Filed 3/18/24 Rigg v. Childers CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ALETA NANCY RIGG et al.,

Respondents,

v.

DEBORAH JUNE CHILDERS,

Appellant.

 D081930

 (Super. Ct. No. EPR000744)

APPEAL from a judgment of the Superior Court of Imperial County, 

L. Brooks Anderholt, Judge. Affirmed.

Cohen Law Firm and Randall A. Cohen for Appellant.

Walker & Driskill, Mitchell A. Driskell; Dube Law Office and 

Douglas A. Dube for Respondents.

Chhokar Law Group, David G. Greco and Kristen A. Friedman for 

Norma A. Hampton as Amicus Curiae.

Deborah Childers appeals from a judgment entered in favor of Aleta 

Nancy Rigg, Loretta Ann Catania, Michelle Mildred Black, and Randall 

Grant Copp (petitioners) after a two-day bench trial on their claims for return 
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of trust property (Prob. Code, § 850, subd. (a)),1 imposition of a constructive 

trust, double damages for bad faith disposal of property belonging to trust 

beneficiaries (§ 859), and reasonable attorneys’ fees (ibid.). Deborah contends 

that the trial court mischaracterized the real properties at issue as 

community property, erred in concluding the properties were trust assets, 

misallocated trust assets, and found bad faith on Deborah’s part where it 

could not exist as a matter of law. We conclude that the record is inadequate 

for appellate review on the merits without a reporter’s transcript of the trial 

testimony or other proper substitute. We therefore presume the trial court 

ruled correctly and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND2

Carroll Childers and Judith Childers were married on February 8, 

1976. Carroll and Judith each had children from prior marriages. Carroll 

and Judith created the Childers Family Trust (the trust) on June 6, 1996. 

They restated the trust on May 20, 2009. 

Judith died in October 2010. Carroll married Deborah Childers in June 

2012. Carroll was 86 years old when he and Deborah married. Carroll died 

in October 2019. 

In July 2020, Judith’s four children (petitioners) filed a petition for 

recovery of trust property, removal of Deborah as trustee, and imposition of a 

constructive trust. After two rounds of demurrers, petitioners filed a second 

1 All further statutory references are to the Probate Code.

2 As we will explain, the appellate record Deborah provided is 

insufficient to support a complete factual and procedural summary based on 

the evidence admitted at trial. We therefore provide the following summary 

based on the pleadings, trial minute orders, and trial court’s statement of 

decision summarizing the evidence presented at trial. We deny Deborah’s 

request for judicial notice as unnecessary to the disposition of this appeal. 
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amended petition for judgment against Deborah, return of trust property, 

imposition of a constructive trust, and double damages under section 859. 

Also in July 2020, petitioners filed a notice of pendency of action (lis 

pendens), asserting that the petition they had filed earlier in the month 

affected title to or the right to possess two of the properties they claimed 

belonged to the trust. The two properties were referred to throughout the 

litigation as the Wixom house and the Dogwood property. Deborah filed a 

motion to expunge the lis pendens in March 2022. In April 2022, the trial 

court granted Deborah’s motion and expunged the lis pendens as to the 

Wixom house and Dogwood property. In September 2022, two months before 

trial, Deborah sold the Dogwood property for $600,000. 

A bench trial was held over the course of two days in October and 

November 2022. Petitioners Copp, Black, and Catania testified, as did 

Deborah. Phillip Krum, an attorney and certified specialist in estate 

planning, trust, and probate law who advised Carroll regarding the trust and 

its assets, and Thomas Brundy, who purchased a property from Carroll in 

2017, also testified on behalf of petitioners. 

At the close of testimony, Deborah’s counsel requested a statement of 

decision. The trial court directed counsel for both sides to prepare a proposed 

statement of decision. The court then issued its tentative decision, after 

which the parties had 15 days to file objections. Deborah filed objections, and 

the court requested supplemental briefing. 

