Marriage of Bradwell
Filed 7/17/12 Marriage of Bradwell C4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re the Marriage of DAVID and
TABITHA BRADWELL.
DAVID L. BRADWELL,
Appellant,
v.
TABITHA BRADWELL,
Respondent.
D059127
(Super. Ct.
No. DN139220)
APPEAL from
an order of the Superior Court
of
County, Gregory W. Pollack, Judge. Affirmed.
David L.
Bradwell (Husband) appeals an order denying his motion to set aside or modify a
prior child and spousal support order in favor of Tabitha E. Bradwell
(Wife). On appeal, he apparently
contends the trial court erred by denying that motion because the prior order
was based on a clerical error.
FACTUAL
AND PROCEDURAL BACKGROUND
name="_ftnref1" title="">[1]
On December 19, 2007, the trial court
issued an order (2007 Order), making certain findings on Husband's
spousal support.
title="">[2] The court found Husband's income was $2,998
per month. The court stated:
"[Husband's] income is used as stated.
[Husband] is to provide [Wife] with verification of his current
income. . . . The spousal
support issue is taken under submission for the Court's review." The court ordered Husband to pay Wife $492.00
per month in child support and deferred ruling on the amount of spousal support
he was required to pay Wife.
On December 13, 2010, the trial court
issued an order (2010 Order), making certain findings on, and denying,
Husband's motion to set aside and modify a prior child and spousal support
order.
"Court
finds: The alleged error in the 12/19/07 Order is not a
clerical error that can be corrected at anytime.
"Court
orders: [Husband's] Motion to Set Aside
the Support Order is denied as untimely pursuant to [Family Code section]
3691. Moreover, the request to retroactively
modify spousal support to 12/19/07 is barred by
[Family Code section] 3653[, subdivision] (a)."
On February 7, 2011, Husband filed an
amended notice of appeal challenging the 2010 Order.
DISCUSSION
I
We conclude
Husband has waived his contentions on
appeal because he has: (1) not provided an adequate record for us to review
his contentions; (2) not provided required citations to the record on appeal in
support of his assertions of fact and procedure; and (3) made incomprehensible
arguments and an insufficient substantive legal analysis in support of his
contentions.
A
We first
address the record on appeal Husband provided.
In Denham v. Superior Court
(1970) 2 Cal.3d 557, the court stated:
"[I]t
is settled that: 'A judgment or order of the lower court is
to support it on matters as to which the record is silent, and error must be
affirmatively shown [by the appellant].
This is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible
error.' " (
"A necessary corollary to this rule is that
review, the appellant defaults and the decision of the trial court should
be affirmed." (Mountain Lion Coalition v. Fish & Game Com. (1989) 214
Cal.App.3d 1043, 1051, fn. 9, italics added.)
Alternatively stated, "a record is inadequate, and appellant
defaults, if the appellant predicates error only on the part of the record he
provides the trial court, but ignores or does not present to the appellate
court portions of the proceedings below which may provide grounds upon which
the decision of the trial court could be affirmed." (Uniroyal
Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285,
302.) "The burden of affirmatively
demonstrating error is on the appellant."
(Fundamental Investment etc.
Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) The appellant has the burden to provide an
adequate record on appeal to allow the reviewing court to assess the purported
error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Gee v. American Realty & Construction, Inc. (2002) 99
Cal.App.4th 1412, 1416.) If the record
on appeal does not contain all of the documents or other evidence submitted to
the trial court, a reviewing court will "decline to find error on a silent
record, and thus infer that substantial evidence" supports the trial
court's findings. (Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 955.)
As noted
above, Husband provided a record on appeal consisting of only two substantive
documents: (1) the 2007 Order; and (2) the 2010 Order. He has not provided a reporter's transcript
of any hearings related to those orders, and has not provided copies of any of
the underlying motions or the parties' other pleadings and papers the trial
court considered in making its decisions.
Because the record on appeal is inadequate for us to conduct any meaningful
review of the 2010 Order, we conclude Husband has defaulted and/or waived his
appellate contentions. (
Com., supra, 214 Cal.App.3d at p.
1051, fn. 9; Uniroyal Chemical Co. v.
American Vanguard Corp., supra,
203 Cal.App.3d at p. 302; Maria P. v.
Riles, supra, 43 Cal.3d at p.
1295; Gee v. American Realty &
Construction, Inc., supra, 99
Cal.App.4th at p. 1416; Haywood v.
Superior Court, supra, 77
Cal.App.4th at p. 955.)
B
We also
note Husband has, for the most part, not provided citations to the (inadequate)
record on appeal in support of his assertions of fact and procedure in his
appellant's opening brief. California
Rules of Court, rule 8.204(a)(1)(C),
provides that an appellate brief must "[s]upport any reference to a matter
in the record by a citation to the volume and page number of the record where
the matter appears." Rule
8.204(a)(2)(C) provides that an appellant's opening brief must "[p]rovide
a summary of the significant facts limited to matters in the record."
Statements
of fact not part of, or supported by citations to, the record on appeal are
improper and cannot be considered on appeal.
(Rules 8.204(a)(1)(C), 8.204(a)(2)(C); Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632;
619, 625.) We disregard any statements
of fact or procedure set forth in Husband's brief that are outside of the
record on appeal. (Pulver, at p. 632; Kendall,
at p. 625; Gotschall v. Daley (2002)
96 Cal.App.4th 479, 481, fn. 1.)
Husband's references to a court order issued on February 14, 2008, must be disregarded because it
is not part of the record on appeal.
