Marriage of Miotke

Filed 5/28/19
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

In re the Marriage of NATALIA and H040611, H040972
PETER MIOTKE. (Santa Clara County
Super. Ct. No. 2010-6-FL-005329)
NATALIA ZARUBIN,

Appellant,

v.

PETER MIOTKE,

Respondent.
In March 2013, a private judge retained by the parties in this dissolution action
found the premarital agreement they signed in 1996 (PMA) to be enforceable, including
the provision waiving spousal support to either party. The trial court denied Appellant
Natalia Zarubin’s request to set aside the private judge’s decision (the set aside order). It
then entered a judgment on reserved issues (the judgment) incorporating the PMA,
including its waiver of spousal support. On appeal, Natalia1 asks us to reverse the set
aside order and the portion of the judgment denying spousal support.2 In the unpublished
portion of our decision, we conclude the trial court committed no error in upholding the
validity of the PMA and issuing the set aside order. In the published portion of the

*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II(A)-(D), and (F).
1
As is traditional in family law cases, for purposes of readability we refer to the
parties by their first names.
2
Natalia separately appealed the set aside order (case No. H040611) and the
judgment (case No. H040972). We ordered the cases be considered together for the
purpose of briefing, oral argument and disposition.
decision, we determine the trial court properly entered judgment incorporating the PMA
and its waiver of spousal support. We affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Circumstances Leading to Premarital Agreement3
Natalia and Respondent Peter Miotke began communicating in 1995; at the time
Natalia lived in Russia and Peter in the United States. Both parties were trained
architects. All of their correspondence was in English. They first met in person in
St. Petersburg, Russia. They met a second time in Houston, Texas, where Natalia was
participating in an internship through a cultural exchange program set up by the United
States Information Agency in Washington, D.C. To qualify for the program, Natalia had
to be proficient in English. In October 1995, Natalia began working for an architectural
firm in Houston; she did architectural drafting work in English.
Natalia moved to California in November 1995; she became pregnant with the
parties’ child in December 1995. During her pregnancy, she worked part-time at Subway
sandwiches, doing bookkeeping for the owners. Natalia gave birth to the parties’
daughter in September 1996.
After the child’s birth, Natalia determined she wanted to remain in the United
States. The parties decided to marry. Peter indicated his desire to have a prenuptial
agreement; he “secured a paralegal’s help.” Peter was concerned that Natalia was
“scamming” him for money or property. He did not want her to leave the country and
“interfere with his property rights.” Peter was concerned about having to pay spousal
support to Natalia if she lived in Russia.

3
In the absence of a certified reporter’s transcript, the facts are mainly derived
from the private judge’s May 14, 2013 trial decision, entered after a bifurcated trial on
the issue of the validity of the PMA. We discuss the inadequacy of the record in our
analysis.

2
 The parties met with the paralegal and signed the PMA on October 26, 1996.
While Peter claimed he obtained a boilerplate agreement from the paralegal on
October 17, 1996, and brought it home for Natalia to review, Natalia denied seeing the
agreement prior to visiting the paralegal’s office. Peter testified the parties had
previously discussed a waiver of spousal support and that Natalia would be awarded
custody of their children in the event of a dissolution of the marriage. At the time the
parties executed the agreement, the “paralegal said that the agreement could be drafted by
an attorney and had the parties sign an acknowledgment that the parties knew she was not
giving legal advice.” The parties agreed “that they went to the paralegal’s office to sign
the agreement in anticipation of their marriage and that financial disclosures were
completed at the paralegal’s office.”
The PMA consists of four pages, with an additional four pages of financial
disclosures attached. Relevant to these appeals, the PMA states, “Both parties agree that
in the case of separation or divorce there will be no spousal support owed by either of the
parties to the other. Both parties are also in agreement that all children will remain in the
custody of Natalia Zarubin upon separation or dissolution unless otherwise stipulated and
agreed on by legal separation and/or dissolution of marriage.” The parties further agreed
if one provision of the PMA was held invalid or unenforceable, the remaining provisions
would continue to be valid and enforceable.
The parties married on November 14, 1996, 19 days after the execution of the
PMA. On March 26, 1997, Peter filed an I-130 “Immigrant Petition for Relative,
Fiance(e), or Orphan,” which the United States Department of Justice, Immigration and
Naturalization Service approved on July 21, 1997.4 (Capitalization omitted.)
The parties separated in December 2010, after 14 years of marriage.

4
We took judicial notice of the I-130 sponsor’s petition for an immigrant spouse
and affidavit of support, filed by Peter with the federal government under the
Immigration and Nationality Act.

3
 B. Court Proceedings Regarding Validity of the PMA
The trial court acquired jurisdiction over the dissolution in April 2011; it entered a
status-only judgment dissolving the marriage in November 2011. In response to
Natalia’s request for spousal support, Peter asked the trial court to determine the validity
of the PMA. At a settlement conference in February 2012, the parties stipulated to retain
a private judge, the Honorable Catherine Gallagher (Ret.) to hear all issues in the case
except for custody and visitation. She set a separate trial on the issue of the validity of
the PMA, including a schedule for exchanging witnesses, exhibit lists, and trial briefs.5
Judge Gallagher commenced the trial on the validity of the PMA in
September 2012; both parties were represented by counsel during the hearing.6 Judge
Gallagher filed her written ruling on May 14, 2013 (Trial Decision), in which she
summarized the issues as follows: “[Natalia] attacks the prenuptial agreement on several
grounds. [Natalia] claims that she did not execute the agreement voluntarily, that the
agreement is unconscionable given [Natalia’s] financial and medical circumstances,
including her depression, and that the disclosures between the parties were inaccurate as
well as being unfair and unreasonable. [Natalia] further argues that the prenuptial
agreement is the product of duress, menace, fraud and/or undue influence. Finally,
[Natalia] claims that the agreement is unenforceable because as required in Cal. Fam.
Code § 1615 (c), [Natalia] was not represented by counsel when the agreement was

5
The record on appeal contains limited information regarding the evidence and
pleadings presented to Judge Gallagher. It includes an unfiled document entitled
“Petitioner’s Trial Brief,” listing the September 6, 2012 trial before Judge Gallagher as
the relevant hearing. While there is nothing in the record indicating Natalia filed this
brief with Judge Gallagher or served it on Peter prior to the September 2012 trial, the
legal arguments it outlines mirror those addressed by Judge Gallagher in her written
decision.
6
At oral argument, Natalia’s counsel suggested Natalia represented herself at this
trial; the record on appeal contradicts this assertion.

4
signed and she was not given seven calendar days between the time that she was first
presented with the agreement and the time the agreement was signed.”
Judge Gallagher resolved disputed testimony regarding the circumstances
surrounding the signing of the PMA. In particular, she found Natalia not credible with
respect to the circumstances surrounding the signing of the PMA. “[Natalia] testified that
she was still suffering from the birth of their daughter and that their daughter was sick on
the day the prenuptial was signed. . . . [¶] . . . [Natalia] suggested that she was prescribed
some very strong medications after her daughter’s birth for lacerations, giving the
impression that the pills were a narcotic and that she could not drive or breast feed her
child while taking the medicine. . . . It is unbelievable that a doctor would prescribe three
hundred sixty pills (4 pills a day for 90 days) that were narcotics for pain to a new
mother.” Although “[Natalia] argues that [the child] was very sickly during the early
months of her life and the baby distracted [Natalia] on October 26, 2012 [sic][7]. . . .
[Peter] believes that the problem with the formula was fixed with the switch to soy milk
and that the urinary tract infections didn’t occur until December following her birth.”
“[Natalia’s] testimony was, at times, unreliable and lacked credibility. [Peter’s]
recollection was much more consistent, reliable and credible.”
Judge Gallagher further found, “[Natalia] is obviously an intelligent woman.
Although English is not her native language, she was capable of understanding the terms
of the prenuptial agreement and the effect of the prenuptial agreement on each party.
Before their wedding, [Peter] indicated that he wanted a prenuptial agreement and
secured a paralegal’s help. Neither party was ever represented by an attorney. Both
parties agree that they went to the paralegal’s office to sign the agreement in anticipation
of their marriage and that financial disclosures were completed. The prenuptial
agreement was only four pages long, with an additional four pages of financial
7
The context of this statement indicates Judge Gallagher meant to say
October 26, 1996, the day the parties signed the PMA, not October 26, 2012.

