In re the Marriage of MARY KAY BREWSTER and CHRIS CLEVENGER.
H045050 (Monterey County Super. Ct. No. DR54512)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Filed 2/19/20
CERTIFIED
MARY KAY BREWSTER, Appellant, v. CHRIS CLEVENGER, Respondent.
In this marital dissolution proceeding, the trial court entered judgment denying appellant Mary Kay Brewster’s (Mary Kay) request for spousal support orders because she suffered criminal convictions for acts of domestic violence against respondent Chris Clevenger (Chris). In doing so, the trial court determined Mary Kay had not overcome the
Mary Kay also appeals the trial court’s characterization of post-separation payments Chris made to her. The trial court found that Chris deposited $10,000 into a joint account for Mary Kay’s use in lieu of temporary spousal support, pursuant to the agreement of the parties. She contends the trial court did not have jurisdiction over temporary spousal support at the time of the trial, and did not have jurisdiction to make retroactive orders. She does not believe substantial evidence supports the trial court’s finding that the parties had an agreement regarding the payments, and asserts the trial court erred when it found the deposits taxable to her and deductible by Chris. For reasons we explain below, we reject Mary Kay’s contentions and affirm the ruling.
Finally, Mary Kay contends the trial court erred in awarding the parties’ Gables Land and Cattle Company/ Duck Club membership (Duck Club membership) to Chris at a value of $60,000, as the parties stipulated on the record to the value being $65,000. We agree. We will modify the judgment to reflect the parties’ actual stipulation, and affirm the judgment as modified.
I. FACTUAL AND PROCEDURAL BACKGROUND
The parties were married almost 21 years prior to separating in August 2013. Mary Kay filed for dissolution shortly after they separated.
Both parties are physicians; they met in medical school. Mary Kay had an obstetrics/gynecology practice and provided medical weight loss services; Chris had a general orthopedic surgery practice.
A. Pre-trial Proceedings and Request for Orders Related to Spousal Support
In March 2015, Chris filed a request for orders asking the court to set temporary spousal support pursuant to “guideline,” commensurate with each parties’ income.2 Chris stated in his request that he had been “sharing” his
The trial court set the dissolution case for trial beginning in October 2016.3 In advance of the trial, Chris asked the court to take judicial notice of “Monterey County Superior Court Case No. CRSS142474A, People of the State of California vs. Mary Kay Brewster [Mary Kay’s criminal action],” pursuant to
B. Trial Proceedings
The court held four days of trial in October and December 2016, and January 2017. The parties submitted written closing arguments.
1. Stipulations and Rulings Prior to Testimony
On the first day of trial, the court addressed Chris’s request for judicial notice of Mary Kay’s criminal action. The court indicated it was able to obtain “a sentencing report from January and the restitution hearing minutes of May 13th”; the corresponding minute order specifies each of these documents were from 2016. After intimating that it was having difficulty obtaining the criminal records from another courthouse, the court stated, “If there are additional documents that you would like me to review, it might be helpful, if you had copies, to have a copy made for the Court. Or if there’s something specific that you have in mind.” The minute order from the first day states, “Court informs the parties that she has only taken judicial notice of the minute orders from May 13, 2016 regarding restitution and January 13, 2016 sentencing hearing from [Mary Kay’s criminal action]. Parties inform the court they will have additional information regarding the criminal matter during the trial.”
Amongst several stipulations recited by the parties on the first day of trial, the parties agreed the Duck Club membership would be assigned to Chris at a value of $65,000; Chris’s attorney recited the agreement; Mary Kay and her attorney both confirmed the value.
2. Mary Kay’s Criminal Convictions
During her testimony, Mary Kay admitted to having been “convicted of some criminal counts” the prior year. She did not provide specific information
The court admitted into evidence the January 13, 2016 minute order from the criminal court records, entitled “Sentencing and Report,” reflecting Mary Kay’s conviction on four counts:
The court also
During the trial, the parties did not submit into evidence any other documents relating to Mary Kay’s criminal action. While cross-examining Chris on the third day of trial, Mary Kay’s attorney referenced Chris’s criminal trial testimony. Chris’s counsel suggested Chris should be provided the transcripts of that testimony, but Mary Kay’s attorney did not have certified copies available to lodge with the court. The court requested that Mary Kay’s counsel move on to a different line of questioning, and revisit Chris’s criminal trial testimony once he had the certified transcripts available. Mary Kay’s attorney suggested he would bring the certified transcripts on the next trial day; he asked the court to reserve jurisdiction for additional cross-examination of Chris once he did so. On the fourth and final day of trial, Mary Kay’s attorney did not revisit Chris’s testimony during the criminal action.
