Filed 7/24/13 Marriage of Schmitt CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                       FIFTH APPELLATE DISTRICT


In re the Marriage of JACQUELINE and DAVID
SCHMITT.

JACQUELINE SCHMITT,                                                                        F065650

    Respondent,                                                           (Super. Ct. No. M-1502-FL-3753)

    v.
                                                                                         OPINION
DAVID SCHMITT,

    Appellant.



         APPEAL from an order of the Superior Court of Kern County. John D. Oglesby,
Judge.
         David Schmitt, in pro. per., for Appellant.
         No appearance for Respondent.
                                                        -ooOoo-
       In this appeal, a husband challenges the trial court’s decision to uphold a marital
settlement agreement. He contends the agreement was unenforceable on the grounds of
duress, undue influence, fraud, and his lack of mental capacity.
       Husband’s ability to establish these grounds on appeal is hampered by the fact that
(1) he did not object to any ambiguities or omissions in the statement of decision while
the matter was before the trial court and (2) the record on appeal does not contain a
reporter’s transcript of the oral testimony heard by the trial court.
       Based on the rules of law that require an appellant to affirmatively demonstrate
reversible error, which include a requirement for presenting an adequate record for
assessing the errors asserted, we conclude that the husband has failed to establish the
grounds on which he claims the agreement is unenforceable and, thus, has failed to
affirmatively show the trial court erred.
       We therefore affirm the judgment.
                       FACTS AND PROCEDURAL HISTORY
       Appellant David Schmitt (David) and respondent Jacqueline Schmitt (Jacqueline)
were married in November 2007. It was the second time they were married to each other.
They have a daughter who was born in the spring of 1996.
       On May 7, 2010, they entered into a written postnuptial agreement for the purpose
of defining their respective rights in property owned separately, jointly or as community
property. The agreement also was signed by the lawyers representing David and
Jacqueline. The enforceability of this agreement, which later became a marital settlement
agreement, is the primary issue in this appeal as David has asserted several arguments for
why the agreement is invalid.
       David’s July 2012 declaration asserts that (1) in April 2010 he believed his mind
was not rational, he was not of sound mind, and he was not in control of himself; (2) he
was extremely depressed and thought about suicide or committing himself; (3) Jacqueline
pressured him to enter into the agreement knowing that he lacked the requisite mental

                                              2.
capacity; and (4) he did not want to sign the agreement, but believed he had no choice.
David offers these assertions to support his position that when he signed the postnuptial
agreement in May 2010 he lacked the mental capacity necessary to form a valid contract.
       Attached to the declaration was a letter written by David and dated April 27, 2010.
The letter asserted that Jacqueline told David that if he did not sign the agreement, she
would divorce him and take their daughter.1 The letter also asserted that David feared for
his safety and for the well-being of his daughter if he did not sign the agreement.
       David’s declaration also addressed Jacqueline’s awareness of his mental disability.
It stated that on August 1, 2010, Jacqueline insisted David seek help for his mental
problems and, the next day, reiterated that he really needed help. A week later,
Jacqueline told David that he should have taken her advice and gotten help for his mental
issues years ago.
       On August 16, 2010, Jacqueline filed a petition for dissolution of marriage.
       On September 13, 2010, Jacqueline and David executed an amendment to the
postnuptial agreement that changed it into a marital settlement agreement. The notary
that witnessed their signatures on the amendment completed an acknowledgement that
stated the signers represented themselves.
       On September 18, 2010, the martial settlement agreement was amended to address
matters such as custody of their daughter, visitation, child support, spousal support,
certain debts and expenses, and insurance. As to personal property and financial
accounts, the amendment referred to the earlier pages of the marital settlement
agreement. Again, the notary’s acknowledgement stated that the signers represented
themselves.


       1 In contrast, the third recital of the postnuptial agreement stated that the “parties
do not presently contemplate a separation and have no intention of obtaining a dissolution
of marriage.”



