Filed 10/16/20 Marriage of Minkovitch CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re the Marriage of LINA and 

YAN MINKOVITCH.

 B297022, B300374,

 B301994

 (Los Angeles County

 Super. Ct. No. BD630832)

LINA MINKOVITCH,

Respondent,

v.

YAN MINKOVITCH,

Appellant.
2

APPEALS from a judgment and postjudgment orders of the 

Superior Court of Los Angeles County, John A. Slawson and 

Helen Zukin, Judges. Affirmed in part and dismissed in part.

Yan Minkovitch, self-represented litigant, for Appellant.

No appearance for Respondent.

__________________________

I. INTRODUCTION

In this consolidated appeal, appellant Yan Minkovitch 

(husband) challenges a judgment of dissolution and several 

postjudgment orders. In case number B297022, husband 

contends that the trial court erred in: allocating the parties’ 

former home (residence) to Lina Minkovich (wife); allocating a 

tax liability solely to husband; and calculating husband’s income

for purposes of child support. In case number B300374, husband

challenges the court’s denial of his postjudgment motion to 

“clarify” an earlier order and the court’s denial of his motion to

set aside the judgment pursuant to Code of Civil Procedure 

section 473, subdivision (b). Finally, in case number B301994, 

husband challenges the court’s denial of his motion to modify the 

custody order. We will dismiss the appeal from the order denying 

the motion for clarification. We otherwise affirm.
3

II. PROCEDURAL BACKGROUND

A. Dissolution Petition

Husband and wife married on April 6, 2007, and had two 

daughters together. They separated on November 17, 2015. On 

November 20, 2015, wife petitioned for dissolution of marriage.

B. Judge Tamzarian’s August 9, 2016, Order

On June 24, 2016, following the sale of the residence, wife 

filed a request for an order allowing immediate distribution of the 

sales proceeds from the escrow account.

On August 9, 2016, Judge Armen Tamzarian ordered, 

among other things, that:

“[Wife] may withdraw $10,000 from the escrow account and 

h[a]lf for deposit. If [husband] is more than 5 days late on any 

support payment, [wife’]s counsel may withdraw the support 

amount. [Wife’s] counsel is to immediately notify [husband] in 

writing and reflect the remaining balance in the account.”

C. Dissolution Trial

The dissolution trial commenced on November 15, 2018, 

before Judge John A. Slawson. It concluded on 

December 19, 2018.

On April 2, 2019, Judge Slawson issued the judgment of 

dissolution. Among other things, the court granted the parties 

joint custody of the children. The court also ordered husband to 

pay child support.
4

D. Husband’s Notice of Appeal and Subsequent Motions

On April 15, 2019, husband filed three documents with the 

trial court. First, he filed a notice of appeal from the 

April 2, 2019, judgment.

Second, he filed a request for order, specifically, “FOR 

CLARIFICATION OF THE COURT’S ORDER OF 8/9/2016, 

MADE BY [JUDGE] ARMEN TAMZARIAN.”

Third, he filed a request for relief from the judgment of 

dissolution pursuant to Code of Civil Procedure section 473, 

subdivision (b).

Husband’s request for clarification was assigned to Judge 

Helen Zukin, who conducted a hearing on the request on 

May 15, 2019. Judge Zukin denied husband’s request.

On May 30, 2019, Judge Slawson heard the motion for 

relief from judgment. The court concluded that it did not have 

jurisdiction to rule on the motion and on July 2, 2019, denied it.

On August 29, 2019, husband filed notices of appeal, 

purporting to appeal from the May 15, 2019, and July 2, 2019, 

orders.

E. Request for Modification of Child Custody and Visitation

On June 24, 2019, husband filed a request to modify the 

child custody order.

On September 11, 2019, Judge Zukin, following a hearing, 

denied husband’s request for modification.

On October 18, 2019, husband filed a notice of appeal.
5

III. DISCUSSION

A. Appeal of Judgment of Dissolution

1. Background

During the marriage, in February 2013, husband and wife 

purchased the residence. Husband, who was, among other 

things, a real estate agent, acted as the agent for the purchase. 

On or about February 15, 2013, the sellers transferred the 

residence by grant deed to wife, “a married woman, as her sole 

and separate property.” At around the same time, husband 

signed a quitclaim (interspousal deed), transferring his interest 

in the residence to wife, as her sole and separate property.

