Marriage of Perez CA4/1

California Court of Appeal · D066309 · 2015-06-12 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. DS49829
Trial judge: Paula S. Rosenstein
Outcome: affirmed — Affirmed.
Area: family
Panel: Gilbert Nares (author), Judith D. McConnell, Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T02:55Z · confidence high

The trial court dissolved the marriage, ordering Perez to pay $1,800 per month in spousal support (increasing to $2,700 upon child support termination) and an equalizing payment of $14,276.50, while adopting the Family Court Services recommendation for visitation. The Court of Appeal affirmed the judgment, finding that Perez failed to provide a sufficient record on appeal to demonstrate error.

Ruling reviewed	Standard	The court	The model
Spousal Support Order “The record before us shows no error; accordingly, we must affirm the judgment.”	abuse of discretion	correct	agree with court The court applied the presumption of correctness and the duty to provide a record. Because the appellant did not designate the relevant portions of the record (such as the income and expense declarations or the specific evidence regarding ability to pay), the appellate court could not review the merits of the support calculation and thus affirmed based on the lack of a record to support the claim of error.
Child Visitation Order “The record before us shows no error; accordingly, we must affirm the judgment.”	abuse of discretion	correct	agree with court The court noted that the trial court adopted the Family Court Services recommendation. The appellant failed to include the recommendation or relevant testimony in the designated record. Consequently, the appellate court could not assess whether the trial court abused its discretion in adopting the recommendation, leading to an affirmance due to insufficient record.
Property Division and Debt Allocation “The record before us shows no error; accordingly, we must affirm the judgment.”	abuse of discretion	correct	agree with court The appellant challenged the allocation of debts and the equalizing payment. However, the opinion states that the appellant did not ask to have included in the clerk's transcript documents bearing on his contentions, such as exhibits and income declarations. Without this record, the appellate court could not verify the trial court's calculations or characterization of assets, resulting in an affirmance.

Authorities

relied: Denham v. Superior Court (1970) 2 Cal.3d 557 — Establishes the presumption that the trial court's judgment is correct on appeal.
relied: Brewer v. Simpson (1960) 53 Cal.2d 567 — Supports the rule that all inferences and intendments are adopted to affirm the judgment unless the record expressly contradicts them.
relied: Nielsen v. Gibson (2009) 178 Cal.App.4th 318 — Cites the standard of review regarding the presumption of correctness and the adoption of inferences to affirm.
relied: Niederer v. Ferreira (1987) 189 Cal.App.3d 1485 — States that it is the appellant's duty to present a record allowing the appellate court to determine if error occurred; failure results in affirmance.
relied: In re Marriage of Wilcox (2004) 124 Cal.App.4th 492 — Supports the principle that the appellate court will not fulfill the appellant's responsibilities to designate the record on appeal.
relied: In re Marriage of Gavron (1988) 203 Cal.App.3d 705 — Defines the Gavron warning and the obligation of the supported spouse to make good-faith efforts to become self-sufficient.

The appellate opinion: sound — The opinion is procedurally sound because it correctly applies the well-established rule that an appellant must provide a sufficient record to support their claims, and the failure to do so results in affirmance. The court accurately cites binding authority to support the conclusion that it cannot review issues not supported by the designated record.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

After a three-day unreported trial, the San Diego Superior Court entered a judgment dissolving the Perez marriage that adopted a Family Court Services visitation recommendation, divided community assets and debts with a reduced equalizing payment, and ordered Perez to pay $1,800 per month in spousal support, increasing to $2,700 once child support terminates. On Perez's pro per appeal, the Court of Appeal affirmed without reaching the merits, holding that the absence of a reporter's transcript and of the relevant exhibits, declarations, and orders left it with a record showing no error under the presumption of correctness.

