The opinion
Filed 8/4/25 Marriage of Powers 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
In re the Marriage of KELLEY and BRUCE C099522
POWERS.
KELLEY J. POWERS, (Super. Ct. No. SDR0040027)
Respondent,
v.
BRUCE R. POWERS,
Appellant.
Marital dissolution proceedings between appellant Bruce Powers and respondent
Kelley Widrin (formerly Kelley Powers) commenced in 2012. The trial court entered
judgment in 2015. Postjudgment litigation, however, continues. Powers, in propria
persona, appeals from three postjudgment orders. A July 3, 2023, order directed him to
reimburse Widrin $14,466 for expenses she incurred in duplicating the community’s
photo and video collection. A November 1, 2023, order reduced spousal support payable
1
by Powers to Widrin from $1,000 monthly to zero, permanently terminated jurisdiction
over spousal support, and denied Powers’s request for reimbursement for several years of
spousal support “overpayment.” And a June 26, 2024, order made certain directives for
the division of two retirement accounts, held in Powers’s name but agreed to be
community property, and imposed monetary sanctions on Powers.
In his opening brief, Powers makes 17 arguments challenging these three
postjudgment orders. We will modify the July 3, 2023, order by striking the portion
granting Widrin’s request for $14,466 for media duplication and remand the matter for a
new determination. We will affirm the November 1, 2023, and June 26, 2024, orders.
BACKGROUND
Widrin and Powers married in 1993 and stipulated to a separation date of
November 1, 2011. Dissolution proceedings commenced in 2012. In August 2014,
following trial, the trial court entered a tentative decision. Of relevance here, the trial
court determined that Powers had to pay Widrin $1,000 per month in postjudgment
spousal support. The tentative decision also directed Widrin’s attorney “to adjust the
Propertizer that is attached to her closing brief to reflect all of the Court’s findings
regarding division of property and support. . . . This Propertizer will be incorporated into
this Tentative Decision. Preliminarily, without accounting for the arrears owing for child
support and spousal support pursuant to the agreed upon bonus schedule, the total
equalizing payment due from [Powers] to [Widrin] is $185,529.00.” For context, the
“ ‘Propertizer’ is commercial software that divides community assets and debts.”
(Welch v. Welch (2022) 79 Cal.App.5th 283, 291, fn. 5.)
Following argument, the trial court issued its statement of decision, which
incorporated the tentative decision. Of relevance, the court stated: “Based on the
submission of further Objections by [Powers] to the proposed Propertizer, and the
submission of a new Propertizer by Attorney for [Widrin] which accurately incorporates
all of the findings of the Court herein, the Court hereby . . . attaches the revised
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Propertizer to this Statement of Decision, and finds that the total equalizing payment due
from [Powers] to [Widrin] is the sum of $185,476.80.” An “Item Detail Report,”
identified by Powers as the Propertizer, is included in Powers’s appendix. It includes the
equalizing payment from Powers to Widrin in the amount of $185,476.
Neither the tentative decision nor the statement of decision refer by name to the
Motorola 401(k) account or the Principal Life IRA, both of which were retirement
accounts in Powers’s name and both of which are at issue in this appeal. Nor does the
tentative decision or statement of decision address the parties’ photo and video collection
which is also at issue here.
The 2015 Judgment
The trial court entered its judgment in August 2015, incorporating the statement of
decision. Among the provisions of the judgment relevant to the issues before us are the
following:
“The Motorola 401(k) in [Powers’s] name is confirmed to be entirely community
in character and shall be divided equally between the parties, with the parties to equally
share any cost.
“The Princip[al] Life IRA in [Powers’s] name is confirmed to be entirely
community in character and shall be divided equally between the parties, with the parties
to equally share any cost.
“The Community Photo Collection: The twelve (12) bins of professional and
personal photographs, negative[s], videos, photograph albums, and other photographs are
to be duplicated. The bins will be released from [Powers’s] prior counsel to [Widrin],
and maintained in her possession pending duplication. The photographs will be
duplicated at the equally shared costs of the parties upon demand of [Powers] [citation].
[¶] The photographs in Bins 1 - 7 shall be reviewed by [Powers] and he shall flag the
photographs he desires. [Widrin] shall duplicate those photos at Costco or Sam’s Club.
[¶] The professional photographs in Bin 8 will be duplicated at their original size at
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Photo Source. These framed and professional photographs will be selected between
original and duplicates in a round-robin fashion. [Widrin] shall [have] the right to
execute the first pick by win of a coin toss. [¶] The sports photographs in Bin 9 shall be
divided in a round-robin fashion, with [Widrin] to have the right to execute the first pick.
If either party desires a copy of the other party’s pick, those photos shall also be
duplicated at Costco or Sam’s Club at equally shared cost to the parties. [¶] Bin 10 shall
be reviewed by [Powers] and he shall flag the photographs he desires to have duplicated.
[Widrin] shall duplicate these at the equally shared costs of the parties at Costco or Sam’s
Club. The remaining photographs in this bin shall be awarded to [Widrin]. [¶] The 210
tapes in Bin 11 shall be divided in a round-robin fashion, with [Powers] having the right
to execute the first pick. If either party wishes any tape duplicated from the other party’s
selections, they will be duplicated at equally shared costs. [¶] The DVD’s shall be
divided in the same manner as Bin 11, with [Widrin] to have the right to execute the first
pick in the round-robin. [¶] [Powers] shall provide [Widrin] with any technology in his
possession to view the small tapes and older technology. [Powers] shall also provide his
electronic photographs to [Widrin] for duplication.”
The 2015 judgment also ordered Powers to pay Widrin $1,000 per month in
spousal support, “continuing until the death of either party or further order of the court.”
The judgment further ordered “that total payment to [Widrin], including equalizing
payment for community assets, reimbursement for educational costs and interest to May
4, 2015, arrears on support and interest thereon to May 4, 2015, sanctions, and attorney
fee awards, but excluding the 1430 shares of NetSuite stock from the E*Trade account, is
$185,476.00, due and payable upon entry of Judgment.”
On Powers’s appeal from the judgment, another panel of this court affirmed in all
respects with one exception not relevant here. (Powers v. Powers (Mar. 19, 2018,
C080319) [nonpub. opn.].)
