Marriage of Winfree CA3

Filed 9/6/22 Marriage of Winfree CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
In re the Marriage of ELMER and DONNA C089605
WINFREE.
ELMER WINFREE, (Super. Ct. No. 172785)
Respondent,
v.
DONNA WINFREE,
Appellant.
SUMMARY OF THE APPEAL
In this appeal, Appellant/Respondent Donna Winfree (Wife) challenges various
determinations made by the trial court when it entered a judgment dividing the
community property of Wife and Respondent/Petitioner Elmer Winfree (Husband) in
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their marital dissolution action. All of Wife’s arguments assert the court made findings
or awards that were not supported by substantial evidence, were an abuse of discretion, or
were contrary to the evidence provided. Because Wife has not provided this court with a
reporter’s transcript, settled statement, or agreed statement memorializing two out of the
four days during which this case was tried, we lack a sufficient record with which to
assess her arguments. Accordingly, we affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
The central problem with Wife’s appeal is that we do not have a sufficient record
of two days of oral proceedings for a four-day trial. As a result, many of the facts—and
even the range of the parties’ representations about those facts—remain unclear. Here we
provide only minimal factual and procedural details for context, and in the discussion we
will incorporate additional information regarding the proceedings below and content of
the record as needed.
Husband and Wife were married on April 14, 1990. They separated on either
July 29 or July 30, 2011. Husband filed a petition for dissolution of marriage on
August 10, 2011, and Wife filed a response in which she also requested a dissolution of
the marriage on August 17, 2011.
On September 27, 2012, the trial court entered a stipulated judgment of dissolution
as to marital status only, effective February 18, 2013. The court retained jurisdiction
over all remaining issues.
The trial court held a four-day bench trial—which was spread out over
approximately one year—to determine how to divide the community estate. Wife has
presented us with a reporter’s transcript for the second and third days of trial, but not for
the first or fourth day. Wife has not provided a settled statement under California Rules
of Court, rule 8.137, or an agreed statement under California Rules of Court, rule 8.134
for the first or fourth day of trial.
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On September 11, 2018, the trial court issued a tentative and proposed statement
of decision on all reserved issues related to the petition and dissolution of the Winfree’s
marriage (first proposed statement). Husband filed a list of objections and exceptions to
the first proposed statement. Based on the record before us, Wife did not. On
September 26, 2018, the court issued an amended tentative and proposed statement of
decision on all reserved issues related to the petition and dissolution of the Winfree’s
marriage (second proposed statement). It appears from the partial record that we have,
that neither party objected to the second proposed statement.
The trial court issued its judgement on the reserved issues, which consisted
primarily of a division of property, on April 10, 2019.
The following aspects of the judgment are at issue in this appeal:
The court awarded each party 50 percent of the community value of a Morgan
Stanley IRA, to be divided by a qualified domestic relations order1 with the parties to pay
equally for the cost. The court found that the community had a 16.38 percent interest in
the account as of June 30, 1991. The court found that the community took out $30,000
from the IRA in May 2016 and ordered each party to cover the tax on their share of the
withdrawal. The court found that Husband withdrew $1,000 per month from the account
over a period of 72 months for a total of $72,000, and ordered that the withdrawals be
charged against his share of the account and that he pay the resulting taxes. The court
found that 83.62 percent of the Morgan Stanley account as of June 30, 1991, was
Husband’s separate property and awarded it to him.
1 “Under provisions of the federal Employee Retirement Income Security Act of 1974
(29 U.S.C. § 1001 et seq.; hereafter ERISA), private retirement plans may, pursuant to a
state court’s domestic relations order, pay a portion of an employee participant’s
retirement benefits directly to the employee’s former spouse or dependents, if and only if
the state court order meets certain specifications. Such an order is a ‘qualified domestic
relations order’ . . . . (29 U.S.C. § 1056(d)(3).)” (In re Marriage of Oddino (1997)
16 Cal.4th 67, 71.)
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The court awarded Husband a 1997 Monoco RV (the RV) from community
property, and found that the fair market value of the RV was $16,900.
