Filed 2/26/20 Marriage of Perkins CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re the Marriage of SHAWNA PERKINS and RONALD PERKINS.

SHAWNA PERKINS,

Appellant,

v.

RONALD PERKINS,

Respondent.

A151702

(Alameda County

Super. Ct. No. HF14741406)

Appellant Shawna Perkins and respondent Ronald Perkins have been involved in an acrimonious marital dispute since Shawna filed a petition for dissolution of marriage in September 2014, a dispute that has generated a 19-page register of actions.

On March 27, 2015, the parties entered into a temporary spousal support order under which Ronald would pay Shawna $4,975 per month. On November 10, 2016, claiming that the information from Shawna that led to the support order was false, Ronald sought a request for order (RFO) to set aside the support order and for other relief. That same day he filed another RFO that sought sanctions “pursuant to CCP 128.7.” And on December 20, Shawna filed an order to show cause for contempt.

The three matters were the subject of a hearing on January 30, 2017, where among other things the court set the matters to be heard on March 15, with Shawna telling the trial court she would appear. The matters came on as scheduled, but Shawna did not appear. The trial court heard extensive evidence from Ronald, and also admitted 41 exhibits. On April 21, the trial court filed a lengthy judgment that found in favor of Ronald, a judgment that among other things (1) set aside the support order; (2) ordered Shawna to (a) pay Ronald child support arrearages and (b) reimburse Ronald for overpayment of spousal support; and (3) awarded Ronald sanctions in the amount of $200,000.

Shawna appeals, asserting eight claims of error. We agree with Shawna on one claim, that attacking the sanctions award, in which respect we reverse the judgment. In all other respects, we affirm the judgment.

BACKGROUND

Introduction

We begin by noting that the parties’ briefing is of little assistance, neither brief being particularly helpful in describing the overall setting, neither brief in compliance with the appellate rules or the authorities applying them, as discussed to some extent here and in more detail below.

Shawna’s opening brief, filed on May 19, 2017, was accompanied by what she called an “Exhibit List” that listed 11 exhibits, labelled “A” through “K.” We described the brief as her “corrected opening brief,” as it was the third brief Shawna had attempted to file. And while we granted permission for her to file it, we accompanied that filing by an order of June 5 that read in pertinent part as follows:

“(1) The Court grants permission to file appellant’s corrected opening brief and exhibits A and B, the reporter’s transcripts dated January 30, 2017 and March 15, 2017. The Clerk of this Court is directed to file appellant’s corrected opening brief and exhibits A and B, but no other exhibits.

“(2) Appellant’s unopposed request for judicial notice filed on May 15, 2019, attaching exhibits C–K is denied. When reviewing this appeal, the Court will disregard those portions of appellant’s corrected opening briefs referencing any exhibits other than A and B, which references and exhibits are outside of the appellate record. The Clerk of this Court is directed to reject exhibits C–K submitted with the corrected opening brief forthwith.”

Ronald’s brief suffers from several infirmities of its own. Many of the claimed developments below are set forth without specific record references, but rather with references that read “IN THE RECORD,” sometimes, but not always, accompanied by references to an exhibit at the hearing below. Ronald’s brief is accompanied by several attached “exhibits,” which is inappropriate as the exhibits were not in the record below. And Ronald’s brief does not address the eight issues raised by Shawna, but rather says that there are two questions presented, neither of which are the arguments made by her. Finally, neither of the briefs sets forth many of the proceedings below that might bear on some of the issues before us.

Against that background, we develop the facts to the best of our ability, including with some minor augmentation of the record with material supplied to us by the Alameda County Superior Court, which we augment on our own motion. (Cal. Rules of Court, rule 8.155(a)(1); Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1570, fn. 3.)

The Parties and the General Setting

Shawna and Ronald married in February 1996, and had three sons, born in 1997, 1999, and 2000. They separated in September 2012. And in September 2014 Shawna filed a Petition for Dissolution.

Ronald had a business that as best we understand serviced the mortgage industry, which business at its peak had 35 offices nationwide. Shawna did not work outside the home. Ronald’s business was successful, and the family acquired significant assets, including a home they bought in 2005 and which, according to Ronald, had a value of $3.5 million. They also had rental properties, retirement accounts, and education funds for the children. Shawna’s brief states that the family took lavish vacations, describing “exotic vacations to Paris, Italy, Spain, the Bahamas, the Cayman Islands, Jamaica, Mexico and Hawaii.”

And then the “market crashed” and the Perkins’ financial situation changed dramatically.

