Opinion
F076532
09-26-2019
In re the Marriage of VICKIE and ANDREW SOARES. VICKIE SOARES, Appellant, v. ANDREW SOARES, Respondent.
Vickie L. Soares, in pro. per., for Appellant. Andrew J. Soares, in pro. per., for Respondent.
ORDER MODIFYING OPINION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is hereby ordered that the nonpublished opinion filed on September 26, 2019, be modified as follows:
1. On page 6, line 23, after the citation "In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304," delete the short cite "(Cheriton)" and add the following text and footnote, which will require renumbering of all subsequent
"superseded by statute on other grounds as stated in In re Marriage of Morton (2018) 27 Cal.App.5th 1025, 1049 (Morton)."
In 2002, this court quoted Cheriton for the principle that trial courts have broad discretion and considerable discretion in fashioning an attorney fees award in marital dissolution proceedings. (In re Marriage of Lynn (2002) 101 Cal.App.4th 120, 133.) While accurate at the time, the principle has been superseded by amendments to Family Code section 2030 that made an award of fees mandatory in certain situations and required the trial court to make explicit findings on specific issues.
2. On pages 9 through 10, the three paragraphs starting with "When a request ..."; "[T]rial courts enjoy ..."; and "Here, though" are deleted. The following two paragraphs and footnote are inserted in its place.
"When a request for attorney's fees and costs is made, the court shall make findings on [1] whether an award of attorney's fees and costs ... is appropriate, [2] whether there is a disparity in access to funds to retain counsel, and [3] 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)(2), italics added.) "Attorney's fees and costs ... may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding." (Id., subd. (b).)
Here, though Vickie eventually proceeded in pro. per., legal services had been rendered on her behalf and a request for attorney fees had been made. Per Family Code section 2030, subdivision (a)(2), the court was required to make certain explicit findings. Yet, as shown by the adopted statement of decision and judgment, it failed to do so. "Consequently, the court committed legal error by failing to comply with [the] mandatory provisions of [Family Code] section 2030, subdivision (a)(2)." (Morton, supra, 27 Cal.App.5th at p. 1053; see id. at p. 1050 ["When considering an application for attorney fees, the trial court must comply with the mandatory provisions of the statute because discretionary authority 'must be exercised within the confines of the applicable legal principles.'"].) This legal error was prejudicial because there is a reasonable probability that without the error, a result more favorable to Vickie would have been reached. (Id. at p. 1051.; Cal. Const., art. VI, § 13.)
In his brief, Andrew insists Vickie had sufficient funds to retain legal representation. Family Code section 2032, subdivision (b) states: "The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested." Therefore, "[f]inancial resources are only one factor to consider." (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975.)
3. Beginning on page 10, in the Disposition paragraph, the second sentence beginning "The matter is..." and the citation to "In re Marriage of Tharp" immediately following the second sentence are deleted. The following sentence and citation are inserted in its place.
The matter is remanded to the trial court with directions to examine the request in compliance with Family Code sections 2030 and 2032. (See Morton, supra, 27 Cal.App.5th at p. 1053.)
FRANSON, J. WE CONCUR: HILL, P.J. DETJEN, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or reiving 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. (Super. Ct. No. 8003464)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Alan K. Cassidy, Judge. Vickie L. Soares, in pro. per., for Appellant. Andrew J. Soares, in pro. per., for Respondent.
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Vickie L. Soares (Vickie) and Andrew J. Soares (Andrew) married on September 8, 1973. More than 40 years later, they divorced on October 27, 2017. Under the judgment of dissolution, the trial court ordered Andrew to pay spousal support in the amount of $1,650 per month. No attorney fees were awarded.
"As is customary in family law proceedings, we refer to the parties by their first names for purposes of clarity and not out of disrespect." (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
On appeal, Vickie presents three arguments. First, the judge should have recused himself due to a conflict of interest. Second, the spousal support award determination was erroneous. Finally, she was entitled to attorney fees. We conclude: (1) Vickie's judicial disqualification claim is not cognizable on appeal; (2) the spousal support award was reasonable; and (3) remand is warranted because the court failed to exercise its discretion with respect to Vickie's request for attorney fees.
In violation of rule 8.204(a)(1)(B) of the California Rules of Court, Vickie makes other contentions throughout her brief that are not listed "under a separate heading or subheading ...." Thus, we decline to address these contentions. (See, e.g., T.P. v. T.W. (2011) 191 Cal.App.4th 1428, 1440, fn. 12.)
BACKGROUND
Rule 8.204(a)(1)(C) of the California Rules of Court provides: "Each brief must: [¶] ... [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears." "As a reviewing court, we usually consider only matters that were part of the record when the judgment was entered." (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 195.) Here, however, the parties' briefs largely avoid references to the record. In addition, Vickie cites exhibits attached to her opening brief. (See id. at pp. 193-195 [appellate court refused to consider parts of appellant's opening brief supported solely by citations to exhibits outside the appellate record and not judicially noticed].)
