Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. 461633, William J. Howatt, Jr., Judge.
NARES, J.
Annette F. (Annette) filed a motion for modification of child support to Sharon S. (Sharon) and for other relief. The court reduced Annette's monthly payments, but did not address Annette's remaining requests. On appeal, Annette contends that the court abused its discretion by not ruling on all of the requests before it. We affirm the court's finding that Sharon's imputed income should reflect an earning capacity of $10,416 per month. However, we remand to the trial court with instructions to rule on the omitted issues (discussed, post). In so doing, we leave it to the court's discretion whether to further modify Annette's payments consistent with its rulings.
FACTUAL AND PROCEDURAL BACKGROUND
This appeal arises out of a bitter and protracted custody and child support dispute between birth mother Sharon and adoptive mother Annette over the now-separated couple's sons, Zachary and Joshua. Following Annette's adoption of Zachary, Annette was ordered to pay $809 in monthly child support to Sharon. Annette then adopted Sharon's second son, Joshua, and the court ordered Annette to pay Sharon an additional $992 in monthly child support.
In Sharon S. v. Superior Court (2003) 31 Cal.4th 417, the California Supreme Court affirmed the validity of Annette's "second-parent" adoption of Zachary.
In August 2006 Annette filed her amended notice of motion for modification and other relief, requesting: (1) modification of her child support payments, applied retroactively to the date of her initial motion filed on April 29, 2005; (2) that Sharon be ordered to pay one-half of Annette's travel costs from the Bay Area to San Diego to visit Zachary and Joshua; and (3) that Sharon be ordered to allocate dependency exemptions for Zachary and Joshua to Annette and execute an IRS Form 8332. As part of her request for child support modification, Annette asked the court to impute additional income to Sharon reflecting (a) Sharon's alleged ability to earn at least $100,000 to $125,000 as a Harvard MBA with extensive work experience; and (b) her parent-employer's housing assistance, which enables her to enjoy a Carmel Valley residence for only $1,500 per month.
Annette also moved for attorney fees in the amount of $25,000, an order requiring implementation of a child visitation schedule prepared by Terry Chucas, and sanctions against Sharon's attorney, William Blatchley. These requests were all subsequently denied, and Annette does not challenge these rulings.
At the September 2006 hearing on the motion, the court broadly stated that it would take these "financial issues" under submission. The court also stated that it would take the request for splitting travel costs under submission as "an aspect of the consideration under the financial issues." However, the court did not address whether any modification of child support would be made retroactive to April 29, 2005, or whether Sharon would be ordered to allocate the dependency exemptions to Annette. During the hearing, Annette did not bring these requests to the court's attention, but did argue that the court should impute additional income to Sharon reflecting her alleged earning capacity and the housing subsidies she receives from her parent-employer.
In October 2006 the court issued its ruling, finding that Sharon's monthly income was $13,332, based on her earning capacity of $10,416 per month plus her stated monthly retainer income of $2,916 from her father's company. Accordingly, the court issued an order reducing Annette's monthly child support payments to a single payment of $740 for both Zachary and Joshua. The order, however, did not address the following issues: its effective date or whether it would be made retroactive to April 29, 2005; whether Sharon shall pay one-half of Annette's travel costs to San Diego for visitation with the children; whether Sharon shall allocate dependency exemptions for Zachary and/or Joshua to Annette and execute an IRS Form 8332; or, whether the $740 figure accounted for imputed income to Sharon from her parent-employer's assistance with her Carmel Valley residence.
In November 2006 Annette filed a motion for clarification as to the effective date of the child support order. Subsequently, Sharon appealed the October 2006 order. Sharon then filed a responsive declaration objecting to Annette's motion for clarification, arguing that her appeal divested the superior court of jurisdiction to hear the motion. Annette then separately appealed the October 2006 order.
Annette claims her motion for clarification was subsequently taken off the court's calendar.
In May 2007, Sharon dismissed her appeal, leaving only Annette's cross-appeal.
DISCUSSION
Annette seeks review of the October 2006 order, claiming that the court abused its discretion by failing to rule on (1) the effective date of the order; (2) the sharing of Annette's travel costs from the Bay Area to San Diego for visitation; (3) the allocation of dependency exemptions for the children; and (4) an imputation of income available for support by virtue of Sharon's enjoyment of a below-market housing cost as compared to the fair market rental value of her residence. Thus, Annette requests that this matter be remanded to the trial court with instructions to rule on the omitted issues. In addition, she asks that we instruct the court to consider Family Code section 271 sanctions and an award of additional attorney fees for Sharon's allegedly forcing an unnecessary appeal.
