Marriage of Feakins
Filed 1/22/13
Marriage of Feakins CA1/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
FIRST APPELLATE DISTRICT
DIVISION ONE
In re the Marriage of NORMAN and CYNTHIA FEAKINS.
NORMAN FEAKINS,
Appellant,
v.
CYNTHIA FEAKINS,
Respondent.
A132338
(San Mateo County
Super. Ct. No.
FAM016920)
Norman Feakins (Norman) and Cynthia
Feakins (Cynthia)
title="">[1] were married for
17 years. After Norman was arrested
for molesting Cynthia’s son from a
prior marriage, he deeded his interest in their marital home to Cynthia as her
separate property. Cynthia expressed her
desire to continue their marriage at the beginning of Norman’s
incarceration, but almost three years later, she filed for dissolution. Norman appeals from the
court erred in determining the home was Cynthia’s separate property. He also maintains the court erred in denying
him spousal support and attorney fees, reimbursement for what he asserted was
his separate property contribution toward the purchase of a condominium and in
valuing some of the community property. Norman lastly
claims the court erred in ordering he appear by telephone rather than being
transported from prison to court for the trial.
We find no merit in any of these claims, and affirm.
Procedural and Factual Background
Norman and Cynthia were married on April 21, 1989. At the time, Cynthia was a
registered nurse and had a seven-year-old son from a previous marriage. Norman was employed as a freight manager for a freight forwarding company.
Approximately three months prior to
their marriage, in January 1989, Norman purchased a condominium on Shorebird Circle in Redwood City. He testified he made the
$18,445 down payment from his separate property funds. After the marriage, he deeded the home to
himself and Cynthia jointly. The couple
lived in the home during the marriage, and the two of them made payments on the
home’s mortgage. In 1993, Norman and
Cynthia purchased a home together on Bay Harbour Drive in Redwood City, and held title “jointly.â€
They rented out the Shorebird
Circle property and lived
in the Bay Harbour Drive home. The Shorebird Circle
property was sold in 2003, and the proceeds totaling about $240,000 were placed
in an E*Trade account, which the parties agreed to divide equally, subject to
Norman’s claim for reimbursement of the $18,445 down payment.
On September 11, 2003, Norman was arrested for molesting Cynthia’s son, allegedly over a 10-year
period. Cynthia found an attorney for Norman and paid the
bill of approximately $60,000 from community property funds.
About three weeks after Norman’s
arrest, he executed a power of attorney giving Cynthia authority to handle his
finances while he was incarcerated. They
also discussed putting title to the Bay Harbour Drive home in Cynthia’s name
alone. Cynthia testified Norman told her
“he had spoken to his attorney and he was thinking about deeding the house to
me as my separate property.†In a letter
from Cynthia to Norman while he was in county jail, she stated “ ‘[I]f you
want to deed the house to me, let me know.’ †Norman asked her to “go ahead†and have the
deed prepared. Cynthia had it prepared
at a title company, then had the Volunteer Service League bring it to Norman in
the county jail about a week before he was sentenced. Cynthia was not present when Norman signed
the deed and his signature was notarized.
After the deed was returned to Cynthia, she had it recorded.
Cynthia testified she never promised
to put Norman’s name back on the title to Bay Harbour Drive, and he never
indicated, until the dissolution action was filed, that he wanted his name put
back on the title. Norman admitted
Cynthia “did not say she would put him back on†the title after he was released. Norman testified there was nothing on the
deed indicating “ownership comes back to me at any time,†and he wrote nothing
on the deed other than his signature. He
believed he “still had 50 percent of the equity of the house†“because of
Cynthia’s commitment to the marriage.â€
Norman testified he “was under extreme duress†at the time he signed the
deed because he “was going through an utter trauma. My life had collapsed.†Norman “understood that [Cynthia] was committing
to sharing the assets equally when [he] was released†based on a letter she
wrote him while incarcerated. He
testified he did not recall Cynthia ever telling him she would put his name
back on the title. He made “an
assumption†that his name would be put back on the title to the Bay Harbour
Drive property after he was released from prison.
