Opinion
E065652
11-27-2017
In re the Marriage of JULIE MAE and PATRICK CAMPBELL. JULIE MAE CAMPBELL, Appellant, v. PATRICK CAMPBELL, Respondent.
Julie Mae Campbell, in pro. per., for Appellant. Thompson & Thompson, Byron C. Thompson and Jeffrey S. Valladolid for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RID239697) OPINION APPEAL from the Superior Court of Riverside County. Joan F. Burgess, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Julie Mae Campbell, in pro. per., for Appellant. Thompson & Thompson, Byron C. Thompson and Jeffrey S. Valladolid for Respondent.
In 2010 appellant Julie Mae Campbell (Wife) petitioned for dissolution of marriage from respondent Patrick Campbell (Husband). In 2016, the dissolution proceedings were still pending. Wife requested (1) a modification of the temporary spousal support order (Fam. Code, § 3651, subd. (a)); (2) an award of attorney's fees to pay her former attorney (Fam. Code, § 2030, subd. (a)); and (3) an award of attorney's fees for a retainer to hire a new attorney (Fam. Code, § 2030, subd. (a)).
The family court denied, without prejudice, Wife's request to modify the temporary spousal support order. The family court reserved ruling on Wife's request for attorney's fees owed to her former attorney. As to Wife's request for an award of attorney's fees to pay a retainer to a new attorney, the court awarded Wife $10,000. Wife raises seven issues asserting the family court erred. We affirm the order.
FACTUAL AND PROCEDURAL HISTORY
A. BACKGROUND
Wife and Husband married in January 1993. They separated in October 2010. Wife petitioned for dissolution of the marriage that same month. Husband had three sources of income: (1) a monthly salary from BMW of Riverside; (2) an annual bonus from BMW of Riverside; and (3) payments from the Millennium Group, which owned real estate, including the property where BMW of Riverside was located. Husband's monthly income was $54,575. Wife worked as a realtor, and had a monthly income of $1,150.
In November 2010, the family court ordered Husband to pay spousal support in the amount of $10,897 per month. In September 2011, the family court ordered Wife to submit to a vocational evaluation. One year later, in September 2012, the family court ordered Wife to submit to a vocational evaluation by November 26, 2012, and to fully cooperate with the evaluator.
In December 2013, for approximately $10,000,000, Husband sold his interest in the Millennium Group and his stock in the David A. Campbell Corporation, which does business as BMW of Riverside (hereinafter, dealership sale). In March 2014, per a stipulation by the parties, the family court ordered 50 percent of the dealership sale proceeds be frozen, and that once the funds were FDIC insured a $150,000 distribution of the sale proceeds would be made to Husband and Wife. Husband asserted he had paid $4,100,000 in taxes on the dealership sale proceeds.
In July 2014, per a stipulation by Husband and Wife, the family court (1) reduced the spousal support to zero; (2) ordered Husband and Wife to each receive a $150,000 distribution from the proceeds of the dealership sale; and (3) ordered Husband to provide Wife with the 2013 tax returns for his personal and business taxes, within five days of his receipt of the returns. In March 2015, per a stipulation by the parties, the family court ordered Husband and Wife to each receive another $150,000 distribution from the dealership sale proceeds. The $150,000 was designated for living expenses. In August 2015, per a stipulation by the parties, the family court ordered Husband and Wife each receive a distribution of $50,000 from the dealership sale proceeds.
B. REQUEST
In December 2015, Wife requested the family court modify the amount of temporary spousal support. Wife asserted she had stipulated to spousal support being reduced to zero because she had believed the divorce proceedings would be quickly resolved; however, Husband failed to provide his 2013 tax returns. Wife explained that she had no income. Wife had been taking college classes since January 2014 in order to obtain her bachelor's degree and then attend law school.
Wife asserted that until she completed law school, Husband should pay spousal support. Wife asserted her monthly expenses amounted to $15,700. Wife asserted that when she and Husband were married, their monthly expenses amounted to $70,000. Wife requested $14,000 per month in spousal support. Wife explained that she was seeking 20 percent of the marital standard of living. Wife also requested a $63,000 lump sum in spousal support for educational expenses.
Additionally, Wife sought a pendente lite attorney fee award of $548,000. Wife sought $365,000 for future legal fees, $158,000 for fees owed to her former attorney, and $25,000 for a forensic accountant. Wife argued the divorce case had been litigated for five years, she had not previously received an attorney fee award, and she was now required to choose between paying her personal expenses or paying her former attorney.