1

In explaining why the transaction had been structured in 

this manner, husband testified that he wanted to apply the 

commission he earned from the transaction to the down payment 

for the residence but would be unable to do so if he were “part of 

the purchase.” As to the reason for the interspousal transfer, 

husband testified: “[A]t the time I was working through my tax 

issues. So in order to not cloud the title with my tax issues, I 

quitclaimed my interest off until I could resolve those tax issues.”

Husband’s “tax issues” included a $195,000 debt that he

owed to the IRS for his failure to pay taxes for the years 2010 and 

1 We recite the facts based on husband’s testimony at trial, 

which was that these documents were signed at around the same 

time. The actual deeds are not part of the record on appeal. 

Later, husband’s counsel contended (contrary to the testimonial 

evidence) that the interspousal deed was executed prior to the 

grant deed, which contention the court rejected.
6

2011.

2 During the course of their marriage, wife and husband 

did not file joint tax returns and the IRS sought to recover the tax 

debt from husband only. The IRS placed a lien on the residence.

Husband had also failed to pay taxes for years 2002 to 

2006, prior to the marriage. The lien on the residence, however, 

was based only on husband’s failure to pay taxes for 2010 and 

2011.

Husband and wife maintained separate bank accounts 

during their marriage. In 2018, wife earned $50,835.69 in wages 

and had no other source of income. Wife regularly took out cash, 

or “payday loans,” in order to pay her monthly bills.

Husband worked as a loan officer and real estate agent for 

a company called Mortgage Mavens, for which he received 

commissions, as reflected in Form 1099s. In addition, husband 

controlled various other companies. Husband earned income 

through both wages and commissions, as reflected in W-2s and 

Form 1099s, which husband submitted for review by the court. 

Husband’s Form 1099s showed the following earnings for the 

following years: $182,613 for 2012, $236,544 for 2013, and 

$173,817 for 2015.3

The trial court made certain findings, which it incorporated 

into its judgment of dissolution. As relevant here, the court 

concluded that the residence belonged to wife as her separate 

2 Although wife’s counsel proffered that husband owed over 

$142,000 in taxes, a notice of levy that is part of the record in 

case number B301994 reflects that the total amount due, as of 

August 9, 2016, was $195,286.02.

3 The parties referred to a Form 1099 for 2014 but did not 

state on the record husband’s earnings for that year.
7

property. The court further found that “[husband] had 

experience, education, and history such that he was 

knowledgeable on the interspousal transfer deed and its 

consequences.”

The trial court found that the community debts exceeded 

community assets. Therefore, the court exercised its discretion 

under Family Code4 section 2622, subdivision (b) to allocate the 

tax liability to husband only. It stated, “In exercising its 

equitable abilities under the statute, the Court [finds] that it 

would be completely inequitable to burden [wife] with a debt that 

the [IRS] is pursuing against [husband] and not even pursuing 

against [wife].”

Finally, the trial court calculated the parties’ income based 

on their submitted W-2s and, in husband’s case, also his Form

1099s. The court calculated wife’s income to be $72,000 and 

husband’s income to be $80,000, comprised of $21,600 from 

employee wages and $58,400 from self-employment. Husband’s 

counsel agreed with the court’s calculations. Further, husband

did not object after the court stated: “Let’s take our time and 

make sure we’re right. But you both [counsel for husband and 

counsel for wife] have agreed. So I’m going to blame it back on 

you if there’s an error there somewhere.”

When the trial court asked the parties their positions on its 

tentative decision to order husband to pay $131 monthly in child 

support, husband’s counsel stated: “My client submits on that. 

We agree with the tentative.” Husband added, “Yes, sir.”

4 Further statutory references are to the Family Code unless 

otherwise indicated.
8

2. Legal Analysis

On appeal, husband challenges the judgment of dissolution, 

contending that the court erred in: (1) finding that the residence 

was wife’s separate property, (2) allocating the tax liability solely 

to him, and (3) calculating husband’s income for purposes of child 

support.

“The trial court is generally required to ‘divide the 

community estate of the parties equally.’ (§ 2550.) In satisfying 

this mandate, ‘the court must distribute both the assets and the 

obligations of the community so that the residual assets awarded 

to each party after the deduction of the obligations are equal.’ 