Ronald’s business went from 35 offices nationwide, ultimately to the shutting down of his business. His income went from “substantial” to the point that he was losing $300,000 to $400,000 a month. In Ronald’s words, they “lost everything.” This included their home, which they sold in 2012, their rental properties, and their vehicles. They cashed out their life insurance policies in order to live, as for a while Ronald had no income. The upshot was that, except for life insurance for the benefit of the children and educational accounts for them, no assets remained. Ronald testified that at the time of trial he was a consultant doing business as RDP Capital, which has one person in it, “and it’s me, and really no assets or anything like that.”

In addition to his testimony, Ronald also introduced three income and expense declarations, those of November 15, 2014, and June 15 and November 10, 2016.

But financial issues were not the only issues facing the family, manifest by Ronald’s testimony about an incident that ultimately led to Shawna’s arrest for domestic violence, an incident on February 7, 2014. It began with a disagreement, which led to Shawna accusing Ronald of cheating on her, to her kicking him, which caused him to call 911. It escalated from there, to the point that Shawna attacked him—and then the police officers who had reported to the scene. After the officers interviewed the interested parties, they arrested Shawna, who was then charged with domestic violence. In fact, according to Ronald, Shawna also had “two DUIs pending,” and she ultimately reached a plea deal, which he understood was some guilty plea with a five-year restraining order, plus 52 weeks of anger management. Finally, Ronald testified Shawna violated the restraining order, and hearing on the probation violation was set for April 28, 2017.

The Relevant Proceedings Below

As noted, on January 21, 2015, Ronald entered into an agreement under which he would pay Shawna $4,975 in spousal support. The order was signed by the Honorable Sue Alexander, an order that represents it was “based on the agreement of the parties as recited in open court.” The agreement was based on monthly income amounts of $35,219 attributed to Ronald and $3,000 attributed to Shawna.

As also noted, the register of actions is lengthy and reflects numerous motions, status conferences, settlement conferences, and various hearings, including disputes about discovery, none of which is described by the parties, and apparently is not pertinent here. But one thing we know from the register of actions that is pertinent is that by order of March 31, 2016, the case was reassigned for all purposes to Department 503, the department of the Honorable Alice Vilardi.

On November 10, 2016, Ronald filed an RFO to set aside the order for spousal support and determine arrearages and overpayment of support. That same day Ronald filed another RFO for “sanctions pursuant to CCP 128.7.” Both RFOs were served on Shawna.

On November 15, a hearing was held before Judge Vilardi, at which Shawna was present. Judge Vilardi set the matter for non-jury trial on March 17, 2017.

On December 13, a hearing was held before a temporary judge, the Honorable Deborah Chase, at which Shawna was present. Ronald would not stipulate to the temporary judge, and the matter was continued to January 30, 2017.

On December 20, Shawna filed a pleading on her own, an order to show cause (OSC) and affidavit for contempt, and on January 3, the court signed an order granting a hearing on the OSC.

On January 30, 2017, a hearing was held before Judge Vilardi, the transcript of which is one of the two that are before us. Shawna was present, as was Ronald, who was represented by counsel. Judge Vilardi began by noting there were two pleadings on calendar filed by Ronald and “a related pleading filed by [Shawna] though I don’t see that it’s been served yet.” Shawna replied that she had sent it by mail, and Judge Vilardi responded that “it’s a contempt for non-payment of spousal support,” and explained the rules for service. Judge Vilardi also noted that the OSC was directly related to the other matters on calendar, going on to describe the relationship.

Much discussion followed about discovery, including of material recently obtained via subpoena that, according to Ronald’s counsel, showed Shawna had a bank account into which William Stumpe made significant deposits. The materials included a bank account in Arizona, which, Ronald’s counsel claimed, had been closed. And, counsel asserted, if Ronald “doesn’t receive some relief today, in terms of support set to zero, he’s going to be prejudiced.” Judge Vilardi asked Shawna if she “understood” the request, and Shawna answered “yeah,” going on to assert “I don’t think it’s fair right now, because I am representing myself and I don’t understand all of the family laws and rules of the court yet.” This colloquy followed:

“THE COURT: Well, just a second. That’s the whole point. The point is, the lawyer says, through discovery, they received bank records showing deposits into an account in your name.

“[SHAWNA]: Yeah. It was not an account that I was—it was not my account. It was an account that Mr. Stump[e] forced me to open in my name. They were all funds supplied by him.

“THE COURT: Well, but if the account is in your name, you would have access to the funds.

“[SHAWNA]: I was coerced by Mr. Stump[e].

“MS. HOOKER [Ronald’s counsel]: To receive $65,000?

“THE COURT: Well, I think that’s a sufficient showing to suspend the court-ordered spousal support at least until the trial date of March 15th.

“[SHAWNA]: What about the past spousal support?

