California Court of Appeal Dec 10, 2014 No. D064722Unpublished
Filed 12/10/14 Marriage of Levy CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of BATSHEVA and WAYNE LEVY. D064722 BATSHEVA LEVY,
Appellant, (Super. Ct. No. DN165133)
v.
WAYNE LEVY,
Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Thomas
Ashworth III, Judge. Affirmed.
Batsheva Levy, in pro. per., for Appellant.
Stephen Temko for Respondent.
Appellant in this case challenges a marital dissolution judgment entered following
trial of disputed property and support issues. In light of appellant's election to provide us
with neither a reporter's transcript of proceedings in the trial court nor a settled statement,
our review of the judgment is limited to the clerk's transcript and by the well-established
presumptions in favor of the validity of the judgment. On the record before us, we find
no legal error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant Batsheva Levy (Batsheva) and respondent Wayne Levy (Wayne) were
married on August 1, 1998. They have two minor children: Abigail, who was born in
As Wayne notes, an appeal without a reporter's transcript is called an appeal "on
the judgment roll." (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083.) On such
appeals we "'must conclusively presume that the evidence is ample to sustain the [trial
court's] findings.'" (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 154.) "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. [Citations.]"
(Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
This limitation on our review precludes the bulk of Batsheva's contentions on
appeal, in which she challenges the trial court's findings on the merits. As to those
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arguments, we are compelled to presume the trial court's findings are supported by
sufficient evidence, that, as to any disputed question of fact, the trial court, on a sufficient
record, resolved those questions of fact in Wayne's favor or, in the alternative, that the
record of the trial court's proceedings, if presented, would show that Batsheva failed to
adequately preserve the issues she asserts for our review. (See Ballard v. Uribe, supra,
41 Cal.3d at p. 574; Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295–1296.) Accordingly,
contrary to Batsheva's arguments, the record does not show that any error occurred with
respect to almost all of the issues Batsheva raises.1
The only issue for which there appears to be any adequate record is with respect to
Batsheva's contention that Judge Ashworth should not have presided over trial of the
parties' disputes. The record shows that at the outset of proceedings the parties stipulated
that Judge Ashworth could act both as trial judge and mediator. After lengthy mediation
efforts and a great deal of expense had not resolved the parties' disputes, Judge Ashworth
felt that it was appropriate to again ask the parties to stipulate that he could continue in
1 Thus, we are compelled to reject Batsheva's contentions: that the trial court erred in its zero valuation of Bradford Holdings, Bradford Homes I, Bradford Homes II and Bradford Homes III; that the court's forensic accountant was not given adequate access to Wayne's books and records; that Wayne's income was incorrectly calculated; that the trial court, in its capacity as a mediator, erred in meeting privately with Wayne's father; that Wayne had an untrustworthy character; that Wayne was guilty of forgery or concealment that caused any miscalculation of community assets or debts; that the trial court erred in calculating the value of community assets and failing to properly consider the impact of a loan application Wayne made in 2010; that Wayne and the trial court permitted community property to be dissipated; that the trial court erred in finding that she had not worked since the birth of Abigail; that the trial court erred in considering the taxable nature of Wayne's income; that the trial court erred in its ruling denying her request for attorney fees; and that the trial court erred or abused its discretion in its ruling on child care issues. 5
both roles. Batsheva declined to provide a renewed stipulation as to Judge Ashworth's
dual roles. Thereafter, Judge Ashworth did not engage the parties as a mediator, but he
did preside over trial of the parties' disputes. Although the record shows Batsheva did
not agree that Judge Ashworth could continue to act as both trial judge and mediator, and
in fact asked that trial of the matter be reassigned to another private judge or returned to
the superior court, nothing in the record shows she objected when thereafter Judge
Ashworth conducted trial on the merits of the parties' disputes. More importantly, there
is nothing in the record which shows that, if Batsheva objected to Judge Ashworth
presiding over trial of the merits of the parties' disputes, she sought any writ review of his
decision to do so. "'Under our statutory scheme, a petition for writ of mandate is the
exclusive method of obtaining review of a denial of a judicial qualification motion.'"
(People v. Freeman (2010) 47 Cal.4th 993, 1000; see Code Civ. Proc., § 170.3, subd.
(d).) Having failed to object at the time trial commenced, and having failed to seek any
writ review before Judge Ashworth's conduct of the trial, Batsheva may not now
challenge the propriety of Judge Ashworth presiding over the trial. (See Kern County
Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038;
Moulton Niguel Water Dist. v Colombo (2003) 111 Cal.App.4th 1210, 1218.)
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DISPOSITION
The judgment and order are affirmed. Wayne to recover his costs of appeal.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
McDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment and postjudgment order, holding that the appellant's failure to provide a reporter's transcript or settled statement required the court to presume the trial court's findings were supported by sufficient evidence. Furthermore, the court held that the appellant waived any challenge to the trial judge's qualifications by failing to object at the commencement of trial or seek timely writ review.
Issues
Whether the trial court's findings regarding property valuation, income, and support were supported by sufficient evidence in the absence of a reporter's transcript.
Whether the appellant waived the right to challenge the trial judge's authority to preside over the trial by failing to object or seek writ review.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“In the absence of a proper record on appeal, the judgment is presumed correct and must be affirmed.”
“It is well settled, of course, that a party challenging a judgment [or order] has the burden of showing reversible error by an adequate record.”
“Having failed to object at the time trial commenced, and having failed to seek any writ review before Judge Ashworth's conduct of the trial, Batsheva may not now challenge the propriety of Judge Ashworth presiding over the trial.”