Filed 7/8/20 Marriage of Willis and Sugiyama CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of MOIRA WILLIS and KOICHI SUGIYAMA.

MOIRA WILLIS,

Respondent,

v.

KOICHI SUGIYAMA,

Appellant.

A157979

(City and County of San Francisco

Super. Ct. No. FDI 14780831)

Koichi Sugiyama (husband) and Moira Willis (wife) entered into an agreement regarding wife’s occupancy of the family home and appraisal of the home’s value. Husband appeals from two July 5, 2019 orders in which the trial court resolved disputes between the parties regarding that agreement. We affirm.

Factual and Procedural Background

The parties were married in 1998 and are the parents of three children. On October 24, 2016, the parties entered into a memorandum of agreement (MOA) settling their disputes concerning the division of community and separate property, child support, and spousal support. The following provisions are relevant to this appeal:

“1. [Husband] will purchase [wife’s] interest in the family home . . . . The payment will be in cash and paid within 90 days after the appraisal has been completed. The house will be awarded to [husband] as his sole and separate property. [Husband] will assume all responsibility for taxes, mortgages and insurance and hold [wife] harmless for the same. In the event of his death, [husband’s] estate will continue tax, mortgage and insurance payments through the term of [wife’s] lease. Both parties and the estate of [husband] shall be bound by any occupancy agreement to [be] prepared within re the next 60 days.

“2. The value of the house will be determined by appraisal by an appraiser to be agreed upon by the parties. If no agreement, Judge Gyemant will chose the appraiser.

“3. Prior to the appraisal the parties will have the house inspected and will conduct agreed upon repairs, the cost of which will be shared equally by the parties. If the parties cannot agree on the repairs to be done, Judge Gyemant will decide for them.

“4. The amount [husband] will pay to [wife] will be one half of the appraised value minus the following:

“i. Costs of repairs . . . .

“8. “[Wife] has the right to reside in the house rent free until [February] 26, 2028 . . . . The parties will draft a rental agreement specifying the exact terms of the occupancy agreement by [November] 21, 2016. Judge Gyemant will retain jurisdiction to resolve any disputes. The rental agreement shall survive [husband’s] death. . . .

“20. Judge Gyemant will retain jurisdiction to interpret and enforce this agreement and any issues arising hereunder.”

The MOA set spousal support at zero dollars. Child support was set at $1,900 per month until the oldest child turned 18; then $1,700 per month until the middle child turned 18; and finally $1,200 per month until the youngest child turned 18.

After execution of the MOA, wife continued to live in the family home while the parties attempted, without success, to negotiate an occupancy agreement pursuant to paragraph eight of the MOA. Meanwhile, in August 2017 they agreed to have the family home appraised “as is” since they could not agree on repairs. In October 2017, they agreed on an appraiser; the appraiser valued the family home at $2.3 million as of November 27, 2017.

Trial Court Proceeding

In March 2019, the parties filed simultaneous requests for the trial court to resolve disputes concerning their interpretation of the MOA. Wife sought a court order that her right to rent-free occupancy until 2028 could not be terminated based on any future remarriage or occupancy by a future spouse. Husband sought a court order that (1) the appraiser was required to value the family home as of the date of the MOA, October 24, 2016, and was required to “consider the effect” (i.e. the value) of wife’s right to occupy the family home rent-free during the children’s minority; and (2) husband was entitled to challenge the appraisal by securing an independent (second) appraisal and have the court determine which appraisal should govern after an evidentiary hearing.

Following an April 24 telephonic hearing which was not recorded or transcribed, the trial court filed two written orders based on a “consideration of all filings, exhibits, oral arguments and applicable laws.” The court ruled that wife’s right to occupy the family home rent-free was not subject to earlier termination due to remarriage or occupancy by a future spouse. In regards to the appraisal, the court ruled that: (1) the parties had agreed to only one appraisal to be completed by a mutually-agreed upon appraiser; (2) they had not chosen a date for valuation; (3) the chosen date for the valuation (November 27, 2017) was reasonable; (4) the appraiser did not have to consider the effect, if any, of wife’s right to occupy the family home rent-free during the children’s minority on the value of the property; and (5) husband was not entitled to secure an additional appraisal.

Husband’s timely appeal ensued. (See In re Marriage of Skelley (1976) 18 Cal.3d 365, 368 [an immediate appeal may be taken “[w]hen a court renders an interlocutory order collateral to the main issue, dispositive of the rights of the parties in relation to the collateral matter, and directing payment of money or performance of an act” by or against appellant; “[s]uch a determination is substantially the same as a final judgment in an independent proceeding”]; Bank of California v. Thornton-Blue Pacific, Inc. (1997) 53 Cal.App.4th 841, 846, fn. 2 [“an order which ‘has the effect of a final determination of property rights [citations]’ . . . is appealable although no final judgment has been entered”].)

DISCUSSION

Husband seeks reversal of the trial court orders and remand for a full evidentiary hearing based on both procedural and substantive grounds. As to his procedural arguments, he contends the court failed to conduct the April 24 hearing properly as it consisted “solely of argument of counsel” without the taking of testimony or the admission of written evidence. Further, the court orders purport to interpret the MOA “as a matter of law” while repeatedly relying “on the declarations of the parties and their attorneys” never admitted into evidence. As to his substantive arguments, he contends the court made a number of errors including “writing provisions into the MOA which are not there and which, in many cases, are contrary to logic.”

