Marriage of Yuan CA4/1 ( 2015 )

Filed 9/25/15 Marriage of Yuan CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of JONATHAN YUAN
and RACHEL YUAN.
D066980
JONATHAN YUAN,
Appellant, (Super. Ct. No. DN143104)
v.
RACHEL CLAUDE,
Respondent.
APPEAL from an order of the Superior Court of San Diego County, William
Wood, Commissioner. Affirmed.
Jonathan Yuan, in pro. per., for Appellant.
Law Offices of Stephen Temko, Stephen Temko and Dennis G. Temko, for
Respondent.
Jonathan Yuan appeals a postjudgment family court order that awarded an omitted
asset, the family home, solely to his former wife, Rachel Claude (Fam. Code, § 2556)1;
selected an alternative valuation date for the home (§ 2552, subd. (b)); awarded her
Epstein credits for mortgage payments and other expenses she incurred for the home (In
re Marriage of Epstein (1979) 24 Cal. 3d 76, 84-85); denied him a Watts charge for the
rental value of the home during the period she was in exclusive possession (In re
Marriage of Watts (1985) 171 Cal. App. 3d 366, 374); and awarded her attorney fees
(§ 2030). Yuan appears in propria persona, and because of significant deficiencies in his
briefing and his failure to provide us with a reporter's transcript or other competent
statement of the evidence adduced at the hearing, we are unable to address the merits of
the court's ruling. Accordingly, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
In 1994, Yuan and Claude married. She lived in China until he brought her to the
United States, and English is not her native language. The parties have one child
together, a daughter born in 1995.
In 2005, the parties separated, and in August 2006, Yuan petitioned for dissolution
of the marriage. Yuan was presumably familiar with dissolution procedures, as he had
been married "multiple times" in California before marrying Claude. The petition denied
there were any assets or debts subject to court disposition. Likewise, in a request for
entry of default, Yuan represented there were no community assets or debts subject to
1 Further statutory references are to the Family Code.
2
court disposition. He submitted a declaration that stated child support and child custody
and visitation should be ordered as set forth in a proposed judgment.
A default was entered by the court clerk. On November 30, 2006, the court
entered a judgment of dissolution, specifying the parties would have single status on
March 2, 2007. The judgment granted the parties joint legal custody of their daughter,
with physical custody and visitation at Rachel's discretion. It ordered Yuan to pay $470
in monthly child support when the daughter lived with Rachel, and ordered Rachel to pay
$400 per month when the daughter lived with Yuan. The judgment notes "[t]here are
no . . . assets or debts subject to disposition by the court."
In August 2008, Claude filed a motion for modification, seeking the adjudication
of omitted assets, including the family home. Claude's declaration noted her difficulty
with the English language, and stated: "None of the community property was divided at
the time of the dissolution. [Yuan] did give me a payment for my share of an IRA but I
never saw the paperwork. We never divided any of the stock in TD Ameritrade. We
never divided the mobile home that we bought during the marriage. He is living in the
mobile home. I still live in the marital residence located [in] San Marcos. . . . I have
been paying for the mortgage, taxes and insurance on this property." According to
Claude, Yuan never disclosed his finances to her.
3
Yuan opposed the motion. He claimed that all community assets were divided
long before the dissolution, with the exception of the family home, which Claude had
agreed to sell. At some point, the court denied the motion.2
Even though he opposed Claude's motion, in December 2012, Yuan moved for
disposition of the family home. He requested that the home be put on the market in six
weeks "and thereafter sold in 6 months when either party decides to sell it, with the other
party being allowed to buy out at then-appraised price." He also requested one-half "of
the monthly market-rate rents" for the period Claude was in exclusive possession, offset
by her payment of the mortgage, property taxes and insurance. He explained the home
was omitted from his petition because it "was already on the market for sale before the
judgment," but Claude reconsidered and decided to live "in the house indefinitely and to
find roommates and collect rents."
Claude opposed the motion, and after an August 2013 hearing, the court denied it.
The court determined it lacked jurisdiction to address omitted assets because "box 7h on
the original petition was not checked." The court advised that either party could file an
amended petition with the box checked. Box 7h lists "Property rights be determined" as
an issue in the proceeding.
2 It is unclear whether the order on Claude's August 2008 motion is in the appellate
record. The clerk's transcript includes an order dated January 21, 2009, which denied her
any relief. Claude advises that this order pertains to an October 2008 motion she brought
to set aside the judgment. Claude, however, mistakenly states the date of the order is
January 21, 2008. In a 2014 pleading, Claude indicated the court heard her motion for
disposition of the home in January 2009.
4
An amended petition was presumably filed, because another hearing on the matter
was held in August 2014. Claude continued to oppose Yuan's motion. She denied ever
intending to sell the family home, because "I had sole custody of our daughter and it was
important that we could remain in the house." She argued there was good cause not to
divide the property equally based on Yuan's unclean hands in omitting the asset from the
dissolution, and opposing her 2008 motion, and because she "has had the burden of
paying all of the expenses (mortgage, property taxes and maintenance) while [he]
contributed nothing. He got to keep his money and save it while she was burdened with
paying all the costs." Claude argued that if the court determined Yuan had an interest in
the home, she was entitled to Epstein credits.3 Further, she requested an alternative
valuation date of August 2008 or January 2009 "which is that date I requested that this
court adjudicate omitted assets."
