Opinion
D052270.
7-13-2009
LISA GOLDEN, Petitioner and Appellant, v. ANDREW LASHER, Defendant and Respondent,
Not to be Published in Official Reports
Petitioner and appellant Lisa Golden (Mother) appeals the 2007 orders of the family law court that set the amount of child support that she should pay for her minor child Andrea Golden-Lasher, whose father and custodial parent is respondent Andrew Lasher (Father). In April 2006, Mother brought a motion to modify a previous order of child support, and she later sought relief from arrearages and to set aside earlier orders. (Uniform Interstate Family Support Act, Fam. Code, § 4900 et seq.; all further statutory references are to this code unless otherwise noted.) Motions to compel discovery were brought by both sides and in December of 2006, the court ordered Mother to provide further responses, which she did. (Code Civ. Proc., § 2030.300.)
After several continuances of the discovery and support matters, which included the participation of counsel for the San Diego County Department of Child Support Services (the Department), the trial court resolved the discovery disputes and made a guidelines award of child support on May 25, 2007. The court also awarded $500 discovery sanctions against Mother, and ordered counsel for the Department to prepare the formal order.
In June of 2007, before the formal order was signed, Mother sought and obtained reconsideration of a portion of the order, and the court reduced the monthly support amount to $204, from the $359 that was originally set, payable from April 2004. When counsel for the Department later submitted the formal order, it did not reflect that change and it was not signed until November 2007.
On appeal, Mother challenges the factual basis of the $204 support amount and claims the sanctions order was not justified. Father has not filed a respondents brief. The Department brought a motion to dismiss certain issues on appeal, and obtained an order excusing it from filing a formal brief. We denied its motion to dismiss the appeal. The lack of respondents briefs does not represent any concessions, and we reach the merits of Mothers appeal, which we deem to encompass the related orders from the May and June proceedings. (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; Cal. Rules of Court, rule 8.220(a)(2).)
Mother has not shown any abuse of discretion or legal error in the orders made. The record supports the courts original order imposing sanctions, as well as the reconsideration order that placed the support obligation at $204 per month. (Code Civ. Proc., § 1008.) On remand, the court is directed to prepare a modified and corrected order and as so modified, the underlying orders are affirmed.
BACKGROUND
A. Facts; Preceding Hearings
In 2005, this court issued an opinion upholding the family law courts order transferring jurisdiction to the state of Colorado, where Father and the child are residing. (Golden v. Lasher (March 25, 2005, D043370 [nonpub. opn.], referred to here as the prior opinion.) As background facts, we repeat a portion of that opinion: "Andrea (the child) was born in California on October 5, 1999. The parents were not married to each other. The child has a heart defect and received medical treatment in California during the first two years of her life. In February 2000, Mother petitioned the court for a determination of paternity. This was granted, sole legal and physical custody was ordered to Mother, and Father was ordered to pay child support. He did not seek visitation at that time. [¶] When the child was approximately a year old, Mother brought an order to show cause seeking modification of the support orders, and Father responded with an order to show cause regarding a visitation request." At one point, Mother was incarcerated and she ultimately pleaded guilty in a domestic violence matter involving Father. After contentious court proceedings, sole custody was awarded to Father in 2003, when the family law court ruled that the court in Colorado had the ability to act in the childs best interests regarding custody and visitation, and would have the ability to make decisions on the childs behalf, such that a transfer of jurisdiction was appropriate.
With respect to child support, the parties made various motions and cross-motions from 2003 to 2006 regarding which state should retain jurisdiction. Ultimately, the Colorado courts deferred all child support issues to the California courts, since Mother resides in San Diego. This phase of the proceedings began in April 2006 when Mothers attorney filed a motion for modification of the existing child support order. In July of 2006, Father responded with requests for production and interrogatories, seeking updated financial information from Mother. Mothers legal representation had ended by September 2006, and Mother contends she did not receive all of the case files and discovery requests when she began to represent herself in propria persona. She filed a motion requesting relief from arrearages.
On December 4, 2006, the court granted Fathers motion to compel further answers to interrogatories by January 3, 2007. The court reserved ruling on monetary sanctions. The matters were continued again from January to March to May 2007.
