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In re Marriage of Fillhart

California Court of Appeals, Fourth District, Second Division
Jun 23, 2010
No. E046921 (Cal. Ct. App. Jun. 23, 2010)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County No. SBFSS085517. Thomas Ashworth III, Temporary Judge.

David G. Currie for Appellant.

John A. Bledsoe for Respondent.


OPINION

Hollenhorst, Acting P.J.

Appellant Misti Lynn Fillhart (wife) appeals judgment entered following a trial by a private judge assigned to handle the marital dissolution case pursuant to stipulation by wife and respondent Dave Alan Fillhart (husband).

Wife contends the trial should have been continued due to the unavailability of her attorney; the child custody and visitation orders should be set aside due to a lack of pretrial mediation; there was no jurisdiction to decide the child and spousal support issues; the rulings on property division and equalization payments were founded on inadmissible evidence; and there was insufficient evidence to support the sanctions order against wife under Family Code section 271.

Unless otherwise noted, all statutory references are to the Family Code.

We conclude there was no error warranting reversal and thus affirm the judgment.

1. Facts and Procedural Background

Husband and wife married in 1988 and separated on March 21, 2005. They have two children, Christi (born in 1991) and Matti (born in 2001).

At the time of separation, husband and wife owned a two and a half acre property, which included their family home and a separate building containing husband’s shop, with an apartment above the shop. Husband had been self-employed for 25 years as a cabinetmaker. Wife substitute taught on occasion and had worked in husband’s office.

In March 2005, wife filed a petition for marital dissolution and requested child custody, child and spousal support, and division of the marital assets. At the order to show cause (OSC) hearing in June 2005, the family court ordered joint physical custody, visitation, and child and spousal support.

At a hearing in March 2006, the family court referred the case to Family Court Services for mediation. The court bifurcated the issue of marital status and entered a judgment of dissolution as to marital status.

In August 2006, the parties and their attorneys attended a mandatory settlement conference (MSC) and attempted to settle the matter. The settlement conference was continued to November 2006 for further settlement mediation. At the continued mediation hearing in November, wife’s attorney informed the family court that the parties were attending private mediation. That same day, husband filed an OSC request for modification of child and spousal support. At the hearing on the OSC request in December 2006, the family court set the trial on March 15, 2007.

In February 2007, the family court vacated the trial date and set an MSC in March. At the MSC, the court reset the trial on July 11, 2007. On July 11, 2007, the parties stipulated to the family court assigning the case for all purposes to a private judge, Judge Ashworth. The family court also set a status conference in September 2007, which was later continued to December 2007 and to March 12, 2008, on the ground the parties were participating in private mediation. The status conference was continued to July 9, 2008, and again to October 8, 2008, on the ground the case was being tried by Judicial Arbitration and Mediation Services (JAMS).

In June 2008, wife filed in family court an OSC request for modification of child support. The county was added as a plaintiff. On July 14, 2008, the family court continued wife’s OSC request to August 27, 2008.

On July 21, 2008, wife substituted out her attorney, David Currie, and substituted herself in, in propria persona. Ten days later, after the trial in this matter, wife substituted Currie back in as her attorney.

On July 23 and 24, 2008, Judge Ashworth tried the dissolution case, and on August 1, 2008, entered a judgment, along with detailed written findings and orders as to custody, visitation, support, property division, and sanctions.

In August, wife filed in family court a motion to set aside the judgment, which the court heard and denied.

Also in August 2008, the family court continued wife’s OSC request for modification of child support to October 1, 2008, at which time the family court dismissed wife’s OSC request without prejudice on the ground wife requested the dismissal.

Wife appeals the dissolution judgment entered on August 1, 2008.

2. Denial of Trial Continuance

Wife contends the trial court abused its discretion in denying a continuance of the trial on July 23, 2008. We disagree.

A. Applicable Law

We review the trial court’s decision whether to grant a continuance of the trial for abuse of discretion. (Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249.) A trial court abuses its discretion when its decision exceeds the bounds of reason by being arbitrary, capricious, or patently absurd. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) Such an abuse must be clearly established in order to merit reversal on appeal. (Id. at p. 318.)

