Filed 7/24/13 Marriage of Schmitt CA5 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT 

In re the Marriage of JACQUELINE and DAVID 

SCHMITT. 

JACQUELINE SCHMITT, 

 Respondent, 

 v. 

DAVID SCHMITT, 

 Appellant. 

F065650 

(Super. Ct. No. M-1502-FL-3753) 

OPINION

 APPEAL from an order of the Superior Court of Kern County. John D. Oglesby, 

Judge. 

 David Schmitt, in pro. per., for Appellant. 

 No appearance for Respondent. 

-ooOoo- 
2. 

 In this appeal, a husband challenges the trial court’s decision to uphold a marital 

settlement agreement. He contends the agreement was unenforceable on the grounds of 

duress, undue influence, fraud, and his lack of mental capacity. 

Husband’s ability to establish these grounds on appeal is hampered by the fact that 

(1) he did not object to any ambiguities or omissions in the statement of decision while 

the matter was before the trial court and (2) the record on appeal does not contain a 

reporter’s transcript of the oral testimony heard by the trial court. 

 Based on the rules of law that require an appellant to affirmatively demonstrate 

reversible error, which include a requirement for presenting an adequate record for 

assessing the errors asserted, we conclude that the husband has failed to establish the 

grounds on which he claims the agreement is unenforceable and, thus, has failed to 

affirmatively show the trial court erred. 

 We therefore affirm the judgment. 

FACTS AND PROCEDURAL HISTORY 

 Appellant David Schmitt (David) and respondent Jacqueline Schmitt (Jacqueline) 

were married in November 2007. It was the second time they were married to each other. 

They have a daughter who was born in the spring of 1996. 

On May 7, 2010, they entered into a written postnuptial agreement for the purpose 

of defining their respective rights in property owned separately, jointly or as community 

property. The agreement also was signed by the lawyers representing David and 

Jacqueline. The enforceability of this agreement, which later became a marital settlement 

agreement, is the primary issue in this appeal as David has asserted several arguments for 

why the agreement is invalid. 

 David’s July 2012 declaration asserts that (1) in April 2010 he believed his mind 

was not rational, he was not of sound mind, and he was not in control of himself; (2) he 

was extremely depressed and thought about suicide or committing himself; (3) Jacqueline 

pressured him to enter into the agreement knowing that he lacked the requisite mental 
3. 

capacity; and (4) he did not want to sign the agreement, but believed he had no choice. 

David offers these assertions to support his position that when he signed the postnuptial 

agreement in May 2010 he lacked the mental capacity necessary to form a valid contract. 

 Attached to the declaration was a letter written by David and dated April 27, 2010. 

The letter asserted that Jacqueline told David that if he did not sign the agreement, she 

would divorce him and take their daughter.1 The letter also asserted that David feared for 

his safety and for the well-being of his daughter if he did not sign the agreement. 

 David’s declaration also addressed Jacqueline’s awareness of his mental disability. 

It stated that on August 1, 2010, Jacqueline insisted David seek help for his mental 

problems and, the next day, reiterated that he really needed help. A week later, 

Jacqueline told David that he should have taken her advice and gotten help for his mental 

issues years ago. 

 On August 16, 2010, Jacqueline filed a petition for dissolution of marriage. 

 On September 13, 2010, Jacqueline and David executed an amendment to the 

postnuptial agreement that changed it into a marital settlement agreement. The notary 

that witnessed their signatures on the amendment completed an acknowledgement that 

stated the signers represented themselves. 

 On September 18, 2010, the martial settlement agreement was amended to address 

matters such as custody of their daughter, visitation, child support, spousal support, 

certain debts and expenses, and insurance. As to personal property and financial 

accounts, the amendment referred to the earlier pages of the marital settlement 

agreement. Again, the notary’s acknowledgement stated that the signers represented 

themselves. 

 1 In contrast, the third recital of the postnuptial agreement stated that the “parties 

do not presently contemplate a separation and have no intention of obtaining a dissolution 

of marriage.” 
4. 

