Marriage of Minkovitch CA2/5 ( 2020 )

Filed 10/16/20 Marriage of Minkovitch CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re the Marriage of LINA and B297022, B300374,
YAN MINKOVITCH. B301994
(Los Angeles County
Super. Ct. No. BD630832)
LINA MINKOVITCH,
Respondent,
v.
YAN MINKOVITCH,
Appellant.
APPEALS from a judgment and postjudgment orders of the
Superior Court of Los Angeles County, John A. Slawson and
Helen Zukin, Judges. Affirmed in part and dismissed in part.
Yan Minkovitch, self-represented litigant, for Appellant.
No appearance for Respondent.
__________________________
I. INTRODUCTION
In this consolidated appeal, appellant Yan Minkovitch
(husband) challenges a judgment of dissolution and several
postjudgment orders. In case number B297022, husband
contends that the trial court erred in: allocating the parties’
former home (residence) to Lina Minkovich (wife); allocating a
tax liability solely to husband; and calculating husband’s income
for purposes of child support. In case number B300374, husband
challenges the court’s denial of his postjudgment motion to
“clarify” an earlier order and the court’s denial of his motion to
set aside the judgment pursuant to Code of Civil Procedure
section 473, subdivision (b). Finally, in case number B301994,
husband challenges the court’s denial of his motion to modify the
custody order. We will dismiss the appeal from the order denying
the motion for clarification. We otherwise affirm.
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II. PROCEDURAL BACKGROUND
A. Dissolution Petition
Husband and wife married on April 6, 2007, and had two
daughters together. They separated on November 17, 2015. On
November 20, 2015, wife petitioned for dissolution of marriage.
B. Judge Tamzarian’s August 9, 2016, Order
On June 24, 2016, following the sale of the residence, wife
filed a request for an order allowing immediate distribution of the
sales proceeds from the escrow account.
On August 9, 2016, Judge Armen Tamzarian ordered,
among other things, that:
“[Wife] may withdraw $10,000 from the escrow account and
h[a]lf for deposit. If [husband] is more than 5 days late on any
support payment, [wife’]s counsel may withdraw the support
amount. [Wife’s] counsel is to immediately notify [husband] in
writing and reflect the remaining balance in the account.”
C. Dissolution Trial
The dissolution trial commenced on November 15, 2018,
before Judge John A. Slawson. It concluded on
December 19, 2018.
On April 2, 2019, Judge Slawson issued the judgment of
dissolution. Among other things, the court granted the parties
joint custody of the children. The court also ordered husband to
pay child support.
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D. Husband’s Notice of Appeal and Subsequent Motions
On April 15, 2019, husband filed three documents with the
trial court. First, he filed a notice of appeal from the
April 2, 2019, judgment.
Second, he filed a request for order, specifically, “FOR
CLARIFICATION OF THE COURT’S ORDER OF 8/9/2016,
MADE BY [JUDGE] ARMEN TAMZARIAN.”
Third, he filed a request for relief from the judgment of
dissolution pursuant to Code of Civil Procedure section 473,
subdivision (b).
Husband’s request for clarification was assigned to Judge
Helen Zukin, who conducted a hearing on the request on
May 15, 2019. Judge Zukin denied husband’s request.
On May 30, 2019, Judge Slawson heard the motion for
relief from judgment. The court concluded that it did not have
jurisdiction to rule on the motion and on July 2, 2019, denied it.
On August 29, 2019, husband filed notices of appeal,
purporting to appeal from the May 15, 2019, and July 2, 2019,
orders.
E. Request for Modification of Child Custody and Visitation
On June 24, 2019, husband filed a request to modify the
child custody order.
On September 11, 2019, Judge Zukin, following a hearing,
denied husband’s request for modification.
On October 18, 2019, husband filed a notice of appeal.
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III. DISCUSSION
A. Appeal of Judgment of Dissolution
1. Background
During the marriage, in February 2013, husband and wife
purchased the residence. Husband, who was, among other
things, a real estate agent, acted as the agent for the purchase.