4
DISCUSSION
I
The Appellant’s Burden and Self-Represented Litigants
At the outset, we reiterate certain aspects of the appellate process. “ ‘A judgment
or order of the lower court is presumed correct. All intendments and presumptions are
indulged to support it on matters as to which the record is silent, and error must be
affirmatively shown. This is not only a general principle of appellate practice but an
ingredient of the constitutional doctrine of reversible error.’ ” (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564.) “It is the appellant’s burden to demonstrate the existence of
reversible error.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 766.)
A self-represented litigant, such as Powers, “is entitled to the same but no greater
consideration than other litigants.” (County of Sacramento v. Singh (2021)
65 Cal.App.5th 858, 861.) “Accordingly, he must follow the rules of appellate procedure.
[Citations.] Those rules require an appellate brief to support each point by argument and,
if possible, by citation to authority and to provide a citation to the record for a factual
assertion. [Citations.] ‘[W]e may disregard factual contentions that are not supported by
citations to the record [citation] or are based on information that is outside the record
[citation]. We may disregard legal arguments that are not supported by citations to legal
authority [citation] or are conclusory [citation].’ [Citations.] Further, we may treat a
point that is not supported by cogent legal argument as forfeited.” (Ibid.; see Cal. Rules
of Court, rule 8.204(a)(1)(B), (C).)
II
July 3, 2023, Order on Media Duplication
A. Additional Background
In a request filed July 27, 2018, Widrin sought orders setting a deadline for Powers
to provide his digital photo collection to Widrin, and awarding Widrin the family photo
collection excluding sorted duplicates.
5
On November 19, 2018, the parties entered into a stipulation addressing the photo
collection and reimbursement for duplication expenses, under which the parties agreed to
meet on December 10, 2018, to divide bins of photos. The parties also agreed to submit
declarations detailing their reimbursement claims for duplication costs. According to
Widrin, however, Powers failed to attend the planned meeting. The trial court vacated the
November 19, 2018, stipulation.
On February 24, 2023, Widrin filed a request for orders relating to photograph and
video collections. Widrin stated that she had 11 media bins. She proposed scanning and
reprinting all photographs in bins 1 through 7 herself. She stated that estimates for the
cost of reproduction were more than $210 per bin. Widrin noted that, under the
judgment, the parties were to equally divide the cost of duplication. Therefore, according
to Widrin, the duplication costs for bins 1 through 7 would amount to $735 to each party,
based on a cost of $210 per bin, times seven bins, divided by two.
Bin 8 contained framed and/or professional photographs. Widrin had already paid
to have these photographs duplicated. She noted that pursuant to the since-vacated
stipulation, Powers was required to reimburse her $206.36 for photo duplication of bin 8
(the stipulation recited the amount of $206.46). Therefore, Widrin requested that Powers
be ordered to reimburse her $206.36, and, upon payment, she would provide Powers with
one-half of the originals and one-half of the duplicates.
Bin 9 contained professional photographs. Widrin proposed that she would scan
and print the photographs, and requested that Powers pay half of the estimated $150 cost.
Widrin represented that bin 10 contained photographs duplicated in other bins.
She requested that bin 10 be awarded to her outright.
Bin 11 contained approximately 200 videotapes. Under the vacated stipulation,
Powers had agreed to furnish Widrin with equipment to review the videos, but he had not
done so. Widrin requested Powers be ordered to furnish the necessary equipment, and
that she then be afforded time to review the videotapes. Widrin further requested that, if
6
Powers wanted any of the recordings, he be ordered to pay half the cost of outsourcing
duplication.
Widrin included an itemization for expenses she had incurred in relation to the
photograph collection over the prior five years. The total amount Widrin expended was
$845.14. Widrin also noted that she sorted photographs herself, and refused to reimburse
Powers for his expense of having his attorney’s office staff sort photographs for him.
Lastly, Widrin sought to have Powers reimburse her for the $1,914.53 in attorney
fees and costs she incurred as a result of Powers’s failure to appear for the parties’
December 10, 2018, meeting.
Powers filed his own request for orders, seeking the return of photo and video
property to him for duplication. He stated that he had professional equipment to
complete the task, and where such was not possible, the parties could select photographs
in a round-robin fashion. Powers also requested the imposition of sanctions against
Widrin.
In findings and order after a hearing, the trial court ordered all photos and videos
duplicated by May 26, 2023. The court ordered Widrin to advance the costs of
duplication, and stated that allocation of costs would be addressed at a hearing on
May 30, 2023. The court denied Powers’s request for sanctions.
At the hearing on May 30, 2023, Widrin stated that she had completed duplication
of more than 13,000 photographs personally and the videos through a service. Widrin’s
attorney represented that the cost of duplication, not including Widrin’s time, was $8,466.
Powers stated that he had incurred $7,962.50 in costs for collating photographs.
Widrin countered that Powers incurred those expenses through attorney fees and
paralegal fees, and Widrin never agreed to split those expenses. According to Widrin,
both parties were supposed to sort and collate the photograph collection, and she did so,
but Powers hired paralegals to do his collating. Thus, those were expenses to which
Widrin did not agree. Rather, according to Widrin, the only matter over which the trial
7
court retained jurisdiction was the duplication cost. Widrin’s attorney noted that Widrin
had not sought reimbursement for the time she or her staff spent on the project, and stated
that if the court were to entertain such expense requests, they would submit additional
documentation.
The trial court concluded that the parties had previously agreed that costs incurred
by both parties and “their respective offices” were to be split. The court directed the
parties to file invoices with the court and serve the opposing party no later than June 16,
2023. Powers stated he had an email, and the court responded, “Is that the $63.70?
That’s fine. If you have anything else, you can provide that to [Widrin’s counsel], and we
can talk about that. I think [Widrin’s counsel] needs some time to do her invoice.” When
Powers offered additional information, the trial court instructed Powers, “Keep that with
you and attach it to your motion for your invoice.”
In a declaration filed on June 16, 2023, Widrin sought a total of $28,931.07 for
reimbursement for duplication of the photo and video collection. Powers apparently did
not formally file a declaration or invoice, although he contends he presented his costs to
the trial court at the May 30, 2023, hearing.
