Filed 6/19/20 Korkka v. Petrenko 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

MARIA KORKKA,

Plaintiff and Appellant,

v.

ALEXEY PETRENKO,

Defendant and Respondent.

A156601

(San Mateo County

Super. Ct. No. FAM0130488)

Following a three-day trial in this marital dissolution action, the trial court issued a 33-page statement of decision that addressed in detail the four questions the parties agreed were at issue. Maria Korkka appeals, asserting error in three of the rulings, those that: (1) denied her attorney fees; (2) set spousal support; and (3) set child support (and also set dependent exemptions.) We affirm.

BACKGROUND

Introduction

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

Korkka’s brief has a “Statement of Facts” that is less than a page long, and cites no record reference. The brief cites only one case, and asserts in its argument that Korkka “is appealing the court’s decision on the grounds that the facts of the case were not sufficiently examined”—a statement that is hard to justify, given the court’s comprehensive 33-page statement of decision. The brief of respondent Alexey Petrenko suffers from defects of its own, especially as his statement of facts also has no record references.

The General Setting

Korkka and Petrenko were married in Russia in 2007. He was 30, she 27. They have three children, 12-year-old twin daughters and a 10-year-old son. They emigrated to the United States in 2013. Both Korkka’s parents and Petrenko’s parents still live in Russia, and the children have taken “extensive vacations” to visit Korkka’s parents, with whom the children are “close,” “Skyping frequently with them.”

While living in Russia, they enjoyed a middle class standard of living. They both worked. They rented an apartment from a friend for a below-market rate, and they vacationed twice a year, sometimes outside of Russia.

Since coming to the United States, Petrenko has been steadily employed in the field of computer science. Korkka is “highly educated,” holding the equivalent of a master’s degree from Saint Petersburg State University. And since 2007, she has been pursuing a Ph.D. from an institute in Russia. Korkka did not work since coming to the United States, though there was evidence that after the separation Korkka drove part-time for Uber.

As the trial court would describe it, “the parties’ property division settlement demonstrates that they divided a modest estate consisting of retirement accounts, stocks/securities worth under $10,000, and almost $30,000 of credit card debt.”

The Proceedings Below

Korkka filed a petition for dissolution on September 17, 2015, and the couple separated shortly thereafter. Petrenko filed his response on October 22. And the parties completed their exchange of preliminary declarations of disclosure by the end of December 2015.

The case came on for trial before the Honorable Elizabeth Hill, a trial that was held over three court days in 2018: April 5, April 17, and May 9. Korkka was represented by counsel, Petrenko represented himself. The parties agreed that four issues were to be decided: (1) custody and visitation schedule of the children; (2) child support; (3) spousal support; and (4) Korkka’s request for attorney fees. It would develop the court would also address termination of marital status.

One other thing as described in the statement of decision: “The parties reached settlement of property characterization and division issues on May 15, 2018 in a written agreement signed by the court.”

On May 25, the parties submitted their post-trial closing briefs, Korkka’s prepared by counsel, Petrenko’s by himself.

On August 14, Judge Hill issued her tentative statement of decision. No one objected, and the decision became final.

On September 5, Judge Hill filed her judgment, from which Korkka appeals.

DISCUSSION

Introduction

We begin with a few observations. While Korkka was represented by counsel at trial, she has chosen to represent herself on appeal—which, of course, is her right. But a person “who exercises the privilege of trying [her] own case must expect and receive the same treatment as if represented by an attorney—no different, no better, no worse.” (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1009.) Moreover, “as is the case with attorneys, pro per litigants must follow correct rules of procedure.” (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)

Rule 8.204 of the California Rules of Court specifies that “Each brief must: . . . Support any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” Here, as noted, Korkka’s “Statement of Facts” in her opening brief has not a single reference to the record. And there are many statements throughout Korkka’s briefs (and, to be fair, in Petrenko’s brief as well) concerning matters outside the record. Those statements will be disregarded. (Citizens Opposing a Dangerous Environment v. County of Kern (2014) 228 Cal.App.4th 360, 366, fn. 8 [“ ‘Factual matters that are not part of the appellate record will not be considered’ ”].)

In short, Korkka has filed a brief that in many respects does not comply with the appellate rules or 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, 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.) . . .

“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 precepts 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.)

Finally, as to her arguments on appeal, Korkka asserts that she is “appealing [Judge Hill’s] decision on the grounds that the facts of the case were not sufficiently examined.” As to this, the most fundamental principle of appellate review is that “ ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it . . . and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) One of those presumptions is that the record has sufficient evidence to sustain the trial court’s findings of fact. (E.g., In re Marriage of Fink (1979) 25 Cal.3d 877, 887; Schellinger Brothers v. Cotter (2016) 2 Cal.App.5th 984, 998.) As this court has held, “ ‘Where a statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision.’ ” (Davenport, supra, 194 Cal.App.4th at p. 1531.)

