Filed 12/3/19 Marriage of Hughes CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of JAMES and JACKIE HUGHES.

JAMES HUGHES,

Appellant,

v.

JACKIE HUGHES,

Respondent.

G056267

(Super. Ct. No. 10D008387)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Julie A. Palafox, Judge. Affirmed.

James Hughes, in pro. per., for Appellant.

No appearance for Respondent.

 

INTRODUCTION

James Hughes, representing himself, is the petitioner in a divorce action against his former wife, Jackie Hughes. The couple received a status divorce judgment in 2015. The division of community property, however, hinged on the date of separation, for which James has offered various suggestions. For her part, Jackie has steadfastly maintained that the date of separation was December 28, 2005. The family court has twice ruled in her favor, and James has appealed both times.

This time James has profoundly mistaken our role in the legal system. We cannot arrest anyone. We cannot prosecute anyone for state or federal crimes. We cannot initiate or direct investigations of the workings of the Orange County Superior Court. Our role is limited. We receive a proper notice of appeal of a judgment or of an appealable order, and we try as best we can to determine whether the trial court committed a legal error in the rulings pointed out by the appellant. We do not evaluate matters either of fact or of witness credibility. The trial court, through a judge or a jury, decides what happened and who is telling the truth. In almost all cases, we accept these factual decisions and decide whether the law was properly applied to them.

To help us fulfill our role, the Judicial Council and the California Supreme Court have developed rules that appellants must follow when they brief their appeals, rules found in the California Rules of Court. These rules are not intended to create busywork or burden the parties. A brief that follows the rules makes it easier for us to determine the issues on appeal. We focus only on the issues the appellant has identified as the ones we need to look at to see whether the trial court made a mistake.

One very important rule is that the facts the appellant asserts in his or her brief are “limited to matters in the record.” Another rule requires the appellant (1) to state each point under a separate hearing or subheading summarizing the point and (2) to support references to matters in the record by citation to page numbers in the record.

Because of James’ failure to follow the rules, it is almost impossible to discern the basis of this appeal or what he wants from us. As best we can make out, James is accusing two family law judges of the Orange County Superior Court and all of the court’s clerks of a conspiracy to alter or conceal court records relating to the Hughes divorce, so that the judge who finally determined the date of separation could rule in Jackie’s favor. James accuses these judges and clerks of serious violations of state and federal law. This is not something we can address.

To the extent that James is appealing from the order determining that December 28, 2005, is the correct date of separation, we affirm. Substantial evidence supports the order, and, as stated above, it is not our role to decide who is telling the truth and what really happened. That job is committed to the family court. Our task is to decide whether it committed legal error, and we find none here.

FACTS

As the law requires us to do, we recite the facts in the manner most favorable to the court’s decision. (In re Marriage of Bonvino (2015) 241 Cal.App.4th 1411, 1417, fn. 2.)

This is the second time around for this case. The case was tried first in January and April 2015, and James appealed the court’s determination of the date of separation as December 28, 2005. We dealt with the case in late December 2016 and in January 2017, at which time the criteria for “separation” were in flux. The California Supreme Court had recently decided In re Marriage of Davis (2015) 61 Cal.4th 846 (Davis), and the Legislature was scrambling to amend the Family Code to undo the decision. We returned the Hughes matter to the family court to decide the date of their separation in light of all the new law.

We recite the pertinent facts from our prior opinion.

James and Jackie were married in 1988. They have two daughters, now adults.

During the marriage, the spouses acquired several pieces of real property: the family home in Huntington Beach and two rental properties, in Perris and Westminster. They were also part owners with another person of a third rental property.

In August 2005, James decided that he wanted to obtain cash from two rental properties to invest in a business. At first, he proposed obtaining home equity lines of credit on the Perris and Westminster properties. Jackie protested, but James threatened to divorce her and take away their children, who were at that time still quite young, if she did not agree. In any event, Jackie agreed to an equity line of credit on the two rental properties, and the marriage continued.

In December 2005, Jackie discovered that James did not intend to get a line of credit, but rather intended to refinance the two rental properties, which were nearly paid for. The loans were subject to a high interest adjustable rate and high fees. She flatly refused to sign any refinancing documents, at which point James told her he was going through with the refinancing with her or without her – divorcing her if she continued to refuse, as she did. On December 27, she quitclaimed the two rental properties to James, and he quitclaimed the family home in Huntington Beach to her. Jackie considered the marriage at an end from that point. She asserted the date of separation to be December 28, 2005.