C. OPPOSITION
Husband opposed Wife's request for a modification of the spousal support order. Husband argued the court should not award spousal support to Wife until Wife completed the vocational evaluation. Husband asserted that until Wife completed the vocational evaluation, the family court lacked evidence of Wife's ability to earn an income. Further, Husband asserted spousal support should be denied because the dealership sale proceeds were his separate property, and he should not be required to pay spousal support from his separate property.
In regard to attorney's fees, Husband argued that Wife had received $500,000 in distributions from the dealership sale proceeds, and could pay her attorneys from that sum. Additionally, Husband asserted Wife had caused unnecessary attorney's fees to be billed.
D. REPLY
Wife replied to Husband's opposition. Wife asserted the dealership sale proceeds were community property. Additionally, Wife asserted the distributions from the dealership sale proceeds were for living expenses—not to pay attorney's fees.
E. HEARING
The family court held a hearing on Wife's requests. At the hearing, Husband argued (1) he was billed $60,000 by his attorney, so Wife was overcharged if she was billed over $300,000 in the case; (2) Wife came to court with unclean hands because she did not complete the vocational evaluation; (3) Wife had received $500,000 in less than one year; and (4) there were no changed circumstances.
According to Wife, she paid her former attorney $200,526.90, and still owed approximately $158,000.
Wife asserted her attorney's fees were high due to discovery violations by Husband. Wife explained she needed an attorney fee award so she could pay a retainer to a new attorney, as well as her prior bills. The court said it did not believe $350,000 in attorney's fees was reasonable, but Wife could try to prove the reasonableness of the amount at a later date.
Wife asserted there were changed circumstances, in that Husband had lied to the court about the amount of taxes paid on the dealership sale proceeds. The court asked Wife why she had not completed the vocational evaluation. Wife asserted Husband had agreed that Wife did not need to submit to the vocational evaluation.
The family court denied, without prejudice, Wife's request for a modification of the temporary spousal support order. The court explained that the issue would be better addressed when the ultimate issues in the case were being decided, e.g., whether the dealership sale proceeds are separate property or community property. The court stated that one of the parties needed to file a request for a settlement conference and trial. The court awarded Wife $10,000 in attorney's fees to be paid as a retainer to a new lawyer. The court reserved its ruling on whether the $350,000 in attorney's fees was reasonable.
Riverside County Superior Court has a local form entitled "Request for Settlement Conference and Trial" (Form RI-FL008). (Riverside County Superior Court Rule 5150.)
DISCUSSION
A. SUBSTANTIAL EVIDENCE
In regard to modifying the temporary spousal support order, Wife contends "substantial evidence contradicts the trial court's findings." (All caps. omitted.)
During the hearing, the family court said, "What I think we need to be doing is moving this towards the ultimate resolution of this case. We've spent all of this money in attorney's fees, and we do not have—we're not even close to getting a division of property." The court asked, "Isn't the dispute over whether—whether or not it's separate or community property? That's it?"
As the hearing concluded, the court said, "I'm going to deny the request for a change in spousal support. And I'm basically—I think there's an issue of spousal support. I think it needs to be taken up when someone files a request for settlement conference and trial and we're looking at the ultimate issues here. I'm not seeing a reason today to change that." The court explained there was an issue as to whether the dealership sale proceeds were community property or Husband's separate property. The family court denied, without prejudice, Wife's spousal support request. The court said to Wife, "Go file your request for settlement conference and trial, and we can move this the right way."
The family court did not make any findings concerning spousal support. The family court concluded a different procedure needed to be used to address the spousal support issue because it concerned an ultimate issue in the case. The family court explained that a better procedure for addressing the spousal support issue would be a settlement conference and/or trial.
In other words, the court concluded that if it were going to take evidence about whether the dealership sale proceeds were community property or separate property, then it should do so as part of the trial concerning the ultimate division of property, rather than for a temporary support order. Because the family court did not make any findings, we will not further address Wife's substantial evidence contention.
B. VOCATIONAL EVALUATION
Wife contends the family court erred because it denied her temporary spousal support request as a means of sanctioning Wife for not completing the vocational evaluation. Contrary to Wife's position, when the family court denied Wife's request, it did so because it concluded the issue of spousal support would be better addressed when discussing the ultimate property division in the case, e.g., whether the dealership sale proceeds are community property or separate property. Because the family court did not deny spousal support due to Wife failing to complete a vocational evaluation, we will not further address Wife's contention concerning the vocational evaluation.
