Marriage of Polony

Filed 11/30/09 Marriage of Polony CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

In this action for dissolution of marriage, Geza E. Polony (husband), appearing in pro. per., appeals the trial courts order granting in part his request for modification of temporary spousal support and awarding attorney fees against him in the amount of $1,000. We affirm in part and reverse in part.

Background

Wife filed a petition for dissolution of marriage on February 4, 2008. On August 4, 2008, the trial court filed its Order on Submitted Matters of Spousal Support and Attorneys Fees (August 2008 order). In its August 2008 order, the trial court found that wife is clearly entitled to some temporary support. The court noted that after the marriage wife left her employment to care for husbands child from a prior relationship so that husband could devote more time to his real estate ventures. The trial court stated: That sacrifice on [wifes] part enabled [husband] to sell separate property in California, invest in two apartment buildings in Cincinnati and increase his rental income. He cannot now point to the cash flow needs of his business as a reason to deny her spousal support. The court also cannot ignore the fact that [husband] has substantial separate property assets, including a vacation property in Happy Camp, California. If his commercial ventures are not faring well, he may need to sell the vacation property (or one of his other properties) to generate cash and put his current operations on a sounder footing. But he cannot simply hold on to five properties, four of which generate rental income, and then use depreciation to claim he has no income available.

On the other hand, the trial court concluded in its August 2008 order that [wife] has over-reached on her demands for support because the numbers simply do not support her demand for $2,000 per month. Rather, based upon a DissoMaster calculation using husbands net income from his real estate operations exclusive of depreciation, the trial court awarded temporary spousal support in the amount of $951 per month from the date of filing of the petition for dissolution. The court ruled that the $951 per month was inclusive of the marginal cost to husband of including wife on the family health plan until a judgment of dissolution is entered.

Regarding attorneys fees, the trial court stated in its August 2008 order that each side must bear some of the pain associated with the excessive motion practice in this case. With that in mind, the trial court ordered husband to pay wife a total of $3,000 in attorneys fees (in $500 per quarter installments commencing on October 1, 2008), pursuant to sections 2030 and 271 of the Family Code.[1]

Husband did not appeal the trial courts August 2008 order.

On August 19, 2008, husband filed a motion for modification of spousal support and noticed a hearing on the matter for October 28, 2008. After a hearing on that date, the trial court filed an order (October 2008 order) ruling as follows: On October 28, 2008, [wife] appeared with counsel and [husband] in pro per on the latters August 19 OSC. The court strikes the declarations of October 1, [2008,] and October 21, 2008,^[[2]] filed by [husband] and strikes from his October 22nd declaration all hearsay and argument. The court strikes and disregards all references by either party to settlement discussions.

To the extent [husband] seeks in his OSC reconsideration of the Order entered on August 4, 2008, that motion is DENIED. To the extent he seeks to modify that order based on changed circumstances, the motion is granted in part. [Wife] found a new job beginning mid-July. The previous support order of $951/mo. plus $241/mo. towards arrears effective February 2008 is thus affirmed but is effective only through mid-Julythat is, 5 months rather than the 7 months previously ordered on August 4, 2008 (Feb through Aug 08). From mid-July forward, support is set at $441/mo. to the end of this year, after which the court terminates spousal support. The court rejects [husbands] claims that his income has changed materially since the prior order. The hurricane damage [to husbands real estate property] should be covered by insurance and in any event should not all be included as an offset to 2008 income. The alleged judgment is also not an appropriate offset to income but is a balance sheet item. On the other hand, the court recognizes that spousal support should not continue indefinitely, and therefore a termination date is set [above]. The date is less than the length of the marriage and grants [husband] reasonable relief. [] The prior award of attorneys fees is apparently still outstanding. The court awards an additional $1,000 payable on or before March 1, 2009.

Husband filed a timely notice of appeal of the October 2008 order on December 26, 2008.

Discussion

A. Scope of Appeal[3]

An order for temporary spousal support, for attorney fees, or denying a motion to modify temporary spousal support, is appealable. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368-369; In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 119.) Thus, the October 2008 order is appealable on those grounds, and, as noted, husband filed a timely notice of appeal of that order on December 26, 2008.

