Marriage of Lak CA4/3 ( 2014 )

Filed 6/18/14 Marriage of Lak CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of JENNIFER S. AND
DANIEL K. LAK.
DANIEL K. LAK,
G048304
Appellant,
(Super. Ct. No. 09D001393)
v.
OPINION
JENNIFER S. LAK,
Respondent,
ORANGE COUNTY DEPARTMENT OF
CHILD SUPPORT SERVICES,
Respondent.
Appeal from an order of the Superior Court of Orange County, Richard G.
Vogl, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Daniel K. Lak, in pro. per., for Appellant.
Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant
Attorney General, Linda M. Gonzalez and Ricardo Enriquez, Deputy Attorneys General,
for Respondent Orange County Department of Child Support Services.
No appearance by Respondent, Jennifer S. Lak.
* * *
Daniel K. Lak appeals from an order denying his motion to set aside a
portion of the judgment in this marital dissolution action on the ground of perjury,
pursuant to Family Code section 2122, subdivision. (b) (§ 2122(b); unless otherwise
designated, all further statutory references are to this code). Specifically, Daniel sought
to set aside the portion of the judgment establishing the amounts of spousal and child
support he is obligated to pay his former wife, Jennifer, because she had allegedly
understated her income level by a significant amount on her income and expense
declaration.
The respondent in this appeal is “the Public Interest,” represented by the
local child support agency, Orange County Department of Child Support Services
(DCSS), and the state Attorney General, under sections 17406 and 17407. (See In re
Marriage of LaMoure (2011) 198 Cal. App. 4th 807, 812.)
On appeal, we are obligated to draw all inferences and indulge all
presumptions in favor of the correctness of the challenged order. Consequently, where,
as here, there is no record of the evidence presented at the hearing, we must presume that
evidence was sufficient to support the court’s determination that Daniel failed to bring
this motion in a timely fashion. On that basis, we affirm the order.
FACTS
Our record in this appeal is quite limited, consisting only of a copy of the
trial court’s docket, the order appealed from, and Daniel’s notice of appeal and
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designation of the record. From this we discern that Jennifer petitioned for legal
separation in February 2009, and Daniel responded with a request for marital dissolution
in April 2009. Jennifer filed income and expense declarations in June 2009, February
2010 and April 2010. Also in April 2010, the parties entered into a stipulation for
judgment. A marital dissolution judgment was entered in April 2011.
Daniel filed a motion to reconsider the judgment in May 2011 and a motion
for sanctions in March 2012. In May 2012, Daniel also filed a motion for “simplified
modification of support order.”
Then, in November 2012, Daniel filed his motion to vacate or set aside the
judgment. The court held a hearing on this motion in February 2013. Daniel and
Jennifer both appeared at the hearing and both gave evidence. However, no court
reporter was present. At the end of the hearing, the court took the matter under
submission and informed the parties it would notify them of its order by mail.
In its order, the court stated it had taken judicial notice of its own file
pursuant to Evidence Code section 452. After summarizing the history of the case, the
court denied Daniel’s motion, without addressing the merits, on three grounds: (1) it
found that while relief under section 2122(b) is subject to a one year statute of
limitations, Daniel waited 22 months before bringing his motion; (2) it found the support
award was a product of the parties’ stipulation, rather than the result of any allegedly
perjured testimony given in a contested proceeding, and thus section 2122(b) did not
apply; and (3) it found that the requested relief was barred by the doctrine of res judicata,
as Daniel had previously filed other requests for hearings pertaining to support and “he
could have brought forth” this perjury claim in the context of those requests.
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DISCUSSION
Daniel contends all three of the grounds relied upon by the court to support
its denial of his motion are fundamentally flawed, and thus the order must be reversed.
Unfortunately for Daniel, any one of these three grounds, standing alone, is
a sufficient basis to justify the court’s order. Moreover, “the appellant has the burden of
affirmatively demonstrating error by providing the reviewing court with an adequate
record . . . and . . . the reviewing court presumes the judgment of the trial court is correct
and indulges all presumptions to support a judgment on matters as to which the record is
silent.” (Baker v. Children’s Hospital Medical Center (1989) 209 Cal. App. 3d 1057,
1060; see also Ellis v. Toshiba America Information Systems, Inc. (2013) 218
Cal. App. 4th 853, 889 [“on appeal we presume the trial court’s order is correct, indulge all
presumptions in favor of that correctness, and resolve all ambiguities in favor of
affirmance”].)
Among other things, this standard of appellate review means that in the
absence of a reporter’s transcript or a settled statement which summarizes the evidence
presented at the hearing in the court below, we must presume that evidence was sufficient
to support whatever factual determinations were necessary to support the court’s order.
In this case specifically, it means we must presume the evidence presented was sufficient
to support the court’s determination that Daniel failed to bring his motion to set aside the
marital dissolution judgment in a timely fashion.
Section 2122(b) requires that “[a]n action or motion based on perjury in the
preliminary or final declaration of disclosure . . . shall be brought within one year after
the date on which the complaining party either did discover, or should have discovered,
the perjury.” (Italics added.) On appeal, Daniel concedes that more than a year had
passed between the date the marital dissolution judgment was entered and the date he
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filed his motion to set it aside in November 2012 – and that more than two years had
passed between Jennifer’s alleged perjury in her income and expense report and the date
he filed his set-aside motion. But then Daniel simply claims, without citation to any
evidence in the record, that he first discovered Jennifer’s alleged perjury in June 2012 –
only five months before he filed his motion. And it appears Daniel would like us to
further assume this date is also the earliest point at which he should have discovered the
alleged perjury. If that were true, then Daniel’s motion would have been timely.
But we cannot do that. Instead, we can only presume there was evidence
adduced at the hearing which supported the trial court’s apparent determination that
Daniel discovered Jennifer’s alleged perjury, or should have discovered it, more than a
year before filing his set-aside motion. Stated another way, in the absence of an
evidentiary record, the court’s first ground for denying the motion is simply unassailable
and we have no choice but to affirm the order on that ground.
Daniel’s final contention is that the court also erred by refusing to restore to
its calendar his earlier motion for a “simplified modification of child support.”
According to the court’s order, Daniel’s request to restore the matter to the calendar was
denied because he had stated “no good reason for the court to grant the request. The
matter was taken off calendar after a hearing before Comm. Neary. No transcript has
been provided to the court of those proceedings. No points and authorities have been
presented.” While Daniel claims on appeal that the modification motion was previously
taken off calendar because Jennifer had failed to file a required income and expense
report, and thus there was good cause to restore it to the calendar, there is nothing in our
record to support this factual assertion. Again, we are bound by our obligation to
presume the trial court’s order was correct, and in the absence of a record demonstrating
that Daniel in fact demonstrated good cause to restore that earlier motion to the court’s
calendar, we must presume he did not.
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DISPOSITION
The order is affirmed. The parties are to bear their own costs on appeal.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
MOORE, J.
THOMPSON, J.
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