[Citations.]” (In re Marriage of Walrath (1998) 17 Cal.4th 907, 

924.)

As a general rule, property acquired by spouses during 

marriage, including earnings, is community property. (In re 

Marriage of Bonds (2000) 24 Cal.4th 1, 12; see § 760; see also In 

re Brace (2020) 9 Cal.5th 903, 914–915 [Evid. Code, § 662’s title 

presumption does not apply if it conflicts with § 760].) As an 

exception to the general rule, “[m]arried persons may, through a 

transfer or an agreement, transmute—that is, change—the 

character of property from community to separate or from 

separate to community. ([ ] § 850.) A transmutation of property, 

however, ‘is not valid unless made in writing by an express 

declaration that is made, joined in, consented to, or accepted by 

the spouse whose interest in the property is adversely affected.’

([§§ 850,] 852, subd. (a).) To satisfy the requirement of an 

‘express declaration,’ a writing signed by the adversely affected 

spouse must expressly state that the character or ownership of 

the property at issue is being changed.” (In re Marriage of Valli
9

(2014) 58 Cal.4th 1396, 1400.) Further, “[i]f one spouse secures 

an advantage from the transaction, a statutory presumption 

arises under section 721 that the advantaged spouse exercised 

undue influence and the transaction will be set aside.” (In re 

Marriage of Mathews (2005) 133 Cal.App.4th 624, 628–629.) The 

presumption, however, is rebutted if the advantaged spouse can 

demonstrate that the disadvantaged spouse acted freely and 

voluntarily, with “‘“‘“full knowledge of all the facts, and with a 

complete understanding of the effect of ” the transaction.’”’ 

[Citation.]” (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1353.)

“‘To the extent that community debts exceed total 

community and quasi-community assets, the excess of debt shall 

be assigned as the court deems just and equitable, taking into 

account factors such as the parties’ relative ability to pay.’ 

(§ 2622, subd. (b).)” (In re Marriage of Walrath, supra, 17 Cal.4th 

at p. 924.)

We review the trial court’s findings on the characterization 

of assets for substantial evidence. (In re Marriage of Fink (1979) 

25 Cal.3d 877, 887; In re Marriage of Campi (2013) 212 

Cal.App.4th 1565, 1572.) “But de novo review is appropriate 

where resolution of ‘the issue of the characterization to be given 

(as separate or community property) . . . requires a critical 

consideration, in a factual context, of legal principles and their 

underlying values, the determination in question amounts to the 

resolution of a mixed question of law and fact that is 

predominantly one of law.’ (In re Marriage of Davis (2004) 120 

Cal.App.4th 1007, 1015 . . . , citing In re Marriage of Lehman[ 

(1998)] 18 Cal.4th [169,] 184.)” (In re Marriage of Rossin (2009) 

172 Cal.App.4th 725, 734.)
10

We review the court’s assignment of debt under section 

2622, subdivision (b) for abuse of discretion. (See In re Marriage 

of Vanderbeek (1986) 177 Cal.App.3d 224, 234.)

a. Residence

Husband does not dispute that the interspousal transfer 

deed is a writing signed by him. Instead, he contends that the 

trial court erred in allocating the residence to wife as her 

separate property because it failed to consider the statutory 

presumption of undue influence5 and its finding that the 

residence was wife’s separate property therefore was not 

supported by substantial evidence. We disagree.

First, “[w]e presume the trial court knew and properly 

applied the law absent evidence to the contrary.” (McDermott 

Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 

1103.) Thus, even if the court had not referred to the 

presumption of undue influence, we could presume that the court 

applied it. But, here, the court stated that husband “had 

experience, education, and history such that he was 

knowledgeable on the interspousal transfer deed and its 

consequences,” which was an implicit finding that wife had 

rebutted the presumption of undue influence. That finding was 

supported by evidence that husband was a real estate agent and 

loan officer. Further, far from claiming that he was ignorant of 

the ramifications of either the grant deed or the interspousal 

deed, he testified that he had structured the transaction to 

5 Husband concedes that his counsel failed to raise this 

argument before the trial court. We will exercise our discretion 

to consider the matter.
11

transfer title to wife, in order to obtain a commission to which he 

would not otherwise be entitled and to avoid encumbering the 

residence with his tax liability. Thus, there was sufficient

evidence that husband acted freely and voluntarily, indeed, 

strategically, with “‘“‘“full knowledge of all the facts, and with a 

complete understanding of the effect of” the transaction.’’’’” 