“THE COURT: I said a sufficient showing to suspend going forward. So you, ma’am, are going to have to decide whether or not you wish to pursue your contempt for failure to pay spousal support. You understand there’s going to be a defense that the order that you are relying on as being a valid and enforceable court order for support should be set aside because it was secured as the result of inaccurate—I’m not going to use another

adjective—inaccurate information. And I’m not deciding that issue.”

Shawna responded “Right.”

Judge Vilardi went on to explain to Shawna that if she wished to pursue the contempt order, it had to be “personally served.” Shawna answered “Okay,” and the hearing continued with discussion about service, in connection with which Shawna indicated it was difficult for her to get papers to the courtroom. This colloquy followed:

“MS. HOOKER: Maybe we can state it as a stipulation on the record?

“THE COURT: What is your mailing address?

“[SHAWNA]: I have a mailing address of 7172 Regional Street in Dublin.

“THE COURT: And that’s the address that you want to have both the court and the attorney use to mail court documents to you; is that accurate?

“[SHAWNA]: That’s probably the most reliable right now. There is an address where I’m staying at while I’m attending school that it can be sent to.

“THE COURT: Well, let’s use the mailing address. And then you and the attorney can agree to have service accomplished by e-mail. [¶] . . . [¶] And so do you prefer to get your pleadings through the regular U.S. mail; is that your preference?

“[SHAWNA]: Actually, no, e-mail would be better. I just had no way of getting down to this courthouse to file it after I signed it.

“THE COURT: So if there is a stipulation that can be signed, you can do that today. But also, you can agree on the record to accept service by

e-mail. It’s much more efficient. Most people do that anymore.”

Judge Vilardi then set February 24 as the date for a hearing on the OSC, going on to advise as follows:

“THE COURT: 24th. All right. So we’ll provide a reservation number.

“Just so that both parties know, this judicial officer will not be here, but there will be a judicial officer in the department. I’m saying that just because, Ms. Perkins, as you know, there’s quite a bit of history in this case, and because someone new will be considering this one motion, I’m letting you know that you might want to add a little bit of additional history if you think it would be helpful. So you have your reservation number.

“Do you wish also, ma’am, to have the contempt on that calendar for arraignment or whatever else is on. So you’re going to re-serve the contempt with a new date of February 24th; the attorney has agreed to accept that service. So you may do that today or tomorrow. All right?”

Shawna answered “Okay.”

Judge Vilardi then said “And then you’ll be filing whatever it is you need to file. Trial dates are maintained. Anything further?”

Following a question and answer, Shawna asked: “So then the next appearance would be February 24th?” Judge Vilardi said “Yes,” and Shawna said “Okay.”

On February 14, the trial court served a comprehensive pretrial order, six pages in length, containing 26 paragraphs advising the parties of the trial date and their pretrial and trial obligations.

On February 24, Shawna’s contempt proceeding came on for hearing, before Commissioner Paul Slavit, to whom no objection was made. Shawna was sworn, and testified under direct examination, following which the court heard “argument from appellant and counsel for [Ronald].” Commissioner Slavit then entered a minute order that the “matter is continued and shall be heard with all other issues in the case on March 15, 2017.”

Ronald’s counsel was engaged in the pretrial work required, which included serving numerous motions in limine, a memorandum in support of his position at trial, and statements of issues. On March 1, Ronald served his exhibits on Shawna, and that same date filed a declaration in lieu of testimony in support of his request for sanctions.

On March 8, Shawna filed a dismissal, apparently an attempt by her to dismiss the entire case, an attempt the court would deny by order of March 13, when it rejected the dismissal. But of significance here is that the request for dismissal confirmed that Shawna was aware of the scheduled March 15 trial date, and all that was required of her, as it included a copy of the trial court’s lengthy February 14 pretrial order.

As indicated, the matter came on for trial on March 15 before Judge Vilardi. Shawna did not appear, despite her representation to Judge Vilardi on January 30 to the contrary. Judge Vilardi heard extensive testimony from Ronald, in the course of which she also admitted 41 exhibits. At the conclusion of it all, Judge Vilardi ruled that Ronald’s “requests are granted as prayed, with this clarification,” going on to address an IRS related-issue.