However, husband asserts that, pursuant to Evidence Code section 1128, he may also appeal the August 2008 order. We disagree. California Rules of Court, rule 8.104(a)(1) provides that a notice of appeal must be filed on or before . . . 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, showing the date either was mailed. (See also Cal. Rules of Court, rules 8.104(a)(2), 8.104(b).) The clerk of the Superior Court mailed the August 2008 order to husband on August 4, 2008. Husband filed his notice of appeal on December 26, 2008, more than 60 days later. Accordingly, husband failed to timely appeal the August 2008 order, and we are without jurisdiction to consider husbands challenges to it. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666-667.)[4]

Because he failed to timely appeal, we are without jurisdiction to entertain certain issues raised by husband. Husband challenges the level of temporary spousal support set in August 2008, contending that the trial court violated a local rule of the Alameda County Superior Court by failing to enter an amount for wifes income in the DissoMaster calculations. Also, husband contends that the trial court wrongly interpreted his ability to pay in setting temporary spousal support. In addition, husband contends that the trial court abused its discretion by failing to adopt the same standards of evidence for both parties in a civil suit. These contentions, all of which pertain to the trial courts August 2008 order, are dismissed for lack of jurisdiction.

B. Remaining Contentions

Husband also challenges the award of attorney fees to wife in the amount of $1,000 in the October 2008 order. In particular, husband asserts that the trial courts award of attorney fees should be reversed because it lacks any statutory basis.

The issue of attorney fees was raised near the conclusion of the hearing on October 28, 2008. After hearing argument from the parties regarding modification of temporary spousal support, the trial court stated, All right. Is there anything else before I take it under submission? The following colloquy then ensued:

Ms. Gannon (counsel for wife): Yes, your Honor.

The Court: Maam . . .

Ms Gannon: I would request attorneys fees. I have submitted a declaration. I spent two hours preparing for this hearing and I have now spent approximately another hour in the courtroom in order to present it. [] Id ask the Court to award for three hours of my time at $350 an hour. I will tell the Court that I attempted to settle this beforehand by offering even less than what we believed the county formula requires.

The Court: I dont want to hear about settlement negotiations.

Ms. Gannon: I offered it.

The Court: I dont want to hear about settlement negotiations. When I saw it in the papers, I skipped it, I kept going down looking for evidence on support. So I dont want to ─

Ms. Gannon: Im requesting three hours at $350 an hour, Your Honor.

The Court: All right. Ill give you an order on that.

Ms. Gannon: Thank you, Your Honor.

Mr. Polony: May I respond to that request - -

The Court: I dont want ─

Mr. Polony: ─ about the $350 an hour?

The Court: I know what her rate is. I know what her hours are. As to whether or not shes entitled to it or not, it all goes to the merit of it.

Ms. Gannon: Thank you. Ill prepare an order based on the courts order.

(Proceedings concluded) With respect to the matter of attorneys fees, the trial courts Findings and Order After Hearing states: The prior award of attorneys fees is apparently still outstanding. The court awards an additional $1,000 payable on or before March 1, 2009.

The record does not inform us of the statutory basis for the trial courts award of attorney fees. Nevertheless, under settled appellate principles we may affirm the courts sanctions order on any ground supported by the record. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225.) On this record, however, we cannot affirm the award of attorney fees as a sanction under section 271.[5] In the course of the October 2008 hearing, the trial court noted husband was attempting to reargue matters decided in the August 2008 order. Nevertheless, husband succeeded in obtaining a downward adjustment in temporary spousal support. Also, the trial court purposely set a termination date for spousal support in order to grant husband reasonable relief. Accordingly, it is questionable whether husbands filing of the motion for modification can be viewed as conduct worthy of a section 271 sanction. More importantly, subdivision (b) of section 271 requires notice of the possibility of sanctions and an opportunity for the to-be-sanctioned party to be heard. Nothing in the record indicates that husband received any such warning, and in point of fact the trial court did not make any reference to a sanction in its order.

Nor can we affirm the attorney fee award as a needs-based award pursuant to section 2030. A need-based award is predicated on what is just and reasonable given the relative circumstances of the parties, and what amount was reasonably necessary to adequately maintain or defend the action. (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827 (Braud).) It is well established in California that, although the trial court has considerable discretion in fashioning a need-based fee award (citation), the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion. (Ibid.)

