Rigg v. Childers CA4/1

Filed 3/18/24 Rigg v. Childers CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ALETA NANCY RIGG et al., D081930

Respondents,

v. (Super. Ct. No. EPR000744)

DEBORAH JUNE CHILDERS,

Appellant.

APPEAL from a judgment of the Superior Court of Imperial County,
L. Brooks Anderholt, Judge. Affirmed.
Cohen Law Firm and Randall A. Cohen for Appellant.
Walker & Driskill, Mitchell A. Driskell; Dube Law Office and
Douglas A. Dube for Respondents.
Chhokar Law Group, David G. Greco and Kristen A. Friedman for
Norma A. Hampton as Amicus Curiae.

Deborah Childers appeals from a judgment entered in favor of Aleta
Nancy Rigg, Loretta Ann Catania, Michelle Mildred Black, and Randall
Grant Copp (petitioners) after a two-day bench trial on their claims for return
of trust property (Prob. Code, § 850, subd. (a)),1 imposition of a constructive
trust, double damages for bad faith disposal of property belonging to trust
beneficiaries (§ 859), and reasonable attorneys’ fees (ibid.). Deborah contends
that the trial court mischaracterized the real properties at issue as
community property, erred in concluding the properties were trust assets,
misallocated trust assets, and found bad faith on Deborah’s part where it
could not exist as a matter of law. We conclude that the record is inadequate
for appellate review on the merits without a reporter’s transcript of the trial
testimony or other proper substitute. We therefore presume the trial court
ruled correctly and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND2
Carroll Childers and Judith Childers were married on February 8,
1976. Carroll and Judith each had children from prior marriages. Carroll
and Judith created the Childers Family Trust (the trust) on June 6, 1996.
They restated the trust on May 20, 2009.
Judith died in October 2010. Carroll married Deborah Childers in June
2012. Carroll was 86 years old when he and Deborah married. Carroll died
in October 2019.
In July 2020, Judith’s four children (petitioners) filed a petition for
recovery of trust property, removal of Deborah as trustee, and imposition of a
constructive trust. After two rounds of demurrers, petitioners filed a second

1 All further statutory references are to the Probate Code.

2 As we will explain, the appellate record Deborah provided is
insufficient to support a complete factual and procedural summary based on
the evidence admitted at trial. We therefore provide the following summary
based on the pleadings, trial minute orders, and trial court’s statement of
decision summarizing the evidence presented at trial. We deny Deborah’s
request for judicial notice as unnecessary to the disposition of this appeal.
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amended petition for judgment against Deborah, return of trust property,
imposition of a constructive trust, and double damages under section 859.
Also in July 2020, petitioners filed a notice of pendency of action (lis
pendens), asserting that the petition they had filed earlier in the month
affected title to or the right to possess two of the properties they claimed
belonged to the trust. The two properties were referred to throughout the
litigation as the Wixom house and the Dogwood property. Deborah filed a
motion to expunge the lis pendens in March 2022. In April 2022, the trial
court granted Deborah’s motion and expunged the lis pendens as to the
Wixom house and Dogwood property. In September 2022, two months before
trial, Deborah sold the Dogwood property for $600,000.
A bench trial was held over the course of two days in October and
November 2022. Petitioners Copp, Black, and Catania testified, as did
Deborah. Phillip Krum, an attorney and certified specialist in estate
planning, trust, and probate law who advised Carroll regarding the trust and
its assets, and Thomas Brundy, who purchased a property from Carroll in
2017, also testified on behalf of petitioners.
At the close of testimony, Deborah’s counsel requested a statement of
decision. The trial court directed counsel for both sides to prepare a proposed
statement of decision. The court then issued its tentative decision, after
which the parties had 15 days to file objections. Deborah filed objections, and
the court requested supplemental briefing.
The trial court issued its final statement of decision in February 2023,
stating that it was “satisfied all issues necessary for the Court to make its
decision have been addressed in this Statement of Decision.” In its statement
of decision, the court briefly summarized the relevant testimony of the six

