Filed 5/1/17 Marriage of P. and Starks CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re Marriage of BEATRICE P. and MARREON GENE STARKS. H039811
(Santa Clara County
Super. Ct. No. 6-13-FL009707)

BEATRICE P.,

Respondent,

v.

MARREON GENE STARKS,

Appellant.

Marreon Gene Starks appeals from the judgment nullifying his marriage to Beatrice P., a conserved person.
On appeal, Starks argues the trial court: (1) erred in denying his oral motion for pendente lite attorney fees under Family Code section 2030; (2) violated his due process rights by entering a judgment of nullity based on racial and/or age discrimination; (3) erred in refusing to permit Beatrice P. to testify at the hearing; and (4) erred in entering a judgment of nullity based on misrepresented facts and legal reasoning pertaining to his prior marriage.
We find no merit to Starks’ arguments and will affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 22, 2013, Beatrice P., through her son and conservator, Stephen P. (Conservator), filed a petition seeking to dissolve or nullify the one-day marriage between Beatrice P. and Starks. The request for nullification was based on “unsound mind,” “fraud,” and “force.” Conservator also filed a request to bifurcate proceedings and for calendar preference based on Beatrice P.’s age pursuant to Code of Civil Procedure section 36, subdivision (a).
In support of the request to bifurcate and for calendar preference, Conservator submitted filed endorsed copies of a December 14, 2012 elder abuse temporary restraining order against Starks and an order precluding Beatrice P. from marrying absent a court order. Prior to the hearing on the petition, Conservator filed a request for judicial notice of certain documents, including a marriage license, signed by Starks and Beatrice P., and a certificate of marriage for Starks and Beatrice P., both of which were dated December 14, 2012.
Trial was set for May 14, 2013, before Judge Theodore Zayner. At the outset of the trial, Starks confirmed he did not file any exhibits or a trial brief and raised the following two issues: (1) he renewed his section 170.6 challenge to Judge Zayner; and (2) he made an oral request for pendente lite attorney fees under Family Code section 2030. Judge Zayner denied Starks’ renewed section 170.6 motion on the ground that the statute allows only one such challenge to be made by a party in any given case and Starks’ prior challenge was denied as untimely by written order filed May 10, 2013.
Dr. Jonathan Canick, who specializes in dementia and Alzheimer’s, testified that he examined Beatrice P. and concluded that, on December 14, 2012, she was incapable of consenting to marriage. In his opinion, Beatrice P. was “cognitively incapacitated and did not possess the sufficient cognitive abilities . . . necessary to make a truly informed decision, to remember that decision, to entertain different possibilities and consequences of that decision.” Dr. Canick interviewed Beatrice P. twice, first on December 20, 2012 and most recently on May 10, 2013. In the first interview, Beatrice P. had no self-awareness or ability to remember what she was saying. According to Dr. Canick, Beatrice P. “had, essentially, no working memory, the ability to hold mental information in the head so it could be put to further use.”
Dr. Canick testified that Beatrice P.’s overall score on the “Dementia Rating Scale . . . was severely impaired below the 1st percentile for people her age and education.” She “is suffering from advanced dementia” and “performs . . . like those individuals who can be found in facilities or institutions because they are so demented and incapacitated of taking care of themselves or managing the demands of independent living.”
Conservator testified that Beatrice P. was 83 years old at the time of trial and had been diagnosed as manic-depressive for many years. In January 2011, she had a severe kidney infection and he had to rush her to the hospital. After she came home from the hospital, she became “incoherent.” He began handling her finances after she went into the hospital, and continued to do so even after she was discharged.
Conservator would visit with Beatrice P. once or twice a day during the week, although he also hired professional caregivers to take care of her. Between October 2011 and May 2012, Starks approached Conservator about being hired as a round-the-clock caregiver, but Conservator told him he wanted 24-hour care so that someone would be awake at all times in the home.
Starks was originally employed by Homeinstead, a home care service, to provide care to Beatrice P. and her late husband. Conservator testified that, upon his father’s death in May 2012, Starks’ services as a caregiver were no longer required. Conservator arrived at his parents’ home a couple hours after he learned his father had died. Starks was present at the home, and was asked to leave the room so Conservator could speak privately with Beatrice P.. Beatrice P. told Conservator she “had other news” and “she was in love with . . . Starks.”
Conservator subsequently learned that Beatrice P. was signing checks that Starks was writing to himself on her bank account. At the time the checks were written, Starks was not employed by Conservator in any capacity and Conservator did not know what the checks were for. At some point in time, Conservator was contacted by Wells Fargo who advised him that Starks brought Beatrice P. into the bank in an attempt to secure an equity line of credit on Beatrice P.’s home. Conservator testified the house was not encumbered by a mortgage or any kind of debt, and he did not know of any reason why she would need to take out a loan against her property.
