Winston v. Winston CA1/1

Filed 7/29/15 Winston v. Winston CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JOLENE WINSTON, Respondent, A140415 v. GARY M. WINSTON, (Marin County Super. Ct. No. FL062557) Appellant.

Appellant Gary M. Winston challenges the trial court’s denial of his motion for a new trial in this marital dissolution case. He contends the denial was improper because it was based on his failure to present evidence at trial that the court had indicated in an unrecorded earlier exchange would be unnecessary. In response, Gary’s former spouse, Jolene, seeks sanctions contending that Gary’s appeal was maintained solely for the purposes of delay and vexation. We are not persuaded by Gary’s contentions, but we deny Jolene’s motion for sanctions, and we affirm. I. FACTUAL AND PROCEDURAL BACKGROUND The parties were married in 1988, and Jolene filed a petition for dissolution of marriage in June 2006. Trial on the parties’ dissolution did not begin until

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October 2012.1 The trial court heard testimony from Jolene, Gary, and five other witnesses over 11 days in October and November 2012, and January and February 2013; and about 600 exhibits were admitted into evidence. No court reporter was present during the first three days of trial, and the record on appeal contains only the first 16 pages of a reporter’s transcript of proceedings held on one of the November trial dates. Our recitation of the relevant facts comes primarily from the order denying Gary’s motion for a new trial, the order Gary challenges in this appeal. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18 [order denying motion for new trial is nonappealable but may be reviewed on appeal from underlying judgment].) During the many years the case was pending, Jolene lived in property the couple owned in San Anselmo. At trial, the parties disputed how to account for money spent on various assets, including the San Anselmo property, during their separation. At the beginning of trial, Gary contended the property was Jolene’s separate property and that the community should be reimbursed for the property’s maintenance costs. On one of the trial days when there was no court reporter transcribing the proceedings, Gary requested access to the property so his realtor could perform an appraisal and, apparently, determine its fair rental value (the “request for access”). Jolene objected to the request on the grounds that three appraisals already had been completed and that the realtor Gary was proposing would be biased because he was Gary’s friend and partner. The court denied the request as untimely because the case had been pending for so long. In doing so, the trial judge apparently also stated that the court would figure out the fair rental value, meaning it would rely on the three appraisals that had already been done and would consider any evidence and opinion the parties offered on the subject.