IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
December 7, 2010
IN RE THE MARRIAGE OF JANET AND CURTIS CARTER. JANET CARTER, RESPONDENT,
CURTIS CARTER, APPELLANT.
Appeal from orders of the Superior Court of Orange County, Kim R. Hubbard, Judge. Dismissed in part and affirmed. Motion to augment record. Denied.
The opinion of the court was delivered by: O'leary, Acting P. J.
Marriage of Carter CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this marital dissolution proceeding, Curtis Carter appeals from an order on an order to show cause (OSC) regarding modification of spousal support filed by Janet Carter.*fn1 Curtis argues the family court judge was biased against him and favored Janet because she is "a Caucasian female attorney practicing in the same courthouse." He also argues the family court engaged in a "Cover-Up" by ordering that exhibits attached to his joint list of exhibits be returned to him pending any appeal, in order, he claims, to prevent public access to the documents.
These are serious allegations and we treat them seriously. We have fully considered Curtis's appellate brief and reviewed the appellant's appendix in depth. There is no evidence of bias or a coverup. The order on the OSC did not grant Janet all the relief she requested and did not result in lowering her spousal support obligation. The trial courts routinely order the return of exhibits to the parties in civil cases because the courts lack the facilities to store them. We therefore affirm.
Curtis also appeals from a ruling on a submitted matter entered on March 13, 2009. That ruling was not immediately appealable, but had to be challenged as part of an appeal from the judgment of dissolution entered in April 2009. (Code Civ. Proc., § 904.1, subd. (a)(1).) The notice of appeal, filed in December 2009, was untimely as to the March 13, 2009 ruling and to the judgment of dissolution. (Cal. Rules of Court, rule 8.104(a), (b).) Accordingly, we dismiss that portion of the appeal.
Curtis filed a motion to augment the record with a set of form interrogatories and attorney billing records. Those materials already appear in the appellant's appendix at tab O and at tab S. The motion to augment the record is therefore denied.
FACTS AND PROCEEDINGS IN THE FAMILY COURT
Janet and Curtis were married in October 1999. Janet is an attorney and the principal shareholder of The Advocate's Legal Center Inc. Curtis is a writer and at the time of trial was employed part time by LA Fitness International, LLC.
Janet filed for legal separation in March 2008. A trial was held in February 2009. In his trial brief, Curtis asserted Janet was "an 'Abusive Wife' engaging in various 'Domestic Violence' areas." (Boldface omitted.) At trial, Curtis submitted evidence he contended substantiated his claims of physical and emotional abuse. Both Janet and Curtis testified at trial. Curtis requested spousal support. The family court took the matter under submission on February 19, 2009.
On March 13, 2009, the family court issued a "Decision of the Court on Submitted Matter." The decision divided property and debts, with reimbursements to community property as necessary, and confirmed ownership of separate property. The court held that Curtis was entitled to one-half of net fees received by Janet on an unpaid account receivable of about $254,000.
As for spousal support, the court considered the factors set forth in Family Code section 4320, but reserved jurisdiction over the issues until the parties provided sufficient information for the court to determine reimbursements on real property. In considering spousal support, the family court found: "There is no documented history of domestic violence between the parties. . . . [Curtis] submitted a lengthy set of e-mails and portions of a journal, allegedly written by [Janet], but those materials have no foundation and are so heavily redacted that any ability to decipher context is meaningless. They are also completely self-serving. As evidence, they have no credibility."
The court also stated: "The court does take into consideration the respective credibility of the parties. [Janet], although distraught, appeared to be credible in her testimony. [Curtis] did not have the same level of credibility being too polished and 'slick' in his presentation. He insisted that the court had to find that [Janet] has engaged in domestic violence and that the court must, therefore, award him spousal support. As stated hereinabove, his 'evidence' of domestic violence was entirely self-serving and not credible."
In April 2009, a judgment of dissolution was entered. Attached to the judgment was an order resolving the issues reserved in the March 13, 2009 decision. Among other things, the court ordered Janet to pay Curtis $500 per month in spousal support and divided the community debt of $105,454.54 equally between Janet and Curtis. As the community debt was on Janet's credit cards, the court ordered Curtis to pay Janet $500 per month for his share of that debt. The court also ordered Curtis to pay Janet $500 per month as equalization payments for an automobile allocated to him. The court determined that Curtis owed Janet reimbursement of $135,380.66 for the downpayment on a home but, acting "as a court of equity," held that he was not required to make that reimbursement. Curtis did not appeal from the judgment.
In July 2009, the family court issued an order that the exhibits attached to the declaration submitted by Janet be returned to her "pending conclusion of the appropriate time period for appeal." The order also stated: "Pursuant to the ruling of this Court on 3/13/09, the exhibits attached to [Curtis]'s joint list of exhibits filed with the Court on 2/19/09 were ordered returned to [Curtis] to be maintained pending conclusion of the appropriate time period for appeal. However, due to inadvertence and clerical error, the exhibits were placed in the court file. The exhibits are ordered removed from the court file and returned to [Curtis]."
