Nazaryan v. Tonoyan

Filed 8/31/07 Nazaryan v. Tonoyan CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael Linfield, Judge. Affirmed.

Feinberg, Mindel, Brandt, Klein & Kline and Wallace S. Fingerett for Defendant and Appellant.

Albert M. Graham, Jr.; and Alan S. Yockelson for Plaintiff and Respondent.

Sarkas Tonoyan (Husband) appeals from a judgment entered in a dissolution proceeding awarding respondent Marine Nazaryan (Wife) two parcels of real property. We affirm, finding that an incomplete appellate record and a deficient opening brief result in a forfeiture of all of Husbands claims of error.

FACTUAL AND PROCEDURAL BACKGROUND

In so far as can be gleaned from the record, the pertinent facts are the following.

Wife alleged that during the marriage Husband fraudulently transferred two community assets to his relatives. The first transfer involved a duplex, the Rosedale property. Wife alleged that Husband tricked her into signing a quitclaim deed to the realty, after which he conveyed the realty to his sister Ripsime Tonoyan by grant deed. The second transfer involved an unimproved parcel, the Palmdale property. Unbeknownst to Wife, Husband first acquired the Palmdale property with community assets and then conveyed it as a gift to his nephew Vagan Bursalyan.

A trial was conducted to characterize and divide marital assets and liabilities. Both Husband and Wife testified. The trial court resolved the credibility issues in favor of Wife, writing: The Court does not find [Husband] particularly credible in his testimony. On the issue of the two transfers, the court wrote: The Court finds by clear and convincing evidence that [Husband] breached his fiduciary duty to [Wife] and committed fraud in relation to the disposition of both the Rosedale and Palmdale properties.^[[1]] The court further finds that the gift of the Rosedale property to [Husbands] sister, Ripsime Tonoyan, was in effect a sham transaction. The court awarded both properties to Wife without offset to Husband. (Fam. Code,  1101, subd. (h); In re Marriage of Rossi (2001) 90 Cal.App.4th 34.) The court also provided that Vagan Bursalyan receive credits for making deed of trust payments [on the Palmdale property] since the alleged transfer of the property to his name.^[2]

This appeal by Husband followed. Although he filed a notice electing to proceed pursuant to appendix in lieu of clerks transcript, he did not file an appendix in this court. The only record he has lodged is a 453-page reporters transcript of the trial court proceedings. We granted Wifes motion to take judicial of, inter alia, the judgment (including findings) entered by the trial court.

DISCUSSION

Husband contends that substantial evidence does not support the trial courts findings that he committed fraud and breached his fiduciary duty in transferring the two properties to his relatives. In particular, he claims that the trial courts statements with reference to credibility [are] not relevant to the issue of whether or not there was a violation of a fiduciary duty and that the deeds signed by [Wife] should not be set aside because of a credibility decision.

We do not reach Husbands contention of insufficient evidence for several reasons. For one thing, he has not furnished a complete record of the trial court proceedings. Although he elected to proceed pursuant to an appendix, he never filed one. Furthermore, Husband never moved to augment the record to include any of the exhibits, such as deeds, introduced into evidence at trial. (Cal. Rules of Court, rule 8.155(a).) The failure to provide an adequate record to evaluate his contention of insufficient evidence constitutes a sufficient basis to decline to reach the claim. (See Del Real v. City of Riverside(2002) 95 Cal.App.4th 761, 768.) Further, Husbands brief fails to set forth a complete and fair statement of the evidence and fails to support, with citations to the record, his contention that the evidence is insufficient to sustain the trial courts findings. These deficiencies result in a forfeiture of the contention. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) In addition, we need not address Husbands novel argument that the trial court erred in predicating its factual findings about his misconduct on its credibility determination.^[3] Husband cites no precedent to support the argument. When an appellant raises a point but fails to support it with reasoned argument and citations to authority, we treat the point as waived. [Citations.] (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.)

