Estate of Hampton

Filed 10/24/06 Estate of Hampton CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County,

Hugh C. Gardner III and Ernest G. Williams, Judges. Dismissed in part and otherwise affirmed.

Law Offices of Lee Brewster and Lee Brewster for Objector and Appellant.

Excelus Law Group and William W. Bloch for Petitioner and Respondent.

Betty J. Paul appeals from an order approving a first and final account and allowance for statutory fees and costs (Final Account and Report), arguing California’s spousal set-aside law requires a different result. She also appeals the denial of her new trial motion. Respondent requests sanctions for the cost of defending what he claims is a frivolous appeal. We dismiss the appeal from the order denying her new trial motion, affirm the order approving the Final Account and Report, and deny the request for sanctions.

FACTUAL AND PROCEDURAL SUMMARY

Johnny Dorsey Hampton died intestate on October 15, 1993, leaving one son, DeAndre Hampton, and a surviving spouse, Barbara Jean Hampton. Barbara[1] died nine years later. On September 25, 2003, DeAndre, administrator of decedent’s estate, filed a Final Account and Report, and requested final distribution and discharge of the estate. Under the Final Account and Report, Johnny’s estate was to be divided equally between DeAndre and Barbara’s estate, pursuant to Probate Code section 6401, subdivision (c).[2]

Appellant, Betty J. Paul, co-administrator of Barbara’s estate, objected to the Final Account and Report and filed a spousal set-aside petition, pursuant to Probate Code section 13500.[3] The trial court judge, Honorable Hugh C. Gardner III, placed appellant’s objections off calendar pursuant to a settlement agreement, and approved the Final Account and Report with a modification decreasing fees from the amount originally requested.

Appellant then moved for a new trial, claiming the court erred by failing to issue a statement of decision and that the court’s tentative decision to approve the Final Account and Report was erroneous. A different trial court judge, Honorable Ernest G. Williams, denied the new trial motion, finding that no statement of decision had been requested and that the court already had signed and filed the order approving the Final Account and Report. This appeal follows.

DISCUSSION

Appellant argues the trial court erred by failing to grant her spousal set-aside petition pursuant to Probate Code section 13500, by approving the Final Account and Report, by failing to issue a statement of decision, and by denying her motion for a new trial.

An order denying a new trial generally is not appealable. (Estate of Frazer (1941) 43 Cal.App.2d 324, 327; Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19.) No basis for an exception is presented here. To the extent appellant is appealing from the denial order, we dismiss the appeal. We proceed to review the appeal of the underlying judgment.

I

Appellant first argues the trial court erred by failing to grant her spousal set-aside petition and by approving the Final Account and Report over her objections. On September 25, 2003, DeAndre filed his Final Account and Report under which appellant and DeAndre were each to receive half of Johnny’s estate, pursuant to Probate Code section 6401, subdivision (c).

Appellant objected to “the proposed action of settlement as it relates to any sums to come from the share of the estate to be distributed to the heirs of Barbara Hampton.” She also filed a spousal property petition requesting that the property passing to Barbara’s estate not be subject to administration, pursuant to the spousal set-aside law. (Prob. Code, § 13500.) Appellant states that her brief in support of the spousal set-aside petition was in response to objections filed to that petition. She argues that the fees and costs of administration are not deductible from Barbara’s portion of the estate, which should be set aside under Probate Code section 13500 et seq.

The trial court placed appellant’s objections off calendar pursuant to a settlement agreement. Shortly after that, appellant’s attorney filed a declaration asserting that appellant did not agree to share in the expenses of administration as part of a settlement agreement. The declaration states that the court mistakenly referred to an August 9, 2004 settlement agreement, when it should have referred to a September 29, 2003 settlement agreement. There is no other indication that the trial court made a mistake. The Los Angeles Superior Court Case Summary, included in the clerk’s transcript on appeal, shows that an order approving a settlement agreement was indeed filed on August 9, 2004.

The September 29, 2003 settlement agreement to which appellant refers is a stipulated order filed in the administration of Barbara’s estate, not Johnny’s estate, and is missing three of six pages. There are two references to Johnny’s estate in the pages that are provided. Most notably, the stipulated order states that appellant’s objections are placed off calendar, “with prejudice.”

Appellant then filed an additional brief in support of her spousal set-aside motion. After reviewing appellant’s objections to the Final Account and Report and DeAndre’s responses to those objections, the court signed the order approving the Final Account and Report, which included an allowance for fees and costs that was less than DeAndre had requested.

Appellant’s main contention is that the court erred in approving the Final Account and Report because it deducted administration fees from the entire estate, including Barbara’s half, rather than just from DeAndre’s half. She argues that because Barbara’s half of the estate should have been set aside, it is not subject to probate administration fees or costs. She also argues that the fees and costs were improperly calculated because they were based on the entire estate, instead of only on DeAndre’s half of the estate.