Conservator learned that Starks moved in with Beatrice P. in June or July 2012, and did not move out until Conservator obtained a restraining order against him in November or December 2012.
In support of his case, Starks reiterated his need for “legal representation” and testified that he and Beatrice P. “both made the decision to go to Reno to get married.” The trial court sustained Conservator’s objection to this testimony insofar as it sought to prove the truth of Beatrice P.’s state of mind, but allowed the testimony “as to [Starks’] understanding of his state of mind and that of . . . [Beatrice P.].”
Starks also unsuccessfully sought to call Beatrice P. to testify. He testified that he served Beatrice P.’s counsel with a subpoena to appear, but was unable to provide the court with a proof of service for that subpoena. Conservator then pointed out that, because Beatrice P. was a conserved person, she was not allowed to participate in court proceedings. In an order filed January 8, 2013, which was entered into evidence, the probate court found that Beatrice P. “lacks the capacity to participate in annulment or dissolution proceeding [sic] on her own behalf.” Based on the probate court’s findings and Starks’ failure to provide proof he served her counsel with a subpoena, the trial court refused to permit Starks to call Beatrice P. as a witness on his behalf.
In support of his request for attorney fees, Starks testified he worked for a transportation company on an on-call basis. For the past four months, his post-tax income averaged $1,200 per month. His living expenses were $500 per month for rent, along with unspecified amounts for “insurance and food and gas and things of that nature.”
Conservator objected to Starks’ request for fees on the grounds that he failed to file and serve an income and expense declaration, failed to provide timely notice of his request for attorney fees and failed to file any of the “mandatory forms.”
The trial court found, “[i]n view of the evidence presented and the findings of the Probate Court” that Beatrice P. lacked “the capacity to consent to marriage” on December 14, 2012 “and that [Beatrice P.]’s consent to marriage was obtained through fraud and undue influence.” The trial court also denied Starks’ request for attorney fees under Family Code section 2030 on the grounds that the requisite forms, including income and expense declarations and an attorney fee declaration, were not submitted. “[B]ased upon the totality of the evidence presented and the lack of any evidence sufficient for this Court to make a ruling on whether there is a disparity in access to funds to retain counsel and the ability to pay, . . . an award of attorney[] fees and costs . . . would not be appropriate.”
Starks timely appealed.
II. DISCUSSION
A. General principles applicable to this appeal
To be successful on appeal, an appellant must be able to affirmatively demonstrate error on the record before the court. “ ‘ “A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.” ’ (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)” (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898.)
Error alone does not warrant reversal. “It is a fundamental principle of appellate jurisprudence in this state that a judgment will not be reversed unless it can be shown that a trial court error in the case affected the result.” (In re Sophia B. (1988) 203 Cal.App.3d 1436, 1439.) “ ‘The burden is on the appellant, not alone to show error, but to show injury from the error.’ ” (Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 740.) “Injury is not presumed from error, but injury must appear affirmatively upon the court’s examination of the entire record.” (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337, italics added.) “Only when an error has resulted in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal.” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 114.) A miscarriage of justice is not found “unless it appears reasonably probable that, absent the error, the appellant would have obtained a more favorable result.” (Khan v. Medical Board (1993) 12 Cal.App.4th 1834, 1841.)
“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.) This general principle of appellate practice is an aspect of the constitutional doctrine of reversible error. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) “ ‘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, [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 [appellant].” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 (Hernandez).)
Since it is the appellant’s burden to show error, Starks’ failure to provide an adequate record on an issue requires that the issue be resolved against him. (Hernandez, supra, 78 Cal.App.4th at p. 502.) We note that when a litigant appears in propria persona, he or she is held to the same restrictive rules of procedure as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Monastero v. Los Angeles Transit Co. (1955) 131 Cal.App.2d 156, 160-161.)
B. Denial of attorney fees under Family Code section 2030
1. Applicable statutes and legal principles
Family Code section 2030, subdivision (a)(1) provides that “the court shall ensure that each party has access to legal representation . . . to preserve each party’s rights” by ordering one party to pay to the other party, “whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.” A party may move for “a temporary order making, augmenting, or modifying an award of attorney’s fees, including a reasonable retainer to hire an attorney, or costs or both” under Family Code section 2031, subdivision (a)(1). Family Code section 2031, subdivision (b)(1) allows such a motion to be made orally, without notice, “[a]t the time of the hearing of the cause on the merits.”