Norman pleaded no contest to 32
charges regarding his molestation of Cynthia’s son, and was sentenced to 32
years in prison. He is incarcerated at
the La Palma Correctional Facility in Arizona. The court denied his
request to be transported to San Mateo County for the court trial, and instead
ordered Norman to appear telephonically, which he did.
The
Bay Harbour Residence
Norman asserts the trial court erred in determining the Bay Harbour
Drive residence was Cynthia’s separate property, claiming the deed he signed
was the result of undue influence and constructive fraud. We review the trial court’s factual
determinations in this regard for substantial
evidence. (See In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1520;
Cal.App.4th 624, 631.)
Family Code section 850 provides
“married persons may by agreement or transfer, with or without consideration .
. . [¶] (a) [t]ransmute community property to separate property of
either spouse.†(Fam. Code, § 850,
subd. (a).) Although spouses may
financially transact in this way, “such transactions ‘are subject to the
general rules governing fiduciary relationships which control the actions of
persons occupying confidential relations with each other. This confidential relationship imposes a duty
of the highest good faith and fair dealing on each spouse, and neither shall
take any unfair advantage of the other. . . . [W]hen an interspousal transaction
advantages one spouse, public policy considerations create a presumption that
the transaction was the result of undue influence. [Citation.]
A spouse who gained an advantage from a transaction with the other
spouse can overcome that presumption by a preponderance of the evidence.†(In re
Marriage of Starr (2010) 189 Cal.App.4th 277, 281 (
A rebuttable presumption of undue influence arises when one spouse
obtains an advantage over the other in a community property transaction. (In re
Marriage of Haines (1995) 33 Cal.App.4th 277, 297.)
“ ‘ “[A]s a general
principle constructive fraud comprises any act, omission or concealment
involving a breach of legal or equitable duty, trust or confidence which
results in damage to another even though the conduct is not otherwise
fraudulent.†’ â€
(
(2000) 82 Cal.App.4th 399, 415.)
“[C]onstructive fraud due to breach of a confidential relationship
amounts to undue influence . . . .†(
constructively fraudulent, and gives rise to a constructive trust. This is independent of any element of actual
fraud.’ †(Id. at p. 285, citing Brison
v. Brison (1888) 75 Cal. 525, 529 (Brison
I).)
Cynthia, as the advantaged spouse,
had the burden to rebut the presumption by establishing by a
quitclaim deed was freely and voluntarily made, with a full knowledge of all
the facts and with a complete understanding of the transfer.†(In re
Marriage of Mathews, supra, 133
Cal.App.4th at p. 631.) The
evidence showed Norman, not Cynthia, proposed the transfer after consultation
with his attorney. In a letter from
Cynthia to Norman while he was in county jail, she stated “On to the letter of
the 24th—If you want to deed the house to me, let me know.†Norman asked her to “go ahead†and have the
deed prepared. Cynthia was not present
when Norman signed the deed and his signature was notarized. Norman admitted Cynthia “did not say she
would put [him] back on†the title after he was released, and there was nothing
on the deed indicating “ownership comes back to me at any time.†He believed he “still had 50 percent of the
equity of the house†“because of Cynthia’s commitment to the marriage,†and “an
assumption†Cynthia would put title back in both their names after he was
released from prison. Substantial
evidence supports the trial court’s conclusion that Cynthia rebutted the
presumption of undue influence.
Norman claims the court erred by
applying “a myopic and restrictive reading of the constructive fraud
doctrine.†He maintains the letter from
Cynthia contained an implied promise to reconvey, and that constructive fraud
can be found even in the absence of an express promise to reconvey the
property.
Norman relies on
an implied promise by Cynthia. The
because they involved an express promise to reconvey. In Brison
I, the husband alleged he conveyed real property to his wife prior to
leaving on a trip, “relying on her parol promise that she would reconvey to him
upon his request.†(Brison I, at p. 526.)
In reversing the judgment following the trial court’s sustaining of the
wife’s demurrer, the court held there was both actual and constructive fraud
alleged. (Id. at pp. 527-528.) At
trial, the husband testified that prior to his departure on a long trip he
deeded property to his wife, based on her promise to reconvey, and that he
intended her to have the property only if he died. (Brison
II, supra, 90 Cal. at pp.