The trial court issued its final statement of decision in February 2023, 

stating that it was “satisfied all issues necessary for the Court to make its 

decision have been addressed in this Statement of Decision.” In its statement 

of decision, the court briefly summarized the relevant testimony of the six 
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witnesses and noted that it found all of the witnesses to be credible except 

Deborah. 

The court first summarized Krum’s testimony and found him to be an 

expert in his area of specialty. According to the statement of decision, Krum 

testified that he advised Carroll on matters relating to the trust in 2014 and 

told him that after Judith died, the trust required him to allocate the trust 

properties into two sub-trusts—one for Judith as the decedent and one for 

Carroll as the survivor. The court found that Krum advised Carroll that he 

could not use the principal of Judith’s sub-trust until he exhausted all assets 

in his own sub-trust. Krum further advised Carroll that he could not revoke 

or amend the trust in any way that would change the beneficial interests of 

Judith’s sub-trust. 

In summarizing Deborah’s testimony, the trial court stated that it 

found her to be evasive and that she lacked credibility. In particular, the 

court found Deborah’s lack of recollection relating to the rental payments on 

one of the trust properties and the sale of the Dogwood property to lack 

credibility. On the latter, the court noted that although Deborah testified 

there was no money left from the $600,000 proceeds from the sale, tens of 

thousands of dollars appeared to be unaccounted for, and her inability to 

account for that money was not credible. The court further found she had 

failed to respond to petitioners’ request to produce records showing income 

and expenses, and the incomplete documentation of expenses she brought to 

trial, without backup or receipts, was not credible. Deborah also testified 

that Carroll directed her to write the February 2019 amendment to the trust, 

and the trial court found that her testimony regarding the purported trust 

amendment lacked credibility. It further found Carroll’s signature on the

trust amendment to be “suspect.” 
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The trial court took judicial notice of: (1) a petition filed in April 2011 

on Carroll’s behalf that transferred the Wixom house and a property referred 

to throughout the litigation as Farm Parcel 3 to the trust; (2) public records

admitted as trial exhibits showing that, after Judith died, Carroll sold or 

transferred to third parties several different properties; and (3) public records 

admitted as trial exhibits showing that Carroll transferred the Dogwood 

property, the Wixom house, and Farm Parcel 3 to himself and Deborah as 

joint tenants.

The court then made several findings of fact. It concluded that the 

Dogwood property, the Wixom house, and Farm Parcel 3, among others, were 

all properties of the trust and were also community property. The court

found that at the time of Judith’s death, the total value of the trust properties 

was $2,862,570, and upon her death, $1,431,285 should have been allocated 

to her sub-trust. However, Carroll failed to allocate any assets to Judith’s 

sub-trust. The court further concluded that Carroll had transferred or sold 

more than half of the value of the trust. Given that Carroll was required to 

exhaust his survivor’s sub-trust before he was permitted to access the 

principal of Judith’s sub-trust, the court found that all of the remaining 

properties must belong to Judith’s sub-trust. 

The court further found that Deborah’s sale of the Dogwood property 

during litigation was in bad faith and the $600,000 in proceeds from the sale 

should have been allocated to Judith’s sub-trust. It ultimately found that 

Deborah was wrongfully holding the title to the Wixom house and Farm 

Parcel 3, any rent accruing from those properties, and any remaining 

proceeds from the sale of the Dogwood property, and she therefore held all 

such property in constructive trust for the trust and petitioners. Finally, the 

court concluded that Carroll sold and transferred the trust properties after 
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his marriage to Deborah and that this invasion of the principal of Judith’s 

sub-trust was done to benefit Deborah and himself for reasons other than 

those allowed by the trust. 

Based on its findings of fact, the trial court found in favor of petitioners 

and against Deborah for all claims alleged in the second amended petition. 

The court ordered Deborah to execute quitclaim deeds for the Wixom house 

and Farm Parcel 3 transferring title to Catania, whom the court appointed as 

successor trustee, for the benefit of petitioners. The court further ordered 

Deborah to assign any and all rights to rents from Farm Parcel 3 to Catania

for the benefit of petitioners. It also awarded Catania double damages in the 

amount of $1,200,000 and attorneys’ fees under section 859, for Deborah’s 

bad faith sale of the Dogwood property. 