"'Because "[t]here is no duty on this court to search the record for evidence" [citation], [we] may disregard any factual contention not supported by a proper citation to the record.' [Citations.]" (Rybolt v. Riley (2018) 20 Cal.App.5th 864, 868, italics omitted.) Given the deficiency of record citations, "we have done our best to piece together ... this case." (Ibid.)
On June 9, 2016, Vickie petitioned for legal separation. On July 8, 2016, Andrew petitioned for dissolution. Following a July 2017 trial, at which "[o]ral and documentary evidence was received, arguments were made on behalf of both parties, [and] pre-trial briefs were submitted ... by both parties," the court ordered Andrew to prepare a proposed statement of decision. This statement, which was filed on August 15, 2017, reads in pertinent part:
"III [¶] SPOUSAL SUPPORT
"Findings [¶] ... [¶]
"As to the issue of spousal support the Court examined []Wife directly on the Family Code [section] 4320 factors, and determined that []Wife is currently drawing Social Security and it is unlikely that she will find employment. It is difficult to ascertain the []Wife['s] needs as she has moved to Southern California and appears to have additional needs based on the cost of living.
"In addition, the Court finds the []Husband's income is $10,150 in gross employment earnings. Examining the pay stubs, which indicate after deductions for taxes, FICA, insurance and the wage garnishment[,] the []Husband receives a net monthly income of $5,302. The court made a finding that []Husband should receive a hardship deduction of $1,248 per month for the garnishment on [a Small Business Administration] loan. This leaves []Husband a net monthly income of $4,054. The court also finds that the []Husband receives no additional income from Digital Sign Network, LLC, pursuant to the testimony of Casey Johnson.
"[]Wife receives a net monthly social security payment of $754 per month. []Husband receives a net monthly income of $4,054. The parties' combined monthly disposable income is $4,808. The []Husband has proposed to the court that he should receive at least 50% of the combined net monthly disposable income of $2,404. []Wife should be charged with $754 in net monthly income, and for her to have the equivalent net income, []Husband would need to pay []Wife $1,650 in spousal support.
"In balancing the hardships created by []Wife's [need] for support with the inability of []Husband to pay his own living expenses as well as spousal support, this Court finds that the payment of spousal support in the amount of $1,650 is appropriate.
"OrderVickie objected to Andrew's proposed statement of decision and filed her own on September 27, 2017. Her proposed statement called for $4,000 in monthly spousal support and an award of attorney fees.
"Therefore, it is ordered that, commencing September 1, 2017, []Husband shall pay spousal support to []Wife in the amount of $1,650 per month, payable one-half on the 1st and one-half on the 15th of each month. The Court at this time declines to give a Gavron warning based on the length of marriage and age of the supporting party....
"IV [¶] ATTORNEY FEES
"[Wife] is not represented by counsel and Attorney fees were not requested in regards to [Wife]'s previous attorney. Attorney fees shall not be ordered." (Boldface omitted & italics added.)
The record indicates: (1) Andrew owned Digital Sign Network, LLC; and (2) Johnson, who testified as Andrew's expert witness, is a certified public accountant whose experience includes "business valuations" and "evaluation and interpretation of financial and economic data in connection with litigation."
A Gavron warning—named after In re Marriage of Gavron (1988) 203 Cal.App.3d 705—"is a fair warning to the supported spouse he or she is expected to become self-supporting." (In re Marriage of Schmir (2005) 134 Cal.App.4th 43, 55.) It was subsequently codified by the Legislature. (Id. at pp. 55-56; see Fam. Code, § 4330, subd. (b) ["When making an order for spousal support, the court may advise the recipient of support that he or she should make reasonable efforts to assist in providing for his or her support needs, ... unless, in the case of a marriage of long duration ..., the court decides this warning is inadvisable."].)
In a September 27, 2017 minute order, the court adopted Andrew's proposed statement of decision "in total." It explained:
Due to a typographical error, an amended statement of decision was filed on October 27, 2017.
"Consistent with what was presented by the [Wife] at the Court Trial heard on this matter, [Wife]'s Objection to [Husband's] Proposed Statement of Decision and her Proposed Statement of Decision are long on accusations and allegations that have little or no factual support as adduced at trial. Conversely, [Husband]'s Proposed Statement of Decision is fully supported by the evidence produced at trial and offers a fair and equitable resolution of the case."The judgment of dissolution, which incorporated said statement, was entered on November 6, 2017.