(Lintz v. Lintz, supra, 222 Cal.App.4th at p. 1353.)

b. Tax Liability

We next consider husband’s contention that the trial court 

erred in allocating the tax liability solely to him. We see no 

abuse of discretion in the court’s conclusion that the equities 

supported such an allocation. Despite his high earnings, 

husband for many years did not pay any taxes. Indeed, husband 

had a long history, predating his marriage, of avoiding tax 

payments. Further, husband and wife maintained separate bank 

accounts during the marriage and wife frequently took out 

payday loans to pay her monthly expenses, which suggested that 

she did not enjoy the benefits of husband’s tax avoidance. 

Finally, husband had a history of earning higher income than did 

wife, which supported a finding that he was better able to repay 

the tax debt. (See In re Marriage of Vanderbeek, supra, 177 

Cal.App.3d at p. 235.)
12

c. Imputation of Income for Child Support

Finally, we conclude that husband has waived any 

challenge to the trial court’s calculation of his income. Not only

did husband fail to object to the court’s calculation of income, he 

expressly submitted to the court’s tentative order that he pay 

$131 monthly in child support. (In re Marriage of Calcaterra & 

Badakhsh (2005) 132 Cal.App.4th 28, 37 [“‘[T]to conserve judicial 

resources, any errors [to the calculation of income] must be 

brought to the trial court’s attention at the trial level while the 

[theoretical] error can still be expeditiously corrected’”].)

B. May 15, 2019, Order Denying Request for Clarification

1. Background

As discussed above, on August 9, 2016, Judge Tamzarian 

issued an order, which stated, in part: “[Wife] may withdraw 

$10,000 from the escrow account and h[a]lf for deposit. If 

[husband] is more than 5 days late on any support payment, 

[wife’s] counsel may withdraw the support amount. [Wife’s] 

counsel is to immediately notify [husband] in writing and reflect 

the remaining balance in the account.” There is no reporter’s 

transcript, settled statement, or agreed statement of the hearing 

in the record. Wife subsequently withdrew $10,000 from escrow

(first $10,000 withdrawal).

During the course of the dissolution trial, the trial court 

found that husband owed $19,565 in child support arrearages. 

Husband sought certain credits against this amount. Husband’s

counsel requested a $10,000 credit for funds that wife had 
13

withdrawn from escrow pursuant to the parties’ March 9, 2017, 

stipulation (second $10,000 withdrawal). Husband’s counsel 

expressly distinguished the second $10,000 withdrawal, which 

she referred to as “the additional 10,000,” from the first $10,000 

withdrawal. The parties disputed whether the March 9, 2017, 

stipulation permitted reallocation of the second $10,000 

withdrawal. The court referred to Judge Tamzarian the issue of 

whether the second $10,000 withdrawal was subject to 

reallocation.

6

Husband’s counsel then requested a $10,000 credit for the 

first $10,000 withdrawal. The court denied that request, noting 

that because the residence was wife’s separate property, any 

money that she withdrew from the proceeds of its sale should not 

be credited against husband’s child support arrearages. The 

court’s judgment specified that “the $10,000 drawn from the 

escrow account containing proceeds from the sale of [the 

residence] . . . pursuant to Court Order of August 9, 2016 subject 

to reallocation, was drawn from [wife’s] separate property funds, 

and as such, does not constitute a child support payment made by 

[husband].” The court added that it “reserve[d] for Judge . . . 

Tamzarian to determine” whether the second $10,000 withdrawal

“is subject to reallocation.”

On April 15, 2019, husband filed a request “FOR 

CLARIFICATION OF THE COURT’S ORDER OF 8/9/2016, 

MADE BY [JUDGE] ARMEN TAMZARIAN.” Husband asserted 

that during the dissolution trial, Judge Slawson “had some 

trouble determining whether or not the funds so expended were 

proper[l]y allocated to defray [husband’s] support obligations.” 

6 The court preliminarily credited the second $10,000 against 

the arrearages.
14

Husband requested that the first $10,000 withdrawal be credited 

against his arrearages.

