Marriage of Sholtis CA2/8 ( 2022 )

Filed 10/28/22 Marriage of Sholtis CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re Marriage of ISABELLA and B322740
ROBERT SHOLTIS.
_______________________________ (Los Angeles County
ISABELLA V. BIASUTTO, Super. Ct. No. 1-08-FL-148223)
Respondent,
v.
ROBERT J. SHOLTIS,
Appellant.
APPEAL from an order of the Superior Court of Santa
Clara County, James L. Stoelker, Judge. Affirmed.
Robert J. Sholtis, in pro. per., for Appellant.
Isabella V. Biasutto, in pro. per., for Respondent.
_________________________
INTRODUCTION
Robert Sholtis (Robert) appeals from the Family Court’s
May 29, 2019 order denying his post-judgment Request For Order
(RFO) on several issues—modification of child custody, visitation,
child support, property control, child tax credit, psychological
therapy for alleged child abuse, possession of child’s passport,
and attorney’s fees and costs—against his now former wife
Isabella V. Biasutto (Isabella).1
Robert presents many arguments on appeal. Because he
has not provided an adequate record on appeal or sufficient
argument or citation to legal authority to support his contentions,
we find his appeal forfeited.
We affirm the order denying his RFO.
FACTUAL AND PROCEDURAL BACKGROUND
We glean the following information from the scanty record
provided us, which includes two minute orders, orders after
hearing from the year 2009, the reporter’s transcript for hearings
held January 8, 2009 and April 30, 2019, the register of actions
(i.e., case summary), and the court’s May 29, 2019 ruling that
forms the basis of this appeal.
On November 7, 2008, Isabella filed a petition in Santa
Clara Superior Court for dissolution of her marriage to Robert,
with whom she shares one minor child, Patrick, born January
2005. Robert “served in the U.S. Army as career military and . . .
served in the reserves with the rank of Lt. Colonel in the military
intelligence branch.”
1 We refer to the parties individually by their first names.
2
A “very contentious and tumultuous dissolution” ensued for
years.
On August 1, 2011, the court awarded Robert and Isabella
joint legal and physical custody of Patrick. Robert was given
“liberal parenting time” (visitation) including 10 consecutive days
on Patrick’s school vacations/breaks and a “total allotment of 30
days of vacation/leave time with son.”
On August 16, 2012, the court entered a judgment of
dissolution limited to the issue of marital status and division of
property. To equalize the division of community property assets
and debts, the court ordered Robert to pay Isabella the sum of
$30,000 from retirement accounts via a rollover IRA. The court
reserved jurisdiction over all other issues.
On December 12, 2016, the court ordered Robert to pay
Isabella the amount of $1,277 per month as child support.
On December 27, 2017, Robert filed the RFO, which is not
included in the record on appeal. We understand from the trial
court’s statement of decision that Robert’s RFO raised several
issues, including “a request for change of child custody, visitation,
child support, attorney fees and costs, property control,
certification of settlement paid, sanctions for causing job loss,
child tax credit, an order for psychological therapy for [Isabella]
due to abuse of child, and possession of minor child[‘s] passport.”
Robert requested sole legal and physical custody of Patrick, with
“no visitation” to Isabella until she completes 10 psychiatric
therapy sessions. Robert alternatively requested that the court
allow Patrick to make his own decision as to custody and
visitation.
3
On January 18, 2018, Isabella filed a responsive
declaration to the RFO, as well as an income and expense
declaration. Neither document is included in the appellate
record.
The hearing on Robert’s RFO was originally set for
February 5, 2018 but was continued multiple times and finally
heard on April 30, 2019. Robert and Isabella presented evidence
and argued at length before the court. The court commented that
“there are a number of documents that were admitted into
evidence” that it wanted to “thoroughly review[] or stud[y] for
their application to this case.” The court took the matter under
submission. Those documents are not part of the appellate
record.
On May 29, 2019, the court issued its six-page statement of
decision, including the following rulings and “evidentiary
findings”:
Robert “is frequently deployed overseas and must report
without significant advanced notice and may serve in that
assignment for an indefinite period of time. As a result, [Robert]
believes that, in his opinion, he has never enjoyed a good amount
of time with his son” and “contends that on multiple occasions,
[Isabella] has interfered with visitation, including with an
opportunity for [Robert] to meet up with son when both were in
Europe.” Contrary to the timeshare with Patrick set out in the
current orders, Robert “has had only 50 days of time in the last
ten years. Clearly, [Robert’s] job obligations which take him out
of the country for extended periods of time as well as his son’s
living in Sarasota, Florida make visitation difficult.” The
visitation schedule was “intentionally left vague” when issued
because Isabella left California to live in Florida with Patrick,
4
and Robert was frequently out of the country on military
assignment. Patrick’s presence in court was not requested by
either party, and the court gave “no weight” to Robert’s
“testimony about what Patrick would have said had he been at
trial.”
The court found “no convincing evidence was presented
that Patrick’s safety is threatened by living with [Isabella]—with
whom he has lived primarily since the time of separation.” The
court determined the best interests of the child and found “no
evidence which compels a change of custody for Patrick.” The
court found it in Patrick’s best interest that a “new and more
definite visitation plan should be agreed upon and fixed.” But
“neither the evidence at trial nor argument of the parties assisted
the court in working out a mutually satisfactory plan that would
serve the best interests of Patrick.” For that reason, the court did
not modify visitation and instead “reserve[d] jurisdiction to
examine this issue again . . . when [Robert] can establish a more
stable and consistent environment for his time with Patrick.”