James proceeded to buy a cell phone business, using the money obtained from refinancing the two rental properties. As it turned out, he lost all the money. The lender foreclosed on the properties. James sued the person who had sold him the cell phone business for fraud in 2006, and the case was dismissed pursuant to a settlement.

At this point, James was still residing in the family home. He told Jackie that he would move out either when his new business began to make money or when he recovered his money from the fraud lawsuit. Evidently neither event came to pass, because as of the date of trial in January 2015, he was still residing there. Jackie testified they lived entirely separate lives and James joined her and the children for meals only on Thanksgiving and Christmas.

The case was tried over three days to the Honorable Theodore R. Howard. James maintained that the correct date of separation was July 9, 2010. He testified that Jackie continued to manage their finances and properties as she had before December 2005 and there had been no significant change in their relationship between December of 2005 and July of 2010. He filed the original dissolution petition in September 2010 after developing medical problems because of arguments with Jackie, specifying July 9, 2010, as the date of separation. An amended petition, filed in November 2010 by himself in propria persona, gave December 28, 2005, as the date of separation.

The court found Jackie’s testimony more credible and determined the date of separation to be December 28, 2005. The court also entered a judgment of dissolution, dated May 20, 2015. James appealed, but only as to the date of separation.

We remanded the case solely to reconsider the date of separation in light of the Davis decision and the new amendments to the Family Code, which took effect on January 1, 2017. The court (the Honorable Julie A. Palafox) retried the date of separation issue. Trial concluded on April 12, 2018. The trial court again found that the date of separation was December 28, 2005.

James has appealed again, but this time his appeal does not focus on the evidence upon which the court relied to reach its decision. Instead, he posits a conspiracy among Judge Howard, Judge Palafox, all the attorneys involved in the case (including his own former attorney), and court clerks to alter and conceal court documents so that Jackie would win. He is quite detailed about these charges, including attributing a “protection racket” and “bribery” to the judges.

James’ accusations appear to rest on two circumstances, which he repeats multiple times with minor variations in the 50 pages of his opening brief. First, the court reporter erroneously dated the transcript of the January 26, 2015, trial before Judge Howard as April 26. This error was resolved at the February 8, 2018, session of the retrial; Jackie’s counsel explained she had contacted the court reporter, who acknowledged the error and provided an augmented cover sheet for the transcript giving the correct date, January 26, 2015.

James took this episode as evidence of a conspiracy by everyone involved (judges, clerks, attorneys, Jackie) to alter court records, to conceal the January 26 transcript from him, and to pretend there had been a trial on April 26, 2015. He claimed the January 26 transcript contained conclusive evidence of a reconciliation between him and Jackie that would push the date of separation past December 2005. Both Judge Howard and Judge Palafox, James asserted, plotted to hide and withhold and fraudulently conceal evidence of this reconciliation. For some reason James does not explain, both judges were determined to see Jackie prevail on this issue.

James also accused Jackie, Jackie’s attorney, and his own lawyer at the time of stealing a document entitled “amended petition for dissolution,” filed on November 12, 2010, and of fraudulently filing it with the court. The amended petition was significant because it gave December 28, 2005, as the date of separation, the same date that Jackie claimed. James’ original petition, filed two months earlier, had specified July 9, 2010, as the date of separation. James asserted that Jackie or her counsel stole the amended petition from a divorce mediator’s office and that it was a confidential document that was not supposed to be filed. He also claimed that both Judge Howard and Judge Palafox knew the document was stolen, but admitted it into evidence anyway as part of their “fraudulent and felonious” scheme “to hide and fraudulently conceal a mountain of substantially incriminating evidence.” (Capitals and quotation marks omitted.)

The amended petition identified James as the filing party in propria persona and bore his signature. The court held a hearing on April 12, 2018, about the amended petition and determined that James had failed to present evidence of the document’s theft, of its forgery, or of its confidentiality. In the court’s statement of decision, it remarked that James had testified differently about the amended petition during the 2015 trial. At that time, he testified he had asked to have it filed. As the court charitably put it, by 2018 “James must have forgotten he testified in 2015 [that] the mediator filed his amended petition at his request.”

On November 15, 2019, the last business day before oral argument in this court, James filed a motion to strike his opening appellate brief and replace it with a corrected brief and a motion to file a supplemental brief. We explained at oral argument that to the extent the “corrected brief” was actually a notice of errata, we would consider the brief as such. Otherwise neither brief could be considered in addition to or instead of the original opening brief.