 On October 29, 2010, a judgment of legal separation was filed. The marital 

settlement agreement was attached to the judgment. Among other things, the judgment 

ordered a division of property as set forth in the settlement agreement, which was 

attached and incorporated into the judgment. Paragraph 13 of the settlement agreement 

provided that David’s interest in funds held by a Supplemental Employee Incentive Plan 

(SEIP) would become community property. Exhibit D to the settlement agreement 

identified four parcels of real property that were to be treated as Jacqueline’s separate 

property. 

 In November 2010, David was admitted to Del Amo Hospital and underwent an 

evaluation of his mental health. Dr. Peter Hirsch was the attending physician and 

determined that David was 100 percent disabled. Dr. Hirsch indicated that, among other 

things, the goal of David’s hospitalization was the alleviation of suicidal risk, the 

decrease in symptoms of depression and anxiety, and the achievement of a level of 

psychosocial functioning such that David’s treatment could continue in a less acute 

treatment setting. Subsequently, in February 2011, Dr. Hirsch again determined that 

David was 100 percent disabled. 

 In June 2011, David filed an order to show cause to set aside the judgment and 

review child custody, child visitation and attorney fees. David contends that this 

challenge to the judgment was not resolved by the court due to Jacqueline’s 

reconciliation attempt. 

 In November 2011, Jacqueline filed an order to show cause to set aside the marital 

settlement agreement. The matter was continued twice and it and other matters were 

heard on March 7, 2012. The March 7, 2012, minute order of the trial court states: 

 “The court makes the following findings and orders: The agreement 

was entered into during the marriage which was attached to the judgment of 

legal separation. The agreement is amended as requested by [Jacqueline]. 

The court’s tentative ruling is that from the date the parties signed the 

agreement it is valid. The agreement is not retroactive and the court would 
5. 

assign [David] a 35% share of the home. The court will entertain argument 

by way of brief on the matter before making a final ruling. The agreement 

is one sided and was signed under some duress. [David] had counsel at the 

time of the signing. Written argument by way of brief shall be to the court 

not late[r] than 4/16/12, thereafter the matter is submitted. [¶] [Jacqueline] 

may provide future evidence regarding the percentage given to [David]. 

Ruling to be given in court on 4/23/12.” (Some capitalization omitted.) 

 In April 2012, a stipulation to continue and order was filed. On May 4, 2012, the 

trial court filed a minute order that described itself as a statement of decision on the issue 

of the validity of the marital (postnuptial) agreement that was incorporated into the 

judgment. 

The statement of decision indicated that Jacqueline sought to enforce the marital 

agreement that had been incorporated into the October 29, 2010, judgment and David 

sought to have the judgment set aside on the grounds of ambiguity and unenforceability. 

The statement of decision described the agreement as identifying the assets and 

debts of the parties and providing for a division in favor of Jacqueline. The statement of 

decision indicated that two significant inequalities in the division of property involved (1) 

the residence held by Jacqueline and (2) the SEIP held by David. When they married for 

the second time in 2007, the residence was Jacqueline’s separate property and the SEIP 

was David’s separate property. During the marriage, David built an addition to the 

residence, which substantially increased its size. The agreement provided that David 

would have no claim on the residence or the improvements made by him. As to the 

SEIP, the agreement provided that it would become community property, including 

David’s separate property portion that was worth about $80,000. 

The statement of decision included the trial court’s finding that both parties were 

represented by counsel when the marital agreement was signed and again when its terms 

were incorporated into the judgment of legal separation. The court stated it “originally 

had some concern regarding the enforceability of the agreement regarding its fairness and 

as it appear[ed] to encourage [Jacqueline] to seek a dissolution” (full capitalization 
6. 

omitted) because of the financial incentives it created. Notwithstanding its original 

concern regarding enforceability, the court stated that it was not against public policy for 

a party to knowingly and voluntarily agree to an unequal division of community and 

separate property, especially when the parties are represented by counsel, have been 

previously married to one another and are seeking a legal separation of their second 

marriage, and have teenage child whom they are jointly raising. The court also stated 

that it saw no reason to undo the agreement even if in retrospect David considered it a 

bad deal. 

The trial court addressed David’s equitable arguments by stating that “in light of 

[David’s] altering of the document before it was filed with the court[,] the court sees no 

equitable reason to grant ... relief as well.” (Full capitalization omitted.) 

