Harrison v. Harrison

Filed 6/11/10 Harrison v. Harrison CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael J. Convy, Judge. Affirmed.

Scott Harrison, in pro per, Plaintiff and Appellant.

Ozeli Harrison, in pro per, Defendant and Respondent.

__________________________

Scott Harrison appeals from an order of the family law court setting his temporary child and spousal support obligations, and awarding attorneys fees, to his wife, Ozeli Harrison. He also appeals from the order denying his motion to reconsider the support and fee awards. We affirm.

FACTS AND PROCEDURAL HISTORY

In April 2008, Scott Harrison filed a petition to end his four-year marriage to Ozeli Harrison.[1] They had a son, Riley, who was then 17-months-old. On May 29, 2008, a hearing began on Ozelis motion for spousal and child support.[2] She also requested payment of her attorneys fees, seeking an award of at least $15,000 to level the playing field with Scott, because he could finance the litigation, while she could not. Ozeli was a stay-at-home mom. Based on Scotts average gross income of nearly $100,000 during 2006 and 2007, the court ordered Scott to pay child support of $1,579 a month and spousal support of $1,851. This was based on a finding that Scott had voluntarily quit his job as a pyrotechnician in order to start his own business. The court said this order was temporary only, pending conclusion of the hearing in June. A written order to that effect was signed and entered on June 12, 2008.

The hearing resumed on June 23, 2008. Scott filed points and authorities and supporting documentation in an attempt to show that he did not quit his job, but was instead terminated after expressing safety concerns. He also contended that the high income figures for 2006 and 2007 were anomalies based on the job he lost, and that he generally earned much less. The court struck those papers because they were filed just two days before the hearing, and because it had not granted permission to file additional briefs. On June 23, 2008, the court entered a minute order awarding Ozeli attorneys fees of $15,000, payable in installments. Even though the amount of child and spousal support was not ordered, the court found Scott was in arrears, and ordered him to make those payments.

On July 7, 2008, the court signed and entered a formal written order that the previously ordered support amounts remain in effect. The court found Scotts evidence concerning the reasons for leaving his job were inconsistent, and also found that the 2006 and 2007 income amounts provided a proper snapshot of Scotts earning ability. The court also found that Scott had superior financial resources to fund the litigation, was using that as leverage against Ozeli, and restated its order that Scott pay Ozeli attorneys fees of $15,000. A status conference was scheduled for September 23, 2008.

On September 23, 2008, the court heard and denied a motion by Scott to reconsider its earlier support and attorneys fee orders. (Code Civ. Proc.,  1008.) Although the record includes the reporters transcript of that hearing, the clerks transcript stops in July 2008. As a result, the parties supporting and opposition points and authorities and the courts order are not in the record. Based on the reporters transcript, it appears Scott argued that reconsideration was warranted on two grounds: (1)  a change in the law, based on the recent decisions in In re Marriage of Mosley (2008) 165 Cal.App.4th 1375 (Mosley) and In re Marriage of Bardzik (2008) 165 Cal.App.4th 1291 (Bardzik); and (2)  new facts or circumstances that, with reasonable diligence, could not have been presented earlier. This included financial records from Scotts computer that he claimed Ozeli withheld from him, and a declaration from his former supervisor that he had been fired.

The trial court found Mosley and Bardzik inapplicable because they involved motions to modify final support orders, while its order was the initial, temporary support order which was subject to modification based on changed circumstances. The court rejected the new evidence contention, finding Scott could have produced it earlier, and therefore failed to act with reasonable diligence. The court also ordered Scott to pay another $10,000 of Ozelis attorneys fees.

Scott contends the July 7 support orders, and the two attorneys fee awards, were improper because the court erred by imputing income from his previous job when he was fired from that job for protesting safety violations, and not because he committed workplace misconduct.[3]

DISCUSSION

1.                  Standard of Review

The parties do not contend, and the record does not show, that the support orders were part of a final order of dissolution. Instead, as the trial court itself noted, they were initial orders pending the eventual outcome of the matter. As such, they were governed by Family Code section 3600, which allows the court to order spousal and child support payments while a marital dissolution action is pending.