California Rules of Court, rule 3.1332 provides that trial dates are firm and that continuances in civil cases are disfavored and should be granted only upon an affirmative showing of good cause. There are enumerated circumstances which may indicate good cause, including the substitution of trial counsel. However, there must be a showing that the substitution is required in the interests of justice. (Ibid.) In determining whether to grant a continuance, the trial court is required to consider “(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; [¶] (2) The unavailability of a party because of death, illness, or other excusable circumstances; [¶] (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; [¶] (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; [¶] (5) The addition of a new party...; [¶]... [¶] (6) A party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or [¶] (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”

All references to rules are to the California Rules of Court, unless otherwise indicated.

Additional factors specified in rule 3.1332 include: “(1) The proximity of the trial date; [¶] (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; [¶] (3) The length of the continuance requested; [¶] (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; [¶] (5) The prejudice that parties or witnesses will suffer as a result of the continuance; [¶] (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; [¶] (7) The court’s calendar and the impact of granting a continuance on other pending trials; [¶] (8) Whether trial counsel is engaged in another trial; [¶] (9) Whether all parties have stipulated to a continuance; [¶] (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and [¶] (11) Any other fact or circumstance relevant to the fair determination of the motion or application.” (Ibid.)

Continuances should be granted sparingly or grudgingly. (County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781.) Additionally, litigants do not enjoy an absolute right to insist upon a change of counsel at the last moment before a trial if the change of counsel requires a continuance. (People v. Windham (1977) 19 Cal.3d 121, 128, fn. 5; County of San Bernardino v. Doria Mining & Engineering Corp., supra, at pp. 783-784.) We note that, “‘[I]f a [trial] must be continued... every time an attorney withdraws from the case, there would be no end to the matter.’” (Ibid., quoting In re Estate of Bollinger (1905) 145 Cal. 751, 753.)

B. Procedural Background

At the time of the trial on July 23, the trial had already been continued at least once. Judge Ashworth noted at the inception of the trial on July 23 that he had received two letters from wife’s attorney, one dated July 14 (Exh. 34), mentioning the need for Family Court Services mediation, and the second faxed letter, dated July 17 (Exh. 35), stating that Currie had two criminal trials that conflicted with the July 23 trial.

Judge Ashworth noted that when the trial was continued to July 23, husband’s attorney, John Bledsoe, vigorously opposed the continuance. Judge Ashworth stated he was nevertheless going to grant the continuance. Counsel then agreed to setting the trial on July 23 and 24, and Judge Ashworth made it clear there would be no further continuances. Judge Ashworth noted on July 23 that Currie “had indicated when we agreed to those dates that he would arrange not to have conflicts during that time or it would not have been continued in the first place.”

Nevertheless, nine days before the July 23 trial, Currie requested a continuance on the ground a Family Court Services mediation was set after the trial date. When that ground proved unpersuasive and Judge Ashworth denied a continuance, six days before the trial Currie faxed a letter to Judge Ashworth conceding that he once again had scheduling conflicts, which he claimed prevented him from attending the trial. When Judge Ashworth again denied a continuance, Currie persuaded his client to substitute him out two days before the trial. We note Currie substituted back in a week after the trial.

In response to Judge Ashworth’s comments at the beginning of the trial on July 23, regarding wife’s and Currie’s failure to attend the trial, husband’s attorney, Bledsoe, informed the court that Currie had also sent him two letters requesting husband stipulate to a trial continuance. Currie stated in the second letter that he had two criminal court appearances on July 21, 2008, and therefore would be unavailable for the trial in the instant case on July 23. Currie further stated in the letter that, if Judge Ashworth would not grant a trial continuance, he intended to substitute out as wife’s attorney.

Bledsoe further told Judge Ashworth that he attempted to exchange trial exhibits and a list of exhibits with wife, pursuant to the pretrial order, but was unable to do so. The day of the scheduled exchange, Currie faxed Bledsoe a substitution of attorney form, stating wife was representing herself, in propria persona. As a consequence, Bledsoe attempted to deliver the trial exhibits to wife at the address stated on the substitution of attorney form as wife’s address, but wife was not there.

