Filed 3/2/16 Marriage of Wolff and Banerjee CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE


In re the Marriage of DONALD WOLFF
and NANDITTA BANERJEE.

DONALD WOLFF,
         Appellant,                                                  A144094
v.
                                                                     (Contra Costa County
NANDITTA BANERJEE,                                                   Super. Ct. No. MSD10-6091)
         Respondent.


         In this family law dissolution proceeding, the court entered judgment after trial on
reserved issues, including division of the community. After notice of entry of judgment,
appellant Donald Wolff moved for reconsideration on the basis of new evidence that he
had purportedly discovered after trial. The court denied the motion. We affirm the
judgment.
                          I.       BACKGROUND AND PROCEDURAL HISTORY
         Appellant Donald Wolff appeared pro se in the trial court and represents himself
in this appeal.1 As is often the case in such matters, we are provided with a limited—and
inadequate—record for review. As relevant here, the family law court conducted a bench
trial on reserved issues, including division of the community obligations and assets, on
August 19 and October 16, 2014. Those proceedings were not reported. The court made


         1
             Respondent Nanditta Banerjee has not appeared in this appeal.


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findings and issued orders from the bench following each hearing. The record reflects no
request by either party for a statement of decision. A “Judgment on reserved issues”
(Judgment) was entered on November 21, 2014. Notice of entry of judgment was filed
and served by the clerk of the court on the same date. On December 1, 2014, Wolff filed
a motion for reconsideration pursuant to Code of Civil Procedure section 1008, alleging
that “new facts or circumstances have been discovered since the date of the order in that
[Wolff] has discovered documentation that proves he had paid expenses that were
community debt with personal monies after the date of separation.”2 He further alleged
in his declaration that money considered community funds were in fact his separate
property earned after the date of separation. He also asserted that there were “Errors
located in Clerk Notes for both dates of trial.” He asked that the court “modify, amend or
revoke the order Judgment on/for Reserved issues [sic].” Hearing on Wolff’s motion was
held on January 13, 2015. The court declined to accept additional exhibits offered by
Wolff and denied the motion.3 Wolff filed his notice of appeal on January 20, 2015.
                                     II.   DISCUSSION
A.     Motion for Reconsideration
       Wolff complains that, at the January 13, 2015 hearing, the trial court refused to
consider “important new evidence” and refused to accept his evidence to be lodged for
appeal. We need not address the merits of Wolff’s reconsideration motion. Judgment
was entered on November 21, 2014. After entry of judgment, the court did not have
jurisdiction to entertain or decide a motion for reconsideration. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 859, fn. 29: In re Marriage of Condon (1998)
62 Cal.App.4th 533, 541, fn. 8; Betz v. Pankow (1993) 16 Cal.App.4th 931, 937–938
[Code Civ. Proc., § 1008 is directed to interim rulings].)



       2
          A motion for reconsideration of an order requires a showing of “new or different
facts, circumstances, or law” in support of the motion. (Code Civ. Proc., § 1008,
subd. (a); cf. id., § 657 [specifying grounds for motions for new trial].)
       3
           As we discuss post, Wolff submits voluminous “exhibits” with his appeal.