Our Supreme Court has noted, there in the context of a losing defendant, a party who challenges the sufficiency of the evidence is required “ ‘to demonstrate that there is no substantial evidence to support the challenged findings. [Citations.] A recitation of only defendants’ evidence is not the “demonstration” contemplated under the above rule. [Citation.] Accordingly, if, as defendants here contend, “some particular issue of fact is not sustained, they are required to set forth all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed to be waived.” [Citations.]’ ” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.)

But even assuming that Korkka’s arguments were not waived, they would fail on the merits, as Korkka has not demonstrated that Judge Hill’s rulings were wrong.

The Standard of Review: Abuse of Discretion

As noted, Korkka’s appeal challenges three rulings: (1) denial of attorney fees; (2) spousal support; and (3) child support. All three rulings are reviewed under the abuse of discretion standard. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282–283 [attorney fees]; In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443 [spousal support] (Blazer); and S.P. v. F.G. (2016) 4 Cal.App.5th 921, 931 [“A child support award will not be overturned absent a showing of clear abuse of discretion resulting in prejudicial error”].)

This is how the court put it in Blazer: “[W]e 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.” ’ ” (Blazer, supra, 176 Cal.App.4th at p. 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; 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.) And as that 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.) Korkka has not established it here.

Attorney Fees

Here is Judge Hill’s holding on attorney fees: “At trial, Ms. Korkka sought an award of attorney’s fees pursuant to Family Code section 2030 based on need and ability to pay. Family Code section 2030 requires the court to award fees when there is substantial disparity in access to funds to pay for counsel, and one party has the ability to contribute to both his or her own fees and that of the other party. Mr. Petrenko was self-represented in this case at trial. He testified that he was self-represented because he could not afford his own attorney after paying the court’s temporary support orders. Based on the court’s analysis of the Family Code section 4320 factors above, the court finds his testimony on that point credible and supported by the evidence summarized in its discussion of the ‘ability to pay’ [Family Code section] 4320 factor. The court denies Ms. Korkka’s request for an award of fees, finding no substantial disparity in income after Mr. Petrenko’s support payments are considered, and further finding Mr. Petrenko lacks ability to contribute to Ms. Korkka’s fees.”

Korkka sets forth much of Judge Hill’s ruling, and then concludes as follows: “ ‘That there should be a payment of fees from Mr. Sorge to Mrs. Sorge is easily justifiable based on the asset disparity.’ (In re Marriage of Sorge 202 Cal.App.4th 626. [Korkka’s] financial hardship is heavier than [Petrenko’s] and so [Petrenko] has more access to funds to pay attorney fees. [¶] [Korkka] is respectfully asking that this court review the decision that there is no substantial disparity in income after [Petrenko’s] support payments; [Korkka] is also respectfully asking this court to review the decision to deny an award of attorney’s fees to [Korkka] based on [Petrenko’s] established higher earning capacity and the setting of the termination date for permanent spousal support to January 1, 2020.”

That is it. It is manifestly insufficient.

Spousal Support

Judge Hill analyzed for over 10 pages the 14 factors in Family Code section 4320. And along the way, she noted that in a short-term marriage, like here, “there is a presumption that one-half the length of the marriage is a reasonable amount of time to expect a party to become self-supporting. The court sees no evidence in this case warranting a departure from that presumption. The parties were married for 8 years, 5 months. One-half of the marriage would be approximately 4 years, 3 months. Ms. Korkka began receiving support by stipulation in February 2016.”

Following that, and her concluding analysis, and “based on [the] analysis of the Family Code section 4320 factors,” Judge Hill set spousal support as follows: “From entry of judgment until December 31, 2018, Mr. Petrenko must pay permanent spousal support to Ms. Korkka of $1,200 per month . . . . Beginning on January 1, 2019, and extending through June 30, 2019, the court sets permanent support at $950 per month . . . . On January 1, 2020, the court sets permanent spousal support at zero. [¶] . . . [¶] In addition, Mr. Petrenko must pay annual bonus support of 10% of the gross amount of any annual income received in 2019 over $158,200.”

Again, Korkka discusses what Judge Hill said in her statement of decision and, Korkka concludes, she is “respectfully asking this court to review this decision and consider increasing permanent spousal support and extending the duration of permanent spousal support, taking into consideration 1) [Korkka’s] contribution to [Petrenko’s] attainment of career pursuant to Family Code section 4320[, subdivision] (b); and 2) the lower court’s misunderstanding of the difference in the parties’ post-separation standard of living with regard to loans [Korkka’s] friends and family have made and the difference in the parties’ efforts to maintain a standard of living similar to that of the marriage in the interest of the dependent children.”

No abuse of discretion is shown by that.

Child Support

Korkka’s final argument addresses child support issues, specifically Judge Hill’s determination of the amount, and dependent exemptions. As to the amount, Korkka’s argument is less than a page long and attacks Judge Hill’s award of guideline support at $2,685 per month. And the brief argument ends as follows: “Such a disparity in funds available to each party to spend on the children creates an unfair financial advantage for [Petrenko] in raising the children. [¶] [Korkka] is respectfully asking this court to review the decision in setting guideline child support and to increase child support in order to decrease the dramatic disparity in funds available to each party for spending on the children, especially considering the differences in the parties’ intent to spend on the children.”