On or about February 15, 2013, the sellers transferred the
residence by grant deed to wife, “a married woman, as her sole
and separate property.” At around the same time, husband
signed a quitclaim (interspousal deed), transferring his interest
in the residence to wife, as her sole and separate property.1
In explaining why the transaction had been structured in
this manner, husband testified that he wanted to apply the
commission he earned from the transaction to the down payment
for the residence but would be unable to do so if he were “part of
the purchase.” As to the reason for the interspousal transfer,
husband testified: “[A]t the time I was working through my tax
issues. So in order to not cloud the title with my tax issues, I
quitclaimed my interest off until I could resolve those tax issues.”
Husband’s “tax issues” included a $195,000 debt that he
owed to the IRS for his failure to pay taxes for the years 2010 and
1 We recite the facts based on husband’s testimony at trial,
which was that these documents were signed at around the same
time. The actual deeds are not part of the record on appeal.
Later, husband’s counsel contended (contrary to the testimonial
evidence) that the interspousal deed was executed prior to the
grant deed, which contention the court rejected.
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2011.2 During the course of their marriage, wife and husband
did not file joint tax returns and the IRS sought to recover the tax
debt from husband only. The IRS placed a lien on the residence.
Husband had also failed to pay taxes for years 2002 to
2006, prior to the marriage. The lien on the residence, however,
was based only on husband’s failure to pay taxes for 2010 and
2011.
Husband and wife maintained separate bank accounts
during their marriage. In 2018, wife earned $50,835.69 in wages
and had no other source of income. Wife regularly took out cash,
or “payday loans,” in order to pay her monthly bills.
Husband worked as a loan officer and real estate agent for
a company called Mortgage Mavens, for which he received
commissions, as reflected in Form 1099s. In addition, husband
controlled various other companies. Husband earned income
through both wages and commissions, as reflected in W-2s and
Form 1099s, which husband submitted for review by the court.
Husband’s Form 1099s showed the following earnings for the
following years: $182,613 for 2012, $236,544 for 2013, and
$173,817 for 2015.3
The trial court made certain findings, which it incorporated
into its judgment of dissolution. As relevant here, the court
concluded that the residence belonged to wife as her separate
2 Although wife’s counsel proffered that husband owed over
$142,000 in taxes, a notice of levy that is part of the record in
case number B301994 reflects that the total amount due, as of
August 9, 2016, was $195,286.02.
3 The parties referred to a Form 1099 for 2014 but did not
state on the record husband’s earnings for that year.
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property. The court further found that “[husband] had
experience, education, and history such that he was
knowledgeable on the interspousal transfer deed and its
consequences.”
The trial court found that the community debts exceeded
community assets. Therefore, the court exercised its discretion
under Family Code4 section 2622, subdivision (b) to allocate the
tax liability to husband only. It stated, “In exercising its
equitable abilities under the statute, the Court [finds] that it
would be completely inequitable to burden [wife] with a debt that
the [IRS] is pursuing against [husband] and not even pursuing
against [wife].”
Finally, the trial court calculated the parties’ income based
on their submitted W-2s and, in husband’s case, also his Form
1099s. The court calculated wife’s income to be $72,000 and
husband’s income to be $80,000, comprised of $21,600 from
employee wages and $58,400 from self-employment. Husband’s
counsel agreed with the court’s calculations. Further, husband
did not object after the court stated: “Let’s take our time and
make sure we’re right. But you both [counsel for husband and
counsel for wife] have agreed. So I’m going to blame it back on
you if there’s an error there somewhere.”
When the trial court asked the parties their positions on its
tentative decision to order husband to pay $131 monthly in child
support, husband’s counsel stated: “My client submits on that.
We agree with the tentative.” Husband added, “Yes, sir.”
4 Further statutory references are to the Family Code unless
otherwise indicated.
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2. Legal Analysis
On appeal, husband challenges the judgment of dissolution,
contending that the court erred in: (1) finding that the residence
was wife’s separate property, (2) allocating the tax liability solely
to him, and (3) calculating husband’s income for purposes of child
support.