5
disclosures annexed to the agreement and was not particularly complex.” Judge
Gallagher found no evidence Natalia lacked the mental capacity to enter the PMA. Nor
was there evidence Natalia signed the PMA as a result of “trick or deception.”
Judge Gallagher determined the parties “discussed, negotiated, and agreed to” the
provision of the PMA waiving spousal support and making custody provisions. She
found the PMA “expressed [the parties’] desires at the time of execution. The prenuptial
agreement likewise disclosed each party’s separate property. While these disclosures
were not perfect, the level of disclosure of each sides [sic] assets and liabilities was fair,
reasonable, and full.” Judge Gallagher observed that Natalia was capable of
understanding Peter’s disclosures. Although Natalia was not working at the time she
signed the PMA, Judge Gallagher noted that Natalia disclosed a net worth of $107,000 in
her financial disclosures and admitted to owning a condominium in Siberia and stock
from her former Russian employer, Gasprom, as well as a checking account. Peter
disclosed net worth of $199,500, and testified his salary had increased about $4,000
annually by the time of the hearing. Judge Gallagher opined “the evidence presented
does not reveal a significant disparity in the income of the parties and their respective
assets at the time they entered into the agreement,” noting Natalia’s earning history was
similar to Peter’s. “Accordingly, based upon the record presented, [Natalia] failed to
establish any significant inequality of bargaining power, or any surprise or oppression
resulting therefrom.”
Based on this evidence Judge Gallagher found Natalia voluntarily executed the
PMA, which was “not unconscionable when executed.” She ruled the PMA was not the
result of fraud, menace, duress, or undue influence. Finally, she found the PMA was not
subject to the independent counsel and seven-day waiting period requirements of Family
Code sections 1612, subdivision (c), and 1615, subdivision (c), because both were

6
enacted after the parties executed the PMA and neither applies retroactively. Judge
Gallagher ruled the PMA was enforceable.8
C. Motion to Set Aside
Natalia filed a motion to set aside the Trial Decision, which the assigned trial court
judge, the Honorable Margaret Johnson, heard. An attorney filed the motion on Natalia’s
behalf, and appeared with Natalia at the hearing. In her initial pleadings, Natalia cited
Family Code section 2120, subdivision (b),9 Code of Civil Procedure section 473,
subdivision (b),10 and Family Code section 3691,11 arguing the court should set aside the
PMA because it was “unconscionable and inequitable.” She did not provide detailed
discussion of the application of these statutes to the facts cited in support of her motion.
Natalia also argued the PMA was not enforceable because “the essential elements for a
contract did not exist at the time of execution.” She alleged there was no disclosure of
financial information prior to her signing the PMA, and no compliance with Family Code
section 1615, subdivision (c)(2), which required a seven-day waiting period, providing
time to seek advice from independent counsel.

8
It appears that the parties did not return to the private judge for adjudication of
other issues as the trial court thereafter conducted all proceedings.
9
“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.” (Fam. Code, § 2120, subd. (b).)
10
“The court may, upon any terms as may be just, relieve a party or his or her
legal representative from a judgment, dismissal, order, or other proceeding taken against
him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”
(Code Civ. Proc., § 473, subd. (b).)
11
“The grounds and time limits for an action or motion to set aside a support
order, or any part or parts thereof, are governed by this section and shall be one of the
following: [¶] (a) Actual fraud. Where the defrauded party was kept in ignorance or in
some other manner, other than his or her own lack of care or attention, was fraudulently
prevented from fully participating in the proceeding. An action or motion based on fraud
shall be brought within six months after the date on which the complaining party
discovered or reasonably should have discovered the fraud.” (Fam. Code, § 3691,
subd. (a).)

7
 On October 7, 2013, Natalia filed a declaration discussing her circumstances at the
time she signed the PMA, as well as the history of the parties’ relationship between the
signing of the PMA and custody proceedings in 2011. She filed another declaration on
October 21, 2013, discussing the state of the disclosures the parties provided each other
prior to signing the PMA. She did not describe in either declaration why the information
she supplied supported her motion to set aside Judge Gallagher’s ruling.
The record indicates Judge Johnson held one or more hearings before
November 26, 2013, the final hearing on the set aside motion.12 A declaration from
Peter’s counsel states Judge Johnson offered Natalia the opportunity to further brief her
set aside request, giving her until November 15, 2013, to file additional pleadings.
Having not received anything by November 21, 2013, Peter asked Judge Johnson to
decline considering anything filed after that date. At the November 26, 2013 hearing,
Judge Johnson established that she had asked Natalia’s attorney at the time to file,
“something pointing out to me exactly what the grounds were for the set-aside.” The
judge confirmed she had not received anything in response to that request.
However, Natalia had filed a declaration on the day of the hearing, indicating she
had been admitted to the hospital in May 2013 for a mental health disability, which the
doctors determined had started in July 2012. She argued she was mentally ill when Judge
Gallagher held the trial in September 2012, stating, “I was not able to withstand the trial.
I was found not credible by the judge. I did not undergo competency evaluation for my
diability [sic] before the 09/2012 trial.” She asked the trial court to set aside the Trial
Decision under Code of Civil Procedure section 473.
Upon learning of this new declaration, Peter’s attorney objected to the trial court
considering new allegations not pled in the initial pleadings; Judge Johnson sustained the
objection. She allowed Natalia’s attorney the opportunity to explain the delay in

12
The record does not include minute orders or transcripts from such hearing(s).

8
providing the information prior to the date of the hearing. Judge Johnson then denied the
request to set aside the Trial Decision with prejudice, noting Natalia could have notified
Peter and the trial court prior to the hearing that she was having difficulty obtaining
evidence needed to support her request. On January 14, 2014, Natalia, on her own
behalf, filed an additional declaration “in response” to Judge Johnson’s denial of the set
aside motion. There is nothing in the record on appeal indicating Natalia ever took action
to bring her January 2014 declaration to the trial court’s attention, or that the trial court
ever took action based on the declaration.
On January 21, 2014, Natalia filed notice of her appeal of Judge Johnson’s oral
order, made November 26, 2013, denying the set aside motion. The trial court filed a
written findings and order after hearing confirming that order on January 27, 2014.
D. February 2014 Trial
The trial court set the case for trial on all reserved issues before the Honorable
James Towery commencing February 6, 2014, to reach a final judgment. The attorney
who represented Natalia at the September 2012 trial and the November 2013 hearing in
limited scope appeared briefly but left once it was determined the trial fell outside the
scope of her representation; the attorney indicated Natalia signed and filed a substitution
of attorney during a break on the first day of trial, although the substitution of attorney
form is not part of the record on appeal.
At the outset, Judge Towery indicated his belief that Judge Gallagher’s Trial
Decision was the “law of the case” as to issues concerning the validity of the PMA. He
understood Natalia had filed an appeal of the set aside order. Judge Towery stated
spousal support was not an issue that was under consideration for trial, given Judge
Gallagher’s ruling that the PMA, and the waiver of spousal support contained therein,
was valid. Although Natalia had not filed a pretrial statement, based on her belief a
bankruptcy stay in place until the day before the trial precluded her from doing so, the
court indicated she could still raise her claims for reimbursements, if she brought in all

9
relevant documents by the next day of trial. Natalia requested a continuance not on the
grounds that she did not have representation, but rather based on her belief she could not
have a fair and impartial trial before Judge Towery, believing he was denying her request
for reimbursements, and because of her medical condition. Judge Towery confirmed
Natalia could seek reimbursements. He also confirmed he would allow Natalia
appropriate breaks to take medication; he denied any continuance of the trial based on her
medical condition, finding she did not provide sufficient evidence of her current
condition to support such a request.

