Marriage of Foscalina

















Filed 2/25/13 Marriage of Foscalina CA3











NOT TO BE PUBLISHED







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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Tehama)

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>

In re the Marriage of JOEL and BRIDGETT FOSCALINA.	C069820
JOEL FOSCALINA, Appellant, v. BRIDGETT FOSCALINA, Respondent.	(Super. Ct. No. FL63924)

Joel
Foscalina, husband, appeals from a trial court judgment dividing community
property, ordering husband to pay to Bridgett Foscalina, wife, $2,268 in order
to equalize the division of community property, and reserving jurisdiction over
the issues of support and marital status.
Husband’s sole claim on appeal is that the trial court erred in denying
his motion to continue the trial.

We affirm
the judgment.

BACKGROUND

In August
2010 husband filed a petition to dissolve the parties’ 23-year marriage. He subsequently filed a motion seeking
spousal support. In support of his
motion, husband said he was an out-of-work carpenter and his unemployment
insurance benefits were insufficient to cover his “basic” living expenses. Wife opposed husband’s motion, noting that
she too was unemployed and struggling to cover her own expenses.

Husband
filed a second motion for spousal support in June 2011. Husband, now representing himself, noted that
his previous motion had been withdrawn by former counsel without his knowledge
or consent. Husband said he needed
spousal support because he continued to be unemployed and was now “without a
home.”

On July 11, 2011, husband caused a
subpoena duces tecum to be issued, ordering wife to appear at trial on August 24, 2011, and produce
documents related to a 2004 Ford Explorer and an “accident in 2010.”

On August
5, 2011, husband caused a second subpoena duces tecum to be issued, directing
the “Law office of Michael Darlington” (wife’s counsel) to appear at trial on
August 24, 2011, and produce documents showing wife’s “2011 Income Declaration,
January 2011 through July 31, 2011 and all Unemployment Income for 2011.”

On August 17, 2011, husband filed his
list of exhibits and a “hearing brief”
related to the trial scheduled for August
24, 2011.

On August 24, 2011, the parties appeared
for a two-hour trial “on all issues.” On
the day of trial, wife filed her trial brief with numerous exhibits
attached. Husband immediately moved for
a continuance, arguing he needed time to review wife’s trial brief and the
exhibits.

Wife
indicated there was no new information in the trial brief except her request
that husband pay support for their incapacitated adult child. The trial court invited husband to review the
trial brief and the attachments; if any of the attachments were a “surprise[]”
to husband, he was directed to tell the court why that surprise warranted a
continuance. Husband indicated he would
need “more time than today to figure [that] out.” The trial court denied his motion.

The trial court
advised husband that the trial brief and its attachments were merely a summary
of all the information already provided to husband and the court. The purpose of the brief, the court
explained, was simply to put all the relevant material in one place so the
court (and husband) could more easily locate the documents on which wife would
rely at trial.

The trial
thus began. Husband testified and
explained why he needed spousal support.
He was struggling to find carpentry work and believed wife was not working
to her earning capacity. He also
believed it was easier for her to find work than it was for him.

Wife
testified she was working as often as she could given that she was caring for
their adult son, who she claimed suffered from mental and physical
illnesses. Wife also presented href="http://www.mcmillanlaw.com/">uncontroverted evidence regarding the
parties’ community property, including husband’s annuity and pension accounts,
and the value of that property.

At the
close of trial, husband stated, “[t]he only argument I have right now is on the
spousal support issue. And my argument
is: I have no income, I have no home,
and I have no money, and I need some help.
Whether it be temporary spousal support or how, my argument is that I
need some money, I need help.” The court
took the matter under submission.

The court
subsequently issued its “intended decision.”
The court found there was no evidence of community debt, reserved
jurisdiction over specified pension funds, divided the community property
according to wife’s proposed division, and ordered husband to pay to wife
$2,268 in order to equalize the division of property. The court made numerous findings regarding
the parties’ respective financial situations and ultimately ordered no spousal
support to be paid to either husband or wife.
The court also ruled that no support would be paid to wife for the
parties’ adult child. The court
nevertheless reserved jurisdiction over the issue of support “should financial
facts change.”

A final
judgment incorporating the court’s intended decision was entered on September 27, 2011. A notice of entry of judgment was filed and
served on October 4, 2011. Husband appeals from the judgment.

DISCUSSION

Husband’s
sole contention on appeal is that the trial court erred in denying his request
to continue the trial. Husband’s
contention is without merit.

We will
reverse an appealable order only if the appealing party has shown prejudice; in
other words, it was reasonably probable a result more favorable to him or her
would have been reached in the absence of error. (In re
Marriage of Jones (1998) 60 Cal.App.4th 685, 694; Cal.
Const., art. VI, § 13 [a judgment may be set aside for procedural error
only if the error resulted in a miscarriage of justice].)

Husband
claims the trial court erred in refusing to continue the trial for two weeks to
allow him time to review wife’s trial brief.
Husband has failed, however, to show that he would have received a more
favorable result if the trial court had granted his request. Accordingly, his claim fails.

Moreover,
the trial court’s ruling on a motion to continue is subject to reversal only
for a manifest abuse of discretion. Such
an abuse may appear where the denial “ ‘has the practical effect of
denying the applicant a fair hearing.’ ”
(In re Marriage of Hoffmeister
(1984) 161 Cal.App.3d 1163, 1169.) The
abuse of discretion must affirmatively appear from the appellate record. (Ballard
v. Uribe (1986) 41 Cal.3d 564, 574-575 [“a party challenging a judgment has
the burden of showing reversible error by an adequate record”].)

The trial
court gave husband the opportunity to review the trial brief in court and
invited husband to renew his motion to continue the trial if he saw anything he
had not seen before. The only “new”
issue was wife’s request for child support for the parties’ adult child, which
the court denied. Husband participated
in the trial, and had the opportunity to present his arguments and evidence and
to cross-examine wife. On this record,
we conclude husband received a fair hearing.
Accordingly, we see no abuse of discretion.

DISPOSITION

The
judgment is affirmed.







RAYE , P. J.







We concur:







NICHOLSON , J.







BUTZ ,
J.