Marriage of Berris CA1/5 ( 2016 )

Filed 2/22/16 Marriage of Berris CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re the Marriage of DENNIS and
PANAGIOTA BERRIS.
DENNIS BERRIS,
A144583
Appellant,
v. (Contra Costa County
Super. Ct. No. MSD13-01039)
PANAGIOTA BERRIS,
Respondent.
In an April 18, 2014 stipulated family law dissolution judgment, the court assigned
appellant Dennis Berris responsibility for the IRS tax liabilities for tax years 2010 and
2011. The IRS deducted the amounts owed for these tax years from respondent
Panagiota Berris’s 2013 tax refund. Panagiota1 filed a petition seeking reimbursement
from Dennis. Not surprisingly, the court granted the petition. Dennis appeals. We
affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
We are more than somewhat handicapped in our review by the very limited and
inadequate record provided by Dennis. The clerk’s transcript contains the register of
actions, Panagiota’s request for order, a responsive declaration from Dennis (with
1
We refer to each party by first name because of their shared surname. No
disrespect is intended.
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attachments), a minute order, an order after hearing, and little more. No transcript is
provided of the January 23, 2015 hearing at which the contested order was issued.
The register of actions indicates that on April 17, 2014, the parties appeared before
a family law judge, were sworn, and confirmed they had reached a settlement of all issues
in their pending marital dissolution proceeding. The court granted a dissolution judgment
(Judgment), and a stipulation of the parties was attached to the Judgment and
incorporated by reference. The Judgment was filed the following day. No copy of the
Judgment or stipulation is included in the record.2
On September 10, 2014, Panagiota filed a request for order in which she averred
that Dennis “was assigned and obligated to pay the IRS tax liabilities for 2010 and 2011
per the divorce order issued April 17, 2014.” She declared that Dennis had failed to pay
those obligations and, as a result, the IRS deducted a total of $2,286.40 from her 2013 tax
refund to satisfy those liabilities. She sought reimbursement for this amount. In
opposition, Dennis submitted a declaration alleging that the disputed tax liabilities were
“satisfied on April 15, 2014,” and that there were no open tax liabilities for tax years
2010 and 2011 on the date of the Judgment. He attached IRS account transcripts for the
two tax years.3
A contested hearing was held on January 23, 2015. The court struck Dennis’s
declaration as untimely, but allowed both parties to “orally address the court about the
issues raised in [Panagiota’s] request.” As noted ante, no transcript of this hearing has
been provided. The minute order from the hearing, and an order after hearing (Order)
2
Panagiota attaches to her brief what appears to be a copy of two pages of a
stipulation and order. While she cites to it as a copy of the court’s April 17, 2014 order,
it bears no court filing stamp, no signatures, and is obviously incomplete. While a party
may attach as exhibits copies of materials in the appellate record, this document is not
such a copy and we may not consider it. (See Cal. Rules of Court, rule 8.204(d).)
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Although stricken by the trial court, the account transcripts appear to support
Panagiota’s position—confirming a “credit transferred in” on April 15, 2014 “from
1040 201312” of $259.38 for the 2010 tax year, and a “credit transferred in” from the
same referenced form 1040 of $2,027.02 for tax year 2011. The two amounts total the
requested reimbursement of $2,286.40. The court allowed oral presentation on the issues.
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both state that “[Dennis] shall reimburse [Panagiota] in the amount of $2,286.40 for the
2010 and 2011 IRS obligation that [Dennis] was ordered to pay pursuant to the
[Judgment].”
Dennis appeals the Order.
II. DISCUSSION
We reiterate settled rules of appellate review, often unfamiliar to pro se litigants.
“ ‘A judgment or order of the lower court is presumed correct. 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.’ ” (Denham v.
Superior Court (1970) 2 Cal. 3d 557, 564.) The appellant has the burden of
demonstrating error on the part of the trial court. (Ketchum v. Moses (2001) 24 Cal. 4th
1122, 1140–1141; People v. Giordano (2007) 42 Cal. 4th 644, 666 [“ ‘ “error must be
affirmatively shown” ’ ”].) “[T]he party asserting trial court error may not . . . rest on the
bare assertion of error but must present argument and legal authority on each point
raised.” (Boyle v. CertainTeed Corp. (2006) 137 Cal. App. 4th 645, 649.) “To
demonstrate error, appellant must present meaningful legal analysis supported by
citations to authority and citations to facts in the record that support the claim of error.”
(In re S.C. (2006) 138 Cal. App. 4th 396, 408; see Cal. Rules of Court, rule 8.204(a)(1)(B),
(C).)
Dennis is not exempt from the rules because he chose to represent himself on
appeal. (Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246; McComber v. Wells (1999)
72 Cal. App. 4th 512, 522–523.) “[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.”
(Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal. App. 4th 1200, 1210.)
Dennis provides no copy of the Judgment and no transcript of the January 23,
2015 hearing. The inadequate record of the January 23, 2015 hearing would alone be
fatal to Dennis’s claim. “The party seeking to challenge an order on appeal has the
burden to provide an adequate record to assess error. [Citation.] Where the party fails to
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furnish an adequate record of the challenged proceedings, his claim on appeal must be
resolved against him.” (Rancho Santa Fe Assn. v. Dolan-King (2004) 115 Cal. App. 4th
28, 46.) We are required to presume that the record contains evidence to support every
finding of fact, unless an appellant affirmatively shows otherwise. (Huong Que, Inc. v
Luu (2007) 150 Cal. App. 4th 400, 409.) “ ‘ “[I]f any matters could have been presented to
the court below which would have authorized the order complained of, it will be
presumed that such matters were presented.” ’ ” (Foust v. San Jose Construction Co.,
Inc. (2011) 198 Cal. App. 4th 181, 187.) Without an adequate record, Dennis cannot meet
his burden of demonstrating error.
His position, in any event, would fail on the merits. The totality of his argument
here is that the IRS considers the tax liabilities at issue to be joint and several and that
Panagiota remained individually liable for the taxes regardless of the Judgment’s terms.
While undoubtedly true, it is irrelevant. The issue is not the obligation of either party, or
both parties to the IRS, or whether the IRS could properly seize funds from Panagiota.
The sole question before the court was whether Dennis had complied with his obligations
under the Judgment. While no copy of that Judgment is before us, the relevant provision
was cited by the court in its order. Dennis does not deny that the Judgment required him
to reimburse Panagiota for the tax obligations, and does not deny that he failed to do so.
Moreover, Dennis in his opening brief acknowledges that the court ordered him “to
reimburse [Panagiota] pursuant to the Judgment of Dissolution.” It appears the court did
nothing more than enforce the terms of the Judgment. Dennis fails to explain how this
was error.
III. DISPOSITION
The Order is affirmed. Costs on appeal are awarded to Panagiota.
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_________________________
BRUINIERS, J.
WE CONCUR:
_________________________
SIMONS, Acting P. J.
_________________________
NEEDHAM, J.
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