In an order filed on July 3, 2023, the trial court ordered Powers to reimburse
Widrin $14,466 for the costs she incurred in processing the photo and video collection.
This amount is, rounded, one-half of the $28,931.07 Widrin expended according to her
declaration.
Powers filed a motion for reconsideration, arguing that he had never been served
with the Widrin’s invoice of her costs. In opposing Powers’s motion, Widrin argued that
she did serve Powers with her filing of costs for photo duplication, and attached a proof
of service by mail. The trial court denied Powers’s motion for reconsideration.
B. The Trial Court’s Jurisdiction to Address Media Duplication Costs
In Argument III of the opening brief, Powers argues that the trial court lacked
jurisdiction to rule on the expenses of photo and video duplication “outside of the
8
boundaries of the 2015 judgment language.” (Bold typeface and capitalization omitted.)
Powers argues that, absent an agreement between the parties allowing for ongoing
jurisdiction over duplication costs, “the court has no jurisdiction to rule on the matter.”
Powers reprises similar arguments throughout his briefing, contesting the jurisdiction of
the trial court to rule on the various motions at issue. Powers’s arguments are primarily
that the matters are governed by agreement of the parties, the parties did not agree to the
court retaining jurisdiction, and the time to challenge the parties’ agreements has long
past. We disagree with these contentions. As discussed below, the judgment effectively
superseded any stipulations that were incorporated therein, the court in the judgment
reserved jurisdiction, and the matters are not governed by limitations periods applicable
to actions on contracts or oral agreements.
The provisions pertaining to the photo and video collection and its duplication
were among the stipulations that were incorporated into, and made a part of, the
judgment, and were enforceable as such. (Cf. In re Marriage of Corona (2009)
172 Cal.App.4th 1205, 1220 [“ ‘A merged “ ‘. . . separation agreement is superseded by
the decree, and the obligations imposed are not those imposed by contract, but are those
imposed by decree, and enforceable as such. Once the contract is merged into the decree,
the value attaching to the separation agreement is only historical’ ” ’ ”].) The judgment
expressly provides that “Jurisdiction is reserved to make other orders necessary to carry
out this judgment.” Additionally, by statute, the trial court had the power to “compel
obedience to its judgments, orders, and process, and to the orders of a judge out of court,
in an action or proceeding pending therein.” (Code Civ. Proc., § 128, subd. (a)(4); see
also Fam. Code, § 291, subd. (a) [“A money judgment or judgment for possession or sale
of property that is made or entered under this code, including a judgment for child,
family, or spousal support, is enforceable until paid in full or otherwise satisfied”].) At
issue was enforcement of the judgment, not, as Powers argues, “jurisdiction over the
stipulated agreements between the parties . . . .” Each party filed a request for orders
9
pertaining to photo and video duplication, and Widrin sought to recover half of her
expenses in accomplishing the duplication. Through their motions, the parties sought to
enforce the judgment. The trial court had jurisdiction to rule on the matters.
C. Due Process -- Notice and an Opportunity to be Heard
Powers argues that he was deprived of due process because he did not have notice,
the opportunity to review Widrin’s invoice itemizing photo and video duplication costs,
or the opportunity to be heard on the matter. Powers states that he was not served with
the invoice. We conclude that the record does not establish Powers had notice and an
opportunity to be heard on Widrin’s compensation for photo and video duplication
expenses.
The Fourteenth Amendment to the United States Constitution provides that no
state shall “deprive any person of life, liberty, or property, without due process of
law . . . .” Similarly, article I, section 7 of the California Constitution provides that “[a]
person may not be deprived of life, liberty, or property without due process of law . . . .”
“Due process requires that certain basic procedural protections be afforded before
the state deprives an individual of property.” (In re Marriage of Flaherty (1982)
31 Cal.3d 637, 651.) “Due process requires ‘notice, an opportunity to respond, and a
hearing.’ [Citation.] The purpose of due process is to provide affected persons with the
right to be heard ‘ “at a meaningful time and in a meaningful manner.” ’ ” (Shenefield v.
Shenefield (2022) 75 Cal.App.5th 619, 631.)
“Where service is made by mail strict compliance with Code of Civil Procedure
section 1013a is required [citation]. That section requires that if the affidavit is not
completely and correctly filled out, service is defective . . . .” (West v. West (1979)
92 Cal.App.3d 120, 125.)
The proof of service on which Widrin relied as proving Powers had been served
with her declaration regarding “Costs Incurred for Duplication of Photograph Collection”
states that Widrin’s attorney served Powers by mail. The declaration was dated and filed
10
on June 16, 2023. The proof of service also was dated June 16, 2023. However, it recites
that the documents were mailed to Powers on January 23, 2023. That was months before
the trial court directed the parties to submit the documentation, on May 30, 2023. Thus,
the proof of service by mail is defective. It recites what must be an incorrect date of
service. Widrin appears to acknowledge as much, referring in her briefing to “an obvious
typo on the proof of service.”
Even if substantial compliance with Code of Civil Procedure sections 1013 and
1013a, as opposed to strict compliance, would suffice (see, e.g., Douglas v. Janis (1974)
43 Cal.App.3d 931, 937 [although “ ‘strict compliance’ with sections 1013 and 1013a is
required, we decline to equate ‘strict compliance’ with absurdity in compliance”; “ ‘strict
compliance’ is satisfied by substantial, without literal, compliance”]), we conclude that an
invalid or incorrect date of mailing renders the proof of service defective, as it fails to
establish when a party was served with the relevant documents. The date of service is
material here.
Widrin asserts that “Powers was served by mail by Widrin’s counsel on the same
date as the document was filed.” However, the evidence does not prove this to be true.
Widrin also argues that her attorney, as an officer of the court, confirmed that she
personally effected service, which she did during an argument before the trial court.
However, these statements were not sworn testimony and do not constitute evidence.
(Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 139 [“Statements and arguments by
counsel are not evidence”].) Additionally, Widrin did not file an amended proof of
service in an effort to remedy the defect.
