Marriage of Alesso
Filed 12/7/12 Marriage of Alesso CA4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
In re the Marriage of MICHAEL
and DELLA ALESSO.
MICHAEL ALESSO,
Respondent,
v.
DELLA ALESSO,
Appellant.
F062564
(Super.
Ct. No. S1501FL601550)
APPEAL from
a judgment of the Superior Court
of
Della
Alesso, in pro. per., for Appellant.
Sumalpong
& Sumalpong and Joanne S. Sumalpong for Respondent.
-ooOoo-
Appellant
Della Alesso (Wife), challenges the judgment in the underlying dissolution
action. According to Wife, the judgment
should be vacated because it was based on fraud. Wife claims that her attorney was incompetent
and that he misled both her and the court.
However,
the record does not support Wife’s allegations.
Accordingly, the judgment is affirmed.
BACKGROUND
Wife and
respondent, Michael J. Alesso (Husband), dissolved their 25-year marriage. Trial of the matter began in October 2010 and
was continued several times.
On January 14, 2011, the parties
appeared for another day of trial. Wife
was represented by Ira Stoker and Husband was represented by Karen Gaul
Wallace. At the beginning of the
session, the court explained that the court had had some chambers discussion with
counsel and had been able to “work out a negotiation†on the last remaining
items. The parties agreed to rely on the
reporter’s transcript. Husband’s counsel
then recited a stipulation regarding the outstanding property issues. Wife also agreed to waive any spousal support
arrears. Husband’s counsel further set
forth the court’s indicated ruling on spousal support and attorney fees. Wife was to receive $5,200 per month in spousal
support and Husband was to pay $10,000 to Stoker for Wife’s attorney fees.
The court then asked Husband if he accepted
the court’s indicated ruling and the settlement that his attorney recited. Husband responded “Yes, I do.†Thereafter, the court asked Wife “Ms. Alesso,
likewise?†Wife responded “I’m
sorry. I didn’t hear exactly.†The court replied “Okay. You have the right to present evidence in
this case. I’ve heard a lot of evidence. I’ve given an indicated ruling on the
support, and Ms. Wallace has indicated the agreement of you … and Mr. Alesso
regarding the property division; so on the property division, is that, in fact,
your agreement?†Wife responded “Yes.â€
Regarding
the indicated ruling and further evidence, Wife was concerned about her dental
needs and submitted a document outlining Wife’s need for reconstructive work on
her jaw. The court acknowledged the
possible need for this expense but noted that the work should be covered by
most medical insurance
policies. The court informed Wife
that, if insurance coverage was denied, the court would consider a modification
upon a proper motion.
The
proceedings concluded on March 22,
2011, and judgment was entered.
DISCUSSION
Wife
contends that the January 14, 2011, agreement was the result of fraud,
misconduct and incompetence on the part of Stoker, her attorney. According to Wife, Stoker incorrectly told
her that she had no choice but to accept the property settlement and then
ignored her during the proceedings.
However, the facts alleged to support these claims are not part of the
record. Wife recites experiences and
conversations that she had with Stoker outside of court. Further, although the record demonstrates otherwise,
Wife asserts that she did not say “yes†when the court asked her if the
property division was in fact her agreement.
Wife additionally argues that the attorney fees award of $10,000 created
a conflict of interest between her and Stoker.
Wife’s discussion of facts that are
outside the appellate record is improper.
In reaching a decision, an appellate court is governed by the
record. Accordingly, this court will not
consider these facts and will disregard the statements of such facts set forth
in Wife’s briefs. (Oldenkott v. American Electric, Inc. (1971) 14 Cal.App.3d 198,
207.) Since Wife’s claims of fraud,
attorney misconduct and attorney incompetence are based on factual allegations
outside the appellate record, Wife has not met her burden to show reversible
error by an adequate record. (
574-575.)
Similarly, Wife’s claim that she did not agree
to the property division has no support in the record. Rather, according to the reporter’s
transcript, Wife answered “yes†when the court asked if that was her
agreement.
Finally, Wife states she believes
that the award of $10,000 in fees to Stoker created a conflict of
interest. However, Wife provides no
support for this claim. Thus, again,
Wife has not met her burden of showing reversible
error.
In sum, the appellate record
provides no support for Wife’s claims of error.
An appeal was not the proper means for Wife to attempt to set aside the
judgment based on allegations of fraud or make claims for attorney
DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
_____________________
Franson, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Kane, J.