Based on the foregoing findings and analysis, the court concluded that the 

judgment, which included the agreement, was valid and enforceable. 

David responded to the trial court’s statement of decision by requesting 

reconsideration and a review hearing. In support of his motion for reconsideration, David 

submitted a declaration that addressed his mental capacity at the time he signed the 

marital settlement agreement, Jacqueline’s knowledge of his mental issues, and the 

subsequent diagnosis of his mental disability. 

 The trial court held the requested review hearing on July 23, 2012. At that 

hearing, both David and Jacqueline were sworn and testified. The minute order dated 

July 23, 2012, indicates that David argued that he recently discovered that his mental 

disability made him incapable of making any decisions and entering into an agreement or 

contract and, because of the recent discovery, the information was not previously 

presented in court. 

 The trial court found: “After hearing [David’s] testimony[, the] court is not 

persuaded by his testimony. [David] has not provided burden of proof to re-open case. 

[David’s] motion [is] denied.” (Full capitalization omitted.) 
7. 

 On August 9, 2012, David filed a notice of appeal that stated he was appealing 

from the judgment or order entered on May 4, 2012. David’s notice of designation of 

record on appeal checked none of the boxes indicating whether he elected to proceed with 

or without a record of the oral proceedings in the superior court. As a result, the 

appellate record contains no reporter’s transcripts, agreed statement or settled statement 

of the oral proceedings (which proceedings would include the parties’ testimony) held in 

the superior court. 

DISCUSSION 

 David is representing himself in this appeal. His opening brief contends the 

marital agreement is unenforceable because (1) he proved duress, (2) the agreement was 

unfair and thus voidable as a matter for law, (3) the agreement was obtained by intrinsic 

and extrinsic fraud, (4) the agreement should be set aside due to his unsound mind, and 

(5) the fact he had an attorney, chosen and paid by Jacqueline, did not negate her undue 

influence. David raises additional issues, including whether the judgment was premature 

and whether a new trial should be required. 

 Jacqueline did not file a respondent’s brief. Instead, she sent a one-paragraph 

letter stating she did not have the funds to obtain appellate counsel and asked this court to 

note that the trial court found David had forged the marital agreement filed with the court 

in 2010 and his appeal is simply a disagreement with the trial court’s view of the facts.2

 2 Pursuant to California Rules of Court, rule 8.220(a)(2), when a respondent fails 

to file a respondent’s brief, the appellate court “may decide the appeal on the record, 

opening brief, and any oral argument by the appellant.” Thus, we will not treat 

Jacqueline’s failure to file a respondent’s brief as a default or an admission that the trial 

court erred. (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1.) 

Instead, we will check the accuracy of the appellant’s statement of facts and evaluate the 

merits of his legal arguments to determine whether prejudicial error occurred. (See In re 

Bryce C. (1995) 12 Cal.4th 226, 232-233.) 
8. 

I. RULES OF APPELLATE PROCEDURE 

A. Applicable Standards of Review

When an appellate court reviews a trial court’s statement of decision, the trial 

court’s findings of fact are reviewed under the substantial evidence standard and the trial 

court’s resolution of a question of law is subject to independent review. (Brewer v. 

Murphy (2008) 161 Cal.App.4th 928, 935.) 

A trial court’s findings of fact will be upheld if there is substantial evidence, 

contradicted or uncontradicted, to support the finding. (Brewer v. Murphy, supra, 161 

Cal.App.4th at p. 935.) In evaluating the support for a finding, we must view the 

evidence in the light most favorable to the prevailing party, giving it the benefit of every 

reasonable inference and resolving all conflicts in its favor. (Ibid.) Furthermore, 

evidence is defined as “substantial” for purposes of this standard of review if it is of 

ponderable legal significance, reasonable in nature, credible and of solid value. (Id. at 

pp. 935-936.) For example, the testimony of a single witness, even a party in an action 

for the dissolution of marriage, constitutes substantial evidence. (In re Marriage of Mix

(1975) 14 Cal.3d 604, 614.) 

B. Appellant’s Burden of Demonstrating Error

It is a well established rule of appellate procedure that the judgment or order of the 

lower court is presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) 

To overcome this presumption, an appellant challenging a judgment or order must 

affirmatively demonstrate prejudicial error. (Ibid.) 

