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In Re the Marriage of James and Susan Short. v. Susan Short

July 27, 2011

IN RE THE MARRIAGE OF JAMES AND SUSAN SHORT. JAMES SHORT, APPELLANT,
v.
SUSAN SHORT, RESPONDENT.



(Super. Ct. No. FL16133)

The opinion of the court was delivered by: Hoch , J.

Marriage of Short CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this marital dissolution action between James Short and Susan Short, James appeals from the judgment's award of spousal support and division of property.*fn1 James contends the trial court erred by (1) failing to provide him with notice that a court reporter would not be provided during the second day of trial, (2) deeming his mandatory retirement contributions and the value of a car provided by his employer to be income for purposes of calculating spousal and child support, (3) finding that an automobile belonging to the marital community was given to Susan's daughter as a gift, and (4) awarding the family residence to him rather than ordering it sold and the proceeds divided.

We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

James and Susan married in June 1995 and separated in December 2006. The parties have one minor child of the marriage, a son.

James filed a petition for dissolution of marriage in June 2007. In November 2007, the court ordered James to pay $694 in child support and $1,653 in spousal support per month. The parties shared custody of their son on an equal time-share basis, and custody was not contested.

On September 26, 2008, the trial court issued the following minute order: "PLEASE TAKE NOTICE, on the Court's own motion, [t]he 2-day Court Trial is continued to December 3 & 4[,] 2008 at 10:00 a.m. in the Bridgeport Court facility. Please be advised that a Court Reporter will not be provided by the Court." (Italics added.) The notice was mailed to both parties. The record does not show that James requested an official court reporter or made any effort to provide his own certified court reporter.

A court trial was held on December 4 and 5, 2008, and addressed issues of spousal support, division of property, and attorney's fees. A court reporter was present on the first day of trial. The second day of trial on December 5, 2008, proceeded without a court reporter being present. The record does not indicate that James objected to the absence of a court reporter. Following trial, the parties filed written arguments, the last of which were filed by James on January 14, 2009.

On April 13, 2009, the court issued a tentative statement of decision. James filed objections on May 11, 2009. On August 13, 2009, the court issued a final statement of decision. The court's decision awarded the family residence to James, which was valued at $740,000 and encumbered by a deed of trust and line of credit.

The parties' interest in a condominium was divided equally, and Susan was ordered to bear all expenses incurred during her residency in the unit. The decision awarded a Toyota to Susan, with a credit to James. As to the other vehicle owned by the marital community, the court ruled that "the Kia was a gift to [Susan's] daughter." The court also divided other community assets and debts.

The court found that James earned $11,471 in cash compensation and $5,319 in "other/nontax benefits" per month. Susan earned $3,750 per month. Accordingly, the court ordered that "[f]or spousal support [James] shall pay monthly to [Susan] the sum of $2250 for a period of 48 months from the date of judgment, which will afford [Susan] ample time to become self-sufficient, after which jurisdiction of the court on this issue shall terminate." The court noted that neither child custody nor child support was at issue.

Finally, the court ordered James to pay $15,000 in attorney's fees to Susan because "[t]he amount of attorney fees incurred by [husband] is staggering and out of all proportion to the value of the community estate and issues presented herein. The process to and through trial was driven largely by [husband's] attorney changes and tactics employed, and consequently [wife's] fees were increased beyond what one would reasonably expect to have been the case."

The parties filed several responses to the statement of decision, which was erroneously designated as a judgment. Susan filed objections to the statement of decision, a motion to amend the judgment or for new trial, and a proposed judgment. James filed objections to the statement of decision and a motion for new trial.

On September 24, 2009, the court corrected its designation of the statement of decision and directed the preparation of the final judgment to be filed nunc pro tunc as of September 24, 2009. The court set a date to hear James's motion for new trial.

The court entered a judgment of dissolution on November 13, 2009. On December 17, 2009, the court denied James's motion for new trial but allowed him "to rectify procedural defects in [the] motion for new trial" by filing a curative declaration by January 8, 2010.

James filed a "corrected" motion for new trial on January 8, 2010. The trial court denied James's renewed motion for new trial on January 15, 2010. In an order after hearing filed on February 3, 2010, the court clarified the retroactivity of the support order and confirmed the $2,250 monthly spousal support obligation.

James timely filed notices of appeal from the judgment of dissolution and the December 17, 2009, order after hearing. However, James did not file an agreed statement or move for a settled statement of the untranscribed testimony given on the second day of ...


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