In explaining the grounds for denying a trial continuance, Judge Ashworth stated: “[T]hese parties have been separated since March of 2005. This case has now been pending, therefore, for three years and four months which, in my view, is already excessive. The cost to the parties both emotionally and financially has been devastating, and the conflict that continues is certainly affecting their children as well as depleting their assets, and I could not in good conscience allow another continuance particularly to a date that I had no assurance would be any more likely to take place than the previous ones that I had scheduled. So this is why we are proceeding today.”

Judge Ashworth further stated, “I am concerned about continuing to schedule matters that were knowingly in conflict with a prescheduled trial date; and I recognize that [Currie] does not pick the dates, but I also believe that the court would have been willing to accommodate a preset trial by moving the criminal matters a few days, either advancing them or waiting until the trial was over. And I had no indication that he’d really made an effort to do that. And he had indicated when we agreed to those dates that he would arrange not to have conflicts during that time or it would not have been continued in the first place.”

We recognize that attorneys often encounter scheduling conflicts and may have little control over the court calendaring matters. However, the record indicates that in the instant case Currie was remiss in not immediately bringing to the attention of Judge Ashworth and his client the scheduling conflicts, and there is no evidence that Currie made any effort to request alternative scheduling of the other conflicting matters. While wife agreed to Currie substituting out as her attorney on the eve of trial, she did so most likely, believing it would result in the court continuing the trial. Under such circumstances, Currie’s conduct verges on client abandonment and, at best, shows poor judgment in handling scheduling conflicts. (See Rules Prof. Conduct, rule 3-700.)

Judge Ashworth added regarding mediation that there had already been several lengthy mediations, including prior Family Court Services mediations, none of which resulted in resolution of the matter. Judge Ashworth therefore did not believe further mediation would be effective.

C. Discussion

Wife complains that because the court refused to continue the trial, she was forced to represent herself. She claims Judge Ashworth should have continued the trial because her attorney, Currie, was engaged in two criminal trials and a probate trial at the time of the trial in the instant case. Wife argues that Penal Code section 1050, subdivision (a) requires criminal cases to be given precedence over civil cases. However, subdivision (l) of Penal Code section 1050, specifically states the provision is directory, not mandatory.

Penal Code section 1050, subdivision (a) provides that criminal cases shall take precedence over civil cases as long as such precedence is consistent with the stated policy that hearing a criminal case before a civil case furthers the “ends of justice.” In People v. Osslo (1958) 50 Cal.2d 75, 106, the Supreme Court concluded that the decision of whether a criminal case takes precedence over a civil case must not be arbitrary. The language of Penal Code section 1050 vests discretion in the trial court to make these decisions, which evokes the abuse-of-discretion standard on appeal. Accordingly, we uphold the trial court’s decision “except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Jordan (1986) 42 Cal.3d 308, 316, italics omitted.)

Here, the trial court did not abuse its discretion in denying a continuance of the trial. There was sufficient justification for doing so, for the reasons stated by Judge Ashworth. The matter had been pending for a lengthy period of time, causing significant disruption in the lives of the parties and their children, as well as great expense and financial hardship. The trial was continued several times, with Ashworth emphasizing at the time of the most recent continuance, that there would be no further continuances. The parties and their attorneys agreed to this and selected July 23, 2008, as a mutually agreeable trial date.

Although scheduling conflicts are not uncommon, wife and Currie were on notice that Judge Ashworth was opposed to continuing the July 23 trial based on scheduling conflicts. Knowing this, Currie had a duty to his client and to the court to make every effort to be available to try the case.

Furthermore, under rule 3.1332(b), “A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” (Ibid.)

Neither Currie nor wife submitted a written motion or ex parte application for a continuance, supported by declarations, and Currie’s letters to Judge Ashworth and husband’s attorney are not in the record on appeal. There thus was no evidence presented to Judge Ashworth establishing when Currie became aware he had two criminal trials scheduled on July 21, or when he notified wife of the scheduling conflicts. It is thus unclear as to whether wife actually had a sufficient time to find another attorney.

There is also nothing in the record regarding a probate hearing scheduled on July 23, other than postjudgment evidence consisting of a minute order. Wife requests this court to judicially notice the probate court minute order, as well as two criminal court minute orders that also were not before Judge Ashworth when he denied a continuance of the July 23 trial. Since the minute orders constitute postjudgment evidence that was not before Judge Ashworth when he denied the trial continuance, wife’s judicial notice request as to the minute orders is denied. This court is not a forum for taking new evidence, particularly postjudgment evidence that was not considered by the trial court when exercising its discretion.