For example, when an appellant contends a finding of fact is wrong, the appellant 

has the burden of demonstrating that the record lacks substantial evidence to support that 

finding of fact. (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1658.) To 

demonstrate the absence of substantial evidence, the appellant must provide the appellate 

court with an adequate record of the lower court’s proceedings. (Ballard v. Uribe (1986) 

41 Cal.3d 564, 574.) In Ballard, the plaintiff failed to include a reporter’s transcript of 
9. 

the portion of the trial relating to the issue of damages. The court stated that because of 

the absence of a transcript or settled statement regarding that portion of the trial it had no 

way of ascertaining whether the alleged juror misconduct or instructional error affected 

the damages awarded in the case. (Ibid.) As a result, the court concluded the plaintiff 

failed to provide an adequate record and therefore failed to carry the burden of showing 

prejudicial error. (Ibid.) 

II. DURESS, UNDUE INFLUENCE AND UNFAIRNESS 

A. Finding of Duress

David refers to the trial court’s March 7, 2012, minute order and asserts that the 

court found there was duress and undue influence against him. The minute order 

includes the following sentence: “The agreement is one sided and was signed under 

some duress.” (Some capitalization omitted.) 

The trial court’s statement that the agreement was signed under some duress was 

not a finding ultimately adopted by the trial court. Instead, the statement was part of the 

tentative ruling made by the court in the March 7, 2012, minute order. Subsequently, in 

the statement of decision, the court stated it “originally had some concern regarding the 

enforceability of the agreement ....” (Full capitalization omitted.) Despite this original 

concern, the court found the agreement was valid and enforceable. Therefore, the court’s 

tentative finding of some duress has no force or effect and did not become part of the 

court’s final decision. 

Consequently, we reject David’s position that duress was proven. Instead, the 

record shows that the trial court was aware of the issue concerning duress and still 

concluded the agreement was enforceable. Under the applicable rule of appellate review, 

we are required to conclude that the trial court impliedly found David was not under 

duress when he signed the agreement. (See In re Marriage of Arceneaux (1990) 51 

Cal.3d 1130, 1134 [appellate court will imply findings in support of judgment where 
10. 

missing findings are not brought to attention of trial court]; Denham v. Superior Court, 

supra, 2 Cal.3d at p. 564 [courts indulge all presumptions in favor of the judgment].) 

B. Presumption of Undue Influence and Family Code Section 721

When an interspousal transfer of property advantages one spouse to the 

disadvantage of the other, a presumption arises that the transaction was the result of 

undue influence. (Fam. Code, § 721; In re Marriage of Delaney (2003) 111 Cal.App.4th 

991, 996.) The spouse advantaged by the transaction must show by a preponderance of 

the evidence that the advantage was not gained in violation of the fiduciary relationship 

between spouses. (In re Marriage of Fossum (2011) 192 Cal.App.4th 336, 344.) The 

spouse advantaged by the transaction has the burden of proving that the transaction was 

freely and voluntarily made, with full knowledge of the facts, and with complete 

understanding as to the transaction’s effect. (In re Marriage of Mathews (2005) 133 

Cal.App.4th 624, 630.) 

Here, David refers to the statutory presumption of undue influence and contends 

the trial court never required Jacqueline to rebut the presumption by a preponderance of 

the evidence. To prevail on this argument, David must demonstrate that the trial court 

failed to decide whether the presumption was rebutted. 

The statement of decision does not contain an explicit reference to the 

presumption or Family Code section 721. The statement of decision did mention, 

however, that a party may knowingly and voluntarily agree to an unequal division of 

property and then stated it saw no reason to undo the agreement. This language can be 

interpreted in different ways regarding the questions whether the trial court was aware of 

the presumption of undue influence and whether the court required Jacqueline to rebut 

that presumption by a preponderance of the evidence. 
11. 

David interprets the statement of decision as failing to address these questions and, 

therefore, takes the view that the trial court did not require Jacqueline to rebut the 

presumption. 