                                             3.
       On October 29, 2010, a judgment of legal separation was filed. The marital
settlement agreement was attached to the judgment. Among other things, the judgment
ordered a division of property as set forth in the settlement agreement, which was
attached and incorporated into the judgment. Paragraph 13 of the settlement agreement
provided that David’s interest in funds held by a Supplemental Employee Incentive Plan
(SEIP) would become community property. Exhibit D to the settlement agreement
identified four parcels of real property that were to be treated as Jacqueline’s separate
property.
       In November 2010, David was admitted to Del Amo Hospital and underwent an
evaluation of his mental health. Dr. Peter Hirsch was the attending physician and
determined that David was 100 percent disabled. Dr. Hirsch indicated that, among other
things, the goal of David’s hospitalization was the alleviation of suicidal risk, the
decrease in symptoms of depression and anxiety, and the achievement of a level of
psychosocial functioning such that David’s treatment could continue in a less acute
treatment setting. Subsequently, in February 2011, Dr. Hirsch again determined that
David was 100 percent disabled.
       In June 2011, David filed an order to show cause to set aside the judgment and
review child custody, child visitation and attorney fees. David contends that this
challenge to the judgment was not resolved by the court due to Jacqueline’s
reconciliation attempt.
       In November 2011, Jacqueline filed an order to show cause to set aside the marital
settlement agreement. The matter was continued twice and it and other matters were
heard on March 7, 2012. The March 7, 2012, minute order of the trial court states:

              “The court makes the following findings and orders: The agreement
       was entered into during the marriage which was attached to the judgment of
       legal separation. The agreement is amended as requested by [Jacqueline].
       The court’s tentative ruling is that from the date the parties signed the
       agreement it is valid. The agreement is not retroactive and the court would


                                              4.
       assign [David] a 35% share of the home. The court will entertain argument
       by way of brief on the matter before making a final ruling. The agreement
       is one sided and was signed under some duress. [David] had counsel at the
       time of the signing. Written argument by way of brief shall be to the court
       not late[r] than 4/16/12, thereafter the matter is submitted. [¶] [Jacqueline]
       may provide future evidence regarding the percentage given to [David].
       Ruling to be given in court on 4/23/12.” (Some capitalization omitted.)
       In April 2012, a stipulation to continue and order was filed. On May 4, 2012, the
trial court filed a minute order that described itself as a statement of decision on the issue
of the validity of the marital (postnuptial) agreement that was incorporated into the
judgment.
       The statement of decision indicated that Jacqueline sought to enforce the marital
agreement that had been incorporated into the October 29, 2010, judgment and David
sought to have the judgment set aside on the grounds of ambiguity and unenforceability.
       The statement of decision described the agreement as identifying the assets and
debts of the parties and providing for a division in favor of Jacqueline. The statement of
decision indicated that two significant inequalities in the division of property involved (1)
the residence held by Jacqueline and (2) the SEIP held by David. When they married for
the second time in 2007, the residence was Jacqueline’s separate property and the SEIP
was David’s separate property. During the marriage, David built an addition to the
residence, which substantially increased its size. The agreement provided that David
would have no claim on the residence or the improvements made by him. As to the
SEIP, the agreement provided that it would become community property, including
David’s separate property portion that was worth about $80,000.
       The statement of decision included the trial court’s finding that both parties were
represented by counsel when the marital agreement was signed and again when its terms
were incorporated into the judgment of legal separation. The court stated it “originally
had some concern regarding the enforceability of the agreement regarding its fairness and
as it appear[ed] to encourage [Jacqueline] to seek a dissolution” (full capitalization