3 " 'Where one spouse has the exclusive use of a community asset during the period
between separation and trial, that spouse may be required to compensate the community
for the reasonable value of that use.' [Citation.] That right to such compensation is
commonly known as a 'Watts charge.' [Citation.] Where the Watts rule applies, the court
is 'obligated either to order reimbursement to the community or to offer an explanation
for not doing so.' [Citation.] But 'where the asset is not owned by the community but is
being financed,' the spouse in possession 'may satisfy the duty to compensate the
community for use of the asset by making the monthly finance payments from his or her
separate property.' [Citation.] Such offsets are commonly called 'Epstein credits.'
[Citation.] [¶] The trial court determines what is due the community 'after taking into
account all the circumstances' relevant to the exclusive possession by one spouse." (In re
Marriage of Falcone & Fyke (2012) 203 Cal. App. 4th 964, 978-979; In re Marriage of
Epstein, supra, 24 Cal.3d at pp. 84-85; In re Marriage of Watts, supra, 171 Cal.App.3d at
p. 374.)
5
Both parties testified at the hearing, but the appellate record does not include a
reporter's transcript. The order from the hearing does not indicate a court reporter was
present. At oral argument on appeal, Yuan represented that the trial court did not provide
a reporter and he did not retain one. He conceded he did not ask the court to issue a
settled statement.
The court's order states it determined the family home was community property; a
valuation date of January 1, 2009, applied; as of that date, the value of the home was
$385,000, and the equity was $221,879.65; and Claude had "paid all the mortgage
payments, property taxes, insurance and maintenance costs from approximately August
2006 through the present date," and thus she was entitled to Epstein credits of
$147,184.73. The court denied Yuan's request for a Watts charge.
The court also found good cause for an unequal division of the property under
section 2556, and awarded the home to Claude as her separate property. The court noted
that by omitting the home from the petition and default judgment documents, Yuan
"misrepresented the true facts regarding community assets and debts to the court."
Further, in 2008, Claude filed a "proper motion" to adjudicate omitted assets, including
the home, and Yuan opposed the motion. The court also noted that even without an
unequal division, Yuan would receive little or no equity in the property because of
Claude's Epstein credits.
Additionally, the court determined a mobile home purchased during the marriage
was Yuan's separate property; a 2006 federal tax return of $4,030 was community
property, and Yuan owed one-half of that amount to Claude, with interest; and a 2000 tax
6
debt was Yuan's separate obligation. The court denied Claude's request for sanctions, but
it ordered Yuan to pay $15,992 directly to her attorney for his fees.
In September 2014, Yuan filed a motion to set aside the court's order. The court
denied the motion, explaining Yuan did not properly serve Claude with it, and he
provided no legal basis for any relief. The court ordered Yuan to contribute another
$1,600 to Claude's attorney fees.
DISCUSSION
I
Yuan represents himself on appeal, as he did at the trial court, and there are
numerous deficiencies in his briefing. " 'When a litigant is appearing in propria persona,
he is entitled to the same, but no greater, consideration than other litigants and
attorneys. . . . Further, the in propria persona litigant is held to the same restrictive rules
of procedure as an attorney.' " (Bianco v. California Highway Patrol (1994) 24
Cal. App. 4th 1113, 1125-1126; Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1245-1246.)
Yuan purports to challenge the court's factual findings, but his opening brief does
not present cogent arguments. "[T]o demonstrate error, an appellant must supply the
reviewing court with some cogent argument supported by legal analysis . . . ." (City of
Santa Maria v. Adam (2012) 211 Cal. App. 4th 266, 286-287.) Coherent arguments are
required "to 'lighten the labors of the appellate [courts].' " (In re Marriage of Falcone &
Fyke, supra, 203 Cal.App.4th at p. 1004.)
The opening brief also lacks any discussion of the applicable standard of review.
"As in every appellate matter, the threshold issue here is the proper standard of review."
7
(Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal. App. 3d 605, 611.) " '[A] standard of
review prescribes the degree of deference given by the reviewing court to the actions or
decisions under review.' " (San Francisco Fire Fighters Local 798 v. City and County of
San Francisco (2006) 38 Cal. 4th 653, 667.) " 'Arguments should be tailored according to
the applicable standard of appellate review.' [Citation.] Failure to acknowledge the
proper scope of review is a concession of lack of merit." (Sonic Manufacturing
Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal. App. 4th 456, 465.)
Further, Yuan's briefing largely omits citations to the record (Cal. Rules of Court,
rule 8.204(a)(1)(C))4, and with scant exception it fails to cite legal authority suggesting
any infirmity with the court's findings (rule 8.204 (a)(1)(B) [legal authority required
when possible]). "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.] 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." (City of Santa Maria
v. Adam, supra, 211 Cal.App.4th at p. 287.)