In October 2009, Janet filed an OSC for modification of spousal support and for a determination that her spousal support obligations be offset by unpaid amounts owed to her from Curtis. Janet requested the court to terminate her spousal support obligation. She argued the court's decision "forgiving" Curtis of his obligation to reimburse her $135,380.66 was "inequitable" and asserted that Curtis had not been paying her the $1,000 per month he owed her as reimbursements on the community debt and the automobile. Curtis opposed the OSC.
The family court heard the OSC on November 24, 2009 and issued a ruling on December 4, 2009. The court denied Janet's request to terminate spousal support but permitted her "to offset the ordered spousal support on a monthly basis against the debt and equalization payments owed to her by [Curtis] on a monthly basis." The court found that the community had an 11.5 percent interest in a contingency fee case formerly handled by Janet's law practice and permitted Janet to offset Curtis's 5.75 percent share by any unpaid reimbursement or equalization payment owed by Curtis, if the contingency fee were ever received. The court also concluded that if Janet were to recover any of the $254,000 account receivable, she could offset Curtis's 50 percent share by any unpaid reimbursement or equalization payment.
Curtis timely appealed from the December 4, 2009 order. His notice of appeal also purports to appeal from the March 13, 2009 Decision of the Court on Submitted Matter, but, as we have concluded, that appeal is untimely and we must dismiss it. (Cal. Rules of Court, rule 8.104(a), (b).)
Curtis argues the trial court was biased in favor of Janet because she is a Caucasian female lawyer who practices in Orange County Superior Court and against him because he is an African-American male. Curtis's evidence of bias is that the family court found his evidence of abuse not credible, found him not to be a credible witness, and found Janet to be a credible witness.
Curtis takes issue in particular with the family court's characterization of his testimony as "slick" and "self-serving."*fn2 But, "[a]t trial, 'it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends.'" (People v. Hovarter (2008) 44 Cal.4th 983, 996, quoting People v. Jones (1990) 51 Cal.3d 294, 314.) "It is an established principle that the credibility of witnesses and the weight to be given their testimony are matters within the sole province of the trier of fact . . . ." (As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 454.)
Here, the family court's task was to assess the credibility of Janet and Curtis. That the family court found Janet credible, and Curtis less credible, does not raise a suspicion of bias. We cannot, and will not, second-guess the family court's assessment of witness credibility. It is a legitimate consideration in assessing witness credibility that the witness appears too polished (or "slick") or the witness's testimony is overly one-sided. The family court acted within its province by so describing Curtis's testimony.
Curtis also argues the family court displayed bias by discrediting his exhibits submitted to prove abuse. We have reviewed in depth those exhibits, which consist of a lengthy set of e-mails and portions of a journal allegedly handwritten by Janet. Nothing appears in the record to indicate Curtis authenticated those exhibits and laid a proper foundation for their admission at trial. (Evid. Code, §§ 1400, 1401.) The e-mails have been so heavily redacted that we, as the family court concluded, cannot discern context. Curtis included in his appellant's appendix a photocopy of a CD called "Janet's Greatest Hits" and photographs, apparently of himself, displaying a red mark on his torso.*fn3 There is no indication those items were ever identified or received in evidence at trial, and nothing in the appellant's appendix lays a foundation for their admissibility.
We have examined the record on appeal in depth and have found no evidence of judicial bias. To the contrary, the family court's rulings are profoundly fair and impartial toward Curtis. The family court awarded Curtis spousal support and later denied Janet's request to terminate it. The court found Curtis owed Janet reimbursement of $135,380.66 but did not require him to pay it. Janet asserted in her OSC that result was inequitable.
Curtis also argues the court engaged in a coverup by expunging the court files of his evidence submitted to prove abuse. After trial, the court ordered the trial exhibits returned to the parties pending conclusion of the appropriate time period for any appeal. It is a common practice for the court to order the return of trial exhibits to the parties because the court does not have the facilities to store them. Here, the family court's July 2009 order noted that Curtis's exhibits were placed in the court file due to inadvertence and clerical error. Thus, the court ordered the exhibits be returned to him. That is not evidence of a coverup, but a common court practice intended to save storage space.
In the conclusion of the appellant's opening brief, Curtis asks us to reverse the family court's decisions concerning offsets payable to Janet and the division of the account receivable and contingency fee. The family court awarded Curtis one-half of any net recovery of the account receivable and 5.75 percent of the contingency fee, subject to offset. Other than his claim of bias, Curtis offers no argument and cites to no evidence to show the family court's decisions were erroneous.
The appeal from the March 13, 2009 Decision of the Court on Submitted Matter is dismissed. The order dated December 4, 2009 on the OSC regarding modification of spousal support is affirmed. Respondent to recover costs incurred on appeal.