Marriage of Stawicki
Filed 6/24/13 Marriage of Stawicki CA4/3
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opinion has not been certified for publication or ordered published for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
FOURTH
APPELLATE DISTRICT
DIVISION THREE
In re Marriage of KELLIE and EARL STAWICKI.
KELLIE STAWICKI,
Respondent,
v.
EARL STAWICKI,
Appellant.
G047141
(Super. Ct. No. 10D001861)
O P I
N I O N
Appeal from a judgment
of the Superior Court
of
County, Mark Millard, Judge.
Affirmed.
Shafer & Associates
and Mark H. Shafer for Appellant.
No appearance for
Respondent.
* * *
In
this marital dissolution matter, Earl Stawicki appeals from a judgment after
trial. He contends the superior court
erred when it made two evidentiary rulings.
Kellie Stawicki did not file a brief in this court.
With
regard to the court’s first ruling, Earl states: “On May
3, 2012, the second day of trial, Respondent’s counsel marked for
identification Exhibit A . . . , Exhibit B
. . . , and Exhibit C . . . . Exhibits A, B, and C were official written
communications from the Internal Revenue Service, bearing the seal of the
IRS. Counsel for Respondent moved the
Court to allow Exhibits A through C into evidence, while counsel for Petitioner
objected based on hearsay . . . . The Court sustained Petitioner’s objection
. . . .†[Fn. omitted.]
The
record on appeal contains no exhibits.
The clerk’s transcript from the superior court, which was received by
this court on October 3, 2012,
contains a clerk’s note which states:
“The Superior Court is not in possession of designated Respondent’s
Exhibit Nos. A, B and C and all have been omitted.â€
With
regard to the reporter’s transcript, the following colloquy took place between
the court and counsel:
“[Earl’s
counsel]: I move to move exhibits A, B
and C into evidence.
“[Kellie’s
counsel]: Object, your Honor, on the
basis of hearsay with no proper exception for any three of the documents.
“The
Court: Sustained.
“[Earl’s
counsel]: The foundation has been laid,
your Honor, and I object to the ruling on that.
“The
Court: Okay.
“[Earl’s
counsel]: Now I’m going to go to some
things --
“[The
court]: It’s still not authenticated as
far as the court is concerned.
“[Earl’s
counsel]: I understand, your
Honor.â€
We
see nothing further in the record on appeal with regard to exhibits A, B or
C. Nor does Earl cite to any more
discussions of the exhibits in the record.
Accordingly,
Earl is arguing about documents which were marked as exhibits but never
admitted into evidence, and copies of which are not part of the appellate
record. It was Earl’s burden, as the
appellant, to present an adequate record for review. (Dawson
v. Toledano (2003) 109 Cal.App.4th 387, 402.) It was also his burden to cite this court to
the portions of the record which support his argument. (California Rules of Court, rule 8.204.) Under the circumstances we find in this
record, we conclude Earl has waived his first claim of error.
Earl
next argues: “The judge committed
prejudicial error by not allowing Dr. Alex Naghibi to testify at trial
regarding the tax issues of the community estate.â€
The
entire testimony of Naghibi is as follows:
“[Earl’s
counsel]: Dr. Naghibi, what education do
you have?
“[Naghibi]: I have a bachelor’s degree and masters and
Ph.D in administration and a law degree.
“[Earl’s
counsel]: But you’re currently not an
attorney in California; is that
correct?
“[Naghibi]: I’m waiting for my license or my bar exam
result on the 18th.
“[Earl’s
counsel]: But you have been
communicating with the IRS in gathering information on behalf of Mr Stawicki;
is that right?
“[Naghibi]: Yes, I have.
“[Earl’s
counsel]: And in your communication with
the IRS, have they stated that you owe — that he owes money to the IRS?
“[Kellie’s
counsel]: Objection. Hearsay.
“[Earl’s
counsel]: He is stating it from his own
personal communication from the IRS.
“[The
Court]: That’s why I was wondering what
his expertise. Is he somehow related - -
“[Earl’s
counsel]: He has personal knowledge of
the tax – he has been gathering the information and also providing all the
documentation that the IRS has requested regarding the back taxes owed by the
business, which is community property.
“[The
Court]: Well, I’m just wondering what
the exception is going to be to the hearsay rule. And that’s why I tried to determine is he an
expert on tax or something. That’s what
I’m waiting for.
“[Earl’s
counsel]: Are you an expert on taxation?
“[Naghibi]: I’m not an expert in taxation, but I - -
“[Kellie’s
counsel]: Objection. Nonresponsive after, ‘I’m not an expert in
taxation.’
“[Earl’s
counsel]: I have no further questions.
“[The
court]: All right.
“[Kellie’s
counsel]: Nothing, your Honor.
“[The
court]: You may step down.â€
The
state of the record is that the court requested Earl’s counsel to cite authority
to support the use of Naghibi as a witness to issues in the matter. Instead of responding to the court’s inquiry,
or otherwise making an offer of proof, or even waiting until the court ruled on
opposing counsel’s objection, Earl’s counsel opted to say he had no further
questions.
Now,
on appeal, Earl argues the court committed prejudicial error. “A verdict or finding shall not be set aside, nor shall the
judgment or decision based thereon be reversed, by reason of the erroneous
exclusion of evidence unless the court which passes upon the effect of the
error or errors is of the opinion that the error or errors complained of
resulted in a miscarriage of justice and it appears of record that: [¶]
The substance, purpose, and relevance of the excluded evidence was made known
to the court by the questions asked, an offer of proof, or by any other means;
[¶]
The rulings of the court made compliance with subdivision (a) futile; or [¶]
The evidence was sought by questions asked during cross-examination or
recross-examination.†(Evid. Code, § 354.) Since Earl did not preserve his second claim
of error for appeal, we deem this issue to be waived as well
The
judgment is affirmed. Appellant shall
bear his own costs on appeal.
MOORE,
J.
WE CONCUR:
O’LEARY, P. J.
THOMPSON, J.
name="_ftn1" title="">[1]
Because both parties have the same name, we refer to them by their first
names. No disrespect is intended.