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witnesses and noted that it found all of the witnesses to be credible except
Deborah.
The court first summarized Krum’s testimony and found him to be an
expert in his area of specialty. According to the statement of decision, Krum
testified that he advised Carroll on matters relating to the trust in 2014 and
told him that after Judith died, the trust required him to allocate the trust
properties into two sub-trusts—one for Judith as the decedent and one for
Carroll as the survivor. The court found that Krum advised Carroll that he
could not use the principal of Judith’s sub-trust until he exhausted all assets
in his own sub-trust. Krum further advised Carroll that he could not revoke
or amend the trust in any way that would change the beneficial interests of
Judith’s sub-trust.
In summarizing Deborah’s testimony, the trial court stated that it
found her to be evasive and that she lacked credibility. In particular, the
court found Deborah’s lack of recollection relating to the rental payments on
one of the trust properties and the sale of the Dogwood property to lack
credibility. On the latter, the court noted that although Deborah testified
there was no money left from the $600,000 proceeds from the sale, tens of
thousands of dollars appeared to be unaccounted for, and her inability to
account for that money was not credible. The court further found she had
failed to respond to petitioners’ request to produce records showing income
and expenses, and the incomplete documentation of expenses she brought to
trial, without backup or receipts, was not credible. Deborah also testified
that Carroll directed her to write the February 2019 amendment to the trust,
and the trial court found that her testimony regarding the purported trust
amendment lacked credibility. It further found Carroll’s signature on the
trust amendment to be “suspect.”

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 The trial court took judicial notice of: (1) a petition filed in April 2011
on Carroll’s behalf that transferred the Wixom house and a property referred
to throughout the litigation as Farm Parcel 3 to the trust; (2) public records
admitted as trial exhibits showing that, after Judith died, Carroll sold or
transferred to third parties several different properties; and (3) public records
admitted as trial exhibits showing that Carroll transferred the Dogwood
property, the Wixom house, and Farm Parcel 3 to himself and Deborah as
joint tenants.
The court then made several findings of fact. It concluded that the
Dogwood property, the Wixom house, and Farm Parcel 3, among others, were
all properties of the trust and were also community property. The court
found that at the time of Judith’s death, the total value of the trust properties
was $2,862,570, and upon her death, $1,431,285 should have been allocated
to her sub-trust. However, Carroll failed to allocate any assets to Judith’s
sub-trust. The court further concluded that Carroll had transferred or sold
more than half of the value of the trust. Given that Carroll was required to
exhaust his survivor’s sub-trust before he was permitted to access the
principal of Judith’s sub-trust, the court found that all of the remaining
properties must belong to Judith’s sub-trust.
The court further found that Deborah’s sale of the Dogwood property
during litigation was in bad faith and the $600,000 in proceeds from the sale
should have been allocated to Judith’s sub-trust. It ultimately found that
Deborah was wrongfully holding the title to the Wixom house and Farm
Parcel 3, any rent accruing from those properties, and any remaining
proceeds from the sale of the Dogwood property, and she therefore held all
such property in constructive trust for the trust and petitioners. Finally, the
court concluded that Carroll sold and transferred the trust properties after

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his marriage to Deborah and that this invasion of the principal of Judith’s
sub-trust was done to benefit Deborah and himself for reasons other than
those allowed by the trust.
Based on its findings of fact, the trial court found in favor of petitioners
and against Deborah for all claims alleged in the second amended petition.
The court ordered Deborah to execute quitclaim deeds for the Wixom house
and Farm Parcel 3 transferring title to Catania, whom the court appointed as
successor trustee, for the benefit of petitioners. The court further ordered
Deborah to assign any and all rights to rents from Farm Parcel 3 to Catania
for the benefit of petitioners. It also awarded Catania double damages in the
amount of $1,200,000 and attorneys’ fees under section 859, for Deborah’s
bad faith sale of the Dogwood property.

