In re Marriage of Webb

Filed 12/15/08 In re Marriage of Webb CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Becky L. Dugan, Judge. Affirmed.

Dana L. Webb, in pro. per., for Appellant.

Robert A. McCarty, Jr., for Respondent.

This is an appeal from orders of the family law court. We find no error and we affirm.

FACTS AND PROCEDURAL HISTORY

Appellant Dana L. Webb (wife) filed three notices of appeal on November 15, 2007, seeking reversal and extinguishment of minute orders of the family law court: (1) dated July 18, 2007, concerning child support/money issues; (2) dated August 20, 2007, concerning an attorney fees award; and (3) dated September 17, 2007, relating to property settlement.

Wife does not, in essence, challenge any of these rulings in themselves, but argues instead that all of the orders are void because procured by judicial misconduct, conspiracy, deprivation of due process rights, denial of discovery, acting in absence of jurisdiction, and fraud.

Wife and respondent, Clifford L. Webb (husband), were married in 1990, and two children were born of the marriage. The parties apparently separated in approximately 1999, but attempted reconciliation. Husband ultimately filed a petition for dissolution of the marriage in 2000.

The proceedings have been protracted and marked by acrimony. Each party has made accusations against the other of various kinds of misconduct.

During the course of the proceedings, the parties initially shared joint legal and physical custody of the children, but later orders apparently awarded legal and primary physical custody to husband.

On July 18, 2007, a continued date for the trial of child support issues, wife filed a motion to disqualify Judge Dugan, who was assigned to hear the case that day. (Code Civ. Proc.,  170.1.) The court struck the motion to disqualify (Code Civ. Proc.,  170.3, subd. (c)(1), 170.4, subd. (b)), and proceeded with the hearing. The court found that wife owed $193 a month from August 1, 2000, through April 30, 2001; $1,508 a month from May 1, 2001, through February 15, 2004; and $1,328 a month from February 16, 2004, through the date of hearing, for a total of $117,431 in arrearages, plus interest.

On August 20, 2007, the court heard a motion by husband for an award of attorney fees. Husband brought the motion on the ground that he was required to expend considerable resources and attorney fees as a result of wifes litigious conduct of the proceedings. Notably, at some point in the proceedings, wife had been declared a vexatious litigant. The court ordered wife to pay $100,000 directly to husbands counsel.

In September 2007, the court heard the property division issues. The key issues involved the valuation of each spouses business, and also touched on retirement, community property debts, and other matters. The court issued a statement of decision after the trial of the property issues.

As the court noted in its statement of decision, wife objected to the trial of the property division issues on due process grounds, including allegations that the trier of fact was biased and that she had been denied discovery, specifically [husbands] tax returns for the last several years. Further, she served, in open court, a federal court complaint naming . . . Judge Dugan, as a defendant. The court indicated it had no problem being fair, accepted the suit, and proceeded with the trial. On the second day, [wife] presented the court with a declaration asking the court to recuse itself because the court had accused her of tax fraud. Again, the court denied her motion, indicated it could be fair and proceeded with trial. Although [wife] stated she would not participate and would not return both days of trial, she was present throughout the trial, cross-examined the expert and refused to testify.

The primary contested issues concerned the businesses operated by each of the parties. As to husbands business, the evidence indicated that husband had owned and operated a service business for 15 years before marriage. Husband failed to provide any evidence to rebut the presumption that the community had an interest in the business. The sole evidence as to value was that the business was worth $15,000 to $20,000, although the valuation was hampered by the lack of ability to establish any cash flow or accurate assessment of the assets. Nevertheless, there was some evidence that husbands business had grossed approximately $100,000 each year. In the absence of any other evidence of value, the court adopted the higher value of $20,000, and ordered husband to provide an equalization payment of $10,000 to wife.

As to wifes business, the court heard evidence that wife was a certified public accountant (CPA) and certified valuation accountant. Wife originally owned 100 percent of the business until 1999, when her father joined the firm; thereafter, wife owned 75 percent of the business. The expert valued the business, at the end of 2000, at $115,306. As with husbands business, it was not possible to determine cash flow based upon the documents provided. The court reduced the low-end value of the business by 25 percent, thus taking account of wifes ownership of less than the entire firm. The court found wifes business was a community property asset, valued at the date of separation at $86,479. The court ordered wife to pay husband $43,239.75 as an equalization payment.

Wife has appealed each of these contested rulings.

ANALYSIS

I. The Court Had Fundamental Jurisdiction to Enter the Challenged Orders

Most of the argument tendered in wifes briefing, and almost all of the record provided,^[1]deals with issues other than the specific orders appealed from. In essence, wifes appeal is really an assault on the entire judicial system. Such arguments are not properly before the court, as they address matters properly confided to the legislative branch of government: i.e., the statutory provisions of the Family Code.

Wife does assert that the challenged orders were void for lack of jurisdiction, on the theory that other, earlier acts taken in the proceedings were violations of due process, and that [wife] asserts the lower court lost jurisdiction the moment it intentionally violated [her] due process rights.