Here, the court made no factual findings that could support a needs-based award of attorney fees; indeed, the court made no factual findings at all in connection with the fee award. Accordingly, the record does not reflect that the court actually exercised its discretion and considered the statutory factors in exercising its discretion to award needs-based attorney fees. (In re Marriage of Braud, supra, 45 Cal.App.4th at p. 827.)

In sum, on this record the attorney fee award of $1,000 cannot be affirmed either as a sanction under section 271 or as a needs-based award under section 2030. Thus, the attorney fee award of $1,000 must be reversed.

Husband also raises various evidentiary claims. The first is based upon his request in his declaration of October 22, 2008, that the trial court Compel Production of Documents and Answers to Interrogatories, as set forth in my Requests dated September 3, 2008. The trial court did not rule on this request in its October 2008 order. On this basis, husband asserts that the trial court wrongly ignored his request to compel production of documents and asks that we reverse the trial court and compel production. We decline to do so. If husband sought to compel production of documents, he should have filed a motion to compel pursuant to Code of Civil Procedure, section 2031.300.

Husband also contends the trial court erred by granting wifes motion to strike his declarations. The trial court struck in its entirety husbands declaration of October 1, 2008, and struck all hearsay and argument from his declaration of October 22, 2008.

The standard of review of any ruling by a trial court on the admissibility of evidence is abuse of discretion. (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) A motion to strike concerns the admissibility of evidence and a ruling on such motion is reviewed for abuse of discretion. (Quiroz v. SeventhAve.Center (2006) 140 Cal.App.4th 1256, 1282.)

We see no abuse of discretion in the trial courts ruling on this point. In his declaration of October 1, 2008, husband accuses wife of falsifying documentation for purposes of the dissolution proceedings in order to understate her resources and disputes the factual findings and rulings in the trial courts August 2008 order. Thus, the declaration of October 1 was simply irrelevant to the issue of modification of spousal support and the trial court did not abuse its discretion in striking it. Regarding husbands declaration of October 22, the trial court stated as follows at the hearing on October 28: The key [declaration] is 10/22, which is his reply declaration and thus has some evidentiary material. In its October 28 order, the trial court struck from the October 22 declaration all hearsay and argument. Thus, the trial court preserved for its consideration all the evidentiary material in husbands October 22 declaration. Accordingly, the trial courts ruling on this point was not an abuse of discretion.

Disposition

The trial courts order is affirmed in all respects except that the award of attorney fees of $1,000 in favor of wife is reversed. The parties shall each bear their own costs on appeal.

_________________________

Jenkins, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Siggins, J.

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[1] Further statutory references are to the Family Code unless otherwise noted.

[2] The only declarations in the record filed by husband in connection with the hearing of October 28, 2008, are those filed on October 1 and October 22, 2008.

[3] [A]ppealability is a jurisdictional question that must be addressed by the reviewing court, even if the parties do not question it. (State ex rel. Dept. of Pesticide Regulation v. Pet Food Express (2008) 165 Cal.App.4th 841, 850.)

[4] Furthermore, to the extent that husbands motion for modification of spousal support is viewed as a valid motion for reconsideration of the August 2008 order, such motion for reconsideration would have extended the time to appeal the August 2008 order only until November 17, 2008, well before husband filed his notice of appeal on December 26, 2008. (Cal. Rules of Court, rule 8.108(e)(2) [valid motion for reconsideration extends time to appeal until 90 days after the first motion to reconsider is filed].) Also, to the extent the trial courts October 2008 order constitutes a denial of reconsideration of the August 2008 order, that portion of the October 2008 order is not appealable. (See Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2008) 166 Cal.App.4th 1625, 1633 [denial of motion for reconsideration not an appealable order]; Crotty v. Trader (1996) 50 Cal.App.4th 765, 769 [same].)

[5] Section 271 permits the trial court to award attorney fees in the nature of a sanction for conduct that frustrates the policy of the law to promote settlement of litigation and . . . reduce the cost of litigation by encouraging cooperation between the parties and attorneys. (271, subd. (a).) However, the trial court may only impose a sanction under section 271 after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard. (271, subd. (b).) The fact that the attorney fee award was for the three hours wifes counsel spent in preparing for and attending the modification hearing suggests that the fee award may have been intended as a section 271 sanction.