The trial court ordered Powers to pay Widrin $14,466. In other words, the court’s
order would deprive Powers of property. This implicates the due process protections of
notice and an opportunity to be heard. Proper service would have afforded Powers the
opportunity to review, assess, and, if appropriate, object to Widrin’s claimed expenses in
the trial court. In the absence of proof of proper service, there is no proof Powers was
11
apprised of Widrin’s specific claims before the trial court issued its order. Thus, the
evidence does not establish that he had notice and the opportunity to be heard before the
court issued its ruling, violating his right to due process.
Widrin argues that Powers “was not prejudiced in any way, as [the] Court did not
provide either party for a rebuttal period regarding the reimbursement claims--the matter
was deemed submitted upon the filing.” This was indeed the procedural course charted
by the trial court. However, we cannot conclude that the trial court’s timeline and
procedure renders the due process violation nonprejudicial. Powers was entitled to notice
and an opportunity to be heard as a matter of due process, even if the court did not intend
to entertain additional briefing or hearings.
Widrin also argues that Powers waived any right to a hearing or rebuttal because,
at the May 30, 2023, hearing, he did not request an opportunity to respond to Widrin’s
forthcoming filings. We cannot conclude that Powers forfeited his due process right to an
opportunity to be heard on evidence he had yet to see because he did not anticipatorily
request a hearing to address objections he might have to that evidence. Widrin does not
cite to any authority for the premise that a litigant must reserve in advance the due
process right to an opportunity to be heard.
In light of these determinations, we will modify the July 3, 2023, order by striking
the provision that ordered Powers to pay Widrin $14,466 as reimbursement. We will
remand the matter to the trial court for a new determination of the parties’ respective
obligations for the expense of photo and video duplication. The other challenges Powers
makes to the July 3, 2023, order pertaining to the expenses of photo and video
duplication, including whether the court’s determination exceeded the scope of the 2015
judgment and the trial court’s treatment of Powers’s own request for reimbursement, may
be addressed on remand.
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III
November 1, 2023, Order on Postjudgment Spousal Support
A. Additional Background
Powers filed a motion for an order terminating spousal support and for
reimbursement of past overpayments. Powers argued that Widrin had “acquired a very
large estate, totaling more than 5 million dollars, and . . . [her] income has increased
substantially.” He asserted that Widrin’s estate “far exceeds the standard of living that
she had during the marriage and is more than sufficient for her proper support.” Powers
requested a refund of $42,000 in spousal support “overpayment” because, according to
Powers, Widrin inherited her multimillion-dollar estate in February 2020, and, from that
point to the date of Powers’s motion, Widrin failed to disclose this inheritance.
In her written response, Widrin agreed to termination of spousal support and the
permanent termination of the court’s jurisdiction over spousal support, if only to “finally
bring this twelve years of . . . relentless litigation to a close . . . .” As for Powers’s request
for reimbursement, Widrin maintained that her income and expense declaration had been
accurate.
At the September 18, 2023, hearing, Widrin stated she was willing to agree to a
zero-support award and the termination of jurisdiction on spousal support effective
immediately. Powers clarified that he was requesting termination of spousal support as
distinguished from a zero-support award.
In findings and orders after the hearing, the trial court accepted Widrin’s
concession, reduced spousal support to zero effective September 18, 2023, and
permanently terminated jurisdiction over spousal support. The court denied Powers’s
request for reimbursement of spousal support payments previously made, finding it was
without jurisdiction to retroactively modify spousal support before the date Powers filed
his motion.
13
B. Cessation of Support Obligation
Powers argues the trial court erred in ordering spousal support to be reduced to
zero. According to Powers, Widrin agreed to terminate spousal support, which, he
asserts, is different from reducing the spousal support award to zero. We conclude
Powers has failed to demonstrate reversible error.
In support of his argument that spousal support should be terminated permanently,
as distinguished from setting spousal support at zero, and that this should be clearly set
forth in the trial court’s order, Powers fails to offer any citation to authority. (See County
of Sacramento v. Singh, supra, 65 Cal.App.5th at p. 861 [rules of appellate procedure
“require an appellate brief to support each point by argument and, if possible, by citation
to authority”; “ ‘We may disregard legal arguments that are not supported by citations to
legal authority [citation] or are conclusory’ ”].) Nor does he offer a legal distinction, with
citation to authority, between setting support at zero versus terminating support.
Additionally, Powers makes no specific argument as to how he suffered prejudice as a
result of this distinction between a zero support award and termination of spousal
support. “It is the appellant’s burden to demonstrate the existence of reversible error.”
(Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 766, italics added; see
Champir, LLC v. Fairbanks Ranch Assn. (2021) 66 Cal.App.5th 583, 597 [“ ‘To prevail
on appeal, an appellant must establish both error and prejudice from that error’ ”].)
Having failed to both offer legal authority in support of his argument and demonstrate
prejudice, Powers has not established reversible error.
C. Reimbursement for Past Spousal Support Payments
Powers claims the trial court erred in failing to grant him reimbursement for
spousal support payments for the period from June 20, 2023, when he moved for
termination of spousal support, until spousal support payments ceased. Powers contends
he is entitled to reimbursement for the period after June 20, 2023, and the written order,
prepared by Widrin, fails to reflect that. We conclude Powers is not entitled to this relief.
14
In his motion filed June 20, 2023, Powers sought a refund of $42,000 for
“[s]pousal support overpayment.” According to his exhibit C itemizing the purported
overpayments, Powers sought to recover each month’s $1,000 spousal support payment
from March 1, 2020, through June 1, 2023. This amount actually totaled $40,000, not
$42,000. Powers’s written motion did not expressly seek reimbursement for payments
after June 20, 2023.
Argument on Powers’s motion took place on September 18, 2023. The trial court
determined it lacked jurisdiction to modify anything prior to Powers’s filing of his June
20, 2023, motion. (See generally Fam. Code, §§ 3651, subd. (c)(1), 3653, subd. (a); In re
Marriage of Gruen (2011) 191 Cal.App.4th 627, 638.) Powers does not challenge this
determination on appeal. At the hearing, Powers did not request reimbursement for
payments made after June 20, 2023.
