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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
In re the Marriage of KATHRYN AIMEE ERB and MATHEW WHITE.
KATHRYN AIMEE ERB,
(Super. Ct. No. D474833)
APPEAL from orders of the Superior Court of San Diego County, David M. Rubin, Judge. Affirmed.
Kathryn Aimee Erb (now known as K. Aimee Fuller) (Mother) appeals postjudgment orders issued after the dissolution of her marriage to Mathew White (Father), which modified the coparenting plan for their child, Bella (Child), by increasing the time Child spends with Father. On appeal, Mother contends: (1) the trial court erred by not requiring Father to present substantial evidence showing there were changed circumstances since the final judicial custody order; (2) the evidence is insufficient to support the court's finding the new coparenting plan is in Child's best interests; (3) Child's appointed counsel committed certain errors; and (4) the trial court erred by not considering Mother's oral motion for an award of attorney fees.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2004, a judgment of dissolution was entered dissolving the marriage of Mother and Father. Pursuant to the parties' stipulation, the judgment provided Mother and Father would have joint legal custody of Child, then two years old, and Mother would have primary physical custody of Child.
In March 2008, Father filed an order to show cause to modify the coparenting plan, requesting that Child spend Wednesday nights with him and gradually increase her time with him until both parents equally share time with her. In November 2008, the trial court issued an order setting forth a coparenting plan for Child, stating in part:
"4. [Child]'s primary residence shall be with . . . Mother.
"5. The parenting of [Child] shall be shared as follows: [Â¶] a. Each week [Child] shall be in . . . Father's care from after school on Wednesdays (approximately 2:15 p.m.) until 7 p.m.[;] [Â¶] b. Beginning May 9, 2008, in addition to [paragraph] 5(a), [Child] shall be in . . . Father's care on alternate weekends . . . from Friday after school . . . until Monday morning to school . . . [;] c. [Child] shall be in the care of . . . Mother at all other times not specified. . . ."
In 2009, Father apparently filed another order to show cause to modify the coparenting plan.href="#_ftn1" name="_ftnref1" title=""> On October 26, 2010, the trial court issued an order, stating in part:
"1. The current Court Order dated November 24, 2008[,] is to remain in full force and effect as modified by the terms set forth below.
"2. [Child] shall be in the care of [F]ather every Wednesday from 2:15 p.m. to Thursday return to school the following morning. . . . [Â¶] . . . [Â¶]
"8. This court order is a final judicial custody determination within the meaning of [Montenegro v. Diaz (2001) 26 Cal.4th 249 (Montenegro)]."
In February 2011, Mother filed an order to show cause to modify Father's coparenting time share with Child, alleging Father's wife had kicked Child. The trial court ordered the parties to attend mediation at Family Court Services (FCS) on May 20. Father's declaration in response asserted his wife had not kicked Child and that Mother had been denying him his coparenting time share of Child. Mother subsequently requested the court take her motion off its calendar. On May 12, Father filed an ex parte application to place Mother's order to show cause back on its calendar because she took it off calendar without notice to him. At a hearing on May 12, the court denied Father's application, but granted him leave to file his own order to show cause, which presumably would request an increase in his coparenting time share of Child. The court refused to consider Mother's oral motion for an award of attorney fees so that she could retain an attorney to oppose Father's motion, advising her that she needed to file a noticed motion for an attorney fee award. On May 12, Father filed an order to show cause (OSC) to modify the coparenting plan for Child. The court scheduled a hearing for Father's motion on June 22, the same date originally scheduled to hear Mother's motion. That scheduled hearing was subsequently continued to June 28. On May 17, the trial court appointed Terence Chucas as Child's counsel to represent her in the proceedings.
On June 28, the trial court heard Father's motion to modify the coparenting plan for Child. The court heard arguments of Father, Mother, and Child's counsel. The court adopted, as modified, one of the two coparenting plans submitted by Child's counsel, providing, in effect, for equal sharing of time with Child by Mother and Father. On July 6, the court issued a written order (Order) adopting the modified coparenting plan that sets forth, in effect, a "2-2-5-5" equal sharing of time with Child for Mother and Father.