Family Code section 2032, subdivision (b) reads, as follows: “In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party’s case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney’s fees and costs has resources from which the party could pay the party’s own attorney’s fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances.”
It is well-established “that trial courts enjoy broad discretion in awarding attorneys’ fees in marital proceedings.” (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314.) But “the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion.” (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.) The court’s assessment of the parties’ income and needs is reviewed under a substantial evidence standard. (Ibid.) It is the family court in the first instance which “sits as trier of fact and . . . is called upon to determine that a witness is to be believed or not believed. This is the nature of factfinding.” (In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099.) We must view such determinations in favor of the order. (In re Marriage of Slivka (1986) 183 Cal.App.3d 159, 162-163.)
2. Analysis
Starks bears the burden of showing that the court abused its discretion by failing to award him any attorney fees, and it is clear from the record that he has not met that burden.
The record before us offers no basis for overturning the factual findings of the family court. Because Starks did not provide the trial court with any documents or other evidence to support his request for fees, the court had to base its ruling on Starks’ testimony, which was the only evidence before it. The trial court found that evidence inadequate to support an award of fees and there is nothing in the record to show that the trial court abused its discretion in making that finding.
C. No evidence that the trial court’s decision was based on unlawful discrimination
Starks next argues that the trial court’s ruling nullifying his marriage to Beatrice P. was based on “race and age discrimination.” In support of this argument, he points to the references in “the psychiatrist and police reports” to “the age of [Starks] and [Beatrice P.] along with their so-called race.” He further argues, without citing any supporting evidence in the record, that Conservator wanted to end Starks’ marriage to Beatrice P., not because it occurred so soon after his father’s death, but because Conservator “swore . . . that ‘[He’s] not having no nigger disrespect [his] father’s grave.’ ”
Even if the Conservator was motivated by improper ageism or racism (and we do not suggest that he was), there is certainly nothing in the record to support Starks’ supposition that the trial court was also motivated by such inappropriate biases. Rather, the evidence shows that the trial court considered the testimony and evidence proffered at trial, by both sides, all of which Starks had the opportunity to challenge. There is nothing in the record to support Starks’ claims and we reject them.
D. Starks has waived his claim regarding the trial court’s preclusion of Beatrice P. as a witness
Starks next argues the trial court’s decision to nullify his marriage was in error because he was not permitted to call Beatrice P. to testify about her desire to marry him, even if his prior divorce was not final. Calling her as a witness would have also allowed the trial court to “assess her state and to see if she could coherently testify about things competently.”
Starks’ brief cites no cases or other legal authority holding that he has a right to call a conserved person as a witness, let alone without a showing that the prospective witness was properly served with a subpoena to appear at trial. Our own research into the question has disclosed no such authority either. A brief must contain reasoned argument and legal authority to support its contentions or the court may treat the claim as waived. (Cal. Rules of Court, rule 8.204(a)(1)(B); Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) That a party is in propria persona does not excuse compliance with these requirements. (See Stokes v. Henson (1990) 217 Cal.App.3d 187, 196.)
E. No error in denying his section 170.6 motion as untimely
Starks’ final argument is that the trial court erred in denying his section 170.6 motion as Judge Zayner was obligated to either accept the peremptory disqualification or file a response thereto, not simply deny it.
As before, Starks has failed to provide an adequate record to review his claim of error. His brief cites to documents which were apparently part of his request to augment and/or request to take judicial notice. This court denied that request, albeit without prejudice, but Starks did not renew it.
The only material in the record relating to Starks’ section 170.6 motion is Judge Zayner’s description of the May 10, 2013 order in which he denied that motion. In that recitation, Judge Zayner noted that his order found Starks was “personally served with the petition for nullity or dissolution on March 1, [2013,] that [Starks] appeared for the hearing . . . in this matter on April 11, and that [Starks] filed . . . [his] peremptory challenge on May 2nd. And that filing was not timely because it was not within the statutory deadline of 15 days after notice of the assignment of an all-purpose judge. So, it was denied.”
None of the documents in the record support Starks’ challenge to the order denying his section 170.6 motion, and we must therefore resolve the issue against him. (Hernandez, supra, 78 Cal.App.4th at p. 502.)
III. DISPOSITION
The judgment is affirmed.






Premo, J.





WE CONCUR:






Rushing, P.J.






Walsh, J.*











Beatrice P. v. Starks
H039811