Filed 8/17/18 Marriage of Mooney CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

In re the Marriage of PAUL and SUSAN MOONEY. H041134

(Santa Cruz County

Super. Ct. No. FL032179)

PAUL A. MOONEY,

Respondent,

v.

SUSAN E. MOONEY,

Appellant.

The trial court entered a judgment dissolving the marriage of appellant Susan E. Mooney (Susan) and Paul A. Mooney (Paul) after a brief trial at which no court reporter was present. The court denied Susan’s day-of-trial request for a continuance. The court’s judgment divided the couple’s community property, awarded no spousal support, and terminated the court’s jurisdiction to award spousal support. Susan appealed from the judgment and elected to proceed on appeal with a record consisting of a clerk’s transcript and a settled statement of the oral proceedings.

Susan contends that the judgment must be reversed because the trial court (1) failed to obtain a valid waiver by Susan of a court reporter, (2) deprived Susan of a fair record of the trial proceedings and of due process and equal protection because the settled statement is inadequate, (3) erroneously denied Susan’s day-of-trial request for a continuance, (4) abused its discretion in terminating its jurisdiction to award spousal support, (5) abused its discretion in barring Susan from introducing evidence at the trial, and (6) miscalculated the value of Susan’s community property retirement account. We reject all of her contentions and affirm the judgment.

I. Background

In 2011, Paul petitioned in pro per for dissolution of his marriage to Susan. They had been married for 18 years and had no minor children. Susan obtained counsel and responded to Paul’s petition. Paul obtained counsel and filed a motion to divide the couple’s current living expenses. In support of his motion, Paul asserted that he and Susan were currently living on the same property but in different structures. He claimed that she refused to contribute to their joint expenses even though she made more money than he did. Paul asked that she be required to pay half of their property-related expenses.

Susan responded that she did not earn more than Paul and that he could afford to pay all of the household expenses “on his own.” She admitted that she had stopped paying her share of the mortgage in June 2011. Susan noted that Paul had not provided an income and expense declaration in support of his motion. Susan asserted that Paul was receiving rental income from a jointly-owned property in Portola, which he was not sharing with her. In addition, she was paying $1,500 a month in payments for the cost of a remodel to their community property residence, and Paul had borne none of the expenses for the remodel. Susan submitted an income and expense declaration in support of her response. She stated that her income was $1,617 per week, and she estimated that Paul’s income was $6,500 per month. Susan claimed expenses of about $6,000 per month.

In March 2012, the court ordered Susan to pay half of the monthly expenses for the property where she and Paul both lived. Paul was ordered to provide a monthly accounting to Susan regarding the couple’s two rental properties.

In September 2012, Susan, who had retained a new attorney, filed a motion for spousal support and attorney’s fees. She declared that she was currently out of work and unable to find another job. Susan filed an income and expense declaration showing that she had no income and that her expenses exceeded $4,000 a month. She asked that Paul pay her share of their housing expenses. Susan sought $5,000 in attorney’s fees and costs.

Paul opposed her motion. He claimed that she was not actively seeking work but instead was on vacation in Mexico. Paul asserted that Susan had not complied with the prior order to pay her share of expenses. She had made only one payment, which covered less than two months of expenses, and then paid nothing more. Paul asked that Susan be ordered to make an effort to get a job. He claimed that his income had increased dramatically after the couple’s separation, and he asked the court to base any spousal support order on his income during the marriage. He submitted an attachment showing their individual incomes from 2005 to 2011. This attachment reflected that their individual incomes had fluctuated from year to year, with Susan often making more than Paul. Paul claimed that Susan was lying about the remodeling costs. Paul also submitted an income and expense declaration showing his income to be about $10,500 per month and his expenses to be about $4,600 a month.

In December 2012, the court ordered Paul to pay to Susan $1,500 per month in spousal support “subject to retroactive modification, reallocation and retroactivity.” Paul was also ordered to pay $2,000 of Susan’s attorney’s fees. Susan was ordered to make reasonable efforts to become self-supporting. The court set a review hearing for January 2013 to evaluate Susan’s job search efforts and spousal support.