On July 19, the trial court issued a written order awarding Father $631 per month in child support. Mother timely filed a notice of appeal challenging the July 6, 2011, and July 19, 2011, orders.href="#_ftn2" name="_ftnref2" title="">
>Order's New Coparenting Plan
Mother contends the trial court erred by adopting the new coparenting plan set forth in the Order for time sharing of Child because the court adopted that plan: (1) without first requiring Father to present substantial evidence showing there were changed circumstances since the October 26, 2010, final judicial custody order; and (2) without any evidence that plan was in Child's best interests.
At the June 28, 2011, hearing on the OSC, Child's counsel stated that he had interviewed Child, Child's school principal, Child's treating therapist, Mother and Father and their new spouses, Child's maternal grandfather and Child's paternal aunt, and had reviewed seven volumes of court records in this matter. Child's counsel argued that Child had been subjected to eight and one-half years of litigation between Mother and Father. He argued that "protracted, intense litigation increases the probability that a child will develop emotional problems. It is not a coincidence that [Child] has been in therapy for an extended period." He stated Child has "very clear preferences [regarding a coparenting plan], but she does not want her preferences revealed because she is concerned with the response of one or both of her parents if those preferences are articulated in front of them." He argued it was most important for Child's welfare to stop the conflict between Mother and Father and let Child have peace and tranquility for the remainder of her childhood. To accomplish that, Child's counsel argued three components were necessary for a coparenting plan: (1) a clear and unambiguous [coparenting] schedule; (2) keeping Mother and Father apart as much as possible; and (3) giving Mother and Father "something to lose if they continue to litigate." He presented to the court two hypothetical coparenting schedules he believed contained those components. Those schedules were intended to reduce non-school exchanges of Child, thereby reducing the potential for conflict between Mother and Father. The suggested schedules increased Father's time with Child, primarily to place each parent in roughly the same position with Child. He believed both Mother and Father have very good nurturing and parenting skills. He argued: "If they are both in the roughly same position, then they both roughly have the same to lose by coming back to court in their never-ending campaign to prevail. I think that once they recognize that they have a risk of losing some time with [Child] should they bring an unmeritorious motion, I think that the chances are significant that they won't come back to court." He stated Child preferred "Schedule A" (the one ultimately adopted by the court).
Mother argued Father would not follow the proposed coparenting schedule, Child has ADHD condition, and the recommendation of the FCS mediator was contrary to the schedule suggested by Child's counsel. Mother preferred the FCS mediator's schedule with a few changes. Mother also argued Father's motion to modify the coparenting plan for Child should be denied because he had not presented any evidence showing there had been a significant change in circumstances since the final judicial custody order issued on October 26, 2010. Mother declined to present any oral testimony.
Father argued there had been a change in circumstances since the October 26, 2010, order: Mother had not complied with that order and was unwilling to cooperate and communicate with him to support his time with Child. Father argued that after speaking with Child's counsel, he had "seen the light" and is willing to accept the coparenting schedule proposed by Child's counsel with only minor modifications.
After hearing arguments of counsel, the trial court found:
"[W]hile we are in a >Montenegro situation, . . . we can't go on like this. This [the then current coparenting plan] has reached the end of its useful life in terms of its ability to be a parenting plan. It is not working. . . . [Â¶] . . . [Â¶] . . . In the end I find there is a changed circumstance, which is the disintegration of this parenting plan as being effective . . . ."
The court then addressed what coparenting plan was in Child's best interests, stating it agreed more with the plan proposed by Child's counsel than that proposed by the FCS mediator. The court adopted Schedule A, as proposed by Child's counsel, "not because [Child] wants it[, but] because it creates a predictable plan that she will be able to . . . work with . . . ." The court stated that coparenting plan "reduces the number of exchanges . . . outside the school." It adopted that plan, with the modification that neither parent shall plan any activities during the other parent's parenting time.
