Brau v. Francis (In re Brau)

BUTZ, J.

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 03FL04773)

Appellant Calvin Francis appeals from a trial court order denying his motion to set aside the parties' June 24, 2015 stipulated order. He asks this court to reverse the trial court's order, set aside the June 24, 2015 stipulated order, and recalculate child and spousal support arrears. Francis makes several arguments in support of his appeal; two are not properly before the court and the other lacks merit. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The record on appeal is limited and there is no reporter's transcript.

A judgment of dissolution was filed in October 2003. Appended to and incorporated in that judgment is a marital settlement agreement, in which Francis was ordered to pay $1,891 in child support each month, as well as $781 in monthly spousal support to Rosenda Brau. The judgment also ordered that 50 percent "of [Francis's] PERS retirement plan" be awarded to Brau as her separate property.

A November 22, 2010 stipulation modified the monthly child support to $1,090, effective August 1, 2010, and ended spousal support effective April 11, 2009 (upon Brau's remarriage), but added $410 per month in arrears for child support and spousal support payable to Brau.

On January 12, 2015, Francis filed in the trial court a motion seeking the "[a]djudication of child and spousal support arrears accrued from August 1, 2003 to present," and the "[i]nterpretation of the 10/9/2003 judgment's division of retirement benefits." Francis argued that the 2003 order for support was "unaffordable" to him because "it constituted more than 70% of [his] net income . . . ." He said Brau understood that and they had agreed she would accept $1,500 each month in combined support in lieu of the amount ordered.

Francis further claimed that he continued to pay Brau $400 each month beginning in July 2014, without a court order that he do so. All of this, he said, was in addition to keeping Brau on his medical insurance after the dissolution of their marriage. Thus, he believed he had substantially overpaid support to Brau and he wanted that money back.

Francis also wanted the trial court to interpret the October 9, 2003 judgment as limiting Brau's interest in his retirement to "community property contributions made during marriage from May 15, 1988 to July 30, 2003."

Brau opposed the motion. She said she never agreed to less support than the court ordered. Regarding retirement, she said, "all I have to say is that he promised me half of his retirement. The 'half' I was to receive was not limited in any way. [Francis] left me for another women [sic]. He felt a lot of guilt. He made a lot of promises. Now he is trying to undo some of his promises." By her calculation, Francis owed her combined child and spousal support arrears totaling $132,748.

The next document in the record on appeal is another motion, filed by Francis in propria persona in August 2015, seeking to set aside "the Stipulated Order of June 24, 2015." He also asked for sanctions against Brau under Family Code section 271. In support of his motion, Francis argued Brau perjured herself and had "continually engaged in deception . . . ." He suggested she had defrauded the Internal Revenue Service, county assistance programs, and the court.

The June 24, 2015 stipulation and order is not included in the record on appeal but is described by Brau in her opposition to Francis's motion as an order that Francis pay $60,000, plus interest, in combined child and spousal support arrears. --------

Francis also argued that counsel, who represented him at the time the June 24, 2015 stipulation was entered, made "mistakes" that he argued "should not be attributed to me." Those mistakes, he claimed, included failing to properly calculate the arrears, failing to "provide the other side with information," and failing to return his calls. He further claimed that counsel did not tell him he had a right to an evidentiary hearing on the issues and led him to believe he had "to agree to the terms they were demanding."

Brau opposed Francis's motion and asked for attorney fees. She noted that she spent "more than an hour" at the courthouse negotiating the June 24, 2015 stipulation and order. She also noted they each filed with the court their own arrears' calculations. She asked for $4,000 in attorney fees.

On January 20, 2016, the trial court prepared and filed its own "Findings and Order After Hearing." The order reads: "Attorney's fees and costs payable by [Francis] in the amount of $1,000 plus costs of $0 in monthly payments of $100 per month starting 2/1/2016. [¶] The entire balance will become due if any payment is not made within 15 days of the due date. [¶] . . . [¶] Court denies estoppel argument. [¶] Court also denies the Motion to Set Aside as no evidence shown for [Code of Civil Procedure section] 473."

Francis appeals from this order.

DISCUSSION 1.0 Standard of Review

On appeal, we must presume the trial court's judgment is correct. (People v. Giordano (2007) 42 Cal.4th 644, 666.) Thus, we must adopt all inferences in favor of the judgment, unless the record expressly contradicts them. (See Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)

The party challenging a judgment bears the burden to provide an adequate record to assess claims of error. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141.) When an appeal is "on the judgment roll" (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083), we must conclusively presume evidence was presented that is sufficient to support the court's findings (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154). Our review is limited to determining whether any error "appears on the face of the record." (National Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521; Cal. Rules of Court, rule 8.163.)

2.0 Claims of Error

Francis argues the trial court's order denying his motion to set aside the June 24, 2015 stipulation and order should be reversed because: (1) the original amount of support ordered by the court in 2003 was "higher than 70 percent of [his] income"; (2) he "lacked legal knowledge and ability to afford assistance," and therefore the original amount ordered in 2003 was incorrectly calculated; (3) the original amount of child support was incorrect because he was the biological father of only two of the three "claimed children"; (4) laches; and (5) he received ineffective assistance of counsel when the June 24, 2015 stipulation and order was negotiated and signed.

First, those claims related to the amount of support ordered in October 2003 are not properly before this court. That order issued more than 12 years before Francis filed his notice of appeal. The time to challenge those orders has long passed. (Cal. Rules of Court, rule 8.104(a)(1)(C) [notice of appeal must be filed no later than 180 days after the judgment or order is entered or filed].)

Second, Francis's claim that the June 24, 2015 stipulation and order should be set aside due to laches also is not properly before this court. The trial court did not rule on a claim of laches, but denied Francis's motion to set aside the stipulation and order based on "estoppel" and a lack of evidence to support a claim under Code of Civil Procedure section 473. We will not consider Francis's laches argument for the first time on appeal. (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3 ["It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal."].)

Third, and finally, Francis's claim that he received ineffective assistance of counsel is not well taken. "[T]he general rule is that there is no due process right to counsel in civil cases. [Citation.] Generally speaking, the right to counsel has been recognized to exist only where the litigant may lose his [or her] physical liberty if he [or she] loses the litigation." (Walker v. State Bar (1989) 49 Cal.3d 1107, 1116.) In Chevalier v. Dubin (1980) 104 Cal.App.3d 975, a civil assault and battery case in which the jury awarded the plaintiff compensatory and punitive damages, the Court of Appeal rejected the defendant's claim of ineffective assistance of counsel, explaining, "we are aware of no authority, and counsel has cited us none, which would permit a trial or appellate court to grant a retrial to an unsuccessful litigant in a civil case, with or without punitive damages, on the grounds of incompetency of counsel." (Id. at p. 978; see In re Grunau (2008) 169 Cal.App.4th 997, 1003 [unlike a criminal case, in which "a botched appeal may result in punishment for a crime of which the defendant was convicted in error, merely because his [or her] legal representative defaulted in the performance of his [or her] professional duties," in a civil case, "attorney negligence may be remediable by a malpractice action, and it may be better to relegate the aggrieved litigant to that remedy than to impair the finality of appellate judgments on the ground of counsel's deficient performance"].)

We therefore reject Francis's assertion that reversal is required because he received ineffective assistance of counsel. "Indeed, the general rule is that attorney neglect in civil cases, if any, is imputed to the client." (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1575.)

DISPOSITION

The orders of the trial court are affirmed. Brau is awarded her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

BUTZ, J. We concur: NICHOLSON, Acting P. J. HOCH, J.