We further note wife improperly attached exhibits to her appellant’s opening brief. The documents are neither included in the record on appeal nor judicially noticed. Therefore they will not be considered or relied upon in deciding this appeal pursuant to rule 8.204(d), which states the following concerning attachments to briefs: “A party filing a brief may attach copies of exhibits or other materials in the appellate record or copies of relevant local, state, or federal regulations or rules, out-of-state statutes, or other similar citable materials that are not readily accessible....” (Italics added.)

There is also nothing in the record establishing that Currie notified the other courts setting the conflicting hearings, of the July 23 trial date in the instant case and there is no evidence that Currie made a good faith attempt to reschedule the conflicting criminal and probate hearing dates. “Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].” (Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502.) Here, we cannot say Judge Ashworth acted beyond the bounds of reason in not continuing the July 23 trial.

Wife complains that, because Judge Ashworth told her when she appeared on July 23 that he was going to try only the property and spousal support issues, she left without participating in the trial. Wife did so at her own peril, erroneously assuming that only the issues of property division and spousal support would be decided. The reporter’s transcript reflects that Judge Ashworth did not tell wife he would not be deciding the issues of child custody, child support, or sanctions. Rather, he said he would proceed with deciding those issues, as well as the issues of property division and spousal support, even though his child support and custody findings and orders might be temporary in the event the Department of Child Support Services (DCSS) thereafter decided the issues.

In the absence of evidence establishing that Judge Ashworth’s decision exceeded the bounds of reason by being arbitrary, capricious, or patently absurd (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319), we conclude Judge Ashworth did not abuse his discretion in denying wife’s request for a trial continuance.

3. Mediation

Wife asserts that the child custody and visitation orders must be set aside because there was a lack of mediation before entering the orders. Wife claims that under Civil Code sections 4607 and 4608, whenever child custody and visitation are contested, mediation is required before or concurrent with setting the matter for a hearing.

Civil Code sections 4607 and 4608 were repealed in 1992, and wife fails to cite any other applicable statutory authority supporting her proposition that mediation was required prior to the July 23 jury trial.

Civil Code sections 4607 and 4608 were repealed by Stats. 1992 (A.B. 2650), section 3, operative January 1, 1994. Upon repeal, the language of Civil Code section 4607 was incorporated into numerous statutes in Chapter 11 of the Family Code (§§ 3160-3186). It appears that Civil Code section 4608, which related to factors to consider in making a determination of the best interests of a child, was not recodified or reinstated in any subsequent statutes. Upon repeal in 1992, Civil Code section 4608 was reinstated in Family Code section 3022, but failed to become operative by repeal, pursuant to Statutes 1993, chapter 219 (A.B. 1500), § 116.13. (See § 3021 Historical and Statutory Notes and Civil Code, §§ 4603 to 4611, Historical and Statutory Notes, regarding Civil Code, § 4608.)

Section 3170, subdivision (a) provides that, “ If it appears on the face of a petition, application, or other pleading to obtain or modify a temporary or permanent custody or visitation order that custody, visitation, or both are contested, the court shall set the contested issues for mediation.” The record establishes compliance with this provision. Before the July 23 trial, the case was mediated at length both in family court and by Judge Ashworth.

Section 3170, subdivision (a) restates the first sentence of former Civil Code section 4607, subdivision (a), without substantive change.

At the trial on July 23, Judge Ashworth acknowledged that wife’s attorney had just informed him that Family Court Services had scheduled a mediation in September, after the July 23 trial. Judge Ashworth nevertheless proceeded with the trial, concluding that it was unlikely mediation would resolve the case and would merely result in further delay in trying the case, which was not in the best interests of the parties.

There thus was no abuse of discretion in Judge Ashworth proceeding with the trial on July 23 since the case had been pending for over three years, had been set for trial and continued several times, and there had already been numerous attempts to resolve the case by mediation.

4. Jurisdiction Over Child Support

Wife contends Judge Ashworth did not have jurisdiction to order child support because the local child support agency was not involved or notified of the trial and there was a pending petition for support modification filed in the family court.