When Peter attempted to introduce the PMA into evidence in his case in chief,
Natalia objected on the grounds she had filed an appeal. Judge Towery overruled the
objection, again noting that Judge Gallagher’s Trial Decision was part of the “law of the
case” guiding property division. “This is not to say that we are reopening the evidence
regarding the prenup or seeking to change Judge Gallagher’s ruling in any way, but that
ruling is final, and this court views that ruling as being binding on it.”
On the second day of trial, February 7, 2014, Natalia filed a “trial statement” and
“trial brief.” In her statement, Natalia listed spousal support as an issue she wanted the
trial court to hear. In her trial brief, Natalia argued that the trial court should order
spousal support pursuant to Family Code section 1612, subdivision (c), on the basis her
waiver of such support in the PMA was unconscionable at the time of enforcement.13
Judge Towery reviewed Natalia’s brief at the start of the second day of trial, and
immediately denied the request for spousal support, again reconfirming that Judge
Gallagher upheld the PMA, thus resolving the issue of support based on the waiver

13
Family Code section 1612, subdivision (c) provides, in relevant part, “Any
provision in a premarital agreement regarding spousal support, including, but not limited
to, a waiver of it, is not enforceable if the party against whom enforcement of the spousal
support provision is sought was not represented by independent counsel at the time the
agreement containing the provision was signed, or if the provision regarding spousal
support is unconscionable at the time of enforcement.” (Italics added.)

10
contained therein. “[This] issue has been litigated. It is resolved and we’re not going to
relitigate it.”
Despite this ruling, near the end of the second day, Natalia reiterated her request
for spousal support under Family Code section 1612, subdivision (c), so that she could
avoid becoming a “public charge.” Judge Towery once again denied her request. “[T]his
court has ruled probably a half a dozen times that spousal support is not an issue that we
are resolving today. [¶] The spousal support issue was litigated to finality in the
prenuptial litigation before Judge Gallagher. Judge Gallagher issued her order. Judge
Johnson refused to order a set-aside of Judge Gallagher’s order. You filed a notice of
appeal. That issue is not before us. . . . [¶] . . . [¶] With respect to 1612(c)—that’s of the
Family Code—that is a statute that governs matters that can be covered by a prenuptial
agreement. Any issues that you have regarding that statute could have been and should
have been litigated in the matters before Judge Gallagher regarding the prenuptial
agreement. I don’t have a transcript of what happened there, but I do know that they’re
not part of this litigation.”
Judge Towery continued the trial for a third day of proceedings on
February 11, 2014. Notwithstanding his previous rulings regarding spousal support, the
issue came up again, with regard to a pending request for child and spousal support set
for hearing on February 20, 2014. Judge Towery reconfirmed that the issue of spousal
support was “closed” based on Judge Gallagher’s Trial Decision, and Judge Johnson’s
denial of the set aside motion. Natalia conceded she did not put the issue of section 1612,
subdivision (c) before the court.
At the hearing on February 20, 2014, Judge Towery again denied Natalia’s request
for spousal support. “This Court has specifically found that the order issued by Judge
Gallagher pertaining to the parties’ premarital agreement controls the issue of spousal
support in that both parties waived spousal support in the premarital agreement and that
agreement has been upheld as valid. [Natalia], in this and other requests, has failed to

11
state a legal basis on which the order made by Judge Gallagher should be overturned or
on which spousal support could be ordered. [Natalia’s] citation of Family Code
Section 1612 is inapplicable to this request.”
On March 4, 2014, the trial court filed a written judgment on reserved issues
adopting the rulings made throughout the February 2014 trial. The box on the Judicial
Council form Judgment (FL-180) was checked indicating jurisdiction over spousal
support was terminated as to both parties. “The Court finds that the premarital agreement
executed by the parties prior to marriage included a waiver of such support by both
parties and that the Trial Decision of Judge Gallagher filed on May 14, 2013 found the
premarital agreement, including the waiver of spousal support, to be conscionable and
valid. Based on this finding, this Court, and any other Court, is divested of the
jurisdiction to award spousal support to either party.”
Natalia filed notice of her intention to move for a new trial on March 7, 2014,
which was denied by the trial court on April 29, 2014. On April 30, 2014, Natalia filed
notice of her appeal of the judgment.
II. DISCUSSION
A. Timeliness of Appeal
Peter asks the Court to dismiss Natalia’s appeal on the grounds she did not file her
notice of appeal within 180 days of Judge Gallagher issuing her Trial Decision. In
reality, when Natalia filed her initial appeal of the set aside order (case No. H040611), it
was premature; the Trial Decision was not, by itself, appealable, as it was a ruling on a
bifurcated issue made prior to the final judgment, and the trial court did not issue a
certificate of probable cause.14 (Code Civ. Proc, § 904.1, subd. (a)(1); Fam. Code,

14
At the November 26, 2013 hearing, Judge Johnson indicated Natalia had the
right to appeal her ruling or file a writ. This does not meet the requirements for a
certificate of probable cause. (Cal. Rules of Court, rule 5.392(b).)

12
§ 2025; Cal. Rules of Court15, rule 5.392(b).) As the Trial Decision was not appealable,
the set aside order was not immediately appealable. (Garcia v. Hejmadi (1997) 58
Cal.App.4th 674, 680 (Garcia).) Both the Trial Decision and the set aside order became
appealable once the trial court entered the February 2014 judgment. (Code Civ. Proc.,
§ 904.1; see rule 5.392(h)(1), (3); Garcia, supra, 58 Cal.App.4th at p. 680.) We therefore
deem Natalia’s appeal of the set aside order filed on the date of the judgment. She timely
filed her notice of appeal of the judgment (case No. H040972). Therefore, we deny
Peter’s request to dismiss the appeal.
B. Inadequacy of Record/ New Issues Raised on Appeal
At the outset, we note deficiencies in the record on appeal. Natalia’s arguments
require this court to evaluate the proceedings in the trial court, in particular proceedings
conducted by the stipulated private judge. Natalia has the burden of ensuring we have a
sufficient record on which to assess her claims. (Foust v. San Jose Construction Co., Inc.
(2011) 198 Cal.App.4th 181, 187 (Foust).) The limited documents in the record
pertaining to the trial on the PMA suggest Natalia did not raise many of the arguments
now made on appeal at the time that judge evaluated the validity of the agreement.
Natalia did not provide a transcript from the trial held by that judge in September 2012.16
As a general rule, in order to raise issues on appeal, Natalia had to first raise them
in the trial court. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 603 (Johnson).) “The
general rule against new issues is subject to an exception that grants appellate courts the
discretion to address questions not raised in the trial court when the theory presented for
the first time on appeal involves only a legal question determinable from facts that are

15
All subsequent references to rules of court are to the California Rules of Court.
16
In her opening brief, Natalia indicates “no transcript is available,” and thus
concedes we will presume the evidence presented at trial was sufficient to support the
private judge’s factual findings. The record on appeal suggests a court reporter may have
been present at that trial; Peter sought reimbursement for payments he made to the court
reporter.

