Marriage of Garber

Filed 11/5/08 Marriage of Garber 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

It is ordered that the opinion filed herein on October 9, 2008, be modified as follows:

On page 9, after the first paragraph beginning Legislative history may be considered, add a new section, as follows:

Reasons for Denying Petition for Rehearing and Motion to Augment the Record

After our opinion in this case was filed, Ronald filed a petition for rehearing and a motion to augment the record with a certified copy of a declaration of domestic partnership signed by Melinda and Kristin and filed with the California Secretary of State on August 26, 2005. The record on appeal may be augmented with (A) Any document filed or lodged in the case in superior court; or [] (B) A certified transcriptor agreed or settled statementof oral proceedings not designated under rule 8.130. (Cal. Rules of Court, rule 8.155(a)(1).) The declaration of domestic partnership does not satisfy either requirement. The declaration of domestic partnership was never a part of the superior courts file; therefore, it is not a proper matter for augmentation. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3; Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826‑827, fn. 1.) The motion to augment the appellate record is therefore denied.

The framework for analyzing Ronalds petition for rehearing was explained by our Supreme Court in In re Zeth S. (2003) 31 Cal.4th 396, 405: It has long been the general rule and understanding that an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration. [Citation.] This rule reflects an essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . . [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal. Although appellate courts are authorized to make findings of fact on appeal by Code of Civil Procedure section 909 and [former] rule 23 of the California Rules of Court, the authority should be exercised sparingly. [Citation.] Absent exceptionalcircumstances, no such findings should be made. [Citation.] [Citations.] (First italics added; second italics in original.)

Ronalds petition for rehearing and motion to augment expressly acknowledge the declaration of domestic partnership was never presented to the trial court. The following chronology demonstrates why we cannot grant Ronalds petition for rehearing.

In November 2006, Ronald first raised the issue whether Melinda and Kristins domestic partnership affected the agreement. He did so by means of his motion in the trial court to set aside the judgment. He did not submit a copy of the declaration of domestic partnership with that motion (although it had apparently been filed more than one year earlier), and provided no evidence to the trial court that Melinda and Kristin had registered their domestic partnership with the Secretary of State. At no time before the trial court signed its statement of decision in June 2007 did Ronald correct his failure to provide an adequate record to the trial court.

On appeal, Ronald filed his opening brief in January 2008 without any reference to a filed declaration and, as discussed ante, his brief was devoid of any citation to evidence in the trial court record supporting his contention of the existence of a registered domestic partnership. Upon reading the parties briefs, we invited the parties to submit supplemental letter briefs identifying the evidence in the record that Melinda and Kristin had registered their domestic partnership. As explained ante, Ronald again failed to provide us with any such evidence. Indeed, in his supplemental letter brief filed in June 2008, Ronald failed to provide this court with a copy of the declaration of domestic partnership, or even to inform us it existed.

Then, at oral argument in September, we gave Ronald yet another opportunity to identify any evidence in the trial court record supporting his argument. Ronald again failed to identify the declaration of domestic partnership. We filed our opinion on October 9, 2008. Only after the opinion was filed did Ronald file a copy of the declaration he could and should have presented to the trial court almost two years ago. Despite his repeated failures to make an adequate record in the trial and appellate courts, Ronald now asks us to rehear the case.

Whether and how the declaration of domestic partnership affects the interpretation and enforceability of the agreement are matters best addressed in the first instance by the trial court. Ronald has demonstrated a continuous, fundamental misunderstanding of the roles of the trial court and the appellate court in the civil justice system. The proper functioning of this system required him to present evidence to a fact finderin this case, the family law courtwhich can make factual findings and decide the legal issues on a complete record in the first instance. For the reasons discussed ante, Ronalds petition for rehearing is denied.

This modification does not effect a change in the judgment. The petition for rehearing is DENIED.

Appellant failed to request leave to file his motion to augment the record, and the motion was received, but not filed, by the clerk of this court on October 24, 2008. In the interests of justice, the clerk of this court is directed to file appellants motion to augment the record on this date. Appellants motion to augment the record is DENIED. Respondent Melinda Garbers motion for sanctions for the filing of the petition for rehearing and motion to augment is also DENIED.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.

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