Without citing to the record, wife claims she “opened her case with the DCSS [Department of Child Support Services] in San Bernardino County on March 8, 2008.” This is not reflected in the register of actions. The register of actions included in the clerk’s transcript on appeal shows that on June 10, 2008, wife filed in the family court a petition for an OSC re modification of child support. A status conference hearing was set on July 9, 2008, and the hearing was continued to October 8, 2008, on the ground the matter was being heard by a JAMS private judge (Judge Ashworth). On July 14, 2008, the hearing on wife’s petition for an OSC re modification of child support was continued to August 27, 2008.

On July 23 and 24, 2008, Judge Ashworth tried the dissolution matter and ordered joint legal custody, with the children’s primary residence to remain with wife, and visitation by husband. The court also ruled on child and spousal support. At the inception of the trial, Judge Ashworth noted that wife had just informed him that she had filed a proceeding with the DCSS and there was a hearing on the matter scheduled to be heard in the future. Judge Ashworth acknowledged that, as a result, “it would appear that the Department of Child Support Services now has taken jurisdiction over the child support aspects of the case.”

Judge Ashworth added that there was a Family Court Services mediation scheduled in September. He explained that he would be making orders that would, in effect, be interim orders and “[wife] had a right to proceed with a modification proceeding or whatever other proceeding she wanted as long as the court had jurisdiction over the parties’ two minor children, ... [¶] So that my orders will be until there’s some further order in that area, ...”

Husband’s attorney, Bledsoe, added that it was his understanding that Family Court Services was not going to hear the case due to the matter being assigned to a private judge (Judge Ashworth).

When ruling on the matter, Judge Ashworth further explained that, “in terms of child support, I am going to make an order with regard to child support. I recognize that there may be a proceeding before the Department of Child Support Services, and that my determination may be overridden by them, but I have no way of knowing, given the volatility of this case, whether the petitioner intends to proceed with that or not, and if she does, whether the Department of Child Support Services intends to deal with it only prospectively or whether they intend to look at any enforcement for a prior period in this case. And as a result of that, I am going to make these orders which they may determine are only advisory, since if they choose to act, they have the superior jurisdiction.” Judge Ashworth thereafter made child and spousal support findings and orders.

Ultimately, on October 1, 2008, wife’s petition for modification of child support was dismissed upon the request of wife’s attorney. As a consequence, Judge Ashworth’s orders on child support and custody remain in effect and are enforceable orders.

Section 200 confers jurisdiction over family law matters on the superior court: “The superior court has jurisdiction in proceedings under this code.” Section 2010 gives the court jurisdiction to “inquire into and render any judgment and make orders that are appropriate concerning the following: [¶]... [¶] (c) The support of children for whom support may be ordered, ...” Under section 4405, “The court retains jurisdiction to modify or terminate an order for support where justice requires.” In short, the superior court has jurisdiction to enforce child support orders. (In re Marriage of Lackey (1983) 143 Cal.App.3d 698, 702.)

Wife argues the DCSS had exclusive jurisdiction over child support, thereby precluding Judge Ashworth from making any support orders. We disagree. Although, generally, all child support matters are to be heard by a child support commissioner under section 4251, subdivision (a), wife has not established that under the circumstances in the instant case, Judge Ashworth was precluded from ruling on child support.

“In 1999, the Legislature created a new state agency for child support enforcement, the Department of Child Support Services. (Fam. Code, § 17200.) This legislative action was motivated in part by the funding requirements of title IV-D of the federal Social Security Act (42 U.S.C. § 651 et seq.; Fam. Code, § 17303, subd. (a)) and in part by the ‘inefficiencies introduced by involving multiple layers of government in child support enforcement operations.’ (Fam. Code, § 17303, subd. (d).) Each county was directed to establish a local child support agency to be responsible for ‘establishing, modifying, and enforcing child support obligations, including medical support, enforcing spousal support orders established by a court of competent jurisdiction, and determining paternity in the case of a child born out of wedlock.’ (Fam. Code, § 17400, subd. (a).)” (Orange County Dept. of ChildSupportServices v. Superior Court (2005) 129 Cal.App.4th 798, 806.)