Thus, neither in his June 20, 2023, motion, nor at the September 18, 2023, hearing
did Powers seek reimbursement for overpayment of spousal support for the period from
June 20, 2023, to September 18, 2023, or for any time after June 1, 2023. Thus, in
seeking reimbursement here of support payments made between June 20, 2023, and when
payments ceased, Powers seeks relief that he did not seek in the trial court.
“ ‘It is elementary that an appellate court is confined in its review to the
proceedings which took place in the trial court. [Citation.] Accordingly, when a matter
was not tendered in the trial court “. . . [it] is outside the scope of review. ” ’ [Citation.]
‘ “[A] judgment will not be reversed on appeal because of the failure of the lower court to
give relief not embraced in the pleadings and which it was not asked to give . . . .” ’
[Citation.] ‘This rule precludes a party from asserting on appeal claims to relief not
asserted in the trial court.’ ” (Consumer Watchdog v. Department of Managed Health
Care (2014) 225 Cal.App.4th 862, 878.) Because Powers did not seek this relief in the
trial court, he may not seek it here.
15
IV
June 26, 2024, Order on Motorola 401(k) and Principal Life IRA Accounts
A. Additional Background
On July 27, 2018, Widrin filed a request for several orders, including the “amount
now due on the Judgment,” although nothing in the request expressly addressed the
Motorola 401(k) or the Principal Life IRA. On November 5, 2018, Powers filed a
response in which he stated: “As the Court knows, pursuant to the Judgment . . . , the
Court ordered the parties to equally divide the Motorola 401(k) and the Principal Life
IRA. I proposed . . . that we agree to hire Moon, Swartz, and Madden to prepare a
QDRO [Qualified Domestic Relations Order] and equally divide their engagement fee as
ordered by the Court. . . . I have written both Plan Administrators. Principal Life has
asked both parties to conduct follow up, which I intend to do. I only ask that [Widrin]
cooperate with the finalization of the orders dividing the plans.”
Years later, after Powers began to represent himself, Widrin’s attorney emailed
Powers to meet and confer. Widrin’s attorney wrote: “The Judgment confirms the
Motorola 401k and the Princip[al] Life IRA (both in your name) as community property.
The two accounts are to [be] divided equally and you both are to share the costs. I have
previously requested that you fill out the ‘self-represented’ form with Moon Schwartz and
Madden, but you have not. Please advise as to your position on these two remaining
issues that remain outstanding from the Judgment. Absent satisfactory response, we will
be filing a motion to compel your actions to split these two accounts.”
In his responsive email, Powers stated, “With regards [sic] to the Equalization
payment, which included all property, including retirements as stated by the Judge in his
Statement of Decision. It has been paid in full. Any attempts to fraudulently deceive the
court in this matter will be met with further litigation.”
In February 2024, Widrin filed another request for orders, seeking orders requiring
Powers to execute all documents required for the division of the Motorola 401(k),
16
requiring him to pay half of the costs to the provider, awarding Widrin the entire
Principal Life IRA because Powers had withdrawn half of the account in 2016, and
imposing sanctions.
In an argument before the trial court, Powers, relying on the Propertizer, argued
that the Motorola 401(k) and the Principal Life IRA were included in the equalizing
payment. In other words, as Powers put it, “[I]t’s already paid.”
In an order filed June 26, 2024, the trial court recited that the judgment confirmed
that the Motorola 401(k) and the Principal Life IRA were both community property to be
divided equally. The court further confirmed that the judgment resulted in an equalizing
payment of $185,476 to be paid by Powers to Widrin. The court noted that there “was no
specific award of the Motorola 401(k) or Principal Life IRA in the court[’]s tentative
decision or statement of decision.” The court went on to conclude: “[T]he court finds
insufficient evidence to show that the judgment . . . included the Motorola 401(k) and
Principal Life IRA in the equalization payment payable to [Widrin]. Although . . . the
judgment makes no specific exclusion of the Motorola 401(k) and Principal Life IRA
from the equalization payment, the court finds that including these assets in the
equalization payment is contrary to the intent of the court[’]s statement of decision. In
making this finding the court notes that neither the tentative decision nor the statement of
decision divides the Motorola 401(k) or the Principal Life IRA. [¶] On the contrary, the
stipulation entered into by the parties and incorporated as a judgment, expressly finds that
the Motorola 401(k) and Principal Life IRA are entirely community property to be
divided equally with parties to split the cost. In addition, a review of [Powers’s]
objection to the court[’]s statement of decision filed May 27, 2015, confirms that the
parties stipulated to divide the Motorola 401(k) and Principal Life IRA via QDRO
[citation]. [Powers]’s objection is silent as to whether the division should be included in
the equalization payment. This finding is also bolstered by the pleadings filed by
[Widrin] indicating a plan between parties[’] counsel to issue a QDRO shortly after the
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judgment was issued. [¶] As a result the court finds that the . . . judgment does not
include the Motorola 40l(k) or Principal Life IRA in the equalization payment owed from
[Powers] to [Widrin]. The court finds that these two assets must therefore be divided
pursuant to the judgment . . . .”
The trial court ordered Powers cooperate with execution of the division of the
Motorola 401(k) and pay half of those costs, awarded the remaining half of the Principal
Life IRA, in the amount of $39,150.37, to Widrin, granted Widrin’s request for an award
of half of the already disbursed amounts of the Principal Life IRA in the amount of
$12,955.75, and granted Widrin’s request for the imposition of sanctions against Powers
in the amount of $5,403 based on his “continuing non-compliance with the
. . . judgment.”
B. Jurisdiction of the Trial Court
In Argument VIII of his opening brief, Powers again argues that there is no
indication the parties agreed that the trial court would retain jurisdiction to enforce the
parties’ property agreements. Therefore, according to Powers, the trial court lacked
jurisdiction to rule on the matter. We disagree.
Although the parties entered into certain stipulations with reference to the
retirement accounts, including that they were community property, those stipulations
were incorporated into and made part of the judgment. As such, they were enforceable as
part of the judgment. (Cf. In re Marriage of Corona, supra, 172 Cal.App.4th at p. 1220.)
Widrin sought enforcement of this aspect of the judgment, as she interpreted it. And, as
previously stated, the judgment provides that “Jurisdiction is reserved to make other
orders necessary to carry out this judgment.” Contrary to Powers’s contention, the trial
court did not lack jurisdiction over the matter.
