Filed 10/4/13 Marriage of DiMarco CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION TWO

In re Marriage of DEBORAH and FRANK 

DiMARCO.

 B235405

 (Los Angeles County

 Super. Ct. No. BD453017)

DEBORAH SINGER,

Respondent,

v.

FRANK DiMARCO,

Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.

Steff Padilla, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.). Affirmed.

Murray S. Berns; David M. Shirwo for Appellant.

Law Offices of Majorie G. Fuller, Marjorie G. Fuller; Dennis E. Braun for 

Respondent.

___________________________________________________
2

Frank DiMarco appeals from the judgment in this marital dissolution case. There 

is no basis for reversal. We affirm.

BACKGROUND

The record includes numerous transcripts, yet DiMarco‟s opening brief contains 

no “summary of the significant facts,” a mandatory element. (Cal. Rules of Court, rule 

8.204(a)(2)(C)); Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 

Cal.App.4th 855, 869.) Appellant‟s “burden to provide a fair summary of the evidence 

„grows with the complexity of the record.‟” (Boeken v. Philip Morris, Inc. (2005) 127 

Cal.App.4th 1640, 1658.) His “Statement of the Case” cites only the judgment; he then 

moves directly to the “Argument.” The brief is replete with unprofessional sarcasm and 

ad hominem attacks on the trial judge.

Appellant‟s opening brief is, in a word, inadequate. As this Court has said in the 

past, “The appellate court starts with the presumption that the evidence sustains each 

finding of fact [citations], and the burden rests upon appellant „to demonstrate that there 

is no substantial evidence to support the challenged findings.‟ [Citations.] To this end 

appellant must set forth in his brief all material evidence upon the point, not merely his 

own proofs [citations]; if this is not done the point is deemed waived . . . . Counsel in this 

case has made no real effort to comply with the rule. „[A] claim of insufficiency of the 

evidence to justify findings, consisting of mere assertion without a fair statement of the 

evidence, is entitled to no consideration, when it is apparent, as it is here, that a

substantial amount of evidence was received on behalf of the respondents.‟ [Citation.] In 

the circumstances we are entitled to accept the statements of respondent‟s brief as to the 

evidence upon the subject.” (Davis v. Lucas (1960) 180 Cal.App.2d 407, 409-410, italics 

added; Guardianship of Turk (1961) 194 Cal.App.2d 736, 738.)

PROCEDURAL HISTORY

According to respondent, the parties were married for two years and have one 

child. Respondent filed for dissolution in September 2006. Some 21 court proceedings 

were conducted to resolve child support, visitation, domestic violence, spousal support, 

drug testing, and property division. Trial began in February 2009 and continued 
3

intermittently until September 2010. During trial, appellant was jailed in July 2009 for an 

altercation that occurred at the office of the child‟s therapist. In June 2010, appellant was 

sentenced to a year in jail for violating court orders.1

THE TRIAL COURT’S JUDGMENT

In a judgment entered on June 28, 2011, the trial court made numerous findings. 

The parties were married from September 2004 to September 2006. Their child, Sienna 

was born in January 2006. Frank willfully violated criminal court and family court 

orders and engaged in acts of domestic violence toward Deborah and Sienna. He “cannot 

control his behavior” and lacks insight. During trial, Frank was incarcerated multiple 

times. He has “a serious drinking problem” and poses a risk to his daughter. Frank‟s 

testimony was “inconclusive or fantastical” and “lacked credibility.” Sienna is at risk of 

abduction.

In light of Frank‟s history of child abuse and spousal abuse, the court awarded 

Deborah sole legal and physical custody of Sienna. Frank may have monitored visitation 

with Sienna, on condition that he complete a therapeutic counseling regimen to address 

domestic violence, alcohol abuse, anger management and impulse control issues; 

complete a parenting class; participate in Alcoholics Anonymous sessions; undergo 

random testing for alcohol and controlled substances; and comply with all criminal court 

orders and terms of probation.

With respect to child support, the court found that Deborah has been Sienna‟s sole 

provider since the marital dissolution petition was filed. The court ordered Frank to pay 

$200 per month in child support. As to spousal support, the court found that “this is a 

short-term marriage that was marred by domestic violence, which commenced prior to 

the filing of the [petition], and continued through the Trial of this case.” The marital 

 

1 We take judicial notice of a criminal opinion stating that appellant pleaded no 

contest in February 2011 to committing grand theft of respondent‟s personal property by 

stealing $49,888 from her bank account in 2008-2009. (People v. DiMarco (Jan. 30, 

2013, B237500) [nonpub. opn.].)
4

standard of living improved during the marriage, owing to Deborah‟s separate property. 