Pursuant to In re Marriage of Watts (1985) 171 Cal.App.3d 366, 374 (Watts)2 the
court required Wife to reimburse the community—i.e., it imposed a Watts charge—for
her use of the marital home for each full month between the date of separation and the
date it issued its first proposed decision. The court calculated Wife’s reimbursement
obligation to the community as $1,500 per month over a period of 85 months, for a total
of $127,500.
The court did not impose a Watts charge on Husband for his use of the RV after
the date the parties separated.
The court determined that both parties were entitled to a Marriage of Epstein
(1979) 24 Cal.3d 76, 83-843 reimbursement (Epstein credit) for payments they
individually made after they separated, toward a community debt on a 2009 Chevrolet
Silverado truck (Silverado).
The clerk of court served a notice of entry of judgment on the parties on April 10,
2019. Wife filed a timely notice of appeal on May 24, 2019.
2 Under Watts, supra, 171 Cal.App.3d at page 374 courts have the authority to charge a
spouse in a marital dissolution action for the fair value of that spouse’s exclusive use of
community property between the date the parties separated and the date on which the
community no longer has an interest in the property. “The trial court determines what is
due the community ‘after taking into account all the circumstances’ relevant to the
exclusive possession by one spouse. (In re Marriage of Watts, supra, 171 Cal.App.3d at
p. 374.)” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 979.)
3 Under Epstein, supra, 24 Cal.3d at pages 83-84, the court may order the community to
reimburse—and give a credit to—a spouse who has used his or her separate funds to
make postseparation payments on a preexisting community obligation.
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DISCUSSION
Wife argues that substantial evidence does not support the trial court’s findings
relating to the division of the IRA and the value of the RV. Wife also argues that the
court abused its discretion in, on the one hand, imposing a Watts charge on her for her
use of the marital home after the parties separated and, on the other hand, not imposing a
Watts charge on Husband for his use of the RV after separation. Additionally, Wife
argues that the trial court’s award of Epstein credits to the Husband for payments on the
Silverado was contrary to the evidence provided—because Husband testified he did not
make payments on the Silverado.
In respondent’s brief, Husband argues we should affirm the trial court’s judgment.
Husband makes two arguments. His first argument concerns the adequacy of the record
of the oral proceedings in the trial court. Husband takes the position that trial court
judgments are presumed correct, with all presumptions favoring a judgment on matters
where the record it is silent; and an appellant has the duty to show error in a challenged
judgment with an adequate record. As a consequence, Husband reasons, because Wife
did not provide an adequate record of the oral proceedings at trial, she cannot
demonstrate the trial court erred in making the rulings she challenges on appeal. Second,
Husband argues that because Wife failed to object to the trial court’s proposed statement
of decision, we should imply findings to support the judgment. Because we agree that
Wife has failed to provide an adequate record on appeal, and with his arguments
regarding the impact of that failure, we affirm the judgement and need not consider
Husband’s second argument.
In Jameson v. Desta (2018) 5 Cal.5th 594, 608-609, our Supreme Court explained
why it is important for an appellant to provide an adequate record on appeal: “it 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
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the record presented to the appellate court, that the trial court committed an error that
justifies reversal of the judgment. (See, e.g., Denham v. Superior Court (1970) 2 Cal.3d
557, 564 []; see generally 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409
[citing cases].) ‘This is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible error.’ (9 Witkin, supra, § 355, at
p. 409; see Cal. Const., art. VI, § 13.) ‘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.” ’ (Bennett v. McCall (1993) 19 Cal.App.4th 122, 127 [].) ‘ “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.” ’ (Gee v.
American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416 [].)
