Marriage of Roney CA2/3 ( 2013 )

Filed 5/16/13 Marriage of Roney CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
In re Marriage of SONIA and STEPHEN B233870
RONEY.
_____________________________________ (Los Angeles County
Super. Ct. No. BD443374)
SONIA RONEY,
Respondent,
v.
STEPHEN RONEY,
Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Frederick Shaller, Judge. Affirmed.
Stephen Roney, in pro. per., for Appellant.
Rombro & Associates, S. Roger Rombro and Melinda A. Manley for Respondent.
_________________________
In this marital dissolution action, Stephen Roney (Husband), acting in propria
persona, appeals from the judgment on reserved issues entered after the dissolution of his
marriage to Sonia Necochea Roney (Wife). Husband challenges the court’s
characterization of four parcels of real property that he claimed to have owned before the
date of marriage or acquired with his separate property during the marriage. Husband’s
principal contention on appeal is that but for rulings denying his request for a trial
continuance and excluding recently discovered checking account registers, which he
maintained Wife had withheld during discovery, he would have been able to establish
through direct tracing that the four parcels of real property were his separate property.1
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
Husband is a certified public accountant and was licensed to practice from 1972 to
approximately 2001. Husband and Wife married on December 28, 1988. Wife petitioned
for dissolution of their marriage on April 3, 2006. Judgment of dissolution was entered
on March 1, 2010, as to status only with jurisdiction reserved over all other issues. In
phase one of the trial on reserved issues, the trial court determined the date of separation
was March 30, 2006. The second phase of the trial on reserved issues addressed the
characterization of property.
1. The Properties
Before marriage, Husband owned four properties: (1) a shopping center referred
to as “Imperial King Center” (IKC Property) in Norwalk, (2) a duplex commonly known
as 463, 477 25th Street (25th Street Property) in Hermosa Beach, (3) real property
commonly known as 2010 Blossom Lane in Redondo Beach (Blossom Lane Property),
and (4) real property commonly known as 22 Hermosa Avenue in Hermosa Beach
1
Husband refers throughout his brief to “four pieces” of real property, but he does
not further describe the property.
2
Our recitation of the facts is limited to matters in the record. We disregard facts
not supported by record citations and attempts to reargue the facts as Husband would
have them. (In re Marriage of Davenport (2011) 194 Cal. App. 4th 1507, 1531.)
2
(Hermosa Avenue Property). The mortgages on the IKC Property and the 25th Street
Property were paid during the marriage.
Three of these four properties have been sold. The 25th Street Property was sold
in 2008, after the date of separation, and the proceeds were held in a trust account. The
Blossom Lane Property and the Hermosa Avenue Property were sold during the
marriage.
Husband testified that he used the sale proceeds from the Hermosa Avenue
Property to buy a Jack in the Box restaurant in Texas (Texas Property). He held title to
the Texas Property and testified he paid off the mortgage with his separate property.
Husband and Wife held title as joint tenants to a property commonly referred to as
1129 11th Street in Hermosa Beach (11th Street Property). Husband admitted the 11th
Street Property was a community estate asset, with the exception of $102,000 of his
separate property that he invested from the sale proceeds of the Blossom Lane Property.
The trial court concluded Husband failed to meet his burden to directly trace his
separate property interest in the properties. Based upon the evidence presented at trial,
the community estate had a pro-tanto interest in the IKC Property, the 25th Street
Property sale proceeds, the Blossom Lane Property, and the Hermosa Avenue Property as
stated in In re Marriage of Moore (1980) 28 Cal. 3d 366, and In re Marriage of Marsden
(1982) 130 Cal. App. 3d 426 (Moore-Marsden formula). The trial court characterized the
Texas Property and the 11th Street Property as community property, subject to
reimbursement pursuant to Family Code section 2640 for Husband’s separate property
contribution. Husband contends his failure of proof relates to a discovery dispute with
Wife over missing checking account registers from his separate bank accounts that he
needed to show he used his separate property during the marriage to pay the mortgages
on the properties.