330-331, 334.) The court affirmed the
order denying a new trial, holding the wife’s “refusal to reconvey was not
merely the breach of an agreement, but was the betrayal of a confidence, and
the violation of a trust, constituting a constructive fraud . . . .†(Id.
at p. 336.) Contrary to Norman’s
assertion, the Brison cases did not
require the trial court to focus “on the level of confidence of the
transferring spouse that the recipient spouse will reconvey the deed†rather
than a promise to reconvey. As the
evidence of a verbal agreement between husband and wife that will create a
constructive trust should be clear, satisfactory, and conclusive. . . .†(Id.
at p. 334.)
In Jones, wife owned real property from which she wanted to evict a
tenant. (Jones, supra, 140 Cal. at p. 589.)
“Upon the advice of an attorney, who, in the presence of her husband,
advised her that she could not maintain the action in her own name, and that it
would be necessary to transfer the title to some other person for the purpose
of bringing the action†to oust the tenant, she deeded the property to her
husband. (Id. at pp. 589-590.)
The court held “the husband, who, by accepting the deed upon the
statement made in his presence of the purposes for which he was to hold the
land, became a party to the transaction, and by implication promised to fulfill
the purpose of the trust.†(
Norman asserts the following
language in a letter Cynthia wrote him in jail constituted an implied promise
to reconvey the Bay Harbour property to him:
“Re the investments and whose name they are in—When you are released
everything will be shared—stocks are in my name for convenience at this point. Putnam, your 401K, and the Union Bank Acct
(do you have one) are as they were. I’ll
take care of Schwab as we discussed when the paperwork goes through.†Norman testified the couple’s Bay Harbour
home was one of the “investments†to which Cynthia referred because it had
increased in value. The letter, however,
distinguished between the Bay Harbour home, which would be deeded to Cynthia,
and the investments, which were specifically listed and would be “shared†after
Norman’s release. Whether considered
under a substantial evidence or de novo standard of review,
not evidence an agreement, express or implied, that Cynthia would reconvey the
home to Norman at any time.
The circumstances are more akin to
those in In re Marriage of Matthews,
deed to the couple’s residence to husband, so they could obtain a lower
interest rate on the mortgage. (
barriers prevented her from fully understanding the effect of the
evidence she “was above average in her English skills†and had worked as a
translator. (Ibid.) The wife “admitted to
knowing her name was not on the title and assumed
it would be added later.†(
The court held there was substantial evidence “the quitclaim deed was
the voluntary and deliberate act of [the] Wife, taken with full knowledge of
its legal effect.†(Ibid.)
Similarly here, the deed was the
“voluntary and deliberate act†of Norman, taken after discussions with his
attorney. He had deeded an interest in
property to Cynthia before (the Shorebird Circle property), and testified he
understood the “effect that signing a deed would have.†The deed did not simply quitclaim the
residence to Cynthia, but specifically granted it to her as her separate
property. Norman admitted Cynthia never
told him she was going to put his name back on the title, he simply “assumedâ€
she would do so because she was committed to their marriage at the time. Substantial evidence supports the trial
court’s implied findings,
Bay Harbour residence was Cynthia’s separate property.
Norman asserts the trial court erred
in not ordering him reimbursement of the down payment on the Shorebird Circle
property, which he claims came from his separate property funds.
A party is entitled to reimbursement
for his contributions to the acquisition of community property to the extent he
traces the contributions to a separate property source. (Fam. Code, § 2640, subd. (b).) “Whether the spouse claiming a separate
property interest has adequately traced an asset to a separate property source
is a question of fact for the trial court, and its finding must be upheld if
supported by substantial evidence.†(
Cal.App.4th 797, 823 (Braud).) “[T]he mere commingling of separate property
and community property funds does not alter the status of the respective
property interests, provided that the components of the commingled mass can be
adequately traced to their separate property and community property
sources. [Citation.] But if the separate property and community
property interests have been commingled in such a manner that the respective
contributions cannot be traced and identified, the entire commingled fund will
be deemed community property pursuant to the general community property
presumption of section 760.
[Citation.]†(
as otherwise provided by statute, all property, real or personal, . . .
acquired by a married person during the marriage . . . is community
property.â€].)
The evidence before the court showed
Norman deeded the Shorebird Circle property to himself and Cynthia three months
after he purchased it, after they married.
