Marriage of Pulido CA4/1 ( 2021 )

Filed 12/13/21 Marriage of Pulido CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of MYRIAM and
JUAN PULIDO.
D077156
MYRIAM ZULETH PULIDO,
Appellant, (Super. Ct. No. 17FL000578S)
v.
JUAN ALEXANDER PULIDO,
Respondent.
APPEAL from an order of the Superior Court of San Diego County,
James T. Atkins, Judge. Affirmed.
Myriam Zuleth Pulido, in pro. per., for Appellant.
Law Offices of Nancy J. Wilson and Nancy J. Wilson for Respondent.
I.
INTRODUCTION
Appellant Myriam Pulido, proceeding on appeal in propia persona,
seeks reversal of an order of the trial court entered after judgment of
dissolution of her marriage to Juan Pulido. In the order from which Myriam 1
appeals, the court ordered the sale of the martial home and set forth the
procedure by which the parties were to list the home for sale. Myriam’s
briefing on appeal is somewhat unclear in many respects. However, we
discern that Myriam contends that the trial court abused its discretion in
ordering that the marital residence be sold. Myriam also raises related
complaints with respect to how the trial court approached resolving the
disposition of the marital residence.
To the extent that we can ascertain Myriam’s objections to the order
requiring the sale of the marital residence, we conclude that they are without
merit. We therefore affirm the order of the trial court.
II.
FACTUAL AND PROCEDURAL BACKGROUND 2
Juan and Myriam were married in 2000 and separated in 2014. They
have three children, the oldest of whom is currently 19 and the youngest of
whom is 7.
1 We refer to the parties by their first names for clarity.
2 In setting forth the background of his case, we rely in part on
documents filed by Juan, pursuant to a request for judicial notice. Juan filed
a request that we take judicial notice of a number of documents that were
filed in the trial court in the underlying case. Myriam filed an opposition to
Juan’s request for judicial notice.
To the extent that two of the documents in question were filed in the
trial court in the underlying case prior to Myriam’s notice of appeal and were
relied on by the trial court in the underlying action, we construe the request
for judicial notice as a motion to augment the record (Rules of Court, rule
8.155(a)(1) [“[a]t any time, on motion of a party or its own motion, the
reviewing court may order the record augmented to include: [¶] (A) Any
document filed or lodged in the case in superior court”]), and we grant the
motion.
2
In March 2017, when Myriam filed a request for dissolution of the
marriage, the parties owned a home in Chula Vista, California. On
November 20, 2018, Juan filed a Request for Order seeking: (1) bifurcation of
However, six of the documents as to which Juan is requesting judicial
notice were filed in the underlying case after Myriam filed her notice of
appeal: (1) Myriam’s ex parte motion for a stay of the December 4, 2019
order and the court’s denial of the motion; (2) an ex parte motion filed by
Myriam on May 8, 2020 in which she sought the return of her youngest
daughter to her custody and the corresponding order entered by the court
granting Juan “physical and legal custody of the child pending further court
hearing”; (3) the settled statement of the trial court, entered as a minute
order issued on July 15, 2020, (4) the minutes of the trial court from an
October 2, 2020 hearing demonstrating that the court suspended child
support owed from Juan to Myriam with respect to the parties’ two
daughters, and indicating that Myriam had a “15% time share . . . for [the
parties’ son], 0% time share for [the parties’ minor daughter],” and the
parties’ older daughter was no longer a minor; (5) an ex parte order filed by
Juan on November 3, 2020 seeking modification of the child support wage
garnishment, and the court’s partial granting of the request given the
outcome of the October 2, 2020 hearing, and (6) the minutes of the trial court
from an April 5, 2021 evidentiary hearing pertaining to Juan’s requests
“regarding Child Support, Child Custody, Child Visitation, [and]
Psychological Evaluation (RFO filed 8/1/20)” in which the court adopted a
parenting plan that awarded Juan legal custody and primary physical
custody of the two minor children. We grant Juan’s request for judicial notice
pursuant to Evidence Code sections 452, subdivision (d)(1) and 459,
subdivision (a)(1). Although a reviewing court will ordinarily look only to the
record made in the trial court in deciding a question raised by an appeal, a
court may nevertheless take judicial notice of matters that were not before
the trial court at the time the trial court ruled on the matter or matters at
issue on appeal. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180,
184, fn. 1.) Because these court documents are helpful to this court’s
understanding of the history of the underlying case and provide context with
respect to contentions that have been raised in this appeal, we exercise our
discretion to take judicial notice of the documents. Our granting of judicial
notice of these documents should not be understood as providing a basis for
our review of any of the trial court’s orders other than the December 4, 2019
order, which is the sole order from which Myriam has appealed.