13
(1) uncontroverted in the record and (2) could not have been altered by the presentation
of additional evidence.” (Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228,
1237-1238 (Esparza).) As discussed below, we decline to consider issues Natalia raises
for the first time in this appeal.
1. There is No Evidence Natalia Raised Certain Claims with Judge Gallagher
As discussed in her opening brief, Natalia recognizes the limits of the record
concerning the trial held before Judge Gallagher, as there is no reporter’s transcript of
that hearing in the record on appeal. The only information we have from that hearing is
the stipulation placing the issues before Judge Gallagher, a case management order
setting the trial and briefing schedule, the brief Natalia presumably provided to Judge
Gallagher prior to the trial, and the resulting Trial Decision. Assuming Natalia did
provide the pretrial brief to Judge Gallagher, it represents some minimal evidence of the
arguments she made at the September 2012 trial. Comparing those arguments to the ones
Natalia makes in the instant appeal, it does not appear she raised most of her arguments
on appeal to Judge Gallagher. Ultimately, Natalia has not designated a sufficient record
on appeal for us to determine whether she raised most of her claims to Judge Gallagher,
the judicial officer evaluating the enforceability of the PMA.
“[A] judgment or order of the trial court is presumed correct and prejudicial error
must be affirmatively shown. [Citation.] ‘In the absence of a contrary showing in the
record, all presumptions in favor of the trial court’s action will be made by the appellate
court. “[I]f any matters could have been presented to the court below which would have
authorized the order complained of, it will be presumed that such matters were
presented.” ’ [Citation.] . . . ‘ “A necessary corollary to this rule is that if the record is
inadequate for meaningful review, the appellant defaults and the decision of the trial
court should be affirmed.” ’ [Citation.] ‘Consequently, [appellant] has the burden of
providing an adequate record. [Citation.] Failure to provide an adequate record on an

14
issue requires that the issue be resolved against [appellant].’ [Citation.]” (Foust, supra,
198 Cal.App.4th at p. 187.) We examine the record before us in light of this rule.
On appeal, Natalia raises four arguments in her opening brief unsupported by any
record designation indicating they were raised in the hearing before Judge Gallagher.
There is nothing in the record indicating Natalia asked Judge Gallagher to determine
whether there was a failure of consideration because the custody and visitation provision
of the PMA was invalid or unenforceable, or whether the custody and visitation provision
was severable from the rest of the agreement.17 Nor is there evidence in the record
Natalia asked Judge Gallagher to determine whether the PMA was unconscionable at the
time of enforcement, versus at the time of execution. There is nothing in the record
indicating Natalia argued Judge Gallagher should find the PMA invalid because it did not
consider the waiver of spousal support in light of Family Code sections 4320-4326.
Finally, there is nothing indicating Natalia asked Judge Gallagher to consider the alleged
history of domestic violence in the parties’ relationship relative to the enforceability of
the PMA.18

17
Shortly before oral argument, Natalia filed a request to strike her opening brief
and replace it with a new brief, conceding that “[c]hild custody provisions were not
before the court at the time of decision, the designated proceedings on appeal do not
include all of the testimony, and the notice on appeal does not state child custody
provisions to be raised on appeal,” such that it was “appropriate to withdraw the
argument” regarding the impact of custody provisions on the enforceability of the waiver
of support. As discussed in more detail in footnote 23, post, we denied her motion.
18
The record does indicate Natalia’s attorney at the time brought up issues
concerning the custody provision of the PMA and the alleged history of domestic
violence before Judge Johnson in a November 2011 trial, although only in pretrial
discussions and testimony, and not in argument. Judge Johnson started, but did not
complete, a trial on the validity of the PMA; the parties then stipulated to have a private
judge hear the matter. Different attorneys represented Natalia at the November 2011 and
September 2012 trials. We cannot discern from the record whether the attorney
representing Natalia at the later trial raised the same issues as her attorney at the earlier
trial, particularly as these issues are not referenced in the pretrial brief or Judge
Gallagher’s Trial Decision. Judge Gallagher does not suggest in the Trial Decision that

15
 In her first supplemental brief, Natalia argues the PMA was unconscionable at the
time of enforcement because it left her a “public charge.”19 As with the arguments cited
ante, there is no evidence in the record Natalia raised this contention with Judge
Gallagher. Nor did Natalia designate a sufficient record to determine whether she raised
these issues to the trial court at the time of enforcement of the spousal support waiver,
which was at the trial before Judge Gallagher. (See Section II(E)(1), post.) As it was
Natalia’s burden to provide the necessary record, we resolve the issue against Natalia and
assume she did not raise the issues before Judge Gallagher. (Foust, supra, 198
Cal.App.4th at p. 187.) These issues do not involve “legal questions determinable from
facts that are (1) uncontroverted in the record and (2) could not have been altered by the
presentation of additional evidence.” We therefore find it unnecessary to exercise our
discretion to consider these new issues on appeal. (Esparza, supra, 13 Cal.App.5th at
p. 1238.)
2. Natalia Did Not Raise Issues Regarding the Affidavit of Support to the Trial
Court
In her second supplemental brief, Natalia argues Peter signed an affidavit of
support when he submitted a form I-130 immigration petition for Natalia to obtain a

the parties offered the November 2011 trial transcript into evidence at the
September 2012 trial.
19
In response to both Natalia’s first and second supplemental briefs, Peter asks us
to “dismiss” the supplemental briefs, as they are not limited to new legal authorities or
new legislation not available at the time of her initial brief. In doing so, Peter cites
rule 8.520(d), which applies to supplemental briefing in the Supreme Court. There is not
a similar rule for supplemental briefs in Court of Appeal proceedings. (See rule 8.200 et
seq.) We allowed Natalia to file the first supplemental brief to address the clerk’s
transcript not yet available at the time she filed her opening brief; that is what she did.
We allowed the second supplemental brief to address relatively new legal authority.
There is no prejudice to Peter in our consideration of Natalia’s first and second
supplemental briefs, given our rulings in this opinion.

16
visa.20 Under 8 Code of Federal Regulations part 213a.2(e), certain petitioners are
required to submit an affidavit of support in order to obtain visas for spouses and other
relatives. In his response to the second supplemental brief, Peter does not deny signing
such an affidavit. Natalia contends the trial court erred in upholding the PMA, denying
her request for spousal support, and terminating the court’s jurisdiction over such support
because Peter has a distinct and independent obligation to provide her spousal support
under the federal regulations governing the issuance of her visa to remain in the United
States.
Neither of the cases Natalia relies on allow her to raise these arguments for the
first time on appeal. In Kumar, the appellate court confirmed that the right to support
under an affidavit of support signed for immigration purposes is distinct from the right to
support afforded by the Family Code. (Kumar, supra, 13 Cal.App.5th at p. 1081, citing
Erler v. Erler (9th Cir. 2016) 824 F.3d 1173, 1177 (Erler).) There, the immigrant spouse
raised the issue of support under the affidavit throughout the dissolution proceedings.
(Kumar, at pp. 1076-1078.) On appeal, she cited the affidavit, rather than the state
statutes, as the basis for seeking support. (Id. at p. 1082, fn. 9.) The trial court explicitly
denied the spouse’s request to enforce the affidavit, indicating it would only do so if the
government sought enforcement. (Id. at p. 1078.) The Court of Appeal reversed, finding
the trial court incorrectly denied the spouse’s contract claims on the ground she lacked
standing to enforce the I-864 affidavit. (Id. at p. 1083.) However, nothing in the decision

20
The affidavit of support is not part of the record on appeal; Natalia submitted the
notice approving the I-130 petition as an appendix to her second supplemental brief, but
she did not include the petition or affidavit. As noted in footnote 4, ante, we took judicial
notice of “the I-130 sponsor’s petition for an immigrant spouse and affidavit of support,
filed by [Peter] with the federal government under the Immigration and Nationality Act.”
Peter states he, “signed an Immigration Form I-984 as a family sponsor for [Natalia]
during her immigration process.” It appears this form number is a typographical error;
later in his response he references form I-864, which is the form at issue in the primary
case cited by Natalia, In re Marriage of Kumar (2017) 13 Cal.App.5th 1072, 1075,
review denied (Oct. 18, 2017) (Kumar).