                                              5.
omitted) because of the financial incentives it created. Notwithstanding its original
concern regarding enforceability, the court stated that it was not against public policy for
a party to knowingly and voluntarily agree to an unequal division of community and
separate property, especially when the parties are represented by counsel, have been
previously married to one another and are seeking a legal separation of their second
marriage, and have teenage child whom they are jointly raising. The court also stated
that it saw no reason to undo the agreement even if in retrospect David considered it a
bad deal.
       The trial court addressed David’s equitable arguments by stating that “in light of
[David’s] altering of the document before it was filed with the court[,] the court sees no
equitable reason to grant … relief as well.” (Full capitalization omitted.)
       Based on the foregoing findings and analysis, the court concluded that the
judgment, which included the agreement, was valid and enforceable.
       David responded to the trial court’s statement of decision by requesting
reconsideration and a review hearing. In support of his motion for reconsideration, David
submitted a declaration that addressed his mental capacity at the time he signed the
marital settlement agreement, Jacqueline’s knowledge of his mental issues, and the
subsequent diagnosis of his mental disability.
       The trial court held the requested review hearing on July 23, 2012. At that
hearing, both David and Jacqueline were sworn and testified. The minute order dated
July 23, 2012, indicates that David argued that he recently discovered that his mental
disability made him incapable of making any decisions and entering into an agreement or
contract and, because of the recent discovery, the information was not previously
presented in court.
       The trial court found: “After hearing [David’s] testimony[, the] court is not
persuaded by his testimony. [David] has not provided burden of proof to re-open case.
[David’s] motion [is] denied.” (Full capitalization omitted.)

                                             6.
       On August 9, 2012, David filed a notice of appeal that stated he was appealing
from the judgment or order entered on May 4, 2012. David’s notice of designation of
record on appeal checked none of the boxes indicating whether he elected to proceed with
or without a record of the oral proceedings in the superior court. As a result, the
appellate record contains no reporter’s transcripts, agreed statement or settled statement
of the oral proceedings (which proceedings would include the parties’ testimony) held in
the superior court.
                                       DISCUSSION
       David is representing himself in this appeal. His opening brief contends the
marital agreement is unenforceable because (1) he proved duress, (2) the agreement was
unfair and thus voidable as a matter for law, (3) the agreement was obtained by intrinsic
and extrinsic fraud, (4) the agreement should be set aside due to his unsound mind, and
(5) the fact he had an attorney, chosen and paid by Jacqueline, did not negate her undue
influence. David raises additional issues, including whether the judgment was premature
and whether a new trial should be required.
       Jacqueline did not file a respondent’s brief. Instead, she sent a one-paragraph
letter stating she did not have the funds to obtain appellate counsel and asked this court to
note that the trial court found David had forged the marital agreement filed with the court
in 2010 and his appeal is simply a disagreement with the trial court’s view of the facts.2




       2   Pursuant to California Rules of Court, rule 8.220(a)(2), when a respondent fails
to file a respondent’s brief, the appellate court “may decide the appeal on the record,
opening brief, and any oral argument by the appellant.” Thus, we will not treat
Jacqueline’s failure to file a respondent’s brief as a default or an admission that the trial
court erred. (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1.)
Instead, we will check the accuracy of the appellant’s statement of facts and evaluate the
merits of his legal arguments to determine whether prejudicial error occurred. (See In re
Bryce C. (1995) 12 Cal.4th 226, 232-233.)



                                              7.
I.     RULES OF APPELLATE PROCEDURE
       A.     Applicable Standards of Review
       When an appellate court reviews a trial court’s statement of decision, the trial
court’s findings of fact are reviewed under the substantial evidence standard and the trial
court’s resolution of a question of law is subject to independent review. (Brewer v.
Murphy (2008) 161 Cal.App.4th 928, 935.)
       A trial court’s findings of fact will be upheld if there is substantial evidence,
contradicted or uncontradicted, to support the finding. (Brewer v. Murphy, supra, 161
Cal.App.4th at p. 935.) In evaluating the support for a finding, we must view the
evidence in the light most favorable to the prevailing party, giving it the benefit of every
reasonable inference and resolving all conflicts in its favor. (Ibid.) Furthermore,
evidence is defined as “substantial” for purposes of this standard of review if it is of
ponderable legal significance, reasonable in nature, credible and of solid value. (Id. at
pp. 935-936.) For example, the testimony of a single witness, even a party in an action
for the dissolution of marriage, constitutes substantial evidence. (In re Marriage of Mix
(1975) 14 Cal.3d 604, 614.)
       B.     Appellant’s Burden of Demonstrating Error
       It is a well established rule of appellate procedure that the judgment or order of the
lower court is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)
To overcome this presumption, an appellant challenging a judgment or order must
affirmatively demonstrate prejudicial error. (Ibid.)
       For example, when an appellant contends a finding of fact is wrong, the appellant
has the burden of demonstrating that the record lacks substantial evidence to support that
finding of fact. (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1658.) To
demonstrate the absence of substantial evidence, the appellant must provide the appellate
court with an adequate record of the lower court’s proceedings. (Ballard v. Uribe (1986)
41 Cal.3d 564, 574.) In Ballard, the plaintiff failed to include a reporter’s transcript of