“The trial court is generally required to ‘divide the
community estate of the parties equally.’ (§ 2550.) In satisfying
this mandate, ‘the court must distribute both the assets and the
obligations of the community so that the residual assets awarded
to each party after the deduction of the obligations are equal.’
[Citations.]” (In re Marriage of Walrath (1998) 17 Cal.4th 907,
924.)
As a general rule, property acquired by spouses during
marriage, including earnings, is community property. (In re
Marriage of Bonds (2000) 24 Cal.4th 1, 12; see § 760; see also In
re Brace (2020) 9 Cal.5th 903, 914–915 [Evid. Code, § 662’s title
presumption does not apply if it conflicts with § 760].) As an
exception to the general rule, “[m]arried persons may, through a
transfer or an agreement, transmute—that is, change—the
character of property from community to separate or from
separate to community. ([ ] § 850.) A transmutation of property,
however, ‘is not valid unless made in writing by an express
declaration that is made, joined in, consented to, or accepted by
the spouse whose interest in the property is adversely affected.’
([§§ 850,] 852, subd. (a).) To satisfy the requirement of an
‘express declaration,’ a writing signed by the adversely affected
spouse must expressly state that the character or ownership of
the property at issue is being changed.” (In re Marriage of Valli
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(2014) 58 Cal.4th 1396, 1400.) Further, “[i]f one spouse secures
an advantage from the transaction, a statutory presumption
arises under section 721 that the advantaged spouse exercised
undue influence and the transaction will be set aside.” (In re
Marriage of Mathews (2005) 133 Cal.App.4th 624, 628–629.) The
presumption, however, is rebutted if the advantaged spouse can
demonstrate that the disadvantaged spouse acted freely and
voluntarily, with “‘“‘“full knowledge of all the facts, and with a
complete understanding of the effect of ” the transaction.’”’
[Citation.]” (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1353.)
“‘To the extent that community debts exceed total
community and quasi-community assets, the excess of debt shall
be assigned as the court deems just and equitable, taking into
account factors such as the parties’ relative ability to pay.’
(§ 2622, subd. (b).)” (In re Marriage of Walrath, supra, 17 Cal.4th
at p. 924.)
We review the trial court’s findings on the characterization
of assets for substantial evidence. (In re Marriage of Fink (1979)
25 Cal.3d 877, 887; In re Marriage of Campi (2013) 212
Cal.App.4th 1565, 1572.) “But de novo review is appropriate
where resolution of ‘the issue of the characterization to be given
(as separate or community property) . . . requires a critical
consideration, in a factual context, of legal principles and their
underlying values, the determination in question amounts to the
resolution of a mixed question of law and fact that is
predominantly one of law.’ (In re Marriage of Davis (2004) 120
Cal.App.4th 1007, 1015 . . . , citing In re Marriage of Lehman[
(1998)] 18 Cal.4th [169,] 184.)” (In re Marriage of Rossin (2009)
172 Cal.App.4th 725, 734.)
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We review the court’s assignment of debt under section
2622, subdivision (b) for abuse of discretion. (See In re Marriage
of Vanderbeek (1986) 177 Cal.App.3d 224, 234.)
a. Residence
Husband does not dispute that the interspousal transfer
deed is a writing signed by him. Instead, he contends that the
trial court erred in allocating the residence to wife as her
separate property because it failed to consider the statutory
presumption of undue influence5 and its finding that the
residence was wife’s separate property therefore was not
supported by substantial evidence. We disagree.
First, “[w]e presume the trial court knew and properly
applied the law absent evidence to the contrary.” (McDermott
Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083,
1103.) Thus, even if the court had not referred to the
presumption of undue influence, we could presume that the court
applied it. But, here, the court stated that husband “had
experience, education, and history such that he was
knowledgeable on the interspousal transfer deed and its
consequences,” which was an implicit finding that wife had
rebutted the presumption of undue influence. That finding was
supported by evidence that husband was a real estate agent and
loan officer. Further, far from claiming that he was ignorant of
the ramifications of either the grant deed or the interspousal
deed, he testified that he had structured the transaction to
5 Husband concedes that his counsel failed to raise this
argument before the trial court. We will exercise our discretion
to consider the matter.