In January 2013, Paul filed another income and expense declaration. He claimed an income of about $9,500 a month and expenses of over $7,000 a month. Susan filed an income and expense declaration reflecting that she had earned about $6,800 in December 2012 and had expenses of about $5,100 a month. In February 2013, Susan submitted a declaration and attached “job search efforts logs” showing her pursuit of work. She had obtained a part-time job. Susan’s second attorney substituted out of the case in September 2013.

In October 2013, the court ordered that discovery be completed by December 13, 2013. It also told the parties that “[i]f discovery is not complete by that date, the matter will be set for trial and the parties sanctioned by being discluded [sic] from providing testimony on particular issues that were not disclosed . . . .” Susan was present in pro per at the October hearing. On December 13, the court set the trial for February 24, 2014. Susan was not present at the December 13 hearing.

Susan filed a December 2013 income and expense declaration. She claimed that she had no current income but had worked in September 2013 for one month at a rate of $33.41 per hour. Susan asserted that her income had decreased due to “mental trauma from death of 30 y.o. son, [and the] breakup of 20 yr marriage.” She claimed expenses of about $3,300 per month. Susan attached pay statements for April through September of 2013.

On February 21, 2014, Paul filed a trial brief. He asserted that his net monthly income in 2013 was $6,926. Paul acknowledged that Susan had provided a 2012 W2 and a December 2013 income and expense declaration, but he complained that she had not provided “pay stubs” that might have shown that she had received “a tax-free housing allowance.” He acknowledged that Susan had disclosed that she worked in September 2013 and was paid $33.41 per hour that month, but he complained that she provided no pay stubs for that work. Paul claimed that Susan had continued to fail to pay her share of the monthly property expenses. Paul admitted that he had not been paying the $1,500 per month that he had been ordered to pay Susan for spousal support. He had paid two payments in 2012 and one $1,000 payment in 2013.

Paul asserted that Susan had a “TIAA CREF” account (Susan’s retirement account) of unknown value and that she had not provided statements to Paul for that account. He attached a March 2012 statement for Susan’s retirement account showing a balance of about $36,000. He hypothesized a value for the account and asked that he be allowed an offset of $28,219 against Susan’s share of his IRA as his community share of Susan’s retirement account.

Paul argued that he should not be required to reimburse Susan for credit card payments she made because she should have been paying him spousal support in 2011 as she had made more than he had that year. He also argued that Susan should be required to pay half of the property expenses and that he should not be required to pay spousal support for any month during which Susan was working, retroactive to October 2012. Paul asked the court to order no spousal support because both of them were capable of supporting themselves. He complained that Susan had not filed a “Final Declaration of Disclosure” or a current income and expense declaration. Paul’s income and expense declaration showed a monthly income of about $6,900 and monthly expenses of about $4,600.

On February 24, 2014, the case was called for trial. Paul appeared with his trial counsel, and Susan appeared without counsel. Susan sought a continuance, which was denied. Paul introduced 22 exhibits into evidence. The minutes in the clerk’s transcript reflect the following: The court “assume[d]” Susan worked each month “pursuant to her filed Income and Expense Declaration.” The court found that Susan had paid $14,000 in credit card debts and ordered Paul to reimburse her for $7,000. The court ordered Susan to vacate the Los Gatos property where she and Paul were both living by April 24, and it awarded that property to Paul. The court awarded ownership of the couple’s Kingvale property to Susan. The court found that Paul owed Susan an equalizing payment of $48,729 “for the IRA’s.” Susan was ordered to pay her share of property-related expenses in an amount of about $62,000. “Respondent [Susan] states she is waiving any future spousal support, and the Court notes it would have made this finding regardless of the agreement.” The court found that the marriage was one “of long duration,” but it terminated its jurisdiction to award spousal support.

