Filed 4/22/20 Marriage of Ford CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Plumas)

—-

In re the Marriage of CYNTHIA and EARL FORD.

CYNTHIA FORD,

Respondent,

v.

EARL FORD,

Appellant.

C087406

(Super. Ct. No. FL1600017)
Earl Ford (husband) appeals from a judgment dissolving his marriage to Cynthia Ford (wife), in which the trial court also divided the parties’ marital estate. On appeal, husband claims the trial court erred in characterizing his settlement with the Equal Employment Opportunity Commission (EEOC) as community property and dividing it equally between the parties. Husband also claims the trial court erred in finding a $30,000 loan made by husband to a third party was an intentional misappropriation of community property, ordering husband to return $15,000 to wife.

With no reporter’s transcript in the record on appeal, we are bound to presume sufficient evidence supports the trial court’s findings. Accordingly, we affirm the judgment.

BACKGROUND

Husband has elected to proceed on a clerk’s transcript. (Cal. Rules of Court, rule 8.121.) Thus, the appellate record does not include a reporter’s transcript of the hearing in this matter. This is referred to as a “judgment roll” appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083 (Allen); Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)

The limited record on appeal establishes that in January 2015, husband filed with the EEOC a claim for discrimination based on age and race against his former employer, the United States Department of Agriculture Forest Service (USDA). Husband settled his claim with the USDA in October 2015.

The settlement agreement included the following language: “In consideration of [husband’s] agreement to the terms set forth in this Agreement, the Agency, therefore, agrees to:

“a. Pay [husband] a lump sum of one hundred thousand dollars ($100,000.00[)] paid directly to [husband], which is inclusive of any and all pecuniary, non-pecuniary, compensatory damages, and other damages of any type (including pain, suffering, and medical), arising out of or regarding [husband’s] employment with the Agency through the Effective Date of this Agreement, in the form of an electronic transfer to [husband].

“[¶] . . . [¶]

“b. Pay [husband’s] reasonable attorney’s fees, costs and expenses, in the amount of twenty-five thousand dollars ($25,000.00), in accordance with 29 C.F.R. § 1614.501(e).”

In exchange, among other things, husband agreed to “waive any and all claims for monetary relief (pecuniary compensatory damages, non-pecuniary compensatory damages, back pay, front pay, etc.) against the Agency that he has raised or could have raised through the Effective Date of this Agreement.”

That $100,000 was reported to the Internal Revenue Service in January 2016 as income to husband.

On January 31, 2018 and February 1, 2018, the court heard testimony and considered written evidence prior to entering judgment dissolving the parties’ marriage on April 9, 2018. As relevant here, the court noted that husband testified the $100,000 he received in his settlement with the USDA was the “result of personal injuries” he suffered. The court found, however, that husband failed to present any evidence to support that claim. Accordingly, the court concluded the settlement money was community property and divided it equally between the parties.

The court also found that in March 2016, husband issued a promissory note in the amount of $30,000 to a third party without the knowledge or consent of wife. This, the court concluded, was a breach of husband’s fiduciary duty to wife. The court ordered husband to pay half that amount, $15,000, back to wife.

Husband challenges these rulings on appeal.

DISCUSSION

I

Legal Principles

“A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “This presumption has special significance when, as in the present case, the appeal is based upon the clerk’s transcript.” (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) In a “judgment roll” appeal, we must conclusively presume evidence was presented that is sufficient to support the court’s findings. (Ibid.) “ ‘[The] question of the sufficiency of the evidence to support the findings is not open.’ ” (Allen, supra, 172 Cal.App.3d at p. 1082.) We do not presume the record contains all matters material to a determination of the points on appeal unless the asserted error “appears on the face of the record.” (Cal. Rules of Court, rule 8.163; National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521.) “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” (Riley v. Dunbar (1942) 55 Cal.App.2d 452, 455.)

II

EEOC Settlement

Husband contends the trial court erred in characterizing his EEOC settlement as community property. In support of his contention, husband argues his settlement is one for injuries personal to him that can be characterized as separate property under Family Code section 2603. The record on appeal does not support husband’s contention.

Personal injury damages are those that compensate a person for personal anguish, suffering, disfigurement, or loss of earning capacity. (See, e.g., In re Marriage of Briltz (1983) 141 Cal.App.3d 17, 20 [disability benefits are akin to damages for personal injury because they compensate for personal anguish, suffering, disfigurement, or loss of earning capacity].) Personal injury damages received by one spouse during marriage are “a species unique to the Family Law Act; they are held as community property during marriage, but upon dissolution such damages are subject to special assignment rules.” (In re Marriage of Devlin (1982) 138 Cal.App.3d 804, 807.) Upon dissolution of the marriage, Family Code section 2603 mandates that community estate personal injury damages be allocated to the spouse who suffered the injury unless the court finds the “interests of justice” require a different allocation.

“ ‘The finding of a trial court that property is either separate or community in character is binding and conclusive on the appellate court if it is supported by sufficient evidence, or if it is based on conflicting evidence or upon evidence that is subject to different inferences; . . .’ [Citations.]” (Beam v. Bank of America (1971) 6 Cal.3d 12, 25, see also Millington v. Millington (1968) 259 Cal.App.2d 896, 915.)

Here, during the parties’ marriage, husband filed a discrimination claim with the EEOC, arguing he was discriminated against by the USDA based on his age and race. Husband and the USDA settled that claim for $100,000 prior to the parties’ separation. Husband cites no legal authority to support a theory that a claim for discrimination is akin to a claim for personal injuries, like a claim for disability may be. (See In re Marriage of Briltz, supra, 141 Cal.App.3d at p. 20 [claim for disability may be akin to personal injury claim].)

Additionally, the evidence in the record indicates the settlement reached between husband and the USDA covered “any and all” damages as a result of personal anguish, suffering, disfigurement, or loss of earning capacity. Thus, the language of the settlement agreement is not evidence that any portion of the money paid to husband was intended to compensate husband for personal injuries, much less all of the money.

Accordingly, in the absence of a reporter’s transcript of the contested hearing, we are bound to presume sufficient evidence was presented to the trial court to support its finding husband’s EEOC settlement was entirely community property, to be divided equally between the parties. (In re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133 [all intendments and presumptions are indulged to support validity of order]; R.D. v. P.M. (2011) 202 Cal.App.4th 181, 186, fn. 5 [court presumed alleged facts were found to be true, and that a restraining order was fully supported by the evidence where the record on appeal did not contain any record of the trial court hearing].)

III

Misappropriation of Community Assets

Husband also contends there was insufficient evidence to support the trial court’s finding he intentionally misappropriated community assets by loaning $30,000 from his EEOC settlement to a third party. Whether there was sufficient evidence to support the trial court’s finding is a question that is foreclosed on a judgment roll appeal. (Allen, supra, 172 Cal.App.3d at p. 1082.) Without a reporter’s transcript, we must presume there was sufficient evidence to support the trial court’s finding. (Ehrler v. Ehrler, supra, 126 Cal.App.3d at p. 154.) Husband’s contention thus fails.

DISPOSITION

The judgment is affirmed. Respondent Cynthia Ford, is awarded her costs on appeal.

/s/

HOCH, J.

We concur:

/s/

BLEASE, Acting P. J.

/s/

DUARTE, J.