Opinion
No. A100608.
11-4-2003
In re the Marriage of LYNN and DAVID A. SPECTOR. LYNN SPECTOR, Appellant, v. DAVID A. SPECTOR, Respondent.
Appellant Lynn Spector contends the trial court abused its discretion, by (1) denying her request for a continuance of a hearing date; (2) imputing a minimum wage earning capacity to appellant for child support purposes; (3) abating spousal support; and (4) failing to make a finding on the marital standard of living, for spousal support purposes. We find no prejudicial abuse of discretion, and affirm the trial courts rulings.
I. FACTS AND PROCEDURAL HISTORY
Lynn and David A. Spector were married on May 11, 1985. Their first and only child, Milo, was born in July of 1988. On February 11, 1993, Lynn filed a petition for dissolution of marriage. An informal dissolution was granted later that year, but no formal order was entered because the parties reconciled immediately thereafter, and instructed their attorneys to take no further action. However, the parties separated again, and on December 6, 1999, the court granted Lynns petition for dissolution, finding the marital status terminated as of that day, and reserving the other issues for later determination.
The case made little progress for several years, with numerous continuances being granted by the court. As of February 26, 2002, appellant was unrepresented and respondent deposited $ 1,500 in a trust for her attorney fees, consistent with an earlier court order. An attorney, Edith Jackson, was then appointed by the court to serve as counsel for appellant. The impetus for the appointment was a letter from appellants treating physician declaring her incapable of self-representation. The claimed incapacity was a result of head injuries appellant sustained in an automobile accident before the marriage.
Property and family support issues were set for trial on May 30, 2002. However, appellant discharged Ms. Jackson, in order to obtain an attorney who would represent her pro bono. Respondents attorney sent repeated communications to appellant requesting that she have her attorney contact him about the fast approaching hearing date. Appellant did not respond to these inquiries, but instead moved for a continuance of the hearing on May 28, 2002. Although her request was denied, the May 30 hearing was ultimately continued to July 18, 2002, due to other calendar conflicts.
Appellant appeared in propria persona at the July 18 hearing, and her oral request for a continuance was denied. A hearing was then held as to the division of community real property, which culminated in an order that the real property should be listed for sale and sold. The proceeds of sale were to be placed in a trust from which the parties would receive an equal share.
The court later heard the child and spousal support issues on September 4, 2002, by which time appellant had obtained counsel. In determining child support the court imputed the minimum wage of $1,160 per month to appellant, finding that she had failed to produce any evidence to substantiate her alleged inability to work, and that she was not excused from presenting such evidence because she was receiving social security benefits. Spousal support was also ordered abated as of January 2003.
II. DISCUSSION
A. STANDARD OF REVIEW
"The decision to grant or deny a continuance is committed to the sound discretion of the trial court." (Forthmann v. Boyer ( 2002) 97 Cal.App.4th 977, 984.) Similarly, the propriety of setting or modifying spousal support rests in the sound discretion of the trial court. (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 7 [modifying support] (Olson );In re Marriage of Smith (1990) 225 Cal.App.3d 469, 479 [setting support] (Smith).)
"`An abuse of discretion occurs "where, considering all the relevant circumstances, the court has exceeded the bounds of reason or it can fairly be said that no judge would reasonably make the same order under the same circumstances."" (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898-899, quoting Olson, supra, 14 Cal.App.4th at p. 7.) Consequently, we must "`accept as true all evidence tending to establish the correctness of the trial judges findings, resolving all conflicts in the evidence in favor of the prevailing party and indulging in all legitimate and reasonable inferences to uphold the judgment." (In re Marriage of Stephenson (1995) 39 Cal.App.4th 71, 82, fn. 5.)
B. MOTION FOR CONTINUANCE
As to appellants contention that the trial court abused its discretion by denying appellants July 18, 2002, motion for a continuance, we point out that a trial courts discretion in granting or denying continuances is guided by the California Rules of Court, rule 375(a) and section 9 of the Standards of Judicial Administration (Standards). Under rule 375(a) such motions are disfavored. An affirmative showing of good cause is also required for a continuance to be granted under section 9 of the Standards, which states:
All further references to rules are to the California Rules of Court.
