Williams v. Anderson CA2/3

Filed 12/29/20 Williams v. Anderson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 THREE
CARMON NACOLE WILLIAMS, B296149
Appellant, (Los Angeles County
Super. Ct. No. 18STFL00431)
v.
LENARD ANDERSON,
Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael R. Powell, Judge. Affirmed.
Carmon Nacole Williams, in pro. per., for Appellant.
Edmond E. Salem for Respondent.
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Appellant Carmon Nacole Williams appeals from an order
denying her motion to set aside a temporary spousal support
order and recalculate spousal support. We conclude the record is
insufficient to allow us to conduct a meaningful appellate review
of Williams’s claim, and thus we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Williams and respondent Lenard Anderson were married in
2011 and separated in 2017. Williams filed a marital dissolution
petition in January 2018, which remains pending.
On May 31, 2018, the trial court held a hearing on
Williams’s request for temporary spousal support. At the
conclusion of the hearing, the court ordered Anderson to pay
Williams spousal support of $1,500 per month.
On November 13, 2018, Williams filed a motion pursuant to
Family Code section 3691 to set aside the support order on
grounds of fraud and perjury, and to recalculate support.
Williams contended that Anderson had not disclosed all of his
income prior to the May hearing, had recently transferred his
largest income-producing property to his son, and had transferred
large sums of money from a bank account in violation of the
automatic temporary restraining order. Williams thus asked the
court to set aside the prior order, recalculate spousal support
based on Anderson’s previously undisclosed income, and sanction
Anderson for perjury.
During the January 4, 2019 hearing on Williams’s motion,
the court asked when Williams became aware of the alleged fraud
and perjury, and whether the facts on which the motion was
based had been available to Williams prior to the May 2018
hearing. Williams’s attorney did not indicate when Williams
learned of the relevant facts, but said Williams had not been able
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to discover these facts before the May hearing because she had
not been represented by counsel and did not have sufficient funds
to issue document subpoenas.
After hearing argument, the court denied the motion. It
noted that, at trial, Williams might be entitled to a remedy if she
were able to prove that Anderson had hidden income or
transferred assets; however, Williams had not met her burden
under Family Code section 3691 to demonstrate that she had
made reasonable efforts to obtain the relevant information before
the May hearing.1 Accordingly, the court denied Williams’s
motion.
DISCUSSION
Williams contends the trial court abused its discretion by
denying the motion to set aside the spousal support order. As we
discuss, the appellate record designated by Williams is not
adequate to permit us to consider her appeal on the merits, and
thus we will affirm the trial court’s order.
1 In relevant part, section 3691 provides: “The grounds and
time limits for an action or motion to set aside a support order, or
part thereof, are governed by this section and shall be one of the
following: [¶] (a) Actual fraud. Where the defrauded party was
kept in ignorance or in some other manner, other than through
the party’s own lack of care or attention, was fraudulently
prevented from fully participating in the proceeding. An action
or motion based on fraud shall be brought within six months
after the date on which the complaining party discovered or
reasonably should have discovered the fraud. [¶] (b) Perjury. An
action or motion based on perjury shall be brought within six
months after the date on which the complaining party discovered
or reasonably should have discovered the perjury.” (Italics
added.)
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“Under well-established rules of appellate procedure, . . .
the appellant . . . has the burden to provide an adequate record
on appeal and to affirmatively show error.” (In re Marriage of
Deal (2020) 45 Cal.App.5th 613, 622; Osgood v. Landon (2005)
127 Cal.App.4th 425, 435 [“It is the appellant’s affirmative duty
to show error by an adequate record”].) “ ‘Failure to provide an
adequate record on an issue requires that the issue be resolved
against [the] appellant. [Citation.]’ [Citation.] This principle
stems from the well-established rule of appellate review that a
judgment or order is presumed correct and the appellant has the
burden of demonstrating prejudicial error.” (Hotels Nevada, LLC
v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.)
Here, Williams did not designate for inclusion in the
appellate record most of the documents the parties filed in
connection with May 31, 2018 and January 4, 2019 hearings.
Most significantly for our purposes, Williams did not designate
Anderson’s May 2018 income and expense declaration—that is,
the very document that Anderson contends contained incomplete
and misleading information.2 Williams also did not designate
Anderson’s May 2018 responsive declarations or his
December 2018 opposition to Williams’s motion to set aside the
spousal support order.
2 At oral argument, Williams indicated that the appellate
record included an income statement that Anderson attached to
his income and expense declaration. The document to which
Williams refers purports to show Anderson’s income and
expenses from seven pieces of real property, but there is no
indication in the record who prepared this document or in what
context.
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Because Williams has not provided us with Anderson’s
income and expense declaration, we have no basis for evaluating
Williams’s claim that Anderson failed to disclose relevant income
and assets. In any event, an appellate record necessarily is
inadequate if an appellant, like Williams here, “ ‘ “predicates
error only on the part of the record he [or she] provides the trial
court, but ignores or does not present to the appellate court
portions of the proceedings below which may provide grounds
upon which the decision of the trial court could be affirmed.”
[Citation.]’ (Osgood v. Landon[, supra,] 127 Cal.App.4th [at
p.] 435.)” (Jade Fashion & Co., Inc. v. Harkham Industries, Inc.
(2014) 229 Cal.App.4th 635, 644.)
As the party challenging the trial court’s order, Williams
has an affirmative duty to provide an adequate record so that we
may assess whether the trial court abused its discretion. (Vo v.
Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440,
447.) On the present record, we simply cannot do so.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
LAVIN, J.
DHANIDINA, J.
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