C. Characterization of Widrin’s Motion as One for Reconsideration
Two of Powers’s arguments are premised on his characterization of Widrin’s
motion as being one for reconsideration of the judgment pursuant to Code of Civil
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Procedure section 1008. Powers asserts that Widrin’s motion asked the trial court to
review the 2015 judgment concerning the treatment of these retirement accounts, and, as
such, it was, in fact, a motion for reconsideration.
In Argument V of his opening brief, Powers argues that the trial court erred in
considering Widrin’s motion because, as a motion for reconsideration, her motion was
time-barred. Code of Civil Procedure section 1008 requires motions for reconsideration
to be made “within 10 days after service upon the party of written notice of entry of the
order . . . .” (Code Civ. Proc., § 1008, subd (a).) Because Widrin filed her motion more
than eight years after the 2015 judgment, Powers argues that the trial court exceeded its
discretion in considering this motion.
We disagree with Powers’s characterization of Widrin’s motion. Widrin did not
seek reconsideration of the 2015 judgment, as Powers argues. She instead sought orders
requiring Powers to execute all documents necessary to divide the Motorola 401(k) and
Principal Life IRA accounts by a qualified domestic relations order, and for Powers to
pay half of the costs, “per the Judgment.” Widrin’s position is that the judgment provided
for the division of these community property accounts, and that Powers has thus far failed
to comply with the judgment. Whether her interpretation of the judgment’s treatment of
these accounts is right or wrong, she is seeking to enforce the judgment, not its
reconsideration. Powers’s contention that the trial court erred in considering Widrin’s
motion because it was a time-barred motion for reconsideration is without merit.
In Argument VI of the appellant’s opening brief, Powers argues that the trial court
exceeded its discretion under Code of Civil Procedure section 1008 by reinterpreting the
2015 judgment. Because we reject Powers’s argument that Widrin’s motion was one for
reconsideration, this argument, too, is without merit.
D. The Existence of a Binding Agreement Between the Parties
In Argument VII of appellant’s opening brief, Powers argues that the trial court
“failed statutorily to determine if a valid and binding agreement between [Powers] and
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[Widrin] existed to divide [Powers’s] retirement accounts via QDRO or DRO [Domestic
Relations Order].” (Some capitalization omitted.) In elaborating on the point, Powers
asserts that the trial court erred in concluding, “through its own research and not by any
evidence or argument presented by the parties,” that the parties had stipulated to divide
the Motorola 401(k) and Principal Life IRA accounts by means of a qualified domestic
relations order. According to Powers, this violated due process because the court did not
“bring its argument or evidence in front of the parties until it[s] decision . . . .” He also
argues that there is no evidence that the division of the retirement accounts was not
accounted for in Powers’s equalizing payment.
For purposes of this argument, the trial court’s conclusions were that, under the
2015 judgment, the Motorola 401(k) and Principal Life IRA accounts were “entirely
community property.” However, the court found that “judgment does not include the
Motorola 40l(k) or Principal Life IRA in the equalization payment owed from [Powers]
to [Widrin]. The court finds that these two assets must therefore be divided pursuant to
the judgment . . . .”
Contrary to Powers’s contention, the trial court did not “ fail[] statutorily to
determine if a valid and binding agreement between [Powers] and [Widrin] existed to
divide [Powers’s] retirement accounts via QDRO or DRO.” (Some capitalization
omitted.) Instead, the court found that (1) under the judgment, these retirement accounts
were community property, and (2) they were not included in the equalizing payment
Powers paid to Widrin. As previously addressed, the trial court enforced the judgment
which it had reserved jurisdiction to do; it did not fail to determine the existence of a
binding agreement between the parties.
Nor did the trial court improperly conduct its own research by referring to
Powers’s objection to the statement of decision. “Both trial and appellate courts may
properly take judicial notice of a party’s earlier pleadings and positions as well as
established facts from both the same case and other cases.” (Cantu v. Resolution Trust
20
Corp. (1992) 4 Cal.App.4th 857, 877, italics omitted.) In any event, the court did not rely
on this to determine that these accounts were not in the equalizing payment and were to
be divided by a qualified domestic relations order. The court referred to Powers’s
objection only as “confirm[ing]” that the parties had previously agreed to divide these
accounts by a qualified domestic relations order.
E. Statute of Limitations and Laches
Powers argues Widrin was barred from challenging any property agreement based
on the statute of limitations. Powers asserts that Widrin sought to relitigate agreements
and orders years after the fact. Contrary to Powers’s contention, Widrin here was not
seeking to address the breach of an agreement between the parties. We reiterate that
Widrin sought to enforce the provisions of the 2015 judgment. Widrin’s claims therefore
were not governed (or barred) by the statute of limitations applicable to an action on a
contract (Code Civ. Proc., § 337) or oral agreement (Code Civ. Proc., § 339).
Powers also argues the doctrine of laches barred Widrin “from contesting any
enforceability of an agreement related to the retirement property division due to her long
delay in raising a challenge, which now creates a prejudice to [Powers] who, for over six
years, relied on the finality of the judgment.” Once again, Widrin does not seek to
contest the enforceability of any agreement between the parties. Moreover, in the portion
of Powers’s argument addressed to laches, he cites to no authority to support his position,
and thus we may disregard it. (See County of Sacramento v. Singh, supra,
65 Cal.App.5th at p. 861.)
F. Res Judicata, Collateral Estoppel, Hearsay, and Settlement Negotiations
Powers argues that, in considering Widrin’s motion, the trial court erred in
ignoring his contentions concerning hearsay, collateral estoppel, and res judicata,
violating his right to due process. This section of Powers’s briefing addressing res
judicata, collateral estoppel, hearsay, as well as the use of evidence from settlement
21
negotiations contains no citation to legal authority. Accordingly, we may disregard these
arguments. (See County of Sacramento v. Singh, supra, 65 Cal.App.5th at p. 861.)