3. Testimony Regarding Alleged Incidents of Domestic Violence Against Mary Kay
During trial, Mary Kay testified to three incidents that form the basis of her contention that she was the victim of domestic violence perpetrated by Chris, and thus that she rebutted the section 4325 presumption against ordering spousal support to a perpetrator of domestic violence.
a. September 2009 Incident
In September 2009, Mary Kay alleged she grabbed Chris by the shirt during a discussion about the couple’s lack of intimacy. In response, Chris “grasped [her] right hand and looked [her] in the eye, as he very coldly took [her] fingers and bent them backwards until he felt one of them dislocate. It popped and you could feel it as well.” Mary Kay claimed Chris bent her fingers for 20 seconds, doing it “very slowly and intentionally.” Mary Kay testified that she did not let go of Chris’s shirt once he grabbed her, saying, “He had to dislocate my finger to get me to let go of his shirt.” Mary Kay obtained an x-ray of her finger, which was not broken, but had soft tissue swelling; the finger relocated. She felt pain as a result of the injury for three to four days.
Chris confirmed during his testimony that he removed Mary Kay’s hand from his shirt after she grabbed it, however he says he did so because Mary
b. May 2012 Incident
Mary Kay testified she went to Chris’s office to get a checkbook in May 2012; while there, Mary Kay confronted him about an affair. She claimed she was sitting at Chris’s desk when she found a receipt for a piece of jewelry; when Mary Kay asked Chris about the receipt, “he became infuriated. Came around from the front of the desk and grasped [Mary Kay] by the upper arms and pulled [her] up out of the chair and escorted [her] out of the office into the hallway. At which point he was screaming ‘Get out of here. Get out.’ ” Mary Kay contended Chris “threw [her] out into the hall,” causing her to go “into the wall across the hallway.” As a result of the incident, Mary Kay claimed she had bruises on her upper arms that persisted for months which were very painful; people stopped her on the street to ask her what happened.
Chris alleged Mary Kay came to his office during business hours with staff and patients present to confront him about the affair, with no discussion of the checkbook. Mary Kay became angrier as the conversation went on. Because he had patients to see, Chris indicated to Mary Kay that it was not the time or place to discuss the matter. Chris asked Mary Kay to leave, but she refused. Chris had to “take her and escort her out to get her to leave . . . .” By “escort,” Chris meant “move her in a direction toward the door,” as she was not moving on her own and was not willing to leave when asked to do so. Chris took Mary Kay by the shoulders/ biceps of her arms and walked her out of his office. Mary Kay was resisting leaving his office; Chris moved her toward the door and opened it for her, but Mary Kay still would not leave, requiring Chris to walk with her to get her to exit the office. Chris denied pushing Mary Kay into anything. He did not pick Mary Kay up off the ground; he held her by the arms below the shoulder to help her towards the door. Chris did not recall if he saw bruises on Mary Kay’s arms in the days following the incident.
c. March 2013 Incident
In March 2013, Mary Kay once again went to Chris’s office to get a checkbook. Although it was a Saturday and Chris’s office was closed, Chris was there. Mary Kay testified Chris was “apparently alarmed that [she] was there.” Mary Kay claimed the office was unlocked when she got there,
Mary Kay claimed she experienced “significant pain” in her right hip, although she was able to get up and run to the patient waiting room to try to call 911, where Chris “tore the phone out of [her] hand.” Mary Kay attempted to use another phone, but Chris again “tore” that phone out of her hand. Mary Kay then went into Chris’s office to use his desk phone; when Chris “saw [her] in front of his computer, [he] fell on his knees, [and] started crying. And then [Chris] crawled over with his hands, collapsed as if in prayer, and said, ‘Please help me. You’ve helped me so much.’ And he put his head in [Mary Kay’s] lap.” Mary Kay stated the parties then went home, and Mary Kay “consoled” Chris.
Mary Kay contended she sustained a “very significant injury” from the fall. While on call at the hospital the next day, Mary Kay had an MRI. The trial court allowed Mary Kay to offer her opinion as to what the MRI showed, based on her medical training and experience. Mary Kay claimed blood “exsanguinated . . . into the joint and into the muscles . . . . And it is not a superficial bruise or contusion . . . but a bleeding and hemorrhage into the joint.” Mary Kay experienced extreme pain for several months. She also claimed she hit her head on the floor hard enough to “tear a hole in [her] retina,” but not hard enough to cause a contusion to her head. Mary Kay briefly discussed her injury with an orthopedist a few weeks after the incident, during a visit for an unrelated medical issue. She did not go to the doctor to discuss her hip, but the doctor had seen the MRI and raised the issue. Mary Kay testified that the office visit note from the appointment indicates the MRI showed edema or swelling, and that Mary Kay advised the orthopedist that she had moderate pain and discomfort in her hip at the time of the visit.10
After Mary Kay fell, Mary Kay indicated that she was going to call the police; Chris asked her not to. Chris put his hand on her phone; he did not recall seeing Mary Kay go into another room to use a different phone. He recalled that the parties discussed whether Mary Kay should call 911, and that Mary Kay decided not to place the call. Mary Kay eventually left his office. Mary Kay told Chris later that she had some hip discomfort; she also told him she had an MRI.