17
indicates the court in Kumar considered the interplay between the affidavit of support and
a premarital agreement.
In Erler, the immigrant spouse filed an action to enforce her former spouse’s
obligations under an affidavit of support signed after the parties’ married. (Erler, supra,
824 F.3d at pp. 1175-1176.) The citizen spouse argued the parties’ premarital agreement
and divorce judgment terminated his obligations under the affidavit. (Id. at p. 1176.)
The Ninth Circuit Court of Appeals found the district court correctly rejected these
arguments. (Ibid.) “[U]nder federal law, neither a divorce judgment nor a premarital
agreement may terminate an obligation of support.” (Id. at p. 1177; see Dorsaneo v.
Dorsaneo (N.D. Cal. 2017) 261 F.Supp.3d 1052, 1054; Liu v. Mund (7th Cir. 2012) 686
F.3d 418, 419-420, as amended (July 27, 2012).)
Natalia does not cite any portion of the record on appeal indicating she raised this
issue to the trial court at any relevant point in the proceedings, nor do we find evidence
she did so in our review of the record. In her reply21, Natalia notes Judge Gallagher
stated, in her Trial Decision, “[Peter] did not believe that their marriage would help
[Natalia’s] efforts to remain in the United States.” This brief statement does not
demonstrate Natalia asked the court to consider the affidavit of support in evaluating the
validity of the PMA, or that Judge Gallagher took the affidavit into account in issuing the
Trial Decision. Natalia did not address the affidavit in the brief she provided to Judge
Gallagher prior to the trial.

21
Notably, we did not authorize Natalia to file a reply addressing the immigration
issues raised in her second supplemental brief. In the reply, she addresses several factual
and legal issues not raised in the second supplemental brief or Peter’s response thereto.
Given our finding that the issue of the affidavit of support was not properly raised to the
trial court before being raised on appeal, we do not believe there is any prejudice in us
considering the unauthorized reply, as we do so for the purpose of confirming the
appropriateness of that finding.

18
 As already discussed, we can consider a theory presented for the first time on
appeal if it involves only a legal question determinable from uncontroverted facts that
could not have been altered by the presentation of additional evidence. (Esparza, supra,
13 Cal.App.5th at pp. 1237-1238.) Natalia argues she is entitled to support based on the
affidavit of support. Peter contends that his obligation under the affidavit terminated
during the marriage. To the extent Natalia does now seek to enforce the affidavit, Peter’s
response makes it clear the issue of whether he continues to owe Natalia support under
the affidavit cannot be determined from facts uncontroverted in the record.
Under 8 Code of Federal Regulations part 213a.2(e)(2), Peter’s support obligation
terminates by operation of law on the happening of certain events, such as the immigrant
spouse obtaining United States citizenship, or when the immigrant spouse has worked, or
can be credited with, 40 qualifying quarters of coverage under the Social Security Act,
among other things. (8 C.F.R. § 213a.2(e)(2).) Peter alleges Natalia became a citizen
during the marriage, such that his obligation under the affidavit of support ended before
the dissolution proceedings began. Moreover, he argues Natalia was able to work and
support herself after the filing of dissolution, suggesting there could be a dispute
regarding her coverage under the Social Security Act.
Based on Natalia’s reply to Peter’s arguments, it seems she is not necessarily
seeking to enforce the affidavit. Rather, she believes Peter signing the affidavit of
support constituted a waiver of his rights under paragraph 8(d) of the PMA, and thus
granted Natalia the right to seek future support under state spousal support laws, even if
he no longer has an obligation to support her under the affidavit of support. Generally
citing “contract law,” Natalia argues “a party waives a contractual right by intentionally
relinquishing the right or engaging in conduct that warrants the inference that the right
has been relinquished.” But again, the issue of Peter’s intent, or any inferences that can
by drawn from his conduct, is a factual issue that could be altered by the presentation of
additional evidence. Whether Natalia alleges Peter has an ongoing duty to support her

19
under the affidavit of support, or she claims the affidavit of support served to negate the
spousal support waiver contained in the PMA, Natalia did not raise either of these
arguments to the trial court at any time during the relevant proceedings. Critically, in
both Kumar and Erler, the immigrant spouse raised the affidavit of support in the trial
court. By comparison, the record on appeal in the instant matter does not show Natalia
made a claim for support under or related to the affidavit in the trial court.22 Given that
the facts are controverted, such that they could be altered by the presentation of
additional evidence, we decline to consider Natalia’s new arguments on appeal.
3. Natalia’s Requests for Judicial Notice
In March 2019, we set this matter for oral argument on April 9, 2019. Shortly
after sending notice of the hearing date, Natalia filed three additional requests for judicial
notice. In the first, filed March 21, 2019, she asked us to take notice of pleadings filed
with the trial court regarding joinder of an employee benefit plan to the dissolution
proceedings. In the second, filed March 25, 2019, she asked us to take notice of a trial
exhibit introduced by Peter at the February 2014 trial, a schedule of assets and debts, and
an order for disposition of exhibits filed in the trial court. In the third, filed April 2, 2019,
she asked us to take judicial notice of the “Decision of Administrative Law Judge, Phillip
C. Lyman, Office of Disability Adjudication and Review,” issued June 19, 2018, as well
as of “a true and certified copy of public records pertaining to [Natalia’s] disability
history (2013 - current) subject to disclosure under the provisions of the California Public
Records Act, Government Code §6250.”
In support of the first two requests for judicial notice, Natalia alleges the
documents are relevant to the matter on appeal as it pertains to the disposition of the

22
The party seeking such support does not have to file a separate lawsuit; the
spouse can seek to enforce the affidavit in a state dissolution proceeding. (Kumar, supra,
13 Cal.App.5th at pp. 1081-1083.) In Kumar, the immigrant spouse did not raise the
issue in her response to the operative petition. (Id. at p. 1076.) Rather, she first raised it
at the initial hearing on temporary spousal support. (Ibid.)

20
parties’ assets, in particular qualified employer retirement plans, citing 26 Code of
Federal Regulations part 1.401(a)-20, Q&A 28. Natalia did not raise issues concerning
the disposition of any assets in her numerous briefs on appeal; nor did she cite to 26 Code
of Federal Regulations part 1.401(a)-20, Q&A 28 in her briefs.23 We can treat as
abandoned issues not properly addressed in the briefs. (Mecchi v. Picchi (1966) 245
Cal.App.2d 470, 475 (Mecchi) [failure to provide points or authorities attacking the
judgment deems appeal from that judgment waived and abandoned]; see Behr v.
Redmond (2011) 193 Cal.App.4th 517, 538; Lyons v. Chinese Hosp. Ass’n (2006) 136
Cal.App.4th 1331, 1336, fn. 2.) As Natalia did not raise these issues in her briefs, the
documents for which she seeks judicial notice are not relevant to the issues on appeal.
We therefore deny the March 21 and March 25, 2019 requests for judicial notice. (See
Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, fn. 4; Cal. Rules of Court,
rule 8.252(a)(2)(A).)
In the April 2, 2019 request for judicial notice, Natalia seeks judicial notice of an
administrative law judge’s decision issued well after the trial court proceedings at issue in
this appeal, as well as additional documents for which there is no evidence in the record
that they were presented to the trial court, to the extent they existed at the time of the trial
court proceedings. We generally cannot consider events that took place after the
judgment on appeal; while this rule is somewhat flexible, under the circumstances,
Natalia has not provided sufficient reason for us to exercise any discretion we may have

23
On March 29, 2019, we denied Natalia’s request made on March 28, 2019, to
strike her October 19, 2015 opening brief and file a new brief. Natalia made her request
on the grounds she made an argument in the opening brief she no longer believes is
appropriate on appeal – “that the denial [of Natalia’s] motion for spousal support was
reversible error because of unenforceability of waiver of support conditioned on child
custody provisions in the prenuptial agreement.” However, in the brief Natalia proposed
to file in place of the October 2015 opening brief, Natalia raised new issues not included
in her other briefs, including discussion of 26 Code of Federal Regulations part 1.401(a)-
20, Q&A 28, and seemingly related caselaw. She did not provide any explanation as to
why she waited four years and until shortly before oral argument to raise this new issue.

