Andrew
Filed 11/8/13 Marriage of
Andrew CA4/1
NOT TO BE PUBLISHED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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the
Marriage of CHARLES and MAIA ANDREW.
CHARLES
ANDREW,
Appellant,
v.
MAIA
AMBERSTONE,
Respondent.
D060854
(Super. Ct.
No. D490251)
APPEAL
from a judgment of the Superior Court
of
County, Lorna A. Alksne, Judge. Affirmed.
Charles
Andrew, in pro. per., for Appellant.
Sheila M.
Reilly for Respondent.
In this
case, by way of his designation of record, appellant elected preparation of a
clerk's transcript and a reporter's transcript.
Appellant also filed an application for a waiver of the cost of
preparing the clerk's and reporter's transcripts. We denied his request and, when he failed to
timely file the fees needed to prepare a reporter's transcript, we ordered
preparation of a clerk's transcript.
Later,
appellant unsuccessfully attempted to file an appendix. Included in appellant's proposed appendix
were documents filed in the trial court that did not appear in the clerk's
transcript and exhibits offered by the parties in the trial court. In addition to consideration of the merits of
appellant's appeal, pending before us is a motion to augment in which appellant
asks us to include the documents and many of the exhibits that appeared in his
proposed appendix. Appellant's motion to
augment also includes excerpts of portions of the reporter's transcript that support
his contentions on appeal.
With respect to the exhibits and documents filed
in the trial court, we grant appellant's motion to augment. However, with respect to the excerpts of the
reporter's transcript, we deny the motion to augment. Appellant lost his right to a record that includes
a reporter's transcript, and he may not reinstate that right by way of a motion
to augment with portions of the reporter's transcript.
Appellant's failure to provide a complete reporter's
transcript of the proceedings in the trial court prevents us from reaching the
merits of his claims on appeal, which appear to be challenges to the trial
court's factual findings and, in particular, the trial court's reliance on the
report of a special master with respect to the value of businesses appellant
owns.
This is the second time appellant
has appealed a ruling by the trial court in this contentious
appellant's appeal had no merit, sanctions were not appropriate. Here, once again, appellant's appeal lacks
merit. Nonetheless, in order not to unduly
discourage resort to appellate review, we once again decline to impose
sanctions.
FACTUAL AND
PROCEDURAL BACKGROUND
Appellant
Charles Andrew and respondent Maia Amberstone were married in May 1984 and
separated in May 2005. Shortly after
their separation, Andrew filed a petition for dissolution of the marriage.
In 2008,
the trial court awarded Amberstone $3,500 a month in spousal support based on
the report of a forensic accountant it had appointed to act as special master
as well as records from appellant's businesses which showed that substantial
amounts of his personal expenses were paid by the businesses. Andrew appealed from that order, and we
affirmed. We noted that although Andrew challenged
the trial court's evidentiary rulings, he did not cite to any portions of the
record that supported his contentions.
With respect to Amberstone's request for sanctions, we stated: "[Andrew's] appeal lacks all merit and
it appears he has a history of causing delay.
However, although it is a close call, we decline to assess sanctions."
On remand,
the trial court conducted a three-day trial on reserved issues, including the
valuation of Andrew's businesses, spousal support and Amberstone's request for
sanctions. Based on its valuation of
Andrew's businesses and other debts of the community, the trial court ordered
that Andrew pay Amberstone an equalization payment of $168,135.69. Based on its determination of income
available to Andrew and the couple's marital standard of living, the trial
court ordered that Andrew pay Amberstone $5,000 a month in spousal
support.
With
respect to sanctions, the trial court stated:
"The court finds that [Andrew] has frustrated the policy of
settlement and by misrepresenting income to the court and respondent. The court issues a sanction pursuant to
Family Code section 271 against petitioner and orders him to pay to respondent
a sanction of $20,000.00"
Andrew
filed a timely notice of appeal.
DISCUSSION
I
First, we
take up Andrew's motion to augment the record.
As we indicated at the outset, with respect to the documents that were
filed in the trial court and were part of his proposed appendix, we grant his
motion.