‘Consequently, [the 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 [the appellant].’ (Hernandez v. California Hospital Medical Center
(2000) 78 Cal.App.4th 498, 502 [].)” (Italics added.) “The California Rules of Court
provide an appellant with a choice of several types of records” of oral proceedings, “upon
which to take an appeal.” (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)
According to rule 8.120, “[i]f an appellant intends to raise any issue that requires
consideration of the oral proceedings in the superior court, the record on appeal must
include a record of these oral proceedings in the form of one of the following: [¶] (1) A
reporter’s transcript under rule 8.130; [¶] (2) An agreed statement under rule 8.134; or
[¶] (3) A settled statement under rule 8.137.”
While courts have found that, “[a] reporter’s transcript may not be necessary if the
appeal involves legal issues requiring de novo review,” (Southern California Gas Co. v.
Flannery (2016) 5 Cal.App.5th 476, 483), “where the appellant fails to produce a
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complete record of oral trial proceedings, a challenge based on the claim of evidence
insufficiency will not be heard. (Construction Financial v. Perlite Plastering Co. (1997)
53 Cal.App.4th 170, 179 [].)” (Estate of Fain (1999) 75 Cal.App.4th 973, 987, italics
added.) The need to supply an adequate record of oral proceedings also applies in cases
in which appellate courts are asked to review a trial court’s finding for an abuse of
discretion. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1291, 1295-1296 [Applying an
abuse of discretion standard in reviewing an award of attorney’s fee, and concluding “it
unnecessary . . . to remand this case to redetermine attorney fees. It is the burden of the
party challenging the fee award on appeal to provide an adequate record to assess error
. . . Here, defendants should have augmented the record with a settled statement of the
proceeding. . . . Because they failed to furnish an adequate record of the attorney fee
proceedings, defendants’ claim must be resolved against them”].)
Because all of Wife’s arguments claim the trial court made a finding or award that
was not supported by substantial evidence, was an abuse of discretion, or was contrary to
the evidence provided, and we lack a sufficient record of the oral proceedings upon
which those findings and awards were based, all of her arguments fail.
In her reply brief, Wife makes various arguments to try to convince the court her
failure to include a complete record of oral proceedings at trial is not fatal to this appeal.
Essentially, her arguments boil down to a three-pronged attack. First, she tries to
distinguish this case from the cases cited in Husband’s brief by pointing out that in those
cases the appellants provided no records of oral proceedings and here she provided some
of the record of oral proceedings and she argues that as a result the rules articulated in the
cases cited by Husband have no application here. Second, she takes the position that her
failure to provide a complete record of the oral trial proceedings only upends her appeal
if the missing record might add to our understanding of the issues on appeal; and she
observes that Husband has not shown the missing transcripts “could reasonably be
expected to contain evidence that would support the trial court’s challenged rulings.”
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Third, she points to items in the record she did provide—including somewhat detailed but
not exhaustive minute orders—and contends they demonstrate it is not reasonably likely
any critical statements were made during the portions of trial for which we do not have a
reporter’s transcript.
The first and second prongs of Wife’s argument tread too closely to a shifting of
burdens on appeal when an appellant provides any portion of a transcript from a hearing
during which a trial court took argument or testimony. It is an appellant’s burden to
provide a sufficient record; it is not the respondent’s—or the court’s burden—to piece
together a showing that evidence and statements in support of a finding and ruling likely
exist when given an incomplete record.
As to the third prong, while the available record and the transcript of days two and
three of the trial may provide some detail about what transpired on days one and four, it
does not include enough detail to convince us no one said anything on those days that
could support the trial court’s rulings. Here, the central purpose of the four-day trial was
to enable the trial court to enter a judgment identifying and dividing all of the Winfrees’
community property. The determinations and property divisions at issue in this appeal
were not bifurcated from the other issues raised at trial or otherwise siloed off in a
manner where the trial court would not have considered testimony relevant to the
findings challenged here if the parties provided that testimony during the first or fourth
day of trial. Though it is possible that the trial court and counsel managed to isolate all
testimony and commentary relevant to the determinations appellant asks us to consider
here to the two days for which we have transcripts, that is far from a foregone conclusion.