"Under California's statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest[s] of the child. The court and the family have 'the widest discretion to choose a parenting plan that is in the best interest[s] of the child.' (Fam. Code, Â§ 3040, subd. (b).) When determining the best interest[s] of the child, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents." (>Montenegro, supra, 26 Cal.4th at p. 255, fn. omitted.) Child custody and visitation orders are reviewed on appeal for abuse of discretion. (Ibid.) "The precise measure is whether the trial court could have reasonably concluded that the order in question advanced the 'best interest[s]' of the child. We are required to uphold the ruling if it is correct on any basis, regardless of whether such basis was actually invoked." (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.)
"[O]nce a final judicial custody determination is in place[,] [u]nder the so-called changed circumstance rule, a party seeking to modify a permanent custody order can do so only if he or she demonstrates a significant change of circumstances justifying a modification." (>Montenegro, supra, 26 Cal.4th at p. 256.) "The changed-circumstance rule is not a different test, devised to supplant the statutory test, but an adjunct to the best-interest test. It provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child's best interest[s]. The rule thus fosters the dual goals of judicial economy and protecting stable custody arrangements." (Burchard v. Garay (1986) 42 Cal.3d 531, 535.)
Mother asserts the trial court erred because it did not require Father to, and Father did not, present substantial evidence showing there was a significant change of circumstances since the October 26, 2010, final judicial custody order before it considered what coparenting plan was in Child's best interests.href="#_ftn3" name="_ftnref3" title=""> However, Mother's assertion is based on a faulty premise. The Order did >not change the custody of Child, but rather only modified the coparenting plan or arrangement. Because Father's OSC did not request a change in the custody of Child from joint physical custody to sole physical custody, he was not required to first show there was a significant change of circumstances before the court could consider his request for modification of the coparenting plan or arrangement for Child.
In In re Marriage of Birnbaum (1989) 211 Cal.App.3d 1508, 1513, the court held that when a court order does not change >custody, but only modifies a >parenting schedule, the changed circumstance rule does not apply. In >Birnbaum, the court concluded there was no change in custody, but only a change in the coparenting residential arrangement. (Ibid.) The court rejected the mother's contention the trial court erred by not requiring the father to show changed circumstances. (>Ibid.)
In Enrique M. v. Angelina V. (2004) 121 Cal.App.4th 1371, 1379, we stated: "[O]ur research has not [uncovered] any published California case in which a court has held that the changed circumstance rule applies to a request to modify the allocation of parenting time, where a preexisting joint custody order was in place and custody was not at issue." After discussing >Birnbaum and Burgess, we concluded: "[T]he standard of proof a parent sharing joint custody must meet to effect a change in parenting time is the best interest[s] of the child, not changed circumstances." (Enrique M., at p. 1373.) In >Enrique M., the father and mother had joint physical custody of the child. (>Id. at p. 1382.) The father requested the parenting schedule be modified to give him one extra overnight with the child each week and an additional overnight every other week. (>Ibid.) We concluded: "Although [the father's] proposed changes would alter the parenting schedule, in terms of potential instability for [the child], they were not on par with a request to change physical custody from sole to joint custody, or vice versa." (>Ibid.) We held the changed circumstance rule did not apply. (Ibid.)
In In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1072, the court likewise concluded: "[T]he changed circumstance rule does not apply when a parent requests only a change in the parenting or visitation arrangement not amounting to a change from joint custody to sole custody, or vice versa. Instead, the trial court considers a request to change the parenting or visitation arrangement under the best interests of the child standard." Citing >Birnbaum and Enrique M., Lucio stated: "The changed circumstance rule does not apply to a modification request seeking a change in the parenting or visitation schedule." (Lucio, at p. 1077.) "Unlike a change in custody, an alteration in a parenting or visitation schedule does not cause a disruption in ' "established patterns of care and emotional bonds with the primary caretaker" ' [citation] justifying the added burden of demonstrating changed circumstances." (Id. at p. 1079.) Because the father in Lucio did not seek a change in custody but only a change in the parenting schedule, Lucio concluded he was not required to show changed circumstances. (Id. at p. 1080.)