The couple lived in the property for about four years, paying the
mortgage with community property funds.
When the property was sold in 2003, the proceeds were placed in the
couple’s E*Trade account and commingled with other community funds. The parties agreed the value of the account
“fluctuated.â€
Because no statement of decision was
requested, we presume the trial court made factual findings to the extent they
are supported by substantial evidence.
The record demonstrates Norman testified the down payment came from his
separate property bank account. Three
months after he purchased it, he deeded the property to himself and Cynthia
jointly, and the mortgage and expenses were paid from community property. When it was sold, the proceeds were
commingled with the couple’s community property held in their E*Trade account,
the value of which they agreed fluctuated over time. There was no evidence, however, about the
amount of those fluctuations, or whether the value of the account had gone up
or down over time. Thus, there was no
evidence of how much, if any, of the E*Trade account was attributable to
separate property of Norman. Given this
record, the court did not err in dividing the E*Trade account equally between
Norman and Cynthia.
Norman maintains the trial court
erred in valuing certain community property assets which he and Cynthia had
stipulated would be divided equally. He
asserts the evidence was undisputed that the value of the couple’s two cars was
$9,000 to $10,000, and that the court “failed to make any findings as to the
value of the parties’ community property items†other than the antiques.
Cynthia testified those community property items were about 15 years old and
consisted of “[v]arious items of furniture [other than the community property
antiques], kitchen ware, [and] some electronics.†She testified she believed they were worth
between $3,000 and $5000, and Norman testified he would “accept†a $5,000
valuation. Cynthia believed the two
automobiles, a 1999 Jaguar XJ8 and a 2002 Mercedes C230 coupe, were together
worth about $9,000 to $10,000. The trial
court’s order indicated the value of both vehicles was $1,000, and did not
mention the community property household items, effectively finding they had no
value. Neither party requested a
statement of decision. (Code Civ. Proc.,
§ 632.)
“In nonjury trials, unless a statement
of decision has been requested and rendered, we will presume that the trial
court made all the factual findings necessary to support the judgment, so long
as those implied findings are supported by substantial evidence.†(Starr,
supra, 189 Cal.App.4th at p. 287.)
“[I]f the court issues such a statement, a party claiming deficiencies
therein must bring such defects to the trial court’s attention to avoid implied
findings on appeal favorable to the judgment.â€
(In re Marriage of Arceneaux
(1990) 51 Cal.3d 1130, 1134.)
Norman contends “[i]t was not
necessary . . . to request a statement of decision, because the trial court, in
issuing its tentative decision, specifically ordered [Cynthia’s] trial counsel
to prepare a final order incorporating the trial court’s tentative decision,â€
relying on Slavin v. Borinstein
(1994) 25 Cal.App.4th 713 (Slavin). In that case, “the statement of intended
decision specifically provided that it would become the statement of decision
in absence of a request pursuant to Code of Civil Procedure section 632,
[thus] by operation of law the statement of intended decision became the
statement of decision.†(
the order a statement of decision, Norman still forfeited his claim by failing
to raise any claimed deficiencies in the trial court. (In re
Marriage of Arceneaux, supra, 51 Cal.3d at p. 1134.) “Where, as here, no statement of decision was
requested, all intendments will favor the trial court’s ruling and it will be
presumed on appeal that the trial court found all facts necessary to support
the judgment.†(In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 649.)
Accordingly, we presume the trial
court made all factual findings necessary to support the judgment. The court could have found the 15-year-old
used household items, which Cynthia valued at $3,000 to $5,000, had no
value. It also could have found the two
old automobiles were worth much less than the $9,000 to $10,000 Cynthia
estimated as the value for both of them.
Norman’s failure to request a statement of decision or bring any claimed
deficiencies to the trial court’s attention operated as a forfeiture of this
claim.
Norman contends the court erred in
denying him spousal support. He
maintains Family Code section 4325, on which the trial court partially relied,
is inapplicable to situations in which violence has been perpetrated against a
family member rather than a spouse.
