Marriage of Marks CA6

Filed 1/26/23 Marriage of Marks CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re the Marriage of CLIFFORD and H046833

JENNY MARKS. (Santa Clara County

Super. Ct. No. 2015-6-FL-015261)

CLIFFORD O. MARKS,

Respondent,

v.

JENNY FU MARKS,

Appellant.

Appellant Jenny Fu Marks appeals orders issued by the trial court arising from the

dissolution of her marriage to respondent Clifford Marks. She contends the court erred

when it divided a CalPERS retirement account, and challenges other orders that assigned

payment of a debt, awarded spousal support, and awarded attorney’s fees and costs as a

sanction under Family Code section 271. As Jenny1 has failed to meet her burden to

show that the trial court erred, we will affirm the orders and resulting judgment.

1

As the parties share the same last name, we refer to them by their first names for

sake of clarity.

I. FACTUAL AND PROCEDURAL BACKGROUND2

Jenny and Clifford married in 1990 and separated in 2015. Clifford petitioned for

dissolution of the marriage in 2015, shortly after the separation. As of July 2018, the

issues pending before the court included division of property, reimbursement claims,

spousal support, and attorney fees, costs and sanctions.

The parties resolved certain issues at a settlement conference. The terms of the

agreements reached that day were recited on the record by the attorney serving as a pro

tem settlement officer.

The settlement officer stated that, “[t]he deferred compensation accounts will be

divided pursuant to qualified domestic relations orders or other similar order to divide

these accounts. This includes the PERS account for [Jenny’s] retirement. The parties

have agreed to use the services of Elizabeth Strassen to divide the account. [Clifford] has

agreed to advance the retainer to Ms. Strassen.” Clifford’s attorney clarified, “The

QUADROS or the orders that will be prepared by Elizabeth Strassen, each party shall get

one half of the community property interest in those.” The settlement officer further

stated that, “[t]here is a debt that is owed to [Jenny’s] sister. Her name is Grace Shih. . . .

And [Clifford] is responsible for one-half of the debt on the Promissory Note owed to

Grace Shih. And he shall contact and work with Ms. Shih in regards to that.”

The court confirmed with Jenny that she heard the terms recited on the record, that

she understood what was recited, that she agreed with the proposed terms of the

settlement agreement, and that any of her questions were answered at the hearing. Jenny

agreed that she was asking the court to make the agreement a court order. She was

assisted by a Cantonese interpreter and asked a number of clarifying questions regarding

term insurance policies.

2

We limit our discussion to the facts that are relevant to the issues on appeal, and

which were properly raised by Jenny in her briefs.

2

The court filed a written order in January 2019 (the January 2019 order),

confirming, “[e]ach party is awarded one-half of the community property interest in the

retirement accounts set forth below. The community property interest is that interest

acquired from the date of marriage (January 20, 1990) to the date of separation (May 16,

2015). The parties agree to jointly retain Elizabeth Strasen to calculate the community

and separate interests and prepare all necessary document [sic] to divide said accounts.”

“[Clifford] shall be responsible for one-half of the debt owed to [Jenny’s] sister, Grace

Shih, pursuant to the Promissory Note dated December 17, 1996. This matter shall be

addressed between [Clifford] and Ms. Shih.”

As to those issues that the parties did not resolve at the settlement conference, the

court held a two-day trial in January 2019, following which it entered a judgment in

February 2019 (the February 2019 judgment). The court confirmed that the retirement

accounts would be disposed of according to the terms of the January 2019 order. The

court did not address the debt owed to Ms. Shih in the judgment. Upon consideration of

the Family Code section 4320 factors, the court ordered Clifford to pay Jenny $2,000 per

month in spousal support. It also ordered Jenny to pay Clifford $40,000 towards his

attorney’s fees and costs as a sanction under Family Code section 271.

In March 2019, the trial court filed an amended statement of decision, and the

parties stipulated to an amended judgment correcting the value of a certain non-

retirement account and correcting the equalizing payment Jenny owed to Clifford for

division of their assets. The amendments did not affect the prior orders concerning the

retirement accounts, the debt to Ms. Shih, the spousal support award, or the attorney’s

fees award.

Jenny timely noticed this appeal of the January 2019 order, and February and

March 2019 judgment and amended judgment. (Code Civ. Proc., §§ 904.1, subd. (a)(1),

906; Cal. Rules of Court, rule 8.104(a)(1).)

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II. DISCUSSION

A. Jenny has not identified an error in the trial court’s order or judgment

regarding the CalPERS retirement benefit

Jenny contends that certain retirement benefits were not properly addressed in the

judgments, resulting in “significant omitted community assets and debts.” (Italics and

emphasis omitted.) Specifically, she alleges that the January 2019 order and the later

judgment and amended judgment do not fully reflect the parties’ intentions regarding the

division of her CalPERS benefit. Jenny argues that “[t]he record clearly shows the

intention of the parties, and understanding of [Jenny] was that post-divorce, the benefits

would be 100% sole property of [Jenny].”