On April 21, Judge Vilardi filed her judgment on reserved issues, which, including schedules and attachments, was 35 pages in length. The judgment held as follows:

“(1) [Ronald’s] RFO filed 11/10/16 requesting to set aside the stipulated child and spousal support order filed on 03/27/15, due to the fact the orders were obtained by fraud is GRANTED;

“(2) [Shawna’s] Order to Show Cause and Affidavit for Contempt filed on 01/30/17 is DENIED WITH PREJUDICE;

“(3) [Ronald’s] RFO filed 11/10/16 requesting child support payable to [him], commencing 02/01/15 in the amount of $5,002 is GRANTED . . . ;

“(4) [Shawna] is ordered to pay [Ronald] $125,050 as child support arrearages . . . ;

“(5) Commencing 03/15/17, child support payable to [Ronald] is set at zero . . . ;

“(6) Reimbursement to [Ronald] for overpayment of spousal support to [Shawna] in the amount of $92,087 is ORDERED . . . ; and

“(7) [Ronald’s] RFO filed 11/10/16 requesting $200,000 in sanctions against [Shawna] is GRANTED.”

Judge Vilardi’s judgment included that she “heard evidence and considered Family Code [section] 4320 factors at trial.”

On April 21, 2017, the court served notice of entry of judgment, from which Shawna filed a notice of appeal.

DISCUSSION

Introduction

As noted above, Shawna has filed a brief that in many respects does not comply with the appellate rules or the authorities applying them, many of which were discussed in our opinion in In re Marriage of Davenport (2011) 194 Cal.App.4th 1507 (Davenport). There, the appellant Jill filed a brief that ignored many of the governing principles, causing us to observe as follows:

“California Rules of Court, rule 8.204(a)(2)(C) provides that an appellant’s opening brief shall ‘[p]rovide a summary of the significant facts . . . .’ And the leading California appellate practice guide instructs about this: ‘Before addressing the legal issues, your brief should accurately and fairly state the critical facts (including the evidence), free of bias; and likewise as to the applicable law. [¶] Misstatements, misrepresentations and/or material omissions of the relevant facts or law can instantly “undo” an otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your credibility, may draw sanctions [citation], and may well cause you to lose the case!’ (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2010) ¶ 9:27, p. 9-8 (rev. # 1, 2010), italics omitted.) Jill’s brief ignores such instruction.

“Jill’s brief also ignores the precept that all evidence must be viewed most favorably to Ken and in support of the order. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925–926; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) . . .

“What Jill attempts here is merely to reargue the ‘facts’ as she would have them . . . . [Citations.] In sum, Jill’s brief manifests a treatment of the record that disregards the most fundamental rules of appellate review. [Citation.] As Justice Mosk well put it, such ‘factual presentation is but an attempt to reargue on appeal those factual issues decided adversely to it at the trial level, contrary to established issues percepts of appellate review. As such, it is doomed to fail.’ (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398–399.)” (Davenport, supra, 194 Cal.App.4th at p. 1531.)

All that can be said about Shawna’s briefs here.

But perhaps the most significant violation in Shawna’s briefs is how she attempts to set forth the facts, which is to merely state something without any record reference, and let it go at that. Two illustrations should suffice.

As noted above, Ronald testified at length and in detail to an incident on February 7, 2014, that resulted in Shawna being charged with domestic violence. Shawna’s reply brief asserts, without record reference, that Ronald’s testimony was false, saying this: “Ron intentionally misleads the court by erroneously contending Shawna was convicted of domestic violence. Ron fabricated allegations of domestic violence, drug abuse, and prostitution in an attempt to gain a tactical advantage as to custody of their then minor children and in an attempt to avoid his spousal support obligation. Shawna was never charged with or convicted of domestic violence and her DUI probation was never revoked.” Along the same lines, on the next page Shawna says: “Therefore Ron’s reliance on In re Marriage of Cauley (2006) 138 Cal.App.4th [1100] does not apply as Shawna was never charged or convicted of domestic violence.”

As to this, we note that the exhibits introduced below included Exhibits O and P, the criminal complaint and amended complaint filed against Shawna respectively on February 13 and June 3, 2014, the former for battery and the latter for four counts of driving under the influence on two separate dates in 2014. They also include Exhibit Q, the Petition to Revoke Probation filed on January 13, 2016. Also introduced were Exhibits T and U, the latter being an excerpt from Shawna’s responses to special interrogatories, one of which asked, “Please identify any and all efforts you have made toward complying with court sentencing requirements for your criminal convictions that have occurred within the past two-years.” Shawna answered under oath, “[Shawna] attends DUI classes, Domestic Violence classes every week, domestic violence counseling, and she has performed her community service as required. She also has a breathalyzer device installed on her vehicle.”