Annette also claims that the court failed to rule on her request that the children's health and dental care coverage be provided through her insurance. Annette initially included this request in her original notice of motion for modification, but did not reassert it in her amended motion. Instead, she rests her entitlement to a ruling on this issue on the court's prior "promises" to address it "when [it got] to the child support issues." We conclude that the health care issue was not properly before the court because Annette did not raise it in her amended notice of motion for modification. Therefore, the court was not required to rule on it.
In her respondent's brief, Sharon argues that Annette forfeited her right to challenge the court's omissions when, despite specific invitation by the court, she failed to bring her issues to the court's attention at the September 2006 hearing. Sharon also argues that Annette's November 2006 motion for clarification was a motion for reconsideration under Code of Civil Procedure section 1008. Sharon claims that Annette's motion was untimely because it was filed after the 10-day limitation set forth in subdivision (a) of section 1008 (section 1008(a)). Accordingly, she argues that the court did not err in failing to address the omitted issues.
All further statutory references are to the Code of Civil Procedure unless otherwise provided.
A. Forfeiture of Omitted Issues
Sharon argues that Annette forfeited her opportunity to challenge the court's omission of her requests when she failed to raise them at the hearing on the motion. Specifically, Sharon contends that Annette forfeited this right when the court asked whether there was "'anything else,'" and Annette did not respond by raising the omitted issues. This argument is not persuasive.
While the circumstances surrounding this complex and protracted litigation compel us to grant some leeway to Annette in this matter, in the future and for the sake of judicial efficiency, we admonish her and all litigants acting in pro per to bring each and every request to the court's attention upon the court's invitation to address "'anything else.'"
"A motion upon all the grounds stated in the written notice thereof is deemed to have been made and to be pending before the court . . . upon the due service and filing of the notice of motion, but this shall not deprive a party of a hearing of the motion to which he is otherwise entitled." (§ 1005.5.) Annette's motion was made and her requests placed before the court when she filed her notice and served it on Sharon—not when she raised them at the hearing. This triggered the court's duty to rule. Contrary to Sharon's claim, if an attorney files a motion requesting relief on four issues and includes facts to support each of them, but then argues only two of them at the hearing, the attorney has not forfeited the remaining two issues; rather, the remaining issues are deemed submitted on the written motion.
Regarding Annette's requests for retroactivity of any child support modification and the imputation of income reflecting Sharon's housing subsidies, Annette should have clearly indicated these requests in the "other relief" section of her application for order and supporting declaration, rather than state them in her attachment to the application. However, Annette was acting in propria persona and did raise them in her attachment. Accordingly, these matters were properly before the court. While it would have been helpful for Annette to bring these matters to the court's attention during the hearing, her failure to do so did not constitute forfeiture.
B. Timeliness of Annette's Motion
Sharon next contends that Annette lost her right to challenge the court's omission of the remaining issues when she failed to bring her motion within 10 days of the October 30, 2006 order, as required under section 1008(a). The parties disagree as to whether Annette's motion was one for reconsideration (which would trigger the 10-day limitation) or one for clarification (which, according to Annette, would not). We need not decide whether the motion was one for reconsideration or clarification, as it is irrelevant to this appeal. Here, Annette asks us to review the court's October 2006 order, which is an appealable order after judgment under section 904.1, subdivision (a)(2). She was not required to move for reconsideration prior to filing her cross-appeal, nor did she waive her right to challenge any of the omitted issues by requesting clarification only as to the effective date of the order.
C. Determination on Omitted Issues
In light of the foregoing, we affirm the court's decision to reduce in some amount Annette's child support payments, taking into account Sharon's capacity to earn $10,416 per month. However, we reverse and remand to the trial court with instructions to rule on and/or clarify its ruling with respect to the following issues: (1) the effective date of the October 2006 child support order; (2) whether Sharon shall pay one-half of Annette's travel costs to San Diego for visitation with the children; (3) whether Sharon shall allocate dependency exemptions for Zachary and/or Joshua to Annette and execute an IRS Form 8332; and (4) whether Sharon shall be imputed additional monthly income reflecting the housing subsidies she receives from her parent-employer. A court must rule on all issues properly raised in a motion. We leave it to the trial court to determine whether to further modify Annette's child support payments upon addressing the omitted matters. In all other respects, the order is affirmed. Annette's request for an instruction that the court consider Family Code section 271 sanctions and an award of additional attorney fees for Sharon's allegedly forcing an unnecessary appeal is denied.
In remanding this matter, we commend the trial judge for his tremendous patience in dealing with the multitude of matters that this litigation has brought to the trial court. Given the judge's familiarity with the record in this case, we leave it to his discretion to rule on the pending matters without further hearing or to set the matters for additional hearing.
DISPOSITION
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Annette shall recover her costs on appeal.
WE CONCUR: McCONNELL, P. J., AARON, J.