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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
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 fo r Respondent.
-ooOoo-2. In this appeal, a husband challenges the trial court’s decision to uphold a marital settlement agreement. He contends the ag reement was unenforceab le 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 statem ent 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 te stimony 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 ad equate record for assessing the errors asserted, we conclude that the husband has fail ed to establish the grounds on which he claims the agreement is unenforceable and, thus, has failed to affirmatively show th e trial court erred. We therefore affirm the judgment.
FACTS AND PROCED URAL HISTORY Appellant David Schmitt (David) and re spondent 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 bo rn in the spring of 1996. On May 7, 2010, they entered into a written postnup tial 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 lawy ers representing David and Jacqueline. The enforceability of this agreement, which late r 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, a nd he was not in control of himself; (2) he was extremely depressed and thought about su icide or committing himself; (3) Jacqueline pressured him to enter into th e agreement knowing that he lacked the requisite mental3. 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 necessa ry to form a valid contract.
Attached to the declaration was a letter written by David and da ted 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-bei ng of his daughter if he did not sign the agreement. David’s declaration also addressed Jacque line’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, Jac queline filed a petition for dissolution of marriage. On September 13, 2010, Jacqueline an d David executed an amendment to the postnuptial agreement that chan ged it into a marital settlem ent agreement. The notary that witnessed their signatures on the am endment completed an acknowledgement that stated the signers repr esented themselves. On September 18, 2010, the martial sett lement 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 ea rlier pages of the marital settlement agreement. Again, the notar y’s acknowledgement stated that the signers represented
themselves.