Frank continued to live above his means despite business setbacks arising from 

mismanagement and fraudulent business practices. Each party is capable of employment. 

Deborah used her income and separate property to support herself and Sienna while 

Frank refused to work, saddled Deborah with all of the community debt, and fraudulently 

misappropriated Deborah‟s separate property for his personal use. The court terminated 

its jurisdiction on the issue of spousal support, declaring that neither party may seek 

support from the other.

The court awarded Deborah real property in Calabasas that was her separate 

property, as well as all improvements to that property. The court noted that Deborah 

traced the improvements to her separate property, which Frank failed to rebut. Instead, 

Frank attempted to claim a gambling debt as an improvement to the property. The court 

also awarded Deborah the assets from a 2005 trust.

Frank operated a construction business prior to and during the marriage. He 

forged Deborah‟s name on a fictitious business statement to make it appear as if she 

owned and operated the construction business, when she had nothing to do with it. The 

court determined that Deborah paid $132,000 in taxes owed by Frank‟s separate business 

operation. Frank ignored a court order to turn over a refund he received during trial; all 

but $17,000 of the refund was seized by tax authorities for years prior to marriage, when 

Frank failed to pay taxes. The court ordered Frank to repay Deborah $132,000. 

Deborah paid Frank temporary support of $43,938, subject to reallocation and 

adjustment by the court. Because Frank is the perpetrator of domestic violence and 

Deborah is the victim, the court ordered Frank to reimburse Deborah the full amount of 

temporary support she paid to him. Further, Frank wrongfully converted money from 

Deborah‟s trust during the trial, in the amount of $45,820. The court ordered Frank to 

reimburse all of Deborah‟s losses arising from the conversion. 

Finally, the court found that Deborah was required to defend herself from a 

fraudulent business transaction that Frank committed prior to marriage, causing Deborah 

to incur attorney fees in the amount of $876,000: the court ordered Frank to reimburse 
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Deborah these attorney fees. In addition, Deborah paid for Frank‟s attorney fees in this 

dissolution action, and Frank‟s conduct caused unnecessary litigation because Frank 

failed to follow court orders and engaged in domestic violence. The court ordered Frank 

to reimburse Deborah the $35,000 in attorney fees she paid on his behalf. 

DISCUSSION

1. Appeal and Review

Frank timely appeals from the judgment.2 Appeal may be taken from an order 

directing the performance of an act, or the payment of money or spousal support. (In re 

Marriage of Skelley (1976) 18 Cal.3d 365, 368-369.) The judgment is reviewed under a 

substantial evidence standard. “„“„When a finding of fact is attacked on the ground that 

there is no substantial evidence to sustain it, the power of an appellate court begins and 

ends with the determination as to whether there is any substantial evidence, contradicted 

or uncontradicted, which will support the finding of fact. [ ] When two or more 

inferences can reasonably be deducted from the facts, a reviewing court is without power 

to substitute its deductions for those of the trial court.‟”‟” (In re Marriage of Guo & Sun 

(2010) 186 Cal.App.4th 1491, 1497.) Custody and visitation orders are reviewed under a 

deferential abuse of discretion standard, to see whether the court advanced the best 

interest of the child. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)

2. Reimbursement for Separate Property Contributions

Appellant contends that he contributed $291,605.72 of his separate property to pay 

for improvements to real property owned by respondent. Appellant was not on title to the 

property. With respect to the property in Calabasas, respondent offered the testimony of 

an expert, Pamela Wax-Semus, a certified fraud examiner who has worked on “hundreds” 

of family law cases. She conducted an exhaustive method tracing of community and 

 

2 Frank‟s notice of appeal challenges 45 court orders dating from January 2007, in 

addition to the June 2011 judgment. Even assuming that there is jurisdiction to review 

prior orders (Code Civ. Proc., § 906), appellant‟s brief does not address any of the 

prejudgment orders listed in the notice of appeal; therefore, they are forfeited.
6

separate property, identifying $303,854.71 in improvements of which $303,105.72 came 

from respondent‟s separate property.