                                              8.
the portion of the trial relating to the issue of damages. The court stated that because of
the absence of a transcript or settled statement regarding that portion of the trial it had no
way of ascertaining whether the alleged juror misconduct or instructional error affected
the damages awarded in the case. (Ibid.) As a result, the court concluded the plaintiff
failed to provide an adequate record and therefore failed to carry the burden of showing
prejudicial error. (Ibid.)
II.    DURESS, UNDUE INFLUENCE AND UNFAIRNESS
       A.     Finding of Duress
       David refers to the trial court’s March 7, 2012, minute order and asserts that the
court found there was duress and undue influence against him. The minute order
includes the following sentence: “The agreement is one sided and was signed under
some duress.” (Some capitalization omitted.)
       The trial court’s statement that the agreement was signed under some duress was
not a finding ultimately adopted by the trial court. Instead, the statement was part of the
tentative ruling made by the court in the March 7, 2012, minute order. Subsequently, in
the statement of decision, the court stated it “originally had some concern regarding the
enforceability of the agreement .…” (Full capitalization omitted.) Despite this original
concern, the court found the agreement was valid and enforceable. Therefore, the court’s
tentative finding of some duress has no force or effect and did not become part of the
court’s final decision.
       Consequently, we reject David’s position that duress was proven. Instead, the
record shows that the trial court was aware of the issue concerning duress and still
concluded the agreement was enforceable. Under the applicable rule of appellate review,
we are required to conclude that the trial court impliedly found David was not under
duress when he signed the agreement. (See In re Marriage of Arceneaux (1990) 51
Cal.3d 1130, 1134 [appellate court will imply findings in support of judgment where



                                              9.
missing findings are not brought to attention of trial court]; Denham v. Superior Court,
supra, 2 Cal.3d at p. 564 [courts indulge all presumptions in favor of the judgment].)
       B.     Presumption of Undue Influence and Family Code Section 721
       When an interspousal transfer of property advantages one spouse to the
disadvantage of the other, a presumption arises that the transaction was the result of
undue influence. (Fam. Code, § 721; In re Marriage of Delaney (2003) 111 Cal.App.4th
991, 996.) The spouse advantaged by the transaction must show by a preponderance of
the evidence that the advantage was not gained in violation of the fiduciary relationship
between spouses. (In re Marriage of Fossum (2011) 192 Cal.App.4th 336, 344.) The
spouse advantaged by the transaction has the burden of proving that the transaction was
freely and voluntarily made, with full knowledge of the facts, and with complete
understanding as to the transaction’s effect. (In re Marriage of Mathews (2005) 133
Cal.App.4th 624, 630.)
       Here, David refers to the statutory presumption of undue influence and contends
the trial court never required Jacqueline to rebut the presumption by a preponderance of
the evidence. To prevail on this argument, David must demonstrate that the trial court
failed to decide whether the presumption was rebutted.
       The statement of decision does not contain an explicit reference to the
presumption or Family Code section 721. The statement of decision did mention,
however, that a party may knowingly and voluntarily agree to an unequal division of
property and then stated it saw no reason to undo the agreement. This language can be
interpreted in different ways regarding the questions whether the trial court was aware of
the presumption of undue influence and whether the court required Jacqueline to rebut
that presumption by a preponderance of the evidence.