4. Additional Evidence Pertaining to Mary Kay’s Attempt to Rebut the Section 4325 Presumption
Mary Kay argued that her medical condition constituted a “just and equitable” factor for the trial court to consider in evaluating whether she had
In November 2013, Mary Kay experienced cardiac arrhythmias. In late June 2014, Mary Kay was admitted into the hospital with severe left lower quadrant pain; medical staff conducted an echocardiogram that revealed “full-blown heart failure . . . .” Mary Kay was in the hospital for seven days as a result. Since that time, Mary Kay reported reduced endurance and increased weakness. She stopped her obstetrics practice after August 2014 as a result of fatigue.
Mary Kay also testified about her history of physical problems with her shoulders, hands, and feet. Mary Kay was wearing a sling at trial because she had shoulder surgery in September 2016, resulting from “some chronic prior injuries that remanifested recently . . . .” She had previously injured her shoulders doing rock climbing, long-distance triathlons, and skiing. Although she expressed concerned that her recent surgery may have “denervated” at least one head of the bicep of her arm, she testified that she felt she was recovering more quickly than expected, and was experiencing “very little pain.”
Mary Kay also testified to “long-standing issues with [her] hands due to carpal tunnel syndrome.” When the problem first started, she had carpal tunnel reduction surgery, causing the wasting of some of her thumb muscles. She had a second surgery many years later, which similarly resulted in the loss of “the intrinsic and thumb muscles.” Because she had minimal grip strength in her thumb and hands as a result of the loss of these muscles, Mary Kay stopped doing obstetrics work. She did not renew her hospital privileges, primarily to avoid taking emergency room calls. She was still able to do laparoscopic and other “more precise types of surgeries . . . .” Mary Kay also started a medical weight loss practice, so she could shift her practice and continue to work without being “so dependent on [her] hands . . . .”
Subsequent to the second carpal tunnel surgery, Mary Kay was diagnosed with “significant osteoarthritis” and rheumatoid arthritis, causing pain at the base of her thumbs, joint deformities in her hands, loss of cartilage in both knees, and pain in her neck, right shoulder, knees, hands, and feet. She described her hands and feet as “chronic sources of pain.”
a. Closing Arguments
Each party submitted closing argument in writing. Mary Kay argued that the three incidents in September 2009, May 2012, and March 2013, constituted domestic violence against her perpetrated by Chris. She further contended that her conduct against Chris, which resulted in the conviction for an act of domestic violence, did not compare to the conduct addressed by appellate courts in cases discussing the rebuttable presumption of section 4325; nor did it compare to the factual situation the Legislature wanted to address in enacting section 4325, based on her review of the legislative history of the statute. Rather, Mary Kay argued that, in response to Chris’s infidelity, she “commit[ed] a window of non-violent, but harassing acts that were more akin to a bad fraternity prank than anything else, and were completely out of character of anything [Mary Kay] has ever done in her entire lifetime, either before or since.” Mary Kay noted that she was ill at the end of 2013 and beginning of 2014, suffering heart failure not long after committing the acts for which she was convicted; she has “since recovered physically from the heart failure and she has engaged in no acts or behaviors since which in any stretch of the imagination could be construed as ‘domestic violence’ towards [Chris].” Mary Kay asked the trial court to find that Chris was seeking protection under section 4325 not out of fear for his safety, or to remove himself from an abusive situation, which is the goal of the statute, but rather to avoid his spousal support obligation in the parties’ long-term marriage.
Chris asked the trial court to find Mary Kay had not produced sufficient evidence to overcome the presumption of section 4325, and that the testimony at trial about the three incidents established Mary Kay’s additional domestic violence against Chris, as the evidence showed Mary Kay was the “aggressor” in each of the incidents.
With respect to the $10,000 payments Chris made from March 2015 through September 2016, Mary Kay argued, “[i]t was always [Mary Kay’s] understanding that the funds . . . were ‘in lieu of’ a formal child and spousal support order. . . . [T]his was the agreement of the parties and should be honored and enforced.” Chris, in his closing argument, did not reference an explicit agreement between the parties. He contended he deposited the funds to “protect his financial circumstances,” and asked the court to treat the payments as spousal support, taxable to Mary Kay and deductible by Chris.
Chris confirmed the parties stipulated that he would be awarded the Duck Club membership; he did not specify the value assigned to that asset. Mary Kay did not mention the Duck Club membership in her closing argument.
The trial court issued a tentative decision on April 17, 2017; on June 12, 2017, it issued a written judgment of dissolution incorporating the tentative decision. Neither party filed a request for a statement of decision pursuant to California Rules of Court, rule 3.1590(d) or otherwise objected to the tentative decision prior to the court adopting it as its judgment.
The trial court awarded the Duck Club membership to Chris at a value of $60,000. It found that the parties agreed Chris would deposit $10,000 per month into the parties’ joint bank account, which the parties both treated as being in lieu of support, undifferentiated between child and spousal support. Chris filed a request for temporary spousal support in March 2015 to ensure he received credit for the monthly deposits, which he intended to be used to pay the mortgage, insurance, and property taxes on the family residence, as well as household expenses. The trial court found that the deposits Chris made between March 2015 and September 2016 would be “deemed payments in lieu of spousal support,” taxable to Mary Kay and deductible by Chris, as they were “intended and understood by the parties to be in lieu of support.”
