Filed 11/22/19 Marriage of Abieanga CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

In re the Marriage of EDWIN ABIEANGA and CHERIE ABIEANGA.

EDWIN ABIEANGA,

Appellant,

v.

CHERIE ABIEANGA,

Respondent.

F078439

(Super. Ct. No. 8004068)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Stanislaus County. Jack M. Jacobson, Judge.

Edwin Abieanga, in pro. per., for Appellant.

No appearance for Respondent.

-ooOoo-

In this marriage dissolution proceeding, appellant challenges a judgment that held him responsible for damage done to community property—the family residence in Riverbank—and directed him to pay his former wife $28,310. Appellant contends the family court had no personal jurisdiction over him and no subject matter jurisdiction over the alleged damage to the residence.

Applying well-established principles of law, we conclude the family court acquired jurisdiction over appellant when he submitted to that jurisdiction by filing the petition for dissolution of marriage. As described below, the family court had continuing jurisdiction to resolve the dispute relating to the family residence pursuant to Code of Civil Procedure section 410.50, subdivision (b). In addition, appellant has not carried his burden of demonstrating the family court erred when it determined (1) the pleadings were adequate, (2) the evidence presented at trial was admissible, and (3) the evidence was sufficient to prove he damaged community property and owed his former wife $28,310. As explained below, without the document containing the challenged allegations and without a reporter’s transcript showing what happened at the trial, the information in the appellate record is insufficient to demonstrate appellant’s claims have merit.

We therefore affirm the judgment.

FACTS AND PROCEEDINGS

On July 29, 2016, appellant Edwin Abieanga initiated this family law proceeding by filing (1) a petition for dissolution of his marriage with respondent Cherie Abieanga and (2) a domestic violence petition with minor children. Their three children were born in 2009, 2010, and 2015.

On August 22, 2016, Cherie filed a response and an answer. Item 3 of the judgment of dissolution, which was filed on September 21, 2018, stated, “[t]he court acquired jurisdiction of the respondent on (date): 8.22.16.” Also, the box for item 3.b was checked, which appears immediately before the statement “The respondent appeared.” Because the judgment identifies Cherie as the respondent, item 3 of the judgment should be interpreted as a statement that the court acquired jurisdiction over Cherie on August 22, 2016, which is the date she filed her answer and appeared in the matter.

On February 21, 2017, the family court held a hearing on Edwin’s August 3, 2016, request for an order addressing child custody and visitation. Edwin and Cherie were present at the hearing and both were represented by an attorney. The family court’s order after the hearing granted Cherie sole physical and legal custody of the children and allowed Edwin visitation under the supervision of Sierra Vista Child and Family Services. The order also directed Cherie to complete a parenting class, directed Edwin to attend counseling for parenting and anger management, and continued the matter to July 26, 2017, for a long cause hearing on Cherie’s objection to the restraining order.

On April 4, 2017, the family court held a hearing at which Edwin was present and represented himself. Cherie was present and represented by an attorney. Later that day, the court filed “Findings and Order After Hearing,” which stated the parties had agreed to Edwin paying child support of $500 per month.

On April 2, 2018, Edwin filed a motion to strike or dismiss the case with prejudice. Edwin listed his address as being in Marietta, Georgia. Edwin’s motion stated he was making a special appearance, was not submitting to the court’s jurisdiction, was participating under threat, duress and coercion, and was requesting dismissal of the case with prejudice. Edwin asserted (1) Cherie and her attorney were deceiving the court about damages to the family residence located in Riverbank and were “struggling to complain that [Edwin] violated the laws of the ‘state;’ ” (2) Cherie had failed to present a cause of action or crime; and (3) this failure deprived the court of jurisdiction. Edwin requested the court to provide full findings of fact and conclusions of law if it denied his motion. A paragraph in the motion addressed the lack of jurisdiction by stating:

“Because there is no corpus delecti, there is no crime. Yes, there is a so-called ‘complain’ [sic] alleged on paper (if this alleged to be a criminal proceeding), but the allegation fails to meet every legal standard of what a crime is because there is no cause of action, or legal injury pled. American governments are established for the sole purpose of protecting rights; a true crime requires the violation of a legal right. Alleged Petitioner [(i.e., Edwin)] is not accused of violating anyone’s legal rights, therefore, there is no crime/case or cause of action pled and the court has no jurisdiction.”

