Marriage of Erb and White
Marriage of Erb and White
Marriage of Erb and White
Marriage of Erb and White CA4/1
>NOT TO BE PUBLISHED IN
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
STATE OF CALIFORNIA
In re the
Marriage of KATHRYN AIMEE ERB and MATHEW WHITE.
(Super. Ct. No. D474833)
from orders of the Superior Court of San Diego County, David M. Rubin, Judge.
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
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.
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. . . ."
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
"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)]."
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.
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.
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
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.
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).
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
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.
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.
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.)
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.)
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 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.)
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 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.)
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
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.)
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.
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.)
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
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.
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.
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.
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
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
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
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
contends the trial court erred by not considering her oral motion for an award
of attorney fees.
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,
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
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.
order described in subdivision (a) may
be made without notice by an oral motion in open court at either of the
"(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.
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].)
orders are affirmed.
HALLER, Acting P. J.
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.
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
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.
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.
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.
name="_ftn6" title=""> All rule references
are to the California Rules of Court.
name="_ftn7" title=""> Rule 5.242 sets forth
certain qualifications that counsel appointed for a child must possess. (Rule 5.242(b)-(f).)
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.
name="_ftn9" title=""> All further statutory
references are to the Family Code.
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.
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.
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.
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