Husband next contends, citing Family Code section 1102, subdivision (d), that Wifes claim that he improperly transferred the Rosedale property to his sister is barred by the statute of limitations. Husbands brief fails to acknowledge that the trial court considered and rejected this contention. In closing argument, Husband made a passing reference to the statute. Wife, citing Byrd v. Blanton (1983) 149 Cal.App.3d 987, urged the one-year limitations period did not apply because (1) Wife did not know about the transfer and (2) Husbands sister knew about Wifes community interest in the property. The trial court implicitly rejected Husbands argument by awarding the property to Wife. Husband fails to distinguish, factually or legally, the precedent cited by Wife and advances no argument as to why the trial court erred in implicitly relying upon that authority to reject his claim. We will not develop Husbands argument for him and therefore decline to address the issue. (Dills v. Redwood Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.)

Lastly, Husband contends that the trial court lacked subject matter jurisdiction to enter an order awarding the two properties to Wife because the order adversely affects third parties [Ripsime Tonoyan and Vagan Bursalyan] who were not before the court at the time of trial. In so urging, Husband omits many salient facts. In so far as Vagan (Vick) Bursalyan is concerned, Wife called him as a witness at trial. Bursalyantestified about Husbands transfer of the unimproved Palmdale property to him. In so far as Ripsime Tonoyan is concerned, she had several opportunities to assert an interest in the realty but failed to do so. Wife sued her in a separate action, seeking to rescind the deed by which Husband had conveyed the Rosedale property to her. Tonoyan failed to file an answer after being personally served with summons and complaint and a default was entered.^[4] In addition, Wife served Tonoyan with a subpoena to testify at the dissolution proceeding but Tonoyan failed to appear. However, counsel appeared on Tonoyans behalf at the beginning of trial and asserted that if Tonoyan were called as a witness, she would assert the privilege against self-incrimination. Furthermore, based upon comments made by counsel at the beginning of the trial, it appears that Wife formally joined Tonoyan in the dissolution proceeding. When Tonoyan failed to appear, Wife sought to bifurcate the issue of the Rosedale property from the other issues to be decided.^[5]Husband objected. The court denied Wifes request and resolved all issues in the one trial.

In light of Husbands failures: (1) to acknowledge the facts set forth in the above paragraph; (2) to argue that the above processes were insufficient to allow the trial court to proceed; (3) to explain why he is not estopped from raising his present claim given his objection to Wifes request to bifurcate adjudication of the Rosedale property; and (4) to advance any authority to support his implicit premise that he has standing to assert the rights of third parties on this appeal, we decline to address his contention of failure to join indispensable parties.

Lastly, Wife requests an award of attorney fees on appeal pursuant to Family Code section 2030, subdivision (c). Such a request must properly be addressed to the trial court in the first instance. (In re Marriage of Schofield (1998) 62 Cal.App.4th 131, 140-141.) Wife also requests that we sanction Husband for prosecuting a frivolous appeal. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650.) We decline to do so.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

SUZUKAWA, J.

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^[1] In specific, the court found that Wife signed documents without reading them or knowing their significance because she was instructed to do so by [Husband]; that Wife did not receive consideration for giving up her community property rights in the [Rosedale] property and that Wife was unaware that she had given up her rights in the [Rosedale] property and [was] unaware of the existence of the Palmdale property.

^[2] Vagan Bursalyan testified that he (or his family) paid approximately $400 every three months. Husband transferred the property to him by deed in August 2001.

^[3] Wife correctly notes in her brief: [A]ssessing the credibility is the sin qua non of what a finder of fact is charged with doing at trial.

^[4] The trial court denied Tonoyans subsequent motion for relief from default. Tonoyan appealed. We dismissed the appeal as being taken from a non-appealable order (entry of default as opposed to default judgment). (Nazaryan v. Tonoyan (B187249, Aug. 22, 2006).)

^[5] Because Husband never filed an appellants appendix, none of the pleadings (including those relating to joinder of Tonoyan and bifurcation of the proceeding) is before us.