Marriage of Perez CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. S43227
- Trial judge
- Stephanie Sontag
- Outcome
- affirmed — Affirmed.
- Area
- family
- Panel
- McINTYRE (author), Richard D. Huffman, Sr., Gilbert Nares
Analysis
The trial court dissolved the marriage and ordered the appellant to pay one-half of the community debts. The Court of Appeal affirmed the judgment, finding that the appellant failed to provide a sufficient record to demonstrate that the trial court abused its discretion.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Ordering appellant to pay one-half of the community debts“Here, Juanita contends the family court erred when it ordered her to pay one-half of the community debts because she is sick, homeless and living in a temporary shelter.” | abuse of discretion | not reached | agree with court The appellate court did not reach the merits of the debt division because the appellant failed to provide a sufficient record to demonstrate error. The court affirmed the judgment based on the presumption of correctness and the appellant's failure to meet her burden of proof. |
Authorities
- relied: In re Marriage of Arceneaux (1990) 51 Cal.3d 1130 — A judgment or order is presumed correct on appeal.
- relied: Ketchum v. Moses (2001) 24 Cal.4th 1122 — It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error.
- relied: Nwosu v. Uba (2004) 122 Cal.App.4th 1229 — A self-represented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys.
- relied: Ford v. State of California (1981) 116 Cal.App.3d 507 — On an appeal on the judgment roll, error must be affirmatively shown by the record and will not be presumed on appeal.
- relied: In re Marriage of Walrath (1998) 17 Cal.4th 907 — Debts incurred after the date of marriage but before the date of separation must be divided equally.
- relied: In re Marriage of Sivyer-Foley & Foley (2010) 189 Cal.App.4th 521 — The judgment dividing the marital estate is reviewed for abuse of discretion.
The appellate opinion: sound with gaps — The opinion is procedurally sound as it correctly applies the rules governing appeals on the judgment roll and the burden of proof for the appellant. However, it is a short, unpublished opinion that relies entirely on the absence of a record to affirm, without addressing the specific legal arguments regarding the appellant's financial condition.
How this analysis was made · dispute it
unusual dispositionThe family court dissolved the Perez marriage and, in a judgment entered on a minute order, found that several debts (Washington Mutual, Wells Fargo, telephone, Union Bank, and a 1999 auto loan) were community debts to be divided equally between the spouses. On appeal, the self-represented wife argued she should not have to pay half because she was sick and homeless, but the Court of Appeal affirmed because she proceeded on a clerk's transcript only, and the judgment-roll record did not affirmatively show any error.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Order dividing community debts equally between the parties under Family Code section 2622, subdivision (a)“Accordingly, she has not shown the family court abused its discretion when dividing the community debts and the judgment must be affirmed.” | abuse of discretion | correct | agree with court The appellant elected a clerk's transcript only, so the appeal is on the judgment roll and error must appear on the face of the record; equal division of debts incurred during marriage is the statutory default under section 2622(a), so an equal division is not facially erroneous. The court correctly applied the presumption of correctness and the appellant's burden to furnish an adequate record (Arceneaux, Ketchum, Ford). Appellant's hardship arguments depend on evidence outside the record and are not reviewable on a judgment-roll appeal. |
Authorities
- relied: In re Marriage of Arceneaux (1990) 51 Cal.3d 1130 — A judgment or order is presumed correct on appeal.
- relied: Ketchum v. Moses (2001) 24 Cal.4th 1122 — The appellant bears the burden of providing an adequate record to assess claimed error.
- relied: Nwosu v. Uba (2004) 122 Cal.App.4th 1229 — A self-represented litigant is held to the same rules of appellate procedure as a represented party.
- relied: Ford v. State of California (1981) 116 Cal.App.3d 507 — On a judgment-roll appeal, error must affirmatively appear on the face of the record, all presumptions favor the judgment, and sufficiency of the evidence is not reviewable.
- relied: In re Marriage of Walrath (1998) 17 Cal.4th 907 — Community debts incurred during marriage before separation are generally divided equally.