In this case, Mother does not assert she had sole physical custody based on the October 26, 2010, order. Rather, that order provided Child's primary residence would be with Mother and adopted a coparenting schedule for Child to spend time with both Mother and Father. Whether express or implicit, that order provided Mother and Father would have joint physical custody of Child. Because Father's OSC did not seek to change that joint physical custody, but only sought modification of the coparenting schedule for Child (i.e., to increase the time Child spent with him), Father was not required to show there was a significant change in circumstances. (Enrique M. v. Angelina V., supra, 121 Cal.App.4th at pp. 1373, 1382; In re Marriage of Lucio, supra, 161 Cal.App.4th at pp. 1072, 1077, 1080; In re Marriage of Birnbaum, supra, 211 Cal.App.3d at p. 1513.) Assuming arguendo there was insufficient evidence to show a significant change of circumstances since the October 26, 2010, order, the trial court did not err by addressing the merits of Father's OSC and determining the coparenting schedule based on Child's best interests.
Mother asserts the evidence is insufficient to support the trial court's finding that the new coparenting schedule was in Child's best interests. However, because it appears Mother did not provide an adequate record on appeal that included all of the material evidence presented below, we conclude Mother has waived that assertion on appeal. An order of the trial court is presumed correct and Mother must affirmatively show the court erred. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) "[I]f the record [on appeal] is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." (Mountain Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043, 1051, fn. 9.) Alternatively stated, "a record is inadequate, and appellant defaults, if the appellant predicates error only on the part of the record he provide[d] [to] the trial court, but ignores or does not present to the appellate court portions of the proceedings below which may provide grounds upon which the decision of the trial court could be affirmed." (Uniroyal Chemical Co. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285, 302.) "The burden of affirmatively demonstrating error is on the appellant." (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) The appellant has the burden to provide an adequate record on appeal to allow the reviewing court to assess the purported error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) If the record on appeal does not contain all of the documents or other evidence submitted to the trial court, a reviewing court will "decline to find error on a silent record, and thus infer that substantial evidence" supports the trial court's findings. (Haywood v. Superior Court (2000) 77 Cal.App.4th 949, 955.)
Based on our independent review of the record on appeal, it appears Mother's designation of the record on appeal included in the clerk's transcript >only some of the documents and other papers presented to the trial court by the parties on Father's OSC. The record includes Mother's declaration replying to Father's "supplemental declaration." However, we could not locate in the record any supplemental declaration of Father, or any original declaration of Father. We conclude Mother omitted those two documents from the record on appeal, which presumably included evidence favorable to Father's OSC and the coparenting schedule adopted in the Order. Furthermore, the record does not contain any memorandum of points and authorities in support of Father's OSC or any supporting documentary evidence, which Father (who was represented by counsel) presumably filed in support of his OSC. Absent an affirmative showing to the contrary, we presume Father submitted some or all of those documents and Mother did not include them in the record on appeal. Finally, at the hearing on the OSC, the trial court and Mother referred to the coparenting schedule recommended by the FCS mediator. However, the record does not contain any FCS documents. We conclude Mother has not provided an adequate record on appeal that includes all material evidence on the issue of what coparenting plan is in Child's best interests. Therefore, we conclude she has waived her assertion on appeal that the evidence is insufficient to support the coparenting plan set forth by the trial court in the Order.href="#_ftn4" name="_ftnref4" title=""> (Mountain Lion Coalition v. Fish & Game Com., supra, 214 Cal.App.3d at p. 1051, fn. 9; Uniroyal Chemical Co. v. American Vanguard Corp., supra, 203 Cal.App.3d at p. 302; Maria P. v. Riles, supra, 43 Cal.3d at p. 1295; Gee v. American Realty & Construction, Inc., supra, 99 Cal.App.4th at p. 1416; Haywood v. Superior Court, supra, 77 Cal.App.4th at p. 955.) Alternatively stated, because the record on appeal is inadequate to determine whether the evidence is insufficient to support the Order, we presume there is substantial evidence to support the coparenting plan set forth in the Order.