“ ‘[T]he ultimate decision as to
amount and duration of spousal support rests within [the trial court’s] broad
discretion and will not be reversed on appeal absent an abuse of that
discretion. [Citation.]’ [Citation.]â€
(In re Marriage of Ackerman
(2006) 146 Cal.App.4th 191, 207.) “
‘ “Because trial courts have such broad discretion, appellate courts must
act with cautious judicial restraint in reviewing these orders.†[Citation.]’
[Citation.]†(
Family Code section 4325 provides in
part: “In any proceeding for dissolution
of marriage where there is a criminal
conviction for an act of domestic violence perpetrated by one spouse
against the other spouse entered by the court within five years prior to the
filing of the dissolution proceeding, or at any time thereafter, there shall be
a rebuttable presumption affecting the burden of proof that any award of
temporary or permanent spousal support to the abusive spouse otherwise
awardable pursuant to the standards of this part should not be made.†(Fam. Code, § 4325, subd. (a).)
Family Code section 4320 sets forth
the following factors to be considered:
“In ordering spousal support under this part, the court shall consider
all of the following circumstances:
[¶] (a) The extent to which the earning capacity of each party is
sufficient to maintain the standard of living established during the marriage,
taking into account all of the following:
[¶] (1) The marketable skills of the supported party . . . . [¶] . . . [¶] (b) The extent
to which the supported party contributed to the attainment of an education,
training, a career position, or a license by the supporting party. [¶] (c) The ability of the supporting
party to pay spousal support, taking into account the supporting party’s
earning capacity, earned and unearned income, assets, and standard of
living. [¶] (d) The needs of each
party based on the standard of living established during the marriage. [¶] (e) The obligations and assets,
including the separate property, of each party.
[¶] (f) The duration of the marriage. [¶] (g) The ability of the supported
party to engage in gainful employment without unduly interfering with the
interests of dependent children in the custody of the party. [¶] (h) The age and health of the
parties. [¶] (i) Documented
evidence of any history of domestic violence, as defined in Section 6211,
between the parties, including, but not limited to, consideration of emotional
distress resulting from domestic violence perpetrated against the supported
party by the supporting party, and consideration of any history of violence
against the supporting party by the supported party. [¶] (j) The immediate and specific tax
consequences to each party. [¶] (k)
The balance of the hardships to each party.
[¶] (l) The goal
that the supported party shall be self-supporting within a reasonable
time. . . . [¶] (m) The
criminal conviction of an abusive spouse shall be considered in making a
reduction or elimination of a spousal support award in accordance with
Section . . . 4325. [¶] (n)
just and equitable.†(Italics
added.)
“ ‘In making its spousal
support order, the trial court possesses broad discretion so as to fairly
exercise the weighing process contemplated by section 4320, with the goal of
accomplishing substantial justice for the parties in the case before it.’ [Citation.]
In balancing the applicable statutory factors, the trial court has
discretion to determine the appropriate weight to accord to each. [Citation.]
But the ‘court may not be arbitrary; it must exercise its discretion
along legal lines, taking into consideration the applicable circumstances of
the parties set forth in [the statute], especially reasonable needs and their
financial abilities.’ †(
Cal.App.4th 269, 304.)
The trial court acknowledged that
Norman’s conviction did not come precisely within the requirements of section
4325, but explained “in this horrific case the intent and purpose of [section
4325] is a strong and overwhelming factor for the court to consider under
Family Code section 4320[, subdivisions] (i)[,] (m) and (n). Balancing this factor against all the other
factors of Family Code Section 4320, it is clear to the court that [Norman’s]
request for spousal support from [Cynthia] should be and is denied.â€
The other section 4320 factors
before the court included the fact that Norman had his own community and
separate property financial resources, the bulk of Norman’s living expenses
were paid by the state, he had marketable skills based on his prior employment
and earnings, his ability to earn was impaired only because he engaged in
crimes resulting in his incarceration, and his only claimed expenses were $430
per month for telephone, books, electronics, stamps and food from the prison
canteen he asserted was required because the prison meals “are inadequate both
in terms of portion and nutritional value.â€
Given this record, we cannot find the trial court abused its discretion
in denying any spousal support.
