In re Marriage of Sakov, A112701 (Cal. App. 1/22/2009)
| Decision Date | 22 January 2009 |
| Docket Number | A118262,A112701,A118009,A115566,A116796,No. F071155,F071155 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re the Marriage of JOSHUA SAKOV and ESTER ADUT. JOSHUA SAKOV, Respondent, v. ESTER ADUT, Appellant. |
These five consolidated appeals have been filed in this court by appellant Ester Adut in a dissolution matter initiated in 2002. Appellant appeals from the trial court's final judgment on custody, and rulings set forth in various minute orders. She also appeals the final judgment on reserved issues, including child and spousal support. She appeals an order denying her oral motions for attorney fees and for a referral to Family Court Services. She appeals orders denying her posttrial motions to modify child and spousal support. Finally, she appeals the order denying her requests for predissolution child and spousal support, as well as compensation for time spent caring for her children when respondent was traveling out of the country. We affirm all the judgments and orders.
Respondent Joshua Sakov and appellant were married in July 1989.2 Their three children were born on the same day in June 1996. A petition for dissolution was filed on July 18, 2002.
On December 23, 2002, appellant filed an amended order to show cause requesting child and spousal support, attorney fees, and other relief. Respondent filed his responsive declaration on January 8, 2003.
On January 15, 2003, the trial court held a hearing on various issues, primarily focusing on custody arrangements for the children. The court declined to order child and spousal support as both parties were then unemployed. The court reserved the issues of child and spousal support to the next scheduled hearing date.
A hearing was held on March 4, 2003; however, support issues were not discussed. The next hearing was scheduled for March 17, 2003, but the parties did not appear and the matter was dropped from the calendar.
On October 22, 2003, appellant filed another order to show cause. A hearing was held on November 25, 2003.
On May 13, 2004, the court filed its order after hearing, requiring respondent to pay appellant child support in the amount of $1,626 per month and spousal support in the amount of $1,359 per month beginning on November 1, 2003. In arriving at this calculation, the court imputed a $3,750 monthly income to appellant. The order also required the parties each to pay one-half of the child care costs. In addition, appellant was ordered to pay one-half of the private school tuition for the parties' daughter.
On August 24, 2004, the parties entered into a stipulation suspending child and spousal support pending trial. The stipulation provides that the court would have the authority to set support retroactive to February 19, 2004.
Trial commenced in January 2005.
On July 5, 2005, appellant made oral motions requesting attorney fees and an order referring the issue of child custody to Family Court Services. The trial court denied the request for attorney fees, based on a finding that the oral motion was not procedurally proper. The court denied the referral request because a custody evaluation had already been completed by Dr. Alan Leavens, the court appointed custody evaluator. The court announced that the trial would continue on July 19, 2005, at 2 p.m.
On July 19, 2005, the parties were notified by telephone that the matter was continued to August 3, 2005, at 9 a.m. Appellant failed to appear at the August 3d hearing. The matter proceeded in her absence.
On August 9, 2005, appellant filed a motion requesting that each party pay for its own child care costs.
On October 27, 2005, appellant filed a 17-page objection to the family law commissioner pursuant to Code of Civil Procedure section 170.3, subdivision (c).3
On October 28, 2005, the court executed its final judgment on custody, awarding the parties joint legal and physical custody.
On October 31, 2005, the court filed an order striking appellant's objection to the commissioner.
On November 1, 2005, the trial court's final judgment on custody was filed. At a hearing held on that same day, the court issued various minute orders.
On November 28, 2005, appellant filed a writ petition in this court challenging the orders striking her two disqualification motions. (A112129.) We denied the petition on November 30, 2005.4
The trial concluded on December 5, 2005. The court orally set forth its statement of decision on the reserved issues of spousal and child support.
On December 28, 2005, appellant filed a notice of appeal from unidentified judgments or orders filed on November 1, 2005, and December 13, 2005 (Appeal A112701). We have construed her notice of appeal to include (1) the final judgment on custody, (2) the minute order issued on November 1, 2005, and (3) the order filed on December 13, 2005, documenting the denial of her two July 5, 2005 oral motions.
On May 4, 2006, appellant filed an at-issue memorandum requesting trial on the remaining property issues and demanding a jury trial on child support, and filed a request for a status conference.
On August 8, 2006, the court filed its statement of decision and final judgment on reserved issues. It also filed an order requiring appellant to pay one-third of respondent's child care costs.
On August 16, 2006, the court "took the issues of support, property issues and date of separation under submission" and ordered the parties to submit trial briefs.
On August 30, 2006, appellant filed her notice of intent to move for a new trial.
On September 27, 2006, the court struck the at-issue memorandum filed by appellant on May 4, 2006, on the grounds that a judgment had been entered in the case and because she had filed a motion for new trial.
On October 10, 2006, appellant filed a trial brief.
On October 12, 2006, appellant filed her notice of appeal in appeal A115566.
On October 26, 2006, the court found that it had no jurisdiction to rule on appellant's motion for a new trial because jurisdiction on the contested issue was with the Court of Appeal.5
We begin by setting forth the basic principles of appellate review. First, "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Because error is never presumed, it is every appellant's duty to demonstrate error in the record the appellant produces before the reviewing court. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 628, p. 704.)
Second, (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822-823.)
Third, (Williams v. Williams (1971) 14 Cal.App.3d 560, 565.) To that end, California Rules of Court, rule 8.204(a)(1)(C), provides that a brief must "Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears."
Fourth, every argument presented by an appellant must be supported by both coherent argument and pertinent legal authority. (Berger v. California Ins. Guarantee Assn. (2005) 128 Cal.App.4th 989, 1007.) If either is not provided, the appellate court may treat the issue as waived. (Ibid.)
We observe that applying these fundamental principals of appellate review has been made difficult in view of the record before us. The record and citations supplied to us by appellant are convoluted, and the arguments on appeal are frequently unsupported by citations to the record and legal authority. It is not this court's responsibility to wade through this voluminous record in search of support for appellant's arguments.
Appellant filed multiple unsuccessful objections to the family law commissioner during these proceedings. She now claims that the judgments and orders appealed from are void because the commissioner was disqualified under section 170.3, subdivision (c)(4).6 This claim is not subject to review on appeal and, in any event, lacks merit.
A ruling regarding the disqualification of a judge "is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal . . . ." (§ 170.3, subd. (d).) " (PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 971.)
As appellant admits, she filed writ petitions...
To continue reading
Request your trial