                                             2
B.     The November 21, 2014 Judgment
       Wolff’s notice of appeal challenges only the November 21, 2014 judgment. We
first address the state of the record before us. “The party seeking to challenge an order on
appeal has the burden to provide an adequate record to assess error. [Citation.] Where
the party fails to furnish an adequate record of the challenged proceedings, his claim on
appeal must be resolved against him.” (Rancho Santa Fe Assn. v. Dolan-King (2004)
115 Cal.App.4th 28, 46.)
       Our official record consists of the register of actions, including the clerk’s minutes
for the August 19 and October 16, 2014 hearings, and the Judgment itself. Proceedings
were not reported for either hearing.4 Witnesses, including the parties, were sworn and
testified on both dates. Minutes of the August hearing reflect that the following exhibits
of Banerjee’s were admitted by stipulation of the parties: “Exhibits A–F and G–I which
are all appraisals of the various properties owned by the parties”; and “Exhibits J–T
which are property management statements for the various properties managed for the
parties.” Also admitted for Banerjee was “Exhibit II: Greengate property management
statement.” As to Wolff’s evidence, the minutes recite that “[Wolff] identifies his
Exhibits 2 through 15 but admits none on this date.” No exhibits were identified by
either party or admitted at the October 16 hearing. The minutes from that date reflect
that, at the conclusion of the hearing, “Exhibits are returned to each party.”
       Wolff does not provide copies of any of Banerjee’s exhibits actually admitted at
trial. He alleged that he requested documents from her counsel, pursuant to California
Rules of Court, rule 8.124(c),5 and requested assistance from this court in obtaining


       4
         The Superior Court of Contra Costa County, Local Rules, rule 5.9(f)(1) advises
the parties that no court reporters are employed by the court in family law departments,
and that “[t]here will be no official record of the proceedings unless a party who desires
an official record makes arrangements for a private certified court reporter as set forth in
Local Rule 2.51.”
       5
        California Rules of Court, rule 8.124(c) provides, in pertinent part: “If a party
preparing an appendix wants it to contain a copy of a document or an exhibit in the
possession of another party: [¶] (1) The party must first ask the party possessing the

                                              3
documents from Banerjee. By order of July 21, 2015, we denied the request for
assistance, without prejudice, on the grounds that the motion did not state that the
documents he requested from Banerjee’s counsel were documents filed or lodged in the
trial court, and did not sufficiently “ ‘identify[] the document or specify[] the exhibit’s
trial court designation[.]’ (Cal. Rules of Court, rule 8.124(c)(2).)” Wolff submits no
evidence of any further effort to obtain or provide the trial exhibits. Lacking a transcript
of witness testimony, there is no indication that Wolff made any effort to use the settled
statement process to remedy this deficiency in the record. (Cal. Rules of Court,
rule 8.137.)
       In his declaration submitted with the motion for reconsideration, Wolff disputed
the entry in the clerk’s minutes stating that none of his exhibits, which he says were
compiled and submitted in a binder, had been admitted in evidence.6 At the January 13,
2015 hearing, Wolff submitted exhibits, which the court indicated it had read. Wolff
asked that his exhibits submitted for that hearing, plus “additional items, S through Z” be
“submitted to the court and held for appeal.” These items were clearly not his trial
exhibits. The court declined to admit them saying, “Sir, what you’re doing is
submitting—trying to submit evidence now that you could have submitted for trial. . . .
You didn’t bring all these documents into trial then. . . . We went forward with the
evidence we had, and I ruled based on the evidence I had.” Wolff attached to his trial
court notice designating the record on appeal a “Hearing Evidence Index” listing items
“A” through “Z,” presumably those items which he sought to introduce on January 13,
2015. In addition to the trial court’s clear statement that the items (A–Z) that Wolff


document or exhibit to provide a copy or lend it for copying. All parties should
reasonably cooperate with such requests. [¶] (2) If the attempt under (1) is unsuccessful,
the party may serve and file in the reviewing court a notice identifying the document or
specifying the exhibit’s trial court designation and requesting the party possessing the
document or exhibit to deliver it to the requesting party or, if the possessing party prefers,
to the reviewing court. The possessing party must comply with the request within
10 days after the notice was served.”
       6
           Wolff asserts other errors as well.