(See, e.g., Segal v. ASICS America Corp. (2020) 50 Cal.App.5th 659, 666, review granted
Sept. 30, 2020, S263569 [“Given that trials are unpredictable, however, it is difficult for
even the most experienced trial lawyers to divine which exhibits and demonstratives will
in fact be used”].) In some instances, the materials that we have suggest that the items
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we do not have actually might have provided insight into the court’s decisions. A few
examples illustrate our point.
First, in her opening brief, in support of her argument that the trial court’s $16,900
valuation of the RV was not supported by substantial evidence, Wife points out that
Husband testified that he thought the RV was worth $20,000 to $22,000. The court then
asked what value Wife would place on the RV. Her counsel stated Wife’s unresearched
opinion was the RV was worth $35,000, at which point the court noted the parties were
not in agreement and it would wait to hear from Wife on direct. In her opening brief,
Wife cites to the portions of her testimony contained in the reporter’s transcript we do
have and states, “[t]hereafter, however, when Wife testified, neither counsel examined
her about the RV, and the court received no testimony from her regarding its potential
value.” But the transcripts we have do not capture the whole of Wife’s testimony after
this discussion. It is apparent from the minute order for day four of the trial that Wife
both testified and was cross-examined, but the precise scope of her testimony is not
identified. Under the circumstances, it is not unreasonable for this court to wonder
whether Wife said something about the RV in the unreported testimony. Perhaps she did,
perhaps she didn’t but we are not required to guess.
Second, Wife argues that the valuation of the RV and awarding Husband credits
for payments he made on the debt owing on the Silverado were contrary to Husband’s
express testimony. Specifically, she maintains the only evidence the court received on
the value of the RV was Husband’s statement that it was worth between $20,000 and
$22,000, and she notes that when asked if he made payments on the Silverado during day
two of the trial, Husband said he did not make payments. But, again, we are not required
to guess whether there was conflicting testimony on these two subjects on days one or
four of the trial. We know Wife testified on those days, but we do not know the range of
topics her testimony covered, let alone what exactly she said about those topics.
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Likewise, Husband testified on the first day of trial, and it may well be Husband
said something that contradicted his statements about the value of the RV and payments
on the Silverado during that testimony. The materials we have also appear to be devoid
of any evidence regarding Wife’s payments on the debt owing on the Silverado. But, in
addition to giving Husband an Epstein credit for payments on the Silverado in the amount
of $8,669, for payments from August 2011 to July 2013, the court awarded Wife an
Epstein credit of $6,862 for payments made from August 2013 to January 2015. These
numbers are very specific and suggest something else was provided to the court to guide
it in reaching its determination on this issue. We are left to guess with an incomplete
record.
Third, the minute order from day one of trial reflects it is probable at least some of
the testimony taken and evidence heard on that day was about the parties’ respective
interests in the Lassen View property. But again, it is at least possible the testimony
included statements regarding each parties’ use of the property after separation and/or
when and how often Husband stayed in the RV instead. Appellant has not offered a
record that allows us to determine such.
Fourth, though when it divided the Morgan Stanley IRA the court adopted its
calculations from the October 18, 2017, hearing, it is possible that Husband—who did not
testify on the fourth day of trial—said something during his testimony on the first day of
trial that informed the court’s decision. Additionally, it is possible the court said
something during the final day of hearings that clarified its reasoning for dividing the
account the way it did.
In short, given the issues Wife has raised in this appeal, a complete record of the
oral proceedings from all four days of trial, whether by transcript or by an agreed or a
settled statement was necessary for us to properly resolve the issues raised in this appeal.
Wife has failed to satisfy that requirement here.
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DISPOSITION
The judgment is affirmed. Each party shall bear his or her own costs on appeal.
(Cal. Rules of Court, rule 8.278.)
HULL, Acting P. J.
We concur:
RENNER, J.
EARL, J.
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