Deborah timely filed a notice of appeal.3

3 We granted an application from Norma A. Hampton to file an amicus 

curiae brief. She argues that because she owns a partial interest in Farm 

Parcel 3 and is an indispensable party but received no notice of the 

proceedings below, no relief granted by this court or the trial court can affect 

her property interest. We decline to consider her argument, which is not

among the contentions raised by the parties. (California Manufacturers & 

Technology Assn. v. State Water Resources Control Bd. (2021) 64 Cal.App.5th 

266, 278, fn. 8 [“[A]n appellate court will consider only those questions 

properly raised by the appealing parties. Amicus curiae must accept the 

issues made and propositions urged by the appealing parties, and any 

additional questions presented in a brief filed by an amicus curiae will not be 

considered.” (internal quotation marks omitted)]; see also Vosburg v. County 

of Fresno (2020) 54 Cal.App.5th 439, 462 [“ ‘The granting of leave to appear 

as amici curiae is not the full equivalent of intervention, for amici curiae are 

confined to legal argument, cannot plead or offer evidence, and cannot appeal 

from an adverse decision.’ ”].) We deny Hampton’s request for judicial notice 

for the same reasons. In any event, the trial court’s judgment is not suspect 

merely because Norma now claims to be an indispensable party not included 

in the proceedings below. The failure to join allegedly indispensable parties 

does not deprive a court of the power to make a legally binding adjudication 
7

DISCUSSION

Deborah contends that the trial court erred in concluding that the 

Wixom house, the Dogwood property, and Farm Parcel 3 were assets of the 

trust and were community property. She argues that the Wixom house and 

Farm Parcel 3 were Carroll’s separate property acquired before marriage, 

and the Dogwood property was held in joint tenancy and never conveyed to 

the trust, so it became Carroll’s sole property upon Judith’s death. She 

further argues that Carroll had the right to invade the principal of Judith’s 

sub-trust, and the trial court’s conclusion that Carroll did not do so for his 

health and welfare, which would have been allowed under the trust, was in 

error. 

Fatal to Deborah’s arguments is her failure to provide a reporter’s 

transcript or suitable substitute of the trial proceedings, and we conclude 

that the absence of an adequate record on appeal precludes a finding of error.

(Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186–

187 (Foust) [“ ‘Failure to provide an adequate record on an issue requires that 

the issue be resolved against [appellant].’ ”]; see also Gonzalez v. Rebollo

(2014) 226 Cal.App.4th 969, 977 [“Without a complete record, we are unable 

to determine whether substantial evidence supported the implied findings 

underlying the trial court’s order.”].) As the Supreme Court has explained, 

“the absence of a court reporter at trial court proceedings and the resulting 

lack of a verbatim record of such proceedings will frequently be fatal to a 

litigant’s ability to have his or her claims of trial court error resolved on the 

merits by an appellate court. This is so because it is a fundamental principle 

of appellate procedure that a trial court judgment is ordinarily presumed to 

between parties properly before it. (Golden Rain Foundation v. Franz (2008) 

163 Cal.App.4th 1141, 1155.)
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be correct and the burden is on an appellant to demonstrate, on the basis of 

the record presented to the appellate court, that the trial court committed an 

error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 

Cal.5th 594, 608–609 (Jameson).) “To put it another way, it is presumed that 

the unreported trial testimony would demonstrate the absence of error.” 

(Estate of Fain (1999) 75 Cal.App.4th 973, 992, italics added [affirming 

judgment after trial].)

