Opinion
A150149
01-19-2018
In re the Marriage of William C. Ulrich and Barbara Stewart. WILLIAM C. ULRICH, Appellant, v. BARBARA STEWART, Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Contra Costa County Super. Ct. No. D13-04268)
Retired attorney William C. Ulrich appeals in propria persona from a marital dissolution judgment determining he breached his fiduciary duty to his then wife, and terminating his spousal support. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
William and Barbara Stewart married in 2007, when William was in his sixties and Barbara was in her forties. When they married, William had health issues, but was a successful family law attorney with a private practice. William maintained no business records, did not pay taxes, and used a check cashing service to conduct financial transactions. William gambled extensively during the marriage, and he did not save for retirement. Barbara, an accountant, moved out of the marital residence in 2011, upon learning William was hiring prostitutes. Barbara knew the marriage was "over," but she became William's "financial supporter and caregiver" as his health declined. She allowed William to move into her apartment and she "dress[ed] his wounds" and "clean[ed] up his messes" resulting from surgeries and incontinence.
We use the parties' first names for clarity, intending no disrespect. (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 390, fn. 1.) We summarize only those facts relating to the issues raised on appeal. All undesignated statutory references are to the Family Code.
In 2013, William petitioned for dissolution and sought spousal support. Barbara responded to the petition; in her case management statement and separate statement of contested issues, she listed William's breach of fiduciary duty as an issue for resolution at trial. She noted William had a "deep gambling addiction," and had spent at least $11,505.46 of community funds on gambling during the marriage without her knowledge or approval. Sometime in 2013, William closed his law office. In 2014, he let his bar license lapse. Pursuant to the parties' stipulation, the court ordered temporary spousal support for William.
In 2016, the court held a two-day bench trial, where both parties testified and numerous exhibits were admitted into evidence. The court issued a proposed statement of decision and, after considering William's objections, issued a final statement of decision. In its final statement of decision, the court terminated spousal support. It considered and discussed all of the section 4320 factors, including Barbara's ability to pay spousal support, the needs of each party based on the marital standard of living, the age and health of the parties, and the balance of hardships to each party. The court provided a thoughtful, reasoned analysis supporting its decision to terminate spousal support.
In addition, the court resolved Barbara's fiduciary duty claim premised on William's "dissipation of community funds in gambling and hiring prostitutes." The court described the testimony Barbara offered to support her claim, and rejected William's contention that his gambling was "a harmless pastime that . . . 'did not affect his financial affairs or the standard of living that the parties enjoyed.' Indeed, that argument is astonishing and ironic, where he now seeks lifetime support from [Barbara] because he squandered money on gambling and now claims he is destitute." In addition, the court addressed William's argument that Barbara breached a fiduciary duty to him by spending community funds on "her daughter [and] on travel," noting William "admitted he knew about and consented to these expenditures . . . and never made the further claim that [Barbara's] known expenditures breached her fiduciary duty to him. It is improper to urge such new theories at this juncture." The court determined Barbara was entitled to $3,800 for William's breach of fiduciary duty, which would be offset against Barbara's spousal support arrears.
The court determined William was "a less-than-credible witness" and described his testimony on the gambling expenditures as "false." The court noted Barbara "presented records from [William's] Capital One credit card, which showed that [he] spent $5193.61 on gambling, plus $294.35 in associated finance charges, just in the 2½ year period from August 29, 2008 through February 18, 2011. There are no records after that, but the evidence was clear that his gambling did not stop; it continued through the final separation . . . and beyond. If anything, the pace increased. . . . [William] expended some $10,000 on gambling during the marriage, a conservative figure based on the more modest pace of gambling early in the marriage rather than the more heated pace right after separation, and an amount not rebutted by [William]."
The court entered a judgment dissolving the marriage, resolving Barbara's fiduciary duty claim in her favor, and terminating spousal support.