Under the applicable rules of law, a party claiming omissions or ambiguities in the 

factual findings in a statement of decision must bring those omissions or ambiguities to 

the trial court’s attention pursuant to Code of Civil Procedure section 634 before such 

objections will be considered by an appellate court. In other words, “if a party does not 

bring such deficiencies to the trial court’s attention, that party waives the right to claim 

on appeal that the statement was deficient in these regards, and hence the appellate court 

will imply findings to support the judgment.” (In re Marriage of Arceneaux, supra, 51 

Cal.3d at pp. 1133-1134.) The rationale for this rule is that it would be unfair and 

inefficient to allow a party to lull the trial court and opposing party into believing the 

statement of decision was adequate and then claim error on appeal when the asserted 

error could have been clarified before the trial court. (Id. at p. 1138.) 

Nothing in the record before this court demonstrates that David objected to the 

failure of the statement of decision to explicitly address whether Jacqueline had proven 

by a preponderance of the evidence that David entered the agreement freely and 

voluntarily, with full knowledge of the facts, and with complete understanding as to the 

agreement’s effect on his property interests. 

Therefore, under the rules regarding statements of decision set forth by the 

California Supreme Court in In re Marriage of Arceneaux, supra, 51 Cal.3d at pages 

1133 to 1134, we conclude that David has not demonstrated that the trial court failed to 

find that Jacqueline proved the agreement was entered freely and voluntarily, with 

David’s full knowledge of the facts and complete understanding as to the impact on his 

property interests. Under those rules of law, such a finding is implicit in the trial court’s 

broad statement that it could see no reason to undo the agreement. 
12. 

C. Separate Counsel and Rebutting Presumption

David contends: “Probative proof that ag[grieved] spouse had separate legal 

counsel or the opportunity to obtain such advice is not essential to a rebuttal of the undue 

influence presumption.” He also contends that the fact that he had legal counsel did not 

relieve Jacqueline of her fiduciary obligation in the negotiating of the agreement. 

Without supporting citations to the record, David asserts that he was told to go to a 

particular attorney and tell the attorney that he was needed just to acknowledge the 

signature on the agreement, which had been prepared by Jacqueline and her attorney 

within the two weeks prior to the signing of the agreement. David also asserts that, 

besides choosing his attorney, Jacqueline also paid the attorney. 

We agree with David’s view of the law that the fact that the spouse challenging a 

marital agreement had legal representation does not automatically rebut the presumption 

of undue influence established by Family Code section 721. (See Vai v. Bank of America

(1961) 56 Cal.2d 329, 339-340 [husband not released from fiduciary obligation as a result 

of wife employing attorney to negotiate agreement].) 

Our agreement on this point of law, however, does not lead us to conclude that 

Jacqueline did not rebut the presumption. For the reasons stated in the prior section of 

this opinion, we conclude that David may not argue on appeal that the trial court 

erroneously failed to address the presumption of undue influence because he has not 

shown that he made such an objection in the trial court and gave the court an opportunity 

to correct any such omission. (See In re Marriage of Arceneaux, supra, 51 Cal.3d at pp. 

1133-1134; Code Civ. Proc., § 634.) 

D. Unfair Advantage

David also argues that the trial court found Jacqueline gained an unfair advantage 

over him by virtue of the agreement. David refers to the court’s tentative ruling of March 

7, 2012, which states that “the agreement is one sided.” David then reiterates his position 
13. 

that “the court erred in never requiring Jacqueline to rebut the undue influence and duress 

issue that arises from such inter-spousal transactions ....” 

First, the trial court’s statement that “the agreement is one sided” was part of the 

tentative ruling and was not included in the statement of decision, which is the final and 

operative expression of the trial court’s determinations for purposes of this appeal. 

Second, applicable law requires this court to conclude that the trial court impliedly found 

Jacqueline presented sufficient evidence to rebut the presumption of undue influence. (In 

re Marriage of Arceneaux, supra, 51 Cal.3d at p. 1133-1134.) Therefore, David’s 

unfairness argument fails to demonstrate prejudicial error because the record presented 

does not establish that the trial court failed to require Jacqueline to rebut the presumption 

of undue influence. 

