Marriage of Terry CA2/6

Filed 9/20/23 Marriage of Terry CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In re Marriage of BOAKE and 2d Civil No. B321523
KELLIE TERRY. (Super. Ct. No. D398305)
(Ventura County)

BOAKE TERRY,

Respondent,

v.

KELLIE TERRY,

Appellant.

Kellie Terry appeals from the judgment dividing property
and ordering spousal support in the dissolution of her marriage
to Boake Terry.1 She contends the trial court erred when it: (1)
permitted Boake’s counsel to draft the final judgment, (2) failed

1 We refer to the parties by their first names for ease of
reference. No disrespect is intended.
to require complete discovery, (3) relied on inaccurate and false
evidence, (4) incorrectly divided interests in the house, (5) failed
to equalize retirement funds, (6) failed to order reimbursement
for past child support payments, (7) failed to consider potential
proceeds from a pending lawsuit, and (8) ordered inadequate
spousal support. Boake asks that we dismiss the appeal
pursuant to the disentitlement doctrine. We deny the dismissal
motion and affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Kellie and Boake were married for almost 34 years before
they separated. Boake was terminated as a store manager at
Walmart and accepted a lower-paying job at a supermarket.
Kellie had been a real estate broker in another state, raised the
children, and at the time of trial was operating a pet care
business. The parties’ primary asset was their house in
Moorpark. After they separated, Kellie had exclusive use and
possession of the house and paid the mortgage, homeowners’
insurance, property taxes, and homeowners’ association fees.
Kellie, Boake, and a real estate appraiser testified at trial.
The trial court made an oral tentative decision dissolving the
marriage, dividing the property, and ordering spousal support.
The court found the house’s fair market value was
$1,200,000. After deductions for three liens and the mortgage
balance, the court found the equity in the house was $768,284, to
be divided equally between the parties. The court ordered Boake
to reimburse Kellie $49,046 in “Jeffries credits,” which
represented half the mortgage, homeowners’ insurance, property
taxes, and homeowners’ association fees Kellie paid after
separation. (In re Marriage of Jeffries (1991) 228 Cal.App.3d 548,
552-553.) The court ordered Kellie to pay Boake $75,600 in

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“Watts credits” for half the fair market rental value during her
sole possession of their home after separation. (In re Marriage of
Watts (1985) 171 Cal.App.3d 366, 374.) The court also ordered
Boake to pay $3,600 for half the cost of home repairs paid by
Kellie, and $2,078 for half the storage fees she paid.
The court ordered that Kellie have 90 days to buy out
Boake’s interest in the house, or otherwise, the house be sold.
The parties were ordered to cooperate in good faith in the listing
and sale. After reimbursements for stock and IRA withdrawals,
the sale proceeds of the house would be $400,848 for Boake and
$367,436 for Kellie.
The court ordered Boake to pay Kellie spousal support of
$600 per month until the death of either party, remarriage of
Kellie, or further order of the court. He was ordered to pay
additional support of 10 percent of any salary or bonuses he
received above his current level. (In re Marriage of Ostler &
Smith (1990) 223 Cal.App.3d 33, 37 (Ostler & Smith).)
The trial court reserved jurisdiction over any community
interest in Boake’s wrongful termination lawsuit against
Walmart, which was still pending. The court ordered Kellie to
pay sanctions/attorney fees of $7,500. (Fam. Code, § 271.) The
court ordered Boake’s counsel to prepare the written judgment.
Neither party requested a statement of decision. (Code Civ.
Proc., § 632.)
Kellie moved for reconsideration and to set aside the
judgment. The trial court denied the motion and ordered Kellie
to pay Boake’s counsel additional sanctions of $5,000.
We denied five requests Kellie filed to stay the judgment
pending resolution of the appeal.

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 DISCUSSION
Motion to dismiss appeal
Boake moves to dismiss the appeal pursuant to the
disentitlement doctrine. The motion is based on Kellie’s refusal
to sign the proposed judgment without offering an alternative
proposal (Cal. Rules of Court, rule 5.125(c)(1)(B)), and the trial
court’s imposition of monetary sanctions (which Boake asserts
are unpaid) for: delaying the case, bringing a meritless motion for
reconsideration, and violating the judgment by failing to
cooperate with listing and showing the house for sale and
refusing to sign the deed. We exercise our discretion to deny the
motion.
“Under the disentitlement doctrine, a reviewing court has
inherent power to dismiss an appeal when the appealing party
has refused to comply with the orders of the trial court.”
(Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238
Cal.App.4th 259, 265.) “ ‘Dismissal is not “ ‘a penalty imposed as
a punishment for criminal contempt. It is an exercise of a state
court’s inherent power to use its processes to induce compliance’ ”
with a presumptively valid order. [Citation.]’ ” (In re E.M. (2012)
204 Cal.App.4th 467, 474.)
“Courts do not lightly apply the disentitlement doctrine,”
and its application is discretionary. (Findleton v. Coyote Valley
Band of Pomo Indians (2021) 69 Cal.App.5th 736, 756-757.) In
Findleton, the court dismissed the appeal without prejudice to
reinstate it if the appellant complied with the trial court’s orders.
(Id. at p. 765.) Here, dismissal is not required to induce
compliance regarding entry of the judgment. Nor is it necessary
regarding sale of the house, which Boake asserts was completed
after entry of judgment. We exercise our discretion to deny the