3
2. Ongoing Discovery Dispute Over Checking Account Registers
Husband sought to continue the trial on the reserved issues for a number of
reasons, including the parties’ ongoing discovery dispute over missing checking account
registers. Both parties accused the other one of hiding or stealing these documents.3
a. Wife’s Request for Production and Motion to Compel
In March 2008, Wife propounded discovery seeking documents to support
Husband’s separate property claims to assets acquired before marriage, during marriage,
or since separation to which Husband contended were not commingled with community
property.
Dissatisfied with Husband’s document production, Wife moved to compel. In
opposition to the motion, the sworn declaration of Husband’s counsel stated:
“Respondent delivered to my office, all of the records in his possession related to his
financial conditions. These records include, tax returns for 19 years, bank records, rental
agreements, loan applications and other documents . . . . I allowed Petitioner, personally,
to enter my office and to copy whatever records . . . she chose.” Husband’s counsel also
personally delivered two full boxes of business records in response to the document
request.
The motion to compel was granted. The order states that if Husband seeks to
augment discovery, he must provide discovery on or before 45 days from the date of trial.
If husband augmented discovery, he was ordered to provide a statement under penalty of
perjury explaining “why the documents sought to augment his responses were not
provided in response” to the document request.
3
Husband has not prepared an adequate record. A party may choose to act as his
own attorney. “ ‘[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. [Citations.]” (Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1247.)
4
b. Husband’s Request for Production and Motions to Compel
In February 2010, Husband filed a motion to compel production of documents
after propounding a request for missing checking account registers. In December 2009,
Husband requested “[h]andwritten check registers that were prepared by Stephen Roney
for account numbers 00633-3988 and 00639-05663 also known as Bank of America
general account and Bank of America Imperial King Center account for the period of
January 1, 1989 through December 31, 2001.” Wife eventually responded to the request,
stating: “Documents have been produced pursuant to request for production, set number
two, and have been supplemented.” Husband believed this response was incomplete.
In June 2010, Husband filed a motion to compel and sought an evidentiary
sanction precluding Wife from using the Bank of America checking account registers
prepared for the period from 1989 through 2001. Husband accused Wife of taking these
checking account registers from his locked car while he was out of the country. The
record does not contain a ruling on this motion.4
c. Trial Court Order Regarding Undisclosed Checking Account Registers
The court denied Husband’s motion to continue the trial based upon the ongoing
discovery dispute but addressed Husband’s concern that he believed Wife had withheld
the checking account registers. The court’s order states: “[I]f Petitioner is calling an
expert or party witness who relied upon Respondent’s check registers for Mr. Roney’s
main operating account from 1989 through 1992, bank statements for two Cal Fed bank
accounts and bank statements for several bank accounts in Petitioner’s name at the time
of separation, or any appraisals these documents are to be produced to Respondent in
4
The commissioner that heard the discovery motion apparently ordered the parties
to bring this matter before a discovery referee to determine whether Wife had withheld
documents. Husband represents in his opening brief that there was not enough time to
hire a discovery referee before trial, but he did not raise this point in his motion to
continue the trial. During trial, Husband’s counsel also referred to evidentiary sanctions
imposed on Wife. The trial court reviewed the file and could not find any sanctions
order, nor has Husband presented any such order in the record on appeal.
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sufficient time for cross-examination of the expert and of Petitioner or testimony will not
be permitted on these matters.”
3. Use of the Checking Account Registers at Trial
a. Wife’s Motion in Limine to Exclude Undisclosed Documents
Wife filed a motion in limine to preclude the use of documents not previously
disclosed or produced in discovery, including summaries, lists, audits, and other similar
compilations that may have been prepared for trial. The motion was based on Husband’s
statement during a break in a mandatory settlement conference before trial that “ ‘[w]e
have found more documents.’ ” The trial court granted the motion to exclude any
compilations “unless foundation is laid prior to testimony.”
b. Wife’s Schedules Based on Checking Account Registers
Husband had a separate bank account, a Bank of America account ending in 5663
(IKC Account), in which he paid the mortgage and expenses related to the IKC Property.
