Fourth District, Division 3 Reaffirms Fundamental Precept of Appellate Practice.
If one is going to do appellate work, creating an adequate record is a must. After all, the appellate court has nothing before it in a case except for what the litigants provide it. The lack of an adequate appellate record in the next case was damning indeed.
Acting Presiding Justice O’Leary, in a 3-0 decision in Marriage of Benice, Case No. G043392 (4th Dist., Div. 3 Jan. 26, 2011) (unpublished), affirmed a family court decision awarding wife $20,000 in “need based” fees, payable by husband. The reason for affirmance was that husband failed to provide an adequate appellate record by not including all the pertinent law and motion paperwork (such as the paperwork filed by wife in support of the fee request). Without a proper record, the presumption of correctness accorded to the fee order was a presumption that prevailed because it was unrebutted in nature.