In re Marriage of Hughes











Filed 4/28/17 In re Marriage of Hughes CA4/1







NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



In re the Marriage of SCOTT HUGHES and MICHELLE HUGHES.


SCOTT HUGHES,

Respondent,

v.

MICHELLE HUGHES,

Appellant.

D069423


(Super. Ct. No. DN178036)

APPEAL from an order of the Superior Court of San Diego County, David G. Brown, Pamela M. Parker, Judges. Affirmed.
Simon & Denevi and Catherine Irene Denevi-Burris for Appellant.
Winet Patrick Gayer Creighton & Hanes and Amanda F. Benedict for Respondent.
Michelle Hughes appeals a family court order denying her motion brought under Family Code section 2121 et seq. to set aside the judgment of dissolution. She contends: the family court erred by failing to grant a continuance despite the fact she and her attorney were effectively unavailable due to medical reasons and failing to award attorney fees and costs early enough in litigation to put the parties on an equal playing field. She further contends certain of the court's rulings are not supported by the evidence. We affirm the order, concluding Michelle's arguments are waived because they fail to address the merits of Judge Parker's ruling on the motion to set aside.
FACTUAL AND PROCEDURAL BACKGROUND
Scott and Michelle Hughes[1] were married in November 1993. They had two children. Scott filed for dissolution of marriage in March 2014. The date of separation was March 1, 2014. Michelle sought child and spousal support, which the court awarded. Michelle moved ex parte to continue the trial on Scott's petition, but the court denied the motion.
On November 14, 2014, following a trial, Judge Brown awarded child and spousal support to Michelle, and made further orders regarding child custody and visitation as well asdivision of the marital residence and other property. Notice of entry of judgment of the dissolution was filed on January 5, 2015.
In February 2015, Michelle filed a motion seeking "clarification" of Judge Brown's order, and rulings on various other matters.
At a May 2015 hearing, Judge Parker denied the motion: "There is no such thing as a motion for clarification. There are procedures whereby the judge who makes a ruling can correct the ruling or amend it before it becomes final order if something—if there's a problem brought to his or her attention. [¶] The problem here, that wasn't done, and a judgment was entered. . . . [¶] Now, what that appropriate posttrial motion is, I can't say for sure. It sounds an awful lot to me like a motion for set aside under Family Code [section] 2122. But it wasn't teed up that way. And there are certain factual findings that I need to make, certain showings that the respondent would have a burden of proof on, that have not been a part of the briefing. So I guess my tentative is to say I'm denying the motion for clarification. But if there's an appropriate posttrial motion that can be brought, you're free to do that." Judge Parker concluded that Judge Brown had neglected to rule on Scott's pension plan from his employment at Northrop Grumman; therefore, she ordered it divided equally between the parties. Judge Parker also ruled: "I'm not going to issue any fees or sanctions . . . . I think I would reserve in the event that a future posttrial motion is brought. I just don't see a sanctionable issue here as far as the other side is concerned."
Days later, Michelle moved to set aside the judgment of dissolution under Family Code section 2121 et seq., and requested the court order sanctions and attorney fees. She argued that Judge Brown erred by denying her four requests for attorney fees and costs. She added: "More egregious is the fact that [Judge Brown] also denied [her] one and only request for a continuance . . . when both she and her attorney had just had major surgery only 3 to 4 weeks before the trial date, which was only eight months after the filing of the petition in this matter." (Some capitalization omitted.) Michelle argued Scott had committed fraud by failing to produce discovery, thus hindering Michelle's efforts to prove breaches of fiduciary duty. Scott opposed the motion.
On September 14, 2015, Judge Parker rejected Michelle's contention that Scott had withheld documents showing numerous breaches of fiduciary duty, including wasteful and frivolous spending on his girlfriend and other things, and taking out loans from an undisclosed community 401k. The court ruled that Michelle's contention regarding the allegedly withheld documents "are simply the hook that [Michelle] has cast to bring this case within the scope of the set-aside statute. [¶] [Her] actual complaints have very little to do with these documents and much more to do with her objections to the manner in which Judge Brown conducted the trial and the nature of his rulings." Judge Parker denied the motion: "Here is the basic problem: None of these issues has anything to do with fraud. . . . [I]f, as [Michelle] contends, [Scott] withheld requested documents, that is not in itself fraud within the meaning of the statute. [Michelle] has produced no evidence that the information withheld, if any, was critical to her case and thus she could not participate fully in the proceeding. [¶] Further, [Michelle] failed to show, as the statute requires, how the outcome of the case would have been more favorable to her had discovery taken place or had the trial judge granted fees or continued the trial. [¶] In sum, this is really about judicial error. That is an appellate issue, and I'm not an appellate court."An order after judgment was filed on October 9, 2015, and Michelle filed a notice of appeal on December 8, 2015.
DISCUSSION
Michelle has not shown, with reference to argument and legal citation, that Judge Parker prejudicially erred by denying her motion to set aside the January 5, 2015 judgment. As a general rule, "[a] judgment or order of the lower court is presumed correct [with] [a]ll intendments and presumptions . . . indulged to support it on matters as to which the record is silent." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, italics omitted.) To obtain reversal, the appellant must affirmatively demonstrate error on the record before the court. (Ibid.) Further, an appellate court is not required to independently search the record for errors, or "consider alleged errors where the appellant merely complains without a pertinent argument." (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) "When an appellant fails to raise a point, or asserts it but fails to support it with a reasoned argument and citations to authority, we treat the point as waived." (Benach v. County of Los Angeles, at p. 852.) Nowhere in Michelle's opening brief does she set forth the requirements for making out a claim under Family Code section 2121 et seq., or explain how Judge Parker erred by failing to appropriately apply those statutes in denying Michelle's motion. Instead, Michelle's arguments amount to a relitigation of matters relating to the merits of Judge Brown's ruling on the dissolution proceedings. Accordingly, we deem Michelle's contentions waived.
An appellate argument is not merely a rehash of arguments unsuccessful at trial, but a carefully honed assertion of legal error and resulting prejudice. The job of the appellant is to demonstrate to this court the trial court erred in specific ways that resulted in identifiable prejudice to the parties. This court will not presume prejudice; it is Michelle's obligation to demonstrate prejudice through reasoned arguments. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802; Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106 ["[O]ur duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice."].) Michelle has not demonstrated error or prejudice sufficient to overcome the presumption of correctness afforded to the family court's order. (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.)
DISPOSITION
The order denying appellant's motion to set aside the judgment of dissolution is affirmed. Scott Hughes is awarded costs on appeal.


O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


HUFFMAN, J.


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[1] We refer to the parties by their first names to avoid confusion, and intend no disrespect.