III. INTRINSIC AND EXTRINSIC FRAUD 

David contends the trial court erred in failing to set aside the judgment because 

Jacqueline had him sign the agreement and the amendment converting it into a marital 

settlement agreement while knowing he was under psychological care and did not have 

the mental capacity to make such decisions. David refers to the finding made by the 

Legislature in Family Code section 2120, subdivision (b): “It occasionally happens that 

the division of property or the award of support, whether made as a result of agreement or 

trial, is inequitable when made due to the nondisclosure or other misconduct of one of the 

parties.” 

David supports his version of events by citing to attachments to his July 2012 

declaration, which was submitted in support of his motion for reconsideration. The 

attachments are printouts of text messages exchanged between David and Jacqueline in 

August 2010. 

Appellant has the burden of demonstrating prejudicial error. (Denham v. Superior 

Court, supra, 2 Cal.3d at p. 564.) To carry that burden, an appellant must present an 
14. 

adequate record of the trial court proceedings. In this context, “adequate” means a record 

that contains all of the information necessary to assess the particular error asserted by the 

appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) When an appellant 

disagrees with a trial court’s evaluation of the evidence, the appellant must provide the 

appellate court with a complete record of that evidence. (E.g., Stasz v. Eisenberg (2010) 

190 Cal.App.4th 1032, 1039.) 

In this appeal, David has not included a reporter’s transcript, or a suitable 

substitute, of the oral testimony presented to the trial court. This omission precludes this 

court from examining all of the evidence presented to the trial court. Because the oral 

testimony might have supported the trial court’s decision to reject David’s claims of 

intrinsic and extrinsic fraud, we (like the court in Stasz v. Eisenberg, supra, 190 

Cal.App.4th 1032) must conclude that the trial court’s decision is correct. 

Furthermore, the record presented by David does not provide the basis for the 

following statement by the trial court: “Further[,] in light of [David’s] altering of the 

document before it was filed with the court[,] the court sees no equitable reason to grant 

relief as well.” This statement may have been intended to address the equities, which are 

mentioned in Family Code section 2120, subdivision (b) in connection with the phrase 

“other misconduct of one of the parties.” 

In short, the trial court appears to have found that the equities did not favor David 

because he altered the agreement before it was filed with the court. Under California 

law, a party who seeks equity must also do equity. (Quick v. Pearson (2010) 186 

Cal.App.4th 371, 380.) The equitable doctrine of “unclean hands” precludes the 

possibility of equitable relief to one tainted with inequitableness or bad faith relative to 

the matter in which he seeks relief. (Ibid.) This doctrine provides a second, independent 

ground for rejecting David’s argument that the trial court committed prejudicial error 

when it ruled against David’s claim of fraud. 
15. 

IV. CAPACITY TO FORM A CONTRACT 

David contends that the marital agreement and the subsequent modification that 

converted it into a marital settlement agreement should be set aside because of his 

unsound mind. 

A. Principles of Contract Law Concerning Mental Capacity and Consent

Under California law, the formation of an enforceable contract requires (1) parties 

capable of contracting, (2) their consent, (3) a lawful object and (4) sufficient 

consideration. (Civ. Code, § 1550.) Persons of unsound mind are not capable of 

contracting. (Civ. Code, § 1556.)3 

The question whether a person has an “unsound mind” is intertwined with the 

concept of consent because the parties’ consent to the contract must be free. (Civ. Code, 

§ 1565.) The consent or assent essential to the existence of a contract cannot be given 

freely by a person unless that person is endowed with such a degree of reason and 

judgment as will enable him or her to comprehend the subject of negotiation. (Jacks v. 

Estee (1903) 139 Cal. 507, 512-513.) 

Pursuant to Civil Code section 38, a “person entirely without understanding has no 

power to make a contract of any kind, but the person is liable for the reasonable value of 

things furnished to the person necessary for the support of the person or the person’s 

family.” In addition, a “contract of a person of unsound mind, but not entirely without 

understanding, made before the incapacity of the person has been judicially determined, 

is subject to rescission ....” (Civ. Code, § 39, subd. (a).) 

