Marriage of Armstrong CA2/7

Filed 6/16/15 Marriage of Armstrong CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SEVEN
In re Marriage of BRIAN and MARIA B254724
ALBERTINA ARMSTRONG.
(Los Angeles County
Super. Ct. No. ED038656)
BRIAN WAYNE ARMSTRONG,
Appellant,
v.
MARIA ALBERTINA ARMSTRONG,
Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, Dianna
Gould-Saltman, Judge. Affirmed.
Brian Wayne Armstrong, in pro. per., for Appellant
Holmes & Holmes and Robert K. Holmes, for Respondent.
____________________________
Brian Wayne Armstrong, representing himself, appeals from the order entered
after the court adopted the report of an appointed referee calculating support arrears and
attorney fees owed to Armstrong’s wife, Maria Albertino Armstrong, and allocating the
remaining portion of the escrow proceeds from the sale of community real property.
Brian1 contends the referee was improperly appointed and was biased against him; his
findings were not supported by substantial evidence; and the trial court abused its
discretion in adopting the report. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A judgment dissolving the Armstrongs’ marriage was entered on April 6, 2012.
The judgment required Brian to pay Maria certain base levels of child and spousal
support, as well as percentages of his earned income over a fixed amount. In an order
dated January 11, 2013, the court modified the child and spousal support awards effective
December 2012. When the parties were unable to agree on the amounts due under the
judgment and subsequent modification, Maria filed a post-judgment request for an award
of support arrears, as well as an award of attorney fees. On April 15, 2013 the trial court
appointed retired Los Angeles Superior Court Judge Richard Montes as a referee
pursuant to Code of Civil Procedure section 639, subdivision (a)(2).2 Judge Montes was
charged with determining the amount of support arrears due, if any, and, if appropriate,
recommending an award of attorney fees in connection with the effort to establish and
collect arrears.
On June 5, 2013 Brian filed a form entitled “Request for Disqualification of ADR
Neutral,” stating his belief Judge Montes was biased against him and would not be
impartial. On June 11, 2013 the court issued a minute order “clarify[ying] its prior
appointment order . . . with the specificity required under [section] 639.”
A hearing was convened by Judge Montes on July 19, 2013. Maria was
represented by counsel; Brian was not. At the beginning of the hearing Judge Montes
1
As is customary in family law matters, we refer to the parties by their first names
for convenience and clarity.
2
Statutory references are to this code.
2
acknowledged the court had not complied with the provisions of section 640 in
appointing him as referee. Judge Montes offered to send the referral back to the court if
either side objected to proceeding. However, if the parties were willing to waive the
defect in procedure, he would proceed. Both parties agreed to waive the defect in the
appointment. Judge Montes prepared a written “Stipulation to Waive Objections,” and
both parties signed the stipulation. Maria testified and introduced an income and expense
statement. Brian testified and also called Maria’s counsel as a witness, questioning him
at length about actions preceding entry of the judgment. Brian also provided a report
from an accountant that tallied his income and expenses related to child and spousal
support, reaching a lesser amount than calculated by Maria.3 After the hearing closed,
Judge Montes invited the parties to submit proposed findings of fact in support of their
respective positions.
Judge Montes filed a report with the trial court on August 7, 2013. According to
Judge Montes, Brian’s questioning of Maria’s counsel revealed a fundamental
misunderstanding of the scope of the issues to be resolved and focused instead on
whether there had been some kind of fraud in the inducement of the stipulated judgment.
Brian’s evidence—in particular the accountant’s report of Brian’s income and
expenses—was based on incorrect assumptions and mischaracterizations of controlling
court orders. Other exhibits provided by Brian contained extensive highlighting and
commentary characterizing and disputing statements within the exhibits. Further, the
post-hearing pleading filed by Brian was submitted in the form of “lengthy argument,”
which, the referee found, was confusing and unfocused, even allowing “some leeway”
due to his self-represented status.
Judge Montes recommended the trial court find the amount of child and spousal
support arrearages owed by Brian to Maria was $67,977.92; attorney fees in the amount
3
Brian failed to provide a transcript of the hearing even though a court reporter was
present. Excerpts from the transcript were attached to a subsequent pleading filed by
Brian with the trial court, but the discussion related to the proffered accountant’s report
was not complete.
