Rucker v. Wells

Filed 6/26/08 Rucker v. Wells CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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Harold J. Rucker, Jr., appeals from a family court judgment awarding Tina L. Wells $192 per month in child support and $2,000 in attorney fees.

For reasons that follow, we shall modify the judgment by striking the requirement that Rucker must obtain approval of the presiding judge to file future motions regarding child support. In all other respects, we shall affirm the judgment.

BACKGROUND

The appellate record does not include a reporters transcript of the trial held on November 16, 2006. This is referred to as a judgment roll appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.) The limited record establishes the following:

Rucker and Wells are the parents of a child born in 1992. In 1993, Rucker was awarded a tax-free monthly annuity of $6,955, guaranteed for life, as a result of a personal injury lawsuit. In January 1998, the [Alameda County] trial court ordered Rucker to pay [Wells] $1,250 per month as child support, based on the Dissomaster program. (In re Marriage of Harold J. Rucker, Jr. and Tina Dyer (June 9, 1999, A082442) [nonpub. opn.] at p. 1, fns. omitted (hereafter Marriage of Rucker).)^[1]

Rucker appealed from that order, arguing the trial court erred when it included Ruckers annuity as income for purposes of determining child support. (Marriage of Rucker, supra, A082442, at p. 1.) The Court of Appeal affirmed, concluding the annuity at issue here was properly included in Ruckers income under Family Code section 4058. (Marriage of Rucker, supra, A082442, at pp. 3, 6.)

In July 2006, Rucker filed a motion in Sacramento County Superior Court to modify the child support order.^[2] That court reduced the child support obligation to $192 per month, subject to retroactive modification, and set the matter for trial.

On November 16, 2006, the day upon which the trial was scheduled to begin, Rucker filed a motion to continue the trial. The motion was denied.

At the conclusion of the trial, the court ordered Rucker to pay child support of $192 per month, effective December 1, 2006, and $2,000 in attorney fees. The court also ruled that before Rucker can file a future motion regarding child support, he must obtain permission from the presiding judge. The court subsequently denied Ruckers motion for a new trial.

DISCUSSION

Rucker contends the trial court erred by (1) applying the doctrine of res judicata to reject Ruckers claim that part of his annuity should not be considered income for the calculation of child support, (2) denying his motion to continue the trial, (3) not issuing a statement of decision, (4) ordering him to pay attorney fees, and (5) preventing him from filing a future child support motion unless he obtains the presiding judges permission to do so.

As we will explain, except for his last contention, Ruckers appeal fails because he has not filed an adequate record to support certain claims of error and his other contentions lack merit.

I

On appeal, we must presume the trial courts judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, we must adopt all inferences in favor of the judgment, unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)

It is the burden of the party challenging a judgment to provide an adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) An appellant must present an analysis of the facts and legal authority on each point made, and must support the analysis with appropriate citations to the material facts in the record. If an appellant fails to do so, the argument is forfeited. (County of Solano v. Vallejo Redevelopment Agency (1999) 75 Cal.App.4th 1262, 1274; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)

When an appeal is on the judgment roll (Allen v. Toten, supra, 172 Cal.App.3d at pp. 1082-1083), we must conclusively presume evidence was presented that is sufficient to support the courts findings. (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) Our review is limited to determining whether any error appears on the face of the record. (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.)

These restrictive rules of appellate procedure apply to Rucker even though he is representing himself on appeal. (Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121; see also Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639; Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)

II

Ruckers first contention appears to assert the trial court improperly relied on the doctrine of res judicata in ruling on his claim that part of his annuity should not be considered income for the purpose of child support.

We reject the contention because Rucker fails to show that the trial courts ruling actually relied upon res judicata. The courts FINDINGS AND ORDER AFTER HEARING do not mention the doctrine, and the record on appeal does not contain a reporters transcript of the trial. Consequently, Rucker has not carried his appellate burden to affirmatively demonstrate that the error of which he complains actually occurred. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1140-1141; County of Solano v. Vallejo Redevelopment Agency, supra, 75 Cal.App.4th at p. 1274.)

In any event, res judicata applies to the determination of child support based upon Ruckers annuity.

In 1999, Division Three of the Court of Appeal, First Appellate District held that all of Ruckers personal injury settlement annuity is income for the calculation of child support. (Marriage of Rucker, supra, A082442, at pp. 2-3.) Rucker attempts to revisit this issue by asserting that he is entitled to allocate or deduct [from the annuity] his pain and suffering, medical and other damages that may not constitute income for child support purposes . . . . In his view, no issue of [r]es judicata is possible because he did not raise the issue in the proceeding that led to the prior appeal but did so in the trial court proceeding that is the subject of this appeal.

Res judicata requires that all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date. (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 897.) In Marriage of Rucker, supra, A082442, Rucker could have raised the argument--as he does here--that part of his annuity should not be considered income for calculation of child support. He did not do so; he simply argued that none of the annuity is income because it is derived from a personal injury settlement. (Marriage of Rucker, supra, A082442, at p. 2.) The doctrine of res judicata precludes piecemeal litigation that seeks to raise a different legal theory that could have been, but was not, raised in the prior action. (Mycogen Corp. v. Monsanto Co., supra, 28 Cal.4th at p. 897.) Such is the situation here.