4
motion and resolve the case on the merits.
Standard of review
“ ‘A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error
must be affirmatively shown.’ ” (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564; In re Marriage of Obrecht (2016) 245
Cal.App.4th 1, 8.)
“Under [Family Code] section 2550, the court must divide
the community estate of the parties equally. In this regard, the
court has broad discretion to determine the manner in which
community property is divided and the responsibility to fix the
value of assets and liabilities in order to accomplish an equal
division. [Citations.] The trial court’s determination of the value
of a particular asset is a factual one and as long as that
determination is within the range of the evidence presented, we
will uphold it on appeal. [Citations.]” (In re Marriage of Duncan
(2001) 90 Cal.App.4th 617, 631-632.)
Kellie contends the trial court divided the marital estate
unequally and ordered inadequate spousal support. The record
consists of a clerk’s transcript (which includes a reporter’s
transcript of the trial court’s tentative judgment), augmented
clerk’s transcript, the trial court exhibits, and a reporter’s
transcript of the motion for reconsideration. Because there is no
reporter’s transcript or settled statement of the evidence at trial,
we presume the unreported testimony supports the judgment.
(In re Marriage of Obrecht, supra, 245 Cal.App.4th at pp. 8-9; In
re Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Kellie has not
shown that the evidence fails to support the judgment or that the
trial court abused its discretion.

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 Drafting the judgment
Kellie contends there is “potential” abuse because Boake’s
counsel wrote the final judgment, purportedly without judicial
review. The record does not support this contention. The court
delivered the tentative judgment orally and ordered Boake’s
counsel to prepare the written judgment. Counsel drafted a
judgment that closely follows the oral ruling. Boake’s counsel
submitted a letter to the court that attached Kellie’s handwritten
comments to the draft and responded to those comments. There
is no showing the judgment signed by the court was “procured by
misrepresentation, fraud, or overreaching.” (In re Marriage of
Egedi (2001) 88 Cal.App.4th 17, 23 [upholding marital settlement
agreement drafted by attorney].)
Discovery
Kellie contends Boake failed to provide complete pretrial
discovery. The trial court rejected that contention when it denied
Kellie’s motion for reconsideration, and stated it was resolved at
trial. Kellie has not shown that the trial court abused its
discretion regarding discovery. (In re Marriage of Hill & Dittmer
(2011) 202 Cal.App.4th 1046, 1057-1058.)
Inaccurate information
Kellie contends Boake provided inaccurate and false
information, and the trial court erred in relying on that
information. The trial court rejected that contention when it
denied Kellie’s motion for reconsideration. “[I]t is well
established that the trial court weighs the evidence and
determines issues of credibility and these determinations and
assessments are binding and conclusive on the appellate court.”
(In re Marriage of Hill & Dittmer, supra, 202 Cal.App.4th at pp.

6
1051-1052.) Kellie has not shown that the trial court erred.
Sale of house
Kellie contends her equity in the house is $635,000. But
that figure ignores the outstanding mortgage and liens against
the property. She has not shown that the court erred in its
finding that after adjustments, each party’s half of the equity was
$384,142.
Kellie correctly observes that Boake is responsible for half
the payments she made related to the house from her separate
property. But no error has been shown because the judgment
requires him to pay half the cost of home repairs and Jeffries
credits for mortgage payments, taxes, insurance, and
homeowners’ fees.
Kellie contends the judgment “suggested” that Boake may
receive all the proceeds from sale of the house and that she “may”
receive no proceeds after close of escrow. The clear terms of the
judgment are to the contrary—the equity in the house is to be
divided equally after Jeffries and Watts credits and adjustments
for repairs, storage fees, and stock and IRA withdrawals. Her
contention that she has not received her share of the proceeds is
not before us. The appeal is solely from the judgment entered
May 31, 2022, and is limited to the record on appeal regarding
that judgment. (Vons Companies, Inc. v. Seabest Foods, Inc.
(1996) 14 Cal.4th 434, 444, fn. 3.)
Retirement funds
Kellie contends the trial court erred when it ordered
reimbursement for IRA distributions previously taken. We
disagree. The court found Kellie was not due reimbursement for
distributions before the date of separation. The court ordered
Boake to pay $29,632 for half the distribution he received in