3
status, (2) the setting of a date for a mandatory settlement conference, and
(3) an order for the sale of the marital home.
The trial court deferred consideration of the issues of the sale of the
marital home and the status of the dissolution until after the mandatory
settlement conference, which was held on July 19, 2019. The parties did not
reach a settlement at the mandatory settlement conference, and the court set
the remaining matters for an evidentiary hearing.
The court held an evidentiary hearing regarding the remaining issues,
including custody and visitation, child support, spousal support, and the
division of assets over three days (August 22, September 12, and September
16, 2019). The trial court entered judgment as to the parties’ marital status
only on September 16, 2019. On October 16, 2019, the court issued an order
addressing all of the other issues raised at trial, including the disposition of
the parties’ property, with the exception of the marital residence. The court
deferred entering judgment on Juan’s request for an order requiring the sale
of the marital residence and ordered a further hearing “on [Myriam’s]
qualification to buyout the respondent’s interest in the home.” The court
“directed [Myriam] to present evidence to the court of her ability to refinance
the home” and stated that the court planned to “review[ ] and consider[ ]”
that evidence at a further hearing, set for November 13, 2019.
A settled statement filed by the trial court in July 2020 indicates that a
hearing on Myriam’s ability to refinance the property did not occur on
November 13, 2019. Rather, the matter was continued to December 4, 2019.
On that date, the parties, as well as minors’ counsel, whom the court had
appointed on September 12, 2019, appeared. The settled statement indicates
that Myriam “did not present evidence of her ability to refinance the home,
and it was ordered sold.”
4
In an order issued by the court on December 4, 2019, the trial court
stated the following with respect to the sale of the marital home:
“On or before December 13, 2019, [Juan] shall provide
[Myriam] with the names of three realtors.
“On or before December 23, 2019, [Myriam] shall select one
of the realtors provided by [Juan] and shall inform [Juan]
of her selection.
“The home is to [be] placed on the market.
“The parties shall retain the selected realtor to conduct the
sale of the property.
“The parties shall cooperate with the realtor and shall
execute all documents necessary to complete the sale.”
Myriam filed a timely notice of appeal from the December 4, 2019 order
of the trial court. On January 7, 2020, Myriam sought a stay of the trial
court’s order directing the parties to select a listing agent and sell the marital
home. Two days later, the trial court denied her request, concluding that
Myriam was required to post a bond pursuant to Code of Civil Procedure
section 917.2 in order to obtain a stay of the court’s December 4, 2019 order.3
3 It appears that the trial court may have intended to refer to Code of
Civil Procedure section 917.4, which provides in part:
“The perfecting of an appeal shall not stay enforcement of
the judgment or order in the trial court if the judgment or
order appealed from directs the sale, conveyance or delivery
of possession of real property which is in the possession or
control of the appellant or the party ordered to sell, convey
or deliver possession of the property, unless an undertaking
in a sum fixed by the trial court is given that the appellant
or party ordered to sell, convey or deliver possession of the
property will not commit or suffer to be committed any
waste thereon and that if the judgment or order appealed
5
III.
DISCUSSION
A. To the extent that Myriam is arguing that the trial court erred in ordering
the sale of the marital residence, she has failed to demonstrate that the
court abused its discretion in making that order
We begin by noting that Myriam’s briefing is difficult to understand
and fails to set forth cogent legal arguments. We are mindful that Myriam is
appearing in propria persona. However, “[a] self-represented party is to be
from is affirmed, or the appeal is withdrawn or dismissed,
the appellant shall pay the damage suffered by the waste
and the value of the use and occupancy of the property, or
the part of it as to which the judgment or order is affirmed,
from the time of the taking of the appeal until the delivery
of the possession of the property.”
In view of the trial court’s denial of Myriam’s request for a stay of the
court’s mandatory order of December 4, 2019, requiring the sale of the
martial residence, the trial court’s order was enforceable, notwithstanding
the pendency of Myriam’s appeal from that order. Because Code of Civil
Procedure section 917.4 permitted the enforcement of the court’s order, and
because many months had passed since the trial court issued its December 4,
2019 order, on September 8, 2021, we requested supplemental briefing from
the parties regarding the status of the sale of the marital residence. The
parties informed us that the residence still had not been listed for sale, and
that Myriam continues to reside in the home. Juan indicated that Myriam
“refuses to comply with or cooperate with the court orders,” and that she
“continues to reside in the property at issue.” He further stated that he
“continues to await a ruling from this court, so that the house can be sold.”