B. Rulings: May 25, June 29, November 29, 2007
After the continuances of the discovery motions, the commissioner at the May 7 hearing continued them again to May 25, with the related support issues to be heard June 12. Mother was acting in propria persona, and Father was represented by counsel, as was the Department. At the hearing on May 25, the trial court told the parties it was issuing comprehensive orders to resolve all the pending related matters. The court explained that it was familiar with the seven-volume file, understood the issues presented, and did not require any further argument or information from either party, because the discovery requests had been blown out of proportion and were not necessary. The court told Mother that it, as a California court, lacked jurisdiction to order her requested relief from Colorado court orders. Next, the court denied both parties pending discovery motions. Based on its December 2006 order for further answers from Mother, the court ruled that sanctions were mandatory under the circumstances, and $500 would be awarded to Father. (Code Civ. Proc., § 2030.300, subd. (d).)
Regarding the issues of child support, the court noted they had been on calendar for over a year, and its review of the file showed that enough information was already presented for decision. Based on the totality of the evidence in the courts file, it ruled that Mother had the income or ability to earn $2,167 per month, which should be reduced to a net income of $1,700 after her tax filing status was considered. Father had income or ability to earn $12,000. The guidelines amount for Mother to pay was $359 monthly, effective in April 2004. Mother argued that she lacked the ability to pay, and the court discussed her earning capacity with her. It then ordered an audit and explained that any enforcement efforts should be coordinated between California and Colorado, to avoid any double billing. The court vacated the June 12 hearing date, imposed a prefiling approval order by stipulation, and required counsel for the Department to prepare the order after hearing.
Mother lodged a reconsideration request June 4, 2007. In her supporting papers, Mother represented that her estimated $1,000 per month net income should be adjusted by deducting the $395 health insurance premiums she was receiving on a charity basis. Also, she was receiving free rent from a friend, which she claimed was being overvalued by the court. Mother also stated she had been incarcerated for seven months (in 2005) and had been unable to earn anything during that time.
On June 29, 2007, on an ex parte basis, the court granted reconsideration, to the extent that the $359 monthly support amount was reduced to $204, based upon Mothers admission that she has an imputed income of $1,000. Its order attached copies of the support calculation (computer printout) that it relied on for its conclusions, and stated that all previous orders not in conflict remained in effect. The clerk served the order on all parties involved.
Mother lodged a second reconsideration request on October 31, 2007, but it was rejected by the court. The formal order prepared by the Department was signed by the court on November 29, 2007, and set the guidelines support amount at $359, while also reciting that all previous orders not in conflict remained in effect. Mother filed a notice of appeal from this order.
Pending appeal, we expedited the matter and have received the Departments motion to dismiss the child support issue only. That motion was denied, and both that issue and the sanctions matter remain before us on this appeal.
DISCUSSION
I
PRELIMINARY PROCEDURAL ISSUES
As a threshold matter, we shall construe the notice of appeal liberally and find that the appeal was timely taken from not only the November 29 formal order (from the May 25 hearing) but also from the underlying reconsideration order issued June 29, 2007. (Cal. Rules of Court, rules 8.100(a)(2), 8.104(e), 8.108(e).) Although the trial court requested in May that counsel for the Department prepare the formal order, there was an unexplained delay in submitting it and obtaining signatures until November. Nevertheless, the June reconsideration order was served on all parties involved, including the Department, and the formal order recited that all previous orders that were not in conflict should remain in effect. This appeal was timely filed within 180 days of the comprehensive written order. (See Annette F. v. Sharon S. (2005) 130 Cal.App.4th 1448, 1454-1458.) Mother is an aggrieved party with respect to both the child support and sanctions orders, and we will consider the merits of the appeal. (Code Civ. Proc., § 902.)
As the appellant, Mother has the burden of providing an adequate record and a showing that error occurred and that it was prejudicial. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) "In propria persona litigants are entitled to the same, but no greater, rights than represented litigants and are presumed to know the [procedural and court] rules. [Citations.]" (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.)
Next, when reviewing the reconsideration order, we are mindful that an abuse of discretion standard applies. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212; see In re Marriage of Oropallo (1998) 68 Cal.App.4th 997, 1002.) "[CCP] Section 1008, subdivision (a) requires that a motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. [Citation.]" (New York Times, supra, at p. 212.) The reconsideration request and order that partially granted it are before this court, in addition to the original ruling, and "we are free to review both orders and render an opinion based on the correct rule of law." (In re Marriage of Oropallo, supra, at p. 1002.)