As indicated above, Ronald’s RFO was based in part on information obtained in discovery concerning substantial payments to Shawna by Stumpe and his company, Staybright Electric, as well as payments on her behalf for credit card obligations. Shawna’s opening brief attempts to simply dismiss all of this, at one point going so far as to say this: “On page 27–30 of the trial transcript (EXHIBIT B), it is clear by the date of Stumpe’s request for appellant to open the account, by the dates and amounts of the deposits (including his memos on the deposited checks), and the date the account was closed that Stumpe intentionally and maliciously organized this scenario for his personal retaliation and civil entrapment. Even if the court considered the account as a gift or bonus it still does not meet the requirements to be considered income because it did not bear a reasonable relationship to the traditional meaning of income as a recurrent monetary benefit. The deposits were not received regularly for a long period of time and there was NO assurance that Stumpe would continue to make deposits.”

Shawna’s reply brief is even bolder, with this assertion, again without any reference whatsoever: “Staybright Electric did not pay any of Shawna’s living expenses. Staybright Electric did not give Shawna rent free housing. Staybright Electric did not purchase a vehicle for Shawna’s personal use or enjoyment. Shawna properly disclosed her then income by supplying Ron with her employment pay stubs as well as her filed tax returns.”

Summary of Shawna’s Arguments

Shawna makes eight arguments, six of which assert that Judge Vilardi abused her discretion, specifically as follows: (1) determining the parties’ income; (2) terminating jurisdiction over spousal support; (3) terminating spousal support; (4) awarding $200,000 in sanctions; (5) not awarding Shawna community property; and (6) ordering repayment of spousal and child support. The other two arguments are that Judge Vilardi erred in not “considering the severe distress appellant was suffering” and “abuse of process, fraud and bias.”

The Abuse of Discretion Standard of Review

As a general rule, “we review spousal support orders under the deferential abuse of discretion standard. [Citation.] We examine the challenged order for legal and factual support. ‘As long as the court exercised its discretion along legal lines, its decision will be affirmed on appeal if there is substantial evidence to support it.’ [Citations.] ‘To the extent that a trial court’s exercise of discretion is based on the facts of the case, it will be upheld “as long as its determination is within the range of the evidence presented.” ’ ” (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443.) As described by our colleagues in Division Three: “Although patterns in marital breakups emerge, each couple has such a diverse mix of circumstances that trial courts must have broad discretion in weighing and balancing the various factors in each particular marriage before making a suitable support award. A trial court will not be reversed absent an abuse of that discretion. An abuse ‘occurs when, after calm and careful reflection upon the entire matter, it can be fairly said that no judge would reasonably make the same order under the same circumstances.’ [Citations.] Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders. [Citation.]” (In re Marriage of Ostler & Smith (1990) 223 Cal.App.3d 33, 50; accord, In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 207.)

As the Supreme Court has put it, “A ruling that constitutes an abuse of discretion has been described as one that is ‘so irrational or arbitrary that no reasonable person could agree with it.’ [Citation.]” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)

Parties’ Income

Shawna’s first argument is that Judge Vilardi abused her discretion in determining the parties’ income. Passing over whether abuse of discretion is the proper test for this argument, we observe at the outset that Shawna’s argument purports to cite to various items that our June 5 order allowing her to file her brief specifically said we will not consider. These items include what Shawna refers to as “Ron’s bank statements” and some “unfiled . . . tax returns,” none of which was in evidence below. Moreover, Shawna nowhere demonstrates that the documents mean what Shawna says they mean. But beyond all that, Judge Vilardi heard Ronald testify at length—and under oath—as to the details of his income, some of which is discussed above, and also had before her three income and expense declarations made under penalty of perjury.

As the Supreme Court put it almost 100 years ago, “abuse of discretion is never presumed and it must be affirmatively established.” (Wilder v. Wilder (1932) 214 Cal. 783, 785.) Shawna has not established it here.

Terminating Jurisdiction over Spousal Support

Shawna’s second argument is that Judge Vilardi abused her discretion in terminating jurisdiction over spousal support, arguing that “under Family Code section 4336 retention of jurisdiction is the rule.” Maybe it is, but Family Code section 4336, subdivision (c) provides that “[n]othing in this section limits the court’s discretion to terminate spousal support in later proceedings on a showing of changed circumstances.” That was the situation here. (See In re Marriage of Christie (1994) 28 Cal.App.4th 849, 858.)

Termination of Spousal Support

Shawna’s third argument, and the one that makes up the largest portion of her brief, is that Judge Vilardi abused her discretion in terminating spousal support. The argument is seven pages long and has four subparts, that Judge Vilardi: “A) Failed to properly consider the circumstances listed in Family Code [section] 4320”; “B) Failed to properly consider Family Code [section] 4322”; “C) Failed to consider the material change of circumstances requirement”; and “D) Erred in admitting hearsay.”

