Filed 6/23/20 Marriage of Miller CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of RICHARD and PAMELA MILLER.

2d Civil No. B297687

(Super. Ct. No. 1197574)

(Santa Barbara County)

RICHARD D. MILLER,

Appellant,

v.

PAMELA S. FARLEY,

Respondent.

Richard Miller (husband) appeals from a postjudgment order dividing his military retirement benefits between himself and his former spouse, Pamela S. Miller, now Pamela Farley (wife). A 2008 judgment of dissolution incorporated a Marital Settlement Agreement (MSA) awarding the entire retirement benefits to husband. In 2018 wife filed a request for an order (RFO) setting aside the award and dividing the community property interest equally between the parties. Wife argued that the award should be set aside because husband had failed to disclose his retirement benefits during the dissolution proceedings.

The trial court ordered that the award of the retirement benefits to husband be set aside, that the community property interest in the benefits be divided between the parties, and that husband pay wife $400 per month “until such time as the apportionment order is prepared.” We affirm. We reject husband’s contention that his retirement benefits “should be reconfirmed as his separate property” and that wife should reimburse him for the monthly payments made to her pursuant to the court’s order.

Factual and Procedural Background

The parties married in October 1992 and separated in February 2006. They signed the MSA in April 2008. The MSA was prepared by husband’s counsel. Wife was not represented by counsel.

The MSA states that the parties have fully complied with their preliminary disclosure obligations: “Both parties have complied with Family Code section 2104 and the Preliminary Declarations of Disclosure have been completed and exchanged. All assets have been identified and all discovery as to said assets has been satisfactorily completed by both parties.” “Both parties have fully complied with Family Code section 2102 and have fully augmented the preliminary declarations of disclosure, including disclosure of all material facts and information regarding the characterization of all assets and liabilities, the valuation of all assets that are contended to be community property or in which it is contended the community has an interest . . . .” The parties waived the final disclosure declaration required under section 2105.

In support of her RFO, wife declared: “Despite the

MSA . . . , neither [husband] nor I ever exchanged financial disclosures in our divorce case. I was never provided with any statements pertaining to [husband’s] retirement or deferred compensation benefits and had no way to value them or learn anything about them.”

In response to wife’s RFO, husband declared that, in his petition for dissolution of the marriage, he had “disclosed that my military retirement be confirmed to me as my separate property.” Wife was served with “disclosures [that] listed my air force retirement.” Husband retired from the military in January 2011.

Wife submitted points and authorities in support of the RFO. Her counsel stated that “in his divorce petition” husband had said “that his Air Force retirement was his separate property and that there were no community property assets to divide.” (The record on appeal does not include the divorce petition.) Counsel further stated that, “[a]t the original setting on the [RFO], the Court ordered [husband] to serve on [wife] all financial disclosures that he claims were made in the parties’ divorce.” In response to the order, husband produced a “community and quasi-community property declaration.” The declaration is attached to wife’s points and authorities. It bears a court stamp showing that it was filed on August 9, 2006. Under the heading, “retirement, pension, profit-sharing, annuities,” husband wrote, “USAF retirement is listed on [husband’s] Separate Property Declaration.” In the separate property declaration, husband listed his “USAF Retirement” and said that both its “gross” and “net fair market value” was $1,500. This amount was actually the “monthly” payable benefit.

Husband submitted responsive points and authorities. Attached to his points and authorities are exhibits, including the transcript of wife’s June 28, 2018 deposition. The points and authorities, but not the exhibits, are included in the record on appeal. But, as indicated above, in his separate property declaration husband said that the “gross” and “net fair market value,” not projected monthly payment, of his military retirement benefits was $1,500. Husband further declared that “the [c]ourt file discloses that I served [wife] with preliminary and final declarations of disclosure on August 3, 2006.”

Exhibits were attached to husband’s supplemental declaration, but they are not included in the record on appeal. Husband asserted, “I no longer have any of my other records from the divorce that occurred 12 years ago.”