In the County of San Bernardino, the department is the local, county child support agency, DCSS. In the event of pending child support enforcement proceedings, the local county child support agency has responsibility for establishing, modifying, and enforcing child support obligations (§ 17400), and the county is thus an indispensable party to subsequent proceedings in a dissolution action relating to child support. (In re Marriage of Mena (1989) 212 Cal.App.3d 12, 18-19.) This situation commonly arises where a county attempts to recoup welfare costs paid to a parent receiving public assistance for a minor, by collecting child support payments from an absent parent. (County of Lake v. Palla (2001) 94 Cal.App.4th 418, 421-422.)

The Legislature also directed each superior court to “provide sufficient commissioners to hear Title IV-D child support cases filed by the [DCSS].” (§ 4251, subd. (a).) These commissioners’ “primary responsibility shall be to hear Title IV-D child support cases.” (§ 4252, subd. (a).) The statutory scheme provides that all Title IV-D support enforcement actions filed by the DCSS shall be heard by a child support commissioner as well as related support actions filed by another party. “All actions or proceedings filed by the [DCSS] in a support action or proceeding in which enforcement services are being provided pursuant to Section 17400, for an order to establish, modify, or enforce child or spousal support... shall be referred for hearing to a child support commissioner.... All actions or proceedings filed by a party other than the [DCSS] to modify or enforce a support order... for which enforcement services are being provided pursuant to Section 17400 shall be referred for hearing to a child support commissioner....” (§ 4251, subd. (a); see also Orange County Dept. of Child Support Services v. Superior Court, supra, 129 Cal.App.4th at p. 806.)

In the instant case, the register of actions states the trial court in 2005 found it had jurisdiction to make orders regarding child custody under the Uniform Child Custody Jurisdiction and Enforcement Act. The court thereafter made support and custody orders. Following several years of litigation, husband and wife stipulated in July 2007 to assignment of the case “for all purposes” to a private, retired judge, Judge Ashworth.

Even assuming that normally a DCSS commissioner has jurisdiction to hear Title IV-D child support cases (§ 17404, subd. (e)(4)), here, wife has not provided any evidence that there was a pending support enforcement proceeding or preexisting support enforcement proceeding that precluded Judge Ashworth from deciding support issues, particularly since the parties stipulated to assignment of the matter for all purposes to Judge Ashworth.

Wife argues that Judge Ashworth’s support order is invalid because under section 4251, subdivision (f), “The local child support agency shall be served notice by the moving party of any proceeding under this section in which support is at issue. Any order for support that is entered without the local child support agency having received proper notice shall be voidable upon the motion of the local child support agency.” There is no evidence in the record that the DCSS moved to set aside the support order. Furthermore, in October 2008, after entry of Judge Ashworth’s support order, wife dismissed her petition for support modification previously filed in the family court. As a consequence, Judge Ashworth’s support order remains in full force and effect.

5. Admissibility of Evidence

Wife contends Judge Ashworth’s ruling on property division and order requiring wife to make an equalization payment were based on inadmissible evidence. She claims Judge Ashworth based his decision on evidence lacking foundation and on inadmissible hearsay.

On the day of trial, wife, who substituted out her attorney two days earlier and was representing herself, appeared for the trial but left upon Judge Ashworth denying her request for a trial continuance. Thereafter, Judge Ashworth tried the matter in her absence, with husband providing testimony and presenting various exhibits.

Due to not participating in the trial, wife failed to raise any evidentiary objections to the evidence presented at trial. “As a general rule, issues not properly raised at trial will not be considered on appeal.” (In re Marriage of Olson (1993) 14 Cal.App.4th 1, 15.) This general rule is “grounded on principles of waiver and estoppel, and is a matter of judicial economy and fairness to opposing parties. [Citations.]” (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 629.) “Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a ‘waiver, ’ the correct legal term for the loss of a right based on failure to timely assert it is ‘forfeiture, ’ because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the ‘“intentional relinquishment or abandonment of a known right.”’” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)

In addition, as stated in Evidence Code section 353, “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and [¶] (b) The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice.”