Wife had no signing authority on the IKC Account. Husband also had a Bank of
America account ending in 3988 (General Account).
Wife testified she prepared a number of schedules for her expert using available
bank records. One of these schedules listed income earned in 1994 from a laundry
business operated at the IKC Property. Wife testified that she obtained the financial
information from the IKC Account check registers that she found in boxes in the living
room at the 11th Street Property.5 Wife also testified that she made a copy of two pages
of checking account registers, but she could not identify the account.
c. Husband’s Compilations Based Upon Recently Discovered and Undisclosed
Checking Account Registers for the IKC and General Accounts
Husband prepared compilations using checking account registers that had not been
produced. He found them about three weeks before trial in a box of records at the 11th
5
Husband’s brief cites to testimony and then improperly attempts to refute that
testimony. For example, in response to this testimony, Husband states: “This is a lie
because she actually found them in the BMW car that was locked up in the garage at
1129 11th Street.” As noted, we do not consider matters outside the record.
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Street Property. The missing checking account registers are for the period from 1993 to
2000 for the General Account, and from 1991 to 2000 for the IKC Account. The
compilations were for the 1993 General Account (Exhibit 414), and for the IKC Account
from 1991 through 1995 (Exhibits 415, 416). Husband did not find all of the missing
checking account registers.
During argument following an objection to the admission of these compilations,
Husband attempted to persuade the court that Wife had withheld the checking account
registers during discovery. To support his position, Husband pointed to Wife’s admission
into evidence of the two-page copy of checking account registers. He told the court that
the first page was a copy of the 1991-1992 registers from the General Account, which
were still missing. Husband believed that this showed Wife had access to all the
checking account registers.
Husband’s compilations (Exhibits 414, 415, and 416) were excluded from
evidence. The trial court noted that upon discovery of the checking account registers,
Husband should have copied the documents and delivered them to Wife before trial,
offered to pay the damages caused by the delay in production, and moved for a
continuance. Instead, Husband waited until the fifth day of trial to disclose these
documents when Wife almost had completed her case.
Thereafter, Husband traced his separate property with numerous schedules that he
prepared using receipts and disbursements from the IKC Account and General Account.
d. Statement of Decision, Judgment, and Appeal
Citing Pate v. Channel Lumber Co. (1997) 51 Cal. App. 4th 1447 in its statement of
decision, the trial court rejected Husband’s position that he had been unfairly prejudiced
by the exclusion of his compilations (Exhibits 414-416) prepared using the checking
account registers. The court noted that Husband’s assertion as to what the lost evidence
would show, if found, or who was responsible for the loss was “pure speculation.”
The court also concluded Husband’s schedules were untrustworthy. They were
created from guesswork and not supported by verifiable source documents.
7
As for Husband’s contention that Wife withheld documents, the statement of
decision reads: “Although Mr. Roney tried to blame Petitioner for the misappropriation
and unavailability of records necessary to prove his case, he proved nothing more than
that Mrs. Roney had the opportunity to take some of the records that Mr. Roney left in an
unsecured common area in the parties’ home – not that she took or destroyed them.
Mr. Roney is a certified public accountant with specialized knowledge regarding how to
set up accounts, keep records, and maintain records.”
The court awarded Wife $385,502 in attorney fees and costs, stating “much of the
conduct mentioned in the Statement of Decision which gave rise to the protracted
litigation indicates that respondent violated Family Code section 271 by his litigation
conduct.”
Husband timely appealed from the judgment entered following the second phase
of the court trial on reserved issues (second partial judgment).