                                            10.
       David interprets the statement of decision as failing to address these questions and,
therefore, takes the view that the trial court did not require Jacqueline to rebut the
presumption.
       Under the applicable rules of law, a party claiming omissions or ambiguities in the
factual findings in a statement of decision must bring those omissions or ambiguities to
the trial court’s attention pursuant to Code of Civil Procedure section 634 before such
objections will be considered by an appellate court. In other words, “if a party does not
bring such deficiencies to the trial court’s attention, that party waives the right to claim
on appeal that the statement was deficient in these regards, and hence the appellate court
will imply findings to support the judgment.” (In re Marriage of Arceneaux, supra, 51
Cal.3d at pp. 1133-1134.) The rationale for this rule is that it would be unfair and
inefficient to allow a party to lull the trial court and opposing party into believing the
statement of decision was adequate and then claim error on appeal when the asserted
error could have been clarified before the trial court. (Id. at p. 1138.)
       Nothing in the record before this court demonstrates that David objected to the
failure of the statement of decision to explicitly address whether Jacqueline had proven
by a preponderance of the evidence that David entered the agreement freely and
voluntarily, with full knowledge of the facts, and with complete understanding as to the
agreement’s effect on his property interests.
       Therefore, under the rules regarding statements of decision set forth by the
California Supreme Court in In re Marriage of Arceneaux, supra, 51 Cal.3d at pages
1133 to 1134, we conclude that David has not demonstrated that the trial court failed to
find that Jacqueline proved the agreement was entered freely and voluntarily, with
David’s full knowledge of the facts and complete understanding as to the impact on his
property interests. Under those rules of law, such a finding is implicit in the trial court’s
broad statement that it could see no reason to undo the agreement.



                                             11.
       C.     Separate Counsel and Rebutting Presumption
       David contends: “Probative proof that ag[grieved] spouse had separate legal
counsel or the opportunity to obtain such advice is not essential to a rebuttal of the undue
influence presumption.” He also contends that the fact that he had legal counsel did not
relieve Jacqueline of her fiduciary obligation in the negotiating of the agreement.
       Without supporting citations to the record, David asserts that he was told to go to a
particular attorney and tell the attorney that he was needed just to acknowledge the
signature on the agreement, which had been prepared by Jacqueline and her attorney
within the two weeks prior to the signing of the agreement. David also asserts that,
besides choosing his attorney, Jacqueline also paid the attorney.
       We agree with David’s view of the law that the fact that the spouse challenging a
marital agreement had legal representation does not automatically rebut the presumption
of undue influence established by Family Code section 721. (See Vai v. Bank of America
(1961) 56 Cal.2d 329, 339-340 [husband not released from fiduciary obligation as a result
of wife employing attorney to negotiate agreement].)
       Our agreement on this point of law, however, does not lead us to conclude that
Jacqueline did not rebut the presumption. For the reasons stated in the prior section of
this opinion, we conclude that David may not argue on appeal that the trial court
erroneously failed to address the presumption of undue influence because he has not
shown that he made such an objection in the trial court and gave the court an opportunity
to correct any such omission. (See In re Marriage of Arceneaux, supra, 51 Cal.3d at pp.
1133-1134; Code Civ. Proc., § 634.)
       D.     Unfair Advantage
       David also argues that the trial court found Jacqueline gained an unfair advantage
over him by virtue of the agreement. David refers to the court’s tentative ruling of March
7, 2012, which states that “the agreement is one sided.” David then reiterates his position




                                            12.
that “the court erred in never requiring Jacqueline to rebut the undue influence and duress
issue that arises from such inter-spousal transactions .…”
       First, the trial court’s statement that “the agreement is one sided” was part of the
tentative ruling and was not included in the statement of decision, which is the final and
operative expression of the trial court’s determinations for purposes of this appeal.
Second, applicable law requires this court to conclude that the trial court impliedly found
Jacqueline presented sufficient evidence to rebut the presumption of undue influence. (In
re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133-1134.) Therefore, David’s
unfairness argument fails to demonstrate prejudicial error because the record presented
does not establish that the trial court failed to require Jacqueline to rebut the presumption
of undue influence.
III.   INTRINSIC AND EXTRINSIC FRAUD
       David contends the trial court erred in failing to set aside the judgment because
Jacqueline had him sign the agreement and the amendment converting it into a marital
settlement agreement while knowing he was under psychological care and did not have
the mental capacity to make such decisions. David refers to the finding made by the
Legislature in Family Code section 2120, subdivision (b): “It occasionally happens that
the division of property or the award of support, whether made as a result of agreement or
trial, is inequitable when made due to the nondisclosure or other misconduct of one of the
parties.”
       David supports his version of events by citing to attachments to his July 2012
declaration, which was submitted in support of his motion for reconsideration. The
attachments are printouts of text messages exchanged between David and Jacqueline in
August 2010.
       Appellant has the burden of demonstrating prejudicial error. (Denham v. Superior
Court, supra, 2 Cal.3d at p. 564.) To carry that burden, an appellant must present an