The trial court ordered that the community property interest in husband’s retirement benefits be divided between the parties “in accordance with the time rule” and “on a going forward basis only” without “arrearages.” “Under the time rule, the community is allocated a fraction of the benefits, the numerator representing length of service during marriage but before separation, and the denominator representing the total length of service by the employee spouse. That ratio is then multiplied by the final plan benefit to determine the community interest.” (In re Marriage of Gowan (1997) 54 Cal.App.4th 80, 88.)

The trial court further ordered that, “until such time as the apportionment [of the community property shares] is prepared,” husband “shall pay . . . [wife] $400.00 per month in l[ie]u of her 1/2 community share of the military retirement.”

Grounds for Setting Aside Judgment of Dissolution

“Section 2122 governs motions to set aside judgments in dissolution proceedings.” (In re Marriage of Binette (2018) 24 Cal.App.5th 1119, 1125.) One of the grounds for setting aside a judgment is “[f]ailure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100).” (§ 2122, subd. (f).) Each party must serve on the other party a preliminary and final declaration of disclosure unless service is waived or is not required. (§ 2103.) The preliminary declaration must identify “all assets in which the declarant has or may have an

interest . . . .” (§ 2104, subd. (c)(1).) The final declaration must include “[a]ll material facts and information regarding the characterization” of all assets and “the valuation of all assets that are contended to be community property or in which it is contended the community has an interest.” (§ 2105, subds. (b)(1) & (2).)

Standard of Review

“An order granting a motion to set aside a judgment under section 2122 is reviewed under an abuse of discretion standard.” (In re Marriage of Binette, supra, 24 Cal.App.5th at p. 1125.) “The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court’s ruling under review. The trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712.)

When reviewing the trial court’s application of the law to the facts, “‘“[t]he appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citations.] The burden is on the complaining party to establish abuse of discretion. [Citations.]” (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)

Claim that Wife’s RFO Was Time-Barred

Section 2122, subdivision (f) provides, “An action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply.” Husband claims that wife’s RFO was time-barred pursuant to this provision and that “[t]he trial court committed reversible error by not considering the application of section 2122 to this case.” There is an insuperable obstacle to husband’s claim: there is no statement of decision and the record on appeal is inadequate to determine whether the trial court abused its discretion.

Statement of Decision

“The statement of decision provides the trial court’s reasoning on disputed issues and is our touchstone to determine whether or not the trial court’s decision is supported by the facts and the law.” (Slavin v. Borinstein (1994) 25 Cal.App.4th 713, 718.) Husband failed to request a statement of decision pursuant to section 2127, which provides, “[T]he court shall render a statement of decision where the court has resolved controverted factual evidence.”

“A party’s failure to request a statement of decision when one is available has two consequences. First, the party waives any objection to the trial court’s failure to make all findings necessary to support its decision. Second, the appellate court applies the doctrine of implied findings and presumes the trial court made all necessary findings supported by substantial evidence. [Citations.] This doctrine ‘is a natural and logical corollary to three fundamental principles of appellate review: (1) a judgment is presumed correct; (2) all intendments and presumptions are indulged in favor of correctness; and (3) the appellant bears the burden of providing an adequate record affirmatively proving error.’ [Citation.]” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970.)

Accordingly, we presume that the trial court credited wife’s declaration that husband had failed to make financial disclosures concerning his retirement benefits. In his opening brief husband acknowledges that “the doctrine of implied findings . . . would include a finding that the disclosures were not made and were not waived.” Wife’s declaration constitutes substantial evidence that husband did not make the required disclosures. We also presume that the court applied section 2122 and found that wife had filed her RFO “within one year after the date on which [she] either discovered, or should have discovered, [husband’s] failure to comply” with the disclosure requirements. (Id., subd. (f); see Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 793 [where statement of decision not requested, “we must assume that the trial court made whatever findings are necessary to sustain the judgment”].)