Temporary spousal support awards do not serve the same purposes, and are not governed by the same procedures, as are permanent support awards. Temporary support is designed to maintain the living conditions and standards of the parties as close to the status quo as possible, pending trial and the division of their assets and obligations. (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594.) Permanent spousal support serves a different purpose to provide financial assistance if appropriate, as determined by the parties financial circumstances after their marriage is dissolved and their community property is divided. (Ibid.) Temporary spousal support awards rest within the trial courts broad discretion and may be ordered in any amount, subject only to the moving partys needs and the other partys ability to pay. Permanent support awards are constrained by numerous statutory factors set out in Family Code section 4320. (Murray, at p. 594.) The same standards apply to temporary child support orders. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327-1329.)

2.                  The Temporary Support Orders Were Proper

Scott contends the support orders must be reversed because the court imputed income to him from the high-paying job he was fired from a few months before the hearings, even though he lost that job through no fault of his own, and was now earning far less as he took on occasional work and tried to start a new business.[4]

Scotts appellate briefs contain no citations to the record.[5] This violation of the appellate rules is a sufficient basis to deem the issues waived. (Cal. Rules of Court, rule 8.204(a)(1)(C); Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246, fn. 14.) Furthermore, his arguments are based in large measure on Family Code section 4320 and the standards applicable to permanent support awards. Because he has not cited to pertinent authority concerning temporary support awards, or provided any discussion and analysis based on that authority, the issues are also waived. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)

Even on the merits, we affirm the support orders. As set forth above, the trial court had broad discretion when setting the amounts of temporary child and spousal support, subject only to Ozelis and Rileys needs and Scotts ability to pay. An abuse of discretion occurs when, considering all the relevant circumstances, the court exceeded the bounds of reasons, or when it can fairly be said that no judge would reasonably make the same order under the same circumstances. (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898-899.) The courts order is presumed correct. All interpretations and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. We must accept as true all evidence tending to establish that the courts findings were correct, resolving all evidentiary conflicts, and indulging all legitimate and reasonable inferences in favor of the prevailing party. (Ibid.)

Recasting Scotts contentions within the framework of Family Code section 3600 and temporary support orders, he argues that the trial court erred in calculating his ability to pay. The court did so, he claims, by relying on decisions involving the imputation of a spouses previously higher income where the spouse lost his job due to misconduct, voluntarily quit to pursue a lower-paying opportunity, or was trying to shirk his support obligations by intentionally reducing his income.[6]

The court at first recalled that Scott testified he quit his job, but later found the evidence inconsistent. Scott claims that during the May 29, 2008 hearing, he testified that he was fired from his high-paying pyrotechnics job for voicing safety concerns. He therefore appears to contend the evidence is uncontradicted that he was fired for no good reason, making inapplicable the appellate decisions cited by the trial court.

However, as part of Ozelis combined response to Scotts request for a domestic violence restraining order and her request for support, Ozeli submitted a declaration stating that Scott threatened to quit working and stay home so he could try and take custody of Riley from me. Scott threatened to show no income to the Court so he could shirk his support obligations. During the May 29 hearing, the court said it was basing the support awards in part on that uncontradicted declaration, as well as on Scotts 2006 and 2007 income tax returns.

Under the applicable standard of review, we conclude the trial court in fact concluded Scott quit his job in order to shirk his support obligations, that this finding was supported by Ozelis declaration, and that the court therefore did not abuse its discretion by imputing to Scott an earning capacity commensurate with that job.

Scott also contends the trial court abused its discretion by striking his supplemental points and authorities and supporting documents submitted right before the June 23, 2008 hearing took place. The transcript shows the court struck those papers as untimely because it never gave him permission to file additional papers after the May 29 hearing. Scott does not address that point, and we therefore deem it waived.[7]

3.                  The June 23 Attorneys Fee Award Was Proper

During the pendency of a marital dissolution action, a court may order one party to pay all or some of the other partys legal fees and costs. (Fam. Code,  2030, et seq.) This promotes the policy of quick and final resolutions of dissolution proceedings by achieving parity between the spouses in their ability to obtain effective legal representation, consistent with their financial circumstances. (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.) We review the trial courts order for an abuse of discretion, and will reverse only when, after viewing the evidence most favorably in support of the order, no judge could reasonably have issued the order. (Id.) The courts discretion is subject to the factors set forth in Family Code section 2030.