Deborah timely filed a notice of appeal.3

3 We granted an application from Norma A. Hampton to file an amicus
curiae brief. She argues that because she owns a partial interest in Farm
Parcel 3 and is an indispensable party but received no notice of the
proceedings below, no relief granted by this court or the trial court can affect
her property interest. We decline to consider her argument, which is not
among the contentions raised by the parties. (California Manufacturers &
Technology Assn. v. State Water Resources Control Bd. (2021) 64 Cal.App.5th
266, 278, fn. 8 [“[A]n appellate court will consider only those questions
properly raised by the appealing parties. Amicus curiae must accept the
issues made and propositions urged by the appealing parties, and any
additional questions presented in a brief filed by an amicus curiae will not be
considered.” (internal quotation marks omitted)]; see also Vosburg v. County
of Fresno (2020) 54 Cal.App.5th 439, 462 [“ ‘The granting of leave to appear
as amici curiae is not the full equivalent of intervention, for amici curiae are
confined to legal argument, cannot plead or offer evidence, and cannot appeal
from an adverse decision.’ ”].) We deny Hampton’s request for judicial notice
for the same reasons. In any event, the trial court’s judgment is not suspect
merely because Norma now claims to be an indispensable party not included
in the proceedings below. The failure to join allegedly indispensable parties
does not deprive a court of the power to make a legally binding adjudication
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 DISCUSSION
Deborah contends that the trial court erred in concluding that the
Wixom house, the Dogwood property, and Farm Parcel 3 were assets of the
trust and were community property. She argues that the Wixom house and
Farm Parcel 3 were Carroll’s separate property acquired before marriage,
and the Dogwood property was held in joint tenancy and never conveyed to
the trust, so it became Carroll’s sole property upon Judith’s death. She
further argues that Carroll had the right to invade the principal of Judith’s
sub-trust, and the trial court’s conclusion that Carroll did not do so for his
health and welfare, which would have been allowed under the trust, was in
error.
Fatal to Deborah’s arguments is her failure to provide a reporter’s
transcript or suitable substitute of the trial proceedings, and we conclude
that the absence of an adequate record on appeal precludes a finding of error.
(Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186–
187 (Foust) [“ ‘Failure to provide an adequate record on an issue requires that
the issue be resolved against [appellant].’ ”]; see also Gonzalez v. Rebollo
(2014) 226 Cal.App.4th 969, 977 [“Without a complete record, we are unable
to determine whether substantial evidence supported the implied findings
underlying the trial court’s order.”].) As the Supreme Court has explained,
“the absence of a court reporter at trial court proceedings and the resulting
lack of a verbatim record of such proceedings will frequently be fatal to a
litigant’s ability to have his or her claims of trial court error resolved on the
merits by an appellate court. This is so because it is a fundamental principle
of appellate procedure that a trial court judgment is ordinarily presumed to

between parties properly before it. (Golden Rain Foundation v. Franz (2008)
163 Cal.App.4th 1141, 1155.)
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be correct and the burden is on an appellant to demonstrate, on the basis of
the record presented to the appellate court, that the trial court committed an
error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5
Cal.5th 594, 608–609 (Jameson).) “To put it another way, it is presumed that
the unreported trial testimony would demonstrate the absence of error.”
(Estate of Fain (1999) 75 Cal.App.4th 973, 992, italics added [affirming
judgment after trial].)
“In numerous situations,” therefore, “appellate courts have refused to
reach the merits of an appellant’s claims because no reporter’s transcript of a
pertinent proceeding or a suitable substitute was provided.” (Foust, supra,
198 Cal.App.4th at p. 186, citing cases [affirming judgment after trial on
breach of contract claim where appellant failed to provide reporter’s
transcript or other adequate statement of the evidence presented during
trial]; see also Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203
Cal.App.4th 336, 348 [concluding that appellant had forfeited any challenge
to the order compelling arbitration due to his failure to provide an adequate
record of testimony and documentary evidence offered during 16-day
hearing].) Although courts may exercise their discretion to resolve the appeal
on its merits without a reporter’s transcript, this is generally only where the
appeal does not involve live testimony or other evidentiary matters. (See,
e.g., Gamma Eta Chapter of Pi Kappa Alpha v. Helvey (2020) 44 Cal.App.5th
1090 [“But [respondent] does not argue the hearing included any live
testimony or additional evidence. Because we independently review the trial
court’s order denying the housing corporation’s motion to compel arbitration
and the record before us includes all evidence considered by the trial court, a
reporter’s transcript is not necessary.”]; Bel Air Internet, LLC v. Morales
(2018) 20 Cal.App.5th 924, 933 [“Bel Air does not claim that the hearing