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transfer title to wife, in order to obtain a commission to which he
would not otherwise be entitled and to avoid encumbering the
residence with his tax liability. Thus, there was sufficient
evidence that husband acted freely and voluntarily, indeed,
strategically, with “‘“‘“full knowledge of all the facts, and with a
complete understanding of the effect of” the transaction.’’’’”
(Lintz v. Lintz, supra, 222 Cal.App.4th at p. 1353.)
b. Tax Liability
We next consider husband’s contention that the trial court
erred in allocating the tax liability solely to him. We see no
abuse of discretion in the court’s conclusion that the equities
supported such an allocation. Despite his high earnings,
husband for many years did not pay any taxes. Indeed, husband
had a long history, predating his marriage, of avoiding tax
payments. Further, husband and wife maintained separate bank
accounts during the marriage and wife frequently took out
payday loans to pay her monthly expenses, which suggested that
she did not enjoy the benefits of husband’s tax avoidance.
Finally, husband had a history of earning higher income than did
wife, which supported a finding that he was better able to repay
the tax debt. (See In re Marriage of Vanderbeek, supra, 177
Cal.App.3d at p. 235.)
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c. Imputation of Income for Child Support
Finally, we conclude that husband has waived any
challenge to the trial court’s calculation of his income. Not only
did husband fail to object to the court’s calculation of income, he
expressly submitted to the court’s tentative order that he pay
$131 monthly in child support. (In re Marriage of Calcaterra &
Badakhsh (2005) 132 Cal.App.4th 28, 37 [“‘[T]to conserve judicial
resources, any errors [to the calculation of income] must be
brought to the trial court’s attention at the trial level while the
[theoretical] error can still be expeditiously corrected’”].)
B. May 15, 2019, Order Denying Request for Clarification
1. Background
As discussed above, on August 9, 2016, Judge Tamzarian
issued an order, which stated, in part: “[Wife] may withdraw
$10,000 from the escrow account and h[a]lf for deposit. If
[husband] is more than 5 days late on any support payment,
[wife’s] counsel may withdraw the support amount. [Wife’s]
counsel is to immediately notify [husband] in writing and reflect
the remaining balance in the account.” There is no reporter’s
transcript, settled statement, or agreed statement of the hearing
in the record. Wife subsequently withdrew $10,000 from escrow
(first $10,000 withdrawal).
During the course of the dissolution trial, the trial court
found that husband owed $19,565 in child support arrearages.
Husband sought certain credits against this amount. Husband’s
counsel requested a $10,000 credit for funds that wife had
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withdrawn from escrow pursuant to the parties’ March 9, 2017,
stipulation (second $10,000 withdrawal). Husband’s counsel
expressly distinguished the second $10,000 withdrawal, which
she referred to as “the additional 10,000,” from the first $10,000
withdrawal. The parties disputed whether the March 9, 2017,
stipulation permitted reallocation of the second $10,000
withdrawal. The court referred to Judge Tamzarian the issue of
whether the second $10,000 withdrawal was subject to
reallocation.6
Husband’s counsel then requested a $10,000 credit for the
first $10,000 withdrawal. The court denied that request, noting
that because the residence was wife’s separate property, any
money that she withdrew from the proceeds of its sale should not
be credited against husband’s child support arrearages. The
court’s judgment specified that “the $10,000 drawn from the
escrow account containing proceeds from the sale of [the
residence] . . . pursuant to Court Order of August 9, 2016 subject
to reallocation, was drawn from [wife’s] separate property funds,
and as such, does not constitute a child support payment made by
[husband].” The court added that it “reserve[d] for Judge . . .
Tamzarian to determine” whether the second $10,000 withdrawal
“is subject to reallocation.”
On April 15, 2019, husband filed a request “FOR
CLARIFICATION OF THE COURT’S ORDER OF 8/9/2016,
MADE BY [JUDGE] ARMEN TAMZARIAN.” Husband asserted
that during the dissolution trial, Judge Slawson “had some
trouble determining whether or not the funds so expended were
proper[l]y allocated to defray [husband’s] support obligations.”
6 The court preliminarily credited the second $10,000 against
the arrearages.