Ruling reviewed	Standard	The court	The model
Spousal support award of $1,800 per month, stepping up to $2,700 per month upon termination of child support, after consideration of Family Code section 4320 factors “Based on the evidence, the Court orders [Perez] shall pay [Morales] $1800 per month in spousal support effective [January 1, 2014]. Also, the Court orders once child support terminates, spousal support shall increase to $2700 per month.”	unclear	correct	agree with court The appellate court did not articulate the usual abuse-of-discretion standard; it applied the presumption of correctness (Denham) and the rule that an appellant who fails to furnish an adequate record suffers affirmance (Niederer, Wilcox). Because the trial was unreported and Perez omitted Morales's income and expense declaration and exhibits, the court could not evaluate whether the section 4320 analysis or the amount was supported. Perez's I&E figures, recited in the opinion, do suggest the award is large relative to his stated net income, and the automatic future step-up appears on the face of the judgment, but the court's refusal to speculate without the evidentiary record is consistent with settled authority. Agreement rests on the procedural ground, not on any merits assessment.
Child custody and visitation order adopting the May 29, 2014 Family Court Services recommendation “The court considered a recommendation from family court services dated May 29 and adopted the recommendation as its order.”	unclear	correct	agree with court Perez complained Morales denied him visitation and asked for open visitation, but he did not designate the Family Court Services recommendation or any transcript of the custody testimony. With no record of what the order says or what evidence supported it, the appellate court properly presumed the order correct. The disposition on this issue is purely procedural and well supported by the cited authorities.
Property and debt division: confirming assets and debts with an equalizing payment reduced to $14,276.50 and allocating the Visa bill and 2012 tax debt to Perez “to make the equalizing payment $14,276.50 and ordered Perez to pay the Visa bill and 2012 tax debts.”	unclear	correct	agree with court Perez asserted he submitted proof that half the debts were Morales's, but the exhibits were not included in the clerk's transcript and there is no reporter's transcript of the June 5 testimony on property and debt. Under Niederer and Wilcox the appellate court will not supply the appellant's record for him. The result follows directly from the inadequate-record rule; there is no basis in the opinion to find error.
Failure to enforce a prior Gavron warning or impute income to Morales despite Perez's 2011 and 2012 motions “He complains the court did not enforce the Gavron warning on Morales”	unclear	not reached	agree with court The court noted Perez did not include the order containing the Gavron warning in the record and treated the claim as unreviewable along with the rest. The opinion did not explain that a Gavron warning bears on later modification based on failure to become self-supporting rather than on an initial award, nor that the trial court expressly found Morales unable to work for medical reasons, which would undercut imputation. The outcome is defensible on the record ground, but the reasoning on this point is thin.

Authorities

relied: Denham v. Superior Court (1970) 2 Cal.3d 557 — A judgment or order of the trial court is presumed correct and error must be affirmatively shown by the appellant.
relied: Brewer v. Simpson (1960) 53 Cal.2d 567 — All intendments and inferences are indulged to support the judgment on matters as to which the record is silent.
relied: Nielsen v. Gibson (2009) 178 Cal.App.4th 318 — Restates the presumption of correctness and the appellate court's duty to adopt inferences supporting the judgment unless the record expressly contradicts them.
relied: Niederer v. Ferreira (1987) 189 Cal.App.3d 1485 — It is the appellant's duty to present a record from which error can be determined; failure to do so results in affirmance.
relied: In re Marriage of Wilcox (2004) 124 Cal.App.4th 492 — The reviewing court will not fulfill the appellant's responsibility to furnish an adequate record and supporting citations.
relied: In re Marriage of Gavron (1988) 203 Cal.App.3d 705 — A supported spouse must be made aware of the obligation to become self-supporting before failure to do so can constitute a change of circumstances warranting modification of spousal support; cited to frame appellant's argument.

The appellate opinion: sound with gaps — The court correctly applied the presumption of correctness and the inadequate-record rule, which dispose of challenges that depend on unreported testimony and undesignated exhibits. It did not, however, separately consider whether any claim (such as the automatic step-up to $2,700 appearing on the face of the judgment, or the function of a Gavron warning) could be assessed on the clerk's transcript alone, leaving a small gap in an otherwise defensible procedural affirmance.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 6/12/15 Marriage of Perez 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 MARIA C. and BALTAZAR PEREZ, JR. D066309 MARIA CLEOTILDE GONZALEZ MORALES, (Super. Ct. No. DS49829) Respondent, v. BALTAZAR PEREZ, JR., Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Paula S.

Rosenstein, Judge. Affirmed.

Baltazar Perez, Jr., in pro. per., for Appellant.

Maria Cleotilde Gonzalez Moralez, in pro per., for Respondent.

Baltazar Perez, Jr. appeals (Perez) following the June 2014 judgment dissolving his marriage to Maria Cleotilde Gonzalez Morales (Morales). Perez challenges the spousal support order, the child visitation order and the property division. We affirm. BACKGROUND The trial took place on June 4, 5 and 16, 2014. On June 4, Perez waived his right to receive a final declaration of disclosure (Fam. Code, § 2105, subd. (b))1 from Morales.

The court heard testimony from Morales's witness, Elivira Perez; from Perez's witness, Dana Hastings; and heard testimony regarding custody and visitation from Morales and Perez. The court considered a recommendation from family court services dated May 29 and adopted the recommendation as its order. Morales and Perez then testified concerning spousal support.

On June 5, 2014, Morales and Perez testified concerning issues involving personal property, real property, community debt and an income tax return. Morales testified about her income and Perez testified about "his income on his paycheck and his retirement."