The matter was reassigned to Judge Helen Zukin, who, on 

May 15, 2019, held a hearing on husband’s request. After 

reviewing the dissolution trial transcript and the judgment, 

Judge Zukin denied husband’s request for clarification. That 

same day, the court issued a minute order denying husband’s 

request.

2. Legal Analysis

“The right to appeal is wholly statutory.” (Dana Point Safe 

Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) 

Husband contends that Judge Zukin’s order denying his request 

for clarification is appealable pursuant to Code of Civil Procedure 

section 904.1, subdivision (a)(2).

7 We disagree.

“Although Code of Civil Procedure section 904.1, 

subdivision (a)(2) makes appealable ‘an order made after a 

judgment made appealable by paragraph (1),’ this does not 

literally mean that any order after a previous judgment is 

appealable.” (In re Marriage of Ellis (2002) 101 Cal.App.4th 400, 

403.) Specifically, “‘[t]o be appealable, a postjudgment order 

must satisfy two additional requirements . . . . [¶] The first 

requirement . . . is that the issues raised by the appeal from the 

order must be different from those arising from an appeal from 

the judgment . . . . [¶] The second requirement . . . is that “the 

7 In his brief, husband asserted the order was appealable 

pursuant to Code of Civil Procedure section 904.2. We presume 

this was an unintentional error, as that section applies to appeals 

from limited civil cases.
15

order must either affect the judgment or relate to it by enforcing 

it or staying its execution.”’” (In re Marriage of Corona (2009) 

172 Cal.App.4th 1205, 1217.) The May 15, 2019, order does not 

satisfy the first requirement.

The issues raised by husband from the May 15, 2019, order 

are not different from those he raised in connection with the 

dissolution judgment, namely, his challenge of the trial court’s 

designation of the residence as separate property such that 

husband was not entitled to a credit for the first $10,000 

withdrawal. The May 15, 2019, order therefore is not an 

appealable postjudgment order. (In re Marriage of Corona, 

supra, 172 Cal.App.4th at p. 1217.) In any event, even if we were 

to consider the merits of husband’s appeal, we would reject it as 

husband was not entitled to any purported “clarification.”

C. July 2, 2019, Order Denying Motion for Relief

Husband next contends that the trial court erred in 

denying his motion for relief from judgment pursuant to Code of 

Civil Procedure section 473, subdivision (b).

1. Background

As discussed, on April 15, 2019, husband filed a motion for 

relief from judgment.

On May 30, 2019, Judge Slawson heard the motion and 

concluded that the trial court lacked jurisdiction to rule on the 

motion because of the pending appeal from the judgment.
16

On July 2, 2019, Judge Slawson issued his “Findings And 

Order After Hearing,” which denied husband’s motion for lack of 

jurisdiction.

2. Legal Analysis

Husband’s contention that his filing of a notice of appeal 

did not divest the trial court of jurisdiction to consider his motion

is meritless. (See Varian Medical Systems, Inc. v. Delfino (2005) 

35 Cal.4th 180, 198 [“[Code of Civil Procedure] section 916, as a 

matter of logic and policy, divests the trial court of jurisdiction 

over the subject matter on appeal—i.e., jurisdiction in its 

fundamental sense”]; Kroger Co. v. Workers’ Comp. Appeals Bd.

(2012) 210 Cal.App.4th 952, 959 [appeal is perfected when notice 

of appeal is filed].) The court correctly concluded that it lacked 

jurisdiction to consider defendant’s motion.

D. Order Denying Request for Modification of Child Custody 

Order

1. Background

On June 24, 2019, husband filed a request to modify the 

child custody order to grant him sole legal and physical custody of 

the children. Husband contended that wife: medicated, that is, 

vaccinated, the children without notice; discussed the divorce 

proceedings with the children and solicited information from 

them; asked the children to lie to a doctor, who had been 

appointed by the trial court for purposes of the dissolution 

proceeding; interfered with the children’s therapy by purportedly 
17

not cooperating with husband regarding an agreed therapist; 

disparaged husband to the children, including using derogatory 

language; failed to protect the children from “many, many, insect 

bites”; lived with the children in a one-bedroom apartment, where 

the youngest child did not have her own bed, and instead shared 

a bed with wife; “cavalierly” cancelled the children’s medical 

insurance, which was subsequently reinstated; and did not help 

the children with their studies, with their grades being “very 

low.”