The court entered a written judgment in April 2014. The judgment, which included five pages of findings and a chart corresponding to those findings, stated the following: Susan’s continuance request had been denied, and the court had admitted Paul’s 22 exhibits into evidence. The court declined to award spousal support to either party and divided the couple’s real and personal property. Susan had waived any future spousal support, and the court would not have awarded spousal support in any event because “each party was self-supporting.” The court found that Paul was entitled to a credit of $2,500 for support payments he had made to Susan in 2012 and 2013. In connection with the credit, the court found that Susan “worked each month wherein spousal support was an issue.” The court made express findings regarding each item of real property at issue, each car, and each retirement account, and it determined each claim for reimbursement and found that Paul owed Susan an equalizing payment of $24,173. Susan subsequently obtained counsel.

Susan timely filed a notice of appeal. Her notice designating the record stated that she would be proceeding by way of a clerk’s transcript and a settled statement under California Rules of Court, rule 8.137. At the same time that she filed her notice of appeal and notice designating the record on appeal, Susan filed a motion for a settled statement. After extended litigation in the trial court and this court regarding the settled statement procedure (see Mooney v. Superior Court (2016) 245 Cal.App.4th 523), the trial court filed a 12-page settled statement in August 2016. In September 2016, the parties’ trial counsel entered into a stipulation: “It is hereby stipulated by, John P. Hannon II, attorney for Respondent [Susan], and Vicki Parry, attorney for Petitioner [Paul], that the settled statement on appeal, which is attached hereto as Exhibit A and which was filed with the court on August 19, 2016, is the acceptable form for the settled statement on appeal. The parties stipulate that the court may sign this settled statement and that such statement shall act as the record of the oral proceedings of the trial in the above-entitled matter.” That settled statement is included in the clerk’s transcript that is before us in this appeal.

II. Discussion

A. Waiver of Court Reporter

Susan contends that reversal is required because the record does not contain a written acknowledgment from her that she did not desire a court reporter for the trial.

Government Code section 68086, subdivision (d) provides: “The Judicial Council shall adopt rules to ensure all of the following: [¶] (1) That parties are given adequate and timely notice of the availability of an official court reporter. [¶] (2) That if an official court reporter is not available, a party may arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter, the costs therefor recoverable as provided in subdivision (c).” (Gov. Code, § 68086, subd. (d).)

The Judicial Council adopted rule 2.956 to comply with Government Code section 68086. (Rule 2.956(a).) This rule provides: “(b) Notice of availability; parties’ request [¶] (1) Local policy to be adopted and posted [¶] Each trial court must adopt and post in the clerk’s office a local policy enumerating the departments in which the services of official court reporters are normally available, and the departments in which the services of official court reporters are not normally available during regular court hours. If the services of official court reporters are normally available in a department only for certain types of matters, those matters must be identified in the policy. [¶] (2) Publication of policy [¶] The court must publish its policy in a newspaper if one is published in the county. Instead of publishing the policy, the court may: [¶] (A) Send each party a copy of the policy at least 10 days before any hearing is held in a case; or [¶] (B) Adopt the policy as a local rule. [¶] (3) Requests for official court reporter for civil trials and notices to parties [¶] Unless the court’s policy states that all courtrooms normally have the services of official court reporters available for civil trials, the court must require that each party file a statement before the trial date indicating whether the party requests the presence of an official court reporter.” (Rule 2.956(b).)

Santa Cruz County Superior Court adopted a local rule acknowledging that the court’s policy is that official court reporters are not available in family law courtrooms. The local rule that was in force in February 2014 was Santa Cruz County Superior Court Local Rules, rule 3.7.01. It provided: “The family court does not provide a court reporter in family law matters. If you would like to have a court reporter present you will need to hire and pay all costs associated with the reporter.”

Susan asserts that the trial court violated rule 2.956 by failing to “require that each party file a statement before the trial date indicating whether the party requests the presence of an official court reporter.” (Rule 2.956(b)(3).) Paul fails to address Susan’s actual contention. He omits from his brief any mention of the language in rule 2.956(b)(3) obligating the court to “require that each party file a statement before the trial date indicating whether the party requests the presence of an official court reporter.” Instead of acknowledging the language in the rule, he claims that rule 2.956(b)(3) merely “permits a party to request” a court reporter.