In general, the necessity for the continuance should have resulted from an emergency occurring after the trial setting conference that could not have been anticipated or avoided with reasonable diligence and cannot now be properly provided for other than by the granting of a continuance. In ruling on a motion for a continuance, the court should consider all matters relevant to a proper determination of the motion, including the courts file in the case and any supporting declarations concerning the motion; the diligence of counsel, particularly in bringing the emergency to the courts attention and to the attention of opposing counsel at the first available opportunity and in attempting to otherwise meet the emergency; the nature of any previous continuances, extensions of time or other delay attributable to any party; the proximity of the trial or hearing date; the condition of the courts calendar and the availability of an earlier trial or hearing date if the matter is ready for trial or hearing; whether the continuance may properly be avoided by the substitution of attorneys or witnesses, by the use of depositions in lieu of oral testimony, or by the trailing of the matter for trial or hearing; whether the interests of justice are best served by a continuance, by the trial or hearing of the matter, or by imposing conditions on its continuance; and any other fact or circumstance relevant to a fair determination of the motion.
Under normal circumstances, an "[i]llness that is supported, wherever possible, by an appropriate declaration of a medical doctor, stating the nature of the illness and the anticipated period of any incapacity" should be considered good cause for granting a continuance. (Stds., § 9.)
Appellant maintains that a continuance should have been granted, because at the time the court ruled there were two letters in the file from appellants physician stating that she was unable to represent herself due to cognitive incapacities. However, those letters were not evidence, and at the time of the courts ruling there was no declaration or other competent evidence submitted showing appellant was disabled. Further, even if those letters were competent evidence, they did not reveal any sudden new illness or onset of disability requiring a further continuance. Again, section 9 of the Standards states that the illness "should, under normal circumstances, be considered good cause for granting the continuance of a trial date." (Italics added.) This language appears to recognize that an illness will not always be good cause for a continuance. Significantly, in the case at bar, appellant had been unrepresented for years. In February of 2002, she received appointed counsel at respondents expense, but appellant proceeded to discharge her attorney in hope of obtaining pro bono representation. After almost five months and two continuances, appellant had still not secured representation. On this record, we have great difficulty concluding that the necessity for the continuance "resulted from an emergency occurring after the trial setting conference that could not have been anticipated or avoided with reasonable diligence." (Stds., § 9.)
It is apparent that the trial court sought to avoid having appellant appear in propria persona, by arranging for at least some of the fees to be paid at respondents expense. This was apparently not agreeable to appellant, since she discharged the appointed attorney and sought to obtain another attorney. While a litigant certainly has the right to choose an attorney of her own liking, she must nevertheless exercise reasonable diligence to retain such an attorney following the discharge of her appointed counsel. This record shows that appellant failed to exercise such diligence, and we cannot say that the trial courts denial of her motion for continuance "`exceeded the bounds of reason" or "`that no judge would reasonably make the same order under the same circumstances." (Olson, supra, 14 Cal.App.4th at p. 7.)
Appellant also argues that the trial courts denial of her motion for continuance "runs afoul" of the Americans with Disabilities Act of 1990 (ADA), which requires public facilities to make reasonable accommodations to qualified disabled individuals. Appellant did not refer to or raise any ADA-related legal argument in the trial court, and there exists no ruling which we may review; we reject these new legal claims on this ground. (See North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29 (North Coast).) We would also add that appellants contentions in this respect are unfounded. The court appointed an attorney to represent appellant, a reasonable accommodation under the ADA, and it was appellant who chose to disregard the courts accommodation when she discharged her appointed counsel. It is also significant that this case had been languishing for several years. In the interest of fairness and judicial efficiency, neither the court nor respondent were required to await, based upon appellants timetable, her retention of a different attorney to resolve what appear to be relatively routine family law issues. (See, e.g., Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249-1250 [Denial of motion for continuance not an abuse of discretion, where plaintiff did not act with diligence in informing his attorney of scheduling conflicts.].)