Assuming arguendo Mother provided an adequate record on appeal, we nevertheless would conclude she has not carried her burden on appeal to persuade us the evidence is insufficient to support the trial court's finding that the Order's coparenting plan is in Child's best interests. By citing evidence and making inferences favorably only to her (rather than to Father), Mother misconstrues and/or misapplies the substantial evidence standard of review.href="#_ftn5" name="_ftnref5" title=""> "When the trial court has resolved a disputed factual issue, the appellate courts review the ruling according to the substantial evidence rule. If the trial court's resolution of the factual issue is supported by substantial evidence, it must be affirmed." (>Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) The substantial evidence standard of review involves two steps. "First, one must resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences. [Citation.] Second, one must determine whether the evidence thus marshaled is substantial. While it is commonly stated that our 'power' begins and ends with a determination that there is substantial evidence [citation], this does not mean we must blindly seize any evidence in support of the respondent in order to affirm the judgment. . . . [Citation.] '[I]f the word "substantial" [is to mean] anything at all, it clearly implies that such evidence must be of ponderable legal significance. Obviously the word cannot be deemed synonymous with "any" evidence. It must be reasonable . . . , credible, and of solid value . . . .' [Citation.] The ultimate determination is whether a >reasonable trier of fact could have found for the respondent based on the whole record." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633, fns. omitted.) "[T]he power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. >If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion." (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
Based on our review of the record, there is substantial evidence to support the trial court's finding that the Order's coparenting plan is in Child's best interests. In addressing Father's OSC and request for a new coparenting plan, the court was primarily concerned with the seemingly never-ending litigation and other conflicts between Mother and Father and how those conflicts adversely affected Child. The court presumably reviewed the extensive court record showing the long history of litigation and other conflicts between Mother and Father since their divorce. In adopting the new coparenting plan, the court sought to minimize the opportunity for future conflicts by reducing the number of non-school exchanges of Child. The court agreed with Child's counsel that by giving Mother and Father roughly equal parenting time with Child, each would have a disincentive to resort to litigation in the future (e.g., possible loss of parenting time if an unmeritorious action is filed), thereby allowing Child to have a more conflict-free childhood and allowing her parents to focus on being the best parents they can be (rather than focusing on conflict and litigation). Based on our review of the record, we conclude there is substantial evidence to support the court's finding the Order's coparenting plan was in Child's best interests. The trial court did not abuse its discretion by finding that coparenting plan was in Child's best interests. (Montenegro, supra, 26 Cal.4th at p. 255; >In re Marriage of Burgess, >supra, 13 Cal.4th at p. 32.)
>Child's Appointed Counsel
Mother contends Child's appointed counsel committed certain errors and presumably argues those errors require reversal of the Order. We briefly discuss, and reject, each particular asserted error.
Mother first asserts Child's appointed counsel did not file a declaration (i.e., Form FL-322) within the time frame required by rule. California Rules of Court, rule 5.242(h)href="#_ftn6" name="_ftnref6" title=""> provides: "A person appointed as counsel for a child must: [Â¶] (1) File a declaration with the court indicating compliance with the requirements of this rule no later than 10 days after being appointed and before beginning work on the case. Counsel may complete the >Declaration of Counsel for a Child Regarding Qualifications (form FL-322) or other local court forms for this purpose . . . ."href="#_ftn7" name="_ftnref7" title=""> In appointing Chucas as Child's counsel, the trial court expressly ordered him to file a Form FL-322 within 10 days of his appointment and before beginning work on the case in accordance with rule 5.242(h)(1). On June 28, 2011, Chucas filed a declaration in support of his request for payment of attorney fees as Child's counsel. Under penalty of perjury, Chucas declared that he "timely filed the Declaration of Counsel for a Child Regarding Qualifications (JC Form #FL-322)." Based on that declaration, the court ordered that he be paid the requested attorney fees. Similarly, on July 6, 2011, Chucas filed a declaration in support of his request for payment of attorney fees as Child's counsel. Under penalty of perjury, Chucas again declared that he "timely filed the Declaration of Counsel for a Child Regarding Qualifications (JC Form #FL-322)." Based on that declaration, the court ordered that he be paid the requested attorney fees.