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Husband requested that the first $10,000 withdrawal be credited
against his arrearages.
The matter was reassigned to Judge Helen Zukin, who, on
May 15, 2019, held a hearing on husband’s request. After
reviewing the dissolution trial transcript and the judgment,
Judge Zukin denied husband’s request for clarification. That
same day, the court issued a minute order denying husband’s
request.
2. Legal Analysis
“The right to appeal is wholly statutory.” (Dana Point Safe
Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.)
Husband contends that Judge Zukin’s order denying his request
for clarification is appealable pursuant to Code of Civil Procedure
section 904.1, subdivision (a)(2).7 We disagree.
“Although Code of Civil Procedure section 904.1,
subdivision (a)(2) makes appealable ‘an order made after a
judgment made appealable by paragraph (1),’ this does not
literally mean that any order after a previous judgment is
appealable.” (In re Marriage of Ellis (2002) 101 Cal.App.4th 400,
403.) Specifically, “‘[t]o be appealable, a postjudgment order
must satisfy two additional requirements . . . . [¶] The first
requirement . . . is that the issues raised by the appeal from the
order must be different from those arising from an appeal from
the judgment . . . . [¶] The second requirement . . . is that “the
7 In his brief, husband asserted the order was appealable
pursuant to Code of Civil Procedure section 904.2. We presume
this was an unintentional error, as that section applies to appeals
from limited civil cases.
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order must either affect the judgment or relate to it by enforcing
it or staying its execution.”’” (In re Marriage of Corona (2009)
172 Cal.App.4th 1205, 1217.) The May 15, 2019, order does not
satisfy the first requirement.
The issues raised by husband from the May 15, 2019, order
are not different from those he raised in connection with the
dissolution judgment, namely, his challenge of the trial court’s
designation of the residence as separate property such that
husband was not entitled to a credit for the first $10,000
withdrawal. The May 15, 2019, order therefore is not an
appealable postjudgment order. (In re Marriage of Corona,
supra, 172 Cal.App.4th at p. 1217.) In any event, even if we were
to consider the merits of husband’s appeal, we would reject it as
husband was not entitled to any purported “clarification.”
C. July 2, 2019, Order Denying Motion for Relief
Husband next contends that the trial court erred in
denying his motion for relief from judgment pursuant to Code of
Civil Procedure section 473, subdivision (b).
1. Background
As discussed, on April 15, 2019, husband filed a motion for
relief from judgment.
On May 30, 2019, Judge Slawson heard the motion and
concluded that the trial court lacked jurisdiction to rule on the
motion because of the pending appeal from the judgment.
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On July 2, 2019, Judge Slawson issued his “Findings And
Order After Hearing,” which denied husband’s motion for lack of
jurisdiction.
2. Legal Analysis
Husband’s contention that his filing of a notice of appeal
did not divest the trial court of jurisdiction to consider his motion
is meritless. (See Varian Medical Systems, Inc. v. Delfino (2005)
35 Cal.4th 180, 198 [“[Code of Civil Procedure] section 916, as a
matter of logic and policy, divests the trial court of jurisdiction
over the subject matter on appeal—i.e., jurisdiction in its
fundamental sense”]; Kroger Co. v. Workers’ Comp. Appeals Bd.
(2012) 210 Cal.App.4th 952, 959 [appeal is perfected when notice
of appeal is filed].) The court correctly concluded that it lacked
jurisdiction to consider defendant’s motion.
D. Order Denying Request for Modification of Child Custody
Order
1. Background
On June 24, 2019, husband filed a request to modify the
child custody order to grant him sole legal and physical custody of
the children. Husband contended that wife: medicated, that is,
vaccinated, the children without notice; discussed the divorce
proceedings with the children and solicited information from
them; asked the children to lie to a doctor, who had been
appointed by the trial court for purposes of the dissolution
proceeding; interfered with the children’s therapy by purportedly
16
not cooperating with husband regarding an agreed therapist;
disparaged husband to the children, including using derogatory
language; failed to protect the children from “many, many, insect
bites”; lived with the children in a one-bedroom apartment, where
the youngest child did not have her own bed, and instead shared
a bed with wife; “cavalierly” cancelled the children’s medical
insurance, which was subsequently reinstated; and did not help
the children with their studies, with their grades being “very
low.”
