Marriage of Salazar
Filed 8/28/08 Marriage of Salazar CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of ALBERTO M. and ALEYDA ROZO DE SALAZAR. | |
ALBERTO M. SALAZAR, Appellant, v. ALEYDA ROZO DE SALAZAR, Respondent. | G039378 (Super. Ct. No. 03D004896) O P I N I O N |
Appeal from a judgment of the Superior Court of Orange County, Walter D. Posey, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.
Alberto M. Salazar, in pro. per., for Appellant.
No appearance for Respondent.
Alberto Salazar appeals from an order entered on September 26, 2007, adjudicating issues raised in an order to show cause filed by Aleyda Rozo de Salazar. There were several issues addressed in the courts order, and Albertos[1] aptly named brief is not a model of clarity; however, it appears he is specifically challenging the courts award of past-due spousal support. Alberto suggests the court erred in failing to ascertain that Aleyda had remarried at some point during the relevant arrears period, and that he had otherwise made payments sufficient to satisfy his obligation.
We affirm the order. It is Albertos burden to affirmatively demonstrate that the trial court erred, and both his brief and the record he has provided to us are wholly inadequate to sustain that burden.
FACTS
The order to show cause at issue in this case arose out of the parties marital dissolution action. The record before us, however, demonstrates only that in April of 2004, the court awarded spousal support to Aleyda, in the amount of $178 per month, retroactive to July of 2003. Alberto was ordered to pay arrearages of $1,100 per month, plus the $178 current obligation, until the arrearages were paid in full.
In May of 2007, Aleyda filed an order to show cause seeking a modification of child custody and visitation, as well as a determination of spousal support arrearages owed to her. With respect to the latter issue, Aleyda filed a declaration asserting that Alberto had made no spousal support payments from May of 2004 to March of 2006.
On June 4, 2007, Alberto filed a responsive declaration asserting that arrearages have been paid in full.
On September 26, 2007, the court held a hearing regarding the order to show cause. The minute order issued at the end of that hearing reflects that in the course of the hearing, the court took testimony from both parties, took judicial notice of prior minute orders, and considered the parties arguments.[2] Based upon that evidence and those arguments, which are not included in our record, the court made various rulings. One of the courts rulings was that Petitioner owes $4,094.00 as and for past due spousal support for the period of May 1, 2004 thru [sic] March 28, 2006 for a total of 23 months at $178.00 per month.
On October 3, 2007, Alberto filed his notice of appeal.
On October 11, 2007, Alberto filed an unsworn document styled Declaration in the trial court. In that document, he purported to present the court with (1) a digital image of check N 416 reflecting a payment of $126.50 to Aleyda on June 1, 2004; and (2) photocopies of statements from LBS Financial Credit Union for the periods of May 22 June 18, 2004, and May 21 June 24, 2005, which he contends reflect identical payments made to Aleyda on a regular basis. The document concludes with the statement I did pay to the Respondent the Spousal Support ordered by this Court.
DISCUSSION
On appeal, it is not enough for an appellant to merely allude to the existence of trial court errors, while leaving it to the appellate court to conduct what is, in essence, an independent review and analysis of the record. As explained in Eistrat v. J. C. Wattenbarger & Sons (1960) 181 Cal.App.2d 57, 63, [i]t is not the province of a reviewing court to search the record in order to ascertain whether it contains evidence that will sustain a contention made by either party to the appeal. Moreover, [w]hen an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court as unnecessary. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) It is not the appellate courts obligation to search for legal authority supporting a partys contentions. (Davies v. Krasna (1966) 245 Cal.App.2d 535, 560.)
In this case, Alberto appears to be claiming the court erred in failing to consider what he refers to as check number 416 and LBS Financial Credit Union Bank Statements in reaching its decision. However, his brief fails to actually explain either the significance of those particular documents in connection with the issues in dispute, or what efforts, if any, he made to have those documents admitted into evidence in the trial court.
That latter omission is significant, because our own review of the rather sparse record reveals that Alberto did not attempt to submit those documents to the trial court until two weeks after the court had issued its order. Without expressly acknowledging the belated nature of that submission, Alberto simply asserts, in conclusory fashion, that [e]vidence can be presented at any time, even if that requires the reopening of the case. However, to the extent he is suggesting the court in this case was obligated to reopen the issue of arrearages and consider his belated proffer of evidence, he is incorrect.
The trial court has discretion in determining whether to reopen a case, and we review its decision only to determine whether that discretion was abused. In determining whether a trial court has abused its discretion in denying a . . . request to reopen, the reviewing court considers the following factors: (1) the stage the proceedings had reached when the motion was made; (2) the defendants diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence. (People v. Jones (2003) 30 Cal.4th 1084, 1110, quoting People v. Funes (1994) 23 Cal.App.4th 1506, 1520.) Alberto has not acknowledged those factors, let alone made any effort to demonstrate they add up to an abuse of discretion in this case.
Moreover, even assuming Alberto had made such an effort, it would have done him no good in this case, because his attempt to belatedly submit evidence came after he had already filed his notice of appeal. Under those circumstances, the court was not only relieved of any obligation to consider the evidence, but was precluded from doing so by the automatic stay provision of Code of Civil Procedure section 916.
The purpose of the automatic stay provision of [Code of Civil Procedure] section 916, subdivision (a) is to protect the appellate courts jurisdiction by preserving the status quo until the appeal is decided. The [automatic stay] prevents the trial court from rendering an appeal futileby altering the appealed judgment or order by conducting other proceedings that may affect it. (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629.) (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189, italics added.)
Finally, because the evidence was not properly before the trial court, we are likewise precluded from considering it on appeal. Our role is limited to reviewing the evidence properly before the trial court at the time it made a challenged ruling, and determining whether that evidence was sufficient to support the courts judgment. A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) [T]he power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the trial courts findings. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429; Jessup Farms v. Baldwin (1983) [33] Cal.3d 639, 660.) (Estate of Leslie (1984) 37 Cal.3d 186, 201.)
Albertos only remaining assertion is that Aleyda told him personally that she had remarried in December of 2005, which should have legally relieved him of any obligation to continue paying spousal support. That assertion, however is not supported by any evidence in our record, and thus we cannot consider it on appeal.
The order is affirmed. As respondent made no appearance on appeal, no costs are awarded.
BEDSWORTH, ACTING P. J.
WE CONCUR:
ARONSON, J.
FYBEL, J.
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[1] Both parties have the same last name. We consequently refer to them by their first names for the sake of clarity. No disrespect is intended.