In arguing Child's counsel did not timely file the required Form FL-322, Mother does not cite to any part of the record on appeal or provide any other evidence showing Chucas did not timely file the required form. "If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived." (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see also >City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115.) Because Mother's opening brief does not contain any citations to the record on appeal to support her assertion of fact that Chucas did not file the required Form FL-322, we consider it waived.href="#_ftn8" name="_ftnref8" title=""> Furthermore, absent an affirmative showing to the contrary, we presume Chucas's declarations under penalty of perjury were true, and that he did timely file the required Form FL-322. We further presume the trial court, before ordering that Chucas be paid any attorney fees, reviewed the record to verify Chucas did file that form. We conclude Mother has not carried her burden to persuade us Child's counsel did not timely file a Form FL-322. We further conclude Mother has not carried her burden to persuade us the trial court reversibly erred by not requiring Chucas to file the required Form FL-322.
Mother also argues Child's counsel did not present evidence, as he was required to do under Family Code section 3151.href="#_ftn9" name="_ftnref9" title=""> That statute provides counsel appointed to represent a child in family law proceedings must represent the child's best interests. (Â§ 3151, subd. (a).) It describes the "role" of a child's appointed counsel as gathering facts that bear on the child's best interests and presenting those facts to the court. (Â§ 3151, subd. (a).) Furthermore, the statute states: "Counsel may introduce and examine counsel's own witnesses, present arguments to the court concerning the child's welfare, and participate further in the proceeding to the degree necessary to represent the child adequately." (Â§ 3151, subd. (b), italics added.) Contrary to Mother's conclusory assertion, there is nothing in section 3151 that requires counsel for a child in every case to present documentary and testimonial evidence on the issue of the child's best interests. We conclude Child's counsel was not required to present his own evidence on the issue of Child's best interests.href="#_ftn10" name="_ftnref10" title=""> Rather, he adequately represented Child, and complied with section 3151, by investigating Child's best interests before the hearing, arguing to the court his belief regarding Child's best interests, and presenting two alternative coparenting plans for Child for the court's consideration.
Mother also asserts Child's counsel erred by not speaking with Child's therapist and disregarding Child's ADHD condition. However, the record does not support her assertions. Our review of the record shows Chucas represented to the trial court that he "spoke with Dr. Feuer, who is [Child's] treating therapist." Therefore, Mother has not shown Chucas failed to speak with Child's therapist. Likewise, Mother has not shown Chucas did not consider Child's ADHD condition. He presumably was aware of that condition in reviewing the extensive court file and speaking with Feuer. Absent an affirmative showing to the contrary, we cannot conclude Chucas disregarded Child's ADHD condition when presenting the two alternative coparenting schedules that were in Child's best interests.href="#_ftn11" name="_ftnref11" title="">
Finally, we reject Mother's assertion the trial court reversibly erred "by allowing hearsay testimony without any evidence presented to support [Child's] counsel's recommendation." Mother does not cite to the record showing (or otherwise specify) what particular hearsay testimony was admitted at the June 28, 2011, hearing. Furthermore, she does not show she timely objected to admission of that purported hearsay testimony. We conclude Mother waived on appeal any contention the trial court erred by admitting hearsay evidence and relied on that evidence in adopting the coparenting plan set forth in the Order.
>Mother's Oral Motion for Attorney Fees
Mother contends the trial court erred by not considering her oral motion for an award of attorney fees.
At the May 12, 2011, hearing, the trial court heard Father's ex parte application to place Mother's order to show cause back on its calendar because she requested the court take it off calendar without notice to him. The court denied Father's application, but granted him leave to file his own OSC, which presumably would request an increase in his coparenting time share with Child. At that hearing, the court refused to consider Mother's oral motion for an award of attorney fees so that she could retain an attorney to oppose Father's motion, advising her that she needed to file a noticed motion for such an award. Mother stated: "I would request from the court that [Father] pay for my legal counsel . . . ." Addressing that request, the court stated: "[Mother] is talking about bring[ing] a motion under some new statutes that she wants her attorneys' fees up front, which I'm going to allow her to argue, but not today because she has to bring a noticed motion. So how fast can you get that done, Ms. Erb?" The court clarified its question, stating: "I can't just take up a request for attorneys' fees without something in writing to give [Father's counsel] and her client notice that you wanted to do that. How fast can you get your motion in here for attorneys' fees?" Mother replied: "10 days." The court stated: Okay. All right. Why don't you get that done[?]" Father's counsel stated: "I don't know [Mother] has any showing here for an expedited attorney fee order." The record on appeal does not contain any written attorney fee request filed by Mother prior to the June 28, 2011, hearing.