The trial court rejected Mary Kay’s request that it find stalking was not the type of behavior the Legislature intended to give rise to the rebuttable presumption under section 4325; the court determined section 6203 did not limit the definition of abuse to actual physical injury or assault. As stalking was listed as conduct that could be enjoined under section 6320, the trial court ruled section 4325 did apply.
To determine whether Mary Kay overcame the section 4325 presumption, the court considered the three incidents of alleged domestic violence committed by Chris against Mary Kay, doing so “in consideration of justice and equity.” Regarding the September 2009 incident, the court found the evidence did not support a determination that Chris was the aggressor in the event, or that the injury was the result of abuse as defined in section 6203, “as the evidence does not preponderate toward a finding that [Chris] intentionally or recklessly injured [Mary Kay’s] hand or finger or that he engaged in the prohibited behavior described in [] section 6320.”
With respect to the May 2012 event, the trial court found, “[a]fter weighing and considering the evidence presented, it appears that [Mary Kay] began the verbal altercation at [Chris’s] place of business and refused to end it, despite the presence of patients and staff. [Chris] tried to end the aggression. The Court finds [Chris] more credible in his testimony as to the event, and does not find that the event constitutes documented evidence of domestic violence for purposes of rebutting
In addition to these three events, the trial court considered Mary Kay’s contentions that she “is not violent, is not likely to recidivate, and has not violated the terms of the protective order,” as well as Mary Kay’s assertions that Chris raised the section 4325 presumption not to protect himself from further abuse at her hands, but rather to avoid his spousal support obligation following the parties’ long-term marriage. The court acknowledged section 4325 allowed it to consider “the totality of the circumstances, and facts [Mary Kay] has raised in mitigation. On balance, the Court does not find that the three events to which the parties testified preponderate toward a finding that the statutory presumption against an award of spousal support to [Mary Kay], who has been convicted of conduct defined in the
Despite its finding that Mary Kay had not rebutted the section 4325 presumption, the court addressed permanent spousal support, discussing the relevant section 4320 factors.12 The court found, “[Mary Kay] testified to certain injuries which have required surgeries and physical rehabilitation, but she continues to have the ability to work and provide for her own support. . . . [Mary Kay] continues to have difficulties relating to her hands and wrists, following her surgeries for carpal tunnel syndrome. Following the
Mary Kay timely filed a notice of appeal of the judgment. (
II. DISCUSSION
A. Mary Kay’s Request for Judicial Notice
Mary Kay asks this court to take judicial notice of excerpts from two volumes of the transcript of proceedings in the criminal matter against her, The People of the State of California v. Mary Kay Brewster, Case No. SS142474A, as well as the Monterey Police Department Report in Case No. YG 1402592, dated May 22, 2014 (the police report). The trial court did not consider any of these documents as evidence in issuing the judgment that forms the subject of this appeal. We will deny Mary Kay’s request for judicial notice.13
At trial, Mary Kay’s attorney attempted to introduce the reporter’s transcripts from the criminal trial; Chris’s attorney objected on the grounds Mary Kay did not lodge certified transcripts with the court. While the trial court indicated it would require Mary Kay’s counsel to provide certified transcripts, it also indicated counsel could revisit the testimony requiring those transcripts once certified copies were available. Mary Kay did not challenge that ruling at trial, nor does she challenge it on appeal. Moreover, Mary Kay’s counsel did not offer certified transcripts or ask to revisit the testimony later in the trial.
The trial court was not required to take judicial notice of the record from Mary Kay’s criminal action; those records were subject to discretionary judicial notice under
The appellate court does not take judicial notice of matters not considered by the trial court, absent exceptional circumstances. (Haworth v. Superior Court (2010) 50 Cal.4th 372, 379, fn. 2, as mod. (Sept. 1, 2010) (Haworth); Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) When reviewing the correctness of a trial court’s judgment, we only consider matters that were part of the record at the time the court entered the judgment; “ ‘[t]his rule preserves an orderly system of litigation by preventing litigants from circumventing the normal sequence of litigation.’ [Citation.]” (Haworth, at p. 379, fn. 2.) “An appellate court may properly decline to take judicial notice under Evidence Code sections 452 and 45914 of a matter which should have been presented to the trial court for its consideration in the first instance. [Citations.]” (Brosterhous v. State Bar (1995) 12 Cal.4th 315, 325-326, as mod. (Jan. 18, 1996); accord People v. Peevy (1998) 17 Cal.4th 1184, 1207-1208.)
This appeal does not present exceptional circumstances that would require us to deviate from the standard rule. Mary Kay has not provided any explanation as to why she did not present additional documents from the criminal case or the police report during the trial; the trial court clearly indicated it would consider additional documents presented by the parties. Moreover, Mary Kay does not explain why she did not provide certified transcripts of the testimony from the criminal matter, despite the trial court’s indication it would allow her attorney to return to the relevant line of questioning once he lodged those transcripts with the court.