DISCUSSION
I. JUDICIAL DISQUALIFICATION
At the outset, citing Code of Civil Procedure section 170.6, subdivision (a)(2), Vickie contends "the Judge should have recused himself from her case as a result of conflict." We reject this claim for two reasons. First, the claim itself "is not cognizable on appeal because a petition for writ of mandate is the exclusive method by which a party may seek review of the question of the disqualification of a judge." (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 672, citing Code Civ. Proc., § 170.3, subd. (d); see People v. Panah (2005) 35 Cal.4th 395, 444 ["Code of Civil Procedure section 170.3, subdivision (d) provides the exclusive means for seeking review of a ruling on a challenge to a judge, whether the challenge is for cause or peremptory."].) Second, Vickie forfeited the claim. "'"If a judge refuses or fails to disqualify [himself], a party may seek the judge's disqualification. The party must do so, however, 'at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.' [Citation.]"' [Citation.]" (Brown v. American Bicycle Group, LLC, supra, at p. 672.) On appeal, Vickie insists her "objections over the Judge were reiterated in her own Proposed Statement of Decision." However, said statement did not address any objections. Moreover, Vickie fails to cite anything in the record that demonstrates she sought to disqualify the judge. (See Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 ["If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived."].) II. SPOUSAL SUPPORT AWARD
"An award of spousal support is a determination to be made by the trial court in each case before it, based upon the facts and equities of that case, after weighing each of the circumstances and applicable statutory guidelines." (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93 (Kerr).) The court shall consider "[t]he extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage" (Fam. Code, § 4320, subd. (a)); "[t]he extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party" (id., subd. (b)); "[t]he 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" (id., subd. (c)); "[t]he needs of each party based on the standard of living established during the marriage" (id., subd. (d)); "[t]he obligations and assets, including the separate property, of each party" (id., subd. (e)); "[t]he duration of the marriage" (id., subd. (f)); "[t]he 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" (id., subd. (g)); "[t]he age and health of the parties" (id., subd. (h)); "[d]ocumented evidence ... of any history of domestic violence ... between the parties or perpetrated by either party against either party's child" (id., former subd. (i), amended by Stats. 2018, ch. 938, § 1, eff. Jan. 1, 2019); "[t]he immediate and specific tax consequences to each party" (id., subd. (j)); "[t]he balance of the hardships to each party" (id., subd. (k)); "[t]he goal that the supported party shall be self-supporting within a reasonable period of time" (id., subd. (l)); "[t]he criminal conviction of an abusive spouse" (id., subd. (m)); and "[a]ny other factors the court determines are just and equitable" (id., subd. (n)). "In balancing the applicable statutory factors, the trial court has discretion to determine the appropriate weight to accord to each." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304 (Cheriton); see In re Marriage of Smith (1990) 225 Cal.App.3d 469, 494 ["The factual and equitable circumstances of each case are unique. Although the factors listed in former [Family Code] section 4801, subdivision (a), are comprehensive, their application in the particular case before the court for trial or modification is rarely easy. Determining the weight to be given to each in a particular case, in order to achieve the statutory goal of an order for support in an amount and for a period of time 'as the court may deem just and reasonable' is extraordinarily difficult."].)
"In awarding spousal support, the court must consider the mandatory guidelines of [Family Code] section 4320. Once the court does so, the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion." (Kerr, supra, 77 Cal.App.4th at p. 93, fn. omitted.) "'[A]n abuse thereof only occurs when it can be said that no judge reasonably could have made the same order.' [Citations.]" (In re Marriage of Meegan (1992) 11 Cal.App.4th 156, 161.) "'Because trial courts have such broad discretion, appellate courts must act with cautious judicial restraint in reviewing these orders.' [Citation.]" (Kerr, supra, at p. 93.)
Based on the adopted statement of decision, applicable statutory factors were evaluated. The court noted "[i]t is difficult to ascertain [Vickie's] needs as she has moved to Southern California and appears to have additional needs based on the cost of living" but still concluded she should receive spousal support because her net monthly income was only $754 and she was "unlikely" to find employment. Also, in view of the age of the parties and the length of the marriage, no Gavron warning was given. (See ante, fn. 5.) Although the court identified Vickie's need for spousal support, it recognized Andrew's "inability ... to pay his own living expenses as well as spousal support." It determined Andrew's monthly net income amounted to $4,054, taking into consideration taxes, FICA, insurance, a wage garnishment for a defaulted Small Business Administration loan, and a "hardship deduction" for said garnishment. In an attempt to balance the parties' interests, the court decided to evenly split their combined monthly income ($4,808). Deducting Vickie's Social Security benefit, it deemed "appropriate" a spousal support award of $1,650 per month. We cannot find "'no judge reasonably could have made the same order.' [Citations.]" (In re Marriage of Meegan, supra, 11 Cal.App.4th at p. 161.)