Mother asserts the trial court prejudicially erred by not considering the oral motion for attorney fees she made at the May 12, 2011, hearing. She argues she was entitled to make an oral motion, rather than a written motion with notice to Father, pursuant to sections 2030 and 2031. Section 2030 generally provides for awards of need-based attorney fees during the pendency of a proceeding for dissolution of marriage or in any subsequent proceeding in the amount reasonably necessary to maintain or defend the proceeding during the pendency of the proceeding. (Â§ 2030, subds. (a)(1), (c).) Section 2031 provides:
"(a)(1) Except as provided in subdivision (b), during the pendency of a proceeding for dissolution of marriage . . . , or any proceeding subsequent to entry of a related judgment, an application for a temporary order making . . . an award of attorney's fees, including a reasonable retainer to hire an attorney, or costs or both shall be made by motion on notice or by an order to show cause.
"(2) The court shall rule on an application within 15 days of the hearing on the motion or order to show cause.
"(b) An order described in subdivision (a) may be made without notice by an oral motion in open court at either of the following times:
"(1) At the time of the hearing of the cause on the merits.
"(2) At any time before entry of judgment against a party whose default has been entered . . . . The court shall rule on any motion made pursuant to this subdivision within 15 days and prior to the entry of any judgment." (Italics added.)
Although Mother argues the trial court erred by not considering the oral motion for attorney fees she made at the May 12, 2011, hearing, she does not show, and the record does not support a conclusion, that her oral motion satisfied section 2031's exception to the general rule requiring written motions for awards of attorney fees. Mother does not show, or argue, that her oral motion was made "[a]t the time of the hearing of the cause on the merits." (Â§ 2031, subd. (b)(1).) To the contrary, the record on appeal shows Mother's oral motion was not made at the time of the hearing on the merits of Father's OSC held on June 28, 2011, but rather was made at the May 12, 2011, procedural hearing on whether to maintain the June 22 hearing date (later continued to June 28) originally scheduled to hear Mother's ex parte application (which Mother then withdrew) to expedite the hearing of Father's OSC. There was no hearing of the cause >on the merits at the time of Mother's oral motion for attorney fees within the meaning of section 2031, subdivision (b)(1). Therefore, the trial court correctly ruled Mother was required to file a written motion with notice for an order awarding her attorney fees to respond to Father's OSC.href="#_ftn12" name="_ftnref12" title=""> (Â§ 2031, subd. (a).) Contrary to Mother's assertion, there is no statutory exception to the general rule requiring written motions that applied to allow her to make an oral motion.
Assuming arguendo Mother was permitted to make an oral motion for attorney fees at the May 12, 2011, hearing, we would conclude the trial court did not err by impliedly denying her motion when it refused to consider it. As the moving party, Mother had the burden of proof to present evidence showing she had a need for an award of attorney fees. (Straub v. Straub (1963) 213 Cal.App.2d 792, 799.) Furthermore, section 2032 requires that need-based attorney fees awards be based, among other factors, on the relative financial needs of the parties. (Â§ 2032, subds. (a), (b).) However, Mother did not present any evidence showing she had a need for an award of attorney fees either before or at the time of her motion or showing the relative financial needs of Mother and Father. The record on appeal does not contain any current income and expense declaration filed by Mother, required for all motions for attorney fees under section 2030. (Rules 5.92(a)(5), 5.128.) Rule 5.128(a) provides that a current income and expense declaration (e.g., Form FL-150) must be filed by a party appearing at any hearing at which the court is to determine an issue as to which such declaration would be relevant (e.g., the financial need of that party for an award of attorney fees). "Current" is defined as being completed within three months prior to the hearing, provided no facts have changed. (Rule 5.128(a).) Although Father filed an income and expense declaration on February 17, 2011, the record on appeal does not contain >any income and expense declaration filed by Mother on or before the May 12, 2011, hearing. "Here, although there is some evidence pertaining to [Father's] income, there is no evidence in the portion of the record . . . before the trial court at the time [Mother] made the [motion] that shows the parties' relative financial positions. Indeed, on the record we have, had the court chosen to make the [order Mother] sought, [the order] would have been subject to reversal for insufficiency of the evidence. Thus, [Mother] has failed to affirmatively demonstrate that the trial court abused its discretion in refusing to order the attorney's fees she requested." (>In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 824.) We conclude the trial court did not err by, in effect, denying Mother's oral motion for attorney fees made at the May 12, 2011, hearing. (Ibid. [no error in denying oral motion for attorney fees because there was no evidence on parties' relative financial positions].)
