Filed 6/24/13 Marriage of Stawicki CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of KELLIE and EARL 

STAWICKI.

KELLIE STAWICKI,

 Respondent,

v.

EARL STAWICKI,

 Appellant.

 G047141

 (Super. Ct. No. 10D001861)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Mark 

Millard, Judge. Affirmed.

Shafer & Associates and Mark H. Shafer for Appellant.

No appearance for Respondent.

* * *
2

In this marital dissolution matter, Earl Stawicki appeals from a judgment 

after trial. He contends the superior court erred when it made two evidentiary rulings. 

Kellie Stawicki did not file a brief in this court.1

With regard to the court‘s first ruling, Earl states: ―On May 3, 2012, the 

second day of trial, Respondent‘s counsel marked for identification Exhibit A . . . , 

Exhibit B . . . , and Exhibit C . . . . Exhibits A, B, and C were official written 

communications from the Internal Revenue Service, bearing the seal of the IRS. Counsel 

for Respondent moved the Court to allow Exhibits A through C into evidence, while 

counsel for Petitioner objected based on hearsay . . . . The Court sustained Petitioner‘s 

objection . . . .‖ [Fn. omitted.] 

The record on appeal contains no exhibits. The clerk‘s transcript from the 

superior court, which was received by this court on October 3, 2012, contains a clerk‘s 

note which states: ―The Superior Court is not in possession of designated Respondent‘s 

Exhibit Nos. A, B and C and all have been omitted.‖ 

With regard to the reporter‘s transcript, the following colloquy took place 

between the court and counsel: 

―[Earl‘s counsel]: I move to move exhibits A, B and C into evidence.

―[Kellie‘s counsel]: Object, your Honor, on the basis of hearsay with no 

proper exception for any three of the documents.

―The Court: Sustained.

―[Earl‘s counsel]: The foundation has been laid, your Honor, and I object 

to the ruling on that.

―The Court: Okay.

―[Earl‘s counsel]: Now I‘m going to go to some things --

―[The court]: It‘s still not authenticated as far as the court is concerned.

 

1 Because both parties have the same name, we refer to them by their first names. No 

disrespect is intended.
3

―[Earl‘s counsel]: I understand, your Honor.‖ 

We see nothing further in the record on appeal with regard to exhibits A, B 

or C. Nor does Earl cite to any more discussions of the exhibits in the record. 

Accordingly, Earl is arguing about documents which were marked as 

exhibits but never admitted into evidence, and copies of which are not part of the 

appellate record. It was Earl‘s burden, as the appellant, to present an adequate record for 

review. (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 402.) It was also his burden 

to cite this court to the portions of the record which support his argument. (California 

Rules of Court, rule 8.204.) Under the circumstances we find in this record, we conclude 

Earl has waived his first claim of error.

Earl next argues: ―The judge committed prejudicial error by not allowing 

Dr. Alex Naghibi to testify at trial regarding the tax issues of the community estate.‖ 

The entire testimony of Naghibi is as follows:

―[Earl‘s counsel]: Dr. Naghibi, what education do you have?

―[Naghibi]: I have a bachelor‘s degree and masters and Ph.D in 

administration and a law degree.

―[Earl‘s counsel]: But you‘re currently not an attorney in California; is that 

correct?

―[Naghibi]: I‘m waiting for my license or my bar exam result on the 18th.

―[Earl‘s counsel]: But you have been communicating with the IRS in 

gathering information on behalf of Mr Stawicki; is that right?

―[Naghibi]: Yes, I have.

―[Earl‘s counsel]: And in your communication with the IRS, have they 

stated that you owe — that he owes money to the IRS?

―[Kellie‘s counsel]: Objection. Hearsay.

―[Earl‘s counsel]: He is stating it from his own personal communication 

from the IRS.
4

―[The Court]: That‘s why I was wondering what his expertise. Is he 

somehow related - -

―[Earl‘s counsel]: He has personal knowledge of the tax – he has been 

gathering the information and also providing all the documentation that the IRS has 

requested regarding the back taxes owed by the business, which is community property.

―[The Court]: Well, I‘m just wondering what the exception is going to be 

to the hearsay rule. And that‘s why I tried to determine is he an expert on tax or 

something. That‘s what I‘m waiting for.

―[Earl‘s counsel]: Are you an expert on taxation?

―[Naghibi]: I‘m not an expert in taxation, but I - -

―[Kellie‘s counsel]: Objection. Nonresponsive after,  ̳I‘m not an expert in 

taxation.‘

―[Earl‘s counsel]: I have no further questions.

―[The court]: All right.

―[Kellie‘s counsel]: Nothing, your Honor.

―[The court]: You may step down.‖ 

The state of the record is that the court requested Earl‘s counsel to cite 

authority to support the use of Naghibi as a witness to issues in the matter. Instead of 

responding to the court‘s inquiry, or otherwise making an offer of proof, or even waiting 

until the court ruled on opposing counsel‘s objection, Earl‘s counsel opted to say he had 

no further questions.

Now, on appeal, Earl argues the court committed prejudicial error. ―A 

verdict or finding shall not be set aside, nor shall the judgment or decision based thereon 

be reversed, by reason of the erroneous exclusion of evidence unless the court which 

passes upon the effect of the error or errors is of the opinion that the error or errors 

complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) 

The substance, purpose, and relevance of the excluded evidence was made known to the 
5

court by the questions asked, an offer of proof, or by any other means; [¶] (b) The rulings 

of the court made compliance with subdivision (a) futile; or [¶] (c) The evidence was 

sought by questions asked during cross-examination or recross-examination.‖ (Evid. 

Code, § 354.) Since Earl did not preserve his second claim of error for appeal, we deem 

this issue to be waived as well

The judgment is affirmed. Appellant shall bear his own costs on appeal.

MOORE, J.

WE CONCUR:

O‘LEARY, P. J.

THOMPSON, J.