Wife is mistaken. Even if a court makes a ruling that is found to have violated principles of due processa matter, we hasten to add, that we do not find in the present caseit is not thereby deprived of fundamental jurisdiction to hear the case. Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) Wife has failed to allege or demonstrate such a lack of jurisdiction in the fundamental sense; manifestly, the superior court sitting as a family law court had jurisdiction over both parties, and over the subject matter: the dissolution of the marriage, custody and support issues, characterization and division of property, and so on. The gist of wifes argument is not that the court did not have jurisdiction over the parties and subject matter, but rather that it exceeded its statutory authority. Her claim that the orders were void for lack of fundamental jurisdiction is without merit.

II. The Support Order Is Not Shown to Be Erroneous

Wife addresses many irrelevant arguments in a shotgun approach against the child support order of July 18, 2007. None is meritorious. As noted, wifes lack of jurisdiction argument is untenable.

To the extent wife contends Judge Dugan could not properly hear the child support matter because of the disqualification papers wife filed on the date of trial, the claim must be denied. As wife herself acknowledges, a judge may properly strike a disqualification motion if, on its face, it discloses no legal grounds for disqualification. (Code Civ. Proc, 170.4, subd. (b); Carl v. Superior Court (2007) 157 Cal.App.4th 73, 75.) The basis of wifes complaints was that wife did not want the support issue bifurcated from other issues; she wanted the property and custody issues tried first.

Custody orders had already been made, however. In addition, Family Code section 4003 expressly permits a bifurcated trial, with calendar preference, on child support issues. There was, in fact, no legal ground for disqualification. Judge Dugan was thus not deprived of jurisdiction to proceed to trial on the child support issue.

Although wife nominally states that the evidence was not sufficient to support the courts order, none of her arguments address the actual sufficiency of the evidence.

Wife has failed to demonstrate any error with respect to the child support order (Brunius v. Parrish (2005) 132 Cal.App.4th 838, 859) and has failed to provide a record sufficient to review any such challenge. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.)

III. Wife Has Failed to Demonstrate Any Error in the Attorney Fees Award

Wife argues the evidence was insufficient to support the award of attorney fees, and also contends the proceedings violated due process because she was assertedly prevented from filing her opposition to the motion.

First, we cannot review the substance of the ruling, because wife has failed to provide a record of the pleadings and oral proceedings relevant to that determination. (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th 121, 132.)

Second, wifes claim that she was deprived of notice and the opportunity to be heard is without merit. She had been declared a vexatious litigant, but she was afforded a full opportunity to submit her responsive declaration for approval in compliance with the directions of the court. So far as appears in the record, she had sufficient notice of the proceedings to appear at the hearing.

To the extent wife argues there was no evidence before the court to support a determination of wifes ability to pay a sanction award, the contention is without merit. Wifes argument is premised on the holding of the trial on the division of community property assets after the date of the sanction hearing. Wife argues that the court could therefore have had no evidence concerning wifes net worth at the time of the (earlier) sanction hearing. Again, wife has failed to supply a record sufficient to review the issue. In addition, the court did have before it considerable evidence as to the parties claimed income and expenses, which it necessarily had reviewed in determining the child support award. The court also could review the record of the proceedings; wife had obviously had access to and expended considerable resources in litigating multiple proceedings, including filing numerous additional lawsuits in state and federal courts.

Otherwise, wifes contentions concerning the attorney fees award deal with irrelevant matters. In any case, wife has provided no basis upon which to reverse the order.

IV. The Property Division Orders Do Not Require Reversal

Wife asserts that the property division order is void on its face due to lack of jurisdiction, extrinsic fraud, judicial misconduct, conspiracy and concealment of assets. Wife has failed to show any absence of jurisdiction; certainly, on its face the order dividing the community property assets shows otherwise, that it did have jurisdiction over the parties and the subject matter. As to wifes remaining asserted grounds, she has provided no record and no evidence to substantiate any such claims. Wife was manifestly not prevented from having her day in court; she had notice of and attended the trial. A portion of the reporters transcript that wife did provide indicates that, contrary to wifes claim that the court allocated insufficient time to hear the matter, the record amply and explicitly demonstrates that the court placed no limitations on wifes ability to present her case, but would hear the matter for as many days as required for wife to gather her witnesses, and to marshal and introduce all her evidence. Wife had a full and fair opportunity to present her case. (See In re Marriage of Carlsson (2008) 163 Cal.App.4th 281, 284.)

Wife also challenges the sufficiency of the evidence with respect to the valuation of the parties businesses. This, together with her claim that husband concealed assets, were factual matters to be tried at the hearing. Wife has failed to provide a record of the proceedings at trial, and so prevented this court from undertaking a review of the evidence. Wife complains that she was denied discoveryprincipally, she complains that she was not provided with husbands income tax returns. As the trial court indicated, however, wifes request for recent tax returns was denied at an earlier hearing because the parties had agreed in open court, on 11-2-05, that the businesses values and cash flows be evaluated as of the date of separation, which was in 2000, making current tax returns irrelevant to any of the issues before the court.

Wife has failed to sustain her burden of showing error in the courts rulings on the property issues.

DISPOSITION

For the reasons stated, the orders appealed from are affirmed. Costs on appeal are awarded to respondent, Clifford L. Webb.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

HOLLENHORST

Acting P. J.

MILLER

J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Wife elected to proceed by way of an appellants appendix rather than a clerks transcript. We note that some of the matters included therein contain obvious clerical errors, such as a misdesignation of this court (instead of husband) as a party represented by counsel during the proceedings. We have issued a separate order to the clerk of the Superior Court of Riverside County to correct all such errors in the register of actions and the courts minute orders.