Robert admits he has not paid Isabella the $30,000 the
August 16, 2012 judgment ordered him to pay. Over time
Robert’s sister voluntarily paid as much as $40,000 directly to
Isabella instead, which Robert contends “constitutes satisfaction
of the debt.” Isabella acknowledged receipt of checks from
Robert’s sister totaling $40,000 but “contends the sister’s
payments were simply generous gifts and were never intended to
be paid in satisfaction of [Robert’s] debt.” The court found
Isabella’s position “is supported by the fact that there is no
writing between sister and [Isabella] which mentions [Robert’s]
debt. On the contrary, any writing frequently refers to the checks
as ‘gifts.’ ” The court determined, based on the “preponderance of
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the evidence presented,” that the “payments must be considered
gifts without crediting any of them to the long outstanding debt
owed by [Robert].”
The court did not modify child support as it did not have
current income and expense declarations from the parties.
As to the remaining issues, the court denied the RFO,
finding insufficient evidence to meet Robert’s burden of proof.
This appeal followed.
DISCUSSION2
Robert presents many arguments on appeal; however, his
briefing and the record on appeal preclude us from entertaining
his contentions.
We are mindful Robert is representing himself on appeal;
nevertheless, he “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.) He is
bound to follow fundamental rules of appellate review, including:
“[I]t is a fundamental principle of appellate procedure that a trial
court judgment is ordinarily presumed to be correct and the
burden is on an appellant to demonstrate, on the basis of the
record presented to the appellate court, that the trial court
committed an error that justifies reversal of the judgment.”
(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) “ ‘All
2 On January 18, 2022, Isabella filed a request to introduce
evidence. We deny the request. We do not know if the evidence
included as part of Isabella’s request was admitted by the trial
court. Further, many of the documents Isabella sought to
introduce on appeal were dated or generated after the date of the
April 30, 2019 hearing or May 29, 2019 statement of decision.
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intendments and presumptions are indulged to support it on
matters as to which the record is silent, and error must be
affirmatively shown.’ ” (Denham v. Superior Court (1970)
2 Cal.3d 557, 564.) To overcome this presumption, an appellant
must provide a record that allows for meaningful review of the
challenged order. (Foust v. San Jose Construction Co., Inc. (2011)
198 Cal.App.4th 181, 187.)
While we were provided the reporter’s transcript of the
April 30, 2019 proceeding, Robert failed to include as part of the
record relevant pleadings and documents necessary for our
review of issues he has raised on appeal. For instance, the record
does not include a copy of the operative RFO filed by Robert on
December 27, 2017, Isabella’s responsive declaration filed
January 18, 2018, any income and expense declarations, and any
of the evidence presented in connection with the proceeding. Also
missing is the parties’ judgment of dissolution entered August 16,
2012, which included relevant terms relied upon by the parties.
It is appellant’s burden to produce a record “ ‘which overcomes
the presumption of validity favoring [the] judgment.’ ” (Webman
v. Little Co. of Mary Hospital (1995) 39 Cal.App.4th 592, 595.)
Failure to provide an adequate record requires that the issue be
resolved against the appellant. (Maria P. v. Riles (1987)
43 Cal.3d 1281, 1295–1296; see Oliveira v. Kiesler (2012)
206 Cal.App.4th 1349, 1362.)
It must also be noted that Robert’s sole brief contains not a
single citation to the record on appeal. He makes generalized
and conclusory legal statements throughout his brief, without
referring to specific evidence relevant to our consideration of his
claims. It is not this court’s task to search the record for evidence
that supports a party’s factual statements, and we may disregard
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statements not supported by proper citation. (In re Marriage of
Tharp (2010) 188 Cal.App.4th 1295, 1310, fn. 3; Regents of
University of California v. Sheily (2004) 122 Cal.App.4th 824,
826, fn. 1.) We will not scour the record on our own in search of
supporting evidence. (Sharabianlou v. Karp (2010)
181 Cal.App.4th 1133, 1149.)
Next, in contravention of California Rules of Court, rule
8.204(a)(1), Robert refers to pleadings and evidence in his
opening brief that are not part of the record. For instance, he
refers to the court’s January 9, 2009 hearing when, he alleges,
“Judge Mary Arand directly violated [Family Code section 3047].”
However, the court’s order made at the January 9, 2009 hearing
is not currently before us on appeal. Before us now is only the
court’s May 29, 2019 order denying Robert’s RFO.
Finally, Robert failed to offer legal support and reasoned
analysis of the issues raised on appeal. He refers to no case law
or authority to support his rather conclusory and bare-boned
arguments. An appellant who does not provide adequate legal
authority and analysis to support a contention forfeits that
contention. (Ewald v. Nationstar Mortgage, LLC (2017)
13 Cal.App.5th 947, 948; Nielsen v. Gibson (2009)
178 Cal.App.4th 318, 324.) It is not our role to develop the
appellant’s legal theories or arguments on appeal. We treat an
issue and/or argument as waived “ ‘ “[w]hen an appellant fails to
raise a point, or asserts it but fails to support it with reasoned
argument and citations to authority.” ’ ” (Cahill v. San Diego Gas
& Electric Co. (2011) 194 Cal.App.4th 939, 956.) “The absence of
cogent legal argument or citation to authority allows this court to
treat the contentions as waived.” (In re Marriage of Falcone &
Fyke (2008) 164 Cal.App.4th 814, 830; see also Cal. Rules of
8
Court, rule 8.204(a)(1)(B) [“support each point [in a brief] by
argument and, if possible, by citation of authority”].)
Robert’s failure to provide a complete record on appeal, as
well as adequate legal discussion and cogent argument with
references to relevant evidence and the appellate record in
general, preclude us from entertaining his arguments on appeal.
Accordingly, we affirm.
DISPOSITION
The May 29, 2019 order denying the request for order is
affirmed. Costs are awarded to respondent Isabella V. Biasutto.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
*
HARUTUNIAN, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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