3
of $23,224.27 had been incurred in the effort to establish and collect arrears, 75 percent
of which should be paid by Brian due to his obstreperous conduct; and the amount of
$33,020.72 of the retained escrow funds should be awarded to Maria with credit to Brian
for half of that amount. Judge Montes also recommended Brian bear the costs of the
court reporter because “the intransigence of the Petitioner and his lack of self-control”
made it necessary to have the proceeding reported. Judge Montes closed by observing,
“It is understandable that there can be a certain emotional upset when one is going
through a divorce. However, after five years there is no excuse for the manner in which
Petitioner continues to behave in regard to these proceedings.”
Maria filed a request the court adopt all of the referee’s suggested rulings. Brian
opposed and filed several documents purporting to request the referee’s recommendations
be rejected and his own accountant’s calculation be adopted. After a hearing on the
matter the court issued a ruling adopting the referee’s proposed rulings with the exception
of the recommendation Brian pay the entire fee of the court reporter, which the court
allocated equally between the parties. As to Brian’s purported request for an order, the
court found he had failed to pay the necessary filing fees and his requests were therefore
not properly before the court.
DISCUSSION
1. Governing Law
“In family law matters, especially where the parties are unable to curb their
animosity toward each other, the trial court may well find it advantageous to designate a
separate forum to resolve the parties’ differences.” (Ruisi v. Thieriot (1997)
53 Cal. App. 4th 1197, 1207; accord, In re Marriage of Olson (1993) 14 Cal. App. 4th 1,
5, fn. 2 and 8.) Although the court may not entirely delegate its judicial power (Cal.
Const., art. VI, § 1), it has the statutory authority to send a pending action or
proceeding, or some issue raised therein, to a referee or special master “for hearing,
determination and report back to the court.” (Jovine v. FHP, Inc. (1998) 64
Cal. App. 4th 1506, 1521; see §§ 638, 639.)
4
There are two types of references. A “general” reference, conducted under
section 638, empowers a special master to make a conclusive determination without
further action by the court. To comport with the constitutional prohibition against
delegation of judicial power, a general reference requires the consent of the parties.
(§ 638; Ruisi v. Thieriot, supra, 53 Cal.App.4th at p. 1208.) “[I]f the reference is by
agreement of the parties, the parties can stipulate to the [referee] making determinations
which otherwise would be an unlawful delegation of judicial authority.” (In re Marriage
of Olson, supra, 14 Cal.App.4th at p. 8.)
A “special” reference under section 639 may be ordered by the court without the
parties’ consent.4 (Jovine v. FHP, Inc., supra, 64 Cal.App.4th at p. 1522.) In such cases
the authority of the referee is limited to resolving specific questions of fact. 5 “The
procedure is most commonly employed where complicated accounts can more
conveniently be examined or taken outside of court, and to resolve discovery disputes or
certain types of family law issues.” (In re Marriage of Petropoulos (2001) 91 Cal. App. 4th
161, 176.) These findings are advisory recommendations only and are not binding unless
the court adopts them. (Ruisi v. Thieriot, supra, 53 Cal.App.4th at p. 1208; Marriage of
Petropolis, at p. 176.) Nevertheless, although a referee’s findings on factual questions are
4
If a referee is appointed by a trial court pursuant to section 639, any party may
object to the referee’s report within 10 days or within any time as the court directs.
(§ 643, subd. (c).) The appointment of a referee is subject to review under an abuse of
discretion standard. (Reed v. Reed (1953) 118 Cal. App. 2d 399, 400.)
5
The trial court may direct a special reference under section 639 only in the
following cases: “(1) When the trial of an issue of fact requires the examination of a
long account on either side; in which case the referees may be directed to hear and decide
the whole issue, or report upon any specific question of fact involved therein. [¶]
(2) When the taking of an account is necessary for the information of the court before
judgment, or for carrying a judgment or order into effect. [¶] (3) When a question of
fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the
action. [¶] (4) When it is necessary for the information of the court in a special
proceeding. [¶] (5) When the court in any pending action determines that it is necessary
for the court to appoint a referee to hear and determine any and all discovery motions and
disputes relevant to discovery in the action and to report findings and make a
recommendation thereon.” (§ 639, subd. (a).)