Appellant relies extensively on Link v. Cater (1998) 60 Cal.App.4th 1315 (Link), for the proposition that the trial court abused its discretion because it "labored under a number of misapprehensions" when it denied the July 18 continuance request. There, Link brought suit against Los Angeles County and two individuals for false arrest and false imprisonment, assault and battery, and a civil rights violation under title 42 of the United States Code section 1983. (Link, supra, at p. 1317.) Trial dates had been set and continued on a number of occasions. (Id. at pp. 1317-1318.) The plaintiff (Link) failed to appear on the trial date because he was out of state receiving medical treatment, a trip that had been planned before trial was continued to its current date. (Id. at p. 1318.) Although Links attorney sought a continuance, his request was denied and the case was dismissed. (Id. at pp. 1319-1320.) On these facts, the Court of Appeal ruled that the trial court abused its discretion in denying the continuance and dismissing the case since imposition of a lesser sanction would have sufficed. (Id. at p. 1325.) This ruling was based upon the fact that the trial court mistakenly "believed plaintiff had requested and received more continuances than was the case; it believed, without any documentation, that the continuances to receive medical treatment were not justified, and . . . that after notice of the April 24 trial date, plaintiff deliberately had made travel arrangements and medical appointments out of state that would clearly be in conflict. Further, it failed to consider plaintiffs actual diligence for more than four years in attempting to bring the case to trial." (Id. at p. 1324.)
The record in the case at bar is a far cry from the facts in Link. Link found the abuse of discretion occurred in the dismissal of the entire action, not the mere denial of a continuance. Dismissal was held to be too severe, given the diligence of the plaintiff, and the fact that he had scheduled his medical treatment before the trial was continued to the new date. Appellants case was not dismissed; she simply was denied a continuance.
Nor has she made any showing of diligence, as did the plaintiff in Link. Appellant claims she had only failed to appear without explanation two times, in four years of litigation, and that this is sufficiently diligent in light of her disability. Nevertheless, appellants search for counsel had not been diligent. Over four years had transpired, and appellant obtained another period of nearly five months to retain an attorney after she declined the services of appointed counsel. It cannot be said that appellant sought to bring the matter to trial as diligently as the plaintiff in Link.
Appellant further argues that the trial court attributed too many continuances to her, as was the case in Link. Here, the trial court suggested there had been somewhere between 10 or 12 total continuances in the case, which appellant now contends is inaccurate and is an overstatement. Appellant however did not timely raise this issue of the number of prior continuances in the trial court. (See North Coast, supra, 17 Cal.App.4th at pp. 28-29.) And, although the actual total number of continuances is unclear from the record, it is certain that numerous prior hearing dates and trial dates had been continued. Appellant concedes the matter had been set for trial five times, and she failed to attend on two of these occasions without explanation; she failed to attend a hearing on October 21, 1999; she sought two continuances, plus two more requested by her doctor, as well as a requested continuance on her behalf by the STAND organization; and hearings were twice continued by the trial court for its own scheduling purposes. Certainly numerous hearing dates had been scheduled and vacated for various reasons, and appellant had not been diligent in bringing this matter to trial. In fact, appellant had every incentive to proceed in this fashion. As long as she could avoid a hearing date, she continued to live in the family home, and received spousal support and child support for Milo, as well as social security benefits, without working.
The court in any event did not rely on the specific number of continuances requested by appellant, as her July 18, 2002, request for continuance was denied because of the history of delay and, in particular, appellants considerable delay in securing other representation following the discharge of her court-appointed counsel.