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included any live testimony or the introduction of any other evidence.”];
Chodos v. Cole (2012) 210 Cal.App.4th 692, 699 [the court would review
record without transcript in part because it had “no indication that witnesses
testified or evidentiary issues arose at the hearing”].)
Here, by contrast, Deborah asks us to resolve several issues that were
decided by the trial court after hearing the testimony of six witnesses at a
two-day trial. Although Deborah does not rely on testimony or raise explicit
sufficiency of the evidence arguments, the issues she raises all involve
evidentiary considerations. For example, Deborah argues the court “made
assumptions not supported by the evidence, . . . misallocated trust assets, and
unfairly and improperly ordered the conveyance of property from decedent’s
wife to decedent’s trust of which decedent’s step-children were the
beneficiaries.” (Italics added.) We cannot determine whether the trial court
made assumptions not supported by the evidence if we do not have all of the
evidence before us. And although Deborah is correct that appellate courts
independently review the interpretation of a contract or other document
“absent the admission of extrinsic evidence,” without a complete record, we
cannot know whether extrinsic evidence was considered by the trial court.
We ordered the parties to provide supplemental briefing on this issue.
According to Deborah, her arguments on appeal do not require consideration
of the oral proceedings in the trial court and instead “require only a legal
evaluation of whether the trial court’s conclusions are consistent with the
documents presented as evidence.” She therefore contends that the record
before us is adequate to determine whether the trial court erred as to each of
the issues she raises. We do not agree.
Deborah first contends that the trial court erroneously concluded,
“based solely on language in the trust, [and] not on any other evidence

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presented,” that the Wixom house and Farm Parcel 3 were separate property
before conveyance into the trust but became community property upon that
transfer. As an initial matter, Deborah mischaracterizes the court’s
conclusion on this point, which was not necessarily that the Wixom house and
Farm Parcel 3 were separate property—the court stated that, “regardless of
[the properties’] character before it was transferred into the trust, [it] became
trust property when transferred into the trust and [was] deemed to be
community property.” But more importantly, we cannot conclude that the
trial court made this finding based solely on language in the trust. The court

did not say so in its statement of decision.4 Although the court stated that
the May 20, 2009 Restatement of the trust “answers the question [of the
properties’ character] on its face,” it did not refer to the document as the sole
support for its conclusion. In fact, the court provided additional reasons in
support of its finding that the two properties became community property
upon conveyance into the trust, including Carroll’s decision to petition the
transfer of the properties into the trust rather than doing so with a simple
quitclaim deed. A record of the testimony received at trial may not be
relevant to this issue, but there is no way for us to determine that to be true.
Deborah’s next argument on appeal is that the Dogwood property was
held in joint tenancy by Carroll and Judith and was never owned by the
trust. She contends that the exhibits introduced at trial support her
argument but that the trial court erroneously concluded the Dogwood
property was in the trust “based solely on the fact that it was listed in a