Appellant testified that he is a licensed general contractor and performed work on 

the residence, paid for by Spar & Associates (Spar), his company. Relying on checks that 

were not produced during discovery, appellant calculated that Spar paid $171,638.23 for

improvements to the Calabasas home in 2005, and $79,967.49 in 2006. Appellant stated 

that the draw he took from Spar was paid into a joint account with respondent and he 

believed that the money was used on the Calabasas property.3

The court found that appellant “failed to rebut [respondent‟s] tracing and proof of 

separate property improvement to the real property. [Appellant] attempted to claim 

gambling debt as improvement to the real property [ ] and was not credible in his 

testimony of his contribution to improvement and reimbursement to him.” As the trier of 

fact, the court was entitled to believe the tracing testimony of the expert witness and to 

disbelieve appellant‟s testimony. We do not reassess witness credibility on appeal: “The 

trier of fact is the exclusive judge of the credibility of the witnesses. [Citations.] The 

trial court is free to disbelieve and reject the testimony of witnesses even though they are 

uncontradicted and unimpeached.” (Maslow v. Maslow (1953) 117 Cal.App.2d 237, 

243.) The court‟s determination that respondent paid for improvements to the property—

and appellant did not—is supported by substantial evidence.

3. Reimbursement of Legal Fees

The trial court ordered appellant to reimburse respondent $876,000 for legal fees 

she incurred “to defend herself from the lawsuit that [appellant] caused by the fraudulent 

operation of his construction business,” in breach of appellant‟s fiduciary duty to her. 

The court took judicial notice of a statement of decision and heard testimony about an 

underlying lawsuit in which appellant was found to have breached his fiduciary duty to 

respondent. The fraud was committed by appellant before marriage, but the ensuing 

 

3 The judgment does not refer to a second property, the Lubao property, that 

appellant discusses. We only review matters raised by the judgment.
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litigation began during marriage. The court wrote that appellant “did not produce any 

evidence in defense of the claim.” 

Although the court did not cite authority for its award of legal fees, the statute 

relating to remedies for breach of fiduciary duty between spouses is Family Code section 

1101. The remedy for breach of fiduciary duty by a spouse “shall include” an award of 

attorney fees and court costs. (Fam. Code, § 1101, subd. (g).) Appellant cites neither 

trial testimony regarding the breach of fiduciary duty nor the underlying judgment that 

provoked the trial court‟s finding. Without appropriate citations to the evidence, we 

cannot assess the basis for the trial court‟s award of attorney fees for breach of fiduciary 

duty.4 Appellant‟s failure to thoroughly discuss the evidence in his brief prevents review.

4. Reimbursement of Spousal Support

Appellant initially received spousal support from respondent under a temporary 

support order made in 2007. At trial, the court ordered appellant to reimburse respondent 

for spousal support payments in the amount of $43,938, because respondent is the victim 

of domestic violence perpetrated by appellant, justifying a reallocation and adjustment of 

the support respondent paid. On appeal, appellant contends that respondent never made a 

request for reimbursement of spousal support, he had no notice of this issue, and in any 

event a court may not retroactively modify a prior order for temporary support.

With respect to notice, appellant failed to provide us with a proper record on 

appeal, so we cannot tell whether appellant had advance notice of the reimbursement 

issue. Appellant‟s legal argument with respect to support modification lacks merit. 

When a court specifically reserves jurisdiction to redistribute temporary support 

payments, it may subsequently modify the award because the temporary award is not 

 

4

In attacking the award, appellant relies upon Family Code section 2030, which 

allows parties to request a “need-based fees and costs award, and only if reasonably 

necessary for that party‟s maintenance or defense of the action.” (Hogoboom & King, 

Cal. Practice Guide: Family Law (The Rutter Group 2013) ¶ 14:125.) The trial court 

was clearly relying on the breach of fiduciary duty statute; it was not making a needbased attorney fee award. Section 2030 is inapposite.
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final or dispositive. (In re Marriage of Freitas (2012) 209 Cal.App.4th 1059, 1074-

1075.) The court in this case specifically retained jurisdiction to redistribute the 

temporary support award. 

Family Code section 4325 creates a presumption that a spouse who perpetrates 

domestic violence against the other spouse should not be awarded temporary or 

permanent spousal support, as a matter of public policy. (In re Marriage of Cauley 

(2006) 138 Cal.App.4th 1100, 1105-1107 [“victims of domestic violence [must] not be 

required to finance their own abuse”].) As the trial court found—and appellant did not 

rebut—appellant willfully violated protective and restraining orders made in the criminal 

and family courts, leading to multiple incarcerations during the dissolution trial. 

Appellant engaged in domestic violence toward respondent and Sienna. Substantial 

evidence supports the trial court‟s ruling reallocating the temporary support appellant 

received, based on his criminal history of domestic violence.