Appellant further claims that the denial of a continuance was too severe, as was the dismissal in Link, and that a continuance might have been granted with some sort of penalty attached. While the court could have pursued such a course of action, it nevertheless was not an abuse of discretion in failing to do so. As we have mentioned, it sought to accommodate appellant through the appointment of counsel at respondents expense, but she discharged her attorney and did not timely retain another. In these circumstances, it cannot be said that denying appellants request for continuance exceeded the bounds of reason, or constituted an abuse of discretion. (See Olson, supra, 14 Cal.App.4th at p. 7.)
In the final analysis, the record demonstrates that the denial of the continuance was not prejudicial error. The trial court carefully and patiently addressed the issues, taking care that appellant understood and had a voice in the proceedings, and appellant fails to show that she would have achieved a more favorable result if a continuance had been granted. (See People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
C. IMPUTED INCOME
Appellant next contends the court abused its discretion by imputing a minimum wage income to her, for the purposes of a child support determination.
At the hearing on this imputed income issue, appellant was represented by counsel.
A court, acting within its discretion, may impute income to an unemployed or underemployed parent where the parent: (1) has the ability to work (accounting for factors such as age, occupation, skill, education, health, background, job experience, and qualifications); and (2) has an opportunity to work (which exists when there is substantial evidence of a reasonable "likelihood that a party could, with reasonable effort, apply his or her education, skills and training to produce income"); but (3) lacks the willingness to work consistent with ability and opportunity. (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 930; In re Marriage of Regnery (1989) 214 Cal.App.3d 1367, 1372-1373.) Where the evidence shows a party lacks either the ability or opportunity to work, however, the imputation of earning capacity is an abuse of discretion. (In re Marriage of Smith (2001) 90 Cal.App.4th 74, 82.)
Appellant maintains the trial court abused its discretion, because she was disabled. However, appellant was required to present medical evidence that she could not work due to a current disability, in order to avoid imputation of a minimum wage income. This she did not do. Appellant points out that the trial court had before it two notes from her physician showing her disability, but those notes mention nothing related to appellants ability to earn income. Instead, the physicians letters state that appellant should not represent herself in the family law proceedings, which is true of many litigants. Because there was no competent medical evidence to substantiate her claimed current inability to produce income, it was not an abuse of discretion to impute a minimum wage income to appellant.
Our court also requested additional briefing on this issue. The parties in their additional briefing agree the legal standards for social security disability and marital income imputation disability are somewhat different, although they disagree on the import of some of the differences. They do both agree, however, that once appellant received federal social security disability she could continue to receive such disability payment for years, without submitting further proof of a current disability. The state law standard required current disability, not just a past disability. The difference in the two legal standards would logically mean that the federal social security ruling is not necessarily determinative in the state court proceedings.
Therefore, the trial court was correct to require appellant to present some evidence of current disability, which she did not do. In the absence of such evidence, the trial court acted properly in imputing income to appellant.
D. ABATING SPOUSAL SUPPORT
Appellant claims the trial courts order abating spousal support was erroneous, in light of appellants disability. Once again, we review only for an abuse of discretion. (See Olson, supra, 14 Cal.App.4th at p. 7.)
Appellant provides little support for her argument, except to state that the marriage was of long duration and her asserted disability was pertinent in deciding whether to award spousal support. As previously noted, however, the court found no evidence appellant was totally disabled from working. The marriage was also viewed as a medium-duration marriage, considering that it was effectively terminated in 1993, when the first dissolution was granted. Since respondent had already paid spousal support for more than one-half the duration of the marriage, the court concluded this was a "reasonable period of time" for spousal support, although the court continued child support for Milo. The Family Code now presumes the supported spouse should be self-supporting within a period equal to one-half the length of the marriage. (Fam. Code, § 4320, subd. (l); In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 810; In re Marriage of Schulze (1997) 60 Cal.App.4th 519, 525.) Appellant has failed to show an abuse of discretion in this regard. (See Olson, supra, 14 Cal.App.4th at p. 7.)
E. MORE EXPLICIT FINDING AS TO MARITAL STANDARD OF LIVING
Finally, appellant contends the court committed prejudicial error by failing to make an explicit finding as to the marital standard of living.