Inadequate Record

“‘It is the duty of an appellant to provide an adequate record to the court establishing error. Failure to provide an adequate record on an issue requires that the issue be resolved against appellant. [Citation.]’” (Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.)

Husband has not provided an adequate record on whether wife’s RFO was time barred. He failed to provide wife’s June 28, 2018 deposition. We assume that, in her deposition, wife set forth a factual basis for the trial court’s implied finding that her RFO was not time-barred under section 2122, subdivision (f). (See Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 576 [“In the absence of a proper record, . . . we must presume the trial court acted properly”].)

Moreover, the reporter’s transcript of a hearing on the RFO omits pertinent discussions in the trial court’s chambers. The hearing occurred on September 5, 2018. The reporter’s transcript begins with the court saying, “Can I talk to you guys in there?” Counsel for both parties reply, “Yes.” The reporter’s transcript then says, “Chambers conference held, not reported.” At the conclusion of the conference, the court took the bench. Without hearing argument or explaining its ruling, the court said, “The Court grants to set aside [sic], with the admonition that I will [later] consider the Laches argument as it relates to the ex-wife’s delay in getting this in front of me.” The court’s written order after the hearing does not disclose its reasoning. The order states, “After considering the arguments, this Court finds that the policy of law favors the granting of [wife’s] Request for a partial set aside of the April 17, 2008 Judgment . . . .”

It is reasonable to infer that, during the unreported in-chambers conference, counsel argued the matter and the trial court explained its ruling. “The absence of a record concerning what actually occurred at the hearing precludes a determination that the court abused its discretion. [Citations.] As the party challenging a discretionary ruling, [husband] had an affirmative obligation to provide an adequate record so that we could assess whether the court abused its discretion. [Citations.] Accordingly, [he] has forfeited this argument on appeal.” (Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259.)

Claim that Wife Did Not Demonstrate Prejudice

The failure to exchange disclosure declarations is not a legitimate basis for setting aside a judgment unless the complaining party shows prejudice as a result of the nondisclosure. (In re Marriage of Steiner & Hosseini (2004) 117 Cal.App.4th 519, 527-528.) Husband claims, “The order must be reversed because [wife] did not demonstrate that she was prejudiced by the failure to exchange declarations of disclosure.” (Bold omitted.) This claim must be resolved against husband because of an inadequate record and the absence of a statement of decision. We assume that in her deposition, which is missing from the record, wife demonstrated that she had been prejudiced.

In any event, the existing record shows that wife was prejudiced. Husband declared that in August 2006 his monthly benefit under the retirement plan would have been $1,249 had he been eligible for retirement. Wife was married to husband for more than 13 years before they separated in February 2006. Thus, wife had a significant community property interest in the retirement benefits, but she was unaware of this fact because of the failure to exchange disclosure declarations. Wife declared, “[Husband] has been collecting on his retirement benefits for many years now, and a significant portion of said benefits would otherwise be community property.”

Judicial Estoppel

In the trial court husband argued that, because in the MSA wife said that the parties had exchanged preliminary and waived final disclosure declarations, she is judicially estopped from asserting a contrary position. In his opening brief husband maintains: “The trial court did not address [his] judicial estoppel argument – that is, the court refused [to] recognize its discretion or to exercise that discretion one way or the other. The failure to exercise a granted discretion is an abuse of discretion.” Husband contends that, if the trial court had considered his judicial estoppel argument, it would have abused its discretion had it rejected the argument.

“[T]he doctrine [of judicial estoppel] should apply when: (1) the same party has taken two positions; (2) the positions were taken in judicial . . . proceedings; (3) the party was successful in asserting the first position (i.e., the [court] adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 183 (Jackson), italics added.)