5. Custody and Visitation Order

The court gave respondent sole legal and physical custody of the parties‟ daughter 

Sienna. The court found that appellant “committed multiple acts of domestic violence 

against [respondent] within the past five years, including two incidents involving the 

Minor during this case, and that he has no insight on how his conduct affects his 

relationship with the Minor.” Appellant was incarcerated during trial because he cannot 

control his behavior and willfully violated court orders. He has “a serious drinking 

problem which has led to multiple arrests and multiple incarcerations during this case.” 

Appellant effectively abandoned his daughter, provided no proof of rehabilitation or 

completion of a batterer‟s or alcohol treatment program, or parenting class. He has not 

visited Sienna for over two years. 

Based on these factual findings, appellant was authorized to have monitored 

visitation after completing a therapeutic counseling regimen to address domestic 

violence, alcohol abuse, anger management and impulse control. Sienna‟s therapist was 

to determine the appropriateness of monitored visitation, and appellant was required to 

provide proof of compliance with Alcoholics Anonymous classes, criminal court orders, 
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and the terms of his criminal probation. Appellant was required to test for drugs and 

alcohol as a condition of visitation, to post a bond, and to surrender his passport. 

Appellant argues that the custody and visitation order is contrary to law and the 

child‟s best interests. Family Code section 3048 gives the trial court broad discretion in 

fashioning a custody and visitation order. The court may consider factors that indicate a 

risk of child abduction, including conduct designed to entice, withhold or conceal the 

child; a lack of strong ties of California; strong ties to another state or country; lack of 

financial reasons to remain in California; lack of parental cooperation; perpetration of 

child abuse and domestic violence; and a parental criminal record. (Fam. Code, § 3048, 

subd. (b)(1).) The court expressly listed each of those factors in its ruling. Appellant 

makes no effort to disprove the existence of those factors. 

After making the appropriate findings, the court may order supervised visitation; 

restrict the parent‟s right to remove or relocate the child; and require the surrender of 

passports. (Fam. Code, § 3048, subd. (b)(2).) It has “the widest discretion to choose a 

parenting plan that is in the best interest of the child.” (Fam. Code, § 3040, subd. (c).) 

The paramount concern is the child‟s health, safety and welfare. (Fam. Code, § 3020.) 

The court may determine the best interest of the child by considering a parent‟s history of 

abuse and habitual or continual use of drugs or alcohol. (Fam. Code, § 3011.) Given 

appellant‟s failure to provide a proper summary of the evidence (as opposed to quoting a 

few sentences favoring himself), we must assume that the record supports each and every 

finding and conclusion made by the trial court.

Appellant cites dependency cases for the proposition that the juvenile court may 

not delegate decisions over visitation to a child‟s therapist. The reasoning is that “[t]o 

provide the minor and/or his therapist with a veto power over this essential reunification 

service seems to us to undermine any hope of actual reunification.” (In re Nicholas B. 

(2001) 88 Cal.App.4th 1126, 1139.) Failure to reunify with the child can lead to 

termination of parental rights to the child. There are no family law cases similarly 

forbidding a child‟s therapist from limiting visits. Under the circumstances, where 

appellant perpetrated domestic violence, has been incarcerated for violating restraining 
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orders, was arrested for an altercation at the office of Sienna‟s therapist, and has not 

visited his young child for years because he refuses to pay for a monitor, we cannot say it 

is an abuse of discretion for a therapist to assess Sienna‟s fear of appellant before any 

visits occur.

6. Judicial Bias

Appellant cites the Canons of Judicial Ethics regarding a judge‟s duties to act 

impartially and diligently. Appellant does not quote any instances in the record showing 

bias. Instead, he argues that the judgment “smacks of a poisonous attitude.” Without 

showing any particular instances of bias, appellant cannot complain that the judge was 

biased simply because the judgment went against him. The judgment clearly sets forth 

the bases for the court‟s findings, many of which allude to appellant‟s history of 

alcoholism and domestic violence, expressing deep concern for the safety and welfare of 

appellant‟s child, inasmuch as a mental evaluation performed by the criminal court 

showed that appellant has no insight into his damaging behavior. 

Recognizing that appellant cannot control himself, the judgment serves as 

appellant‟s wake-up call to undergo rehabilitation to have a relationship with his child. 

Appellant may not wish to hear a blunt assessment of his failings as a husband and a 

father, but a judgment that lays out a roadmap for recovery is not evidence of judicial 

bias. Further, the judgment sets forth that appellant defrauded respondent on multiple 

occasions. Between his domestic violence, his criminal convictions and his fraud, 

appellant had very little credibility as a witness. 

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

ASHMANN-GERST, J. CHAVEZ, J.