                                             13.
adequate record of the trial court proceedings. In this context, “adequate” means a record
that contains all of the information necessary to assess the particular error asserted by the
appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) When an appellant
disagrees with a trial court’s evaluation of the evidence, the appellant must provide the
appellate court with a complete record of that evidence. (E.g., Stasz v. Eisenberg (2010)
190 Cal.App.4th 1032, 1039.)
       In this appeal, David has not included a reporter’s transcript, or a suitable
substitute, of the oral testimony presented to the trial court. This omission precludes this
court from examining all of the evidence presented to the trial court. Because the oral
testimony might have supported the trial court’s decision to reject David’s claims of
intrinsic and extrinsic fraud, we (like the court in Stasz v. Eisenberg, supra, 190
Cal.App.4th 1032) must conclude that the trial court’s decision is correct.
       Furthermore, the record presented by David does not provide the basis for the
following statement by the trial court: “Further[,] in light of [David’s] altering of the
document before it was filed with the court[,] the court sees no equitable reason to grant
relief as well.” This statement may have been intended to address the equities, which are
mentioned in Family Code section 2120, subdivision (b) in connection with the phrase
“other misconduct of one of the parties.”
       In short, the trial court appears to have found that the equities did not favor David
because he altered the agreement before it was filed with the court. Under California
law, a party who seeks equity must also do equity. (Quick v. Pearson (2010) 186
Cal.App.4th 371, 380.) The equitable doctrine of “unclean hands” precludes the
possibility of equitable relief to one tainted with inequitableness or bad faith relative to
the matter in which he seeks relief. (Ibid.) This doctrine provides a second, independent
ground for rejecting David’s argument that the trial court committed prejudicial error
when it ruled against David’s claim of fraud.



                                             14.
IV.    CAPACITY TO FORM A CONTRACT
       David contends that the marital agreement and the subsequent modification that
converted it into a marital settlement agreement should be set aside because of his
unsound mind.
       A.     Principles of Contract Law Concerning Mental Capacity and Consent
       Under California law, the formation of an enforceable contract requires (1) parties
capable of contracting, (2) their consent, (3) a lawful object and (4) sufficient
consideration. (Civ. Code, § 1550.) Persons of unsound mind are not capable of
contracting. (Civ. Code, § 1556.)3
       The question whether a person has an “unsound mind” is intertwined with the
concept of consent because the parties’ consent to the contract must be free. (Civ. Code,
§ 1565.) The consent or assent essential to the existence of a contract cannot be given
freely by a person unless that person is endowed with such a degree of reason and
judgment as will enable him or her to comprehend the subject of negotiation. (Jacks v.
Estee (1903) 139 Cal. 507, 512-513.)
       Pursuant to Civil Code section 38, a “person entirely without understanding has no
power to make a contract of any kind, but the person is liable for the reasonable value of
things furnished to the person necessary for the support of the person or the person’s
family.” In addition, a “contract of a person of unsound mind, but not entirely without
understanding, made before the incapacity of the person has been judicially determined,
is subject to rescission .…” (Civ. Code, § 39, subd. (a).)
       B.     Analysis of David’s Claim of Error
       In its statement of decision, the trial court indicated that it saw no reason to undo
the parties’ agreement even though, in retrospect, David considered it a bad deal. Under


       3The capacity of a person of unsound mind to form a binding contract is
addressed in sections 38 through 41 of the Civil Code. (Civ. Code, § 1557, subd. (b).)