Before turning to discussion of Shawna’s four arguments, we note that Family Code section 4325 provides in subdivision (a) as follows:

“In a proceeding for dissolution of marriage where there is a criminal conviction for a domestic violence misdemeanor or a criminal conviction for a misdemeanor that results in a term of probation pursuant to Section 1203.097 of the Penal Code perpetrated by one spouse against the other spouse entered by the court within five years prior to the filing of the dissolution proceeding or during the course of the dissolution proceeding, there shall be a rebuttable presumption that the following shall apply: (1) An award of spousal support to the convicted spouse from the injured spouse is prohibited.”

Ronald cites to this section as support for the termination order, a fact Shawna does not even mention in her reply brief. And in support of his argument, Ronald cites to In re Marriage of Cauley (2006) 138 Cal.App.4th 1100 (Cauley), where the Court of Appeal affirmed the trial court order granting the former husband’s motion to terminate spousal support based on the former wife’s conviction of domestic violence against him—indeed, despite a settlement agreement that provided spousal support was not subject to modification or termination. The Court of Appeal held that the public policy manifest by Family Code section 4325 outweighed any interest in enforcement of the settlement agreement. (Id. at pp. 1106–1107.)

While, as quoted above, Shawna does mention Cauley in her reply brief, what she says is this: “Therefore Ron’s reliance on In re Marriage of Cauley (2006) 138 Cal.App.4th [1100] does not apply as Shawna was never charged or convicted of domestic violence.” This, of course, is belied by the record.

The leading California commentary on family law distills the law this way: “Documented evidence of any history of domestic violence (as defined by [Fam. Code,] § 6211 . . .) between the parties . . . is one of the statutory factors to be considered and weighed in adjudicating spousal support. Documented evidence that must be considered includes, but is not limited to, a nolo contendere plea, emotional distress resulting from domestic violence perpetrated against the supported party, . . . issuance of a protective order following a [Family Code section] 6340 hearing, and a finding made during the pendency of a divorce, separation or child custody proceeding, other proceeding under [Family Code section] 6200 et seq., that the spouse has committed domestic violence. (Fam. Code, § 4320, subd. (i), as amended by Stats. 2018. Ch. 983, eff. January 1, 2019; see also In re Marriage of MacManus (2010) 182 Cal.App.4th 330, 337–338.)” (Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group 2019) ¶ 6:824.5,

p. 6-436.)

In any event, none of Shawna’s four arguments has merit.

As to the “[Family Code] section 4320 factors,” Shawna’s brief acknowledges that Ronald’s attorney “alleges to cover [the Family Law section 4320 factors] but fails to properly do so.” Shawna’s brief goes on to list 11 items that Ronald’s counsel “alleges to cover,” concluding with this: “None of the [section] 4320 factors that [Ronald’s counsel] alleges to have covered determine that spousal support and jurisdiction should be terminated. However it is clear from the trial transcript that appellant’s earning capacity is not sufficient to maintain the standard of living established during the marriage.” Shawna then lists the factors, and then cites some cases setting forth some boilerplate principles. It is not availing.

It is enough to note, as quoted above, that Judge Vilardi’s judgment expressly states that she “heard evidence and considered Family Code [section] 4320 factors at trial.”

Shawna next argues that Judge Vilardi failed to properly consider Family Code section 4322, a brief, 15-line argument that cites nothing, not even Family Code section 4322, which pertains only in a marriage where there are no children. What it does assert is this: “Ron speculates that Stumpe would support appellant in the future based on the alleged evidence of deposits Stumpe made in the First Bank account. The First Bank account was not a gift or a bonus. Stumpe[’s] real purpose for the account was for civil entrapment and to cause emotional and financial distress. At the time of the alleged deposits Stumpe was preparing Staybright Electrics lawsuits against appellant. The deposits do not reflect a certain amount of money given at regular intervals therefore they can not be construed as income for spousal support. [¶] Even if the First Bank account was for appellant’s use (which it was not) Ron failed to prove that Stumpe would continue to fund it.”

Judge Vilardi had before her extensive evidence, including records attached via the deposition officer (Evid. Code, § 1560), that showed Shawna was living beyond the marital standard of living based on the money that had been paid directly to her and on her credit card obligations by Staybright Electric and/or Stumpe. Moreover, Shawna represented throughout, in verified documents and declarations, that Stumpe was her employer. In short, the evidence demonstrated that the consideration Shawna received, including payments of her expenses during that time, was properly attributable to her as income for purposes of calculating child and spousal support.

Shawna’s third subargument, that Judge Vilardi failed to consider the material change of circumstances requirement, is fatuous. The subargument begins with this unsupported claim: “At the time Ron filed the motion to set aside spousal support the ONLY material change of circumstance since the order was initially made was an increase of Ron’s income and a decrease in appellant’s income. At the time Ron filed the motion to set aside spousal support his income had doubled since the original order was made as his bank statements show actual employment deposits of $64,239 PER MONTH. While appellant’s income decreased to zero.” The discussions above, including Ronald’s testimony and exhibits at trial, defeat this claim.