This is against the background that Judge Hill spent some seven pages analyzing the evidence before determining child support—an analysis unmentioned by Korkka.

As to the dependent exemptions, Korkka quotes Judge Hill’s opinion as follows: “ ‘The court orders that until Ms. Korkka obtains full time employment, Mr. Petrenko may continue to claim the children as dependents on his tax returns each year. Once Ms. Korkka obtains full time employment, the parties will need to recalculate support and may negotiate the alternation of dependent exemptions in recalculation of support . . . . Granting [Ms. Korkka] the right to claim dependent exemptions while their incomes remain so lopsided reduces the total net spendable income for both parties by increasing Mr. Petrenko’s total tax burden and reducing his income available for support.’ ”

Following two paragraphs reurging her position at trial, she ends her argument with this: “Petitioner is respectfully asking that this court review the order regarding dependent exemptions and reconsider income from part-time employment as an appropriate basis for being able to claim dependent exemptions; Petitioner is also respectfully asking that this court consider that the alleviation of financial burden from claiming dependent exemptions on the parties’ tax returns is comparably substantial to each party despite income disparity and that this court review the decision to give only Respondent the right to claim all three of the parties’ children as dependent exemptions.”

Again, hardly demonstrating an abuse of discretion.

The Stipulation

Korkka’s brief concludes with section D, which asserts as follows:

“D. STIPULATION FILED ON MAY 16, 2018

“In February 2018 [Korkka’s] Counsel of Record at the time, Constantine Zhukovsky, refused to continue to defend her interests in this case and to represent her at upcoming trial. After Mr. Zhukovsky substituted out on February 1, 2018, he filed, without [Korkka’s] signature or knowledge, a stipulation in San Mateo Court. [Citation.] For the next two months [Petrenko] attempted to pressure [Korkka] into signing this stipulation. Before trial in May 2018 [Petrenko] pressured [Korkka] to sign the same stipulation. On May 15, 2018, the Clerk of the Superior Court of San Mateo County received this stipulation signed by [Korkka] out of fear of incurring further fees and approved by Mr. Zhukovsky, who was no longer her Counsel of Record, [Petrenko] and Honorable Elizabeth M. Hill, Judge. [¶] [Korkka] is respectfully asking this court to review the points in the stipulation filed on May 16, 2018 for the reason that this stipulation was prepared, signed and filed without her knowledge or agreement by a person who no longer represented her.”

Petrenko’s response begins with this: “The chapter about the ‘STIPULATION FILED ON MAY 16, 2018’ is the most confusing in [Korkka’s] brief.” From there Petrenko goes on for three pages describing the background of the stipulation, how it was in fact prepared by Korkka’s attorney Zhukovsky as suggested at the mandatory settlement conference in January 2018, and then goes on to explain what developed:

“Both Ms. Korkka and Mr. Petrenko agreed to the terms of this stipulation in front of Honorable Elizabeth M. Hill at that conference. The judge instructed Mr. Zhukovsky to file the signed stipulation with the court. Mr. Petrenko signed the stipulation on February 13, 2018 [citation]. Ms. Korkka changed her counsel and refused to sign the stipulation.

“Since Ms. Korkka didn’t sign the stipulation, Mr. Petrenko, who represented himself, was ready to proceed into trial with the division of property as one of the issues. This very surprised the court because of [sic] Honorable Elizabeth M. Hill remembered herself that ‘we had a settlement on property separation that everybody stood up and raised their right hand and said they understood it and they agreed to it.’ [Citation.] In between the trial days, Mr. Petrenko has provided Ms. Abrahamyan, the new counsel of Ms. Korkka, with all the related documents. He notified Ms. Abrahamyan that he is okay with either signing the property division stipulation as proposed by Mr. Zhukovsky, Ms. Korkka[’s] prior counsel, or proceed with the property division to the trial.

“As the first matter on the next day of trial, Ms. Abrahamyan, [Korkka’s] trial counsel, notified the court that Ms. Korkka agreed to sign the property division stipulation prepared by her previous counsel, Mr. Zhukovsky. Mr. Petrenko decided to agree to it with minor changes regarding the schedule of Ms. Korkka[’s] payments to him. [Citation.]

“Ms. Korkka or her counsel didn’t dispute the property division stipulation during the trial. Ms. Abrahamyan [Korkka’s] trial counsel, filed the stipulation signed by Ms. Korkka as part of her trial closing brief [Citation.]”

Korkka’s reply brief hardly takes issue with Petrenko’s description, her 11-line response admitting that “at trial she signed under fear of incurring costs in the litigation process.”

DISPOSITION

The judgment is affirmed. Petrenko shall recover his costs.

 

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Stewart, J.

Korkka v. Petrenko (A156601)