DISCUSSION
William challenges the judgment on several grounds, none of which is persuasive. First, he claims insufficient evidence supports the court's findings regarding his gambling losses. This argument fails for two reasons. First—and in violation of California Rules of Court—William's opening brief provides only a brief procedural overview and fails to summarize the evidence adduced at trial. (Cal. Rules of Court, rule 8.204(a)(2)(C) [appellant's opening brief must " 'provide a summary of the significant facts' "].) "[A]n attack on the evidence without a fair statement of the evidence is entitled to no consideration when it is apparent that a substantial amount of evidence was received on behalf of the respondent. [Citation.] Thus, appellants who challenge the decision of the trial court based upon the absence of substantial evidence to support it ' "are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is deemed waived." ' " (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Here, William has waived his challenge to the sufficiency of the evidence supporting the gambling findings by "fail[ing]to discuss all evidence material to his contentions." (Id. at p. 1247.)
We reject William's argument for the additional reason that he has failed to provide "a reporter's transcript from his court trial or any other adequate statement of the evidence. . . . Generally, appellants in ordinary civil appeals must provide a reporter's transcript at their own expense." (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186.) "Where no reporter's transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporter's transcript will be precluded from raising an argument as to the sufficiency of the evidence." (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Without a reporter's transcript or the exhibits presented at trial, we cannot undertake a meaningful review of William's argument. Nor can we, as William seems to suggest, "reevaluate his credibility and reweigh the evidence presented below." (Foust, at p. 188.)
Next, William argues the court erred by awarding Barbara $3,500 for his breach of fiduciary duty. This claim—premised on the alleged absence of evidence of "gambling losses" or a "loss to the community"—fails for the reasons discussed above. (Nwosu v. Uba, supra, 122 Cal.App.4th at pp. 1246-1247.) In the absence of a trial transcript, we "presume that there was substantial evidence in the oral proceedings to support the findings or the decision of the court below." (In re Marriage of Stachon (1978) 77 Cal.App.3d 506, 509.) William's list of cases concerning "gambling debt or a[n] undisclosed asset," without any analysis, is not persuasive.
The court awarded Barbara $3,800 for William's breach of fiduciary duty, but William challenges only $3,500, the amount related to gambling. "[S]ection 1100, subdivision (e), sets out in general terms that spouses owe each other a fiduciary duty in the management and control of their assets." (In re Marriage of Kamgar (2017) 18 Cal.App.5th 136, 144-145.) "[S]ection 1101 creates a right of action and specific remedies for the breach of fiduciary duty between spouses." (In re Marriage of Prentis-Margulis & Margulis (2011) 198 Cal.App.4th 1252, 1270.) --------
We decline to address William's claim that he owed no duty of disclosure under section 721, because it is premised on a purported lack of evidence, and because it is unsupported by meaningful analysis. We are not " 'required to examine undeveloped claims, nor to make arguments for parties. [Citation.]' [Citation.] Our role is to evaluate ' "legal argument with citation of authorities on the points made." ' " (Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984-985 [declining to address contentions unsupported by analysis or citation to authority].)
William's next claim—that the court erred by refusing to consider his own breach of fiduciary duty claim against Barbara—has no merit. As the trial court observed, William did not allege Barbara's expenditures constituted breach of fiduciary duty. William's petition for dissolution and case management statement do not allege a breach of fiduciary duty claim against Barbara. In his trial brief, William criticized Barbara for using community funds for personal use and claimed any breach of fiduciary duty on his part was "more than offset by a Breach of fiduciary duty/ waste of community funds by [Barbara]." William, however, did not explicitly allege Barabara breached a fiduciary duty to him. We decline to consider arguments not raised or properly developed in the trial court.
William's final claim is the court abused its discretion by terminating spousal support. The court did not, as William argues, fail to consider the section 4320 factors, the relevant evidence, and applicable case law. As discussed above, the court analyzed each section 4320 factor in detail, and provided a well-reasoned justification for its decision to terminate spousal support. William's recitation of evidence favorable to him and his disagreement with the court's decision do not establish the termination of spousal support was an abuse of discretion. (In re Marriage of Blazer (2009) 176 Cal.App.4th 1438, 1443 [spousal support order must be upheld under "deferential abuse of discretion standard" where trial court's discretion is " 'exercised . . . along legal lines' " and its " ' "determination is within the range of the evidence presented" ' "]; In re Marriage of Ackerman (2006) 146 Cal.App.4th 191, 213 [wife failed to demonstrate lower court abused its discretion by terminating spousal support].)
DISPOSITION
The judgment is affirmed. Barbara Stewart is awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.