Filed 11/8/13 Marriage of Andrew CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT
                                   DIVISION ONE

                                           STATE OF CALIFORNIA



In re the Marriage of CHARLES and
MAIA ANDREW.
                                                                 D060854
CHARLES ANDREW,

         Appellant,                                              (Super. Ct. No. D490251)

         v.

MAIA AMBERSTONE,

         Respondent.



         APPEAL from a judgment of the Superior Court of San Diego County, Lorna A.

Alksne, Judge. Affirmed.



         Charles Andrew, in pro. per., for Appellant.

         Sheila M. Reilly for Respondent.

         In this case, by way of his designation of record, appellant elected preparation of a

clerk's transcript and a reporter's transcript. Appellant also filed an application for a

waiver of the cost of preparing the clerk's and reporter's transcripts. We denied his

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request and, when he failed to timely file the fees needed to prepare a reporter's

transcript, we ordered preparation of a clerk's transcript.

        Later, appellant unsuccessfully attempted to file an appendix. Included in

appellant's proposed appendix were documents filed in the trial court that did not appear

in the clerk's transcript and exhibits offered by the parties in the trial court. In addition to

consideration of the merits of appellant's appeal, pending before us is a motion to

augment in which appellant asks us to include the documents and many of the exhibits

that appeared in his proposed appendix. Appellant's motion to augment also includes

excerpts of portions of the reporter's transcript that support his contentions on appeal.

        With respect to the exhibits and documents filed in the trial court, we grant

appellant's motion to augment. However, with respect to the excerpts of the reporter's

transcript, we deny the motion to augment. Appellant lost his right to a record that

includes a reporter's transcript, and he may not reinstate that right by way of a motion to

augment with portions of the reporter's transcript.

        Appellant's failure to provide a complete reporter's transcript of the proceedings in

the trial court prevents us from reaching the merits of his claims on appeal, which appear

to be challenges to the trial court's factual findings and, in particular, the trial court's

reliance on the report of a special master with respect to the value of businesses appellant

owns.

        This is the second time appellant has appealed a ruling by the trial court in this

contentious marital dissolution proceeding. In the prior appeal we found that, although


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appellant's appeal had no merit, sanctions were not appropriate. Here, once again,

appellant's appeal lacks merit. Nonetheless, in order not to unduly discourage resort to

appellate review, we once again decline to impose sanctions.

                   FACTUAL AND PROCEDURAL BACKGROUND

       Appellant Charles Andrew and respondent Maia Amberstone were married in May

1984 and separated in May 2005. Shortly after their separation, Andrew filed a petition

for dissolution of the marriage.

       In 2008, the trial court awarded Amberstone $3,500 a month in spousal support

based on the report of a forensic accountant it had appointed to act as special master as

well as records from appellant's businesses which showed that substantial amounts of his

personal expenses were paid by the businesses. Andrew appealed from that order, and

we affirmed. We noted that although Andrew challenged the trial court's evidentiary

rulings, he did not cite to any portions of the record that supported his contentions. With

respect to Amberstone's request for sanctions, we stated: "[Andrew's] appeal lacks all

merit and it appears he has a history of causing delay. However, although it is a close

call, we decline to assess sanctions."

       On remand, the trial court conducted a three-day trial on reserved issues, including

the valuation of Andrew's businesses, spousal support and Amberstone's request for

sanctions. Based on its valuation of Andrew's businesses and other debts of the

community, the trial court ordered that Andrew pay Amberstone an equalization payment

of $168,135.69. Based on its determination of income available to Andrew and the


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couple's marital standard of living, the trial court ordered that Andrew pay Amberstone

$5,000 a month in spousal support.

       With respect to sanctions, the trial court stated: "The court finds that [Andrew]

has frustrated the policy of settlement and by misrepresenting income to the court and

respondent. The court issues a sanction pursuant to Family Code section 271 against

petitioner and orders him to pay to respondent a sanction of $20,000.00"

       Andrew filed a timely notice of appeal.

                                        DISCUSSION

                                               I

       First, we take up Andrew's motion to augment the record. As we indicated at the

outset, with respect to the documents that were filed in the trial court and were part of his

proposed appendix, we grant his motion.