DISCUSSION
1. Appellate Jurisdiction and Request to Dismiss the Appeal
As a preliminary matter, we address whether we have jurisdiction to hear this
appeal, and whether the appeal should be dismissed pursuant to the disentitlement
doctrine or because Husband has failed to follow appellate rules and procedures. We
have jurisdiction to hear the appeal, and deny the request for dismissal.
a. Appealability
Appealability of the second partial judgment “ ‘goes to our jurisdiction, [leaving
us] dutybound to consider it on our own motion’ [Citation.] . . . .” (In re Marriage of
Corona (2009) 172 Cal. App. 4th 1205, 1216.) Although there is no dispute as to
appealability, jurisdiction cannot be conferred. (Ibid.)
The parties view the second partial judgment as an exception to the one final
judgment rule. The “final judgment rule” applies to civil cases and provides that
unresolved issues prevent a judgment from being final for purposes of appellate review.
(Griset v. Fair Political Practices Com. (2001) 25 Cal. 4th 688, 697.) Under the final
8
judgment rule, an appeal lies only from a final judgment, one that effectively terminates
the litigation. (Ibid.)
The one final judgment rule does not always apply in family law cases because of
the practice of bifurcating issues for separate trials. “ ‘All issues incident to marital
termination need not be tried in a single family law proceeding. The court may . . . order
the trial bifurcated, allowing early disposition of the dissolution issue and subsequent
litigation of the property, support and custody issues (or any other combination of issues
and trials). [Citations.]’ ” (In re Marriage of Wolfe (1985) 173 Cal. App. 3d 889, 894; see
also Cal. Rules of Court, rule 5.390.) When the trial court bifurcates the issue of the
dissolution of the status of marriage and reserves jurisdiction over the other issues, the
judgment of dissolution is immediately appealable. (In re Marriage of Fink (1976)
54 Cal. App. 3d 357, 360-366.)
Post-judgment orders affecting the judgment in some way or relating to its
enforcement that involve issues other than those decided by the judgment, are appealable
under Code of Civil Procedure section 904.1, subdivision (a)(2). (In re Marriage of
Wilcox (2004) 124 Cal. App. 4th 492, 497; see Hogoboom and King, Cal. Practice Guide:
Family Law (The Rutter Group 2012) ¶ 16:274, p. 16–83.)
The second partial judgment was entered following the judgment of dissolution,
but in order to be appealable it must be final, that is, not simply preliminary to a
proceeding and judgment. (In re Marriage of Ellis (2002) 101 Cal. App. 4th 400, 403.)
Unlike the post-judgment order at issue in In re Marriage of Ellis, in which the court’s
order was merely preliminary to an anticipated final order evaluating and dividing the
asset, here the trial court made a final determination on the real property division. Our
only concern relates to language in the second partial judgment addressing the reserved
issues. The second partial judgment states with respect to the IKC Property, the proceeds
from the 25th Street Property, and the Texas Property: “Jurisdiction is expressly reserved
over this property and any rents, income and profits that were not distributed
proportionally to the parties to effect the Court’s division.” We read this language as a
9
final determination on the characterization of the subject properties, and a reservation of
jurisdiction to enforce the court’s order. Thus, the second partial judgment is appealable.
b. Disentitlement Doctrine and Violation of Appellate Rules and Procedures
Wife seeks a dismissal of this appeal pursuant to the disentitlement doctrine, or
alternatively, dismissal for numerous violations of appellate rules and procedures.
Husband’s litigation conduct does not warrant the sanction of dismissal.
Under the disentitlement doctrine, “[a] reviewing court has inherent power to
dismiss an appeal when the appealing party has refused to comply with the orders of the
trial court. [Citation.]” (In re Z.K. (2011) 201 Cal. App. 4th 51, 63.) The doctrine
“extends to conduct that . . . frustrates the ability of another party to obtain information it
needs to protect its own legal rights.” (In re C.C. (2003) 111 Cal. App. 4th 76, 85.)