                                                 4
submitted had not been presented at trial, the index description does not conform to his
numerical trial exhibit designation on August 19, 2014. A review of the document
descriptions in Wolff’s index further confirms that several of the documents were copies
of earlier court documents (e.g., Exhibits A–C) or created after trial (e.g., Exhibits W, Y,
Z), and thus could not have been his trial exhibits.
       Rather than provide copies of the 14 numerically designated exhibits (Exhibits 2–
15) which he marked for identification on August 19, 2014, Wolff submits 1566 pages of
documents as exhibits here.7 While ostensibly submitted as an “appendix,” the
documents completely fail to comply with the form required by the rules of court. (Cal.
Rules of Court, rules 8.124(d), 8.144(b)–(d); Ct. App., First Dist., Local Rules,
rule 16(d)(1).) In his opening brief, Wolff “attests” that “to the best of my knowledge the
evidence I submit is the same as lodged at trial,” but he makes no attempt to correlate
any of it with his numerical trial exhibit designations. It is difficult to see how the
voluminous documents he provides to us could actually be copies of his trial exhibits.
The first volume alone contains 217 pages covering seven different identified categories
of documents, none of which have adequate identifying tabs. Wolff’s document headings
in his indices list at least 50 different categories. His category designations contain
argument as much as description (e.g., “Judge Refused $27,000 In Epstein Credits To
Donald”). Even if we were to give credence to his highly questionable “attestation,” the
official court record still shows that none of it was offered in evidence. While Wolff
disputes this, the minutes are presumptively correct. (Fergus v. Songer (2007) 150
Cal.App.4th 552, 565 [Evid. Code, § 664 presumption that “official duty has been
regularly performed” applies to the duties of clerks of court].) Moreover, even if every




       7
         On June 12, 2015, we granted in part Wolff’s “Motion for the Admission of
Petitioner’s Evidence to Appeal,” allowing him to provide copies “only to exhibits
lodged at trial,” and denying his request to include in the record exhibits presented to the
court at the January 13, 2015 hearing.


                                              5
page he submits to us actually had been received and considered by the trial court, his
failure to provide the entire record and all exhibits is fatal to his appeal.8
       “[A]n attack on the evidence without a fair statement of the evidence is entitled to
no consideration when it is apparent that a substantial amount of evidence was received
on behalf of the respondent. [Citation] Thus, appellants who challenge the decision of
the trial court based upon the absence of substantial evidence to support it ‘ “are required
to set forth in their brief all the material evidence on the point and not merely their own
evidence. Unless this is done the error is deemed waived.” ’ ” (Nwosu v. Uba (2004)
122 Cal.App.4th 1229, 1246.) Here the family court took testimony and considered
extensive documentary evidence, none of which Wolff provides, or even acknowledges.
       Moreover, neither party requested a statement of decision, which would have
explained the bases for the court’s decision. (See Code of Civ. Proc., § 632) “ ‘Under
these circumstances, all intendments favor the ruling below . . . and we must assume that
the trial court made whatever findings are necessary to sustain the judgment.’ ”
(Oceguera v. Cohen (2009) 172 Cal.App.4th 783, 794.)
       We are required to presume that the record contains evidence to support every
finding of fact, unless an appellant affirmatively shows otherwise. (Huong Que, Inc. v
Luu (2007) 150 Cal.App.4th 400, 409.) “ ‘ “[I]f any matters could have been presented to
the court below which would have authorized the order complained of, it will be
presumed that such matters were presented.” ’ ” (Foust v. San Jose Construction Co.,
Inc. (2011) 198 Cal.App.4th 181, 187.) Without an adequate record, Wolff cannot meet
this burden. If the record is inadequate for meaningful review, “ ‘the appellant defaults
and the decision of the trial court should be affirmed.’ ” (Gee v. American Realty &
Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)
                                     III.   DISPOSITION
       The judgment is affirmed.

       8
        As noted ante, there is no indication that Wolff made any effort to use the settled
statement process pursuant to California Rules of Court, rule 8.137 to remedy
deficiencies in the record.


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                                _________________________
                                BRUINIERS, J.


WE CONCUR:


_________________________
SIMONS, Acting P. J.


_________________________
NEEDHAM, J.




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A144094




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