5
not binding, they are entitled to great weight when supported by substantial evidence. (See
In re Johnson (1998) 18 Cal. 4th 447, 461 [“[d]eference to the referee is called for on
factual questions, especially those requiring resolution of testimonial conflicts and
assessment of witnesses’ credibility, as the referee has the opportunity to observe the
witnesses’ demeanor and manner of testifying”].) “The court may adopt the referee’s
recommendations, in whole or in part after independently considering the referee’s findings
and any objections and response thereto filed with the court.” (§ 644, subd. (b); see
Marathon Nat. Bank v. Superior Court (1993) 19 Cal. App. 4th 1256, 1261.) If substantial
evidence supports the referee’s recommendations, there is no abuse of discretion by the
trial court.
2. Brian Waived His Objections to the Appointment by Stipulation
Brian contends the trial court’s appointment of Judge Montes as a referee was
improper. Brian filed a request to disqualify Judge Montes shortly after his appointment
by the court, but his request was improperly framed as a challenge to an alternative
dispute mediator. The court corrected that misimpression by issuing an order clarifying
its appointment had been made pursuant to section 639. Brian did not file an objection to
that order.
While there seems to be no dispute the trial court did not comply with section 640,
subdivision (b), which allows the parties to participate in the selection of the referee,6
Brian waived any objection to this procedural defect when he agreed to proceed with
Judge Montes because, in his words, “time is of the essence.” The stipulation prepared
by Judge Montes and executed by Brian provides: “In this matter, a failure to comply
with the provisions of Sections 639 and 640 of the Code of Civil Procedure may exist in
connection with the order assigning Judge Richard Montes (Retired) to act as a Referee in
this matter. [¶] Nonetheless, the parties waive any objection to the appointment of Judge
6
Section 640, subdivision (b), provides: “If the parties do not agree on the selection
of the referee or referees, each party shall submit to the court up to three nominees for
appointment as referee and the court shall appoint one or more referees, not exceeding
three, from among the nominees against whom there is no legal objection. . . .”
6
Montes to act as a Referee pursuant to [section] 639.” Brian offers, and there appears to
be, no ground for finding this waiver invalid. Accordingly, the failure to comply with
the selection procedure contemplated by sections 639 and 640 is not grounds for reversal
of the trial court’s order.
Brian also contends Judge Montes was prejudiced against him personally and
demonstrated unethical, anti-Semitic bias when he used the term “kosher”—a word
borrowed from Yiddish and Hebrew describing food that has been prepared in keeping
with the dietary constraints of traditional Jewish law but commonly used as a colloquial
term for “being proper, acceptable or satisfactory” (Merriam-Webster OnLine Dict.
[as of June 16, 2015])—in
addressing Brian’s belief the proceedings were illegitimate.7 While “kosher” in this
context may be slang, it is no stranger to judicial proceedings. (See, e.g., United States v.
Morales (2d Cir. 1978) 577 F.2d 769, 776, fn. 8 [quoting defense counsel’s closing
argument, “‘Suppos[e] there was something illegal in the bag, supposing there was
something in the vernacular, not kosher or right; what happens if it would have been
marijuana . . . .’”]; United States v. Orgad (E.D.N.Y. 2001) 132 F. Supp. 2d 107, 119
[quoting from tape recording of informant and suspect, “You know, I just was calling uh,
another lawyer to make sure, you know that this all was kosher”].) We see no way in
which Judge Montes’s use of the widely accepted and understood word indicated any
bias toward Jews generally or Brian specifically.
3. The Trial Court Did Not Abuse Its Discretion in Adopting the Findings of the
Referee
The California Rules of Court require appellants to identify points of law and
error, to support them by argument and, if possible, citation of authority and to provide
specific references to the record in support of those arguments. (Cal. Rules of Court, rule
7
Explaining his focus on what the stipulated court order meant, not the contentious
negotiations that preceded it, Judge Montes said to Brian, “I’m just trying to determine
what is relevant. There are a [lot] of things that you may find that are not copacetic. In
the old days, I used to say kosher but—because in Beverly Hills that’s acceptable.” Brian
replied, “I do not laugh.”