G. Family Code Section 2550 and the Division of the Retirement Accounts
Powers argues that the trial court erred in dividing his Motorola 401(k) and
Principal Life IRA retirement accounts in contravention of the equality requirement of
Family Code section 2550. He argues that these accounts were community property
assets accounted for in the equalizing payment. According to Powers, the trial court’s
determination amounts to improperly requiring him to divide the value of his retirement
accounts a second time in violation of Family Code section 2550. This argument, and the
next one in which Powers argues that the trial court ignored relevant evidence, invokes
Powers’s primary substantive contention concerning the June 26, 2024, order: that these
retirement accounts were already divided by means of the equalizing payment. We
conclude Powers has not established reversible error.
“Except upon the written agreement of the parties, or on oral stipulation of the
parties in open court, or as otherwise provided in this division, in a proceeding for
dissolution of marriage or for legal separation of the parties, the court shall, either in its
judgment of dissolution of the marriage, in its judgment of legal separation of the parties,
or at a later time if it expressly reserves jurisdiction to make such a property division,
divide the community estate of the parties equally.” (Fam. Code, § 2550.) Thus,
generally, “community property is divided equally in the aggregate when the marriage
ends.” (In re Marriage of Benson (2005) 36 Cal.4th 1096, 1102.)
The judgment expressly provides that the Motorola 401(k) and the Principal Life
IRA accounts, both of which were in Powers’s name, were “entirely community in
character and shall be divided equally between the parties, with the parties to equally
share any cost . . . .”
Widrin misrepresents or misunderstands Powers’s position, characterizing his
argument as being that he was awarded the entirety of these two accounts. Powers agrees
22
that, under the judgment, these accounts were community property to which each party
was entitled to an equal half. Powers’s contention instead is that both accounts were
divided and accounted for in the equalizing payment.
Powers argues that, with the exception of certain NetSuite stock, all community
property, including these retirement accounts, was considered in the amount of the
equalizing payment. He relies on the following language from the 2015 judgment: “The
Court orders that total payment to [Widrin], including equalizing payment for community
assets, reimbursement for educational costs and interest to May 4, 2015, arrears on
support and interest thereon to May 4, 2015, sanctions, and attorney fee awards, but
excluding the 1430 shares of NetSuite stock from the E*Trade account, is $185,476.00,
due and payable upon entry of Judgment.” (Italics added.) However, this language alone
does not establish that the $185,476 equalizing payment addressed all community
property assets save the NetSuite stock or that the subject retirement accounts were
factored into the equalizing payment. One reading of this provision could be that the
equalizing payment addressed all community property. Other readings are that the
equalizing payment addressed some community property, addressed exclusively
community assets, or addressed community property identified elsewhere.
Additionally, even if we do not conclude, as Widrin argues, that judicial estoppel
prevents Powers from raising his argument that the retirement accounts were addressed in
the equalizing payment, we do note that, several years after the calculation of the
equalizing payment in the judgment, Powers did contemplate the division of the
retirement accounts by a qualified domestic relations order. On November 5, 2018,
Powers filed a response to Widrin’s request for orders in which he stated in a declaration:
“As the Court knows, pursuant to the Judgment . . . , the Court ordered the parties to
equally divide the Motorola 401(k) and the Principal Life IRA. I proposed . . . that we
agree to hire Moon, Swartz, and Madden to prepare a QDRO and equally divide their
engagement fee as ordered by the Court. . . . I have written both Plan Administrators.
23
Principal Life has asked both parties to conduct follow up, which I intend to do. I only
ask that [Widrin] cooperate with the finalization of the orders dividing the plans.” At the
time of the November 5, 2018, filings, Powers was represented by counsel.
Even more tellingly, in another declaration filed with that response, one of
Powers’s attorneys, discussing numerous issues and errors related to the Propertizer,
noted that the Motorola 401(k) and the Principal Life IRA were community property to
be divided equally; stated that she had communicated with the two plans’ administrators
with regard to the proposed division by a qualified domestic relations order prepared for
the parties by Moon, Schwartz, and Madden; and it is significant to note, stated that
Widrin had included these two retirement accounts “in the Propertizer unnecessarily. As
the equal division has no impact on the equalization payment, I included it in my
Propertizer for uniformity.” (Italics added.)
It appears that it was only after he began to represent himself that Powers took the
position that these accounts were divided in the equalizing payment.
We further note that the judgment contemplated that the parties would “equally
share any cost” in the division of these accounts. It is unclear what costs would be
involved if these accounts were simply included in the equalizing payment.
In any event, a “ ‘judgment or order of the lower court is presumed correct. All
intendments and presumptions are indulged to support it on matters as to which the
record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court,
supra, 2 Cal.3d at p. 564.) We conclude the language of the judgment on which Powers
relies is insufficient to satisfy his burden of demonstrating that the trial court erred in
determining that the retirement accounts were not accounted for in the equalizing
payment. (See generally Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 766
[appellant’s burden to demonstrate reversible error].)
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H. Ignoring Relevant Evidence that the Accounts Were in the Equalizing
Payment
According to Powers, the trial court erred, and violated his due process rights, by
ignoring relevant evidence establishing that the retirement accounts were divided in the
equalizing payment. The evidence to which Powers refers includes the statement of
decision, the tentative decision, and the Propertizer. Again, Powers has not met his
burden of demonstrating reversible error.
Powers argues that the statement of decision “clearly addresses the disposition of
[Powers’s] retirement accounts, consistent with the Judgment, by including the retirement
accounts explicitly in the calculation of the equalization payment.” The statement of
decision was incorporated into the judgment. On the page of the statement of decision
cited by Powers, the trial court stated that it “hereby attaches the revised Propertizer to
this Statement of Decision, and finds that the total equalizing payment due from
Petitioner to Respondent is the sum of $185,476.80.” This does not establish, on its face,
that the retirement accounts were “explicitly” included in the equalizing payment. We
will address the Propertizer below.
Powers also argues the tentative decision, which was incorporated into the
statement of decision, “is clear in its language regarding what it included in its
equalization payment calculation and includes an explicit reference to the retirement
accounts.” The tentative decision stated that “the parties were able to reach some
agreements regarding division of retirement benefits, amounts in various accounts as of
date of separation, vehicle allocation, and other distributions as reflected in the
Propertizer prepared by Attorney for [Widrin] and submitted to the Court on June 27,
2014 in line items 3, 4, 5, 6, 7, 8, 12, 13, 14, 15, 17, 18, 19 and 20.” This passage also
does not establish that the division of these accounts was accounted for in the equalizing
payment.