“The determination of whether judicial estoppel can apply to the facts is a question of law reviewed de novo, i.e., independently. [Citations.] . . . [¶] Even if the necessary elements of judicial estoppel are found, because judicial estoppel is an equitable doctrine [citations], whether it should be applied is a matter within the discretion of the trial court [citations]. The exercise of discretion for an equitable determination is reviewed under an abuse of discretion standard.” (Blix Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 46-47.)

In the absence of a statement of decision and an adequate record, husband cannot prevail on his judicial estoppel theory. The trial court may have considered and rejected the theory during the unreported in-chambers conference. Pursuant to the doctrine of implied findings, we presume the court found that wife’s “first position” in the MSA – the parties had exchanged financial disclosures – was “a result of ignorance, fraud, or mistake.” (Jackson, supra, 60 Cal.App.4th at p. 183.) We also presume that wife’s missing deposition provided a factual basis for this finding.

Laches

After a hearing conducted on September 26, 2018, the court made the following written finding and order: “Having considered the arguments, this Court finds that the Doctrine of Laches bars the creation of any arrearages on the division of the military retirement in [husband’s] name. The division of the military retirement is on a going forward basis, only.” Husband claims that “[t]he trial court abused its discretion by not finding that [wife’s RFO] was barred by laches.” (Bold omitted.)

“[S]uccess on a laches claim is always uncertain because it is an equitable remedy that depends on ‘the facts and circumstances of the particular case.’” (In re Marriage of Fellows (2006) 39 Cal.4th 179, 188.) “A defendant must demonstrate three elements to successfully assert a laches defense: (1) delay in asserting a right or a claim; (2) the delay was not reasonable or excusable; and (3) prejudice to the party against whom laches is asserted.” (Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1157.) Husband notes that “[t]he standard of review is abuse of discretion.”

Husband has failed to establish that the trial court abused its discretion in not finding that the doctrine of laches barred wife’s RFO. The court impliedly found that wife had filed her RFO within the statutory deadline, i.e., “within one year after the date on which [she] either discovered, or should have discovered, [husband’s] failure to comply” with the disclosure requirements. (§ 2122, subd. (f).) Husband has not shown that any delay within the one-year statutory period was unreasonable, inexcusable, or prejudicial. Wife cannot be faulted for the delay before she discovered, or should have discovered, husband’s nondisclosure. Husband claims that he was “prejudiced by the decade-long interval” between the signing of the MSA in 2008 and the filing of the RFO in 2018. He does not claim that he was prejudiced by the no more than one-year interval between wife’s discovery of the nondisclosure and the filing of the RFO.

Furthermore, husband has failed to provide an adequate record of the laches proceedings. The reporter’s transcript of the hearing on laches contains no discussion of this issue. Before hearing any argument, the court said to counsel, “I’ll see you in chambers and issue my ruling after my break.” The reporter’s transcript observes, “Whereupon proceedings were heard and, not to be included in this appeal transcript, are omitted herefrom.” Upon retaking the bench, the court declared: “I’m making an order on [this] case. My order is that there are no arrearages on the retirement, that the Court orders retirement payments paid on a going forward basis only, period.” The court did not explain its ruling.

Because the in-chambers conference was unreported, we do not know what was said during the conference. Because there is no statement of decision, we do not know the trial court’s reasoning for its ruling. In view of the inadequate record and the absence of a statement of decision, husband cannot carry his burden of showing that the trial court’s ruling exceeded the bounds of reason. “‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. . . .’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see also Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [“Because [husband] failed to furnish an adequate record of the [laches] proceedings, [his] claim must be resolved against [him]”].)

Disposition

The order setting aside the judgment’s award of the military retirement benefits to husband, dividing the community property interest in the benefits between the parties, and compelling husband to pay wife $400 per month “until such time as the apportionment order is prepared,” is affirmed. Wife shall recover her costs on appeal.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
James F. Rigali, Judge

Superior Court County of Santa Barbara

______________________________

Paul Kujawsky for Appellant.

The Law Offices of Herb Fox and Herb Fox for Respondent.