II
ANALYSIS
A. Child Support; Rules of Review
We review the challenged award of child support for any abuse of discretion. (In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1366.) An appellate court will review the record to determine if the trial courts factual determinations are supported by substantial evidence: "Our review is limited to determining whether the courts factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion. [Citation.] We do not substitute our judgment for that of the trial court, but confine ourselves to determining whether any judge could have reasonably made the challenged order. [Citation.]" (Id. at p. 1360.) Where there has been a departure from the statutory guideline amounts, the child support order is examined for any abuse of discretion. (In re Marriage of Wood (1995) 37 Cal.App.4th 1059, 1066, disapproved on other grounds in In re Marriage of Fellows (2006) 39 Cal.4th 179, 187.)
Mother makes generalized contentions that the trial court acted without due process by addressing the support matter and discovery matters together at the same hearing. However, there was no abuse of discretion nor any lack of adequate notice, regarding these closely related matters, some of which had been pending for over a year. In a related context, involving the adequacy of notice to an out-of-state parent in child custody proceedings, it has been held that the requirements of due process of law are met regarding a parents interest in a custody decision when a court that has subject matter jurisdiction over the dispute gives each party notice of the hearing and an opportunity to be heard. (In re Marriage of Torres (1998) 62 Cal.App.4th 1367, 1378.) This record does not show any lack of notice or opportunity to respond on any of the material issues that were brought before the court, based on several pending requests by both parties. The court reviewed the extensive file in detail and was well informed about the parties relative financial positions, which had not changed recently. The court had participated in many of the recent hearings and continuances of these related matters, and its decision that the anticipated June 12 hearing was no longer necessary was well founded and could not reasonably amount to a surprise to the parties.
Although Mother continues to contend that the court abused its discretion in imputing income to her in amounts representing health insurance premiums, free rent, and a seven-month period of incarceration when she was unable to earn, she fails to recognize that those issues were fully presented to the court and considered when it granted her motion to reconsider the original order. She obtained a reduction from $359 to $204, based upon those representations, and the court supplied a computer printout of its support calculation. Although Mother has now attached a new computer printout of support calculations to her appellants appendix, she does not claim that it was before the trial court at the time of reconsideration. We should not consider new evidence on appeal presented in that manner. (In re Zeth S. (2003) 31 Cal.4th 396, 413.)
In short, the record supports the trial courts exercise of discretion to set the amount of child support at $204 monthly, upon reconsideration, based on its review of the file and its consideration of all the relevant evidence and circumstances. This ruling was well within the bounds of reason and should be affirmed as modified. (In re Marriage of de Guigne, supra, 97 Cal.App.4th at p. 1360.)
B. Sanctions
At the May 25 hearing, the trial court awarded $500 monetary sanctions against Mother, payable to Father, based on the need for a motion and order to obtain her response to legitimate discovery requests. We review that order for abuse of discretion. "`"The power to impose discovery sanctions is a broad discretion subject to reversal only for arbitrary, capricious, or whimsical action. [Citations.] Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must be a failure to comply . . . and (2) the failure must be wilful [citation]." [Citation.] [Citation.]" (Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) We do not seek to determine whether the trial court should have imposed lesser sanctions, but instead ask whether the court abused its discretion by imposing the sanctions it did. (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620; Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1245.)
Under Code of Civil Procedure section 2030.300, when a party to whom interrogatories are directed has failed to adequately respond to them, and when a motion to compel responses is required, then: "(d) The court shall impose a monetary sanction . . . against any party . . . who unsuccessfully . . . opposes a motion to compel a further response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." (Italics added.) Mother did not show there were legitimate causes of her delay, nor has she shown the trial court award of sanctions was unjust. Although the circumstances of the ending of her representation by her former attorney, and the confusion in transferring the files, are unfortunate, the trial court did not abuse its discretion by finding there was no substantial justification demonstrated for the failure to comply with the requests.
Moreover, Mothers procedural objections that inadequate reasons were stated for the award are unmeritorious. At the hearing, the trial court explained its reasoning in detail, as reflected in the reporters transcript. The court interpreted this sanctions provision as mandatory under the circumstances, and it awarded what it deemed to be a token amount to discourage further inappropriate discovery endeavors. Under all the relevant circumstances disclosed in the record, the courts order on sanctions did not represent any reversible error nor abuse of discretion.
DISPOSITION
The orders are affirmed as modified to reflect that the reconsidered support award is $204 per month, and the trial court is directed to prepare modified orders accordingly. Each party shall bear its own costs on appeal.
WE CONCUR:
McDONALD, J.
McINTYRE, J.