Evidence of Norman’s
Felony Convictions
Norman urges the court erred in
allowing evidence of his felony convictions and sentence for molesting
Cynthia’s son, claiming it was “legally irrelevant and highly prejudicial.â€
“ ‘ “Broadly speaking, an appellate
court reviews any ruling by a trial court as to the admissibility of evidence
for abuse of discretion.†’
[Citation.] The court’s
‘ “discretion
is only abused where there is a clear showing [it] exceeded the bounds of
reason, all of the circumstances being considered.†’ [Citation.]
However, even where a trial court improperly excludes evidence, the
error does not require reversal of the judgment unless such error resulted in a
miscarriage of justice. (Cal. Const.,
art. VI, § 13.) [Norman] has the
burden to demonstrate it is reasonably probable a more favorable result would
have been reached absent the error.†(
181 Cal.App.4th 121, 142.)
Norman objected to evidence of his
arrest on 32 felony counts of molesting Cynthia’s minor son and his prison
sentence on the grounds of relevance.
Norman specifically objected to questions about the minor son’s date of
birth, the number of counts to which he pleaded, and the question to Cynthia
“Were you advised at that time what [Norman] had been arrested for?
Evidence of Norman’s convictions and
sentence for molesting Cynthia’s son was relevant to his claim for spousal
support. Norman asserted he needed
spousal support because he was unable to work and required additional food from
the prison canteen. His incarceration
was thus relevant to his financial needs and his ability to work. The court, in overruling Norman’s objections,
correctly held the evidence was relevant to “one of the issues of spousal
support that’s been raised.â€
Norman asserts, without any
evidentiary or legal support, that “there is no question†admission of the
evidence to which he objects “had a highly prejudicial effect on the trial
court’s judgment . . . .†“ ‘As an
aspect of the presumption that judicial duty is properly performed [(Evid.
Code, § 664)], we presume . . . the court knows and applies the correct
statutory and case law [citation] and is able to distinguish admissible from
inadmissible evidence, relevant from irrelevant facts, and to recognize those
facts which properly may be considered in the judicial decisionmaking
process.’ [Citation.]†(In re
Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1526 . . . .) “These presumptions are based on the
difference between lay jurors and judges:
‘ “The juror does not possess that trained and disciplined mind which
enables him . . . to discriminate between that which he is permitted to
consider and that which he is not. Because of this lack of training, he is
unable to draw conclusions entirely uninfluenced by the irrelevant prejudicial
matters within his knowledge.’ †(
be uninfluenced by “irrelevant prejudicial matters,†and Norman has made no
contrary showing.
Norman himself relied on evidence of
his arrest and incarceration as evidence of his distressed mental state and
circumstances, which he claimed allowed him to be unduly influenced. Norman also introduced a letter Cynthia wrote
to him which referenced his molestation of Cynthia’s son and quoted Norman’s
letter to her in which he stated “ ‘You also brought a beautiful boy into
my life [and] I also abused him. This
ended up costing my relationship with him, seriously [and] adversely affecting
my relationship w[ith] you (indulging my love for him more than for my true
partner was an outrage by any standard in any culture) and getting me in this
mess.’ â€
The trial court did not abuse its
discretion in admitting the evidence of Norman’s convictions and
incarceration. Even had admission of the
evidence been an abuse of discretion, Norman has demonstrated no prejudice as a
result.
Prison
Norman asserts the trial court
abused its discretion in denying his motion for transport from prison in
Arizona to the court trial and ordering him to appear telephonically via
CourtCall, which he did. He was also
represented by an attorney at the trial, who was personally present in court. Norman claims this procedure “did not
adequately protect [his] due process rights.â€
Penal Code section 2625, subdivision
(e), gives the trial court discretion to order a prisoner transported in a
proceeding adjudicating the prisoner’s marital rights. It provides in part “In any other action or
proceeding in which a prisoner’s parental or marital rights are subject to
adjudication, an order for the prisoner’s temporary removal from the
institution and for the prisoner’s production before the court may be made by
the superior court of the county in which the action or proceeding is pending,
or by a judge thereof.†(Pen. Code, § 2625, subd. (e).) “Because the trial
court has discretion whether to order the prisoner’s removal in this category
of cases, ‘it follows that such a case may proceed without attendance by the
prisoner . . .’†(In re Jesusa V.
(2004) 32 Cal.4th 588, 599, quoting In
re Barry W. (1993) 21 Cal.App.4th 358, 370.)
