Filed 7/20/23 Marriage of Adler CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of MARK J. ADLER and 

YANINA ADLER.

________________________________________

MARK J. ADLER,

Respondent.

 

 v.

 

YANINA ODIN,

Appellant,

 D080116

(Super. Ct. No. DN181729)

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

Patti Ratekin, Commissioner. Affirmed. 

Yanina Odin, in pro per., for Appellant. 

Higgs Fletcher & Mack, John Morris, Steven M. Brunoli, and Rachel M. 

Garrard for Respondent. 

In this dissolution action, the trial court found the premarital 

agreement (PMA) signed by Yanina Adler and Mark Adler (together, the 

parties) was enforceable. Yanina appealed from the subsequent bench trial 

on reserved issues arguing that the trial court erred in determining her 
2

claims for: (1) reimbursement of income tax payments; (2) recalculation of 

the benefits paid at the termination of a defined benefit pension plan that the 

parties created for themselves; and (3) reimbursement of the salary she 

earned at the parties’ corporation. We concluded the trial court committed a 

legal error by requiring nontaxable transfers of money between spouses be 

treated as taxable income in determining whether either party was entitled 

to reimbursement of income tax payments but otherwise rejected Yanina’s 

arguments. (Adler v. Superior Court of San Diego County (Apr. 8, 2021, 

D075033) [nonpub. opn.] (Adler I).)1 We remanded the matter to the trial

court for further proceedings on the income tax issue. 

Yanina represented herself on the remanded issue. The trial court 

concluded that Yanina had not met her burden of proof and filed a new 

judgment rejecting this final aspect of her original claim. This appeal 

followed. Yanina, who continues to represent herself, asserts the trial court 

1 On our own motion, we take judicial notice of the record in the 

prior appeal, Adler I, supra, D075033. (Evid. Code, §§ 459, subd. (a), 

452, subd. (d)(1).) 
3

erred in resolving the income tax issue. We reject her arguments and 

affirm.2

FACTUAL AND PROCEDURAL BACKGROUND

1. Background3

Among other things, the parties disputed the meaning of 

paragraph 14 in their PMA which addressed income tax returns. The 

trial court found paragraph 14 to be ambiguous and provided a 

mechanism to resolve the income tax issue. In Alder I, Yanina argued 

the trial court committed legal error by requiring reimbursed funds be 

treated as “community property income” to then be reported on the 

2 Mark notes that Yanina is a vexatious litigant subject to a prefiling order but did not attach to her opening brief a VL-100 form under 

Code of Civil Procedure section 391, subdivision (a), or obtain 

permission from the presiding justice to permit her to maintain this 

appeal in pro per. He also complains that: (1) the opening brief fails to 

cite to the record and addresses facts and arguments resolved in Adler 

I; and (2) Yanina did not include in the record all necessary documents 

(Cal. Rules of Court, rule 8.252). He urges us to overlook these 

deficiencies and resolve this appeal on its merits. Mark also lists 

substantive defects in Yanina’s opening brief, including the failure to 

use a separate heading or subheading for each point, not supporting 

issues raised with legal argument or citation to authority, and 

misrepresenting or omitting relevant facts. 

On May 4, 2022, we issued an order granting Yanina permission 

to appeal. (Code Civ. Proc., § 391.7, subd. (b).) We exercise our 

discretion to disregard the deficiencies in Yanina’s opening brief and 

those arguments that go beyond the narrow issue presented in this 

appeal. (Cal. Rules of Court, rule 8.204(e)(2)(C) [a reviewing court may 

“[d]isregard the noncompliance” of a filed brief].)

3 The parties are aware of the factual and procedural background 

of this case summarized in Adler I, which is included in the record.

Accordingly, we present an abbreviated background leading to the 

proceedings on remand at issue in this appeal. 
4

parties’ separate property returns because it created taxable income 

where none existed. We concluded that reimbursed taxes did not 

qualify as taxable income and the trial court committed a legal error by 

requiring nontaxable transfers of money between spouses be treated as 

taxable income. We also concluded that “[t]he only issue before the 

court was whether one of [the parties] paid too much [income tax] 

(according to the provisions of the PMA) and was, therefore, entitled to

reimbursement.” We vacated a portion of the trial court’s orders and 

remanded the matter “to the trial court for further proceedings on the 

income tax issue.”

2. Pre-trial Proceedings on Remand

In August 2021, the trial court held a hearing at which Mark

appeared through counsel and Yanina appeared in propria persona to 

address the remanded issue. The court informed the parties, “The 

appellate court told me what I need. I need those tax returns done.” It 

ordered the parties to have their tax returns completed so it could 

resolve this remaining issue and trailed the matter to September 21. 

In September, Mark filed a trial brief informing the court that 

the hearing on the remanded issue should take less than one hour 

because the necessary data to resolve the issue pursuant to the 

Internal Revenue Code did not exist. At the hearing on September 21, 

the court stated the tax issue was overturned on appeal based on 

Yanina’s failure to provide evidence to decide the issue. 

3. Trial on Remand and the Court’s Ruling

Trial proceeded on December 21, with Yanina again appearing in 

propria persona. The court stated that it received no pleadings except 

for a late filed lodgment from Yanina. During opening statements, 
5

Mark’s counsel asserted there should be no reimbursement to either 

party. The court swore in Yanina to allow her to argue and testify 

regarding the tax issue. The court did not allow her to address how the 

tax calculations were made because she did not have any “personal 

knowledge,” was “not an expert,” and “can’t testify about [that].” 