As Jenny’s contentions are not clearly articulated in her briefing, we are unable to

determine whether she asserts that the entire CalPERS benefit should be her sole and

separate property, or if she agrees that the parties intended to award Clifford half of the

benefit incurred during the marriage, with any retirement benefit incurred post-separation

to be awarded as Jenny’s separate property. She notes “[t]hat [Clifford’s] rights to the

pension will only extend during the period of community property is clearly stated in

Order after MSC. . . .” The relief she appears to seek in her appellant’s opening brief is a

modification of the judgment to include the following language, which she contends

“meets CalPERS published requirements” and is “necessary for the purpose of equitable

equalization and distribution of community property division”: “At time of dissolution of

the marriage, the entire interest in CalPERS pension benefits shall become 100% the sole

and separate property of the Member.” But she also states that she seeks to “reverse

forever—the prior award of 50% of the Appellant’s State Pension of $925.00 back to the

Appellant-Jenny due to her financial hardship and the high earning power” of Clifford.

In her reply brief, Jenny asks that “the Judgment for [Clifford] to collect for the 50% split

of the monthly pension . . . be totally reversed, null and void.”

4

We review the trial court’s orders dividing community property for abuse of

discretion, considering whether or not the trial court exceeded the bounds of reason in

issuing its orders. (In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 309.) We do

not presume error on appeal. Rather, we presume that the trial court’s order is correct,

such that the appellant has the burden to affirmatively show an error. (Jameson v. Desta

(2018) 5 Cal.5th 594, 608-609.)

Given the “fundamental rule of appellate review” that requires us to presume the

appealed order is correct, appellant must provide argument and legal authority to support

her contentions that the trial court erred. “This burden requires more than a mere

assertion that the [order] is wrong. ‘ “Issues do not have a life of their own: If they are

not raised or supported by argument or citation to authority, [they are] . . . waived.’ ”

[Citation.] It is not our place to construct theories or arguments to undermine the [order]

and defeat the presumption of correctness. . . . [Citation.]” (Benach v. County of Los

Angeles (2007) 149 Cal.App.4th 836, 852 (Benach).) Jenny has not identified any facts

in the record, or presented any legal authority, demonstrating that the trial court erred

when it issued the January 2019 orders regarding the CalPERS benefits.

In our careful review of the record, we also discern no basis for reversal. In the

January 2019 order, the trial court awarded each party one-half of the community

property interest in Jenny’s CalPERS account, specifying that the “community property

interest is that interest acquired from the date of marriage (January 20, 1990) to the date

of separation (May 16, 2015).” This order is consistent with the recital made by the

settlement officer on the record at the time of the December 2018 settlement conference.

Jenny thereafter confirmed that she had heard the recitation and agreed to the stated

terms. She did not object to the proposed division of the CalPERS account stated on the

record or in the resulting written order. The record demonstrates that Jenny was capable

of raising objections as she questioned details regarding the term insurance policies that

were originally intended to be included in the settlement agreement, with the result that

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the insurance policies were omitted from the resulting pre-trial settlement. Jenny has not

met her burden to affirmatively demonstrate that the trial court erred in dividing the

CalPERS account according to the terms of the settlement agreement.3

Jenny also appears to suggest that the CalPERS pension is an omitted asset. We

note that the parties agreed to engage the services of an expert on qualified domestic

relations orders (QDROS) to draft the orders properly dividing the CalPERS account, a

person presumably knowledgeable regarding CalPERS regulations. The legislature has

authorized the use of a QDRO to divide pension accounts. (Fam. Code, § 2610.) The

judgment here specifically references the January 2019 order which requires preparation

of a QDRO to establish and divide the community and separate interests in the CalPERS

account. The CalPERS retirement account was thus adjudicated and is not an omitted

asset.

To the extent Jenny alleges CalPERS has rejected the trial court’s orders for

failure to comply with their specifications, that issue is not properly before this court. On

appeal, we do not consider matters that occurred after the issuance of the order being

appealed, except in limited circumstances that are not present here. (See Reserve

Insurance Co. v. Pisciotta (1982) 30 Cal.3d 800, 813 (Reserve Insurance); Martinez v.

Jenny’s August 1, 2022, and August 19, 2022 motions to “extend the appellant’s

3

supplemental brief and appellant’s reply brief,” are denied, as are any such requests

included in the notices of unavailability she filed on August 23, 2022, and September 19,

2022, and any additional requests she made formally or informally before or after oral

argument in January 2023, including her motion for post-oral argument supplemental

briefing, filed January 12, 2023. In the motions filed before oral argument, Jenny sought

to withdraw her previously filed reply brief, and replace it with a “new and complete . . .

brief,” seemingly because she had obtained additional relevant records, although she

claimed many necessary documents were still missing. This court granted at least eight

extensions of time for Jenny to file her opening brief, which was initially due in May

2021, and which she ultimately filed in May 2022. We denied a request to file a

supplemental opening brief, but allowed one extension of time for Jenny to file her reply

brief. Jenny appeared at oral argument and had the full opportunity to present her case to

the court. Jenny has not shown good cause to further supplement her briefing.