“Appellate disentitlement ‘is not a jurisdictional doctrine, but a discretionary tool that
may be applied when the balance of the equitable concerns make it a proper sanction.’
[Citation.]” (In re Z.K., supra, at p. 63.) The rule applies even if there is no formal
adjudication of contempt. (TMS, Inc. v. Aihara (1999) 71 Cal. App. 4th 377, 379.) The
disentitlement doctrine “is particularly likely to be invoked where the appeal arises out of
the very order (or orders) the party has disobeyed.” (Eisenberg et al., Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2012) ¶ 2:340, p. 2-172 (rev. #1,
2012).)
Wife contends dismissal of the appeal under the disentitlement doctrine is an
appropriate sanction because Husband violated a court order by waiting until trial to
disclose his discovery of the missing checking account registers. Wife also points out
that Husband has violated other court orders in this proceeding, requiring her to initiate
contempt proceedings. With respect to the discovery order, Husband represented to the
court that he did not find the checking account registers until about three weeks before
trial, making it impossible to obey the court’s discovery order. The trial court sanctioned
Husband by excluding the evidence. No further sanction is warranted.
Wife also seeks dismissal of this appeal based upon Husband’s numerous
violations of appellate rules and procedures. Husband violated the California Rules of
10
Court by failing to include the most basic documents in his appendix, such as the
judgment and the notice of appeal. (Cal. Rules of Court, rule 8.124(b)(1)(A), (B).) We
acknowledge a self-represented litigant’s understanding of the rules on appeal is, as a
practical matter, more limited than an experienced appellate attorney’s. Whenever
possible, we do not strictly apply technical rules of procedure in a manner that deprives
litigants of a hearing. When, however, that apparent lack of understanding results in our
inability to conduct a meaningful review of the trial court’s decision, we cannot ignore
the fundamental rules of appellate practice. (See Rappleyea v. Campbell (1994) 8 Cal. 4th
975, 984-985; Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1247.) Husband’s numerous
rule violations are significant, but we do not deny him the right to a hearing. Husband,
however, has forfeited issues where the rule violations prevent our meaningful review.
2. The Trial Court Did Not Abuse its Discretion in Denying the Continuance
Husband appears to contend that because the trial court made an accommodation
to alter the order of proof and set a later date to permit him to call his expert witness, the
court also should have continued the trial to permit him to use the newly discovered
checking account registers. Husband did not seek a continuance based on the newly
discovered checking account registers.
The trial court’s denial of a request for a continuance lies within its discretion.
(Lazarus v. Titmus (1998) 64 Cal. App. 4th 1242, 1249.) “ ‘An abuse of discretion occurs
“where, considering all the relevant circumstances, the court has exceeded the bounds of
reason or it can fairly be said that no judge would reasonably make the same order under
the same circumstances.” ’ ” (In re Marriage of Bower (2002) 96 Cal. App. 4th 893, 898-
899, quoting In re Marriage of Olson (1993) 14 Cal. App. 4th 1, 7.)
All parties must generally regard the date set for trial as certain, and continuances
of trials are disfavored. The trial court may grant a continuance only on an affirmative
showing of good cause. (Cal. Rules of Court, rule 3.1332(a), (c).) Among the
circumstances that may indicate good cause is a “party’s excused inability to obtain
essential testimony, documents, or other material evidence despite diligent efforts.”
(Cal. Rules of Court, rule 3.1332(c)(6).)
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Here, there was no showing of good cause. The declaration in support of the
continuance refers to the two-year-old discovery dispute, not that Husband had
discovered some of the missing checking account registers, or that Husband needed
additional time to resolve the discovery dispute by engaging the services of a discovery
referee. Under these circumstances, the trial court’s denial of a continuance did not
exceed the bounds of reason. (In re Marriage of Olson, supra, 14 Cal.App.4th at p. 7.)