An appellant challenging a trial court judgment has the “burden of showing error by an adequate record.” (In re Kathy P. (1979) 25 Cal.3d 91, 102.) If the appellant fails to provide an adequate record, the judgment must be affirmed. (See Vo v. Las Virgenes Municipal Water Dist. (2000) 79 Cal.App.4th 440, 447; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) “Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant’s burden to affirmatively demonstrate error.” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

The record provided by the appellant affords no basis for reversal. There are no reporter’s transcripts from the four proceedings at which the court heard DeAndre’s objections to appellant’s spousal set-aside motion, or from any other proceeding, and the documents provided are inadequate to demonstrate what happened in the trial court. From the record we have, it appears that the trial court did not grant appellant’s spousal set-aside petition and placed her objections to the Final Account and Report off calendar because of an August 9, 2004 settlement agreement. But this settlement agreement is not designated by the appellant nor is it contained in the record. Appellant also has failed to designate and include DeAndre’s objections to appellant’s spousal set-aside motion. These omissions prevent a suitable review of whether the trial court properly disposed of appellant’s objections and spousal set-aside petition in accordance with the settlement agreement.

Even if appellant were correct in asserting that the court mistakenly referred to an August 9, 2004 settlement agreement instead of a September 29, 2003 agreement, the September 29, 2003 stipulated order provided by appellant is incomplete because it omits most of the terms of the agreement. And although appellant previously had said that she did not agree to share administration expenses with DeAndre, she has not supported this assertion with any evidence in the record.

The record also is missing the October 13, 2004 objections to the Final Account and Report filed by appellant, and the October 20, 2004 responses to those objections filed by DeAndre. Neither was designated by the appellant. In fact, the record is missing most of the responses and briefs filed by DeAndre. The trial court, which heard all the objections and responses, determined that the Final Account and Report should be approved despite appellant’s objections, spousal set-aside petition, and supporting briefs. Absent a showing of error based on the record, we must presume that the trial court properly approved the Final Account and Report with knowledge of the contents of the objections and responses.

Appellant has failed to meet her burden of demonstrating trial court error.

II

Appellant also argues that the trial court erred by failing to issue a statement of decision. Appellant claims that she requested a statement of decision from Judge Gardner at a July 23, 2004 hearing after he announced his intent to approve the Final Account and Report as requested by the respondent. But on April 11, 2005, Judge Williams, who took Judge Gardner’s place, found that a statement of decision had not been requested by either party.

On appeal, “all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible.” (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) Findings of fact will be upheld if supported by substantial evidence, contradicted or uncontradicted. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 660.)

Credibility determinations are the “‘”exclusive province of the [trier of fact] . . . .”’” (Oldham v. Kizer (1991) 235 Cal.App.3d 1046, 1065.) The trier of fact may disregard the testimony of a witness if he believes the witness is untruthful because of bias or interest. (California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal.App.3d 1, 72-73.) “[T]he testimony of a witness which has been rejected by the trier of fact cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot rationally be disbelieved.” (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204.)

The only piece of evidence in the record to support the claim that a statement of decision was requested by the appellant is a signed declaration by her attorney. No reporter’s transcripts exist because, according to appellant, the parties waived a court reporter. After considering evidence, including the attorney’s declaration, the trial court determined that a statement of decision was not requested. In doing so, it made a credibility determination, discrediting the declaration of appellant’s attorney. Appellant has provided no basis to question this determination. Thus, we defer to the trial court’s factual finding that no statement of decision was requested.

III

Finally, respondent requests sanctions for defending what he claims is a frivolous appeal. Respondent argues that the appeal is without merit, violates the California Rules of Court, and was brought solely for delay. Although appellant has provided an inadequate record and failed to make appropriate citations to the record, we do not find that this appeal satisfies the level of “egregious” conduct that compels sanctions. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651.)

In In re Marriage of Flaherty, the Supreme Court of California cautioned that sanctions could cause “a serious chilling effect on the assertion of litigants’ rights on appeal.” Instead, “sanctions should be imposed rarely” and only in the “‘clearest cases.’” (Flaherty, supra, 31 Cal.3d at pp. 650, 654.) The court denied the respondent’s request for sanctions in that case because there was no evidence of bad faith or an indication that the appellant had anything to gain from delaying the appeal, and it could not be said that any reasonable person would believe the case was without merit. (Id. at p. 651.)

Here, it does not appear that appellant acted in bad faith or to cause delay. In fact, it would seem to be to appellant’s advantage to see timely resolution since Barbara’s half of the estate is awaiting final distribution. We decline to impose sanctions in this case.

DISPOSITION

The appeal of the denial of appellant’s new trial motion is dismissed. The order is otherwise affirmed. The request for sanctions is denied. Respondent is to have his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.

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[1] We refer to decedent Johnny Dorsey Hampton and his surviving relatives by their first names for ease of reference and to avoid confusion.

[2] The relevant portion reads: “As to separate property, the intestate share of the surviving spouse or surviving domestic partner, as defined in subdivision (b) of [s]ection 37, is as follows: (2) One-half of the intestate estate . . . (A) Where the decedent leaves only one child or the issue of one deceased child.” (Prob. Code, § 6401, subd. (c).)

[3] Probate Code section 13500 states: “Except as provided in this chapter, when a husband or wife dies intestate leaving property that passes to the surviving spouse under Section 6401, or dies testate and by his or her will devises all or a part of his or her property to the surviving spouse, the property passes to the survivor subject to the provisions of Chapter 2 (commencing with Section 13540) and Chapter 3 (commencing with Section 13550), and no administration is necessary.”