We agree with Susan that rule 2.956 plainly obligates a trial court to “require that each party file” a statement indicating whether the party desires a court reporter for a trial. The clerk’s transcript does not contain any filed statement by Susan indicating whether she desired the presence of a court reporter at the February 2014 trial. The trial court’s docket for this case contains no explicit mention of any such statement. While the absence of any such document from the clerk’s transcript and the docket’s failure to explicitly mention such a document are not conclusive proof that no such document was filed as required by rule 2.956, we will assume for the sake of argument that the record is sufficient to establish a violation of rule 2.956 in this regard.

However, a rule violation does not automatically require a new trial, and Susan fails to provide any support for her claim that this rule violation entitles her to a new trial. Susan simply assumes that a rule violation requires a new trial. She argues that, as a result of the court’s rule violation, she was “denied a substantial right in regard to her having a complete record on appeal.” She argues that, because “the lack of a record significantly prevents Susan from providing an adequate record on appeal,” “there are grounds for a new trial.” Susan further asserts that she “has been denied her rights under the law,” and “[r]eversal of the trial judgment appears mandated by the law.” None of these vague arguments is supported by any citation of authority.

A rule violation does not necessarily require reversal of a judgment. “A statutory requirement may impose on the state a duty to act in a particular way, and yet failure to do so may not void the governmental action taken in violation of the duty. [Citations.] This distinction is generally expressed in terms of calling the duty ‘mandatory’ or ‘directory.’ ‘[T]he “directory” or “mandatory” designation does not refer to whether a particular statutory requirement is “permissive” or “obligatory,” but instead simply denotes whether the failure to comply with a particular procedural step will or will not have the effect of invalidating the governmental action to which the procedural requirement relates.’ ” (In re Richard S. (1991) 54 Cal.3d 857, 865.) “We must go beyond the use of the term ‘shall’ in the rules and determine legislative intent. In determining whether statutory language is mandatory or directory, ‘ “[i]n the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time. [Citation.] When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose . . . .” ’ ” (Id. at pp. 865-866.) In In re Hannah D. (2017) 9 Cal.App.5th 662, the Fifth District Court of Appeal found that a rule requiring an oral notification was directory rather than mandatory where notice was also accomplished by other means. (Id. at p. 681.)

“ ‘It is, of course, difficult to lay down a general rule to determine in all cases when the provisions of a statute are merely directory and when mandatory or imperative, but of all the rules mentioned, the test most satisfactory and conclusive is whether the prescribed mode of action is of the essence of the thing to be accomplished, or, in other words, whether it relates to matters material or immaterial—to matters of convenience or of substance.’ ” (Francis v. Superior Court (1935) 3 Cal.2d 19, 28.)
Here, rule 2.956(b)(3)’s imposition on the court of a duty to have each party file a statement as to whether a court reporter is desired at trial relates to a matter of “convenience” rather than “substance.” This statement is not the means by which a party is notified that a court reporter will not be available. That notice is accomplished by the other provisions in rule 2.956 requiring the court to adopt a policy and post that policy in the clerk’s office and to either notify parties of the policy or adopt the policy as a local rule. Santa Cruz Superior Court complied with these provisions by adopting a policy as a local rule that itself notified parties that court reporters were not provided in family law departments. Susan does not contend that the court failed to comply with these other provisions of rule 2.956. Under these circumstances, rule 2.956(b)(3)’s “file a statement” rule can be properly deemed directory rather than mandatory. Accordingly, the court’s failure to comply with this rule does not entitle Susan to a new trial or in any other respect invalidate the court’s actions.

B. Adequacy of Settled Statement

Susan contends that the settled statement “is inadequate as it contains irrelevant and prejudicial material.” She identifies a number of statements in the settled statement that are not factual descriptions of the oral proceedings in the trial court but are instead commentary. While some of these statements may be inappropriate commentary that should not be in a settled statement, we are perfectly capable of ignoring this commentary and accepting the remainder of the settled statement. She does not contend that the remainder of the settled statement fails to describe the oral proceedings that took place in the trial court.