Shawna’s last subargument is that Judge Vilardi erred in admitting hearsay, referring to an attachment to Ronald’s November 10, 2016 motion and a declaration of Ronald’s counsel.

It is enough to note that Shawna does not establish that a timely and specific objection on this ground was made at the time the evidence was offered in evidence. Without proof of such an objection, the claim was not preserved for review. (Evid. Code, § 353, subd. (a); People v. Abel (2012) 53 Cal.4th 891, 924.) So, even if Shawna were correct in characterizing the evidence as hearsay, with no objection she cannot argue that the evidence was inadequate to support the judgment. “The lack of timely objection to the hearsay rendered it competent evidence and removes all power in this court to reverse.” (Frudden Enterprises, Inc. v. Agricultural Labor Relations Bd. (1984) 153 Cal.App.3d 262, 269; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 369, p. 427 [“Incompetent or otherwise inadmissible evidence admitted without objection will sustain the judgment”].)

But even if hearsay was admitted, there is no showing that Judge Vilardi considered it. “As an aspect of the presumption that judicial duty is properly performed, we presume . . . that the court knows and applies the correct statutory and case law [citation] and is able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decision making process.” (People v. Coddington (2000) 23 Cal.4th 529, 644.) Stated another way, a trial court is presumed to ignore material it knows is incompetent, irrelevant, or inadmissible. (E.g., Harris v. Rivera (1981) 454 U.S. 339, 346; Gonzales v. Nork (1978) 20 Cal.3d 500, 510; People v. Charles (1967) 66 Cal.2d 330, 338, fn. 12.) These presumptions are based on the difference between lay jurors and judges: “ ‘The juror does not possess that trained and disciplined mind which enables him . . . to discriminate between that which he is permitted to consider and that which he is not.’ ” (People v. Albertson (1944) 23 Cal.2d 550, 577; accord People v. Williams (1970) 11 Cal.App.3d 970, 977–978.) Only proof that the evidence actually figured in the court’s decision will overcome these presumptions. (White v. White (1890) 82 Cal. 427, 452; Claremont Press Publishing Co. v. Barksdale (1960) 187 Cal.App.2d 813, 818.) No such proof is present here.

Sanctions

Shawna’s next argument contends that Judge Vilardi abused her discretion in awarding the $200,000 in sanctions. We agree, though based on a reason different from that urged by Shawna.

An abuse of discretion is shown if the court applies the incorrect law, as we held, for example, in Karuk Tribe of Northern California v. California Regional Water Quality Control Bd., North Coast Region (2010) 183 Cal.App.4th 330, 363, fn. 25: “Acting contrary to specific statutory command, or applying an incorrect legal standard, is accepted as proof of discretion abused.” (Accord, In re Shannon M. (2013) 221 Cal.App.4th 282, 289; Gardner v. Superior Court (2010) 185 Cal.App.4th 1003, 1015; People v. C.S.A. (2010) 181 Cal.App.4th 773, 778.) That is the situation here.

As noted, Ronald’s RFO was “for Sanctions Pursuant to CCP 128.7.” The RFO was filed on November 10, 2016, and as best we can tell was served on Shawna that same day, setting the matter for hearing on December 13, 2016. But Code of Civil Procedure section 128.7 provides that such a motion may not be filed until 21 days after it is served. This is the “safe harbor” provision, and it is mandatory. (Li v. Majestic Industry Hills LLC (2009) 177 Cal.App.4th 585, 588; In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1220, fn. 3.)

In light of this, we requested supplemental briefs addressing whether the safe harbor requirement was met here, and if not, the effect on the order awarding sanctions. We received such briefing, and held oral argument on the issue. And conclude that the sanctions award cannot stand.

Ronald’s supplemental brief was less than one-page long, consisting of eight short paragraphs. The first paragraph acknowledges that Ronald “did not provide the required 21-day safe harbor notice to [Shawna] as required in order for the court to grant a sanctions request under CCP 128.7.”

The second paragraph asserts that Ronald’s “RFO for Sanctions, filed 11/10/16, however, requested sanctions in the amount of $200,000, under 3 separate legal theories. [Ronald] cited CCP 128.7, but also requested specific relief under [Family Code section] 271, and [Family Code section] 3667 (See ‘Further Basis for Sanctions,’ pgs. 13–14 of [Ronald’s] RFO, filed 11/10/16, citing further requests for sanctions).” We are not persuaded.