However, as indicated above, the Code of Civil Procedure makes clear that
the perfecting of an appeal from an order requiring the sale of real property
does not stay enforcement of that order. In order to obtain a stay and avoid
the effect of the court’s order, Myriam was required to post an undertaking,
and there is no evidence in the record to demonstrate that she has done so. It
therefore appears that Juan could have sought the trial court’s assistance in
enforcing the December 4, 2019 order of the trial court requiring the sale of
the marital residence; he was not required to wait for resolution of this
appeal in order to enforce that order.
6
treated like any other party and is entitled to the same, but no greater,
consideration than other litigants having attorneys.” (Elena S. v. Kroutik
(2016) 247 Cal.App.4th 570, 574.) Thus, Myriam “is not exempt from the
rules governing appeals,” including the rules governing preparation of an
adequate appellate record and presenting legal arguments supported by
citations to relevant legal authority and portions of the record. (Ibid.; see
Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th
199, 205 [“The same rules apply to a party appearing in propria persona as to
any other party”].) Among the fundamental principles of appellate briefing is
that a party must set forth cogent legal arguments and cite the record in
support of the points made. Myriam has failed to do so; although she cites to
legal authorities, she fails to demonstrate that the authorities on which she is
relying are relevant to the issues that she is attempting to raise. The result
is that Myriam has, effectively, forfeited her contentions on appeal. (See, e.g.,
In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [absence of
cogent legal argument or citation to authority forfeits the contention; “[w]e
are not bound to develop appellants’ arguments for them”].)
To the extent that we are able to ascertain Myriam’s main argument on
appeal, which seems to be that the trial court erred in ordering the sale of the
marital residence, we conclude that Myriam has not demonstrated that she is
entitled to reversal. From Myriam’s briefing, it is clear that she is displeased
with the trial court’s order. She suggests that the court should have allowed
her to retain the home and awarded Juan other assets in order to equalize
the distribution of property between the parties.
Although Myriam has not set forth the relevant legal standards on
appeal from an order disposing of marital property by directing the parties to
sell their residence, it is clear that the Family Code requires an equal
division of community property when a marriage is dissolved. (Fam. Code,
7
§ 2550; see also In re Marriage of Juick (1971) 21 Cal.App.3d 421, 427
[“Under the Family Law Act clearly the ideal is a mathematically equal
division”].) “[T]he disposition of marital property is within the trial court’s
discretion, by whatever method or formula will ‘achieve substantial justice
between the parties.’ ” (In re Marriage of Hug (1984) 154 Cal.App.3d 780,
791–792.) An appellate court “review[s] the trial court’s [methodology in
disposition of marital property] under an abuse of discretion standard.” (In re
Marriage of Steinberger (2001) 91 Cal.App.4th 1449, 1459.)
“When conducting an abuse of discretion review, appellate courts
consider (1) whether the trial court’s factual findings are supported by
substantial evidence, (2) whether the trial court followed applicable legal
principles, and (3) whether the trial court reasonably exercised its
discretionary authority—that is, whether any judge reasonably could have
made such an order.” (In re Marriage of Hein (2020) 52 Cal.App.5th 519,
529.)
Further, basic rules govern all appeals: “ ‘[A] judgment or order of the
trial court is presumed correct and prejudicial error must be affirmatively
shown. [Citation.] “In the absence of a contrary showing in the record, all
presumptions in favor of the trial court’s action will be made by the appellate
court. ‘[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.’ ” [Citation.] . . . “ ‘A necessary corollary to this rule
is that if the record is inadequate for meaningful review, the appellant
defaults and the decision of the trial court should be affirmed.’ ” [Citation.]
“Consequently, [appellant] has the burden of providing an adequate record.
[Citation.] Failure to provide an adequate record on an issue requires that
the issue be resolved against [appellant].’ ” (In re Marriage of Oliverez (2019)
8
33 Cal.App.5th 298, 311–312 (Oliverez); see Jameson v. Desta (2018)
5 Cal.5th 594, 608–609.)
Myriam has not met her burden to affirmatively demonstrate that the
trial court abused its discretion in ordering the sale of the marital residence.