We conclude Yuan's briefing constitutes a forfeiture of appellate review. " 'The
reviewing court is not required to make an independent, unassisted study of the record in
search of error or grounds to support the judgment.' " (Horowitz v. Noble (1978) 79
Cal. App. 3d 120, 139.)
4 Further rule references are to the California Rules of Court.
8
II
Further, even if Yuan's briefing was acceptable, his appeal is defeated by his
failure to provide us with a reporter's transcript from the hearing or any other competent
statement of the evidence. "It is well settled, of course, that a party challenging a
judgment has the burden of showing reversible error by an adequate record." (Ballard v.
Uribe (1986) 41 Cal. 3d 564, 574.) "In lieu of a reporter's transcript, an appellant may
submit an agreed or settled statement." (Foust v. San Jose Construction Co., Inc. (2011)
198 Cal. App. 4th 181, 186; Rules 8.134 & 8.137.) Yuan concedes no court reporter
attended the hearing, and he obtained no statement of the evidence.
When the record consists only of documents from the clerk's transcript, as here, it
is "treat[ed] . . . as an appeal on the judgment roll." (Allen v. Toten (1985) 172
Cal. App. 3d 1079, 1082.) In such cases, review is limited to determining whether any
error "appears on the face of the record." (Nat'l. Secretarial Serv. v. Froehlich (1989)
210 Cal. App. 3d 510, 521; Rule 8.163.)
"It is axiomatic in appellate review that a judgment of a lower court is presumed
correct. [Citations.] This presumption has special significance when, as in the present
case, the appeal is based upon the clerk's transcript. 'It is elementary and fundamental
that on a clerk's transcript appeal the appellate court must conclusively presume that the
evidence is ample to sustain the findings, and that the only questions presented are as to
the sufficiency of the pleadings and whether the findings support the judgment.' " (Ehrler
v. Ehrler (1981) 126 Cal. App. 3d 147, 154.)
9
Here, no error appears on the face of the record, and all potential issues arising
from the court's order are evidentiary in nature. As to the family home, the court has
continuing jurisdiction to adjudicate an asset omitted from a dissolution judgment.
(§ 2556.) The court must divide the asset equally, unless it "finds upon good cause . . .
that the interests of justice require an unequal division." (Ibid.) We review "good cause"
and "interests of justice" findings for abuse of discretion. (In re Marriage of Leonard
(2004) 119 Cal. App. 4th 546, 563; In re Marriage of De Prieto (2002) 104 Cal. App. 4th
748, 754.)
Further, although community assets are generally valued "as near as practicable to
the time of trial" (§ 2552, subd. (a)), the court may "for good cause shown" select a
different valuation date (§ 2552, subd. (b)). "As long as the court exercises its discretion
in a legal manner, its decision will be affirmed on appeal if there is substantial evidence
to support it." (In re Marriage of Campi (2013) 212 Cal. App. 4th 1565, 1572.) The court
is also vested with discretion to order Epstein credits and/or a Watts charge if equitable
on the facts of the case before it. (In re Marriage of Watts, supra, 171 Cal.App.3d at p.
374 ["[t]hat determination should be made after taking into account all the
circumstances].") Additionally, the court has discretion to award attorney fees in a
family law proceeding. (§ 2030.)
The absence of a reporter's transcript or agreed or settled statement precludes
Yuan from challenging the court's conclusion on these issues. (Aguilar v. Avis Rent A
Car System, Inc. (1999) 21 Cal. 4th 121, 132; Vo v. Las Virgenes Municipal Water Dist.
(2000) 79 Cal. App. 4th 440, 448 ["The absence of a record concerning what actually
10
occurred at the trial precludes a determination that the trial court abused its discretion."];
Ehman v. Moore (1963) 221 Cal. App. 2d 460, 462 [failure to secure reporter's transcript
or settled statement].) The parties both testified at the hearing, but we cannot review the
testimony or assess the state of the evidence. Perhaps Claude testified convincingly that
Yuan agreed to her exclusive use of the home, at least during the minority of their
daughter, without any payment of rental value to the community.5 We may not accept
Yuan's version of events without any proof. "It is settled that a ground for reversal which
is based upon facts outside the record is not available on appeal. [Citations.] Matter
which does not appear in the record may not be considered by an appellate court upon the
suggestion of [the parties] in their briefs." (Ehman, supra, 221 Cal.App.2d at p. 463.)
Without a sufficient record, the judge who presided over the matter is "the best judge of
what occurred in his [or her] courtroom." (Vo, supra, at p. 447.)6
5 The party requesting a Watts charge has the burden of proof, and we note the
court's order states Yuan submitted no evidence, i.e., of the rental value of the family
home. On appeal, he cites Claude's Exhibit L, a Zillow.com printout suggesting rental
value, but the court excluded that exhibit.
6 Additionally, Yuan's attempt to raise a child support issue is untimely, as the
clerk's transcript indicates the issue was last addressed in 2009. The September 2014
order from which he appeals does not pertain to child support.
11
DISPOSITION
The order is affirmed. Claude is entitled to costs on appeal.
HALLER, J.
WE CONCUR:
NARES, Acting P. J.
IRION, J.
12