“In numerous situations,” therefore, “appellate courts have refused to 

reach the merits of an appellant’s claims because no reporter’s transcript of a 

pertinent proceeding or a suitable substitute was provided.” (Foust, supra, 

198 Cal.App.4th at p. 186, citing cases [affirming judgment after trial on 

breach of contract claim where appellant failed to provide reporter’s 

transcript or other adequate statement of the evidence presented during 

trial]; see also Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 

Cal.App.4th 336, 348 [concluding that appellant had forfeited any challenge 

to the order compelling arbitration due to his failure to provide an adequate 

record of testimony and documentary evidence offered during 16-day 

hearing].) Although courts may exercise their discretion to resolve the appeal 

on its merits without a reporter’s transcript, this is generally only where the 

appeal does not involve live testimony or other evidentiary matters. (See, 

e.g., Gamma Eta Chapter of Pi Kappa Alpha v. Helvey (2020) 44 Cal.App.5th 

1090 [“But [respondent] does not argue the hearing included any live 

testimony or additional evidence. Because we independently review the trial 

court’s order denying the housing corporation’s motion to compel arbitration 

and the record before us includes all evidence considered by the trial court, a 

reporter’s transcript is not necessary.”]; Bel Air Internet, LLC v. Morales

(2018) 20 Cal.App.5th 924, 933 [“Bel Air does not claim that the hearing 
9

included any live testimony or the introduction of any other evidence.”]; 

Chodos v. Cole (2012) 210 Cal.App.4th 692, 699 [the court would review 

record without transcript in part because it had “no indication that witnesses 

testified or evidentiary issues arose at the hearing”].)

Here, by contrast, Deborah asks us to resolve several issues that were 

decided by the trial court after hearing the testimony of six witnesses at a 

two-day trial. Although Deborah does not rely on testimony or raise explicit 

sufficiency of the evidence arguments, the issues she raises all involve 

evidentiary considerations. For example, Deborah argues the court “made 

assumptions not supported by the evidence, . . . misallocated trust assets, and 

unfairly and improperly ordered the conveyance of property from decedent’s 

wife to decedent’s trust of which decedent’s step-children were the 

beneficiaries.” (Italics added.) We cannot determine whether the trial court 

made assumptions not supported by the evidence if we do not have all of the 

evidence before us. And although Deborah is correct that appellate courts 

independently review the interpretation of a contract or other document

“absent the admission of extrinsic evidence,” without a complete record, we 

cannot know whether extrinsic evidence was considered by the trial court. 

We ordered the parties to provide supplemental briefing on this issue. 

According to Deborah, her arguments on appeal do not require consideration

of the oral proceedings in the trial court and instead “require only a legal 

evaluation of whether the trial court’s conclusions are consistent with the 

documents presented as evidence.” She therefore contends that the record 

before us is adequate to determine whether the trial court erred as to each of 

the issues she raises. We do not agree.

Deborah first contends that the trial court erroneously concluded, 

“based solely on language in the trust, [and] not on any other evidence 
10

presented,” that the Wixom house and Farm Parcel 3 were separate property 

before conveyance into the trust but became community property upon that 

transfer. As an initial matter, Deborah mischaracterizes the court’s 

conclusion on this point, which was not necessarily that the Wixom house and 

Farm Parcel 3 were separate property—the court stated that, “regardless of 

[the properties’] character before it was transferred into the trust, [it] became 

trust property when transferred into the trust and [was] deemed to be 

community property.” But more importantly, we cannot conclude that the 

trial court made this finding based solely on language in the trust. The court 

did not say so in its statement of decision.4 Although the court stated that 

the May 20, 2009 Restatement of the trust “answers the question [of the 

properties’ character] on its face,” it did not refer to the document as the sole 

support for its conclusion. In fact, the court provided additional reasons in 

support of its finding that the two properties became community property

upon conveyance into the trust, including Carroll’s decision to petition the 

transfer of the properties into the trust rather than doing so with a simple 

quitclaim deed. A record of the testimony received at trial may not be 

relevant to this issue, but there is no way for us to determine that to be true.

Deborah’s next argument on appeal is that the Dogwood property was 

held in joint tenancy by Carroll and Judith and was never owned by the 

trust. She contends that the exhibits introduced at trial support her 

argument but that the trial court erroneously concluded the Dogwood 

property was in the trust “based solely on the fact that it was listed in a 

4 Nor was it required to do so. “[A] statement of decision need do no 

more than state the grounds upon which the judgment rests, without 

necessarily specifying the particular evidence considered by the trial court in 

reaching its decision.” (Richardson v. Franc (2015) 233 Cal.App.4th 744, 753, 

fn. 2, italics added and internal quotation marks omitted (Richardson).)
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distributive provision in the trust document.” Again, we have no way to 

confirm the accuracy of this assertion. The trial court did not make any such 

statement in its decision, nor was it required to list every fact supporting its 

conclusion. (See Richardson, supra, 233 Cal.App.4th at p. 753, fn. 2.)