21
to consider this additional evidence. (See Reserve Insurance Co. v. Pisciotta (1982) 30
Cal.3d 800, 813; County of Los Angeles v. Glendora Redevelopment Project (2010) 185
Cal.App.4th 817, 830-831.) We therefore deny Natalia’s April 2, 2019 request for
judicial notice.
C. The Evidence in the Record Supports the Validity of the PMA
Once we remove the issues Natalia forfeited by her failure to show she raised them
before Judge Gallagher, we are left with only one viable argument concerning the
propriety of the Trial Decision. Natalia argues Judge Gallagher erred by failing to
consider the fact she did not have independent counsel in entering the PMA. She
believes the PMA was unconscionable when it was executed because she did not have an
attorney.
We apply a de novo standard of review to the issue of whether the PMA was
unconscionable when executed. (See Fam. Code, § 1615, subd. (b) [“An issue of
unconscionability of a premarital agreement shall be decided by the court as a matter of
law.”]; In re Marriage of Howell (2011) 195 Cal.App.4th 1062, 1078 (Howell).) But we
defer to any factual findings Judge Gallagher made in reaching her decision so long as
they are supported by substantial evidence. (Howell, at p. 1078.) “We consider this
evidence ‘in the light most favorable to the prevailing party, giving it the benefit of every
reasonable inference and resolving conflicts in support of the judgment.’ [Citation.]”
(Ibid.)
There is no dispute Judge Gallagher correctly ruled Family Code section 1612,
subdivision (c), effective January 1, 2002, does not apply to agreements entered prior to
that effective date. (Howell, supra, 195 Cal.App.4th at p. 1077.) That statute requires
that a party against whom enforcement of a premarital agreement is sought be
represented by independent counsel, or knowingly waive such representation. (Fam.
Code, § 1612, subd. (c).) On appeal, Natalia argues the state of her representation at the
time of execution was still a factor the trial court was required to consider in determining

22
whether the PMA was unconscionable at the time of execution, based on the law in effect
in 1996. Natalia claims Judge Gallagher did not consider this factor once she determined
Family Code section 1612, subdivision (c) was inapplicable to the PMA.
Lack of representation is one factor the trial court can consider in evaluating the
unconscionability of a pre-2002 premarital agreement, even though section 1612,
subdivision (c) does not apply. (In re Marriage of Bonds (2000) 24 Cal.4th 1, 24
(Bonds); see Howell, supra, 195 Cal.App.4th at pp. 1078-1079.) In both Bonds and
Howell, the appellate courts upheld premarital agreements despite the fact the party
against whom enforcement was sought did not have independent counsel. Notably, in
each of these cases, the party seeking to enforce the agreement had an attorney (Bonds,
supra, at pp. 8-9; Howell, supra, at p. 1065); in the instant matter, neither Peter nor
Natalia had counsel at the time they executed the PMA.
In Bonds, the Supreme Court determined the evidence supported the trial court’s
finding that the wife had adequate opportunity to obtain counsel prior to signing the
agreement and elected not to do so because she understood and agreed with the terms.
(Bonds, supra, 24 Cal.4th at p. 35.) The trial court believed the wife could understand
the import of the agreement, despite the fact English was her second language; the
Supreme Court noted, “for two years prior to marriage she had undertaken employment
and education in a trade that required such skills, and before meeting Barry had
maintained close personal relationships with persons speaking only English.” (Ibid.) The
Supreme Court found substantial evidence for the trial court’s finding that the wife
understood the nature of the parties’ agreement, even though she had only recently passed
her high school equivalency exam “and had little commercial experience,” compared to
that of the husband, a professional baseball player. (Id. at p. 36.) “These circumstances
support the inference that any inequality in bargaining power—arising primarily from the
absence of independent counsel who could have advised [the wife] not to sign the

23
agreement or urged [the husband] to abandon the idea of keeping his earnings separate—
was not coercive.” (Ibid.)
In Howell, the Court of Appeal determined the record supported a finding that the
wife knowingly and voluntarily waived her right to spousal support, despite not having
independent counsel at the time she executed the agreement. (Howell, supra, 195
Cal.App.4th at p. 1080.) The wife was advised to retain counsel but elected not to do so
“because she believed she could fully protect her rights without counsel.” (Id. at
p. 1078.) The trial court believed the wife had a “ ‘full understanding’ ” of the
agreement, which was “only 12 pages long, was not particularly complex, involved a
small estate, made full disclosure and basically sought to maintain separate the parties’
separate property interests.” (Id. at p. 1079.) The disclosures made by the parties prior to
signing were “ ‘fair, reasonable and full.’ ” (Id. at p. 1080.) “In addition, the court
found, and the evidence in the record shows, that there was not a great disparity in the
income of the parties and their respective assets at the time they entered into the
agreement to establish any significant inequality of bargaining power. [¶] The evidence
in the record also supports the trial court’s finding that Pamela was employed in the field
of bookkeeping, which involves keeping track of finances, and thus was capable of
understanding the financial disclosures made by Michael.” (Ibid.)
The facts before us are similar to those outlined in Bonds and Howell. Here, the
paralegal who prepared the PMA notified the parties it could be prepared by an attorney,
and had them acknowledge she was not giving them legal advice. Judge Gallagher found
Natalia to be an “intelligent woman”; the record reflects her work experience, including
her work as a bookkeeper early in her pregnancy. There is substantial evidence Natalia
could understand and communicate in English with ease. Judge Gallagher determined
Natalia “was capable of understanding the terms of [the PMA] and the effect of [the
PMA] on each party.” The PMA is four pages long, with four pages of attached
disclosures, described by Judge Gallagher as “not particularly complex.” She found no

24
evidence Natalia lacked mental capacity, or that she signed the agreement as a result of
trick or deception. Judge Gallagher found the parties’ disclosures to be “fair, reasonable,
and full,” and found Natalia to be capable of understanding Peter’s disclosures. She also
noted the evidence did not reveal a significant disparity in the parties’ incomes and assets
at the time they signed the PMA, given Natalia’s earning history, such that there was no
“significant inequality of bargaining power.”
Based on the above, we find substantial evidence in the record supporting Judge
Gallagher’s factual determinations and her conclusion that both Peter and Natalia
voluntarily waived any right to spousal support. Applying the relevant law de novo to
those facts, we find Natalia’s lack of independent counsel did not render the PMA
unconscionable. We uphold the Trial Decision and its finding that the PMA is
enforceable.
D. The Trial Court Did Not Err in Denying the Set Aside Motion
While Natalia noticed her appeal of the set aside order, she does not cite any legal
or factual basis to reverse that order in any of the briefs she filed with this court. She
focuses her briefs on the Trial Decision and February 2014 judgment, electing to forego
discussion of the set aside order. The appellant must provide argument and, where
possible, citation to legal authority. (Rule 8.204(a)(1)(B).) As we already noted, we can
treat as abandoned issues not properly addressed in the briefs. (Mecchi, supra, 245
Cal.App.2d at p. 475.)
Even so, a review of the record shows Judge Johnson did not abuse her discretion
in denying the set aside motion; abuse of discretion is the standard of review we apply to
such an order. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249,
257.) “A ruling that constitutes an abuse of discretion has been described as one that is
‘so irrational or arbitrary that no reasonable person could agree with it.’ [Citation.]”
(Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773
(Sargon).) “[A] reviewing court, should not disturb the exercise of a trial court’s

