Hutchinson
Filed 4/2/13 Hutchinson v. Ajiduah CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 SIX
KARYN HUTCHINSON,
Plaintiff and
Respondent,
v.
PAUL AJIDUAH,
Defendant and
Appellant.
2d Civil No.
B236024
(Super. Ct.
No. D273463)
(Ventura
County)
Appellant Paul Ajiduah
has not seen his child for six years; he seeks custody. Ajiduah asks that California
maintain jurisdiction over the case; both the child and the custodial parent,
respondent Karyn Hutchinson, live in Texas. The trial
court has ordered Ajiduah to pay child support; his arrearages exceed
$80,000. Ajiduah owes Hutchinson's
counsel over $17,000 in court-ordered fees; he has paid nothing.
Ajiduah sought and received a reduction in his monthly child support payment --
a seemingly inconsequential matter since he does not comply with support orders
irrespective of the amount.
Ajiduah appeals from the
trial court's order relinquishing jurisdiction to Texas on
pay Hutchinson's attorney's fees. We
affirm.
FACTS AND PROCEDURAL BACKGROUND
Hutchinson has sole
custody of the parties' minor child. In
2005, the trial court entered an order requiring Ajiduah to pay monthly child
support of $1,548, based on self-employment income of $99,000 per year. At that time, Ajiduah owed $24,551.44 in back
child support. In 2006, Hutchinson and
the child relocated to Texas. Ajiduah
has had no contact with the child since they moved.
By March 2011, Ajiduah
was approximately $80,000 behind in child support payments. He filed an order to show cause (OSC) to
modify child custody, visitation and child support based on a change in
circumstances. Ajiduah claimed he was
starting a new job with a monthly income of $4,506. Hutchinson and the
County Department of Child Support Services (DCSS) responded to the OSC,
but those documents are not included in the record on appeal. The record also does not include any of the
earlier child custody, support and attorney's fees orders.
At the
advised the trial court that monthly guideline support is $710 based on
Ajiduah's current actual income.
Hutchinson declared she has no income, and the trial court refused to
impute any income to her, stating it would be inappropriate "in light of
the history of the case." Agreeing
that child support should be based on Ajiduah's actual income, the trial court
modified Ajiduah's monthly support obligation to $710. The trial court also ordered him to pay
Hutchinson's attorney's fees in the amount of $7,000.
On the custody and
visitation issues, the trial court relinquished jurisdiction to Texas based on
the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). (Fam. Code, § 3422.)
child's home state since 2006, that neither the child nor the custodial parent
has any connection to California and that Ajiduah "has failed to follow
the 2004 custody order and has not provided financial assistance for the minor
child." The court ruled that the
prior child custody and visitation order will remain in effect except that all
visitations with the minor child must take place in Texas. Ajiduah appeals.
Hutchinson twice moved
to dismiss Ajiduah's appeal because he refused to lend her his copy of the
record on appeal, as required by rule 8.153 of the California Rules of Court. Given that the record is not lengthy, we
denied the motions and offered to make the record available for review in the
clerk's office. Hutchinson's attorney
responded that Hutchinson cannot afford to defend the appeal, explaining: "[Ajiduah] owes [Hutchinson] over
$90,000 in back child support. [He] owes
my office over $17,000 pursuant to an award of attorney's fees and costs made
by the trial court on December 15, 2005.
He has not paid a single dollar toward this order, and has arranged his
financial affairs so that none of this can be collected by any levy." Subsequently, Hutchinson's attorney
substituted out of the appeal. No
respondent's brief was filed.
DISCUSSION
In her first motion to
dismiss, Hutchinson asserted that "Appellant's opening brief fails to
articulate any pertinent, intelligible, or cognizable legal argument, or
properly cite authority or the record on the points raised." We agree the brief is confusing and even
incoherent in parts. Ajiduah does
challenge the trial court's decision to defer to Texas on the custody and
visitation issues and to award attorney's fees to Hutchinson. We address those issues below.
Ajiduah also contends
that the trial court failed "to rule on the Appellant arrears" and
that the DCSS attorney improperly interfered "with private family
matter." Ajiduah does not elaborate
on these contentions or provide relevant legal authority and record
citations. Where, as here, an appellant
raises an issue "but fails to support it with reasoned argument and citations
to authority, we treat the point as waived.
[Citations.]" (
Cal.App.4th 779, 784-785; see Kim v.
Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [appellate court not required
to consider points not supported by citation to authorities or record].)
