(Super. Ct. No. 06FL08251)
The opinion of the court was delivered by: Blease, Acting P. J.
Marriage of Sharma and Singh
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Husband Nishan Singh appeals from a judgment dividing community assets and debts, wherein the trial court found a mortgage debt totaling $133,600 was husband's sole and separate property.*fn1 For the reasons that follow, we shall affirm.
Husband has elected to proceed on a clerk's transcript. (Cal. Rules of Court, rule 8.121.) Thus, the appellate record does not include a reporter's transcript of the trial in this matter. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)
The limited record we have establishes the following: Wife filed a petition for dissolution in November 2006. In September 2007, wife filed her second motion to compel discovery requesting evidentiary or issue sanctions against husband. Specifically, wife asked the court to "conclusively find that [husband] took $127,609 from the community property assets for his sole benefit."
The court granted wife's motion, including her request for sanctions. Accordingly, husband was "precluded from offering any evidence at trial of using $127,000 to pay debts or for any other purpose due to failure to provide evidence accounting for use of $127,000.00."
Nevertheless, at trial, the court allowed husband to present evidence regarding the $127,000 he had taken from the family residence in the form of a second mortgage. Husband provided testimony as well as documentary evidence to support his claim that he used the money to pay community debt. Wife argued she had traced the money to an account held solely in husband's name. Thus, she claimed the debt was husband's separate property.
After two days of testimony and documentary evidence, the court took the matter under submission. In April 2009, the court issued its tentative decision finding the $133,600 debt on the family residence to be husband's sole and separate property. The court further found that because husband "unilaterally removed almost the entire equity in the family residence," and refused to make any disclosures regarding the money he took, that husband breached his fiduciary duty to wife and attempted to defraud her as well as the community. In order to equalize the distribution of property, the court then ordered husband to pay to wife $140,488.00.
On appeal, we must presume the trial court's judgment is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Thus, we must adopt all inferences in favor of the judgment, unless the record expressly contradicts ...