7
8.204(a)(1)(B)-(C).) Absent compliance with these rules, we have little basis to question
the trial court’s exercise of its broad discretion in a particular matter. (See Denham v.
Superior Court (1970) 2 Cal. 3d 557, 564 [cardinal rule of appellate review that judgment
or order of trial court is presumed correct and prejudicial error must be shown]; Maria P.
v. Riles (1987) 43 Cal. 3d 1281, 1295-1296 [appellant must provide an adequate appellate
record demonstrating error]; Lincoln Fountain Villas Homeowners Assn. v. State Farm
Fire & Casualty Ins. Co. (2006) 136 Cal. App. 4th 999, 1003-1004, fn. 1 [record is
inadequate when it “‘appears to show any need for speculation or inference in
determining whether error occurred’”].) If an inadequate record has been provided, we
must affirm the judgment. (Estrada v. Ramirez (1999) 71 Cal. App. 4th 618, 620, fn. 1
[burden is on appellants to provide adequate record on appeal to demonstrate error;
failure to do so precludes an adequate review and results in affirmance of the trial court’s
determination].)
While 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 and,
whenever possible, we do not strictly apply technical rules of procedure in a manner that
deprives litigants of a hearing, Brian’s failure to comply with these principles in this
appeal has severely hindered our ability to decipher and address his claims. As best we
can understand Brian’s arguments in the context of the limited scope of this appeal,8 he
contends the trial court abused its discretion in adopting Judge Montes’s
recommendations, which improperly failed to credit him for the child care contribution
owed by Maria for the expenses associated with the couple’s daughter, of whom Brian
held principal custody. Brian, however, has misinterpreted the trial court’s modification
of the April 2012 stipulated judgment in its January 11, 2013 order. To be sure, the order
8
Most of Brian’s arguments appear to be directed at the amount of spousal support
awarded by the trial court in earlier proceedings and its application of certain family law
principles in making those awards. Those orders are not before us. This appeal is limited
to the order entered on December 26, 2013 adopting Judge Montes’s recommendations
concerning support arrearages and attorney fees.
8
states that Maria shall pay Brian $330 per month in child support plus a child care
contribution of $600 per month commencing December 1, 2012. It also provides that
Brian shall pay Maria spousal support of $1,754 per month commencing December 1,
2012. The order then set forth a modified “Net Support Payment” providing, “To
simplify the payment of child and spousal support, to or from either party, Petitioner
[Brian] shall pay to Respondent [Maria] the net amount of $824 per month . . .
commencing on December 1, 2012.” The sum of $824 equals the spousal support
amount of $1,754 owed by Brian, less the $930 combined child support and child care
contribution ($330 and $600) owed by Maria. Judge Montes expressly acknowledged
this combined net payment in the recommendations submitted to the court: “[Brian]
refers to items of unpaid child care arrearages but makes no reference to any document
that is being proffered to determine such an item. Nor was any exhibit offered during the
hearing that deals with this issue. . . . The judgment of April 6, 2012 does not mention
child care expenses. The amended order of January 11, 2013 orders [Maria] to pay child
care expenses of $600 per month and child support of $300 [sic] per month commencing
on December 1, 2012. The January 11, 2013 [order] excluded child support and child
care was eliminated as of December 1, 2012 and substituted with a net spousal support
order of $824 per month.” In other words, Brian was credited with Maria’s obligation to
contribute to their daughter’s child care, and Brian’s claim of error is mistaken.
We have considered Brian’s other points to the extent we are able to understand
them. With regard to the narrow issues before the referee and, subsequently, the court,
we perceive no basis for Brian’s contention the findings of the referee were not supported
by substantial evidence or the trial court abused its discretion in adopting those
recommendations.
9
DISPOSITION
The judgment is affirmed. Maria is to recover her costs on appeal.
PERLUSS, P. J.
We concur:
ZELON, J.
IWASAKI, J.*
*
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
10