Another obstacle that Rucker cannot overcome is the law of the case doctrine. When an appellate court files an opinion that rules on an issue that is necessary to the decision, the ruling becomes the law of the case and must be adhered to throughout [the cases] subsequent progress, both in the lower court and upon subsequent appeal[.] (Kowis v. Howard (1992) 3 Cal.4th 888, 893.) Consequently, the First Appellate Districts decision in Marriage of Rucker, supra, A082442, at pages 2-3, that the entirety of his annuity is income for calculation of child support remains the law of this case. The fact that Rucker failed to raise in Marriage of Rucker, supra, A082442, the issue he raised in the proceeding now on appeal in this court is not an exception to the law of the case doctrine. Therefore, Ruckers request to file supplemental briefing is denied.

III

Rucker next contends the denial of his request for a continuance resulted in [an] unfair trial. According to Rucker, Wellss counsel did not comply with Sacramento County Superior Courts rule 14.03, thus entitling Rucker to a continuance as a matter of law. He is wrong.

The Superior Court of Sacramento County, Local Rules, rule 14.03(A) states in relevant part: Both parties shall file and serve a statement setting forth each issue in dispute, and the legal and factual basis in support of the partys contentions as to each disputed issue, at least 20 days prior to a long cause hearing or two court days before the settlement conference, whichever is earlier. . . . Failure by one party will allow the complying party to proceed to hearing or continue or drop the hearing and may result in the imposition of sanctions. . . . The imposition of sanctions pursuant to this rule and motions to continue a long cause hearing shall be heard by the judge designated by the Supervising Family Law Judge on the day of the settlement conference or at long cause hearing or at such other time as ordered by the Supervising Family Law Judge. Notwithstanding the preceding, if the Supervising Family Law Judge determines that dropping the long cause hearing would result in an injustice or could undermine the need to make a timely determination as to the child(ren)s best interests, the judge designated by the Supervising Family Law Judge may confirm the date set for the long cause hearing. (Italics added.)

Thus, the trial court had discretion to deny Ruckers request to continue the long cause hearing based on Wellss failure to comply with rule 14.03(A). Because this is a judgment roll appeal, we must presume the trial court properly exercised its discretion in denying the continuance request. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1140-1141; Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)

Rucker also contends a continuance should have been granted because, he claims, opposing counsel did not provide him with proper notice of Wellss request for sanctions and attorney fees. However, Ruckers failure to provide a record to support his claim of lack of notice is fatal to his contention. (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1140-1141; Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.)

IV

Rucker incorrectly asserts the trial court erred in refusing to issue a statement of decision.

A party seeking a statement of decision must request the statement within 10 days of the trials conclusion, or if the trial is completed in fewer than eight hours, the request must be made before the matter is submitted. (Code Civ. Proc., 632 (hereafter section 632).) Parties forfeit their right to a statement of decision if they fail to make a timely request. (In re Marriage of Hebbring (1989)207 Cal.App.3d 1260, 1274.)

Here, the record reflects that Rucker requested a statement of decision on January 3, 2007, nearly two months after the trial ended. Consequently, the request was untimely, and the trial court properly denied it.

At oral argument, Rucker expressed his belief that he was entitled, pursuant to section 632, to a statement of decision on his motion to vacate the judgment and/or his motion for a new trial. He is mistaken. Section 632 applies only when there was a trial, followed by a judgment; it does not apply to rulings on motions. (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040.) Therefore, despite Ruckers request, the trial court was not obligated to issue a statement of decision regarding either of Ruckers posttrial motions.

V

Ruckers fourth contention is that the trial court erred in ordering him to pay $2,000 attorney fees with NO justification or Substantial Evidence, which is mandated by law. The contention fails because Rucker provides no factual or legal analysis (County of Solano v. Vallejo Redevelopment Agency, supra, 75 Cal.App.4th at p. 1274) and has not submitted an adequate record to assess the claim of error (Ketchum v. Moses, supra, 24 Cal.4th at pp. 1140-1141). We presume the courts ruling is supported by the evidence. (Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.)

VI

Ruckers final contention is the trial court erred in ruling that in order for Rucker to file a future motion regarding child support, he must obtain permission to do so from the presiding judge.

Such an order cannot issue unless, following a hearing in which Rucker had the opportunity to present evidence on the issue, the trial court found Rucker is a vexatious litigant. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 224-225; Code of Civ. Proc.,  391.7.) That did not occur in this case. Indeed, at Ruckers motion for a new trial, the court denied having identified him as a vexatious litigant. Therefore, the court lacked authority to issue an order compelling Rucker to obtain permission from the presiding judge in order to file a future child support motion.

DISPOSITION

The judgment is modified by striking the requirement that Rucker must obtain approval of the presiding judge to file future motions regarding child support. As modified, the judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

SCOTLAND, P.J.

We concur:

BLEASE , J.

HULL, J.

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^[1] Appellants appendix contains a copy of the decision in Marriage of Rucker, supra. (Cal. Rules of Court, rule 8.1115, subd. (b) [allowing citation to unpublished opinions as the law of the case].)

^[2] It appears that the parties relocated to the Sacramento area, and thus the paternity action was transferred to the Sacramento County Superior Court.