The record on appeal does not disclose that the trial court failed to follow
applicable legal principles in deciding how to dispose of the parties’ marital
residence, or that the trial court’s decision to require that the residence be
sold so that the parties could divide the proceeds of the sale was
unreasonable. Myriam nevertheless notes that the home was “the main
home for her three children,” and that the home is “close by to” their
daughters’ schools. Essentially, Myriam appears to be suggesting that the
sale of the home will have a detrimental effect on the parties’ children. There
is no indication in the record, however, that the trial court did not consider
the effect of the sale of the marital home on the children or otherwise failed to
weigh the equities involved here. Further, it appears that although the trial
court was ready to order the home sold at the time that it ordered the
disposition of the other marital assets, the trial court gave Myriam additional
time to demonstrate that she had been approved to refinance the property on
her own. However, Myriam was unable to show that she had been approved
for a mortgage.4 In the absence of any indication in the record that Myriam
was independently approved to refinance the existing mortgage, there is no
basis for concluding that the trial court’s order requiring the sale of the
4 Myriam also appears to argue on appeal that the trial court erred in
rejecting evidence that she proffered to show that she was in the process of
obtaining the requisite refinancing. We address this argument in part
III.B.3, post.
9
residence was unreasonable.5 With respect to Myriam’s suggestion that the
court abused its discretion because it should have divided up the parties’
assets differently to allow her to retain the home, the court’s division of the
parties’ other assets is not before us in this appeal; the only order from which
Myriam has appealed is the court’s order requiring the sale of the marital
home.
Moreover, to the extent that Myriam may be relying on provisions of
the Family Code that permit the court to order a deferred sale of a marital
residence (see §§ 3800 et seq.) to suggest that the trial court should have
deferred the sale of the home pursuant to these statutory provisions, this
argument is unavailing. The settled statement demonstrates that “no such
request for order [for deferred sale of the house] was made to the court.” The
trial court could not have abused its discretion in not granting an order that
was never requested.
B. To the extent that we can discern additional arguments that Myriam
raises in her opening brief, we conclude that she has not demonstrated
reversible error
1. The record does not support Myriam’s contention that the trial court
“erred in disregard[ing] Minor’s counsel arguments and Petitioner’s
statement”
Myriam appears to suggest that the trial court did not consider
statements and commentary provided by appointed minors’ counsel at the
5 We do not intend to suggest that if Myriam had demonstrated an
ability to obtain a mortgage on the property, the trial court would have acted
unreasonably in determining that the proper course of action would
nevertheless be to require the sale of the residence. We merely note that in
this circumstance, where Myriam was unable to demonstrate her ability to
obtain the requisite financing, the trial court’s decision to order that the
house be sold was reasonable.
10
hearing concerning the disposition of the marital residence. The record does
not support Myriam’s contention. The settled statement indicates that the
trial court specifically asked minors’ counsel for an opinion as to the proposed
sale of the house. The court “inquired of minors’ counsel as to whether
minors’ counsel would recommend, based on the information she obtained in
the course of her appointment and in the best interests of the children, that
the house not be sold.” Minors’ counsel responded “that she had no basis to
recommend that the house not be sold.” (Italics added.) The settled
statement thus demonstrates that the court specifically sought the views of
minors’ counsel with respect to the sale of the marital residence, and that
minors’ counsel provided no argument in support of Myriam’s contention that
the home should not be sold because its sale would be detrimental to the
children. We therefore reject the contention that the trial court did not
consider the views or opinions of minors’ counsel in determining that the
appropriate disposition would be to require the sale of the home.
Further, there is no indication from the record that the trial court
“disregarded” Myriam’s arguments or failed to consider them. Because there
is no transcript of the hearing, and the settled statement is silent on the
matter, we must make every presumption in favor of the court’s ruling, and
therefore must presume that the court did, in fact, consider all of the
evidence and arguments presented in reaching its decision. (See, e.g.,
Oliverez, supra, 33 Cal.App.5th at pp. 311–312 [“ ‘ “all presumptions in favor
of the trial court’s action will be made by the appellate court” ’ ”].) Indeed,
the record as a whole demonstrates that in this case, the trial court simply
disagreed with Myriam’s position and rejected her arguments and
“statements” after considering them. Specifically, the court disagreed with
Myriam that the sale of the marital residence would be detrimental to the
11
children.6 Myriam has not demonstrated that the court abused its discretion
or acted improperly in rejecting her argument that the court should award
her the marital residence instead of ordering that it be sold.
Because the record does not affirmatively support Myriam’s contention
that the trial court “disregarded” any argument presented by minors’ counsel
or by Myriam, we conclude that this contention is without merit.
2. Myriam did not present a record to support her contention that the
trial court’s decision to order the parties to sell the marital
residence was an “emotional decision”
In her opening brief, Myriam includes a heading stating: “The court
erred in making an emotional decision to put the house for sale in the market
after opposing counsel’s statement in regards to minor daughter.”