Furthermore,
to the extent Husband's assertions of fact and procedure ostensibly refer to
matters within the record on appeal, other than two innocuous citations to the
2010 Order and one to the 2007 Order, his brief does not contain any citations
to the appellate record in violation of rule 8.204(a)(1)(C). As in Nwosu
v. Uba (2004) 122 Cal.App.4th 1229, at page 1246, Husband's briefs are
substantially "devoid of citations to the [record on appeal] and are thus
in dramatic noncompliance with appellate procedures." "It is the duty of a party to support
the arguments in its briefs by appropriate reference to the record, which
includes providing exact page citations."
(Bernard v. Hartford Fire Ins. Co.
(1991) 226 Cal.App.3d 1203, 1205.)
"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."
(Duarte v. Chino Community
Hospital (1999) 72 Cal.App.4th 849, 856; see also City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239;
Cal.App.4th 1108, 1115.) Because
Husband's briefs do not contain
support his assertions of fact and procedure and contentions (except for three
innocuous citations to the 2007 and 2010 Orders), we consider his contentions
on appeal to have been waived. (
at p. 856; Guthrey, at p. 1115.) Finally, we note the fact that Husband filed
this appeal in propria persona ("pro per") does not exempt him from
compliance with established appellate rules.
(Nwosu, at pp. 1246-1247 [pro
per litigants must follow the same procedural rules as attorneys].) We conclude Husband has not carried his
burden on appeal to show the trial court erred in issuing its 2010 Order.
C
Finally, we
conclude Husband has waived his contentions on appeal by making
incomprehensible arguments and an insufficient substantive legal analysis in
support of his contentions. "The
burden of affirmatively demonstrating error is on the appellant." (Fundamental
Investment etc. Realty Fund v. Gradow, supra,
28 Cal.App.4th at p. 971.) "An
appellant must provide an argument and legal authority to support his
contentions. This burden requires more
than a mere assertion that the judgment is wrong. 'Issues do not have a life of their own: If they are not raised or supported by
argument or citation to authority, [they are] . . . waived.' [Citation.]
It is not our place to construct theories or arguments to undermine the
judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or
asserts it but fails to support it with reasoned argument and citations to
authority, we treat the point as waived."
(Benach v. County of Los Angeles
(2007) 149 Cal.App.4th 836, 852.)
"Where
a point is merely asserted by [appellant] without any [substantive] argument of
or authority for its proposition, it is deemed to be without foundation and
requires no discussion." (
783, disapproved on another ground in People
v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.)
"Issues do not have a life of their own: if they are not raised or supported by
[substantive] argument or citation to authority, we consider the issues
waived." (Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99; see also
(1995) 39 Cal.App.4th 691, 699-700 ["[w]hen an issue is unsupported by
pertinent or cognizable legal argument it may be deemed abandoned and
discussion by the reviewing court is unnecessary"]; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480,
1488, fn. 3 [contention was deemed waived because "[a]ppellant did not
formulate a coherent legal argument nor did she cite any supporting
authority"]; Colores v. Board of
Trustees (2003) 105 Cal.App.4th 1293, 1301, fn. 2 ["[t]he dearth of
true legal analysis in her appellate briefs amounts to a waiver of the
[contention] and we treat it as such"]; Bayside Auto & Truck Sales, Inc. v. Department of Transportation
(1993) 21 Cal.App.4th 561, 571.)
Appellants acting in propria persona are held to the same standards as
those represented by counsel. (See,
e.g., City of Los Angeles v. Glair
(2007) 153 Cal.App.4th 813, 819.)
Because Husband has not presented any comprehensible, or coherent,
substantive legal arguments supported by citations to the record and legal
authorities, we need not discuss the merits of his appellate contentions and
conclude he has waived his contentions that the trial court erred by issuing
the 2010 Order.
II
Assuming
arguendo Husband did not waive his appellate contentions in the manner
discussed above, we nevertheless would conclude he has not carried his burden
on appeal to persuade us the trial court erred by issuing the 2010 Order. Construing Husband's brief as a whole, it
appears the gist of his appellate contentions is that the trial court erred by
issuing an order on February 14, 2008, that apparently awarded Wife spousal
support based on Husband's monthly income of $3,133. However, as noted above, we disregard any references
to that 2008 order because it is not included in the record on appeal. In any event, we presume Husband did not
it was unsuccessful). Accordingly, when
the trial court issued the 2010 Order, the 2008 order was final and could not
be set aside. Furthermore, Husband does
not present any substantive legal analysis showing the trial court erred by
declining to retroactively modify his support obligations under the 2008 order
and/or 2007 Order. He does not show
either of those prior orders were the result of any clerical error. We conclude the trial court did not err in
issuing the 2010 Order.
DISPOSITION
The order
is affirmed.
McDONALD, J.
WE CONCUR:
HUFFMAN, Acting P. J.
McINTYRE, J.
name="_ftn1" title="">[1] Because Husband fails to include citations to the record on
appeal to support most of his statements of fact and procedure in his
appellant's opening brief, we do not restate any of those asserted facts and
procedure. Rather, we discuss only the
two substantive documents contained in the record on appeal.
name="_ftn2" title="">[2] The court also apparently addressed Wife's motion to modify
child custody and visitation. The record
on appeal does not contain copies of either of the motions filed by Husband or
Wife.