The trial court held a lengthy hearing in May 2016 to determine the content of the settled statement. Susan had filed a proposed settled statement, and Paul had filed objections to it. The court went through both documents and determined the accuracy of the competing proposals. Susan’s attorney had an opportunity to argue each point. At the end of this hearing, Susan’s attorney was directed to prepare a settled statement, and he did so. That settled statement was adopted by stipulation without a further hearing. Susan’s appellate counsel stipulated that the settled statement “is the acceptable form for the settled statement on appeal” and “that such statement shall act as the record of the oral proceedings of the trial in the above-entitled matter.”

Susan does not argue that the settled statement is incomplete; she argues that it contains immaterial commentary. She stipulated that the settled statement was in “the acceptable form” and “shall act as the record of the oral proceedings” at trial. Under these circumstances, we cannot credit Susan’s claim that the settled statement is inadequate. We will, of course, disregard any inappropriate commentary in the settled statement.

Susan also contends that she has been deprived of due process and equal protection due to the inadequacy of a settled statement to serve as a substitute for a court reporter’s transcription of the oral proceedings. She attempts to support this claim with attacks on the accuracy of the settled statement.

First, she contends that the settled statement inaccurately states that she did not claim at trial to be taking medication. Susan supports her contention with a transcript from a later hearing at which she testified that she started taking Lorazepam two days before the trial and presented evidence that she had filled a prescription for Lorazepam two days before the trial. At the hearing on the settled statement, the court recalled that Susan had produced a note from a medical professional stating that Susan was suffering from anxiety, but “I do not have anything in my notes or my recollection that claims she was taking medication.” The court recalled: “She hadn’t filled any prescriptions yet. I specifically remember asking her about that. She said she hadn’t filled anything. She didn’t claim that she was taking anything. She hadn’t even filled a prescription yet. She said she intended to.” The conflict between the court’s recollection of the trial proceedings and Susan’s posttrial recollection is not attributable to any flaw in the settled statement. Susan does not claim that she told the trial court at trial that she was taking Lorazepam at that time. Hence, a court reporter’s record of the trial proceedings could not have verified whether Susan was in fact taking Lorazepam at that time.

Second, Susan claims that a court reporter’s record of the trial would have showed that she was “denied her right to present written evidence to the trial court.” The settled statement notes that the court “tentatively granted” Paul’s request that Susan be precluded from presenting evidence at trial on issues as to which she had refused to provide discovery. Susan’s proposed settled statement asserted that at trial the court precluded Susan from testifying about the credit card bills that she had been paying after separation for pre-separation remodeling of the family residence. She claimed that the court had held that she was being “repaid for her assumption of the credit card debt by the increased value” of the property. Susan made no other claims in her proposed settled statement that she had been precluded from presenting evidence at trial. The court’s settled statement characterized as “pure fiction” Susan’s claim that at trial she was precluded from presenting evidence about the credit card bills. “Susan had no proof of any credit card debt. She had no documentary evidence and her oral testimony was useless in that she could not recall what was paid to whom and she did not testify as to any specifics whatsoever as to any credit card debt.” “Susan was unable to testify as to any specifics and she did not testify the debts were incurred to improve the Longridge property.” Nevertheless, Paul agreed that Susan had paid $14,000 in community credit card debt and agreed that he would reimburse her for half of that amount. Since this is the only specific point on which Susan claims that she was precluded from presenting evidence at trial, and she does not claim that she attempted to present at trial evidence that she had paid more than $14,000 in credit card bills, Susan was not deprived of anything by the absence of a court reporter at trial.

Finally, Susan claims that the absence of a court reporter’s transcript of the trial unfairly precludes her from challenging the validity of her spousal support waiver. She claims that the waiver was invalid either because it did not happen or because she was “under the influence of Lorazepam.” A reporter’s transcript would not have assisted Susan in this regard. Susan conceded at the hearing on the settled statement that she had in fact waived spousal support in writing on the day of trial. And the question of whether she was under the influence of Lorazepam would not have been reflected in a court reporter’s transcript of the trial unless she told the court of her Lorazepam use at trial. The court clearly recalled that she had not done so, and Susan does not claim otherwise.

We reject Susan’s challenge to the adequacy of the settled statement and her claim that the absence of a reporter’s transcript deprived her of due process or equal protection.

