Filed 6/18/14 Marriage of Lak 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 JENNIFER S. AND DANIEL K. LAK.

DANIEL K. LAK, Appellant,

v. JENNIFER S. LAK, Respondent,

ORANGE COUNTY DEPARTMENT OF CHILD SUPPORT SERVICES, Respondent. G048304

(Super. Ct. No. 09D001393)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Richard G. Vogl, Temporary Judge. (Pursuant to Ca l. Const., art. VI, § 21.) Affirmed. Daniel K. Lak, in pro. per., for Appellant. Kamala D. Harris, Attorney Gene ral, Julie Weng-Gutierrez, Assistant Attorney General, Linda M. Gonzalez and Ri cardo Enriquez, Deputy Attorneys General, for Respondent Orange County Depart ment of Child Support Services.2 No appearance by Resp ondent, Jennifer S. Lak.

* * *

Daniel K. Lak appeals from an orde r denying his motion to set aside a portion of the judgment in this marital dissolution acti on on the ground of perjury, pursuant to Family Code section 2122, subd ivision. (b) (§ 2122(b); unless otherwise designated, all further statutory references are to this code). Specifically, Daniel sought to set aside the portion of the judgment es tablishing the amounts of spousal and child support he is obligated to pay his former wife, Jennife r, because she had allegedly understated her income level by a signifi cant amount on her income and expense

declaration. The respondent in this appeal is “the Public Interest,” represented by the local child support agency, Orange County Department of Child Support Services (DCSS), and the state Attorn ey General, under sections 17406 and 17407. (See In re Marriage of LaMoure (2011) 198 Cal.App.4th 807, 812.) On appeal, we are obligated to draw all inferences and indulge all presumptions in favor of the correctness of the challenged order. Consequently, where, as here, there is no record of the evidence presented at the h earing, we must presume that

evidence was sufficient to support the court’s determinati on that Daniel failed to bring this motion in a timely fashion. On that basis, we affirm the order.

FACTS

Our record in this appeal is quite li mited, consisting only of a copy of the trial court’s docket, the order appealed from, and Daniel’s notice of appeal and3 designation of the record. From this we discern that Jennifer petitioned for legal separation in February 2009, and Daniel res ponded with a request for marital dissolution in April 2009. Jennifer filed income and ex pense declarations in June 2009, February 2010 and April 2010. Also in April 2010, the parties entered into a stipulation for judgment. A marital dissolution judg ment was entered in April 2011.

Daniel filed a motion to reconsider the judgment in May 2011 and a motion

for sanctions in March 2012. In May 2012, Daniel also filed a motion for “simplified modification of support order.” Then, in November 2012 , Daniel filed his motion to vacate or set aside the judgment. The court held a hearing on th is motion in February 2013. Daniel and Jennifer both appeared at the hearing and both gave evidence. However, no court reporter was present. At the end of th e hearing, the court took the matter under submission and informed the parties it w ould notify them of its order by mail. In its order, the court stated it had taken judicial notice of its own file pursuant to Evidence Code section 452. Af ter summarizing the history of the case, the court denied Daniel’s motion, without addr essing the merits, on three grounds: (1) it

found that while relief under section 2122(b) is subject to a one year statute of limitations, Daniel waited 22 months before br inging his motion; (2) it found the support award was a product of the parties’ stipulati on, rather than the result of any allegedly perjured testimony given in a contested proceeding, and t hus section 2122(b) did not apply; and (3) it found that the requested relie f was barred by the doctrine of res judicata, as Daniel had previously filed other requests for hearings pert aining to support and “he could have brought forth” this perjury cl aim in the context of those requests.4 DISCUSSION

Daniel contends all three of the gr ounds relied upon by the court to support its denial of his motion are fundamentally flawed , and thus the order must be reversed. Unfortunately for Daniel, any one of these three grounds, standing alone, is a sufficient basis to justify the court’s order. Moreover, “the appellant has the burden of affirmatively demonstrating error by providin g the reviewing court with an adequate record . . . and . . . the reviewing court presum es the judgment of the trial court is correct and indulges all presumptions to support a ju dgment on matters as to which the record is silent.” ( Baker v. Children’s Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1060; see also Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 889 [“on appeal we presume the trial court’s order is correct, indulge all presumptions in favor of that correctne ss, and resolve all ambiguities in favor of affirmance”].) Among other things, this standard of appellate review means that in the absence of a reporter’s transcript or a se ttled statement which su mmarizes the evidence presented at the hearing in the court below, we must presume that evidence was sufficient to support whatever factual determinations we re necessary to support the court’s order. In this case specifically, it m eans we must presume the evid ence presented was sufficient to support the court’s determination that Dani el failed to bring his motion to set aside the marital dissolution judgment in a timely fashion. Section 2122(b) requires that “[a]n ac tion or motion based on perjury in the preliminary or final declaration of disclosure . . . shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury .” (Italics added.) On appeal, Daniel concedes that more than a year had passed between the date the ma rital dissolution judgment was entered and the date he5 filed his motion to set it aside in November 2012 – and that more than two years had passed between Jennifer’s alleged perjury in her income and expense report and the date

he filed his set-aside motion. But then Da niel simply claims, without citation to any

evidence in the reco rd, that he first discovered Jennifer’s alleged perjury in June 2012 – only five months before he filed his motion. And it appears Daniel would like us to

further assume this date is also the earliest point at which he should have discovered the alleged perjury. If that were true, then Daniel’s motion would have been timely. But we cannot do that. Instead, we can only presume there was evidence adduced at the hearing which supported the trial court’s a pparent determination that

Daniel discovered Jennifer’s a lleged perjury, or should have discovered it, more than a year before filing his set-aside motion. St ated another way, in the absence of an evidentiary record, the court’s first ground for denying the motion is simply unassailable

and we have no choice but to a ffirm the order on that ground.

Daniel’s final contention is that the c ourt also erred by refusing to restore to its calendar his earlier motion for a “simp lified modification of child support.” According to the court’s order, Daniel’s reque st to restore the matter to the calendar was denied because he had stated “no good reas on for the court to grant the request. The matter was taken off calendar after a hearing before Comm. Neary. No transcript has been provided to the court of those proceedings. No points and authorities have been presented.” While Daniel cl aims on appeal that the modi fication motion was previously

taken off calendar because Jennifer had failed to file a required income and expense report, and thus there was good cause to rest ore it to the calendar, there is nothing in our record to support this factual assertion. Again, we are bound by our obligation to presume the trial court’s order was correct, a nd in the absence of a record demonstrating that Daniel in fact demonstrated good cause to restore that earlier motion to the court’s calendar, we must presume he did not.6 DISPOSITION

The order is affirmed. The parties are to bear their own costs on appeal.

RYLAARSDAM, ACTING P. J.

WE CONCUR:

MOORE, J.

THOMPSON, J.