The orders are affirmed.
HALLER, Acting P. J.
href="#_ftnref1" name="_ftn1" title=""> Although the record on appeal does not appear to contain a copy of that order to show cause, we presume it was filed as the trial court subsequently stated.
href="#_ftnref2" name="_ftn2" title=""> Because Mother does not substantively argue the trial court erred by awarding Father $631 per month in child support, we conclude she has abandoned her appeal of the July 19, 2011, order despite her conclusory request that we reverse that order. Accordingly, we do not address the merits of any challenge to that child support order. Furthermore, we note Father has not filed a respondent's brief in this appeal.
href="#_ftnref3" name="_ftn3" title=""> For purposes of this appeal, we assume arguendo there was insufficient evidence to support the trial court's express finding that there was a significant change of circumstances since the October 26, 2010, order.
href="#_ftnref4" name="_ftn4" title=""> Furthermore, it appears Mother has not set forth all of the material evidence on that issue in her opening brief, as she is required to do. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.) An appellant must state fully, with transcript citations, the evidence claimed to be insufficient to support the trial court's findings. (>In re Marriage of Fink (1979) 25 Cal.3d 877, 887.) Unless this is done, the asserted error is deemed to be waived. (>Foreman & Clark Corp., at p. 881.) "An appellate court will consider the sufficiency of the evidence to support a given finding only after a party tenders such an issue together with a fair summary of the evidence bearing on the challenged finding, particularly including evidence that arguably >supports it." (Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 409-410.) Furthermore, "[a] party who challenges the sufficiency of the evidence to support a finding must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable." (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218, italics added.) If the appellant does not do so, the reviewing court may deem the substantial evidence contention to have been waived. (Ibid.; Foreman & Clark Corp., at p. 881.) Because Mother did not set forth and discuss all of the material evidence in support of the Order's coparenting plan, including the trial court's finding that the plan is in Child's best interests, we conclude she waived on appeal her assertion that the evidence was insufficient to support the Order.
href="#_ftnref5" name="_ftn5" title=""> Mother's assertion that the trial court did not consider, or adequately consider, Child's ADHD condition or ICWA status does not show the evidence is insufficient to support the court's finding.
href="#_ftnref6" name="_ftn6" title=""> All rule references are to the California Rules of Court.
href="#_ftnref7" name="_ftn7" title=""> Rule 5.242 sets forth certain qualifications that counsel appointed for a child must possess. (Rule 5.242(b)-(f).)
href="#_ftnref8" name="_ftn8" title=""> As noted above, it appears Mother's designation of the record on appeal omitted many documents material to the issues on appeal. It is likely Mother also omitted the Form FL-322 filed by Child's counsel.
href="#_ftnref9" name="_ftn9" title=""> All further statutory references are to the Family Code.
href="#_ftnref10" name="_ftn10" title=""> In the circumstances in this case, we note that the efforts of Child's counsel to prove Child's best interests may have been hampered somewhat by Child's invocation of her attorney-client privilege and request that he not inform the trial court of her preferences to prevent offending either or both parents.
href="#_ftnref11" name="_ftn11" title=""> To the extent Mother argues Chucas disregarded Child's ICWA status, she does not cite anything in the record affirmatively showing he was unaware of that status and/or disregarded that status in presenting the two alternative coparenting schedules to the trial court.
href="#_ftnref12" name="_ftn12" title=""> We note that Mother did not file a written motion requesting attorney fees prior to the June 28, 2011, hearing on the merits of Father's OSC (more than six weeks after the May 12, 2011, procedural hearing), even though she had stated she would file that motion within 10 days.