25
discretion unless it appears that there has been a miscarriage of justice. . . . ‘Discretion is
abused whenever, in its exercise, the court exceeds the bounds of reason, all of the
circumstances before it being considered. The burden is on the party complaining to
establish an abuse of discretion, and unless a clear case of abuse is shown and unless
there has been a miscarriage of justice a reviewing court will not substitute its opinion
and thereby divest the trial court of its discretionary power.’ [Citations.]” (Denham v.
Superior Court (1970) 2 Cal.3d 557, 566 (Denham).)
Although she cited other statutes in her initial brief supporting her set aside
motion, at the hearing on the motion, Natalia’s attorney confirmed Code of Civil
Procedure section 473, subdivision (b), formed the basis for Natalia’s request.24 None of
the pleadings Natalia filed prior to the hearing on the set aside motion specified what
“mistake, inadvertence, surprise, or excusable neglect” Natalia believed impacted the
Trial Decision as required under that section. (Code Civ. Proc., § 473, subd. (b).)
Rather, Natalia argued Judge Gallagher made the wrong decision based on the evidence
presented to her at the hearing. Disagreement with the trial court is not a basis to set
aside an order under Code of Civil Procedure section 473, subdivision (b); nor is judicial
error. (See Don v. Cruz (1982) 131 Cal.App.3d 695, 702 [“section 473 has no application
to judicial mistakes but only to mistake, inadvertence, surprise or excusable neglect of the
moving party”].)
It is clear from the record, Judge Johnson notified Natalia’s attorney of the
deficiencies in her pleadings prior to the November 2013 hearing. It was not until the
day of the hearing that Natalia filed a declaration alleging she was suffering from a
disability at the time of the September 2012 trial. Under former rule 5.94(d) (renumbered

24
At the hearing, Natalia’s attorney also referenced Code of Civil Procedure
section 473, subdivision (c), which concerns penalties the trial court can order when it
grants relief under the provisions of Code of Civil Procedure section 473. That
subdivision does not set forth separate bases for set aside relief.

26
to 5.94(c) effective July 1, 2016), the trial court was within its discretion to refuse to
consider late-filed pleadings by sustaining Peter’s evidentiary objection to the untimely
declaration. “We review claims of evidentiary error for abuse of discretion. [Citation.]”
(People v. Luo (2017) 16 Cal.App.5th 663, 677.)
Prior to the hearing, Peter’s counsel noticed an objection to the court considering
anything filed after November 21, 2013. His attorney reiterated the objection on the
record at the hearing. As Judge Johnson pointed out at the November 2013 hearing,
Natalia could have informed the court ahead of time regarding difficulties obtaining
necessary evidence to support her claim; she did not. Moreover, at the hearing, Natalia’s
attorney did not seek a continuance or other relief to account for the untimely declaration.
The pleadings Natalia filed prior to November 26, 2013, did not put Peter or the trial
court on notice that she would argue her mental health condition affected the September
2012 proceedings, and did not afford Peter the opportunity to investigate and respond to
Natalia’s claims. Based on this, Judge Johnson’s decision not to consider the late-filed
declaration was not an abuse of discretion; it did not “exceed all bounds of reason,” nor
was it “irrational or arbitrary.” (Denham, supra, 2 Cal.3d at p. 566; Sargon, supra, 55
Cal.4th at p. 773.)
Even if Judge Johnson had considered Natalia’s late-filed declaration, the
declaration does not provide adequate grounds to set aside the Trial Decision under Code
of Civil Procedure section 473, subdivision (b). It does not show that Judge Gallagher
entered the Trial Decision as a result of Natalia’s mistake, or any inadvertence, surprise,
or excusable neglect on Natalia’s part. Rather, the declaration indicates that Natalia
received treatment starting in May 2013, for a mental health disability that began in
July 2012. However, it does not indicate how that disability affected Natalia at the time
of the September 2012 trial. In her November 2013 declaration, Natalia states, “I was not
able to withstand trial.” She does not provide any additional information in support of
this statement. Nothing in Judge Gallagher’s Trial Decision suggests she had any

27
concerns about Natalia’s ability to “withstand trial,” despite the detail provided about
each party’s intelligence and credibility. There is no indication Natalia’s attorney
retained on limited scope raised any objections or concerns about Natalia’s mental health
at any time before the trial proceeded in September 2012. The doctor who certified
Natalia’s disability did not begin treating her until May 2013. Thus, assuming the truth
of Natalia’s assertions in the declaration, she does not describe how her mental health
condition, or her failure to bring that condition to the court’s attention, impacted Judge
Gallagher’s decision.
Additionally, the trial court did not err in failing to take action on the declaration
Natalia filed in January 2014, after Judge Johnson issued the set aside order. Natalia did
not file a motion for reconsideration, set aside, or any other relief that would have
allowed the trial court to revisit the set aside order in January 2014. The mere act of
filing the declaration did not serve to bring the issue to the trial court’s attention. Natalia
was required to comply with rule 5.92 to bring a request before the trial court. At the
time Natalia filed her declaration in January 2014, rule 5.92 required the use of the
Judicial Council form Request for Order (FL-300) to properly raise an issue for hearing.
(Former rule 5.92(a)(1) [renumbered to rule 5.92(a)(1)(B) eff. July 1, 2016].) She was
required to file the documents with the court to obtain a hearing date, and then serve a
copy of the documents on Peter. (Former rule 5.92(a)(6) [renumbered to rule 5.92(b)(5)
eff. July 1, 2016].) For all of these reasons, we uphold Judge Johnson’s order denying
Natalia’s motion to set aside the Trial Decision.
E. The Trial Court Did Not Err in Entering the March 2014 Judgment
In her supplemental brief, Natalia argues the trial court committed reversible error
in enforcing the PMA, as doing so made her dependent on public assistance. It appears
Natalia argues that the law precluded Judge Towery from denying her request for spousal
support at trial because circumstances occurring after Judge Gallagher entered the Trial
Decision rendered the PMA unconscionable. She does not cite any legal authority

28
supporting this position. Rather, she cites legal authority indicating the trial court must
consider whether a PMA is unconscionable at the time of enforcement, asserting she
believes the February 2014 trial before Judge Towery resulting in the judgment, rather
than the September 2012 trial before Judge Gallagher, was, in effect, the time of
enforcement of the PMA. Natalia does not cite any legal authority in support of this
contention. Clearly, Judge Towery did not believe it to be the case; he found the Trial
Decision was the “law of the case” at the February 2014 trial, and thus denied Natalia’s
request to revisit spousal support based on the waiver contained in the PMA. We agree
the time of enforcement of the PMA was the September 2012 trial.
1. The September 2012 Trial Was the “Time of Enforcement” of the PMA

The question of what constitutes the time of enforcement for purposes of
evaluating the unconscionability of the PMA is a question of law, which we review de
novo. (See Baxter v. State Teachers’ Retirement System (2017) 18 Cal.App.5th 340, 353
[“Pure questions of law decided by the trial court are reviewed de novo by the court of
appeal.”].) Reviewing Judge Towery’s application of the law de novo, we find the time
of enforcement of the PMA was the September 2012 trial before Judge Gallagher.
As an initial matter, it is not clear the trial court was required to consider whether
the PMA was unconscionable at the time of enforcement. Similar to the other 2002
amendments to the Family Code pertaining to premarital agreements, the provision of
Family Code section 1612, subdivision (c) requiring the trial court to consider whether
the PMA was unconscionable at the time of enforcement does not apply to premarital
agreements entered prior to January 1, 2002. (See In re Marriage of Facter (2013)
212 Cal.App.4th 967, 981 (Facter); In re Marriage of Hill & Dittmer (2011) 202
Cal.App.4th 1046, 1056-1057; Howell, supra, 195 Cal.App.4th at pp. 1073-1074.) We
therefore turn to the law in effect at the time the parties signed the PMA.
The Supreme Court has indicated that “circumstances existing at the time of the
enforcement of a [pre-2002] spousal support waiver ‘might make enforcement unjust.’ ”