C. Denial of Continuance

Susan contends that the trial court abused its discretion in denying her day-of-trial oral request for a continuance. She claims that her “mental or emotional condition” merited a continuance. Susan also suggests that she was entitled to a continuance as an accommodation for her “disability.”

1. Background

On the day of trial, Susan requested a continuance. She told the court that her attorney had told her to ask for a continuance. Since Susan had no attorney of record, the court asked Susan for the attorney’s name so that the court could contact the attorney. Susan said that she could not remember the attorney’s name, and she could not find the business card she thought she had. The court asked Susan when she had hired the attorney, and Susan said she could not remember. She then clarified that she had not yet met the attorney but had called the attorney’s office to make an appointment.

Paul objected to any continuance of the trial. The matter had been pending for three years, and the trial had been set for more than two months. Susan had been represented by two separate attorneys, and her most recent attorney had been relieved by the court months before the trial was set after Susan refused to sign a substitution of counsel. The court denied Susan’s request for a continuance.

After the court denied her request, Susan told the court that she could not proceed due to her health. Susan presented to the court a note from a physician’s assistant. The note, which was dated February 22, 2014 (the Saturday before the Monday trial date), read: “To Whom It May Concern: [¶] Susan Mooney is currently under my medical care. In my professional opinion, Mrs. Mooney is incapable of representing herself at the scheduled court trial for her divorce this coming Monday due to severe anxiety. She currently is unable to perform activities of daily living, poor focus, and emotionally unstable. I have prescribed pharmacological therapy and referred for counseling. I plan to reassess in two weeks. Please contact me at the above number if any questions. [¶] Sincerely, Veronica Galvan, PA-C” “Santa Cruz Women Health Center.” Susan told the court that she had not yet filled the prescription, and she did not claim that she had taken any medication. The court denied Susan’s renewed continuance request. It told Susan that it would allow her “extra breaks” if necessary at her request. The trial commenced. Susan cross-examined Paul and testified on her own behalf at trial.

2. Analysis

“Continuances are granted only on an affirmative showing of good cause requiring a continuance. [Citations.] Reviewing courts must uphold a trial court’s choice not to grant a continuance unless the court has abused its discretion in so doing.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)

Rule 3.1332 addresses requests for continuances. It notes that “continuances of trials are disfavored.” (Rule 3.1332(c).) The rule provides nonexclusive lists of circumstances that may justify a continuance and other factors that should be considered. None of the listed circumstances applies here. The other factors include the timing of the request, the length of the continuance requested, the availability of other means of addressing the issue, prejudice to a party, and fairness. (Rule 3.1332(d).) Here, the relevant factors weighed against granting a continuance. Susan waited until trial had commenced before requesting a continuance. She had known about the trial date for two months, and she had been without an attorney for months prior to the setting of the trial date. Susan seemed to be requesting an open-ended continuance so that she could obtain counsel or overcome her anxiety. Paul had diligently tried to get the matter tried earlier but had been deterred by Susan’s failure to comply with his discovery requests. The case had been pending for several years. Although Susan presented the note from a physician’s assistant regarding her anxiety, she did not claim to be disabled, and the court offered to accommodate her by allowing extra breaks during the trial. Under these circumstances, we can find no abuse of discretion in the trial court’s denial of Susan’s continuance request.

D. Spousal Support

Susan contends that the trial court abused its discretion in terminating spousal support without reserving jurisdiction. She insists that her waiver of spousal support was invalid because she was “emotionally distraught” and “under the influence of the medication Lorazepam” when she made the waiver. Susan argues that the trial court was obligated to ensure that she “truly understands the import of a spousal support waiver” before accepting it.

On the day of trial, Susan presented to the court and Paul’s trial counsel a copy of Paul’s trial brief on which she had handwritten comments. With regard to spousal support, Susan had written: “Susan has agreed to waive spousal – Paul knows this,” and “spousal has been waived.” At the hearing on the settled statement, the trial court noted that Susan had testified that she “didn’t want any spousal support” and “was waiving spousal support.” The court also recalled that Susan had “agreed she was self-supporting and that spousal support would not be appropriate.” Paul asked the court to terminate its jurisdiction to award spousal support, and Susan did not oppose this request.