This court thus will not reverse erroneous evidentiary rulings that could have been, but were not, challenged below. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185.) “‘Any other rule would “‘“permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.”’ [Citations.]” [Citation.]’” (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)

There are exceptions to the general waiver or, rather, forfeiture rule whereby certain issues may be raised on appeal despite the appellant’s failure to raise them in the trial court. One such exception is when there is a question of law arising from undisputed evidence regarding a noncurable substantive defect, such as lack of jurisdiction. (Bonner v. City of Santa Ana (1996) 45 Cal.App.4th 1465, 1476-1477, overruled on other grounds in Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 320-321.) Another pertinent exception is the contention that the judgment is not supported by substantial evidence. (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167.) Whether the general rule applies is largely a question of the appellate court’s discretion. (Ibid.)

In the instant case, wife’s evidentiary challenges do not fall within any exception to the general rule and therefore this court will not consider whether the evidence presented at trial was inadmissible. Because wife failed to object to the evidence in the trial court, her evidentiary objections raised on appeal were not preserved for appellate review and have been forfeited.

6. Sufficiency of Evidence Supporting Sanctions

Wife contends there was insufficient evidence to support Judge Ashworth’s order that wife pay husband $20,000 in sanctions under section 271. Judge Ashworth ordered the sanctions based on husband’s testimony that wife committed specific acts of misconduct and was uncooperative during the dissolution proceedings. Wife was ordered to pay the $20,000 in sanctions from her share of community property.

Wife complains that Judge Ashworth erred in considering sanctions at the time of the dissolution trial. Wife argues that under section 2335 and rule 3.1702, imposition of sanctions should have been considered during a separate hearing, after the trial. Rule 3.1702 does not stand for this proposition and is inapplicable. Subdivision (a) states that, “Except as otherwise provided by statute, this rule applies in civil cases to claims for statutory attorney’s fees and claims for attorney’s fees provided for in a contract.” (Rule 3.1702(a).) Subdivision (b) states that a notice of motion for attorney’s fees “must be served and filed within the time for filing a notice of appeal.” (Rule 3.1702(b).)

Section 2335 is also inapplicable. It states: “Except as otherwise provided by statute, in a pleading or proceeding for dissolution of marriage or legal separation of the parties, including depositions and discovery proceedings, evidence of specific acts of misconduct is improper and inadmissible.” This provision, which was enacted in furtherance of “no-fault divorce.” (Diosdado v. Diosdado (2002) 97 Cal.App.4th 470, 473-474 (Diosdado).) While evidence of “fault, ” or inappropriate behavior within the context of the marital relationship, is inadmissible under section 2335, evidence of misconduct within the meaning of section 271 is not barred. Determination of section 271 sanctions thus need not take place in a separate proceeding apart from the dissolution trial, as wife proposes.

Section 271 states in relevant part: “(a) Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties’ incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney’s fees and costs is not required to demonstrate any financial need for the award.” (Italics added.) The type of evidence relevant to establishing section 271 sanctions is not generally encompassed by section 2335.

Wife’s reliance on Diosdado, supra, 97 Cal.App.4th at pp. 473-474, and In re Marriage of Gray (1988) 204 Cal.App.3d 1239, 1253-1254 (Gray), is misplaced. Diosdado addressed the issue of whether a divorced wife could enforce a premarital liquidated damages contract provision, which provided for payment upon dissolution of marriage of damages by a party guilty of sexual infidelity to the other party. (Diosdado, supra, at pp. 471-472.) In holding the contract provision was unenforceable, the Diosdado court stated that evidence of specific acts of misconduct was improper and inadmissible in the dissolution proceedings because fault was not a relevant consideration in dissolving the marriage. (Id. at pp. 473-475.) There was no discussion of section 271 sanctions. Likewise, wife’s reliance on Gray, supra, 204 Cal.App.3d at pages 1253-1254, is misplaced.

We also reject wife’s contention there was insufficient evidence supporting section 271 sanctions against her. In addition to arguing that evidence of misconduct was inadmissible under section 2335, wife argues the evidence relied upon by the court was inadmissible because it lacked foundation, constituted inadmissible hearsay, and was unsubstantiated by any evidence other than husband’s testimony.

As discussed in the preceding section of this opinion, wife forfeited her evidentiary objections by not raising them at the time of the trial. (In re Marriage of Olson, supra, 14 Cal.App.4th at p. 15; Evid. Code, § 353.) Furthermore, generally, the testimony of a single credible witness is sufficient to establish any fact (Evid. Code, § 411), and “A reviewing court cannot substitute its evaluation of a witness’s credibility for that of the fact finder.” (People v. Garcia (1993) 17 Cal.App.4th 1169, 1183.)