Another section of the motion asserted no facts had been pleaded to prove Edwin’s presence within the state and that the laws of California applied to him. Edwin argued that evidence of such was essential to prove jurisdiction. He also stated:

“Mere geographic location is not evidence of presence within the alleged respondent, State of California. It’s impossible to prove my presence within the alleged respondent’s State of California beyond a reasonable doubt or a preponderance of evidence. The State of California, while obviously not geographic, is at best political as it did not exist prior to 4 July 1776. [¶] The phrase State of California appears to be not much more than a dba or pseudonym for lawyers and police officers. [¶] As the laws of the state only apply within the state, there is no evidence, and nothing alleged, the laws of the state apply to me. [¶] If this is a criminal proceeding, then the assigned judge is obligated to presume my innocence until it is proven beyond a reasonable doubt. The judge may not assume the law is applicable now because it is an essential element of the alleged complain [sic]. [¶] Last, the argument the laws apply to me just because I’m physically in California has no factual support. All the court has at this point is a proposed and deceptive marital settlement agreement filed by [Cherie’s] attorney, deceiving the court of a damages to the property … [in] Riverbank, CA. Such wanton advancement by crooks are not evidence the laws apply just because I am physically in California. At best, all the respondent may do is offer more argument and opinion, no facts proving the laws of the ‘state’ apply to me just because I am physically in California. Because the court has no jurisdiction over me, the court cannot and does not have jurisdiction to hear this case. I move the court to immediately dismiss this case with prejudice.”

Edwin’s motion also argued the court’s jurisdiction may not be enlarged due to custom and stated all his “interactions with government employees are under threat, duress, and coercion, only to avoid further aggression against me and are not a waiver of jurisdiction.” This statement about threats and coercion probably refers to actions taken by the Stanislaus County Department of Child Support Services, which Edwin asserts threatened suspension of his licenses, which would make it more difficult to earn a living.

On June 25, 2018, the family court held a court trial. Edwin did not appear. Cherie and her attorney appeared at the court trial. Cherie and two other witnesses testified on her behalf at the trial. Two exhibits presented by Cherie were received into evidence by the court.

The family court’s findings and orders after the court trial were set forth in an amended minute order dated June 29, 2018. The amended minute order stated: “Jurisdictional facts are established.” Although the minute order did not explicitly deny Edwin’s motion to strike or dismiss, it appears this determination was included to address the jurisdictional arguments raised by Edwin’s motion. The minute order also (1) confirmed earlier orders addressing custody and support of the children; (2) reserved the issue of spousal support through the end of 2020; (3) restored Cherie’s former name; (4) divided assets and debt; and (5) confirmed Edwin owed Cherie a balance of $1,475 in attorney fees previously ordered. In addition, the amended minute order stated:

“After testimony Court finds [Edwin] caused damage to the family residence that required repairs in the amount of $63,897. [Edwin] owed [Cherie] 1/2 of this amount $31,949 for her loss of equity in the sale of the family residence.

“House sale net proceeds were $5,428 and Insurance payment of $1,850 for total of $7,278. Each party was entitled to $3,639. [Cherie] will be entitled to receive the entire $7,278 from the attorney trust account. [Edwin] will be credited $3,639 against $31,949 for balance of $28,310.”

On September 21, 2018, the family court filed a judgment of dissolution using mandatory Judicial Council form FL-180. The judgment stated the marital status of the parties ended on June 25, 2018, and ordered the division of property as set forth in the findings and order after the June 25, 2018, court trial. The same day the judgment was filed, a deputy clerk filed a notice of entry of judgment, which included a certificate stating a copy of the notice had been mailed to Edwin at an address in Bakersfield and to Cherie’s attorney at an address in Modesto.

On November 14, 2018, Edwin filed an answer to complaint or supplemental complaint regarding parental obligation on Judicial Council form FL-610. Edwin, who was representing himself at the time, listed his address as being in Smyrna, Georgia. In item 4 of the form, Edwin checked the box stating, “I disagree with the proposed judgment for the following reasons (specify): The court does not have jurisdiction to hear this case. [Cherie] has not provided evidence of jurisdiction in this case.” A certificate of service attached to the form stated that on November 14, 2018, Edwin had mailed a copy to the Stanislaus County Department of Child Support Services at a post office box in Modesto.

On November 15, 2018, Edwin filed a notice of appeal that stated he was appealing the judgment after court trial entered on September 21, 2018. His notice designating record on appeal requested a reporter’s transcript of the proceedings on June 25, 2018, and June 29, 2018. In January 2019, a deputy clerk filed a declaration noting Edwin’s request for reporter’s transcripts and stated: “A reporter was not in the courtroom for these proceedings; therefore, there is not a reporter’s transcript available.” The declaration also stated the deputy clerk could not locate the documents described in the notice designating record as “Motion to Strike/Dismiss With Prejudice” and “Motion to Modify Order and Stay Proceedings.” However, documents with these labels were included in the clerk’s transcript as attachments to the request for order filed by Edwin on November 16, 2018.

DISCUSSION

Edwin’s appellate brief raises three grounds for reversal. First, he contends he was denied a fair and meaningful trial by several decisions made by the family court during the proceedings. Second, Edwin contends the witnesses who testified lacked the personal knowledge required by Evidence Code section 702. Third, he argues the family court lacked jurisdiction based on, among other things, inadequate pleading and insufficient proof of facts that establish personal and subject matter jurisdiction.