Thus, the trial court must award an amount that is just and reasonable under the circumstances after taking into consideration the need for the award to allow each party to have sufficient financial resources to present their case adequately. This includes the financial resources of the parties, and the other factors set out in Family Code section 4320. (Fam. Code,  2030, subds. (a), (b); In re Marriage of Keech, supra, 75 Cal.App.4th at pp. 866-867.)

Scott contends the trial court did not apply the relevant factors, but specifies only his and Ozelis ability to pay. As with the support orders, Scott does not provide record citations for any of the evidence on this issue. Neither does he fully and fairly set forth Ozelis competing evidence. We therefore deem the issue waived. Alternatively, there was sufficient evidence to support the June 23 fee award of $15,000. As discussed above, there was evidence that Scott was shirking his financial obligations, and had a much higher earning capacity than he claimed. Ozeli claimed she was a stay-at-home mom who was still breast-feeding Riley and had no income, and said she needed a fee award because of this income disparity. The trial court was free to resolve any evidentiary conflicts on this point in Ozelis favor, and obviously did so. Accordingly, we see no abuse of discretion.[8]

4.                  Motion For Reconsideration

Scott also appeals from the denial of his motion for reconsideration, as well as the additional attorneys fee award of $10,000, occurring at the September 23, 2008 hearing. Although we have the reporters transcript of that hearing, the record does not include Scotts or Ozelis points and authorities submitted in connection with those matters, or the order that was entered. Because Scott has failed to provide an adequate record, we cannot review the ruling, and therefore presume the orders are correct. (Hernandez v. CaliforniaHospitalMedicalCenter (2000) 78 Cal.App.4th 498, 502.)

DISPOSITION

The child support, spousal support, and attorneys fee awards are affirmed. Respondent shall recover her costs on appeal.

RUBIN, ACTING P. J.

WE CONCUR:

FLIER, J.

GRIMES, J.

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[1] For ease of reference, we will refer to the parties by their first names.

[2] Also at issue were competing applications for domestic violence restraining orders. Those are not issues on appeal, however.

[3] Scotts notice of appeal states he is appealing from orders of 9/24/08 and 6/23/08 (Mtn. for Reconsid. Denied by order of 10/8/08), as well as Temporary Orders to Pay child/spousal support . . . Orders to pay attorney fees and costs. Although there is a minute order from June 23 which includes the initial $15,000 attorneys fee award, that order is silent on the issue of support. As discussed above, there was a May 29 hearing on support that did not conclude until the June 23 hearing. A temporary support order pending the conclusion of the May 29 hearing was entered on June 12. After the hearing concluded on June 23, the June 23 minute order was entered, but was superseded by the formal written order that was entered on July 7, 2008. That July 7 order contained both the support and attorneys fee awards.

Because we must liberally construe the notice of appeal (California Rules of Court, rule 8.100(a)(2)), we conclude that Scotts reference to the June 23 minute order is in fact a reference to the July 7 final order. As for the reference to a September 24, 2008 order, and an October 8 order, we note that the hearing on the reconsideration motion took place on September 23. Our review of the trial court case summary for this matter shows that a formal order denying the motion was entered October 8, 2008. We therefore construe the references to September 24 and October 8 as an appeal from the October 8, 2008 order denying the motion for reconsideration, and imposing another attorneys fee award of $10,000.

[4] Although Scotts appellate brief includes several separately headed arguments on the support award, at bottom, each is based on this contention.

[5] Neither does Ozelis. Each is self-represented, but each is bound by the procedural rules applicable to parties represented by counsel. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284.)

[6] These included In re Marriage of Eggers (2005) 131 Cal.App.4th 695, In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, In re Marriage of Ilas (1993) 12 Cal.App.4th 1630, and In re Marriage of Regnery (1989) 214 Cal.App.3d 1367.

[7] However, even if those papers had been, or should have been considered, the result would be the same, taking into account Ozelis declaration that Scott threatened to quit in order to show the court he had no income.

[8] Scott also contends the fee award was not reasonable, based on the trial courts observation that both parties were engaged in excessive litigation. We presume from the silent record that the trial court resolved this matter to its satisfaction, and concluded the fees were reasonable. In any event, Scott does not point to a specific instance where Ozelis attorneys fees were unreasonable.