Marriage of Frate

Filed 11/19/09 Marriage of Frate CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

INTRODUCTION

Appellant Georgina M. Frate, who is proceeding in propria persona, appeals from an order entered in her marital dissolution action denying her request for spousal support. Respondent Eddie H. Frate, appellants former husband, has not filed a respondents brief. For reasons we will explain, we find appellant has forfeited her claims on appeal. Accordingly, we affirm the judgment.

II.

FACTS AND PROCEDURAL HISTORY

Our review of facts and procedural history of this case is severely impeded by multiple deficiencies in appellants brief. Appellant has failed to [p]rovide a summary of the significant facts (Cal. Rules of Court, rule 8.204(a)(2)(C)); and she has failed to support the various factual assertions sprinkled throughout her brief by appropriate references to the record (rule 8.204(a)(1)(C))[1]; Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte); Millan v. Restaurant Enterprises Group, Inc. (1993) 14 Cal.App.4th 477, 485.) Given these deficiencies, we summarize the facts and procedural history of this litigation as best we can, relying primarily on the trial courts written statement of decision denying appellants request for spousal support.

Appellant and respondent married on May 16, 1969, and separated on November 13, 2003. Consequently, this was a marriage of long durationover 34 years. The parties children are grown. At the time the proceedings were conducted below, appellant was 62 years old and worked as a janitor. After 20 years with the same company, she testified that she earned $17.50 an hour, or about $3,033 a month. Respondent was also 62 years old. He was retired from the Navy and employed as a postal worker, earning approximately $5,177 a month from his Navy retirement and his postal service income.

The trial court described the parties standard of living during the marriage as working class reflecting a fairly conservative life style of modest expenses for vacations, vehicles, clothing, entertainment, and gifts. The court found each party earned sufficient income to support himself or herself in the modest lifestyle that they were accustomed to during the marriage.

Appellant claimed she was disabled with back problems, but the court noted there was testimony and evidence from dance partners and others at a dance club she frequents that she dances samba energetically. Appellant claimed she had several surgeries scheduled because her back and neck problems need[ed] immediate attention, requiring her to be out of work for quite a while in order to properly recover.

In considering appellants request for spousal support, the court noted that appellant had acted in bad faith when she used a power of attorney signed by respondent to sell the family home, taking all the proceeds of the sale for herself. Throughout these proceedings, appellant persisted in arguing she had a right to sell the house because she obtained a power of attorney from respondent on October 18, 2002. The power of attorney was signed shortly after appellant learned respondent was seeing another woman. The court found appellant sold the family home and then squandered or secreted over a quarter of a million dollars in order to punish respondent for his infidelity. In assessing appellants request for spousal support, the court found [t]he sale of the family home . . . and her squandering of all the net proceeds weigh heavily against her.

The courts minute order, filed on December 19, 2008, indicates that appellants request for spousal support was denied without prejudice to her resubmitting her request if her state disability income terminates or if the two surgeries that she has been recommended to receive for her cervical and lumbar spine conditions are not covered by her health care provider. This appeal followed.

III.

DISCUSSION

The legal principles that guide our analysis are clear. Because a trial courts decision is presumed to be correct, it is the appellants burden on appeal to show the court prejudicially erred. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631-632 (Winograd).) In showing error, an appellants opening brief must [s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority. (Rule 8.204(a)(1)(B)); accord, Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corp. (2003) 111 Cal.App.4th 1328, 1345, fn. 16 [appellant must provide meaningful argument with citation to law or the evidentiary record; otherwise, the argument is abandoned].)

As a general rule, [t]he reviewing court is not required to make an independent, unassisted study of the record in search of error or grounds to support the judgment. [Citations.] (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115 (Guthrey).) If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived. [Citation.] (Duarte, supra, 72 Cal.App.4th at p. 856; see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1245, fn. 14; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Guthrey, supra, 63 Cal.App.4th at p. 1115.)

Appellants brief is largely a subjective explication of the proceedings conducted by Judge Alice Vilardi designed to convince us that the trial judge systematically favored respondent due to a bias against parties appearing in propria persona. She claims the judge should be put under investigation for her unfairness. She also claims the judge ignored evidence that there had been domestic violence during the marriage and that appellant had possessed all of the the proper documents voluntarily signed and initialed by the respondent when she sold the family residence. She claims due process was not exercised in the entire proceedings and that she has been a victim of unfair judgment.

This one-sided presentation of the proceeding below violates another established rule of appellate practice. An appellant must fairly set forth all the significant facts, not just those beneficial to the appellant. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881-882.) Her brief is also not limited to matters in the record, as required by rule 8.204(a)(2)(C). In short, we conclude that appellant has failed to meet her burden on appeal of showing the court prejudicially erred. (Winograd, supra, 68 Cal.App.4th at pp. 631-632.) Accordingly, we conclude her contentions on appeal are forfeited. (Nwosu v. Uba, supra, 122 Cal.App.4th at p. 1247; City of Lincoln v. Barringer, supra, 102 Cal.App.4th at p. 1239; Duarte, supra, 72 Cal.App.4th at p. 856.)

In reaching the foregoing conclusions, we are mindful that appellant represents herself on appeal. However, her status as a party appearing in propria persona does not provide a basis for preferential consideration or absolve her from complying with appellate rules of procedure. A party proceeding in propria persona is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.] (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1; see also Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247.)

IV.

DISPOSITION

The order is affirmed.

_________________________

RUVOLO, P. J.

We concur:

_________________________

SEPULVEDA, J.

_________________________

RIVERA, J.

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[1] All further rule references are to the California Rules of Court.