I. JURISDICTION OF THE FAMILY COURT

A. Initial Jurisdiction

The discussion of Edwin’s jurisdictional claim begins by describing how the family court first acquired jurisdiction over Edwin. Then we examine whether the court lost that jurisdiction.

When a person files a petition for dissolution of marriage, that person submits him or herself to the family court’s jurisdiction. (Mikulski v. Mikulski (1969) 2 Cal.App.3d 1047, 1051.) This rule for family law matters is consistent with the long-recognized principle “that when a nonresident plaintiff commences an action, he submits to the court’s personal jurisdiction on any cross-complaint filed against him by the defendant.” (Nobel Farms, Inc. v. Pasero (2003) 106 Cal.App.4th 654, 658; see Adam v. Saenger (1938) 303 U.S. 59, 67–68.) Consequently, in July 2016 when Edwin filed his petition for dissolution of marriage, he submitted to the jurisdiction of the family court.

In addition, Edwin was present at hearings held by the family court in February and April 2017. These physical appearances provided an additional basis for concluding the family court acquired jurisdiction over Edwin. (§ 410.50, subd. (a); see generally In re Marriage of Fitzgerald & King, supra, 39 Cal.App.4th at pp. 1427–1428 [consent as a basis for personal jurisdiction].)

B. Continuing Jurisdiction

Once a court acquires jurisdiction over the parties, its continuing jurisdiction is defined by California statute. Section 410.50, subdivision (b) provides: “Jurisdiction of the court over the parties and the subject matter of an action continues throughout subsequent proceedings in the action.” Based on this subdivision, we conclude the family court’s jurisdiction over Edwin and matters related to the dissolution of the marriage (including rights and obligations with respect to community property) continued throughout the proceeding unless some event occurred that terminated the family court’s jurisdiction.

C. Terminating Jurisdiction Over Child Support

The events that terminate a California family court’s jurisdiction over a child support order are identified in Family Code section 5700.205, subdivision (a). (See former Fam. Code, § 4909, subd. (a).) Under that provision, the California court “has continuing, exclusive jurisdiction” until the parents and children all have established residence in another state or all parties consent to another state assuming continuing, exclusive jurisdiction. (In re Marriage of Haugh (2014) 225 Cal.App.4th 963, 969.) “ ‘Virtually every jurisdiction that has addressed this issue has concluded that the issuing tribunal loses subject matter jurisdiction when all of the parties to the child support action have moved outside the state.’ ” (Id. at p. 974, italics omitted; In re Marriage of Connolly (2018) 20 Cal.App.5th 395, 403; see Ferguson v. Wallace-Ferguson (N.D. 2018) 911 N.W.2d 324, 330.)

The certificate of service for Edwin’s motion to modify order and stay proceedings shows Edwin served Cherie by mailing a copy of the motion to a street address in Riverbank. This certificate of service is dated November 14, 2018, which is almost two months after the judgment was filed. As no documents in the clerk’s transcript show Cherie ever using an address outside California, it is reasonable to infer that Cherie and the children have not moved outside the state.

Therefore, to the extent the September 21, 2018, judgment dealt with matters involving child support, the family court had exclusive jurisdiction pursuant to Family Code section 5700.205, subdivision (a). The fact Edwin moved to Georgia is not sufficient to deprive the court of personal jurisdiction over him or subject matter jurisdiction over his child support obligation.

D. Terminating Jurisdiction Over Claim for Damage to Residence

Next, we consider whether the family court had subject matter jurisdiction over Cherie’s claim that Edwin damaged the family residence. In particular, we address Edwin’s arguments that a valid claim was not properly pleaded and the claim was not proven with sufficient, admissible evidence relating to the claim.

1. Adequacy of Cherie’s Pleading

The documents included in the clerk’s transcript pursuant to Edwin’s notice designating record on appeal did not include the document in which Cherie alleged Edwin damaged the family residence. Consequently, it is not possible for this court to determine what Cherie alleged and whether those allegations were sufficient under California law to state a cause of action—that is, a basis for relief.

“[I]t is a fundamental principle of appellate procedure that 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; Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Cal. Const., art. VI, § 13.) An appellate court cannot evaluate the merits of an appellant’s claim of trial court error if the record presented does not show what occurred in the trial court. (See Ballard v. Uribe (1986) 41 Cal.3d 564, 574 [plaintiff failed to provide an adequate record and thus failed to carry the burden of showing prejudicial error]; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502 [record is inadequate for review where the appellant has not included moving papers, opposition or court’s order].) In other words, an appellant cannot simply claim an error occurred and then sit back expecting (1) the appellate court to conduct an independent investigation into the error or (2) the respondent to demonstrate the trial court’s judgment was correct.