3. The Trial Court Did Not Abuse its Discretion in its Evidentiary Rulings
Husband contends the trial court committed prejudicial error when it excluded
from evidence his compilations (Exhibits 414-416). Husband maintains that had these
compilations been introduced into evidence, he would have met his burden of proof to
trace his separate property. This is pure speculation and not supported by the record.
The trial court’s order excluding Husband’s compilations (and any use of the
newly discovered checking account registers) was an evidentiary sanction for discovery
abuse. The trial court has broad discretion in determining whether to impose sanctions.
(R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal. App. 4th 486, 496.) The trial
court’s determination is reversible only for an abuse of discretion. (Ibid.) While
Husband contends that the trial court’s evidentiary sanction impaired his ability to trace
his separate property, our focus is whether the imposition of this sanction was an abuse of
discretion. On this record, we find no abuse of discretion.
Under the Code of Civil Procedure, sanctions for a particular misuse of the
discovery process are available upon notice and hearing to establish the disobedience of
an order to compel. There are exceptions, however, where the discovery misuse comes
so late that an evidentiary sanction is “virtually the only viable option available” to
ensure a fair trial. (Pate v. Channel Lumber Co., supra, 51 Cal.App.4th at pp. 1454-
1455.)
Exclusion of Husband’s compilations (Exhibits 414-416), along with the newly
discovered checking account registers, was necessary to ensure a fair trial. Wife did not
learn that Husband had obtained the missing checking account registers until after she
almost had presented her entire case. Wife’s expert prepared reports and testified
12
regarding the existing universe of documents, which contained significant gaps in the
couples’ financial history. Husband “ambushed” Wife at trial by attempting to fill the
gaps with newly discovered financial documents that were not made available to Wife or
her expert. The only effective way to remedy Husband’s discovery abuse was to impose
an evidentiary sanction.
In the event of trial court error, Husband has not shown prejudice. (Cal. Const.,
art. VI, § 13; see also Evid. Code, § 354.) Husband was not precluded from using other
available financial documents to trace his separate property interest. These financial
documents, however, were in disarray and incomplete. Husband relied on his memory to
patch together the couple’s financial history. As a CPA, Husband was at fault for the
poor record keeping. Husband also incorrectly assumes that the checking account
registers would have conclusively established that the real property at issue here was his
separate property. The excluded compilations (Exhibits 414-416), however, only
included information from the checking account registers and were not supported by
account statements, canceled checks, documents regarding the identity of expenses, and
proof of separate property account balances on the date that each mortgage payment was
made. And, even if the compilations (Exhibits 414-416) and newly discovered checking
account registers had been admitted at trial, they were incomplete because several years
were still missing. Thus, it is not reasonably probable that a result more favorable to
Husband would have been reached absent any perceived trial court error.
4. The Trial Court Did Not Abuse its Discretion in Awarding Attorney’s Fees
Husband does not challenge Wife’s right to recover attorney fees, only the
amounted awarded. Husband claims the award of $385,502 was “outrageous” and
unreasonable, pointing out excessive spending on trial exhibits, unnecessary expert
witness costs, and unnecessary questioning during trial that delayed the proceedings.
“[A] motion for attorney fees and costs in a dissolution proceeding is left to the
sound discretion of the trial court. [Citations.] In the absence of a clear showing of
abuse, its determination will not be disturbed on appeal. [Citations.] ‘[T]he trial court’s
order will be overturned only if, considering all the evidence viewed most favorably in
13
support of its order, no judge could reasonably make the order made.’ ” (In re Marriage
of Sullivan (1984) 37 Cal. 3d 762, 768-769.) The trial court’s broad discretion is guided
by statute. Family Code section 2032 permits an award of attorney fees and costs if it is
“just and reasonable under the relative circumstances of the respective parties.”
(Fam. Code, § 2032, subd. (a).) In determining what is just and reasonable, “the court
shall take into consideration the need for the award to enable each party, to the extent
practical, to have sufficient financial resources to present the party’s case
adequately . . . .” (Fam. Code, § 2032, subd. (b).) The court considers, to the extent
relevant, the circumstances that it would consider in determining spousal support.
