Shumye v. Felleke

Filed 9/11/07 Shumye v. Felleke CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

A judgment for dissolution of marriage was entered pursuant to a stipulation between appellant Rebecca Shumye and respondent Samuel Felleke. Appellant, in propria persona, appeals after the trial court denied her postjudgment motion to Reverse Uncontested Judgment to Contested. We dismiss the appeal.

Background

On June 4, 2003, appellant filed a petition for dissolution of her marriage to respondent. On July 21, 2005, the parties appeared for trial, each represented by private counsel. At the hearing, the parties informed the trial court that they had reached a settlement regarding all issues involved in the case, and had prepared a written stipulation that was ready for the trial judges signature. Each party was questioned regarding their understanding of and agreement to the settlement. Specifically, the stipulation set forth the terms of the parties property settlement and a waiver of rights to spousal support under the California Family Code, and it stated that the parties would be restored to the status of single persons as of July 21, 2005. The stipulation was signed by both parties and the judge, and it was filed on August 16, 2005.

On May 8, 2006, counsel for appellant filed a Request for Entry of Judgment of Dissolution Nunc Pro Tunc and Declaration of Donna L. Smith in Support Thereof. In it, appellants counsel declared, On March 28, 2006, an inadvertent excusable mistake by the court came to light, to wit: the courts record did not indicate the parties jurisdictional voir dire, and as a result, the judgment could not be entered. [] [ ]At the conclusion of the settlement and trial date on July 21, 2005, both parties and their counsel assumed, believed, and relied upon their understanding that their marriage was dissolved . . . . Appellants counsel stated that judgment could have been entered on July 21, 2005, but for the inadvertent error by the court, and she confirmed that she spoke with respondents counsel, and both parties joined together in the request to enter the judgment for dissolution of marriage nunc pro tunc. On May 18, 2006, the court entered the judgment for dissolution nunc pro tunc as of July 21, 2005.

On May 26, 2006, appellant, who was no longer represented by counsel, filed an Order to Show Cause to Reverse Uncontested Judgment to Contested. Appellant attached a declaration roughly summarizing the case and stating that the case was contested. Respondent filed Points and Authorities in Opposition to Petitioners Motion to Reverse Judgment. Respondent stated it was difficult to discern the content of appellants motion, but he treated and opposed the motion as one to set aside the judgment. Appellant then filed Amendments to Motion of Reversed Uncontested Judgment to Contested in which she reiterated that [t]he major objective of the motion is that the case is a contested case. She quoted language from her previous request for entry of judgment nunc pro tunc (drafted by her attorney), including: that the matter was contested and set for trial; on the trial date the parties entered into a stipulation; in March 2006 a mistake was found and judgment had not yet been entered; and the parties then requested entry of judgment nunc pro tunc. Appellant argued that in its entry of judgment, the court improperly classified the case as uncontested, and she was asking the court to correct its clerical mistake. It does not appear that appellant objected in her motion to any of the substantive provisions of the judgment.Appellants motion was denied on October 3, 2006.^[1] This appeal followed.

Discussion

[F]ailure of an appellant in a civil action to articulate any pertinent or intelligible legal argument in an opening brief may, in the discretion of the court, be deemed an abandonment of the appeal justifying dismissal. . . . Contentions supported neither by argument nor by citation of authority are deemed to be without foundation, and to have been abandoned. [Citation.] Nor is an appellate court required to consider alleged error where the appellant merely complains of it without pertinent argument. [Citation.] (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.) Further, the appellate court can treat as waived any issue that, although raised in the briefs, is not supported by pertinent or cognizable legal argument or proper citation of authority. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006)  9:21, p. 9‑6, italics omitted); see also Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.)

Appellant is not exempt from the rules because she is representing herself on appeal in propria persona. Under the law, a party may choose to act as his or her own attorney. [Citations.] [S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.] [Citation.] Thus, as is the case with attorneys, pro. per. litigants must follow correct rules of procedure. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.)

Here, appellant raises no issue that is articulated or supported by pertinent or cognizable legal argument. Her opening brief is extremely difficult to comprehend, and she fails to make clear the nature or scope of her claim of error. Her failure to provide proper citations to any legal authority or to the clerks transcript or reporters transcript further exacerbates the problem. Appellant presents only a disjointed narrative of the cases background, interwoven with vague assertions and accusations, and it is appropriate for this court to deem the appeal abandoned and to dismiss it. (See Berger v. Godden, supra, 163 Cal.App.3d at p. 1120.) Even if we were to speculate on the nature of appellants claims, we would reject her appeal on the merits. It appears as though appellant wants the judgment to reflect that this was a contested case. However, judgment was entered pursuant to the parties stipulation, and thus it was uncontested. To support her argument that the case was contested, appellant repeatedly refers to language from her Request for Entry of Judgment of Dissolution Nunc Pro Tunc (drafted by appellants lawyer at the time) stating that The above matter was contested and set for trial . . . . However, even if the case was originally contested, the parties arrived for trial and immediately informed the court that they had reached a settlement and had prepared a stipulation. Appellant also makes various accusations regarding fraudulent conduct on the part of respondent, respondents counsel, and the trial court, but these claims are unsupported by the record.

Disposition

The appeal is dismissed.

SIMONS, J.

We concur.

JONES, P.J.

NEEDHAM, J.

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^[1] The minute order states, Petitioners motion is denied. Lacks merit to set aside a contested judgment as the judgment submitted/filed was a stipulated judgment. The motion to set aside the stipulation had no supporting facts that justify setting it aside. No other documentation regarding this hearing is provided in the appellate record.