Husband supported his request with his own declaration

and over a hundred pages of exhibits, including communications 

between husband and wife on Talking Parents. On 

August 19, 2019, husband submitted a supplemental declaration 

attaching purported transcripts of telephone calls between and 

among wife, husband, and the children. One of the conversations 

was identified as having occurred on April 15, 2019. The other 

conversations were not identified by date. He also attached 

updated Talking Parents communications, husband’s purported 

“log” detailing wife’s actions beginning in 2015, medical records of 

doctor visits for the children from 2016 and 2017, wife’s cell 

phone records from 2016, screenshots of texts from 2016, 

communications with prosecutors from 2015 and 2016,

communications between husband’s prior counsel and wife’s 

counsel from 2016 and 2017, reports of monitored visits with the 

children from 2015, police records from 2016, and discovery 

requests from 2016.

Wife opposed the request for modification. She declared 

that she had advised husband of the annual physical check-up, 

during which one of the daughters received three vaccinations. 

She attached a copy of the Talking Parents message advising 
18

husband of the upcoming yearly checkup. She agreed that the 

daughters had mosquito bites and that she now lived in a onebedroom apartment, but declared that each daughter had a 

separate bed in a shared bedroom and that when she had custody 

of the daughters, she slept in the living room. She explained that 

husband had never been to wife’s home and thus did not know its 

setup. She denied husband’s other allegations, stating that she 

helped the girls with their homework.

Wife requested that the trial court impose sanctions 

pursuant to section 271 and submitted her counsel’s declaration 

in support. Wife’s counsel declared that during the course of 

these proceedings, husband had filed approximately 40 requests 

for orders, including multiple requests to modify custody and 

support, all of which were denied. Counsel also explained that 

husband had filed additional civil actions against wife, wife’s 

friends, and wife’s counsel. Counsel detailed the time she and 

her colleague had spent opposing husband’s most recent request 

for modification and requested $4,650 in attorney fees.

On September 11, 2019, Judge Zukin conducted a hearing 

on husband’s request for modification. She asked husband, who 

was self-represented, what he contended to be the material 

change in circumstances that supported his request for 

modification. Husband responded that wife was now “living in a 

smaller apartment where . . . one of our children does not have 

her own bed.”

After noting that wife had declared that both daughters 

had their own bed, the trial court asked wife, “Does [daughter] 

sleep in her own bed?”

Wife responded, “Yes she does. Both of them do.”
19

Husband proffered that this was “a false statement, and I 

would actually like to—that’s a completely false statement, and 

I’ll be able to prove that up during my examination.”

The trial court responded: “We’ve dealt with these issues 

before. Go on. What else is new, other than the bed?”

Husband responded, without evidentiary support, that the 

children were getting lower grades and that wife had moved 

farther away from her work and the children’s school, and “ha[d]

less time with the kids, leaving the kids, you know—leaving the 

kids unattended and un—not only unattended, but unavailable to 

do homework with them and various other things. [¶] So 

although I understand you wanting to be brief, I wanted to call 

[wife] to the stand in order to ask her some questions in order to 

clarify my position via her testimony.”

The trial court denied husband’s request to examine wife, 

but permitted husband to continue his testimony, during which 

he repeated many of the statements in his request for 

modification. At the conclusion of husband’s testimony and 

argument, the court again denied his request to cross-examine 

wife.

Next, the trial court asked wife a number of questions. For 

instance, the court asked whether wife had left the children 

unattended. Wife responded that she had not. Further, wife 

explained that she had been living in the smaller one-bedroom 

apartment for two and a half years and that she had moved into 

it prior to the court’s entry of the judgment of dissolution.

The court again asked wife about the sleeping 

arrangements. Wife repeated that the girls slept in the single 

bedroom and wife slept in the living room on the couch.
20

The court then asked wife to respond to husband’s 

allegation that she had medicated the children. Wife explained 

that she had advised husband about the doctor’s appointment 

and that during the appointment, daughter had received a 

vaccination that was required to attend school.

