Marriage of Williams

Filed 1/6/10 Marriage of Williams CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment and an order of the Superior Court of Los Angeles County, Rocky L. Crabb, Temporary Judge. (Pursuant to Cal. Const., art. VI,  21.) Affirmed.

Waites Earl Williams, Jr., in pro. per., for Appellant.

Arnetta Dean Williams, in pro. per., for Respondent.

______________________

INTRODUCTION

Appellant Waites Earl Williams, Jr., appeals from the final judgment in this action to dissolve his marriage to respondent Arnetta Dean Williams. He also appeals from an order denying his motion for reconsideration of the judgment. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The parties were married on December 13, 1980. Appellant filed a petition for dissolution of marriage on February 27, 2004.

The parties entered into a stipulation as to the judgment. On October 10, 2008, the trial court issued the following order: The matter is set for entry of judgment on 11-21-2008. Respondents counsel is to prepare and serve on the Petitioner the proposed judgment on or before 11-05-2008. Petitioner is to file and serve his position on the proposed judgment on or before 11-12-2008.

At the November 21, 2008 hearing, the parties discussed the proposed judgment. The trial court referred to a document entitled Petitioners Position on Proposed Judgment with Trial Testimony as Ordered by the Court, which appellant filed with the court on November 6, 2008. Appellant noted that he made a chart on the Respondents Proposed Judgment and Petitioners Proposed Judgment. And there are a lot of discrepancies there.

Later, in discussing the proposed judgment, respondents attorney noted that the proposed judgment had been rewritten. The trial court asked appellant if he had a copy of the proposed judgment. He responded, Your Honor, the one you show, I just got that on Tuesday night. I got this one November 4th. Respondents attorney confirmed that appellant was given the proposed judgment on Tuesday[, three days earlier,] at 4 oclock when we went through and found some more errors in the judgment.

When appellant said he had not had time to go through the proposed judgment, the trial court asked him to [l]ook at the proposed judgment and tell me what part of it you object to. He then went through the proposed judgment with the trial court and stated his objections. In response, the trial court made some modifications to the proposed judgment.

After going through it, the trial court asked appellant, Any other issues you have with the judgment? Appellant again complained that he had not received the proposed judgment until Tuesday and it was unfair for [respondents counsel] to have an advantage to give me something on Tuesday night on my way out the door because he did not believe the proposed judgment was correct. The trial court then instructed appellant to [l]ook at the judgment that is before you and tell me what the next thing there is that you have an issue as to. Appellant did so.

The trial court did not resolve all of appellants issues in the manner he wanted. When the court asked whether he had any other objections to the judgment, appellant again complained that he had not received the proposed judgment until Tuesday night. The court again went through the proposed judgmentthe differences between the original and revised versions, and appellants additional complaints about the revised version. The trial court then signed and filed the judgment and the clerk served notice of entry of judgment on the same date.

Appellant filed a motion for reconsideration based on the late receipt of respondents proposed judgment and his inability to respond to it in writing. The trial court denied the motion as improper under Code of Civil Procedure section 1008. It added that it at its discretion could consider this matter [as] a motion for new trial but chooses not to do so, [due] to the motion being unintelligible.

DISCUSSION

The majority of appellants claims of error revolve around the late service of the proposed judgment. He claims that this affected his ability to review and respond in writing to the proposed judgment.

Appellant also claims the trial court erred in ruling that he be responsible for half of certain real estate fees, in making him responsible for the parties adult daughters school loan, in making rulings regarding his post-separation payments of community debts, and in balancing the equities between the parties. Appellant additionally claims that the trial court erred in denying his motion for reconsideration.

In addressing an appeal, we begin with the presumption that the judgment 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.) It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record. (Ballardv. Uribe (1986) 41 Cal.3d 564, 574; accord, 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 8.204(a)(1); Guthreyv.State of California (1998) 63 Cal.App.4th 1108, 1115; Culbertsonv.R. D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.) It also requires citation to relevant authority and argument. (Mansellv. Board of Administration (1994) 30 Cal.App.4th 539, 545.)

Appellant cites no authority supporting his claim of error regarding service of the proposed judgment. More importantly, he points to nothing in the record demonstrating that, had he been given more time to review and respond in writing to the proposed judgment, his response would have changed the trial courts decision. Additionally, he points to no differences between the proposed judgment served on him on November 4 and the modified proposed judgment given to him on November 18 which he was unable to address adequately due to the late service of the modified proposed judgment. In short, he has failed to demonstrate any prejudicei.e., that the judgment would have been more favorable to himresulting from the trial courts failure to allow him more time to respond to the modified proposed judgment.