Husband supported his request with his own declaration
and over a hundred pages of exhibits, including communications
between husband and wife on Talking Parents. On
August 19, 2019, husband submitted a supplemental declaration
attaching purported transcripts of telephone calls between and
among wife, husband, and the children. One of the conversations
was identified as having occurred on April 15, 2019. The other
conversations were not identified by date. He also attached
updated Talking Parents communications, husband’s purported
“log” detailing wife’s actions beginning in 2015, medical records of
doctor visits for the children from 2016 and 2017, wife’s cell
phone records from 2016, screenshots of texts from 2016,
communications with prosecutors from 2015 and 2016,
communications between husband’s prior counsel and wife’s
counsel from 2016 and 2017, reports of monitored visits with the
children from 2015, police records from 2016, and discovery
requests from 2016.
Wife opposed the request for modification. She declared
that she had advised husband of the annual physical check-up,
during which one of the daughters received three vaccinations.
She attached a copy of the Talking Parents message advising
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husband of the upcoming yearly checkup. She agreed that the
daughters had mosquito bites and that she now lived in a one-
bedroom apartment, but declared that each daughter had a
separate bed in a shared bedroom and that when she had custody
of the daughters, she slept in the living room. She explained that
husband had never been to wife’s home and thus did not know its
setup. She denied husband’s other allegations, stating that she
helped the girls with their homework.
Wife requested that the trial court impose sanctions
pursuant to section 271 and submitted her counsel’s declaration
in support. Wife’s counsel declared that during the course of
these proceedings, husband had filed approximately 40 requests
for orders, including multiple requests to modify custody and
support, all of which were denied. Counsel also explained that
husband had filed additional civil actions against wife, wife’s
friends, and wife’s counsel. Counsel detailed the time she and
her colleague had spent opposing husband’s most recent request
for modification and requested $4,650 in attorney fees.
On September 11, 2019, Judge Zukin conducted a hearing
on husband’s request for modification. She asked husband, who
was self-represented, what he contended to be the material
change in circumstances that supported his request for
modification. Husband responded that wife was now “living in a
smaller apartment where . . . one of our children does not have
her own bed.”
After noting that wife had declared that both daughters
had their own bed, the trial court asked wife, “Does [daughter]
sleep in her own bed?”
Wife responded, “Yes she does. Both of them do.”
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Husband proffered that this was “a false statement, and I
would actually like to—that’s a completely false statement, and
I’ll be able to prove that up during my examination.”
The trial court responded: “We’ve dealt with these issues
before. Go on. What else is new, other than the bed?”
Husband responded, without evidentiary support, that the
children were getting lower grades and that wife had moved
farther away from her work and the children’s school, and “ha[d]
less time with the kids, leaving the kids, you know—leaving the
kids unattended and un—not only unattended, but unavailable to
do homework with them and various other things. [¶] So
although I understand you wanting to be brief, I wanted to call
[wife] to the stand in order to ask her some questions in order to
clarify my position via her testimony.”
The trial court denied husband’s request to examine wife,
but permitted husband to continue his testimony, during which
he repeated many of the statements in his request for
modification. At the conclusion of husband’s testimony and
argument, the court again denied his request to cross-examine
wife.
Next, the trial court asked wife a number of questions. For
instance, the court asked whether wife had left the children
unattended. Wife responded that she had not. Further, wife
explained that she had been living in the smaller one-bedroom
apartment for two and a half years and that she had moved into
it prior to the court’s entry of the judgment of dissolution.
The court again asked wife about the sleeping
arrangements. Wife repeated that the girls slept in the single
bedroom and wife slept in the living room on the couch.
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The court then asked wife to respond to husband’s
allegation that she had medicated the children. Wife explained
that she had advised husband about the doctor’s appointment
and that during the appointment, daughter had received a
vaccination that was required to attend school.