29
(Facter, supra, 212 Cal.App.4th at p. 983, citing In re Marriage of Pendleton and
Fireman (2000) 24 Cal.4th 39, 53 (Pendleton).) However, Natalia cites no case
addressing unjust enforcement of a spousal support waiver that actually rests a finding of
unconscionability based solely on circumstances existing at the time of enforcement. In
Pendleton, the Supreme Court explicitly stated it was not deciding whether the
circumstances at the time of enforcement made the spousal support waiver unjust.
(Pendleton, supra, at p. 53.) In Facter, the Court of Appeal found the waiver was
unconscionable at the time of enforcement after first determining it was unconscionable
at the time of execution. (Facter, supra, at p. 983.)
Assuming the trial court in the instant matter could have considered
unconscionability at the time of enforcement in evaluating the validity of the spousal
support waiver contained in the PMA, we are persuaded by the policy permitting
bifurcation of trials that the effective enforcement date of the spousal support waiver
occurred at the September 2012 trial before Judge Gallagher, not the February 2014 trial
on reserved issues conducted by Judge Towery. “The court may separately try one or
more issues before trial of the other issues if resolution of the bifurcated issue is likely to
simplify the determination of the other issues.” (Rule 5.390(b) [formerly rule 5.175(c)].)
Appellate courts discussing the goals of bifurcation contemplate a final resolution of the
bifurcated issues to aid in the later resolution of other issues. (See In re Marriage of
Macfarlane & Lang (1992) 8 Cal.App.4th 247, 257; In re Marriage of Wolfe (1985) 173
Cal.App.3d 889, 893-894.) The goal of simplifying the determination of other issues by
first determining the validity of a premarital agreement would not be served if the parties
could argue that the date of enforcement of the agreement was after the date of the
bifurcated trial. Thus for purposes of evaluating unconscionability at the time of
enforcement, we find the September 2012 trial to be the relevant point in time.
However, as already discussed, Natalia did not raise the issue of unconscionability
at the time of the September 2012 trial to Judge Gallagher; Natalia conceded this to Judge

30
Towery on the last day of the trial resulting in the judgment. As a result, she cannot raise
the issue on appeal. (Johnson, supra, 47 Cal.4th at p. 603.)
2. Judge Towery Properly Adopted the Trial Decision in the Judgment
Natalia argues circumstances arising after (or because of) Judge Gallagher’s Trial
Decision render the waiver of support unconscionable. Absent legal authority confirming
Judge Towery could reconsider or modify Judge Gallagher’s order, he properly adopted
that order at the time of the February 2014 trial. Judge Towery noted Natalia’s failure to
provide supporting legal authority for her argument in the order filed after the
February 20, 2014 hearing. Natalia also does not offer such authority in support of her
appeal on this issue, despite her having the burden to do so. (Rule 8.204(a)(1)(B);
Mecchi, supra, 245 Cal.App.2d at p. 475.)
In determining whether the trial court can modify or reconsider a mutual waiver of
spousal support in a prenuptial agreement because its impact once executed appears
unfair to a party, we find it useful to compare the waiver of spousal support in a
prenuptial agreement to similar provisions in marital settlement agreements made once a
dissolution action is filed that seek to limit modification of support or terminate it
entirely. The trial court can modify permanent spousal support orders (those issued
pursuant to Family Code section 4320 et seq.) on a showing of a material change in
circumstances, unless the parties agree the order is not subject to modification. (Fam.
Code, § 3651, subd. (a) and (d); In re Marriage of Khera & Sameer (2012) 206
Cal.App.4th 1467, 1475-1476.) However, where the parties to a dissolution action agree
that spousal support may not be modified, courts have held that even a material change in
circumstances cannot affect that agreement. In In re Marriage of Hibbard, after the
parties agreed support would not be modifiable except under certain enumerated
circumstance, the payor spouse suffered a significant reduction in income due to a
disability (PTSD), which was not one of the stated reasons to modify support. (In re
Marriage of Hibbard (2013) 212 Cal.App.4th 1007, 1011 (Hibbard).) In finding the

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parties’ agreement precluded modification, the court noted that such agreements could
prevent modification even in “intervening, possibly unfair” circumstances, and warned
parties agreeing to nonmodifiable support to “be particularly mindful of all possible
circumstances that might warrant a modification or cessation of spousal support, and plan
accordingly.” (Id. at p. 1015.)
The Hibbard court cited to other examples where intervening circumstances did
not circumvent an agreement that spousal support would be non-modifiable, despite the
outcome being “possibly unfair.” A wife’s receipt of monthly payments on a note for the
sale of a residence did not justify reducing spousal support where the parties agreed the
sale of the residence would not be considered a change in circumstances. (In re Marriage
of Rabkin (1986) 179 Cal.App.3d 1071, 1077-1081.) A party cannot obtain modification
of support based on the recipient’s non-marital cohabitation with another person when the
parties agreed support was not modifiable and would terminate only on the recipient’s
remarriage. (In re Marriage of Sasson (1982) 129 Cal.App.3d 140, 146-147.) The
concurring opinion in Sasson noted, “as unjust, one-sided and warped as such a state of
affairs may appear to be, Husband is unfortunately bound by his own marital settlement
agreement since Wife’s testimony that she has never remarried is uncontradicted.” (Id. at
p. 150.) The Hibbard court described the result as “patently unfair,” yet confirmed the
Sasson court made the correct decision in light of the parties’ agreement. (Hibbard,
supra, 212 Cal.App.4th at p. 1015.)
Similarly, once the trial court has terminated its jurisdiction over spousal support,
it does not have authority to reinstate that jurisdiction based on a change in the parties’
circumstances. A change in the supported spouse’s cohabitation status cannot serve to
extend the trial court’s jurisdiction over spousal support. (In re Marriage of Minkin
(2017) 11 Cal.App.5th 939, 957, as modified (May 19, 2017).) Nor can a “current large
disparity in the parties’ financial positions” allow the trial court to reinstate its

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jurisdiction over spousal support once it has terminated pursuant to the parties’
agreement. (In re Marriage of Beck (1997) 57 Cal.App.4th 341, 343, 347.)
We see no legal basis to distinguish between the enforcement of a premarital
agreement to waive spousal support, and a postmarital agreement to do the same. Parties
prior to marriage or in dissolution proceedings are entitled to reach agreements about
spousal support, and so long as the circumstances surrounding the formation of the
agreement are conscionable and lawful, courts will not intervene in the unintended
consequences to the parties in the future. From Natalia’s perspective, circumstances
changed after Judge Gallagher determined the PMA was enforceable. We do not see any
legal or factual authority that allowed the trial court to override Judge Gallagher’s
decision based on that change. We find Judge Towery properly denied Natalia’s request
for spousal support and affirm the judgment accordingly.
F. Conclusion
The record is clear three judicial officers carefully considered Natalia’s arguments
regarding the premarital agreement and the spousal support waiver contained therein.
We recognize that the emotional gravamen of Natalia’s argument is her assertion that she
suffered from a serious mental illness at the time she signed the premarital agreement,
and in the subsequent hearings on that issue. Given the nature of her claims, the trial
court was in the best position to evaluate her concerns; the three judges before whom she
appeared had the opportunity to observe Natalia’s conduct and solicit information from
her and her attorney, when she appeared with one. We note Judge Towery
accommodated Natalia’s medical needs, and Judge Johnson in particular allowed Natalia
additional time to present her claims, notifying her of the potential defect in her pleadings
and affording her the opportunity to supplement her brief. However, on appeal, our duty
is to consider whether Natalia has shown a cognizable error; we find she has not.

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 III. DISPOSITION
The set aside order and judgment are affirmed. In the interests of justice, each
party shall bear his or her costs on appeal. (Rule 8.278(a)(1) and (3).)

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 _______________________________
Greenwood, P.J.

WE CONCUR:

_____________________________________
Grover, J.

______________________________________
Danner, J.

Zarubin v. Miotke
H040611, H040972
Trial Court: Santa Clara County Superior Court
Superior Court No.: 2010-6-FL-005329

Trial Judges: The Honorable Margaret S. Johnson,
The Honorable James J. Towery

Attorneys for Appellant, Law Office of John E. Stringer
NATALIA ZARUBIN: John E. Stringer

Attorneys for Respondent, B.J. Fadem & Associates, APC
PETER MIOTKE: B.J. Fadem

Zarubin v. Miotke
H040611, H040972