Appellant cites no authority supporting his claim that the trial court erred in holding him responsible for the real estate fees. This waives his claim of error. (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.)

The same is true of appellants contention regarding the parties adult daughters school loan. In the absence of any authority to support his claim that the trial court erred in its allocation of responsibility for the loan, we deem the contention waived. (Mansell v. Board of Administration, supra, 30 Cal.App.4th at pp. 545-546.)

Appellant also contends the trial court erred in its determination as to the amount of post-separation community debt he paid. A forensic accountant calculated that on the date of separation, December 31, 2004, the parties had outstanding community debts of $72,145.85. On March 31, 2008, the outstanding balance on these debts was $47,698.13. Appellant paid $24,447.72 in debt principal during that time. The accountant noted that he did not receive information to allow an accounting of the interest payments made subsequent to [separation on] 12/31/2004.

In discussing these figures at a hearing on August 11, 2008, the court noted that the numbers did not work out because there was no accounting for interest. It found, however, that the original liability of each party was $36,072.92. Appellant paid $24,447.72 of that amount. He still owed $11,625.20, and respondent owed $36,072.93.

At the November 21, 2008 hearing, the trial court pointed out to appellant that the proposed judgment stated that he would be responsible for $11,625.30 in community debt and respondent would be responsible for $36,072.39. Appellant said the amount was wrong, but the trial court referred him to the transcript of the August 11 hearing. Appellant tried to argue the amount was wrong, but the trial court cut him off, stating it was not going to retry the case and if there was error, he could take it up on appeal.

Respondents counsel then pointed out that the original calculation of a $72,000 community debt included student loan and tax obligations of approximately $8,900 which the trial court subsequently determined to be appellants separate property obligations. Therefore, appellant did not actually pay the 24,000 on community debts. He paid roughly $13,000 in community debts. With correction, each partys obligation for community debt would actually be $31,557.73.

The trial court asked appellant if he had any comment, and he replied, Do what you want to do, Your Honor. After discussing resulting changes in the judgment, the trial court again asked appellant if he had any comment. He replied, Like I say, Your Honor, I havent had time to study this. So I have no idea where [respondents counsel is] at and what hes doing. Im at a disadvantage. . . . The trial court pointed out that he had had the judgment since Tuesday, and it was now Friday. Appellant just repeated, Your Honor, just do what you want to do. You got your mind made up. Just do what you want to do. The court indicated that, in the absence of any objection, it was going to make the requested changes.

The gravamen of appellants claim of error on appeal is that the trial court was bound by the forensic accountants calculation of the amount of community debt. He cites no authority for this proposition. Nothing in Evidence Code section 730 requires the trier of fact to be bound by an appointed experts opinion.

Additionally, the absence of any showing that the trial courts determination that the student loan and tax obligation were appellants separate property, requiring modification of the original judgment, demonstrates that there was no prejudice in the late service of the modified proposed judgment. Appellant has had time to respond in writing and has not shown error in the judgment.

Appellant finally contends the trial court erred in denying his motion for reconsideration. The motion was based on the late service of the modified proposed judgment, which appellant claimed did not give him adequate time to read and prepare a rebuttal. The remainder of the motion consisted of appellants calculations as to the amounts due to him and respondent.

Judgment was entered on November 21, 2008. Appellant moved for reconsideration of the judgment under Code of Civil Procedure section 1008 on December 2, 2008. The trial court denied the motion, finding that it was improper once judgment was entered pursuant to 1008 CCP. The Court at its discretion could consider this matter []as a motion for new trial but chooses not to do so, d[ue] to the motion being unintelligible.

A motion for reconsideration under Code of Civil Procedure section 1008 must be based on new or different facts, circumstances, or law. (Id., subd. (a).) Appellants motion was not, and therefore it properly was denied.

Neither did the trial court abuse its discretion in declining to consider appellants motion to be one for a new trial. (Cf. Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160.) Under Code of Civil Procedure section 657, a new trial may be granted based upon specified causes, materially affecting the substantial rights of the party seeking a new trial. As discussed above, appellant has failed to show that the claimed errorthe late service of the modified proposed judgmentmaterially affected his substantial rights, i.e., that the late service of the modified proposed judgment prevented him from making potentially meritorious challenges to the proposed modifications. Having shown no prejudice from the trial courts ruling, he is not entitled to reversal of the order denying his motion for reconsideration. (People v. Watson (1956) 46 Cal.2d 818, 836.)

The judgment and order are affirmed. Respondent to recover her costs of appeal.

JACKSON, J.

We concur:

WOODS, Acting P. J.

ZELON, J.

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