(Fam. Code, §§ 2032, subd. (b), 4320.)
“ ‘The major factors to be considered by a court in fixing a reasonable attorney’s
fee [include] “the nature of the litigation, its difficulty, the amount involved, the skill
required and the skill employed in handling the litigation, the attention given, the success
of the attorney’s efforts, his learning, his age, and his experience in the particular type of
work demanded [citation]; the intricacies and importance of the litigation, the labor and
the necessity for skilled legal training and ability in trying the cause, and the time
consumed. [Citations.]” [Citations.]’ [Citation.]” (In re Marriage of Keech (1999)
75 Cal. App. 4th 860, 870.) The record reflects consideration of these issues.
The trial court fixed a reasonable attorney fee. Contrary to Husband’s contention
that no records exist, the record on appeal that Wife prepared includes billing statements
detailing attorney fees incurred during the course of five years of litigation. As the court
stated, the protracted litigation was a result of Husband’s intentional delay in resolving
this case “in a concerted effort to shut out Petitioner from a fair resolution of their marital
property and support issues after a long-term marriage.” The court also noted that
Husband’s litigation conduct warranted attorney fees as a sanction under Family Code
section 271. Considering the record, the court’s findings on the additional factors
enunciated in In re Marriage of Keech, supra, 75 Cal. App. 4th 860, along with the court’s
knowledge having presided over the trial in this case, we conclude the trial court did not
abuse its discretion.
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5. The Trial Court Had Authority to Appoint an Expert
Husband appears to contend that the trial court should not have reserved
jurisdiction over certain bank accounts that he maintained were his separate property.
The trial court concluded these accounts were “mixed account[s],” containing both
community estate and separate property assets. Because the court required additional
tracing evidence, it appointed a forensic accountant.
Under Evidence Code section 730, trial courts regularly appoint experts to
investigate and prepare reports concerning marriage dissolution matters. (See Lester v.
Lennane (2000) 84 Cal. App. 4th 536, 545.) To the extent Husband challenges the trial
court’s determination of the community estate’s interest, he has forfeited the issue by
failing to present reasoned argument and citations to legal authority. (Mansell v. Board
of Administration (1994) 30 Cal. App. 4th 539, 545-546.)
6. Husband has Forfeited his Remaining Challenges to the Second Partial Judgment
Without reasoned argument and citations to authority, Husband refers to errors in
the second partial judgment, including the court’s directive to execute interspousal
transfer deeds for the IKC Property and the Texas Property, and to reimburse Wife for
her portion of the 2005 federal income tax refund. Husband also notes the second partial
judgment miscalculated his separate property interest in the 25th Street Property. These
issues are forfeited.
Husband has not provided an adequate record for our proper consideration of his
contentions regarding the court’s directives in the second partial judgment. The record
contains a minute order stating that Husband objected to the proposed judgment, but the
objections are not in the record. We cannot assume the errors in the second partial
judgment now before us were actually raised in the trial court. Thus, Husband has
forfeited any claim of error. (Mundy v. Lenc (2012) 203 Cal. App. 4th 1401, 1406.)
With respect to the 25th Street Property calculation, Husband also has failed to
provide an adequate record. The trial court noted that before signing the judgment it had
interlineated the proportionate separate property and community estate interest in the
proceeds from the sale of the 25th Street Property and recalculated using the Moore-
15
Marsden formula. The court retained jurisdiction over the modified calculation for “60
days should either party wish to submit further or additional calculations.” There is no
indication that Husband asked the court to reconsider the calculation that he now claims
as error. Thus, the issue has been forfeited. (Mundy v. Lenc, supra, 203 Cal.App.4th at
p. 1406.)
16
DISPOSITION
The judgment is affirmed. Wife shall recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ALDRICH, J.
We concur:
CROSKEY, Acting P. J.
KITCHING, J.
17