert likewise has not demonstrated error or prejudice. In
reaching our conclusions, we are mindful that Gilbert represents himself on appeal.
However, as we have already explained, his status as a party appearing in propria persona
does not provide a basis for preferential consideration.
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DISPOSITION
The judgment and order are affirmed.
O'ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
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