6

Vaziri (2016) 246 Cal.App.4th 373, 382-383 (Martinez).) Any issues with the

enforcement of the orders must first be raised by Jenny in the trial court.

B. Jenny has not identified an appealable error regarding repayment of the

promissory note

Jenny alleges Clifford has not complied with the provision of the January 2019

order requiring him to satisfy the debt owed to Grace Shih. She asks this court to “take

appropriate actions for [Clifford] to fulfill the court adjudicated repayment,” and to award

interest. But as noted above, this court cannot consider matters that occurred after the

trial court issued the orders being appealed. (Reserve Insurance, supra, 30 Cal.3d at p.

813; Martinez, supra, 246 Cal.App.4th at pp. 382-383.) Jenny must raise concerns

regarding enforcement of the trial court’s order that Clifford pay the specified debt to

Grace Shih with the trial court.4

C. Jenny has not demonstrated that the trial court erred when it set spousal

support and awarded attorney’s fees under Family Code section 271

In her reply brief, Jenny for the first time asks this court to increase the award of

spousal support from $2,000 to $3,000, “due to the high inflation rate and the high cost of

living.” She also asks this court to require Clifford or his attorney to “reimburse[]” the

$40,000 the trial court ordered Jenny to pay as attorney’s fees. Jenny has not explained

why she failed to address the Family Code section 271 attorney’s fees sanction in her

opening brief. We thus will not consider her arguments on that issue, raised for the first

time in the reply brief, as no notice was provided to Clifford allowing him to respond to

4

Clifford contends, without citation to any legal authority, that Jenny did not

establish that she timely appealed from the January 8, 2019 order, or that the provision

that he pay the debt to Ms. Shih remained in effect after entry of the judgment. We

assume without deciding that the January 8, 2019 order directing that payment was

interlocutory when entered and thus is appealable after the entry of judgment. (In re

Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1433; In re Marriage of Ellis (2002)

101 Cal.App.4th 400, 403; In re Marriage of Doherty (2002) 103 Cal.App.4th 895, 898.)

7

this contention on appeal. (See Julian v. Hartford Underwriters Ins. Co. (2005) 35

Cal.4th 747, 761, fn. 4.)

However, we conclude that Jenny addressed spousal support in her opening brief

sufficiently that we can consider her challenge to the support order. Jenny attached a

three-page document to her opening brief that addressed spousal support and referenced

Family Code section 4320 which lists the factors the trial court must consider in awarding

support.5 Further, Clifford addressed the exhibit in his respondent’s brief. As Clifford

was on notice that Jenny challenges the spousal support award and addressed it in his

briefing, this court can consider arguments concerning the spousal support orders on

appeal.

It appears that Jenny argues that the trial court’s spousal support award of $2,000

is insufficient because of the relative financial circumstances of the parties. However,

Jenny does not identify any legal error the trial court made in ordering spousal support.

Thus, we could treat her arguments concerning spousal support as waived. (Meridian v.

Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684; Benach, supra, 149

Cal.App.4th at p. 852.) However, we discern no error on our review of the record. “ ‘In

awarding spousal support, the court must consider the mandatory guidelines of section

4320. Once the court does so, the ultimate decision as to amount and duration of spousal

support rests within its broad discretion and will not be reversed on appeal absent an

abuse of that discretion.’ [Citation.]” (In re Marriage of Cheriton (2001) 92 Cal.App.4th

269, 283.) The record clearly demonstrates that the trial court considered the factors

outlined in section 4320 as required by law. Jenny has identified no abuse of discretion

here, and we see no error in the court’s order. Her claim thus fails.

5

This court authorized Jenny to file up to 50 pages of exhibits to her opening

brief, based on her contention that numerous documents were missing from the clerk’s

transcript.

8

D. This court will not sanction Jenny for deficiencies in her briefs

Clifford suggests that this court should exercise its discretion to sanction Jenny

based on her “egregious violations of the Rules of Court” in briefing her appeal. We

agree that Jenny failed to comply with the relevant rules concerning citation to both the

record on appeal and to relevant legal authority. We are required to affirm the orders at

issue, as Jenny did not meet her burden to demonstrate error. However, we do not find

cause to sanction Jenny for her failures at this time.

III. DISPOSITION

The January 8, 2019 order after mandatory settlement conference, February 19,

2019 judgment, and March 28, 2019 amended judgment are affirmed. As the prevailing

party, Clifford is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

9

_______________________________

Greenwood, P. J.

WE CONCUR:

_______________________________

Grover, J.

_______________________________

Lie, J.

Marks v. Marks

H046833