(Underscore omitted.) Although Myriam’s argument is difficult to discern, we
again note that there is no transcript of the hearing, and the settled
statement does not include any reference to the purported “statement” made
by Juan’s attorney, or how the court addressed or responded to that
“statement.” As a result, there is simply nothing in the record to support
Myriam’s assertion as to how the court was improperly emotionally
influenced by opposing counsel. Again, it is Myriam’s obligation to present a
record that affirmatively demonstrates error. (See In re D.W. (2011)
6 Myriam asserts throughout her briefing that the minor children have
lived, and continue live, with her in the marital residence, and suggests that
this is why the court’s order of the sale of the residence continues to be
detrimental to them. Juan disputes Myriam’s claims regarding where the
children reside. Although the record is not entirely clear as to how the
parties shared custody of the minor children prior to the trial court’s
December 4, 2019 order, the documents filed in this matter of which we have
taken judicial notice suggest that the minor children resided primarily with
Juan at the time Myriam filed her opening brief, and that they continue to
reside primarily with Juan.
12
193 Cal.App.4th 413, 417–418.) Myriam has made no affirmative showing of
error with respect to her contention that the court made an “emotional
decision” about the sale of the residence.
3. The trial court did not abuse its discretion in declining to consider
Myriam’s proffered evidence regarding her attempt to obtain
refinancing to purchase the home
Myriam contends that the trial court erred in excluding certain
documents from Wells Fargo Bank that she attempted to admit in evidence.
According to Myriam, the trial court denied her request to “enter evidence to
the court that proved that she was in the process of refinancing her home.”
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. (See Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 773.)
As an initial matter, Myriam has forfeited this argument by failing to
cite to the record regarding which documents she is referring to in her
challenge to the trial court’s evidentiary ruling. (See In re Marriage of
Nassimi (2016) 3 Cal.App.5th 667, 695; Duarte v. Chino Community Hospital
(1999) 72 Cal.App.4th 849, 856 [failure to provide adequate record citations
forfeits a contention of error]; see also Cal. Rules of Court, rule 8.204(a)(1)(C)
& (a)(2)(C) [appellant’s opening brief must include a summary of significant
facts limited to matters in the record, with any reference to a matter in the
record supported by a citation to the volume and page number of the
record].)7
7 In fact, the trial court record does not include the documents that
Myriam contends she proffered to the trial court, and Myriam’s briefing does
not specifically and clearly identify which documents she proffered that were
rejected, nor does she explain precisely what those documents contained.
13
Myriam has, however, lodged as exhibits in this court certain
documents sent to her from Wells Fargo. Presuming that these are the
documents that the trial court rejected, these documents demonstrate only
that Myriam was in the initial stages of inquiring about obtaining financing.
None of the documents demonstrates that Myriam had completed an
application for a loan to refinance the property, much less that she had been
approved for such a loan and would be able to refinance the mortgage on the
home. At most, the documents demonstrate that Myriam had inquired about
obtaining a mortgage loan. Given that the trial court had specifically
indicated that it would consider evidence that Myriam had the “ability to
refinance the home,” if the documents lodged with this court were the
documents that Myriam attempted to admit in evidence, then the trial court’s
decision to decline to consider these documents was reasonable. These
documents do not demonstrate that Myriam had the ability to refinance the
residence; Myriam thus cannot demonstrate that the trial court abused its
discretion if it excluded the documents from Wells Fargo that she lodged as
exhibits on appeal.
C. To the extent that Myriam raises issues that were not addressed in the
trial court’s December 4, 2019 order regarding the sale of the marital
residence, this court lacks jurisdiction to consider them
At various points in her brief, Myriam raises issues about the court’s
determinations with respect to child support, spousal support, attorney fees,
as well as the court’s division of other assets that the court addressed in its
October 16, 2019 order. However, the only order that Myriam identified in
her notice of appeal is the court’s December 4, 2019 order, and that order set
forth only the court’s disposition with respect to the sale of the marital home.
On appeal, “[o]ur jurisdiction . . . is limited in scope to the notice of appeal
and the judgment or order appealed from.” (Polster, Inc. v. Swing (1985)
14
164 Cal.App.3d 427, 436.) We therefore have no jurisdiction to consider
Myriam’s contentions about matters outside the scope of the trial court’s
December 4, 2019 order requiring the sale of the parties’ residence.
IV.
DISPOSITION
The court’s December 4, 2019 order is affirmed. Juan is entitled to his
costs on appeal.
AARON, J.
WE CONCUR:
HALLER, Acting P. J.
DATO, J.
15