Fourth District, Division 2 Affirms Based on Violation of Fundamental Appellate Tenet—Present A Complete Record; Also, Co-contributor Marc Gets A Puppy!
We don’t mean to be preachy (although we probably are at times), but the next case reinforces a crucial appellate practice reminder—one stressed by both practitioners and jurists alike—which is to make sure as appellant that you present a complete record to the reviewing court with respect to claims of error.
In Marriage of Smith, Case No. E047535 (4th Dist., Div. 2 June 8, 2010) (unpublished), wife and husband terminated their marriage in 2001 after having two children. Dissolution proceedings showed that husband had a much higher monthly income as compared to wife, even though the evidence was conflicting in nature. To show you how expense divorce cases can be, wife claimed she had incurred attorney’s fees of $85,000 compared to husband’s fees of $150,000. She requested a “needs based” award (likely under Family Code sections 2030 and 2032) broken down as $70,000 for fees and $20,000 for costs. Even though noting the downward trend in the economy that negatively impacted husband’s income and cash flow, the lower court awarded husband to pay wife’s fees in the sum of $62,300, payable at $2,000 per month.
The Fourth District, Division 2 affirmed the fee award. The reason was simple: husband failed to present crucial declarations presented before the lower court in the clerk’s transcript that he ordered be transmitted to the appellate court. Thus, without an adequate record, error would not be presumed and the appellate court could not review in the manner described in Alan S. v. Superior Court, 172 Cal.App.4th 238, 251-259 (2009) [which we reviewed in our March 21, 2009 post—an informative decision authored by Presiding Justice Sills of the Fourth District, Division 3 and containing a detailed methodology for reviewing pendente lite family law awards].
BLOG UNDERVIEW—We also refer our readers to a previous May 28, 2008 post where Justice Rylaarsdam of the Fourth District, Division 3 affirmed a decision because of an appellant’s failure to provide a reporter’s transcript. He also has written a 2001 article—again referenced in the May 28 post—indicating that failure to provide an adequate record will likely automatically doom a writ petition.
BLOG ANNOUNCEMENT—Co-contributor Mike recently learned that co-contributor Marc has a new addition to the animals (cats and chickens) in the Alexander household—a new puppy with the appropriate name of “Watson Alexander Grumbles” (take the first letters, and that comes to WAG—very appropriate because the motto of this blog is that attorney’s fees are often the tail that wags the litigation dog). Congratulations, Marc, and here is a picture of the newly acquired Watson.