On June 16, 2014, the court entered a judgment of dissolution. The court confirmed the parties' assets and debts with a net value of $24,776.50 for Morales and a net value of $64,776.50 for Perez and an equalizing payment of $20,000 from Perez to Morales. The court subtracted a $5,000 Visa bill and Morales's "portion of the 2012 1 The final declaration of disclosure includes: "(1) All material facts and information regarding the characterization of all assets and liabilities. [¶] (2) All material facts and information regarding the valuation of all assets that are contended to be community property or in which it is contended the community has an interest. [¶] (3) All material facts and information regarding the amounts of all obligations that are contended to be community obligations or for which it is contended the community has liability. [¶] (4) All material facts and information regarding the earnings, accumulations, and expenses of each party that have been set forth in the income and expense declaration." (Fam. Code, § 2105, subd. (b).) 2 taxes of $753" from the $20,000 to make the equalizing payment $14,276.50 and ordered Perez to pay the Visa bill and 2012 tax debts. The court stated: "The Court has considered the [Family Code section 4320] factors including parties['] ages, standard of living (middle class), income, [Morales]'s inability to work (medical reasons), [Morales]'s work history (lack of), [Perez]'s ability to pay and length of the marriage. Based on the evidence, the Court orders [Perez] shall pay [Morales] $1800 per month in spousal support effective [January 1, 2014]. Also, the Court orders once child support terminates, spousal support shall increase to $2700 per month." The court referred "issues of child support, medical arrears, dental arrears and spousal support arrears" to the judicial officer in the family support division.

Perez's income and expense declaration, dated May 20, 2014, reflects the following. Perez was 63 years old and a resident of Illinois. He had a high school diploma, two years of post-secondary education, vocational training in hazardous waste, and was licensed as a contracting officer representative. On July 30, 2012, he began working about 40 hours per week as an environmental protection specialist with a gross hourly pay of $33.34. The previous month, his gross salary was $5,334. His average monthly salary was $2,667. He had two deductions: $2,820 in required retirement payments and $3,500 in health insurance premiums. He received a monthly pension payment of $2,700, monthly disability income of $250.00, and monthly rental property income of $450.00. Thus, his total income for the previous month, minus the deductions, amounted to $2,414, and his total average monthly pay, minus the deductions, was negative $253. Perez's monthly expenses were $3, 235. His installment payments and 3 debts totaled $74,109.68 after total payments of $4,667.68 in May; both of these amounts included $1,779.68 in child support. Perez and Morales had one minor child,2 age unspecified, who lived with Morales 100 percent of the time; Morales did not let the child "be with [Perez] on any vacation . . . or when [he] came to San Diego." Perez had health insurance for the child available though his job at a cost to him of $409.96. The child's health care cost not covered by insurance was $250. Perez's travel expenses for visitation amounted to $850.00.

DISCUSSION

Perez contends the order for $1,800 in spousal support is more than 55 percent of his income, an "absurd" amount because he is paying child support and "all medical, dental and vision expenses for [J., T. and Maria]."3 Perez also contends the increase in spousal support to $2,700 upon termination of child support is more than his military retirement. He complains the court did not enforce the Gavron warning on Morales (In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712 ["Inherent in the concept that the supported spouse's failure to at least make good-faith efforts to become self-sufficient can constitute a change in circumstances which could warrant a modification in spousal support is the premise that the supported spouse be made aware of the obligation to become self-supporting."]), despite motions in 2011 and 2012. Perez contests the amount of debts he was required to pay, stating, "I submit proof of debt for you to 2 In his opening brief, Perez appears to refer to more than one child.

3 The record does not disclose who J. and T. are, or whether Maria is Morales or someone else. 4 consider half of the debts that are [Morales's]." Perez asserts that "for the last several years [Morales] has denied me visitation to my daughter's [sic]" and asks "for an open visitation to see my daughter's [sic]." Perez avers that Morales falsified the address she submitted to the court. Perez concludes that the court failed to review exhibits and "all the facts" and incorrectly applied the law. He asks this court to admonish Morales to seek employment, to impute income to her, to order an examination to determine her ability to work and to review and give Perez credit for his payment of "all medical, dental and vision" expenses.

"On appeal, we must presume the trial court's judgment is correct. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In service of that rule, we adopt all intendments and inferences to affirm the judgment or order unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)" (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) "It is an appellant's duty to present a record from which the appellate court can determine whether there has been error; failure to do so results in affirmance." (Niederer v. Ferreira (1987) 189 Cal.App.3d 1485, 1509.)

The trial court proceedings were not reported. In his notice designating record on appeal, Perez did not ask to have included in the clerk's transcript documents bearing on his contentions, such as exhibits, Morale's income and expense declaration, the Family Court Services recommendation and the order containing the Gavron warning. "[W]e will not take it upon ourselves to fulfill [Perez's] responsibilities." (In re Marriage of Wilcox (2004) 124 Cal.App.4th 492, 499.) The record before us shows no error;

accordingly, we must affirm the judgment.

5 DISPOSITION

The judgment is affirmed.

NARES, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

Cites, in this corpus

Nielsen v. Gibson C059291 · 2009-10-13
Wilcox v. Wilcox No. D043854 · 2004-11-29
In Re the Marriage of Gavron B027510 · 1988-07-11
Niederer v. Ferreira B013661 · 1987-02-09
Denham v. Superior Court L.A. 29704 · 1970-05-06
Brewer v. Simpson L. A. 24587 · 1960-02-09