Yanina disagreed with Mark’s contention that tax returns and 

the data necessary to effect accurate disposition of any tax liability 

pursuant to the Internal Revenue Code did not exist. She claimed this 

contention was false and that her tax overpayment could be calculated 

“directly from my W-2, filed 1040 schedule E, and available to all tax 

table IRS tax tables for 2001 to 2015 – 14.” When Yanina again 

insisted that the filed tax data existed, the court interrupted, noting:

“One of the things that’s been a constant problem in this case, ma’am, 

is the burden of proof issue is your idea for a burden of proof is 

everything is his responsibility to do. You have a burden of proof. You 

have a claim. You have a burden of proof. You have an obligation to 

produce the evidence to support your claim. [Mark’s counsel] is arguing 

that everything that you provided is either hearsay or it is an expert 

that’s not here to testify, and he is right.” After hearing additional 

argument by Yanina and reply by Mark’s counsel, the court found it did 

not have the information to comply with paragraph 14 of the PMA.

In its final judgment, the court stated it received no evidence to 

decide what each party’s separate tax liability would have been under 

paragraph 14 of the PMA and to determine this issue it needed

separate tax returns for each party prepared by a tax expert. Because 

the court lacked this information, it exercised the severability clause 
6

contained in the PMA to remove paragraph 14 from the PMA as void 

based on the lack of evidence. Yanina timely appealed.

DISCUSSION

I. Legal Principles

Although Yanina is representing herself on appeal, she “is to be 

treated like any other party and is entitled to the same, but no greater 

consideration than other litigants and attorneys.” (Barton v. New 

United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) 

Thus, she is bound to follow the most fundamental rule of appellate 

review “that the judgment or order challenged on appeal is presumed to 

be correct, and it is the appellant’s burden to affirmatively demonstrate 

error. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) To 

demonstrate error, an appellant “must present meaningful legal 

analysis supported by citations to authority and citations to facts in the 

record that support the claim of error.” (In re S.C. (2006) 138 

Cal.App.4th 396, 408.) A reviewing court will not search the record to 

ascertain whether it supports the appellant’s arguments, nor will it 

make the appellant’s arguments for them. (Inyo Citizens for Better 

Planning v. Inyo County Bd. of Supervisors (2009) 180 Cal.App.4th 1, 

14.) 

Where, as here, “the trier of fact has determined that the party 

with the burden of proof did not carry its burden and that party 

appeals, ‘it is misleading to characterize the failure-of-proof issue as 

whether substantial evidence supports the judgment.’ [Citations.] 

Instead, ‘where the issue on appeal turns on a failure of proof at trial, 

the question for a reviewing court becomes whether the evidence 

compels a finding in favor of the appellant as a matter of law.’ 
7

[Citation.] Specifically, we ask ‘whether the appellant’s evidence was 

(1) “uncontradicted and unimpeached” and (2) “of such a character and 

weight as to leave no room for a judicial determination that it was 

insufficient to support a finding.” ’ ” (St. Mary & St. John Coptic 

Orthodox Church v. SBC Ins. Services, Inc. (2020) 57 Cal.App.5th 817, 

828–829.) 

II. Analysis

Yanina contends the trial court erred when it deleted paragraph 

14 from the PMA and this error deprived her the ability to obtain 

reimbursement from Mark on income taxes she overpaid. She asserts 

Mark’s counsel filed declarations falsely stating tax records from 2001 

to 2014 during the parties’ marriage are not available. Yanina claims 

she provided the trial court with “court-certified Lindsay & Brownell 

LLP accounting calculations” prepared as if she had filed separately 

during the marriage as required by paragraph 14 of the PMA. She 

asserts the tax documents needed to calculate her tax overpayment are 

available, referencing her opening brief in Adler I. Finally, she claims 

her “W2s, Sch. E and IRA Tax Tables” are sufficient to satisfy our 

directive in Adler I and calculate her tax overpayment. 

First, Yanina submits Lindsay & Brownell LLP prepared 

calculations showing her separate tax liability as required by 

paragraph 14. The trial court rejected this evidence as inadmissible 

hearsay.4 Yanina has not challenged this evidentiary ruling on appeal

and has forfeited any claim that we should consider this evidence. 

4 Inadmissible hearsay evidence is “evidence of a statement that 

was made other than by a witness while testifying at the hearing . . . 

that is offered to prove the truth of the matter stated.” (Evid. Code, 

§ 1200.) 
8

(Behr v. Redmond (2011) 193 Cal.App.4th 517, 538 [failure to brief 

issue “constitutes a waiver or abandonment of the issue on appeal”].) 

She next asserts the tax documents needed to calculate her tax 

overpayment are available, referencing pages 44 and 45 of her opening 

brief in Adler I. At these pages, Yanina’s appellate attorney 

represented in a footnote that Yanina obtained from Mark the parties’ 

joint tax returns for 2001-2008 and 2013 and “both parties now have all 

relevant returns. . . .” Assuming the veracity of this statement, Yanina 

does not explain why these records were not submitted to the trial 

court or how these joint returns will enable her to calculate her 

separate tax liability. Finally, Yanina claims her “W2s, Sch. E and IRA 

Tax Tables” are sufficient to satisfy our directive in Adler I and 

calculate her tax overpayment. However, as the trial court explained, 

Yanina needed to provide these source documents to a tax expert to 

produce a separate tax return and this was never done.

Based on the lack of evidence, the trial court was unable to make 

an order complying with paragraph 14 of the PMA. Accordingly, the 

trial court did not err when it severed this paragraph from the PMA as 

void through the severability clause contained in the PMA. Because 

Yanina has failed to meet her burden of showing the trial court erred, 

we affirm the January 6, 2022, judgment rejecting her tax 

reimbursement claim. 
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DISPOSITION

The January 6, 2022, judgment rejecting appellant’s tax 

reimbursement claim is affirmed. Respondent is entitled to his costs on 

appeal. 

O’ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P.J.

IRION, J.