Custody
and Visitation
The exclusive method of
determining subject matter jurisdiction in custody cases is the UCCJEA. (§ 3421, subd. (b).) As provided in section 3422, a court that
properly acquires initial jurisdiction over the custody issues, as it did here,
retains exclusive, continuing jurisdiction unless one of two subsequent events
occurs: (1) a court of the issuing state
determines that "neither the child, nor the child and one parent, nor the
child and a person acting as a parent have a significant connection with this
state and that substantial evidence is no longer available in this state
concerning the child's care, protection, training, and personal
relationships," or (2) there is a judicial determination by either the
issuing state or any other state that "the child, the child's parents, and
any person acting as a parent do not presently reside in" the issuing
state. (§ 3422, subds. (a)(1), (a)(2).)
Here, the trial court
determined it lost exclusive, continuing jurisdiction under section 3422,
subdivision (a)(1), because the child and custodial parent (Hutchinson) no
longer have a significant connection with California and because substantial
evidence is no longer available in this state concerning the child's care,
protection, training and personal relationships. The record supports this decision.
The issuing state has
the sole power to decide whether
continuing jurisdiction has been lost under section 3422, subdivision
(a)(1). (In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 510.) Even if the child and custodial parent have
moved to another state, however, a "significant connection" to
California continues so long as the other parent, who is exercising visitation
rights, still lives in California and his or her relationship with "the
child has not deteriorated to the point at which the exercise of jurisdiction
would be unreasonable." (
Cal.App.4th 1193, 1200.) But that is not
the case here. The evidence established
that the child and Hutchinson have lived in Texas since 2006 and that Ajiduah
has had no contact with the child since that time. Ajiduah also has failed to comply with the
earlier custody and child support orders.
Under these circumstances, the trial court appropriately relinquished
jurisdiction over custody issues to Texas.
Thus, any request to modify custody must be brought in Texas.
Attorney's
Fees
The trial court granted
Hutchinson's request for the $7,000 in attorney's fees she incurred in
defending Ajiduah's OSC to modify child support. Ajiduah contends this award was inappropriate
because he was the prevailing party in that proceeding. The standard of review for orders affecting a
child support obligation and a related order for attorney's fees is abuse of
discretion. (In re Marriage of Alter (2009) 171 Cal.App.4th 718, 730-731;
Cal.App.3d 514, 525-526.)
The trial court's order
purports to grant Hutchinson's fees pursuant to section 3652, which states that
"an order modifying, terminating, or setting aside a support order may
include an award of attorney's fees and court costs to the prevailing
party." Although this statute
permits an award to the prevailing party, the court first must consider whether
a section 2030 needs-based award is warranted.
(In re Marriage of Popenhager,
supra, 99 Cal.App.3d at p. 525.)
Because of the importance of ensuring that both parties have the ability
to present their cases effectively, attorney's fees may be awarded against a
prevailing party in family law proceedings.
(In re Marriage of Cryer
(2011) 198 Cal.App.4th 1039, 1056; In re
Marriage of Hublou (1991) 231 Cal.App.3d 956, 966.) Thus, section 3652 comes into play
2030 needs-based fees are inappropriate in light of the parties' relative
circumstances. (Popenhager, at p. 525 [comparing former Civil Code sections 4370
and 4700].)
The record confirms the
trial court intended to issue a needs-based award under section 2030,
subdivision (a).
pay and their respective incomes, remarking that Hutchinson has no income or
child support, lives out of state and had to retain an attorney to represent
her interests in California. In
contrast, Ajiduah lives in
is representing himself, has monthly income of $4,506, is over $80,000 behind
in child support payments and has not paid prior attorney's fees awards. In fact, before reducing the child support
award, the trial court offered to set an evidentiary hearing for Hutchinson to
further examine Ajiduah's financial information. Hutchinson's attorney declined,
explaining: "[M]y client can't
afford counsel to do that. The last time
we had an attorney's fee order, which was over $9,000, Mr. Ajiduah did not pay
any of it. He still hasn't paid a nickel
of it."
The trial court
appropriately considered these facts in deciding that Hutchinson was entitled
to attorney's fees to preserve her rights on the child support issue. (See § 2030, subd. (a).) The court did not abuse its discretion in
awarding those fees.
The order of the trial
court is affirmed. No costs are awarded
on appeal.
NOT TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P. J.
YEGAN, J.
>
Joann
Johnson, Commissioner
Superior
Court County of Ventura
______________________________
Paul Ajiduah, in pro.
per., for Appellant.
No appearance for
Respondent.
Hutchinson's attorney withdrew from this appeal
for non-payment of fees. Hutchinson did
not appear or file a respondent's brief.
All statutory references are to the Family Code.