Norman asserts the procedure itself
violated his due process rights,
because “the quality of the telephone line was very poor and [he], on several
occasions, . . . could not hear what was being said by the witness or the
attorneys . . . .†A review of the
record reveals the minor issues that arose regarding Norman’s ability to hear
the proceedings were immediately resolved by the court. The court asked at the outset of the hearing
if Norman could “hear us all right?â€
Norman responded “I can hear you, yes.â€
The court further noted: “If at
any time, Mr. Feakins, you cannot hear, go ahead and interrupt and let me
know.†The few times that occurred,
questions or answers were repeated for Norman’s benefit.
that Norman, contrary to his assertions now, understood the proceedings and
questions.
Norman also claims he was prejudiced
because the court could not observe his demeanor. While the court could not observe his
physical demeanor, it could observe his vocal demeanor. Moreover, Norman does not identify how the
trial court’s inability to observe his physical demeanor prejudiced him in any
way.
The trial court did not abuse its
discretion by denying Norman’s request to be physically transported from prison
in Arizona to the court trial in San Mateo.
Norman maintains the court erred in
not awarding him attorney fees, asserting Cynthia had “superior annual earnings
and great separate property values,†and that it improperly considered his
“criminal sentence†as a factor. We
review the denial of attorney fees for abuse of discretion. (In re
Marriage of Cheriton, supra,
92 Cal.App.4th at p. 315.)
Family Code section 2030,
subdivision (a)(1) provides in part: “In
a proceeding for dissolution of marriage . . . the court shall ensure that each
party has access to legal representation, including access early in the
proceedings, to preserve each party’s rights by ordering, if necessary based on
the income and needs assessments, one party . . . to pay to the other party . .
. whatever amount is reasonably necessary for attorney’s fees
. . . . [¶] When a
request for attorney’s fees and costs is made, the court shall make findings on
whether an award of attorney’s fees and costs under this section is
appropriate, whether there is a disparity in access to funds to retain counsel,
and whether one party is able to pay for legal representation of both
parties. If the findings demonstrate
disparity in access and ability to pay, the court shall make an order awarding
attorney’s fees and costs. . . . †(Fam.
Code, § 2030, subd. (a)(1)-(2).)
The trial court made the following
finding and order regarding attorney fees:
“[Norman] had approximately $248,000 in England in 2009. It was not explained in any satisfactory manner
what, if anything, has happened to diminish those funds. That fact, combined with the fact that his
current economic situation was caused by his own serious felonious conduct,
warrants the court in denying his request for a contribution toward his attorney’s
fees.â€
Norman had been earning $100,000 to
$200,000 per year during the marriage.
The only reason he had no earnings at the time of trial was because he
was incarcerated for committing 32 felonies against Cynthia’s son. Thus, the trial court appropriately found
Norman’s “current economic situation†was due to his own conduct. The evidence also demonstrated Norman had
substantial separate property funds in England.
He indicated in his settlement conference statement “that the monies in
[the United Kingdom] account consist of his inheritance from his father
(separate property), the sales proceeds of a residence he used to own in the
United Kingdom before his marriage to [Cynthia] (separate property) and the
remaining proceeds from his sale of his Kamino International stock (community property).†He testified the “original amount†from the
Kamino International stock when the couple separated was “about $40,000.†He testified that amount had been “depletedâ€
and was now “[p]robably down to [$]10,000 or even less.†He had paid his attorney $17,500 from those
funds, and indicated before trial he owed an additional $12,000. Norman testified that in October 2009,
approximately one and a half years before trial, he had $248,000 worth of
assets in England, including “ ‘holdings from the sale of [his] English
house, mixture of cash and shares.’ â€
There was no evidence these assets, with the exception of the Kamino
International stock proceeds, had been depleted.
Given Norman’s assets, and the fact
his absence of income was due to his own volitional acts, we find no abuse of
discretion in the trial court’s denial of his request for attorney fees.
The judgment is affirmed. Respondent to recover costs on appeal.
_________________________
Banke,
J.
We concur:
_________________________
Marchiano, P. J.
_________________________
Dondero, J.
for clarity. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1 .)
this sum at trial, which the trial court denied.