                                             15.
the rules of law set forth in In re Marriage of Arceneaux, supra, 51 Cal.3d at pages 1133
to 1134, we are required to infer that the trial court found David had the requisite mental
capacity at the time the agreement and the amendments were signed. Furthermore, this
implied finding of fact regarding David’s mental capacity withstands a challenge for lack
of substantial evidentiary support because the appellate record does not include the oral
testimony of the parties. Under applicable rules of law, we are required to presume that
the omitted testimony contains evidence that adequately supports the trial court’s
decision. In summary, David has failed to carry his burden of affirmatively
demonstrating reversible error on this ground.
V.     AMBIGUITY OF MARITAL SETTLEMENT AGREEMENT REGARDING
       IMPROVEMENTS
       David contends that the marital settlement agreement is ambiguous because it does
not include $947,000 of improvements that David made to the residence that was
Jacqueline’s separate property.
       In its May 4, 2012, minute order, the trial court addressed this aspect of the
agreement by (1) acknowledging that David built an addition to the residence owned by
Jacqueline, which substantially increased the size of the house, and (2) stating that the
parties’ agreement provides that David would have no claim on either the residence or the
improvements made by him to the residence. Thus, the trial court did not consider the
agreement was ambiguous on the point now raised by David.
       David’s argument, which is not entirely clear so it is quoted here verbatim, asserts:
“The agreement only has spate property of Jacqueline to be land that she had prior to
marriage and the amount she paid for such property.” The word “spate” probably is a
typographic error and was intended to be “separate,” with the reference being to the
separate property of Jacqueline listed in Exhibit D to the agreement. That exhibit lists
four parcels of “real property” that Jacqueline acquired in the first half of 2004. Contrary




                                            16.
to the assertion made in David’s appellate brief, the exhibit to the agreement does not use
the term “land.”
         Civil Code section 658 provides that real property consists of land; that which is
affixed to land; that which is incidental or appurtenant to land; and that which is
immovable by law, with certain exceptions. Similarly, Black’s Law Dictionary (8th ed.
2004) defines “real property” as “[l]and and anything growing on, attached to, or erected
on it, excluding anything that may be severed without injury to the land.” (Id. at p.
1254.)
         Based on these definitions, we conclude that the agreement’s reference to “real
property” is not ambiguous as to whether improvements made to the parcels listed as
Jacqueline’s separate property were covered by the agreement. The term “real property”
clearly includes such improvements and, therefore, the trial court did not err when it
interpreted the agreement in that manner.
VI.      PREMATURE JUDGMENT
         David contends that the trial court erred by issuing its May 4, 2012, ruling
concerning the enforceability of the agreement prior to the date set for the hearing. David
asserts that the court set April 23, 2012, as the hearing date and the parties stipulated to
change the date of the hearing from April 23, 2012, to May 21, 2012. David argues that
the May 4, 2012, ruling deprived him of the opportunity to present the court with
evidence he discovered near the end of April.
         The appellate record does not contain a copy of the stipulation to continue the
cause until May 21, 2012. The only reference in the record is in the copy of the docket,
which includes an entry for a “stipulation to continue & order” filed on April 23, 2012.
Other than a reference to the new hearing date, the terms of the stipulation are not
described in the docket.




                                              17.
       Because we cannot ascertain the contents of the stipulation and order, we cannot
determine whether the trial court’s issuance of the May 4, 2012, decision violated the
terms of the stipulation and order. As a result, David has failed to present this court with
an appellate record that affirmatively demonstrates that the trial court erred when it filed
the May 4, 2012, decision.
VII.   CONCLUSION
       David has failed to carry his burden and demonstrate that the trial court committed
prejudicial error on the grounds raised in this appeal.
                                      DISPOSITION
       The judgment and orders of the trial court are affirmed. Costs on appeal, if any,
are awarded to Respondent.



                                                                 _____________________
                                                                              Franson, J.
WE CONCUR:


 _____________________
Kane, Acting P.J.


 _____________________
Peña, J.




                                             18.