However,
with respect to his request that we augment the record with the reporter's
transcript of the last day of the trial court's hearing in which the trial
court made its ruling on the record on the disputed issues, we deny the motion
to augment. Where a reporter's
transcript has not been requested, "a 'motion to "augment"
cannot be used to create a record. Its
function is to supplement an incomplete but existing record.'" (Wagner
v. Chambers (1965) 232 Cal.App.2d 14, 21.)
The augmentation Andrew requests is particularly unfair because it does
not include a reporter's transcript of the preceding two days of trial.
II
On
appeal, Andrew contests the trial court's determination of the value of his
businesses and, in particular, the trial court's reliance on the special master's
report, on its findings with respect to his income and its imposition of
sanctions. With respect to the special
master's report, Andrew contends that the master did not respond to Andrew's
objections to the report and that the trial court also failed to consider Andrew's
objections to the master's report. With
respect to the trial court's calculation of the parties' respective incomes,
Andrew contends that the trial court applied different criteria and also relied
on false or misconstrued facts. Finally,
Andrew argues that the $20,000 in sanctions was improper because it imposed an
undue financial burden on him. In short,
Andrew's appeal is based entirely on his disagreement with the trial court's
factual findings.
As Amberstone points out, the available record
does not permit us to resolve these questions.
Where as here, an appeal is taken on a clerk's transcript and no
reporter's transcript is part of the record, "the judgment or order is not
subject to evidentiary challenge or review; it is presumed the evidence
supports the judgment and the court's findings." (In re
Marriage of Stutz (1981) 126 Cal.App.3d 1038, 1042.) The particular hurdles we face in reviewing a
record that does not include a complete reporter's transcript is in determining
whether proper objections to the evidence were made and whether any error in
the admission or exclusion of evidence on the part of the trial court was
prejudicial. "[T]he party who
desires to raise the point of erroneous admission on appeal must object at the
trial, specifically stating the grounds of the objection, and directing the
objection to the particular evidence that the party seeks to exclude." (3 Witkin,
Cal. Evidence (5th ed. 2012) Presentation
At Trial, § 383, p. 535.) Moreover,
"[i]t 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 appellant
has the burden on appeal not to merely show error but "'to show injury
from the error.'" (
Cal.App.4th 729, 740.)
Here, without a complete record, we cannot
determine whether Andrew made appropriate objections to the master's report,
raised an appropriate objection to the trial court's income calculation or
presented sufficient, credible evidence of his income. Even if we assume that objections to the
master's report and the trial court's calculations were made and that credible
evidence of his income was presented, without a complete record of the trial we
cannot determine whether any error was prejudicial.
Thus, we are unable to reach the merits of Andrew's
contentions.
III
Amberstone again seeks attorney fees from Andrew
as sanctions for a frivolous appeal. (Code
Civ. Proc., § 907.) In
Cal.3d 637, 649-650, the court "set forth two alternative tests for
determining a frivolous appeal. The
first test is subjective: Was the appeal
prosecuted solely for an improper motive, such as to harass the respondent or
delay the effect of an adverse judgment? [Citation.] . . . [¶] The
second strand of Flaherty is
objective: Was the appeal so
indisputably without merit that any reasonable attorney would agree it was
totally devoid of merit?" (
25 Cal.App.4th 1766, 1773.) "The
two standards are often used together, with one providing evidence of the
other. Thus, the total lack of merit of
an appeal is viewed as evidence that appellant must have intended it only for
delay." (In re Marriage of Flaherty,
supra, at p. 649.)
Like his previous appeal, Andrew's current appeal
lacks all merit and, as we noted in his prior appeal and the trial court determined
in imposing sanctions, Andrew has a history of causing delay. Nonetheless, we recognize that sanctions
should be imposed sparingly "so as to avoid a serious chilling effect on
the assertion of litigants' rights on appeal." (In re
Marriage of Flaherty, supra, 31
Cal.3d at p. 650.) It is for this reason
that we once again decline to impose sanctions; however, our patience with
dilatory and frivolous litigation has limits.
DISPOSITION
The
judgment is affirmed. Amberstone is
awarded her costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
HALLER, J.
O'ROURKE, J.