Deborah similarly asserts that the trial court made its findings 

regarding the proper allocation of property to Carroll’s and Judith’s subtrusts based solely on the documents presented at trial rather than any

testimony, and she contends a transcript of the trial testimony is therefore

“irrelevant and unnecessary.” We are unpersuaded by this for the same 

reasons we have already explained. 

Deborah argues that to determine the character of real property upon 

the death of a spouse, there is a rebuttable presumption that the character of 

the property is as stated in the deed, and the burden is on the party seeking 

to rebut that presumption to establish that the property is held in some other 

way. Again, we cannot determine whether petitioners sufficiently rebutted 

this presumption without a complete record, as it is possible testimony was 

presented related to this issue that the trial court took into consideration. 

Indeed, petitioners contend that Krum testified about this issue, and their 

contention is supported by the trial court’s summary of Krum’s testimony in 

the statement of decision. We also do not know what, if any, testimony was 

presented regarding the purpose of Carroll’s invasion of the principal of 

Judith’s sub-trust and whether it was proper under the terms of the trust. 

Although Deborah claims the trial court’s conclusion that there was no 

evidence Carroll invaded the principal of Judith’s sub-trust for permissible 

reasons is “nonsensical,” we cannot reach the same conclusion without a 

complete record. As with Deborah’s other contentions, we must presume the 
12

unreported trial testimony would support the trial court’s findings. (Estate of 

Fain, supra, 75 Cal.App.4th at p. 992.)

Deborah’s final argument is that the trial court erred in finding that 

she acted in bad faith when she sold the Dogwood property. Unlike the other 

issues she raises on appeal, however, she does not assert that the trial court 

decided this claim based solely on the documents. 

Although in certain cases the issue of bad faith could be decided as a 

matter of law, we conclude that this is not one of them. Deborah asserts that 

“the court identifies no facts in its final [statement of] decision to support the 

conclusion that the sale was in bad faith” and that “[a]lthough the court did 

not find her testimony credible, there is nothing in her testimony (as stated in 

the court’s decision) regarding the circumstances surrounding the sale of the 

Dogwood Property.” (Italics added.) But, as we have explained, the trial 

court was not required to include all facts it considered or relied on in its 

statement of decision. (Richardson, supra, 233 Cal.App.4th at p. 753, fn. 2; 

see also Duarte Nursery, Inc. v. California Grape Rootstock Improvement

Com. (2015) 239 Cal.App.4th 1000, 1012 [“A court’s statement of decision 

need not respond to every point raised by a party or make an express finding 

of fact on each contested factual matter; it need only dispose of all basic 

issues and fairly disclose the court’s determination as to ultimate facts and 

material issues in the case.”].) Without a transcript or settled statement, we 

must presume all facts in favor of the judgment (Estate of Fain, supra, 75 

Cal.App.4th at p. 992), and we cannot say there are no possible facts that 

could support the trial court’s bad faith finding. Moreover, the statement of 

decision indicates that Deborah did testify regarding the sale of the Dogwood 

property, which supports the conclusion that there was evidence presented at 

trial relevant to the bad faith issue that is not in the record before us. Under 
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these circumstances, the lack of record of trial testimony is fatal to Deborah’s 

ability to have her claim resolved on the merits. (Jameson, supra, 5 Cal.5th 

at p. 608.) 

In sum, we conclude Deborah has failed to meet her burden in showing 

any error in the trial court’s decision.

DISPOSITION

The judgment is affirmed. Respondents are awarded their costs on 

appeal.

BUCHANAN, J.

WE CONCUR:

O’ROURKE, Acting P. J.

IRION, J.