The court then permitted husband to respond. Husband
reminded the court that he had submitted transcripts of wife’s
telephone calls with the daughters. He also explained why he
believed he needed to sue various people, including wife’s counsel.
Finally, he stated his belief, based on his daughter’s statements
to him, that wife slept with younger daughter “99 percent of the
time.” Husband did not dispute wife’s testimony that she had
moved prior to the entry of judgment or that he had never been
inside her apartment.
After hearing the testimony, the court stated that it had
reviewed the entire file, the submitted declarations, and the
exhibits. The court stated that it found “a number of [husband’s]
complaints regarding [wife’s] parenting” not to be credible. The
court further observed that the exhibits demonstrated that
husband had inappropriately used Talking Parents to threaten
wife with litigation and to advance his litigation strategy. Even
assuming that the children were struggling in school, the court
concluded that husband was partially at fault as he had engaged
in excessive litigation and involved the children in litigation. The
court denied husband’s request for modification, concluding that
there was no material change in circumstances since the time of
the 2019 judgment.
The trial court next considered wife’s motion for sanctions.
It concluded that “this was an unnecessary motion. [T]here is a
history in this litigation of over litigation on the part of
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[husband].” The court therefore awarded wife $2,500 in attorney
fees as a sanction.
2. Legal Analysis
Husband contends that the trial court erred “by failing to
state on the record or in writing the reasons for its denial of [his]
right to introduce the live testimony of the other party during the
hearing.” We find no prejudicial error.
We disagree with husband’s characterization of the trial
court’s ruling as one denying him the opportunity to introduce
“live testimony.” The court considered the live sworn testimony
of both husband and wife. (Cf. In re Marriage of Swain (2018) 21
Cal.App.5th 830, 837, 841 [finding reversible error when trial
court modified spousal support order based solely on declaration
of ex-wife, who did not appear at the hearing].) Thus, husband’s
argument, properly construed, is that the court limited his ability
to cross-examine wife, in violation of Evidence Code section 773.
We will assume, without expressly deciding, that the court erred
in prohibiting husband from cross-examining wife.
Husband has failed to demonstrate that he was prejudiced
by any assumed error. (See In re Marriage of Goddard (2004) 33
Cal.4th 49, 56 [generally, most procedural errors will not be
reversed absent a showing of prejudice]; see also Diaz v. Carcamo
(2011) 51 Cal.4th 1148, 1161 [“To establish prejudice, a party
must show ‘a reasonable probability that in the absence of the
error, a result more favorable to [it] would have been reached’”].)
Husband never explained in the trial court what he expected to
elicit from cross-examination, proffering only that such
examination would “clarify [his] position.” On appeal, husband
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contends that the court should have stricken wife’s testimony and
declaration, and had it done so, it would have granted husband’s
request because his exhibits “support[ed] all of his factual
allegations.” We disagree. Most of husband’s exhibits related to
conduct that predated the entry of judgment. Further, there was
no admissible evidence to support his allegations that daughter
did not sleep in her own bed or that wife did not pay sufficient
attention to the daughters. Husband cited only his daughter’s
hearsay statement that she did not usually sleep in her bed and
did not introduce any evidence to support his allegation that his
wife did not spend sufficient time with the daughters.8 On this
record, husband cannot demonstrate that but for the court’s
assumed error, it was reasonably probable that the court would
have found a “‘significant change of circumstances’” and modified
the child custody arrangement in his favor. (See In re Marriage
of Brown & Yana (2006) 37 Cal.4th 947, 956; In re Marriage of
McKean (2019) 41 Cal.App.5th 1083, 1089.)
8 In his declaration, husband alleged that wife “does not ever
work with the girls on their schoolwork,” and at the hearing, he
alleged that wife left the girls unattended. Neither allegation
was supported by admissible evidence.
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IV. DISPOSITION
The appeal from the May 15, 2019, order is dismissed. The
April 2, 2019, judgment, the July 2, 2019, order denying
appellant’s motion for relief from judgment, and the
September 11, 2019, order denying appellant’s request for
modification are affirmed. Because respondent did not appear,
no costs are awarded.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KIM, J.
We concur:
RUBIN, P. J.
BAKER, J.
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