Mary Kay contends there is “no way to determine from the record in this case what the trial court reviewed in terms of the entire criminal record.” We
While Mary Kay correctly notes Chris first asked the trial court to take judicial notice of the criminal court records, that fact does not require us to now consider those documents that the trial court did not review in making its decision. Mary Kay cites People v. Hopson, where the California Supreme Court considered whether a criminal defendant “opened the door” to the use of an “unconfronted” out-of-court confession by a deceased person that the trial court otherwise erroneously admitted into evidence in violation of the defendant’s Sixth Amendment right to confront her accusers. (People v. Hopson (2017) 3 Cal.5th 424, 425, 438-443.) The case is inapposite, as it addresses the admissibility of evidence in a criminal prosecution under constitutional standards. However, to the extent that Mary Kay contends that Chris’s pretrial request for judicial notice of Mary Kay’s criminal records justifies this court’s consideration of new evidence not presented at trial, we note her attorney had the opportunity to present the transcripts and other court records and reports to the trial court, but did not take the appropriate steps to do so. Mary Kay was not denied the opportunity to present this evidence at trial. We therefore decline to exercise our discretion to take judicial notice of the excerpts from
two volumes of the transcript of proceedings in Mary Kay‘s criminal matter, or the May 22, 2014 Monterey Police Department Report.
B. The Trial Court Did Not Abuse Its Discretion Regarding the Section 4325 Presumption
The parties do not dispute that Mary Kay was convicted of an act of domestic violence within five years prior to the filing of the dissolution proceeding, thus implicating the rebuttable presumption of
1. Standard of Review
We review the trial court‘s decision to deny spousal support based on the presumption of
We defer to the trial court‘s determination of the facts if supported by substantial evidence. “When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; accord Walker v. Superior Court (1991) 53 Cal.3d 257, 272.) As the trier of fact, the trial court is the sole judge of the credibility and weight of the evidence; we do not judge credibility on appeal. (In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 319 (Oliverez).) As the judge of credibility, the trial court may reject evidence, even uncontradicted evidence, as unworthy of credence. (Ibid.)
a. Section 4325
The
b. Mary Kay Did Not Introduce “Documented Evidence” to Overcome the Presumption
There is minimal legal authority explaining what evidence Mary Kay would need to present to overcome the presumption of
The language of the statute provides two ways for a convicted spouse to rebut the presumption against an award of spousal support. We consider first the statute‘s provision that allows a court to find the presumption rebutted when it determines under a preponderance standard that there is “documented evidence” of the convicted spouse‘s history as a victim of domestic violence perpetrated by the other spouse.
Under the We thus conclude that to overcome the Such “documented evidence” is familiar to trial judges in the family court, who currently hear and see many forms of writings memorializing or corroborating prior incidents of domestic violence, often proffered by parties seeking requests for domestic violence restraining orders under the DVPA. ( Here, Mary Kay did not produce any “documented evidence” to support her contention that Chris committed domestic violence against her, electing to present her case solely through her own testimony. Because she did not introduce written evidence documenting her history as a victim of domestic violence perpetrated by Chris, Mary Kay did not rebut the Under Mary Kay asked the trial court to consider the nature of her alleged acts of domestic violence against Chris. She asserted the facts underlying her criminal conviction were distinguishable from those in opinions addressing This court affirmed the trial court‘s order, “conclud[ing] that the public policy against enforcement of the nonmodifiable spousal support provision clearly outweighs any interest in its enforcement,” the public policy being the “significant public policy against domestic violence.” (Cauley, supra, 138 Cal.App.4th at p. 1106.) But while the facts in Cauley were particularly egregious, nothing in the opinion suggests application of Mary Kay is correct that, in addition to Cauley, the three other appellate cases addressing the Mary Kay next argues that substantial evidence does not support the trial court‘s finding that Chris was not the aggressor and did not commit domestic violence in the three incidents she described in her testimony. As a result, she asserts that the trial court erred when it failed to find that Mary Kay rebutted the presumption against support in In September 2009, Mary Kay grabbed Chris by the shirt during an argument and refused to let go, requiring him to “purposefully remove her hand from his shirt.” The evidence supports the trial court‘s finding that Chris was not the aggressor in this event, and that his conduct did not constitute In May 2012, Mary Kay arrived at Chris‘s office unannounced during business hours and refused to leave after beginning a verbal altercation; Chris attempted to end the aggression; the trial court found Chris more credible in his testimony regarding the event. Again, we do not judge credibility on appeal; the trial court had authority to believe Chris‘s statement of events over Mary Kay‘s. (Oliverez, supra, 33 Cal.App.5th at p. 319.) Mary Kay cites Lydon v. Beach (1928) 89 Cal.App. 69 in support of her contention that Chris‘s use “of physical force was not justifiable under the law . . . .” In Lydon, the lease