What CA family law appeals not to file.

We all know that filing an appeal is not exactly a walk in the park. In this case a pro per family law litigant filed an appeal, wanting to nullify her marriage. The case can be viewed here http://www.courts.ca.gov/opinions/nonpub/E054510.PDF

Apparently the litigant argued as an appeal issue that she was prejudiced as the judge continued the case as he was ill. How this prejudiced her is unknown when it is an easy matter to subpoena witnesses for the continued hearing.

The 4th district court of appeal division 2 had the following to say on this issue:


According to xxxxx, on November 5, 2010, she was ready with two witnesses who would give testimony regarding service of nullity documents; however, Judge Tara Reilly rescheduled the hearing due to illness. xxxxc “this action caused a delay in deliverance of important information and resulted in a loss of vital testimony from a key witness xxxx regarding service of family law documents that were served upon [xxxx].” She argues the continuance of the hearing resulted in “the Court committing prejudicial errors which prevented [her] the opportunity to provide necessary evidence to prove her case.”

The problem with Hxxxxxxs claim is that she fails to identify what “important information” was not produced and what “vital testimony” was not provided that would have changed the outcome. To prevail on appeal, an appellant must affirmatively demonstrate not only error but prejudice. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337 (McLaughlin).) The appellant’s contentions must be supported by argument and citation to authority, as well as by citation to the record. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523 (McComber); Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte) [Fourth Dist., Div. Two].) A reviewing court is not required to make an “‘independent, unassisted study of the record in search of error . . . .’ [Citation.]” (McComber, supra, at pp. 522-523.) If the party fails to provide both citation to legal authority and citation to the record in support of his or her contention, the reviewing court may treat the issue as waived. (Ibid.; Duarte,
supra, at p. 856.) xxxx has provided no reasoned argument or analysis as to how, or to what extent, the court’s continuance of the hearing on xxxxs motion to set aside default affected her case. We therefore deem the issue waived.”

Now we can hardly expect a trial court judge to drag himself from his sick bed to preside over a case when he is incapable of doing so.

Case law supports the fact that a granting or refusing a continuance is a matter of discretion with the trial court and its ruling will ordinarily not be disturbed, (Schlothan v. Rusalem, 41 Cal. 2d 414, 417 [280 P.2d 68].) unless there are procedural requirements that mandate a continuance and where witnesses need to appear to testify to certain material events. While the trial court has a wide discretion in acting on a motion for a continuance, such discretion may not be arbitrarily exercised. (Eckert v. Graham, 131 Cal.App. 718, 721 [22 P.2d 44].)
In Gossman v. Gossman, 52 Cal. App. 2d 184, this court stated (p. 195 [126 P.2d 178]); “The term ‘judicial discretion’ was defined in Bailey v. Taaffe, (1866) 29 Cal. 422, 424, as follows: ‘The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ ”

Liberality should be exercised in the granting of continuances to obtain the presence of material evidence and to prevent miscarriages of justice. (Canal Oil Co. v. National Oil Co., 19 Cal. App. 2d 524, 535 [66 P.2d 197].)

When an attack is made on a discretionary procedural order of the court, we may deduce that the order was not made in the exercise of sound discretion if the record indicates that such order resulted in probable or possible [186 Cal. App. 2d 494] prejudice to a party. (County of San Diego v. Bank of America, 135 Cal. App. 2d 143, 148 [286 P.2d 880].) [7] As said in the recent case of Whalen v. Superior Court, 184 Cal. App. 2d 598, 601-602 [7 Cal.Rptr. 610]): “We conceive it to be the duty of a reviewing court to intervene when the uncontradicted facts clearly indicate that the trial court had a duty to grant a requested continuance for a reasonable period and that its refusal to do so much be construed as amounting to an abuse of its discretion.”

Nullity of marriage procedures is governed by FAMILY.CODE SECTION 2210-2212 This case does not even reference if any of these conditions existed to substantiate the nullification of marriage as requested and does not discuss any on appeal.

The case also serves to act as a reminder to file your record on appeal and REFERENCE it in your opening brief. Appeals are complicated and not all pro per litigants have the financial means to pay the exorbitant fees of an appellant attorney.

The record on appeal is defined on the APP-003 form http://www.courts.ca.gov/documents/app003.pdf which is served on the other party and filed with the Superior court with proof of service. If a document is missing from the designation of record documents, litigants can still file a motion to augment the appeal, citing and attaching the documents that are required to be part of the appeal.


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