7
2020. The parties agreed Kellie was reimbursed for the
distributions in 2021. The parties stipulated that a specified
portion of the balance would be rolled into Kellie’s IRA, and the
remainder would be Boake’s separate property. No error has
been shown.
Kellie contends the trial court erred when it failed to
equalize the Social Security benefits of the parties. We conclude
otherwise. Federal law provides that Social Security is separate
property, neither divisible nor an offset in dissolution
proceedings. (In re Marriage of Peterson (2016) 243 Cal.App.4th
923, 930-931.) Accordingly, the trial court properly declined to
make an order regarding the Social Security benefits.
Child support
Kellie contends the trial court erred when it declined to
order Boake to reimburse the estate for child support payments
he made from community property to children from his previous
marriage. We disagree. The trial court stated the payments had
been made decades earlier and too much time had passed to
require reimbursement. The trial court also considered Kellie’s
testimony that when they got married, “[h]is debts became our
debts,” “it was a blended family,” and she considered “the
children from his first marriage were her kids.”
“[A] child or spousal support obligation of a married person
that does not arise out of the marriage shall be treated as a debt
incurred before marriage.” (Fam. Code, § 915, subd. (a).) “If
property in the community estate is applied to the satisfaction of
a child or spousal support obligation of a married person that
does not arise out of the marriage, at a time when nonexempt
separate income of the person is available but is not applied to
the satisfaction of the obligation, the community estate is entitled

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to reimbursement from the person in the amount of the separate
income, not exceeding the property in the community estate so
applied.” (Fam. Code, § 915, subd. (b).)
Kellie was not entitled to reimbursement because she did
not establish that Boake “had any nonexempt separate income
available at the time he made any particular support payment
using community funds.” (In re Marriage of Sherman (2005) 133
Cal.App.4th 795, 805.) Moreover, the demand is barred because
she has not shown it was made within three years after she
learned community property was used for that purpose. (Fam.
Code, § 920, subd. (c)(1).)
Walmart lawsuit
Kellie contends the trial court could not properly equalize
the community interests because the Walmart lawsuit remained
pending. She is incorrect.
The judgment states, “To the extent that there is a
community interest in the settlement of the lawsuit with
[Walmart], the Court reserves jurisdiction.” This gave the trial
court authority to assure an equal division.
Kellie contends the lawsuit was later settled but Boake
refused to disclose its terms. This claim is not before us because
“normally ‘when reviewing the correctness of a trial court’s
judgment, an appellate court will consider only matters which
were part of the record at the time the judgment was entered.’ ”
(Vons Companies, Inc. v. Seabest Foods, Inc., supra, 14 Cal.4th at
p. 444, fn. 3.)
Spousal support
Kellie contends the permanent spousal support Boake was
ordered to pay was inadequate, and the trial court erroneously
declined to award retroactive spousal support. We again

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disagree.
“[E]ach couple has such a diverse mix of circumstances that
trial courts must have broad discretion in weighing and
balancing the various factors in each particular marriage before
making a suitable support award.” (Ostler & Smith, supra, 223
Cal.App.3d at p. 50.) We review the support award for abuse of
discretion. (Ibid.) We similarly review for abuse of discretion the
trial court’s ruling regarding retroactivity of the support order.
(Fam. Code, § 4333; In re Marriage of Left (2012) 208 Cal.App.4th
1137, 1152.)
The trial court ordered that permanent spousal support
payments begin after the judgment, and declined to make the
order retroactive. In making these determinations, the court
properly considered all the factors in Family Code section 4320,
including Kellie’s ability to seek employment that would better
utilize her marketable skills, the standard of living during the
marriage, the balance of hardships to the parties, and Boake’s
decreased salary after his termination from Walmart. (Ostler &
Smith, supra, 223 Cal.App.3d at pp. 48-49 [court properly
considered husband’s recent increased salary].) No abuse of
discretion has been shown.
Additional contentions
We do not consider additional claims in Kellie’s reply brief
that are not stated “under a separate heading or subheading
summarizing the point,” are not supported by citation of
authority or reference to the record, or are undeveloped by
argument. (Cal. Rules of Court, rule 8.204(a)(1)(B) & (C); Allen v.
City of Sacramento (2015) 234 Cal.App.4th 41, 52; In re S.C.
(2006) 138 Cal.App.4th 396, 408.) And we will not consider
issues raised for the first time on reply. (In re Groundwater

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Cases (2007) 154 Cal.App.4th 659, 692-693.) Based on these
deficiencies, we decline to consider issues regarding due process,
eminent domain, a purported duty to order life insurance, failure
to hear evidence at the hearing on the motion for reconsideration,
and purported bias of the trial court. We also do not consider
contentions regarding hearings, purported disclosure violations,
distributions of assets, and other events occurring after entry of
the judgment entered on May 31, 2022. (Vons Companies, Inc. v.
Seabest Foods, Inc., supra, 14 Cal.4th at p. 444, fn. 3.)
DISPOSITION
The judgment entered May 31, 2022, is affirmed.
Respondent shall recover his costs on appeal.
NOT TO BE PUBLISHED.

BALTODANO, J.

We concur:

GILBERT, P. J.

YEGAN, J.

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 Michael S. Lief, Judge

Superior Court County of Ventura

______________________________

Kellie Terry, in pro. per., for Appellant.
Ferguson Case Orr Paterson and Wendy C. Lascher for
Respondent.