Family Code section 4332 requires the court to make "specific factual findings with respect to the standard of living during the marriage, and, at the request of either party, . . . [to] make appropriate factual determinations with respect to other circumstances." The standard for findings as to the "marital standard of living" is notoriously vague. (Smith, supra, 225 Cal.App.3d at pp. 489-491.) Rejecting notions that such findings must track detailed marital income and expense records or "`less tangible lifestyle factors," our own court (Div. Five of the 1st App. Dist.) interpreted the legislative mandate as follows: "We believe that the Legislature intended the marital standard of living to be what case law has described it to be, that is, reasonable needs commensurate with the parties general station in life. [Citation.] It is a general description, not intended to specifically spell out or narrowly define a mathematical standard. If the Legislature had intended something more specific, it could have prescribed a more specific measurement, such as the marital standard of living as measured by the gross annual family income. The Legislature has wisely chosen not to do so. As in this case, that figure is of little value to the judge hearing a motion for modification many years later." (Id. at p. 491.)
Although appellant argues that the trial court failed to make any finding with respect to the marital standard of living (such as "middle" income or "lower" income) we note the court specifically stated it had taken into consideration the couples marital standard of living, as set forth in various tax returns, as well as their testimony. Arguably, the courts statement would appear to satisfy the purpose behind a marital standard of living finding, at least in the absence of a request for a more detailed statement. Although she argues this point now, appellant did not raise this issue of the need for a more explicit finding in the court below. (See North Coast, supra, 17 Cal.App.4th at pp. 28-29.) Had she desired a clarification or more explicit finding as to the marital standard of living, appellant might have requested the trial court for one. (See In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1138 & fn. 6 [The failure to timely advise the trial court of the need for a more explicit finding waives the claim of error on appeal.].)
There is also no indication the lack of a more explicit finding was prejudicial to appellant. A finding on the marital standard of living is only intended to be a threshold or starting point, from which a court is to commence its consideration of the other factors relevant to support. (Smith, supra, 225 Cal.App.3d at p. 485.) "It does not eliminate judicial discretion to award spousal support in amounts greater or less than the marital standard of living." (Ibid.) The purpose to be served by such a finding was met here, by the trial courts observation that it had considered the marital standard of living as set forth in tax returns and other evidence. The formal designation of that marital standard of living as "lower" or "middle" income could not possibly have affected the result.
Appellant brings to our attention no case authority to support her claim that the trial courts failure to make a more explicit finding as to the marital standard of living always amounts to prejudicial error. In fact, the loose leaf treatise she cites on this point states that an explicit finding on the marital standard of living often serves no real purpose. (See Hogoboom and King, Cal. Practice Guide: Family Law (The Rutter Group) §§ 6:1084-6:1085 [noting that "the legislative findings requirements fall short of achieving ultimate usefulness . . . ."].)
In the present case, the trial court abated spousal support because appellants former husband had been paying support over a long period of time, and not because of any reason having to do with the marital standard of living. In addition, we note the marital standard of living had only existed many years before, during the period from 1985 to 1993. By the time of the hearing in the year 2002, that old marital standard of living had become a moot issue, and had little or no relevance. (See Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 10.) Thus, the absence of a more detailed and explicit finding on this irrelevant point was at most harmless error. (See Watson, supra, 46 Cal.2d at p. 836.)
Lastly, even if we were to find error in this respect, the remedy would be to remand the matter to the lower court to make such an explicit finding. Such a remand would be futile, since the lower courts rulings under discussion had nothing to do with the former marital standard of living. In any event, the lower court ordered that further hearings will be held as necessary, and it may therefore address and make a more explicit finding as to the marital standard of living in the event future hearing(s) become necessary, and if requested to do so by appellant. We find no reason to disturb the trial courts orders on this ground.
III. DISPOSITION
The orders of the trial court are affirmed.
We concur JONES, P.J., SIMONS, J.