Estate of Melcher CA2/5

Filed 8/18/20 Estate of Melcher CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
Estate of TERRENCE P. B293964
MELCHER, Deceased.
(Los Angeles County
Super. Ct. No. BP090132)
TERESE KRISTE
MELCHER, as Executor, etc.,
Petitioner and
Respondent,
v.
JACQUELINE C.
MELCHER,
Claimant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Robert S. Wada, Judge. Affirmed.
Jacqueline C. Melcher, in pro. per., for Claimant and
Appellant.
Loeb & Loeb, Jeffrey M. Loeb, Lance N. Jurich, for
Petitioner and Respondent.
__________________________
Claimant and appellant Jacqueline Melcher appeals
from a probate court order finding that she lacked standing
to appear in the estate proceedings of her former husband
Terrence P. Melcher.1 On appeal, Jacqueline contends that
she has standing, because she has an interest in certain
property included in Terrence’s estate. The appellate record
is inadequate for review, however, because it does not
include the motion to determine standing or the supporting
evidence filed in the probate court. In addition, the
appellant’s briefs fail to demonstrate error through coherent
argument, including citation to the record and supporting
authority. Therefore, we affirm.
FACTS AND PROCEDURAL BACKGROUND
For the purposes of background, we take judicial notice
of an unpublished opinion issued by the Court of Appeal,
1 Because more than one party shares the last name
Melcher, they will be referred to by their first names for ease
of reference. No disrespect is intended.
2
Sixth Appellate District, in the dissolution proceedings
between Jacqueline and Terrence (In re Marriage of Melcher
(Jan. 13, 2006, H022141, H023475, H022603, H022935)
[nonpub. opn.]). (Evid. Code, §§ 452, subd. (d) [judicial notice
may be taken of court records], 459; Fink v. Shemtov (2010)
180 Cal.App.4th 1160, 1171, 1173 [court may take judicial
notice of prior unpublished opinions in related appeals on its
own motion].)
Prior to marriage, Jacqueline owned unimproved real
property on Martha’s Vineyard referred to as Stonewall. She
married Terrence in 1983, and the couple had one child.
Jacqueline signed a quitclaim deed in 1989, changing the
title of Stonewall from separate property to joint ownership,
in order to obtain construction financing to build a residence
on the property.
Terrence filed a petition for dissolution of the marriage
in 1997. The proceedings were bifurcated, and the family
law court granted a judgment of dissolution as to status in
1998. Ownership of Stonewall was one of the issues at trial
in 2000. Jacqueline argued that it remained her separate
property, but the family law court found Stonewall was
community property, subject to Jacqueline’s separate
property interest valued at $800,000. The family law court
ordered Stonewall listed and sold. A corrected post-trial
judgment was entered on February 15, 2001.
Jacqueline and her minor son each filed an action
against Terrence in Massachusetts, including filing lis
pendens. The family law court in the dissolution proceeding
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ordered agents to execute the documents necessary to list
and sell Stonewall on Jacqueline’s behalf. In February 2001,
the clerk of the court signed a contract accepting an offer of
$12 million to purchase Stonewall. In April 2001, the court
appointed an agent to sign escrow documents. In June 2001,
based on title insurance problems resulting from the son’s lis
pendens, the family law court ordered $8 million of the net
sale proceeds be deposited with the title company.
Jacqueline filed a series of four appeals, which were
stayed when she filed for chapter 11 bankruptcy in July
2001, on the day before escrow closed on Stonewall. In
March 2003, the bankruptcy stay was lifted as to all four
appeals. The appellate court consolidated the appeals for
briefing, argument, and decision. Terrence died in
November 2004, and the personal representative of his
estate, Terese Kriste Melcher, was substituted as the
respondent in the consolidated appeals. The Sixth Appellate
District concluded substantial evidence supported the family
law court’s finding that Jacqueline voluntarily transmuted
the character of Stonewall Beach from separate to
community property with a full understanding of what she
was doing. The appellate court also found orders for the sale
of Stonewall and directing deposit of the sale proceeds were
proper. The appellate court affirmed the family law court’s
orders in the dissolution proceeding.
On our own motion, we also take judicial notice of an
unpublished decision of the United States Bankruptcy
Appellate Panel of the Ninth Circuit, which was the third
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appeal to be issued during the course of Jacqueline’s
bankruptcy matter, affirming a pre-filing order of the
bankruptcy court. (In re Jacqueline C. Melcher (Dec. 7,
2015, BAP No. NC-14-1573-TaDJu).) The bankruptcy case
was converted to chapter 7 in September 2008. Jacqueline
opposed most of the substantive actions of the bankruptcy
trustee to liquidate estate property. Ultimately, the
bankruptcy court issued a prefiling order, which was
affirmed on appeal in 2015.