Susan’s contention is unsupportable. The appellate record does not reflect that Susan was “under the influence” of anything or “emotionally distraught” when she made a handwritten waiver of spousal support at the commencement of trial. The fact that Susan had made this written waiver in advance of trial and then reaffirmed her waiver in her trial testimony weighs heavily against any conclusion that her waiver was hasty or unconsidered. Since there is no basis for Susan’s challenge to the validity of her waiver, the trial court’s action in terminating its jurisdiction to award spousal support is not vulnerable to attack.

E. Exclusion of Evidence

Susan challenges as an abuse of discretion what she describes as an “evidence preclusion order” that she claims the court made at the commencement of trial. She asserts: “Presumably, all evidence presented by Susan was disallowed consistent with the trial court’s orders.” She admits that “[w]e do not know what evidence Susan may have presented or attempted to present,” but she maintains that “she was precluded from presenting all evidence.”

Susan’s challenge fails at the outset because there is no indication in the record that the trial court actually excluded any particular evidence offered by Susan at the trial. All that the appellate record reflects is that “[t]he Court tentatively granted [Paul’s] request to preclude” Susan from presenting “any evidence . . . on issues for which she had failed to provide discovery” and “requested [Paul’s] counsel to raise her objections and alert the Court when such [subject] matter areas were approached.”

Since the trial court’s ruling was “tentative,” applied only to evidence that Susan had failed to provide in discovery, and would be effective only if the court upheld an objection to specific evidence, this “tentative” order does not establish that the court actually precluded Susan from presenting any particular item of evidence.

Susan claims that Evidence Code section 354 does not preclude her challenge because it would have been “futile” for her to identify any evidence that she wished to present. Evidence Code section 354 excuses a party’s failure to make an offer of proof where “[t]he rulings of the court made [an offer of proof] futile.” (Evid. Code, § 354, subd. (b).) This excuse does not apply here because a “tentative” ruling does not render “futile” an offer of proof.

As Susan cannot establish that there was any evidence that she was precluded from presenting at trial, she cannot show that she was prejudiced by the trial court’s “tentative” order. (Evid. Code, § 354.)

F. Valuation of Susan’s Retirement Account

Susan’s final contention is that the trial court erred in calculating the value of her retirement account.

It was undisputed that Susan’s community property retirement account had a value of $36,636.70 on March 31, 2012, and that the account had gained $3,174.33 in the first quarter of 2012. Susan subsequently “unilaterally removed funds” from that account. Paul asked the court to presume that the account would have earned $3,000 per quarter for the rest of 2012 and 2013 ($3,000 times seven equals $21,000) and value the account at $57,636.70 for community property division purposes. The court credited Paul’s calculation and determined that the community’s interest in Susan’s retirement account had a value of $57,636.70.

Susan claims that the trial court’s valuation of her retirement account was error because the court “imputed a rate of return that is of an unreasonable amount.” She points out that the imputed rate of return was over 30 percent per year. Her argument is that this was a “patently unreasonable” rate of return because it was not “in line with reasonable expectations of return on capital.”

The record before us does not establish that the trial court’s imputed rate of return was erroneous under these specific circumstances. Susan’s retirement account had an annualized rate of return of nearly 38 percent in the first quarter of 2012. The only evidence placed before the trial court regarding the rate of return on the account was a single account statement from the first quarter of 2012. While a 30 percent annual rate of return is ordinarily difficult to attain, it was Susan’s burden to rebut the only evidence before the trial court with evidence that the account actually had a lower rate of return in the remaining quarters of 2012 and 2013. The record does not reflect that she produced any evidence whatsoever regarding the account’s rate of return during the remainder of that period. Under these circumstances, it was not unreasonable for the court to impute the account’s actual rate of return for the first quarter of 2012 to the remaining quarters of 2012 and to 2013. We find no error in the trial court’s calculation of the value of Susan’s retirement account.

III. Disposition

The judgment is affirmed.

 

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Mihara, J.

WE CONCUR:

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Elia, Acting P. J.

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Bamattre-Manoukian, J.