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The Propertizer has rows for individual property items and columns for, among
other things, Powers’s property equity, Widrin’s property equity, and the community’s
property equity. The Motorola 401(k) and the Principal Life IRA are listed as community
property in essentially equal values under both parties’ columns. For the Motorola
401(k), the Propertizer assigns $20,123 to Powers and $20,122 to Widrin. For the
Principal Life IRA, the Propertizer assigns $24,194 to Powers and $24,193 to Widrin. In
the last row is the equalizing payment in the amount of $185,476.
Powers argues that “[s]imple math demonstrates that the retirement accounts were
included in the equalization payment amount . . . .” However, he does not elaborate or
illustrate. Problematically, the Propertizer’s columns do not add up to the equity totals at
the bottom of the page. Powers’s total equity value at the bottom of the page, $387,036,
is substantially more than the sum of the property values in his column, $361,494.
Widrin’s total equity value, $16,083, is substantially less than the sum of her column,
$43,548. The joint equity total, $403,119, is less than the sum of that column, $405,042.
The totals at the bottom are the figures used to arrive at the equalizing payment. Because
it is not clear what property values are and are not included in those totals, it cannot be
determined from the Propertizer what property items are and are not included in the
equalizing payment. We also note that the total number of property items recited as
appearing on the Propertizer is incorrect. These issues were actually raised by Powers’s
prior attorney in the trial court.
As stated, it cannot be determined what properties and amounts on the Propertizer
are included in the totals from which the equalizing payment is derived. Thus, whether
the retirement accounts are included in the calculation of the equalizing payment cannot
be determined from the Propertizer. Additionally, with reference to the tentative decision,
which referred to line item numbers, we note that the two retirement accounts do not have
corresponding line item numbers like some other property items do. The Propertizer does
26
not establish that the Motorola 401(k) and the Principal Life IRA accounts were included
in the equalizing payment.
Powers has not satisfied his burden of demonstrating reversible error based on the
Propertizer, the tentative decision, or the statement of decision. (See generally Del
Real v. City of Riverside, supra, 95 Cal.App.4th at p. 766.) Nor has he established that
the trial court erred by ignoring evidence.
I. Resolving Ambiguity in a Document Against the Drafter
Powers argues that the trial court improperly found ambiguity in the judgment,
which Widrin’s attorney drafted, and then interpreted it in favor of Widrin. According to
Powers, pursuant to Civil Code section 1654, any ambiguity should be resolved in his
favor. Powers did not raise this argument in the trial court. “Generally, issues not raised
in the trial court cannot be raised for the first time on appeal.” (Wisner v. Dignity Health
(2022) 85 Cal.App.5th 35, 44.) In any event, even assuming it applied here, courts apply
the maxim that ambiguities are construed against the party who drafted the instrument
only when they cannot resolve the uncertainty with other rules of construction and the
consideration of extrinsic evidence. (Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th
577, 590, fn. 2; see Kim v. TWA Construction, Inc. (2022) 78 Cal.App.5th 808, 836 [Civ.
Code, § 1654 “applies only if ambiguity remains after recourse to other rules of
construction”; it “ ‘does not stand for the proposition that, in every case where one of the
parties to a contract points out a possible ambiguity, the interpretation favored by the
nondrafting party will prevail’ ”].) Powers has not established that failure to resort to
Civil Code section 1654 constituted reversible error.
J. Sanctions
Powers argues that the trial court erred in imposing $5,403 in sanctions against
him. We disagree.
An appellate court reviews an award of sanctions pursuant to Family Code
section 271 for abuse of discretion. (In re Marriage of Pearson (2018) 21 Cal.App.5th
27
218, 233.) Powers’s argument is premised on his position that he “has been compliant
with the 2015 Judgment that divided [Powers’s] retirement account via an equalization
payment. The lower court provides no evidence of any order that required [Powers] to
divide his retirement accounts both by equalization payment (which [Powers] paid), and
by QDRO and DRO.” Powers’s argument essentially relitigates the question of whether
the retirement accounts were divided by means of the equalizing payment. We have
concluded that Powers failed to demonstrate that the retirement accounts were divided in
the equalizing payment.
Powers also argues that, insofar as the trial court concluded the division of the
retirement accounts resulted from an agreement between the parties, the court lacked
jurisdiction to impose sanctions. However, as stated repeatedly, the trial court’s
determination did not concern an agreement between the parties, but rather enforcement
of the 2015 judgment. Powers has failed to establish an abuse of discretion.
K. Principal Life IRA
With regard to the Principal Life IRA, the trial court “grant[ed] [Widrin’s] request
to award 1/2 of the already disbursed amounts in the Principal Life IRA in the amount of
$12,955.75.” Powers notes that he used the proceeds of the withdrawal to pay the
equalizing payment. He argues that the trial court erred in making this award, and the
court’s order violated due process. According to Powers, the court did not offer any
rationale or authority for making this award.
The trial court plainly issued this award because the Principal Life IRA was
community property, the court determined Powers had not paid Widrin her share of that
community property, and therefore, she was entitled to half of the funds Powers
withdrew. The reason for the award is self-evident.
Powers also argues that any claim to entitlement to these funds is time-barred.
However, his contention is premised on the interpretation of the matter as a breach of
contract issue. Again, Widrin is seeking to enforce the judgment.
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DISPOSITION
The order dated July 3, 2023, is modified by striking that portion of the order
granting Widrin’s request for reimbursement in the amount of $14,466, and ordering
Powers to pay that amount on or before October 1, 2023. The matter is remanded for a
new determination on the parties’ obligations for the costs of duplication of the
community’s photo and video collection. The order dated November 1, 2023, is affirmed.
The order dated June 26, 2024, is affirmed. The parties shall pay their own costs on
appeal. (Cal. Rules of Court, rule 8.278(a)(3), (5).)
\s\
Krause, J.
We concur:
\s\
Earl, P. J.
\s\
Mesiwala, J.
29