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When a case turns on credibility, and there is not an oral record, do not even think about appealing

Tim Kowal     April 20, 2023

After dissolving her marriage and entering a marital settlement agreement, Darya Khankin went through some old boxes and found over a million dollars in undisclosed funds she claimed were taken by her ex, Anatoly Dumov. So she moved to set aside the dissolution judgment, noting that under Family Code section 2103, failure to comply with disclosure requirements means the court “shall “set aside the judgment.

But the trial court at the hearing considered the parties’ declarations as well as testimony, found both sides were generally credible, and concluded Anatoly’s explanation—involving investment of funds from Darya’s mother in Russia—was reasonable.

That’s “absurd,” argued Darya on appeal. But the court in Dumov v. Khankin (D6 Apr. 14, 2023 no. H050180) 2023 WL 2942989 (nonpub. opn.) noted that challenging a factual finding “requires that she demonstrate not merely that Dumov's evidence could be disbelieved but that her own evidence was “ ‘of such character and weight’ ” that she was entitled to relief as a matter of law.” (In re. I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.), disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) That means that, to prevail on appeal, the appellant “would have to establish that no reasonable trier of fact could have failed to credit her evidence over” the respondent’s. This is almost always impossible.

To seal the deal, Darya did not provide an oral record of the hearing at which the trial court heard the parties’ testimony. “To carry this heavy burden, Khankin at minimum was obligated to provide the entire evidentiary record on which the trial court based its ruling—if the parties did not retain a court reporter or a transcript was otherwise unavailable, it was incumbent upon her to obtain a settled statement.” And “[w]here no [record of the oral proceedings] has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters.” (In re Estate of Fain (1999) 75 Cal.App.4th 973, 992.)

Darya noted that she was not aware that there was not a court reporter during the hearing. But that is of no moment, because when she later did become aware, she could and should have moved for a settled statement.

Comment

The appellant in this case misapprehended the principles of appellate review so badly, in fact, that it could easily have been argued that the appeal was objectively frivolous so as to support a motion for appellate sanctions. Before appealing, ask yourself if you are challenging a credibility determination. If you are, reconsider your decision.

And if in addition you had the burden of proof on the credibility determination, a trip to Vegas may be a wiser investment (and more enjoyable) than pursuing the appeal.

And if on top of all that you also do not have a record of the oral proceedings, get ready to get sanctioned.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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