DISCUSSION

As stated above, our role in the court system is a limited one. We do not weigh evidence, and we do not assess credibility. (In re Marriage of Dandona & Araluce (2001) 91 Cal.App.4th 1120, 1127.)

We must also observe the correct standard of review. In the case of the family court’s decision on the date of separation, when the parties cannot agree, we use the “substantial evidence” standard. (In re Marriage of Manfer (2006) 144 Cal.App.4th 925, 930.) The substantial evidence standard requires us to examine the evidence in the light most favorable to the prevailing party (in this case, Jackie) and to give that party the benefit of every reasonable inference. We discard evidence contrary to Jackie’s position. (See In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1151.)

The appellant must show the reviewing court that the trial court erred. (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624.) To do this, the appellant (James) must provide us with an adequate record. “It is the burden of the party challenging a judgment on appeal to provide an adequate record to assess error. [Citation.] Thus, an appellant must not only present an analysis of the facts and legal authority on each point made, but must also support arguments with appropriate citations to the material facts in the record.” (Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.)

This is where the California Rules of Court become crucial. Rule 8.204 requires an appellate brief to “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation to authority” and to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(B), (C), italics added.) The appellant’s opening brief must “provide a summary of the significant facts limited to matters in the record.” (Cal. Rules of Court, rule 8.204(a)(2)(C), italics added.) If the appellant fails to follow these rules, we do not search the record for error. It is not our job to act as the appellant’s counsel. (Fox v. Erickson (1950) 99 Cal.App.2d 740, 741-742.)

Finally, we can review only the specific judgment or order identified in the appellant’s notice of appeal. (See Morton v. Wagner (2007) 156 Cal.App.4th 963, 967 [notice of appeal defines appeal’s scope].) In this case, James appealed from the family court’s ruling on the date of separation, issued in April 2018. That is the only ruling we can consider now. We cannot, for example, do anything about the divorce judgment entered in 2015. It is not mentioned in the notice of appeal, and, in any event, the time to appeal from that judgment expired nearly four years ago. (See Cal. Rules of Court, rule 8.104.)

Because James has largely ignored the rules regarding identifying his points and supporting his points by citations to the record, our ability to review his objections to the date of separation order – as well as our ability to follow his arguments – has been all but extirpated. For example, James repeatedly refers to portions of the transcripts of the original 2015 trial. But these transcripts are not part of the record in this appeal. Thus, we have no way to corroborate his assertions by checking the record. Likewise, the excerpt James quoted from appellant’s opening brief from the prior appeal is not part of the record in this one. We have no record references to emails between the Orange County District Attorney investigator and the Huntington Beach Police Department – or to any support in the record for the allegation that Judge Palafox had someone fired for investigating her – and we are not going to plow through more than 800 pages of augmented record to find the emails, assuming they exist.

James contends that he and Jackie reconciled in 2005. He claimed below that testimony from the 2015 trial established the reconciliation. He did not, however, produce this testimony when given the opportunity to do so.

James’ credibility was also undermined by his inability to settle on his own date of separation. At various times, he asserted dates in 2005, 2010, and 2017. His credibility also suffered when he changed his testimony in the remanded trial from what it had been in 2015.

Jackie testified consistently during both trials that the parties separated on December 28, 2005, after she refused to sign some financing documents on jointly owned properties, and James told her he would divorce her and proceed with the financing anyway. Putting this intention into action, she and James signed deeds separating their real property; Jackie got the family residence, and James got two rental properties. The family court credited this testimony. The court also credited Jackie’s testimony that, though she and James continued to share a residence (and did so even during the remanded trial), the marriage as a relationship was over as of December 2005. The court pointed to James’ frequent trips to the hospital between 2005 and 2010, on which Jackie never accompanied him, as further evidence that “powerfully illustrates the lack of intimacy between these parties.”

Our task on appeal is not to determine who is telling the truth. Our task is to determine whether substantial evidence supports the family court’s decision. Jackie’s testimony provides this evidence. Judge Palafox was more than patient with James’ conspiracy theories, and she somehow managed to separate the relevant facts from all the chaff that was blown at her. We can find no error here.

DISPOSITION

The order setting the date of separation as December 28, 2005, is affirmed. Appellant’s motion to strike and replace the opening brief and the motion to file a supplemental legal brief are denied. Respondent is to recover her costs on appeal.

BEDSWORTH, ACTING P. J.

WE CONCUR:

MOORE, J.

DUNNING, J.*

*Retired judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.