All of husband’s arguments fail because he ignores certain well-settled principles of appellate review: (1) “ ‘a party challenging a judgment [or order] has the burden of showing reversible error by an adequate record,’ . . . [including] a reporter’s transcript or a settled statement of any hearing leading to the order being challenged on appeal” (Elena S. v. Kroutik (2016) 247 Cal.App.4th 570, 574 (Elena S.); and (2) a reversal and remand for a new hearing cannot be ordered for an evidentiary error or ruling or any matter of procedure asserted on appeal unless an objection on that specific basis is made in the trial court (see Cal. Const., art. VI, § 13; Code Civ. Proc. § 475; Evid. Code §§ 353, 354; Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1).

Husband has not met his burden of showing reversible error as he has not provided an adequate record of the April 24 hearing; he has neither provided a transcript nor has he provided a settled statement, the “viable alternative to a reporter’s transcript.” (Randall v. Mousseau (2016) 2 Cal.App.5th 929, 933; see Id. at p. 934, fn. 4 [appellant has right to secure a settled statement despite decision not to hire a court reporter].) Instead, husband has solely provided the trial court orders, which do not summarize what occurred at the hearing and are therefore not a suitable substitute for “a settled statement,” which is “a summary of the superior court proceedings,” to be used “as the record of the oral proceedings in the superior court, instead of a reporter’s transcript.” (Cal. Rules of Court, rule 8.137.)

Husband relies on cases in which the trial courts either failed to take evidence or had not admitted evidence as shown by the unambiguous and verbatim comments of the trial court and/or parties in those cases. (See In re Marriage of Pasco (2019) 42 Cal.App.5th 585, 587-589 [reversing spousal support order issued without the court ever “taking any evidence,” as shown by a recital of the verbatim remarks made by the court at the trial]; In re Marriage of Shimkus (2016) 244 Cal.App.4th 1262, 1266, 1270-1271 [holding the parties’ declarations in spousal support proceeding had not been automatically admitted into evidence as shown by a recital of the verbatim remarks made by the parties and the court at the hearing].)

Here, we have no record as to what occurred at the April 24 telephonic hearing. The record does not show that husband made a request to present testimony or introduce written evidence. Nor is there any showing that husband had no opportunity to make those requests or that such requests would have been futile. Instead, for all the record now shows, no requests were made to present testimony and the parties’ filed declarations and attached exhibits may have been received by stipulation or without objection.

In fact, it is clear that the parties anticipated and wanted the court to consider their filings and exhibits in resolving their disputes. The declarations, with supporting exhibits, explained the extensive negotiations between the parties and counsel and the circumstances and intentions of the parties at the time of the signing of the MOA. In resolving the disputes, the trial court made the proper analysis as reflected in its orders: it first looked at the plain language in the MOA, and then considered the parties’ filings, exhibits, and oral arguments, in determining whether the parties’ interpretations of the MOA were reasonable or contradicted by the terms of the agreement. (See City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395 [“when . . . ascertaining the intent of the parties at the time the contract was executed depends on the credibility of extrinsic evidence, that credibility determination and the interpretation of the contract are questions of fact”]; AIU Ins. Co. v. Superior Court (1990) 51 Cal.3d 807, 814 [“[u]nder established principles of contract interpretation,” a contract is assessed “according to the mutual intentions of the parties and its ‘plain and ordinary’ meaning” ].)

Further, the parties did not submit the matter to the trial court based solely on their filings and exhibits. They also participated in an April 24 telephonic hearing at which time, at a minimum, the court heard oral arguments from counsel and noted those arguments in its orders. Because there were genuine disputes between husband and wife, we cannot conclude on this record that the April 24 telephonic hearing was a mere formality, and therefore a settled statement of that proceeding would add nothing, as husband would have us conclude. Rather, we must presume that a record of the proceeding would support the court’s rulings. (See Elena S., supra, 247 Cal.App.4th at p. 576 [“[i]n the absence of a proper record, which would include either a reporter’s transcript or a settled statement (neither of which we have in this case), we must presume the trial court acted properly”].)

Consequently, we cannot evaluate husband’s procedural arguments because he has not shown he has preserved for our review his complaints concerning the manner in which the court conducted the April 24 telephonic hearing. Nor can we evaluate his challenges to the court’s substantive rulings regarding the appraisal process and the wife’s right to occupy the family home. No pure questions of law have been raised and our review of the court’s analysis is rendered impossible without a record of what occurred in that court.

Accordingly, we must affirm the orders under review. As the appellant, husband had the burden of furnishing a record of the April 24 hearing and should have obtained a settled statement; “by knowingly forgoing the preparation of . . . a settled statement,” he has “made success on appeal unattainable.” (Elena S., supra, 247 Cal.App.4th at p. 576; see Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.)

DISPOSITION

The July 5, 2019 orders are affirmed. Respondent Moira Willis is awarded costs on appeal.

 

_________________________

Petrou, J.

WE CONCUR:

_________________________

Siggins, P.J.

_________________________

Jackson, J.

A157979/Willis v. Sugiyama