- relied: In re Marriage of Sivyer-Foley & Foley (2010) 189 Cal.App.4th 521 — A judgment dividing the marital estate is reviewed for abuse of discretion.
The appellate opinion: sound — The opinion correctly applies the presumption of correctness and judgment-roll appeal rules to an appellant who provided only a clerk's transcript, and the equal division of community debts matches the statutory default under Family Code section 2622(a), so no error appears on the face of the record. The opinion is brief and does not discuss whether any exception (such as section 2622(b) for debts exceeding assets) might apply, but nothing in the limited record raised that issue.
Opinion
Filed 4/30/13 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 JUANITA and FRANCISCO E. PEREZ. D0061501 JUANITA PEREZ, Appellant, (Super. Ct. No. D S43227)
v. FRANCISCO E. PEREZ, Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.
Juanita Perez, appearing in propria persona, appeals a judgment dissolving her marriage to Francisco E. Perez. She contends the family court erred when it ordered her to pay one-half of the community debts. Juanita failed to present a sufficient record to show that the family court erred. Accordingly, we must affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND In September 2010, Juanita petitioned for a dissolution of marriage. The parties were married for about 16 years before they separated and they have two children.
Among other things, Juanita asked the court to determine property rights for the parties.
In a minute order dated July 2011, the family court dissolved the marriage, granted primary physical custody of the children to Francisco and allowed Juanita reasonable visitation. The court indicated that it considered the Family Code section 4320 factors, but reserved on the issues of child and spousal support. Among other things, it found that the debts with Washington Mutual, Wells Fargo, the telephone company, Union Bank and a 1999 auto loan were community debts to be divided equally between the parties. In January 2012, the family court entered a judgment in conformance with the minute order.
Juanita timely appealed.
DISCUSSION
I. General Legal Principles It is a fundamental proposition that a judgment or order is presumed correct on appeal. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error.
(Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140–1141.) Although Juanita is representing herself in propria persona, she is not exempt from the rules governing appeals. A self-represented party is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants having attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246–1247.)
2 Because Juanita has elected to proceed on a clerk's transcript, we must treat this as an appeal "on the judgment roll," to which the following rules apply: " 'Error must be affirmatively shown by the record and will not be presumed on appeal [citation]; the validity of the judgment on its face may be determined by looking only to the matters constituting part of the judgment roll [citation]; where no error appears on the face of a judgment roll record, all intendments and presumptions must be in support of the judgment [citation] [citation]; the sufficiency of the evidence to support the findings is not open to consideration by a reviewing court [citation]; and any condition of facts consistent with the validity of the judgment will be presumed to have existed rather than one which would defeat it [citation].' " (Ford v. State of California (1981) 116 Cal.App.3d 507, 514; Cal. Rules of Court, rule 8.163.)
II. Analysis Generally, debts incurred after the date of marriage but before the date of separation must be divided equally. (Fam. Code, § 2622, subd. (a); In re Marriage of Walrath (1998) 17 Cal.4th 907, 924.) We review the judgment dividing the marital estate for abuse of discretion. (In re Marriage of Sivyer-Foley & Foley (2010) 189 Cal.App.4th 521, 526.)
Here, Juanita contends the family court erred when it ordered her to pay one-half of the community debts because she is sick, homeless and living in a temporary shelter.
The clerk's transcript, however, does not contain any evidence supporting her contentions or otherwise showing how the family court divided the community assets and debts.
3 Accordingly, she has not shown the family court abused its discretion when dividing the community debts and the judgment must be affirmed.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
NARES, J.
Cites, in this corpus
- In Re Marriage of Sivyer-Foley & Foley B214462 · 2010-10-21
- Nwosu v. Uba No. H026182 · 2004-10-01
- Ketchum v. Moses S077350 · 2001-02-26
- Walrath v. Walrath No. S059170 · 1998-04-06
- In Re Marriage of Arceneaux S010627 · 1990-12-13
- Ford v. State of California Civ. 5537 · 1981-03-04