We thus conclude that there was sufficient evidence to support the trial court’s sanctions award against wife. Husband presented evidence, not only of wife’s obstreperous acts supporting sanctions, but also established wife’s ability to pay the sanctions. Husband requested sanctions based on evidence wife failed to cooperate in sharing the children and committed underhanded conduct, including taking the couple’s vehicles; interfering with husband’s business; causing excessive utility bills; causing numerous continuances in the dissolution proceedings; not attempting in good faith to settle the case; committing confrontational acts, requiring attorney intervention and additional legal fees; substituting out wife’s attorney on the eve of trial; providing a false residence address on the substitution of attorney form; concealing from husband where their children were living and going to school; and showing up at the trial to request a continuance, but then leaving upon denial of her continuance request, without participating in the trial.

Wife complains she did not have notice of husband’s sanctions request because Judge Ashworth indicated, when wife appeared for trial on July 23, that he would be deciding the issues of property division and spousal support. She claims he made no mention of trying any other issues, such as support, custody, or sanctions.

Wife’s contention lacks merit since notice had already been provided that all these issues would be decided during the trial, including sanctions. Judge Ashworth’s findings attached to the judgment state that wife had notice of the trial and an opportunity to be heard. It can be reasonably inferred that such notice encompassed all issues addressed in the judgment, findings and orders. In addition, the judgment findings state as to section 271 sanctions, that there was proper notice to wife of husband’s intent to seek section 271 sanctions. Wife fails to establish she did not receive proper notice of the issues decided during the trial.

Based on our review of the record, we conclude there was ample evidence supporting Judge Ashworth’s sanctions award against wife.

7. Husband’s Motion for Attorney’s Fees and Sanctions

Husband has filed in this court a motion seeking recovery of his attorney’s fees as sanctions under Code of Civil Procedure section 907. Husband seeks sanctions on the grounds wife’s appeal is frivolous, unreasonably violates court rules, and is intended to delay the effect of the trial judgment.

This court is authorized to impose sanctions for the filing of a frivolous appeal under Code of Civil Procedure section 907, “[w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay, ...” Under such circumstances, this court “may add to the costs on appeal such damages as may be just.” (Ibid.)

Section 907 and rule 8.276(a)(1) provide this court with broad discretion to grant sanctions. “Appellate sanctions are imposed to discourage frivolous appeals and to compensate for losses caused by such an appeal. [Citation.] One generally accepted measure of that loss is the amount of attorney’s fees incurred by respondent in opposing the appeal. [Citation.]” (Harris v. Sandro (2002) 96 Cal.App.4th 1310, 1316.) An appeal is frivolous, and thus subject to sanctions, “only when it is prosecuted for an improper motive - to harass the respondent or delay the effect of an adverse judgment - or when it indisputably has no merit - when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)

While in the instant case, wife’s contentions centered on the inadmissibility and insufficiency of evidence, have no merit whatsoever, primarily due to wife refusing to participate in the trial at her own peril, we cannot say her challenges to denial of a trial continuance, jurisdiction over child support and custody, and section 271 sanctions are frivolous. Also, although wife’s appellate brief inappropriately attaches exhibits and refers to facts and evidence not in the record, we nevertheless conclude such rule violations are not so egregious as to warrant sanctions under Code of Civil Procedure section 907 and rule 8.276.

8. Disposition

The judgment is affirmed. As the prevailing party, husband is awarded his costs on appeal against wife. (Rule 8.278(a)(1).) Husband’s motion for attorney’s fees and sanctions under Code of Civil Procedure section 907 is denied.

We concur: McKinster J., King J.


Summaries of

In re Marriage of Fillhart

California Court of Appeals, Fourth District, Second Division
Jun 23, 2010
No. E046921 (Cal. Ct. App. Jun. 23, 2010)
Case details for

In re Marriage of Fillhart

Case Details

Full title:In re the Marriage of MISTI LYNN and DAVE ALAN FILLHART. v. DAVE ALAN…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jun 23, 2010

Citations

No. E046921 (Cal. Ct. App. Jun. 23, 2010)