Pursuant to these fundamental, long-established rules of appellate procedure, Edwin has failed to present an adequate record of Cherie’s allegations. As a result, he has failed to carry his burden of demonstrating the trial court committed error in concluding Cherie adequately alleged her claim.

Furthermore, it would have been relatively easy for Cherie to claim Edwin should be held responsible for the damages he allegedly caused to the residence. Under Family Code section 1100, subdivision (e), “[e]ach spouse shall act with respect to the other spouse in the management and control of the community assets and liabilities in accordance with the general rules governing fiduciary relationships which control the actions of persons having relationships of personal confidence as specified in Section 721, until such time as the assets and liabilities have been divided by the parties or by a court.” In short, Edwin owed a fiduciary duty to Cherie in handling the family residence, which was a community asset.

Family Code section 1101, subdivision (a) provides: “A spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse’s present undivided one-half interest in the community estate .…” This provision gave the family court jurisdiction over Cherie’s claim that Edwin breached his fiduciary duty to her when he damaged (i.e., impaired) the residence and her one-half interest in it. (Cf. In re Marriage of Hebbring (1989) 207 Cal.App.3d 1260 [family court has jurisdiction to order spouse who willfully destroys the other’s separate property to make reimbursement from his own share of community property].) Therefore, Edwin has not gotten around the problem of an inadequate record by demonstrating there was no basis upon which the family court could have considered Cherie’s claim. Family Code sections 1100 and 1101 provide a sufficient legal basis for her claim.

2. Sufficiency of the Evidence

Like his challenge to the pleadings, Edwin’s contention that Cherie lacked proof of her claim for damage to the residence cannot be evaluated on the merits because of an inadequate record. The absence of a reporter’s transcript or settled statement showing what testimony was presented during the court trial prevents us from knowing what evidence was presented. As a result, we cannot determine whether that evidence was sufficient to prove Edwin breached his fiduciary duty under Family Code section 1100 and, therefore, was liable to Cherie under Family Code section 1101.

When an appellant contends the evidence was insufficient to prove a claim and the trial court’s findings to the contrary are wrong, the appellant must demonstrate the record does not contain substantial evidence to support the finding being challenged. (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1658.) To demonstrate the absence of substantial evidence, the appellant must provide the appellate court with an adequate record of the evidence, including oral testimony, presented in the trial court. (Jameson v. Desta, supra, 5 Cal.5th at pp. 608–609.) In Estate of Fain (1999) 75 Cal.App.4th 973 (Fain), the Second Appellate District stated:

“Where no reporter’s transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter’s transcript will be precluded from raising an argument as to the sufficiency of the evidence.” (Fain, supra, 75 Cal.App.4th at p. 992; see Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186–187 [list of cases where absence of reporter’s transcript precluded appellate court from reaching merits].)

Stated another way, when there is no reporter’s transcript, “it is presumed that the unreported trial testimony would demonstrate the absence of error.” (Fain, supra, 75 Cal.App.4th at p. 992; see In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.) Here, Edwin was not able to include a reporter’s transcript of the testimony presented during the court trial because there was no court reporter at the trial. He also did not include in the appellate record the two exhibits admitted into evidence at trial.

Under these rules of appellate procedure, Edwin has failed to present an adequate record of the evidence presented at trial and, therefore, has failed to carry his burden of demonstrating the trial court committed error when it determined Cherie had proven Edwin breached a duty and was responsible for damaging the family residence.

3. Evidentiary Error and the Lack of Personal Knowledge

The absence of a reporter’s transcript also prevents this court from knowing whether the witnesses had personal knowledge of the matters to which they testified and whether objections to the testimony were presented. Evidence Code section 702, subdivision (a) provides in full: “Subject to Section 801, the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.” This reference to “the objection of a party” relates to Evidence Code section 353, subdivision (a) and the principle that the failure to object or move to strike evidence at trial forfeits any challenge to the evidence on appeal. (See Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 726.) In this case, Edwin has failed to carry his burden of demonstrating he made a timely objection and the trial court committed error when it allowed Cherie and her witnesses to testify at the trial.

4. Other Errors

Edwin’s appellate brief raises a number of other claims about how the proceedings were conducted. For example, he claims the trial court was biased against him and did not decide the case based on the evidence. He also contends the trial court violated his right to due process by, among other things, refusing to allow cross-examination. As with the evidentiary claims, it is not possible for this court to evaluate the merits of Edwin’s additional claims of error because the record is inadequate. For instance, we cannot tell whether the trial court refused to allow cross-examination because the appellate record contains no reporter’s transcript of the trial. Accordingly, Edwin has failed to carry his burden of demonstrating these other errors occurred and were prejudicial.

DISPOSITION

The judgment is affirmed. The parties shall bear their own costs on appeal.