4 Nor was it required to do so. “[A] statement of decision need do no
more than state the grounds upon which the judgment rests, without
necessarily specifying the particular evidence considered by the trial court in
reaching its decision.” (Richardson v. Franc (2015) 233 Cal.App.4th 744, 753,
fn. 2, italics added and internal quotation marks omitted (Richardson).)
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distributive provision in the trust document.” Again, we have no way to
confirm the accuracy of this assertion. The trial court did not make any such
statement in its decision, nor was it required to list every fact supporting its
conclusion. (See Richardson, supra, 233 Cal.App.4th at p. 753, fn. 2.)
Deborah similarly asserts that the trial court made its findings
regarding the proper allocation of property to Carroll’s and Judith’s sub-
trusts based solely on the documents presented at trial rather than any
testimony, and she contends a transcript of the trial testimony is therefore
“irrelevant and unnecessary.” We are unpersuaded by this for the same
reasons we have already explained.
Deborah argues that to determine the character of real property upon
the death of a spouse, there is a rebuttable presumption that the character of
the property is as stated in the deed, and the burden is on the party seeking
to rebut that presumption to establish that the property is held in some other
way. Again, we cannot determine whether petitioners sufficiently rebutted
this presumption without a complete record, as it is possible testimony was
presented related to this issue that the trial court took into consideration.
Indeed, petitioners contend that Krum testified about this issue, and their
contention is supported by the trial court’s summary of Krum’s testimony in
the statement of decision. We also do not know what, if any, testimony was
presented regarding the purpose of Carroll’s invasion of the principal of
Judith’s sub-trust and whether it was proper under the terms of the trust.
Although Deborah claims the trial court’s conclusion that there was no
evidence Carroll invaded the principal of Judith’s sub-trust for permissible
reasons is “nonsensical,” we cannot reach the same conclusion without a
complete record. As with Deborah’s other contentions, we must presume the

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unreported trial testimony would support the trial court’s findings. (Estate of
Fain, supra, 75 Cal.App.4th at p. 992.)
Deborah’s final argument is that the trial court erred in finding that
she acted in bad faith when she sold the Dogwood property. Unlike the other
issues she raises on appeal, however, she does not assert that the trial court
decided this claim based solely on the documents.
Although in certain cases the issue of bad faith could be decided as a
matter of law, we conclude that this is not one of them. Deborah asserts that
“the court identifies no facts in its final [statement of] decision to support the
conclusion that the sale was in bad faith” and that “[a]lthough the court did
not find her testimony credible, there is nothing in her testimony (as stated in
the court’s decision) regarding the circumstances surrounding the sale of the
Dogwood Property.” (Italics added.) But, as we have explained, the trial
court was not required to include all facts it considered or relied on in its
statement of decision. (Richardson, supra, 233 Cal.App.4th at p. 753, fn. 2;
see also Duarte Nursery, Inc. v. California Grape Rootstock Improvement
Com. (2015) 239 Cal.App.4th 1000, 1012 [“A court’s statement of decision
need not respond to every point raised by a party or make an express finding
of fact on each contested factual matter; it need only dispose of all basic
issues and fairly disclose the court’s determination as to ultimate facts and
material issues in the case.”].) Without a transcript or settled statement, we
must presume all facts in favor of the judgment (Estate of Fain, supra, 75
Cal.App.4th at p. 992), and we cannot say there are no possible facts that
could support the trial court’s bad faith finding. Moreover, the statement of
decision indicates that Deborah did testify regarding the sale of the Dogwood
property, which supports the conclusion that there was evidence presented at
trial relevant to the bad faith issue that is not in the record before us. Under

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these circumstances, the lack of record of trial testimony is fatal to Deborah’s
ability to have her claim resolved on the merits. (Jameson, supra, 5 Cal.5th
at p. 608.)
In sum, we conclude Deborah has failed to meet her burden in showing
any error in the trial court’s decision.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on
appeal.

BUCHANAN, J.

WE CONCUR:

O’ROURKE, Acting P. J.

IRION, J.

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