between a landlord and tenant allowed the landlord to “enter the premises and remove all persons therefrom” if the tenant was in default on payment of the rent. (Id. at p. 74.) The appellate court upheld a finding that the parties who attempted to remove a tenant under such circumstances used “force greater than was necessary” to do so; they “violently and maliciously assaulted [the tenant]; . . . they beat, kicked, choked, and struck him numerous blows; . . . they bit his right ear and bruised him upon his body, neck, hip, and person . . . .” (Id. at pp. 71, 75.) Here, Chris held Mary Kay by her arms and escorted her out of his The trial court also found Chris credibly testified regarding the March 2013 event, in which Mary Kay came to Chris‘s office on a Saturday, unlocked the office using a key she obtained without Chris‘s knowledge, and proceeded to destroy Chris‘s property; the testimony at trial supports these findings.20 In Appellant‘s Reply Brief, Mary Kay argues the trial court‘s findings regarding the results of the MRI she obtained are particularly important to this court‘s analysis, as the trial court determined Mary Kay‘s orthopedist saw no blood on the MRI, but only swelling in her hip. She contends in making this finding the court relied on inadmissible evidence in the form of a the orthopedist‘s office visit note which was used solely to refresh her recollection and was not admitted in evidence. While the court specifically referred to the document in its ruling, Mary Kay testified to the contents of the document during her cross-examination, such that any error in this regard is harmless. (See fn. 17, ante.) Moreover, even if the trial court accepted Mary Kay‘s testimony that the MRI showed bleeding and a hemorrhage in her joint, that would not necessitate a finding that the injury was the result of domestic violence perpetrated by Chris. Again, the trial court found Chris‘s testimony regarding the event to be credible; his testimony, in conjunction with the court‘s credibility finding, provides substantial evidence in support of the trial court‘s finding that Chris did not commit domestic violence against Mary Kay during the incident, i.e., that he did not intentionally or recklessly cause the injury under the circumstances.21 Finally, Mary Kay argues the trial court should have inferred that Chris‘s “adultery and betrayal of [Mary Kay] after 21 years of marriage and two children caused [Mary Kay] extreme emotional distress which is another form of domestic violence . . . .” She notes, “the trial court did not acknowledge this at all for the purpose of rebutting Section 4325.” Infidelity and its consequences do not fall within the legal definition of domestic violence under The trial court‘s written decision demonstrates that the judge carefully considered and weighed the evidence presented by Mary Kay under the proper standard of proof, made findings of credibility, and ultimately concluded that Mary Kay did not rebut the Mary Kay contends the trial court erred when it found that the $10,000 per month deposits Chris made from March 2015 to September 2016 into a joint account were in lieu of temporary spousal support, such that they were taxable to her and deductible by Chris under the tax laws in place at the time. The trial court had jurisdiction to make retroactive temporary spousal support orders at trial. However, we conclude Mary Kay is estopped from arguing the parties did not have an agreement to treat those payments as a substitute for formal support orders because she did not do so in the trial court. Additionally, by failing to request a statement of decision following the trial court‘s announcement of its tentative decision, Mary Kay waived any argument regarding the taxability of the payments. As a result, we will affirm the trial court‘s order. Mary Kay argues Chris “was not asking for spousal support in his [request]; he was trying to present an argument that spousal support for [Mary Kay] should be set at zero.” She is incorrect. Chris checked the boxes on the Judicial Council form Request for Order (FL-300) asking the court to order “guideline” spousal support. He reiterated the request in his supporting declaration: “I am asking the court to set a guideline support amount based upon our respective incomes.” While he opined that it was not his obligation to support Mary Kay to the extent her then-pending criminal charges affected her ability to work, Chris did not ask the court to set spousal support at zero at that time. Mary Kay next questions whether the court had jurisdiction to rule on temporary spousal support at trial. The record on appeal is not clear regarding how Chris‘s spousal support request came to be scheduled for hearing during the court trial. Chris‘s temporary spousal support request was initially set for hearing April 30, 2015. The trial court‘s register of actions indicates the court issued a minute order on April 20, 2015, continuing “RFO, SC and TRIAL.” Thereafter, the parties filed a stipulation and order on April 29, 2015, similarly continuing “RFO, SC and TRIAL.” Neither party designated either the minute order or the written stipulation as part of the record on appeal. Mary Kay, as the appellant, bears the burden to provide sufficient record to show error; otherwise, we presume the trial court‘s rulings were correct. (See Jameson v. Desta (2018) 5 Cal.5th 594, 608-609 (Jameson).) Thus, we presume the trial court, in either the In addition, Mary Kay knew prior to and during the trial that Chris expected the court to hear his request for temporary spousal support at the trial. In his pre-trial brief, Chris indicated the court continued his temporary spousal support request to be heard at trial, a statement he and his attorney reiterated during Chris‘s trial testimony. The trial court similarly indicated during the trial that temporary spousal support was at issue. Mary Kay did not raise any objections to the court hearing temporary support during the trial. In fact, as already noted, Mary Kay argued in her written closing statement that the trial court should consider Chris‘s payments as being “in lieu of” temporary support. A party implicitly waives or forfeits claims of error if he or she fails to bring the error to the trial court‘s attention in an appropriate manner. (Doers v. Golden Gate Bridge, Highway & Transp. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; Villanueva v. Fidelity National Title Co. (2018) 26 Cal.App.5th 1092, 1114.) As Mary Kay did not object to the clearly stated intention, both before and during the trial, that the trial court could and would rule on Chris‘s request for temporary spousal support at the trial, and because Mary Kay did not include in the record the minute order and stipulation most likely relevant to the determination of whether any agreement existed to continue Chris‘s request for trial, we presume the trial court had jurisdiction to hear Chris‘s request for temporary spousal support. Mary Kay contends the court lost jurisdiction to order retroactive temporary support. In making initial temporary spousal support orders, the trial court has discretion to issue its orders retroactive to the date of the petition for dissolution. (In re Marriage of Mendoza & Cuellar (2017) 14 Cal.App.5th 939, 943 (Mendoza); In re Marriage of Dick (1993) 15 Cal.App.4th 144, 165-166.) At minimum, the court can make its orders retroactive to the date of a motion for such orders. (In re Marriage of MacManus (2010) 182 Cal.App.4th 330, 337.) Mary Kay cites In re Marriage of Gruen (2011) 191 Cal.App.4th 627, in support of her contention that the court lacked jurisdiction to retroactively order temporary support. In Gruen, following an order to show cause filed by husband, the trial court issued a pendente lite child and spousal support order, but continued the matter for further evaluation of But here, in the absence of the relevant minute order and stipulation, we presume the trial court expressly reserved jurisdiction to make retroactive temporary spousal support orders at the trial, such that the parties expected such an order to issue as part of the judgment. (See Jameson, supra, 5 Cal.5th at pp. 608-609; Freitas, supra, 209 Cal.App.4th at p. 1074.) Moreover, at no time prior to trial did the trial court make a final, appealable pendente lite spousal support order, disposing of the parties’ rights on the issue. (See Freitas, at pp. 1074-1075.) Finally, there is no evidence Chris took his request for temporary spousal support off calendar at any time. (See id. at p. 1075.) While Mary Kay contends Chris conceded in his Respondent‘s Brief that his request was vacated, she has taken his statement out of context. Chris alleges the trial court vacated the trial and Chris‘s request for temporary spousal support at a settlement conference in July 2015, and then calendared both matters for a later date in December 2015. We do not read this as an admission that Chris took his spousal support request off calendar; the trial court simply continued the hearing with the trial to a later date. As we presume the correctness of the trial court‘s orders in the absence of a record showing error (see Jameson, supra, 5 Cal.5th at pp. 608-609), we presume the trial court reserved jurisdiction to make retroactive orders at the time it continued Chris‘s temporary spousal support request to be heard with the trial on other issues. “California law provides for two distinct types of spousal support—temporary and permanent. ‘Awards of temporary spousal support do not serve the same purpose, nor are they governed by the same procedures, as awards for permanent spousal support. “Pendente lite allowances and permanent allowances differ fundamentally in nature [citation] and function [citation].” ’ [Citation.] Whereas the latter is intended to make an equitable apportionment between the parties, the former is meant to allow a spouse to continue to live in the manner to which he or she is accustomed during the time the dissolution action is pending. [Citation.] It is also used to provide a spouse ’ ” ‘with whatever is needed by [him or] her to litigate properly [his or] her side of the controversy.’ ” ’ [Citation.]” (Mendoza, supra, 14 Cal.App.5th at pp. 942-943.) We review spousal support orders under the abuse of discretion standard, examining the order for factual and legal support. (Blazer, supra, 176 Cal.App.4th at p. 1443.) We will affirm the trial court‘s decision if the court exercised its discretion along legal lines, where there is substantial evidence to support the decision. (Ibid.) Where the trial court exercised its discretion based on the facts of the case, we will uphold the ruling if the determination falls within the range of the evidence presented. (Ibid.) However, we conduct de novo review where a question of law is presented on undisputed facts. (Ibid.) Mary Kay contends the trial court did not have not sufficient evidence to support its finding that the parties agreed the money Chris deposited into the joint account was a form of temporary spousal support; rather, the court based its ruling on the arguments of counsel without evidentiary support. Before we consider whether the court erred in treating the $10,000 payments as being in lieu of temporary spousal support, we consider whether Mary Kay should be estopped from presenting this argument. Although Mary Kay now contends the court erred in considering Chris‘s monetary deposits into the joint account as payments in lieu of support, she argued the opposite to the trial court in her written closing statement. Specifically, Mary Kay claimed it was “always [her] understanding that the funds [Chris deposited into the joint account] were ‘in lieu of’ a formal child and spousal support order.” She asked the court to “honor[] and enforce[]” the parties’ agreement; the trial court did so. Generally, the doctrine of judicial estoppel precludes a party from obtaining an advantage by taking one position, then seeking another advantage through a second, incompatible position. (Aguilar v. Lerner (2004) 32 Cal.4th 974, 986 (Aguilar).) “The doctrine applies when ‘(1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.’ [Citations.]” (Id. at pp. 986-987.) Application of this doctrine is discretionary. (Id. at p. 986.) In determining whether Mary Kay was successful in asserting her position in the trial court, we observe a distinction between Mary Kay‘s request and the court‘s final order. At trial, Mary Kay asked the court to treat Chris‘s payments as a substitute for formal child and spousal support orders. However, the court only considered the payments to be in lieu of spousal support, and determined that the payments were taxable to Mary Kay. At the time of trial, former Although Mary Kay requested orders for both child and temporary spousal support, and the trial court issued an order for temporary spousal support only, the trial court‘s characterization of the payments was consistent with Mary Kay‘s request. The trial court determined the payments Chris made from March 2015, when he filed the request for spousal support, to September 2016 were in lieu of spousal support. The court did not include child support orders because the parties’ youngest child had turned 18 and graduated from high school by June 2014. Chris was no longer obligated to pay child support at the time he requested spousal support orders in 2015. ( Mary Kay contends the court erred when it found the temporary spousal support payments to be taxable to her and deductible by Chris, claiming spousal support is not taxable to the recipient unless there was a spousal support order or agreement in place before the payments were made, citing former Internal Revenue Code section 71. She further argues the court could not “retroactively change the nature of the payments already made,” but does not cite any legal authority in support of that proposition. The record on appeal does not reflect that Mary Kay made any arguments regarding the taxability of the payments to the trial court, despite Chris‘s clear request that the court find the payments to be taxable to Mary Kay and deductible to him as a form of temporary spousal support. The court included its finding that the payments were taxable to Mary Kay in its tentative decision, which the trial court had served on the parties’ attorneys by mail on the date of its issuance. The court did not specify the legal basis for its finding in either the tentative decision or the judgment. Nothing in the record indicates either party requested a statement of decision from the court after it issued the tentative decision, pursuant to “The proper procedure, after the trial court issues its [tentative decision], is to request a As neither party requested a statement of decision, “[w]e must therefore presume the judgment is correct. [Citation.]”23 (Id. at p. 647.)24 Mary Kay contends the trial court erred when it awarded the Duck Club membership to Chris at a value of $60,000, as the parties stipulated that the value was $65,000. Chris, in his pretrial brief, indicated the parties would stipulate that the membership had a value of $60,000. On the record during the trial, the parties stated that the membership had a value of $65,000. The trial court‘s minute order from the first day of trial confirms the court awarded Chris the membership with a value of $65,000. Yet, in the tentative decision and resulting judgment, the court awarded the membership to Chris at the $60,000 value. Where a written order fails to conform to the trial court‘s oral order, the appellate court can consider the circumstances of the case to determine which should prevail. (See People v. Smith (1983) 33 Cal.3d 596, 599; In re Maribel T. (2002) 96 Cal.App.4th 82, 86 (Maribel T.).) It was Chris‘s counsel who, on the record, indicated the parties’ agreed to value the membership at $65,000. The minute order from the trial confirmed the court awarded the membership to Chris at a value of $65,000. There was no other discussion of the membership during the trial, suggesting the written judgment issued by the trial court placing the value at $60,000 did not embody the terms contemplated by either the court or the parties. (Maribel T., at p. 86.) We will therefore order the judgment modified to reflect the value of the Duck Club membership at $65,000, and affirm the judgment as modified. The June 12, 2017 judgment is modified to award the Gables Land and Cattle Company/ Duck Club membership to Chris at a value of $65,000. The modified judgment is affirmed. Appellant Mary Kay Brewster shall pay Respondent Chris Clevenger‘s costs on appeal. _______________________________ Greenwood, P.J. WE CONCUR: _______________________________________________ Bamattre-Manoukian, J. ______________________________________ Danner, J. Brewster v. Clevenger No. H045050 Trial Court: Monterey County Superior Court Superior Court No.: DR54512 Trial Judge: The Honorable Heidi K. Whilden Attorney for Appellant, Mary Kay Brewster: Debra Gemgnani Tipton Law Offices of Debra Gemgnani Tipton Attorneys for Respondent, Chris Clevenger: Joel Franklin Law Offices of Joel Franklin C. Micheal McClure Law Office of C. Micheal McClure Brewster v. Clevenger No. H0450503. The Trial Court Properly Considered Other Just and Equitable Factors
1. The Trial Court Had Jurisdiction to Hear Temporary Support at the Trial
2. The Court Had Jurisdiction to Order Support Retroactively
3. Mary Kay Is Estopped From Arguing the Payments Were Not In Lieu of Temporary Spousal Support
4. Mary Kay Waived Arguments Regarding the Taxability of the Payments
D. Duck Club Membership