The court then permitted husband to respond. Husband 

reminded the court that he had submitted transcripts of wife’s 

telephone calls with the daughters. He also explained why he 

believed he needed to sue various people, including wife’s counsel. 

Finally, he stated his belief, based on his daughter’s statements 

to him, that wife slept with younger daughter “99 percent of the 

time.” Husband did not dispute wife’s testimony that she had 

moved prior to the entry of judgment or that he had never been 

inside her apartment.

After hearing the testimony, the court stated that it had 

reviewed the entire file, the submitted declarations, and the 

exhibits. The court stated that it found “a number of [husband’s] 

complaints regarding [wife’s] parenting” not to be credible. The 

court further observed that the exhibits demonstrated that 

husband had inappropriately used Talking Parents to threaten 

wife with litigation and to advance his litigation strategy. Even 

assuming that the children were struggling in school, the court 

concluded that husband was partially at fault as he had engaged 

in excessive litigation and involved the children in litigation. The 

court denied husband’s request for modification, concluding that 

there was no material change in circumstances since the time of 

the 2019 judgment.

The trial court next considered wife’s motion for sanctions. 

It concluded that “this was an unnecessary motion. [T]here is a 

history in this litigation of over litigation on the part of 
21

[husband].” The court therefore awarded wife $2,500 in attorney 

fees as a sanction.

2. Legal Analysis

Husband contends that the trial court erred “by failing to 

state on the record or in writing the reasons for its denial of [his] 

right to introduce the live testimony of the other party during the 

hearing.” We find no prejudicial error.

We disagree with husband’s characterization of the trial 

court’s ruling as one denying him the opportunity to introduce 

“live testimony.” The court considered the live sworn testimony 

of both husband and wife. (Cf. In re Marriage of Swain (2018) 21 

Cal.App.5th 830, 837, 841 [finding reversible error when trial 

court modified spousal support order based solely on declaration 

of ex-wife, who did not appear at the hearing].) Thus, husband’s 

argument, properly construed, is that the court limited his ability 

to cross-examine wife, in violation of Evidence Code section 773. 

We will assume, without expressly deciding, that the court erred 

in prohibiting husband from cross-examining wife.

Husband has failed to demonstrate that he was prejudiced 

by any assumed error. (See In re Marriage of Goddard (2004) 33 

Cal.4th 49, 56 [generally, most procedural errors will not be 

reversed absent a showing of prejudice]; see also Diaz v. Carcamo

(2011) 51 Cal.4th 1148, 1161 [“To establish prejudice, a party 

must show ‘a reasonable probability that in the absence of the 

error, a result more favorable to [it] would have been reached’”].) 

Husband never explained in the trial court what he expected to 

elicit from cross-examination, proffering only that such 

examination would “clarify [his] position.” On appeal, husband
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contends that the court should have stricken wife’s testimony and 

declaration, and had it done so, it would have granted husband’s 

request because his exhibits “support[ed] all of his factual 

allegations.” We disagree. Most of husband’s exhibits related to 

conduct that predated the entry of judgment. Further, there was 

no admissible evidence to support his allegations that daughter 

did not sleep in her own bed or that wife did not pay sufficient 

attention to the daughters. Husband cited only his daughter’s 

hearsay statement that she did not usually sleep in her bed and 

did not introduce any evidence to support his allegation that his 

wife did not spend sufficient time with the daughters.

8 On this 

record, husband cannot demonstrate that but for the court’s 

assumed error, it was reasonably probable that the court would 

have found a “‘significant change of circumstances’” and modified

the child custody arrangement in his favor. (See In re Marriage 

of Brown & Yana (2006) 37 Cal.4th 947, 956; In re Marriage of 

McKean (2019) 41 Cal.App.5th 1083, 1089.)

8 In his declaration, husband alleged that wife “does not ever 

work with the girls on their schoolwork,” and at the hearing, he 

alleged that wife left the girls unattended. Neither allegation 

was supported by admissible evidence.
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IV. DISPOSITION

The appeal from the May 15, 2019, order is dismissed. The 

April 2, 2019, judgment, the July 2, 2019, order denying 

appellant’s motion for relief from judgment, and the 

September 11, 2019, order denying appellant’s request for 

modification are affirmed. Because respondent did not appear, 

no costs are awarded.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

KIM, J.

We concur:

RUBIN, P. J.

BAKER, J.