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In Re the Marriage of David and Carrie Laskiewicz. v. Carrie Noah-Short

November 8, 2012

IN RE THE MARRIAGE OF DAVID AND CARRIE LASKIEWICZ. DAVID LASKIEWICZ, APPELLANT,
v.
CARRIE NOAH-SHORT, RESPONDENT; SHASTA COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, INTERVENOR AND RESPONDENT.



(Super. Ct. No. 89CVFL0096924)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

David Lee Laskiewicz appeals from various trial court orders in this family law proceeding. He contends the trial court (1) erred in backdating a status-only judgment of divorce to a date 20 years earlier; (2) abused its discretion in failing to require opposing counsel to document the distribution of trust funds; and (3) abused its discretion in disregarding a prior order issued by another judge because that was the law of the case.

We begin with a clarification regarding the scope of this appeal. David's*fn1 notice of appeal indicates he is appealing from a trial court order dated November 17, 2011, in which the trial court denied David's motion for reconsideration of the divorce judgment, denied David's motion to set aside opposing counsel's declaration in support of entry of the divorce judgment, and scheduled trial to address property issues. Nonetheless, David's contentions on appeal address additional matters. As we explain in parts I and III, David's challenges to the prior nunc pro tunc judgment are untimely and are not properly before this court. However, to the extent his second contention challenges the trial court's order dated December 9, 2011 -- in which the trial court terminated jurisdiction over spousal support and ruled that the property in the possession of each party was their separate property -- that contention is timely and we will interpret the notice of appeal broadly to include an appeal from the December 9, 2011 order. (Cal. Rules of Court, rule 8.100.) Any party aggrieved by our broad interpretation of the notice of appeal may petition for rehearing. (Gov. Code, § 68081.)

Regarding the merits of his appeal, David has elected to proceed on a clerk's transcript (Cal. Rules of Court, rule 8.121), and the appellate record does not include a reporter's transcript. 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.) On the face of the limited record, David does not establish trial court error. Accordingly, we will affirm the trial court's orders.

BACKGROUND

In 2011, Carrie Noah-Short filed a motion for entry of a status-only judgment of divorce nunc pro tunc. She asked that the judgment be effective in 1991, 20 years earlier. Carrie explained: "When we were last in court it was somewhere around 1991. My ex-husband was sent to Federal prison, was not mentally stable, I had the children and I was under the belief that a dissolution had been granted. The children are grown, property has been disposed of and I have moved on with my life. In July, 1992, I remarried believing that I was divorced and have recently found out that this is not the case. This is not only embarrassing but it also causes legal problems for me."

After a continuance to effectuate service, the parties appeared on Carrie's motion. David appeared by telephone without counsel, and Carrie appeared with her attorney Russell Swartz. The trial court entered judgment of divorce nunc pro tunc effective May 29, 1991. The trial court also indicated that it would set a further hearing to resolve property issues, but David objected and said he would not be present. The trial court found that "there is no community property subject to disposition by the Court." A notice of entry of judgment was mailed to David.

David subsequently filed a motion to vacate the declaration of Russell Swartz that had been submitted in support of Carrie's motion for a nunc pro tunc judgment. David also filed a motion asking the trial court to reconsider its decision to enter a status-only judgment nunc pro tunc, and a motion to disqualify the trial judge pursuant to Code of Civil Procedure section 170.6. The trial court denied the Code of Civil Procedure section 170.6 challenge as untimely, denied David's other motions after taking them under submission, and set a trial date to address property issues.

After the close of evidence at trial, the trial court ruled that "each person shall keep the property currently in their possession as their sole and separate property." The trial court also terminated jurisdiction over spousal support as to both parties.

STANDARD OF REVIEW

It is the burden of the party challenging a judgment 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, supra, 172 Cal.App.3d at pp. 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.) Absent a showing to the contrary, we must presume the trial court's judgment is correct (Denham v. Superior ...


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