Marriage of Carter
Filed 8/16/12
Marriage of Carter CA3
NOT
TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Sacramento)
----
In re the Marriage of KAYTON
and KAWANAA CARTER.
KAYTON CARTER,
Appellant,
v.
KAWANAA CARTER,
Respondent.
C068599
(Super.
Ct. No. 02FL07621)
Kayton Carter
(father) appeals from orders appointing counsel for his three minor children
and ordering father and Kawanna Carter (mother) to each pay half of counsels’
fees.
Father contends
(1) the trial court abused its discretion in ordering him to split
responsibility for the fees with mother, because a prior order required mother
to advance all fees; and (2) the trial court violated his
the opportunity to be heard.
We conclude:
1. The prior order requiring mother to advance
fees was made with a reservation of jurisdiction to reallocate responsibility
for the fees at a later date, and in any event did not prevent the trial court
from issuing new and different orders.
The trial court did not abuse its discretion in determining that both
parents had the ability to split the fees.
2. The trial court did not deny father the
opportunity to be heard. Although father
contends he never received a hearing on an ex parte application to enforce the
prior order requiring mother to advance the fees, the trial court reviewed his
ex parte application, set the matter for hearing, and subsequently heard
father’s arguments in a hearing on June
23, 2011, before reaffirming its order that father and mother split
the fees.
We will affirm the
orders.
BACKGROUND
Father and mother
have two sons and a daughter. As part of
their marital dissolution proceeding, father and mother participated in custody
mediation. Following the mediation,
Judge Gweon ordered the appointment of Michael Jonsson as minors’ counsel. With mother’s assent, Judge Gweon further
ordered mother to advance all fees for minors’ counsel, but reserved
jurisdiction to reallocate responsibility for the fees in the future. Judge Gweon also ordered the parties to
participate in an Evidence Code section 730 custody evaluation with Dr.
Jacqueline Singer. Judge Gweon’s minute
orders were subsequently memorialized in an order signed by Judge Lueras.
Months later,
father filed an ex parte request to modify visitation and to enforce the prior
order regarding minors’ counsel. Judge
Gary denied the ex parte request but
set the matter for regular hearing on May
25, 2011, and ordered the parties to provide current income and
expense declarations.
Mother and father
appeared before Judge Lueras on May
25, 2011, following completion of the Evidence Code section 730
evaluation with Dr. Singer. Father and
mother disagreed as to whether the trial court should adopt Dr. Singer’s
recommendations. Mother asked that the
matter be set for a long-cause hearing and that the trial court appoint minors’
counsel because Mr. Jonsson was previously appointed but was not available “and
there hasn’t been any further appointment where we believe that would be
appropriate.” Father objected to a
long-cause hearing. But the trial court
said it would specially set the matter for a long-cause hearing; that existing
orders would remain in place; and that it would appoint minors’ counsel. Father asked that the appointment be done
immediately.
Judge Lueras
subsequently issued orders appointing Frank Dougherty as counsel for the two
sons and Dianne Fetzer as counsel for the daughter. The orders expressed the court’s finding that
father and mother were able to pay the compensation and expenses for minors’ counsel
and ordered them to each pay half the fees for minors’ counsel.
DISCUSSION
I
Father contends
the trial court abused its discretion in ordering him to split responsibility
for the fees with mother, because the trial court’s prior order required mother
to advance all fees and mother agreed.
He recognizes that our review for abuse of discretion is
deferential. Nonetheless, he argues the
order requiring him to pay half the fees conflicts with the trial court’s prior
order that mother advance the fees, had the effect of “vitiating” mother’s
agreement to advance the fees, and was not supported by the evidence of their
financial status. We disagree.
At the prior
hearing on October 18, 2010,
mother’s counsel suggested that mother would advance the fees without
prejudice, subject to the trial court’s reservation of jurisdiction to
reallocate responsibility for payment of the fees at a later date. The trial court so ordered. The subsequent order that father pay half the
fees does not conflict with the prior order and does not vitiate any agreement
by mother. In any event, in this context
it was not error for the trial court to issue a subsequent and different order
based on the evidence.
We turn next to
father’s contention that the order requiring him to pay half the fees is not
supported by the evidence of his ability to pay. The trial court was obligated to “determine
the respective financial ability of the parties to pay all or a portion of
counsel’s compensation.” (Cal. Rules of
Court, rule 5.241(b); Family Code, § 3153, subd. (b).) “Before determining the parties’ ability to
pay: (A) The court should consider
factors such as the parties’ income and assets reasonably available at the time
of the determination, and eligibility for or existence of a fee waiver
. . . ; and (B) The parties must have on file a current
The record
reflects that both father and mother were employed at the time of the
challenged order and both had income.
Mother is a neurosurgeon and father is an educator. Both filed current income and expense
declarations with the trial court. The
trial court made an express finding that they both had the ability to pay half
the fees for minors’ counsel. To the
extent father believes this finding is factually incorrect, he can, under
appropriate circumstances, ask the trial court to “redetermine the parties’
ability to pay.” (Cal. Rules of Court,
rule 5.241 (b)(3).)
We do not reweigh
the evidence on appeal, and we will not reverse the trial court unless there is
a showing that “no judge could reasonably have made the order.” (In re
Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975.) On this record, we cannot say that the trial
court abused its discretion.
II
Father also
contends the trial court violated his due
process rights by depriving him of the opportunity to be heard. Father asserts the trial court never received
his ex parte request and never heard it.
The record
establishes, however, that father’s ex parte application to enforce the prior
order was reviewed and denied by Judge Gary.
Judge Gary set the matter to be heard at regular hearing on May 25, 2011, and ordered the parties
to provide current income and expense declarations. At the hearing on May 25, the trial
court set the matter for a long-cause hearing.
But both mother and father asked the trial court to appoint minors’
counsel, and father asked that it be done immediately. At a subsequent hearing on June 23, 2011, the trial court heard
father’s argument that he did not have the ability to split the fees. After hearing father on the issue, the trial
court reaffirmed its order that father and mother split the fees.
This record
establishes that the trial court did not deprive father of an opportunity to be
heard.
DISPOSITION
The trial court
orders are affirmed.
MAURO , J.
We concur:
BLEASE , Acting P. J.
ROBIE , J.