Vickie suggests the court should have considered Andrew's history of domestic abuse. She cites the following documentation: (1) a June 9, 2016 declaration regarding notice upon ex parte application orders, which indicated she was "afraid of what [Andrew] will do" if he were given notice of her application; (2) a June 13, 2016 request for spousal support and attorney fees, which alleged Andrew "is verbally, mentally aggressive," "hateful and mean," and "increasingly abusive and angry that [she] cannot engage in the activities [she] did before [a motor vehicle] accident"; (3) an October 25, 2016 responsive declaration to Andrew's request for order, which alleged Andrew "perpetrated" "severe abuse and domestic violence"; and (4) a July 6, 2017 trial brief, which alleged the marriage "was fraught with physical, mental and emotional abuse" and, on one occasion, Andrew drunkenly "proceeded to destroy and vandalize the home, cars, computers, [and] closets, and threatened [her] life." These papers do not constitute documented evidence of a history of domestic violence. (Cf. In re Marriage of Schu (2016) 6 Cal.App.5th 470, 473 [plea of no contest to unlawful sexual conduct with a minor].) At best, they are documented allegations, i.e., "a party's formal statement[s] of ... factual matter[s] as being true or provable, without [their] having yet been proved." (Black's Law Dict. (9th ed. 2009) p. 86, col. 2.) III. ATTORNEY FEES
Family Code section 2030, subdivision (a)(1) "provides for the making of an order in a dissolution proceeding that one party pay for the other party's attorney fees and costs pendente lite." (In re Marriage of Sharpies (2014) 223 Cal.App.4th 160, 164.) "[T]o request attorney's fees and costs, a party must complete, file and serve the following documents: [¶] (A) Request for Order (form FL-300); [¶] (B) Request for Attorney's Fees and Costs Attachment (form FL-319) or a comparable declaration that addresses the factors covered in form FL-319; [¶] (C) A current Income and Expense Declaration (form FL-150); [¶] (D) A personal declaration in support of the request for attorney's fees and costs, either using Supporting Declaration for Attorney's Fees and Costs Attachment (form FL-158) or a comparable declaration that addresses the factors covered in form FL-158; and [¶] (E) Any other papers relevant to the relief requested." (Cal. Rules of Court, rule 5.427(b)(1).)
Based on the adopted statement of decision, the court did not award attorney fees to Vickie because she "is not represented by counsel" and "Attorney fees were not requested in regards to [her] previous attorney." The record shows Vickie had been represented by three different attorneys before she ended up representing herself. When she filed her June 9, 2016 income and expense declaration, she was represented by Tracey Toledo. On June 9 and 13, 2016, in accordance with rule 5.427(b)(1) of the California Rules of Court, Vickie filed forms FL-300, FL-319, FL-150, and FL-158, which included requests for attorney's fees and costs. Sometime thereafter, she was represented by Vita Palazuelos, although she "never signed the substitution of attorney...." Under an August 26, 2016 substitution of attorney without court order, Tammie Cummins replaced Palazuelos. Under a May 22, 2017 substitution of attorney without court order, Vickie herself replaced Cummins.
"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 ... 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)(2).) "Attorney's fees and costs ... may be awarded for legal services rendered or costs incurred before or after the commencement of the proceeding." (Id., subd. (b).)
"[T]rial courts enjoy broad discretion in awarding attorneys' fees in marital proceedings. [Citation.] The exercise of that discretion is guided by [Family Code section 2032].... [T]he statute permits an award of attorneys' fees and costs where 'just and reasonable under the relative circumstances of the respective parties.' [Citation.]" (Cheriton, supra, 92 Cal.App.4th at p. 314, fn. omitted; see Fam. Code, § 2032, subd. (a).) "In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in [Family Code] [s]ection 4320." (Fam. Code, § 2032, subd. (b); see ante, at pp. 5-6.) "'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.' [Citation.]" (Cheriton, supra, at p. 315.)
Here, though Vickie eventually proceeded in pro. per., legal services had been rendered on her behalf and a request for attorney fees had been made. Per Family Code sections 2030 and 2032, the court should have determined whether an attorney fee award would have been appropriate under the circumstances of the case. Its failure to do so constitutes an abuse of discretion. (See In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1311-1316.)
In his brief, Andrew insists Vickie had sufficient funds to retain legal representation. "That a party who is requesting fees and costs has the resources is not, by itself, a bar to an award of part or all of such party's fees. Financial resources are only one factor to consider." (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 975.) --------
DISPOSITION
The portion of the judgment of dissolution denying Vickie's request for attorney fees is reversed. The matter is remanded to the trial court with directions to examine the request pursuant to Family Code sections 2030 and 2032. (See In re Marriage of Tharp, supra, 188 Cal.App.4th at pp. 1316, 1328.) In all other respects, the judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
/s/_________
FRANSON, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.