Ronald’s RFO for sanctions was “pursuant to CCP 128.7,” and the points and authorities supporting the RFO were nine single-spaced pages, eight of which cited and discussed Code of Civil Procedure section 128.7 and Federal Rules of Civil Procedure, rule 11, the analogous rule in the federal system. The last page did say “additional basis for sanctions,” following which there were three paragraphs, the first paragraph a quotation of Family Code section 3667, the other two quotations from Family Code section 271, subdivision (a). They do not avail Ronald.

As to Family Code section 3667, it allows the court to award “sanctions . . . in the form of payment of all costs of the motion,” which does not support $200,000. And as to Family Code section 271, it provides, as Ronald quotes, “The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed.” This admonition was not heeded, not in light of the record here.

Community Property

Shawna next claims that Judge Vilardi abused her discretion in not awarding her any community property. Again, Shawna cites no law in support, her entire argument being in these seven lines: “Ron would not allow appellant to take all of her personal items (including but not limited to clothing, shoes, handbags, golf clubs, her bowling ball, etc. . . .) or any of the home furnishings despite appellant’s many requests. Appellant was denied the use of her 2010 Chevrolet Suburban. Ron also failed to list the Suburban on any of his asset declarations which was in his possession at the time of separation although appellant suspects he sold it which is a violation [of] the automatic order of protection for community property in all marital dissolution proceedings.”

We reiterate, “abuse of discretion is never presumed and it must be affirmatively established.” (Wilder v. Wilder, supra, 214 Cal. 783, 785.) Shawna has not established it here. Beyond that, we note that the most fundamental rule of appellate review is “a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.)

Repayment of Spousal and Child Support

Shawna’s last abuse of discretion argument, attacking the order requiring repayment of spousal and child support, consists of five lines: “Child support was ordered (not stipulated) by judge Sue Alexander on January 21, 2015. The judgment required appellant to pay Ron $125,050 for the payment of child support based on the false imputation of both Ron and appellant’s income. The judgment also required appellant to pay Ron $92,087 for reimbursement of spousal support based on the same false imputation of both Ron and appellant’s income.” That is it. It is insufficient.

Distress

Shawna argues that Judge Vilardi erred “in not considering the severe distress appellant was suffering,” specifically “severe anxiety, depression, emotional and financial distress.” Litigation is a stressful event for all concerned, and may be especially so in family court. That said, Shawna does not establish how any claimed distress constitutes a legal basis for overturning the judgment.

Abuse, Fraud, and Bias

Lastly, Shawna argues “abuse, fraud and bias,” apparently all directed at Judge Vilardi.

Initially, we note that a showing of bias cannot be based on rulings adverse to a party, a rule that pertains even if rulings were erroneous. (Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 59–60.) Moreover, even if judicial bias were present—and the examples Shawna cites do not suggest it—the remedy was a petition for extraordinary relief.

(Code Civ. Proc., §170.3, subd. (d); PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 970–971; 7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 243, p. 295.) In other words, the claim of bias cannot be entertained here. (See People v. Johnson (2015) 60 Cal.4th 966, 978–979 [a party “may not go to trial before a judge . . . then assert for the first time on appeal that the judge was biased”].)

As to any claimed factual support for the argument, Shawna asserts, apparently referring to the hearing on January 30, 2017, that “there was no consistency in Judge Vilardi’s treatment of Ms. Hooker [counsel for Ronald] and appellant. On page 2 of the trial transcript Judge Vilardi suggests a defense is to [sic] appellant’s motion for contempt. Also on page 2 Judge Vilardi does not allow appellant to finish her statement. On page, 6, 7 and 8, Judge Vilardi is giving Hooker advice on what to file and asking to be ‘helpful.’ On the contrary, on page 12 Judge Vilardi merely says to appellant ‘and then you’ll be filing whatever it is you need to file.’ That’s bias, impropriety, and prejudice all wrapped up in one confidence crushing backhanded comment that has forever tainted appellant’s opinion of our justice system.” We do not share Shawna’s reading of the record.

Finally, Shawna’s argument ends with this:

“Principles of judicial accountability.

“The judicial branch of government must be accountable for the effectiveness of the judicial process.

“Principles of judicial accountability include:

“a) Judges should provide reasons for their decisions;

“b) Judicial decisions should be rendered in a timely fashion;

“c) Judges must act and be seen to act in a fair and reasonable manner;

“d) Judges must be accountable to the public and the public interest.”

We agree with Shawna on these points—and fail to see how they were not manifest here.

DISPOSITION

The judgment is reversed insofar as it awards sanctions against Shawna. In all other respects the judgment is affirmed. Each party will bear their own costs.  

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Miller, J.

In re Marriage of Perkins (A151702)