Breitman v. Breitman CA2/6 ( 2015 )

Filed 7/29/15 Breitman v. Breitman CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
SHARA BREITMAN, 2d Civil No. B257255
(Super. Ct. No. SD033769)
Plaintiff and Respondent, (Ventura County)
v.
GERALD BREITMAN, an Incompetent
Person, etc.,
Defendant and Appellant.
Husband appeals an order awarding all insurance policies on
husband's life to wife. We affirm.
FACTS
Shara (wife) and Gerald (husband) Breitman dissolved their marriage
in 2007. The parties have an adult child, who is disabled and requires ongoing care
and support.
The parties entered into a marital settlement agreement (MSA) in
April 2007. The agreement required husband to pay wife spousal support. It also
required husband to make wife beneficiary of four specified insurance policies
insuring husband's life. The MSA provides the court reserves jurisdiction over any
assets not specifically covered by the agreement and to make further orders to carry
out the provisions of the agreement. The court entered judgment on the agreement.
In August 2008, husband was diagnosed with Alzheimer's type
dementia. He moved for a termination of spousal support because he was unable to
work. The court terminated husband's obligation to pay spousal support.
Eventually, the court ordered wife to pay husband $1,500 per month in support.
The parties continued to dispute various matters, including ownership
of husband's life insurance policies.
The matter came on for trial on March 2, 2012. The court had
appointed the Public Guardian as husband's guardian ad litem. County counsel
represented husband and the guardian at trial. The court allowed husband's
caretaker, Bonnie Cimo, and a representative from the Alzheimer's Association to
be present to help him understand the proceedings. Wife appeared with her
counsel. The parties waived a court reporter.
After some evidence was taken at trial, counsel for each of the parties
entered into a stipulation for judgment. The trial court entered judgment pursuant to
the stipulation. As to husband's life insurance policies, the judgment states: "[A]ll
life insurance policies covering the husband are awarded to wife who shall be the
owner thereof and pay all premiums thereon."
Thereafter, the court relieved the Public Guardian and County
Counsel. The court appointed husband's caretaker, Bonnie Cimo, as guardian ad
litem. The court denied husband's motion for reconsideration.
DISCUSSION
I.
Husband contends there is no evidence that the parties agreed to
transfer ownership of insurance policies covering his life.
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But, here, the parties waived a court reporter. In an appeal without a
reporter's transcript, the sufficiency of the evidence cannot be challenged. (Ducray
v. Ducray (1967) 257 Cal. App. 2d 480, 482.)
In any event, it appears from the court's minutes that counsel
stipulated in open court, someone wrote out the stipulation by hand, and the trial
court approved the stipulation and made it its judgment. Husband cites no authority
that such a procedure is improper.
Husband argues that the Public Guardian, his guardian ad litem, was
not present in court. But the Public Guardian was represented by county counsel at
trial. Husband cites no authority requiring the guardian ad litem to be personally
present.
Husband argues the order does not reflect the agreement he made and
that, in any event, he is incompetent to make an agreement. But that is the point.
Husband is incompetent to make an agreement so his guardian ad litem, through
counsel, made an agreement for him.
Code of Civil Procedure section 372, subdivision (a)(1), provides in
part that a guardian ad litem "shall have power, with the approval of the court in
which the action or proceeding is pending, to compromise the same [and] to agree
to the order or judgment to be entered therein . . . ." That is what occurred here.
Husband argues the court lacked jurisdiction to make the order. He
argues the order is broad enough to encompass insurance policies obtained after the
MSA and for which others are paying the premiums. Husband points to no
evidence of any such policies. In addition, the MSA provides the court reserves
jurisdiction over any assets not specifically covered by the agreement and to make
further orders to carry out the provisions of the agreement.
Although, the MSA mentions four particular policies as belonging to
wife, the guardian ad litem and the trial court may have concluded it was intended
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to encompass all policies insuring husband's life. Wife is the caretaker of the
parties' disabled daughter, who will need support and may not be competent to hold
the policies in her own name.
The judgment is affirmed. The parties shall bear their own costs.
NOT TO BE PUBLISHED.
GILBERT, P. J.
We concur:
YEGAN, J.
PERREN, J.
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Matthew P. Guasco, Judge
Superior Court County of Ventura
______________________________
Ribet & Silver, Claudia Ribet for Defendant and Appellant, through
his Guardian ad Litem Bonnie Cimo.
Stephanie Farr White for Plaintiff and Respondent.