1 In contrast, the third recital of the pos tnuptial agreement stat ed that the “parties do not presently contemplate a separation and ha ve no intention of obtaining a dissolution of marriage.”4. On October 29, 2010, a judgment of le gal separation was filed. The marital settlement agreement was attach ed to the judgment. Among other things, the judgment ordered a division of propert y as set forth in the settle ment agreement, which was attached and incorporated in to the judgment. Paragraph 13 of the settlement agreement provided that David’s interest in funds held by a Suppleme ntal Employee Incentive Plan (SEIP) would become commun ity 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, Davi d was admitted to Del Amo Hospital and underwent an
evaluation of his mental health. Dr. Pete r Hirsch was the attending physician and determined that David was 100 percent disabl ed. Dr. Hirsch indicated that, among other things, the goal of David’s hospitalization wa s the alleviation of suicidal risk, the decrease in symptoms of depression and anxi ety, 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 ag ain determined that David was 100 percent disabled. In June 2011, David filed an order to show cause to set as ide the judgment and review child custody, child visitation and a ttorney fees. David contends that this challenge to the judgment was not reso lved by the court due to Jacqueline’s reconciliation attempt. In November 2011, Jacqueline filed an orde r to show cause to set aside the marital settlement agreement. The matter was con tinued twice and it and other matters were heard on March 7, 2012. The March 7, 20 12, minute order of the trial court states: “The court makes the following fi ndings and orders: The agreement was entered into during th e marriage which was attach ed to the judgment of legal separation. The agreement is am ended as requested by [Jacqueline]. The court’s tentative ruling is that from the date the parties signed the agreement it is valid. Th e agreement is not retroactive and the court would5. assign [David] a 35% share of the home. The court will entertain argument by way of brief on the matter before ma king 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 th e matter is submitted. [¶] [Jacqueline] may provide future evidence regarding the percentage given to [David]. Ruling to be given in court on 4/23/1 2.” (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 in corporated into the judgment.
The statement of decision indicated that Jacqueline sought to enforce the marital agreement that had been inco rporated into the October 29 , 2010, judgment and David sought to have the judgment set aside on th e grounds of ambiguity and unenforceability. The statement of decision described the ag reement 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 inequalitie s in the division of property involved (1) the residence held by Jacquelin e and (2) the SEIP held by Davi d. 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 th e 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 th e improvements made by him. As to the SEIP, the agreement provided that it woul d become community property, including David’s separate property portion that was worth about $80,000.
The statement of decision included the tria l court’s finding that both parties were represented by counsel when th e marital agreement was signe d and again when its terms were incorporated into the judgment of lega l separation. The court stated it “originally had some concern regarding th e enforceability of the agreemen t regarding its fairness and as it appear[ed] to encourage [Jacqueline] to seek a dissolution” (full capitalization6. omitted) because of the financial incentives it created. Notwithstanding its original concern regarding enforceability, the court stat ed 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 par ties are represented by counsel, have been previously married to one another and are seeking a legal separation of their second marriage, and have teenage chil d whom they are jointly raisi ng. The court also stated
that it saw no reason to undo th e agreement even if in retr ospect David considered it a
bad deal. The trial court addressed David’s equitabl e arguments by stating that “in light of [David’s] altering of the document before it wa s filed with the court [,] the court sees no equitable reason to grant ... relief as we ll.” (Full capitalization omitted.) Based on the foregoing findings and an alysis, 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 su pport of his motion for reconsideration, David
submitted a declaration that addressed his me ntal 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 Jac queline were sworn and testifie d. The minute order dated July 23, 2012, indicates that David argued th at he recently discovered that his mental disability made him incapable of making any d ecisions and entering into an agreement or contract and, because of the recent disc overy, 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. [Dav id] 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 transc ripts, agreed statement or settled statement of the oral proceedings (which proceedings wo uld 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 unenfor ceable because (1) he proved duress, (2) the agreement was
unfair and thus voidable as a matter for law, (3) the agre ement was obtained by intrinsic and extrinsic fraud, (4) the ag reement 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 re spondent’s brief. Instead, she sent a one-paragraph letter stating she did not have the funds to obtain appellate c ounsel and asked this court to
note that the trial court found David had forged the marital ag reement filed with the court in 2010 and his appeal is simply a disagreeme nt 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 c ourt “may decide the appeal on the record, opening brief, and any oral argument by th e appellant.” Thus, we will not treat Jacqueline’s failure to file a re spondent’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 e rror 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 th e substantial evidence standard and the trial court’s resolution of a ques tion 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 th e support for a finding, we must view the evidence in the light most favorable to the pr evailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor. ( Ibid .) Furthermore, evidence is defined as “substantial” for purpose s 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, c onstitutes 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 appella nt 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 reco rd lacks substantial ev idence to support that finding of fact. ( Boeken v. Philip Morris Inc. (2005) 127 Cal.App. 4th 1640, 1658.) To
demonstrate the absence of substantial eviden ce, 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 of9. the portion of the trial relating to the issue of damages. The court stated that because of the absence of a transcript or settled statemen t regarding that portion of the trial it had no way of ascertaining whether th e 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 th erefore failed to carry the burden of showing prejudicial error. ( Ibid .) II. DURESS, UNDUE INFL UENCE 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 in fluence against him. The minute order includes the following sentence: “The agreement is one sided and was signed under some duress.” (Some capita lization omitted.) The trial court’s statement that the ag reement was signed under some duress was not a finding ultimately adopted by the trial cour t. Instead, the stat ement was part of the tentative ruling made by the court in the Ma rch 7, 2012, minute order. Subsequently, in the statement of decision, the court stated it “originally had some concern regarding the enforceability of the agreemen t ....” (Full capitalization omitte d.) 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 awar e of the issue concerning duress and still concluded the agreement was enfo rceable. Under the applicable rule of appellate review, we are required to conclude that the tria l 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 impl y findings in support of judgment where10. missing findings are not brought to attention of trial court]; Denham v. Superior Court , supra , 2 Cal.3d at p. 564 [courts indulge all pres umptions in favor of the judgment].) B. Presumption of Undue Influen ce and Family Code Section 721 When an interspousal transfer of pr operty advantages one spouse to the disadvantage of the other, a presumption aris es 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 tr ansaction must show by a preponderance of
the evidence that the a dvantage was not gained in viola tion 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 knowle dge 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 pres umption 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 c ontain an explicit reference to the presumption or Family Code section 721. The statement of decision did mention, however, that a party may knowingly and vol untarily agree to an unequal division of property and then stated it saw no reason to un do the agreement. This language can be interpreted in different ways regarding the que stions whether the trial court was aware of the presumption of undue influence and whet her the court required Jacqueline to rebut that presumption by a preponderance of the evidence.11. David interprets the statemen t of decision as failing to a ddress these questions and, therefore, takes the view that the trial c ourt did not require Jacqueline to rebut the presumption. Under the applicable rules of law, a part y claiming omissions or ambiguities in the factual findings in a statement of decision mu st bring those omissions or ambiguities to the trial court’s attention purs uant to Code of Civil Proce dure section 634 before such objections will be considered by an appellate c ourt. 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 wa s 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 tria l 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 clarifie d before the trial court. ( Id . at p. 1138.) Nothing in the record before this court demonstrat es that David objected to the
failure of the statement of decision to e xplicitly address whether Jacqueline had proven by a preponderance of the ev idence that David entere d the agreement freely and voluntarily, with full knowledge of the facts, and with comple te understanding as to the agreement’s effect on his property interests. Therefore, under the rules regarding st atements 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 th at 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 comple te understanding as to the impact on his property interests. Under those rules of law, such a finding is implic it in the trial court’s
broad statement that it could see no reason to undo the agreement.12. C. Separate Counsel a nd Rebutting Presumption David contends: “Probative proof that ag[grieved] spouse had separate legal counsel or the opportunity to obtain such advice is not es sential to a rebu ttal of the undue influence presumption.” He also contends that the fact that he had legal counsel did not relieve Jacqueline of her fiduciary obligatio n in the negotiating of the agreement. Without supporting citations to the record, Da vid asserts that he wa s told to go to a particular attorney and tell th e attorney that he was need ed just to ac knowledge the signature on the agreement, which had been prepared by Jacqueline and her attorney within the two weeks pr ior to the signing of the agreemen t. David also asserts that, besides choosing his attorney, Jac queline 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 fiduc iary obligation as a result of wife employing attorney to negotiate agreement].) Our agreement on this point of law, howe ver, 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 th at David may not argue on appeal that the trial court erroneously failed to address the presumptio n 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 agreem ent. David refers to the c ourt’s tentative ruling of March 7, 2012, which states that “the agreement is one sided.” David then reiterates his position13. that “the court erred in never requiring Jacq ueline 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 st atement of decision, which is the final and operative expression of the trial court’s dete rminations for purposes of this appeal. Second, applicable law requires this court to conclude that the tria l court impliedly found Jacqueline presented sufficient ev idence to rebut the presump tion of undue influence. ( In re Marriage of Arceneaux , supra , 51 Cal.3d at p. 1133-113 4.) Therefore, David’s unfairness argument fails to demonstrate prej udicial 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 th e amendment converting it into a marital settlement agreement while knowing he was under psychological car e 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, subd ivision (b): “It occas ionally happens that the division of property or the award of suppor t, whether made as a result of agreement or trial, is inequitable when made due to the n ondisclosure or other mi sconduct of one of the parties.” David supports his version of events by citing to attachments to his July 2012 declaration, which was submitte d 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 demo nstrating prejudicial error. ( Denham v. Superior
Court , supra , 2 Cal.3d at p. 564.) To carry that burden, an appellant must present an14. adequate record of the trial court proceedings. In this context, “a dequate” 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, 12 95-1296.) When an appellant disagrees with a trial court’s evaluation of the evidence, the appella nt must provide the appellate court with a complete re cord of that ev idence. (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 th e trial court. This omission precludes this court from examining all of the evidence presented to the tria l 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 th e trial court’s decision is correct. Furthermore, the record presented by Da vid does not provid e the basis for the following statement by the trial court: “Furthe r[,] 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, s ubdivision (b) in conn ection with the phrase
“other misconduct of on e of the parties.” In short, the trial court appears to have found that the equitie s did not favor David because he altered the agreem ent 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 doc trine of “unclean hands” precludes the possibility of equitable relief to one tainted with in equitableness 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 agreemen t and the subsequent modification that
converted it into a marital se ttlement agreement sh ould be set aside because of his
unsound mind. A. Principles of Contract Law Conc erning 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.) Pe rsons 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 pa rties’ 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 co mprehend the subject of negotiation. ( Jacks v.
Estee (1903) 139 Cal. 507, 512-513.) Pursuant to Civil Code section 38, a “p erson entirely without understanding has no power to make a contract of any kind, but th e person is liable for the reasonable value of things furnished to the pers on necessary for the support of the person or the person’s family.” In addition, a “contract of a pe rson of unsound mind, but not entirely without understanding, made before the incapacity of the person has been ju dicially 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 c ourt indicated that it saw no reason to undo the parties’ agreement even t hough, in retrospect, David considered it a bad deal. Under

