Black v. Black (In re Marriage of Elijah)

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In re the Marriage of MAXIMILIAN ELIJAH and CHRISTIENNE MEREDITH BLACK.

MAXIMILIAN ELIJAH BLACK, Respondent, v. CHRISTIENNE MEREDITH BLACK, Appellant.

G062681

California Court of Appeals, Fourth District, Third Division

September 25, 2024

NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Orange County, No 14D000459 Adrianne E. Marshack, Judge.

Christienne Meredith Black, in pro. per., for Appellant.

James D. Decker and Christopher M. Jones for Respondent.

OPINION

MOORE ACTING P. J.

In this family law matter against her husband, Maximilian Elijah Black (Max), Christienne Black^[1] purports to appeal from numerous orders made at a hearing on March 24, 2023. Most of the issues she attempts to appeal, however, are nonappealable. Christienne repeatedly attempts to invoke "due process" as her grounds for appeal, but those are not words that can turn a nonappealable order into an appealable one. The only appealable issue before us is an attorney fee order, granting Christienne $10,000 in attorney fees. She has failed to carry her burden to demonstrate this order was erroneous. We therefore affirm the order.

FACTS AND PROCEDURAL HISTORY

Neither party provided a summary of the historical facts of this matter. In 2014, Max filed for dissolution. Trial was originally set for June 2015. By stipulation, in 2016 discovery was reopened and trial was set for April 2017.

On July 2, 2019, Christienne served a request for production of documents, which included 35 categories of documents. At a hearing in August 2019, the court agreed to reopen discovery until 30 days prior to trial.

Another request for discovery was apparently sent in October 2019. This demand included 16 more categories of documents.

In July 2020, Christienne filed a motion to compel. At the hearing on October 30, there was confusion over whether discovery was open or closed. The court did not have the transcript of the August 2019 hearing before it. Max argued that the July 2, 2019 discovery was propounded before any reopening of discovery in August 2019. Christienne's counsel offered to simply re-serve the same discovery if the court was inclined to find the discovery had to be served after the August 19 hearing. At that time, trial was scheduled for December 4. The court agreed to open discovery for 10 more days. The motions to compel were taken off calendar.

Christienne re-served the discovery requests on November 2, and Max responded with boilerplate objections. According to Christienne (the document is not in the record) she filed a motion to renew her motion to compel in November. The matter was heard in March 2022 before a different judge, who denied her motion and imposed sanctions.

The court's ruling noted that neither party had lodged the transcript of the October 30 hearing with the court. The court was left to review the minute order from that date, which stated: "The Court notes discovery was not reopen in this proceeding and the discovery date has expired, and therefore this Court does not have the power to reopen discovery. [¶] The Court hears argument from all counsel as to the issue of discovery. [¶] By the stipulation of counsels the Court orders discovery to be open for ten days commencing this date. [¶] The Court reserves on the issues of sanctions and fees." The minute order did not indicate the motion to compel had been taken off calendar. "Admittedly, the Court could have been clearer on this point, but this interpretation is supported by the next two lines of the minute order." The court noted that the minute order had reopened discovery, which would not have been necessary if discovery had already been open. Further, reserving on sanctions and attorney fees would have been "superfluous" if the matter had been taken off calendar. "Thus, the most reasonable interpretation of the minute order is that the Court denied the Motion to Compel because the discovery deadline had passed, but that the Court was reserving on sanctions and attorney's fees." The court sanctioned Christienne for an unjustified motion in the amount of $2,500.

Christienne filed a motion for reconsideration, which the judge did not rule upon.

Christienne brought a motion to disqualify the trial judge. A different judge granted the order on the grounds that "a person aware of the facts might reasonably entertain a doubt that the judge would be impartial." The judge had created a "disqualifying appearance of bias." Rulings by the judge after the motion to disqualify was filed on May 23, 2022, were vacated. It does not appear there were any orders relevant to this appeal issued by the disqualified judge after that date.^[2]

The new judge assigned to the case denied Christienne's motion for reconsideration of the discovery order. At the time, trial was set for early 2023. The court also reopened discovery on a limited basis for issues identified by the parties in their statements of issues reserved for trial. Documents could be requested by letter, and if any disputes arose, the attorneys were directed to contact the court's clerk to schedule an immediate conference call. The court's order setting forth these conditions was dated October 17, 2022.

Christienne, for reasons unknown, waited until November 22 to request formal discovery rather than the informal letter contemplated by the court's October 17 order. The due date for discovery was less than 30 days before the trial date set for January 24, 2023. Max sent objections electronically on December 27, 2022. Christienne's request for relief was filed more than 45 days later, on February 27, 2023. (At some point, the January 24 trial date was apparently vacated.)

Around this same time, Christienne again moved to disqualify the trial judge. The matter was reassigned to another judge, apparently without further hearings, in December.

Christienne states that she brought an "'informal motion to compel'" but does not cite to a document in the record. Max's response, which states Christienne's discovery request was untimely for several reasons, is in the record. On March 24, 2023, the new judge assigned to the case issued a ruling, finding that the statutory cutoff for discovery was 30 days before the January 24, 2023 trial date. The court, therefore, was required to hear any discovery motion 15 days prior to trial. Because vacating the trial date did not reopen discovery, the court could not hear the motion to compel.

In the same order, the court partially granted Christienne's motion for attorney fees, finding that a disparity existed between the parties to access funds to retain counsel. The court noted that the parties income and expense declarations stated Max's income at $10,000 per month, and Christienne was unemployed. The court found an attorney fee order of $10,000 was reasonable under the circumstances, without prejudice to a future request for fees.

Christienne now appeals.

DISCUSSION

I. PRINCIPLES OF APPELLATE REVIEW

The existence of an appealable judgment or order "'is a jurisdictional prerequisite to an appeal.' [Citation.] A corollary of this rule is that an appeal from a judgment or order that is not appealable must be dismissed." (In re Marriage of Deal (2022) 80 Cal.App.5th 71, 77-78.)

Generally, with some exceptions, only final judgments are appealable; this is known as the "final judgment rule." (Ibid.)

Further, "the right to appeal is strictly statutory, and a judgment or order is not appealable unless made so by statute." (Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1377.) In civil matters, Code of Civil Procedure section 904.1 is the main statutory authorization for appeals. In addition to final judgments, Code of Civil Procedure section 904.1, subdivision (a)(10) provides that an appeal may be taken from "an order made appealable by [the provisions of] the Probate Code or the Family Code."

When this court finds that jurisdiction is proper, we review the matter with certain principles in mind. "A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness." (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) "The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error." (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.)

Accordingly, the burden is on Christienne "to present argument and authority on each point made" (County of Sacramento v. Lackner (1979) 97 Cal.App.3d 576, 591; Cal. Rules of Court, rule 8.204(a)(1)(B))^[3] and to cite to the record to direct the reviewing court to the pertinent evidence or other matters in the record that demonstrate reversible error (rule 8.204(a)(1)(C); Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115). The failure to do so may result in an argument or issue being deemed waived. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see Stover v. Bruntz (2017) 12 Cal.App.5th 19, 28.)

II. MOTION TO AUGMENT

Christienne filed a motion to augment the record in this case with reporter's transcripts from August 20, 2019, October 30, 2020, March 18, 2022, October 13, 2022, March 24, 2023, June 12, 2023, and June 13, 2023.

Rule 8.155 permits augmenting the record on appeal. Augmentation however, is not unlimited. "'Augmentation does not function to supplement the record with materials not before the trial court. [Citations.] . . . Rather, normally "when reviewing the correctness of a trial court's judgment, an appellate court will consider only matters which were part of the record at the time the judgment was entered."...