B. Analysis of David’s Claim of Error

In its statement of decision, the trial court indicated that it saw no reason to undo 

the parties’ agreement even though, in retrospect, David considered it a bad deal. Under 

 3 The capacity of a person of unsound mind to form a binding contract is 

addressed in sections 38 through 41 of the Civil Code. (Civ. Code, § 1557, subd. (b).) 
16. 

the rules of law set forth in In re Marriage of Arceneaux, supra, 51 Cal.3d at pages 1133 

to 1134, we are required to infer that the trial court found David had the requisite mental 

capacity at the time the agreement and the amendments were signed. Furthermore, this 

implied finding of fact regarding David’s mental capacity withstands a challenge for lack 

of substantial evidentiary support because the appellate record does not include the oral 

testimony of the parties. Under applicable rules of law, we are required to presume that 

the omitted testimony contains evidence that adequately supports the trial court’s 

decision. In summary, David has failed to carry his burden of affirmatively 

demonstrating reversible error on this ground. 

V. AMBIGUITY OF MARITAL SETTLEMENT AGREEMENT REGARDING 

IMPROVEMENTS 

David contends that the marital settlement agreement is ambiguous because it does 

not include $947,000 of improvements that David made to the residence that was 

Jacqueline’s separate property. 

In its May 4, 2012, minute order, the trial court addressed this aspect of the 

agreement by (1) acknowledging that David built an addition to the residence owned by 

Jacqueline, which substantially increased the size of the house, and (2) stating that the 

parties’ agreement provides that David would have no claim on either the residence or the 

improvements made by him to the residence. Thus, the trial court did not consider the 

agreement was ambiguous on the point now raised by David. 

David’s argument, which is not entirely clear so it is quoted here verbatim, asserts: 

“The agreement only has spate property of Jacqueline to be land that she had prior to 

marriage and the amount she paid for such property.” The word “spate” probably is a 

typographic error and was intended to be “separate,” with the reference being to the 

separate property of Jacqueline listed in Exhibit D to the agreement. That exhibit lists 

four parcels of “real property” that Jacqueline acquired in the first half of 2004. Contrary 
17. 

to the assertion made in David’s appellate brief, the exhibit to the agreement does not use 

the term “land.” 

Civil Code section 658 provides that real property consists of land; that which is 

affixed to land; that which is incidental or appurtenant to land; and that which is 

immovable by law, with certain exceptions. Similarly, Black’s Law Dictionary (8th ed. 

2004) defines “real property” as “[l]and and anything growing on, attached to, or erected 

on it, excluding anything that may be severed without injury to the land.” (Id. at p. 

1254.) 

Based on these definitions, we conclude that the agreement’s reference to “real 

property” is not ambiguous as to whether improvements made to the parcels listed as 

Jacqueline’s separate property were covered by the agreement. The term “real property” 

clearly includes such improvements and, therefore, the trial court did not err when it 

interpreted the agreement in that manner. 

VI. PREMATURE JUDGMENT 

David contends that the trial court erred by issuing its May 4, 2012, ruling 

concerning the enforceability of the agreement prior to the date set for the hearing. David 

asserts that the court set April 23, 2012, as the hearing date and the parties stipulated to 

change the date of the hearing from April 23, 2012, to May 21, 2012. David argues that 

the May 4, 2012, ruling deprived him of the opportunity to present the court with 

evidence he discovered near the end of April. 

The appellate record does not contain a copy of the stipulation to continue the 

cause until May 21, 2012. The only reference in the record is in the copy of the docket, 

which includes an entry for a “stipulation to continue & order” filed on April 23, 2012. 

Other than a reference to the new hearing date, the terms of the stipulation are not 

described in the docket. 
18. 

Because we cannot ascertain the contents of the stipulation and order, we cannot 

determine whether the trial court’s issuance of the May 4, 2012, decision violated the 

terms of the stipulation and order. As a result, David has failed to present this court with 

an appellate record that affirmatively demonstrates that the trial court erred when it filed 

the May 4, 2012, decision. 

VII. CONCLUSION 

 David has failed to carry his burden and demonstrate that the trial court committed 

prejudicial error on the grounds raised in this appeal. 

DISPOSITION

 The judgment and orders of the trial court are affirmed. Costs on appeal, if any, 

are awarded to Respondent. 

 

 _____________________ 

Franson, J. 

WE CONCUR: 

 _____________________ 

Kane, Acting P.J. 

 _____________________ 

Peña, J.