3 The capacity of a person of unsoun d mind to form a binding contract is addressed in sections 38 through 41 of th e 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 tr ial court found David ha d the requisite mental capacity at the time the agreem ent and the amendments were signed. Furthermore, this implied finding of fact regarding David’s ment al 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 rule s of law, we are required to presume that the omitted testimony contains evidence that adequately su pports 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 SET TLEMENT AGREEM ENT 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 tria l 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 si ze of the house, and (2) stating that the parties’ agreement provides that David would ha ve 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 Ja cqueline to be land that she had prior to marriage and the amount she paid for such prop erty.” The word “spate” probably is a typographic error and was intended to be “s eparate,” with the reference being to the separate property of Jacqueline listed in Exhib it D to the agreement. That exhibit lists four parcels of “real property” that Jacqueline acquired in the first half of 2004. Contrary17. to the assertion made in David’s appellate br ief, 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. Si milarly, Black’s Law Dictionary (8th ed. 2004) defines “real property” as “[l]and and a nything 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 im provements made to the parcels listed as Jacqueline’s separate property we re covered by the agreement. The term “real property” clearly includes such improvements and, ther efore, the trial court did not err when it interpreted the agreement in that manner.
VI. PREMATURE JUDGMENT
David contends that the trial court e rred by issuing its Ma y 4, 2012, ruling concerning the enforceab ility 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 th e opportunity to pres ent 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 on ly 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 a nd 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 pr esent this court with an appellate record that affirmatively demonstr ates 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 cour t are affirmed. Costs on appeal, if any, are awarded to Respondent.

_____________________ Franson, J. WE CONCUR:

_____________________ Kane, Acting P.J.

_____________________ Peña, J.