Jacqueline filed a request for special notice in the
probate of Terrence’s estate in March 2005. The case
summary for the probate proceedings reflects that
Jacqueline filed a creditor’s claim for $9,273,570 in
November 2005, which was rejected in December 2005. The
claim is not included in the record on appeal. The case
summary also shows a motion was filed on June 22, 2018, for
an order determining that Jacqueline lacked standing to
appear in the probate matter and confirming withdrawal of
the request for special notice. The motion and the
supporting declaration are not included in the record on
appeal. Jacqueline filed a declaration in opposition to the
motion that does not address her standing to appear or
receive notice in the probate matter.2 On September 12,
2018, the probate court entered an order determining that
Jacqueline lacked standing to appear in the probate matter
2 The declaration makes some references to standing as
it relates to the bankruptcy proceeding and in litigation
before the Ninth Circuit Court of Appeals.
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and striking the request for special notice.3 Jacqueline filed
an appeal from the probate court’s order.
DISCUSSION
Appellant has forfeited her contentions on appeal by
failing to provide coherent argument, supported by citation
to the record and legal authority, and an adequate record for
review. Respondent represents in her brief that the
bankruptcy trustee entered into a compromise resolving all
of Jacqueline’s claims against the estate, which the
bankruptcy court authorized in October 2011, and as a
result, only Jacqueline’s request for special notice had
remained outstanding to resolve in the probate proceedings.
We apply the deferential abuse of discretion standard
to a probate court order determining whether a party is an
interested person pursuant to Probate Code section 48.
(Estate of Prindle (2009) 173 Cal.App.4th 119, 126.) It is
Jacqueline’s duty, as appellant, to affirmatively demonstrate
error by citation to the record and any supporting authority.
“[R]eview is limited to issues which have been adequately
raised and briefed.” (Lewis v. County of Sacramento (2001)
3 The order of the probate court states, “[f]or the
reasons set forth in the Motion, Jacqueline Melcher lacks
standing to appear”, and the transcript of the hearing
likewise reflects the probate court’s comment that “based on
the motion” Ms. Melcher does not have standing. As noted,
the record on appeal does not include the referenced motion.
6
93 Cal.App.4th 107, 116.) “Appealed judgments and orders
are presumed correct, and error must be affirmatively
shown.” (Hernandez v. California Hospital Medical Center
(2000) 78 Cal.App.4th 498, 502.)
Jacqueline had the burden to provide an adequate and
accurate appellate record to demonstrate error. The record
on appeal is inadequate for review, because it fails to provide
a copy of the claim Jacqueline filed in the probate matter,
the motion to determine standing, or any of the evidence
supporting the motion. Without a proper record of the
proceedings below, especially the motion and supporting
evidence that expressly form the basis for the probate court’s
ruling, we cannot conduct an adequate review. (Cal. Rules of
Court, rules 8.120–8.122; see Advanced Choices, Inc. v. State
Dept. of Health Services (2010) 182 Cal.App.4th 1661, 1670
[appellate court must ignore issues requiring review of
documents not provided by appellant].)
In addition, Jacqueline has not made any coherent
argument supported by legal authority or specific citations to
the record on appeal. “‘In order to demonstrate error, an
appellant must supply the reviewing court with some cogent
argument supported by legal analysis and citation to the
record.’ [Citation.]” (United Grand Corp. v. Malibu
Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153.) No legal or
factual basis has been presented that the trial court abused
its discretion in concluding Jacqueline has no standing to
appear in the estate proceedings. Although we may exercise
our discretion to consider arguments for which we can
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discern a legal or factual basis in the briefs, no such basis is
apparent. “‘We are not obliged to make other arguments for
[appellant] [citation], nor are we obliged to speculate about
which issues counsel intend to raise.’ [Citations.] We may
and do ‘disregard conclusory arguments that are not
supported by pertinent legal authority or fail to disclose the
reasoning by which the appellant reached the conclusions he
wants us to adopt.’ [Citation.]” (Ibid.)
No abuse of discretion has been shown and the order
must be affirmed.
DISPOSITION
The order is affirmed. Respondent Terese Kriste
Melcher, as executor of the Estate of Terrence P. Melcher, is
awarded costs on appeal.
MOOR, J.
We concur:
RUBIN, P. J. BAKER, J.
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