Marriage of Burkin and Serembre

Filed 4/17/06 Marriage of Burkin and Serembre CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from an order of the Superior Court of Los Angeles County, Robert P. Applegate, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Mary A. Burkin, in pro. per., for Appellant.

Martha M. Avila for Respondent.

____________________

FACTUAL AND PROCEDURAL BACKGROUND[1]

On December 16, 2004, the trial court issued a minute order ruling on matters submitted on November 3, 2004. According to the order, appellant had sought modification of a May 27, 2004 judgment as to the primary residence of the parties' minor daughter, visitation and child support. The court granted appellant's request for modification in part.

Appellant moved for an order correcting the December 16, 2004 minute order to conform to the trial court's November 3, 2004 rulings on her request for modification. The trial court denied the motion on February 9, 2005. It explained that at the end of the hearing on appellant's request for modification of the judgment, on November 3, 2004, it announced certain tentative rulings from the bench but also took the matter under submission in order to review the evidence and reflect on the orders it wanted to make.[2] When appellant requested clarification of the trial court's rulings, the court declined to provide it, explaining that she had failed to request a statement of decision prior to submission of the matter. The court thereafter prepared a minute order denying appellant's motion.

The court then signed a written order memorializing the rulings contained within the December 16, 2004 minute order. The order was filed on February 10, 2005. This order, prepared by respondent's counsel, adopted the language of the December 16, 2004 minute order verbatim. Among the rulings in the written order was an order that appellant pay respondent's counsel $1,000 in attorney's fees.

Appellant appeals from the February 9, 2005 minute order denying her motion for an order correcting the December 16, 2004 minute order. It appears that she also is appealing from the February 10, 2005 written order memorializing the contents of the December 16, 2004 minute order, although that order is not identified by date of issuance in her notice of appeal.

CONTENTIONS

Appellant contends the trial court's December 16, 2004 minute order, which changed its November 3, 2004 rulings from the bench, was an abuse of process, violated the Code of Judicial Ethics and was unsupported by sufficient grounds for the change. She also contends the trial court's award of sanctions frustrated the purpose of the Family Code. As will be discussed below, the trial court acted well within its power in changing its tentative rulings from the bench after taking the matter under submission. Additionally, appellant has failed to meet her burden of establishing that the trial court erroneously awarded attorney's fees to respondent as a sanction.

DISCUSSION

It is well established that a trial court's oral announcement of a tentative decision is not binding on the court. The court may change its decision at any time prior to entry of a final judgment or order. (Horning v. Shilberg (2005) 130 Cal.App.4th 197, 202-203 and fn. 4; In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-647.) The trial court here was therefore free to change its rulings on appellant's motion after taking the matter under submission, and to issue an order reflecting that change. It did not abuse its powers or violate any ethical duties by doing so.[3]

The December 16, 2004 minute order and February 10, 2005 written order contain an order for appellant to pay $1000 toward respondent's attorney's fees. Family Code section 271 permits an award of attorney's fees as a sanction. Section 2030 of the Family Code permits an award of attorney's fees in any proceeding related to a dissolution action. Appellant points to nothing in the record showing the trial court's award of attorney's fees was a sanction pursuant to section 271. Neither does she cite evidence in the record establishing an abuse of discretion in the issuance of the award.

In addressing an appeal, we begin with the presumption that the judgment or order of the trial court is correct. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133; Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 357.) The party challenging the judgment or order has the burden of showing reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574; Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal.App.4th 313, 318.) Meeting this burden requires citations to the record to direct the court to the pertinent evidence or other matters in the record which demonstrate reversible error. (Cal. Rules of Court, rule 14(a); Guthrey v. State of California, supra, 63 Cal.App.4th at p. 1115; Culbertson v. R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.) Appellant has failed to meet her burden with respect to the award of attorney's fees.

The order is affirmed.

NOT TO BE PUBLISHED

SPENCER, P. J.

We concur:

MALLANO, J.

ROTHSCHILD, J.

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[1] In addressing the appeal, we consider only those facts contained within the record on appeal presented to us. We cannot consider any statements of fact made by the parties which are not supported by the citations to record. (Cal. Rules of Court, rule 14(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 449.) To the extent the parties have made reference to factual or procedural matters without record references, we will disregard such matters. (Gotschall v. Daley (2002) 96 Cal.App.4th 479, 481, fn. 1; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546.)

[2] While the reporter's transcript of the November 3, 2004 hearing does not indicate that the court took the matter under submission, the court reminded appellant that the November 3 minute order so stated. Appellant has not included a copy of the November 3 minute order in the clerk's transcript.

[3] Code of Civil Procedure section 1008, cited by appellant for its procedural requirements, is inapplicable here. It governs parties' applications for reconsideration of trial court orders, not trial courts' reconsideration of tentative decisions.