       However, with respect to his request that we augment the record with the reporter's

transcript of the last day of the trial court's hearing in which the trial court made its ruling

on the record on the disputed issues, we deny the motion to augment. Where a reporter's

transcript has not been requested, "a 'motion to "augment" cannot be used to create a

record. Its function is to supplement an incomplete but existing record.'" (Wagner v.

Chambers (1965) 232 Cal.App.2d 14, 21.) The augmentation Andrew requests is

particularly unfair because it does not include a reporter's transcript of the preceding two

days of trial.




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                                               II

       On appeal, Andrew contests the trial court's determination of the value of his

businesses and, in particular, the trial court's reliance on the special master's report, on its

findings with respect to his income and its imposition of sanctions. With respect to the

special master's report, Andrew contends that the master did not respond to Andrew's

objections to the report and that the trial court also failed to consider Andrew's objections

to the master's report. With respect to the trial court's calculation of the parties'

respective incomes, Andrew contends that the trial court applied different criteria and

also relied on false or misconstrued facts. Finally, Andrew argues that the $20,000 in

sanctions was improper because it imposed an undue financial burden on him. In short,

Andrew's appeal is based entirely on his disagreement with the trial court's factual

findings.

       As Amberstone points out, the available record does not permit us to resolve these

questions. Where as here, an appeal is taken on a clerk's transcript and no reporter's

transcript is part of the record, "the judgment or order is not subject to evidentiary

challenge or review; it is presumed the evidence supports the judgment and the court's

findings." (In re Marriage of Stutz (1981) 126 Cal.App.3d 1038, 1042.) The particular

hurdles we face in reviewing a record that does not include a complete reporter's

transcript is in determining whether proper objections to the evidence were made and

whether any error in the admission or exclusion of evidence on the part of the trial court

was prejudicial. "[T]he party who desires to raise the point of erroneous admission on


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appeal must object at the trial, specifically stating the grounds of the objection, and

directing the objection to the particular evidence that the party seeks to exclude."

(3 Witkin, Cal. Evidence (5th ed. 2012) Presentation At Trial, § 383, p. 535.) Moreover,

"[i]t is a fundamental principle of appellate jurisprudence in this state that a judgment

will not be reversed unless it can be shown that a trial court error in the case affected the

result." (In re Sophia B. (1988) 203 Cal.App.3d 1436, 1439.) The appellant has the

burden on appeal not to merely show error but "'to show injury from the error.'"

(Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 740.)

       Here, without a complete record, we cannot determine whether Andrew made

appropriate objections to the master's report, raised an appropriate objection to the trial

court's income calculation or presented sufficient, credible evidence of his income. Even

if we assume that objections to the master's report and the trial court's calculations were

made and that credible evidence of his income was presented, without a complete record

of the trial we cannot determine whether any error was prejudicial.

       Thus, we are unable to reach the merits of Andrew's contentions.

                                              III

       Amberstone again seeks attorney fees from Andrew as sanctions for a frivolous

appeal. (Code Civ. Proc., § 907.) In In re Marriage of Flaherty (1982) 31 Cal.3d 637,

649-650, the court "set forth two alternative tests for determining a frivolous appeal. The

first test is subjective: Was the appeal prosecuted solely for an improper motive, such as

to harass the respondent or delay the effect of an adverse judgment? [Citation.] . . . [¶]


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The second strand of Flaherty is objective: Was the appeal so indisputably without merit

that any reasonable attorney would agree it was totally devoid of merit?" (Tomaselli v.

Transamerica Ins. Co. (1994) 25 Cal.App.4th 1766, 1773.) "The two standards are often

used together, with one providing evidence of the other. Thus, the total lack of merit of

an appeal is viewed as evidence that appellant must have intended it only for delay." (In

re Marriage of Flaherty, supra, at p. 649.)

       Like his previous appeal, Andrew's current appeal lacks all merit and, as we noted

in his prior appeal and the trial court determined in imposing sanctions, Andrew has a

history of causing delay. Nonetheless, we recognize that sanctions should be imposed

sparingly "so as to avoid a serious chilling effect on the assertion of litigants' rights on

appeal." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.) It is for this reason

that we once again decline to impose sanctions; however, our patience with dilatory and

frivolous litigation has limits.

                                       DISPOSITION

       The judgment is affirmed. Amberstone is awarded her costs of appeal.


                                                                         BENKE, Acting P. J.
WE CONCUR:


HALLER, J.


O'ROURKE, J.




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