C. STATUTE
Wife contends there is no statutory support for denying spousal support on the basis of Wife failing to submit to a vocational evaluation. The family court denied Wife's request to modify the spousal support order because the court concluded a different procedural vehicle needed to be used to decide the matter—a settlement conference and/or trial, wherein the ultimate issues of the case were decided. Because the family court did not deny Wife's request due to Wife's failure to submit to a vocational evaluation, we will not further address this issue.
D. JURISDICTION
Wife contends the family court lacked jurisdiction to sanction Wife because Husband did not file a motion for sanctions. As explained ante, the family court denied Wife's request for spousal support because the court concluded a better procedural path would be to address the issue during a settlement conference and/or trial, when resolving the ultimate property division issues in the case. The family court did not issue sanctions and did not deny temporary spousal support as a means of sanctioning Wife. Accordingly, we will not further address the sanctions issue.
E. STATUTE OF LIMITATIONS
Wife contends the family court's order finding her in contempt for failing to comply with the vocational evaluation is time-barred. Contrary to Wife's position, the family court did not hold Wife in contempt, and the court did not deny temporary spousal support as a means of holding Wife in contempt. The family court concluded the issue of spousal support would be better addressed at settlement conference and/or trial. The court denied, without prejudice, Wife's request for a modification of spousal support. Accordingly, because the family court did not hold Wife in contempt, we will not further address Wife's contempt contention.
F. PUNISHMENT
Wife contends the family court's denial of attorney's fees was an improper punishment.
The family court stated it reserved its ruling on whether the $350,000 in attorney's fees was reasonable. For example, the family court said, "I'm probably going to be reserving on this" during the discussion of attorney's fees for Wife's former attorney. The court continued, "To the extent you are asking for the attorney's fees to pay that up, it—I just don't see that happening right now. That would be—that's already owed. That's something I can reserve and at some point we can take another look." The court addressed, as a separate issue, the retainer needed for a new attorney, and the court decided that separate retainer issue by awarding Wife $10,000.
Because the family court did not deny Wife an award of attorney's fees, we will not further address the issue concerning a denial of attorney's fees as punishment.
G. COMMISSIONER
Wife contends she did not stipulate to a commissioner hearing the matter. Wife relies on a local rule to support her contention. The rule provides, in relevant part, "The Commissioner hears matters as a Temporary Judge pursuant to a stipulation between the parties. The stipulation is implied . . . when attorneys proceed without objection. Parties in contempt hearings and self-represented parties will be asked on the record if they so stipulate." (Former Super. Ct. Riverside County, Local Rules, rule 5145(A)(2) [eff. Jan. 2016].) At the February 1, 2016, hearing, Wife was self-represented. Therefore, the record should reflect Wife's stipulation for Commissioner Burgess to hear the matter.
The family court's order is presumed correct. It is Wife's burden to affirmatively demonstrate an error. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1422.) "When a clerk's transcript conflicts with a reporter's transcript, the question of which of the two controls is determined by consideration of the circumstances of each case. [Citation.] Absent a conflict between the transcripts, the clerk's transcript can establish a valid waiver where the reporter's transcript is silent on the matter." (Id. at pp. 1422-1423.)
The clerk's minute order reflects that on February 1—the date of the hearing—at 8:30 a.m., the parties "[s]tipulat[ed] to appoint Court Commissioner [Burgess] to hear [the] matter as Judge Pro Tem." The minute order reflects that at 10:40 a.m. the parties argued the spousal support and attorney's fee issues.
The reporter's transcript for February 1 does not reflect a stipulation for Commissioner Burgess to hear the matter as Judge Pro Tem. The reporter's transcript for February 1 begins with the parties arguing the spousal support and attorney's fees issues. During the proceedings, when Wife asked the court for more time to argue her point, the court responded, "Do you see how many people are sitting here? You have about two more minutes."
Looking at this record, it can reasonably be inferred that at the start of the calendar, at 8:30 a.m., all the self-represented parties on calendar were asked if they would stipulate to Commissioner Burgess hearing their respective cases. If a self-represented party refused to stipulate, then the parties could leave, without waiting for hours for the court to call their case and then enter a refusal to stipulate. As a result of this procedure, the stipulation entered by Wife at 8:30 a.m. was not included in the reporter's transcript when the court called the matter at 10:40 a.m.
In other words, this is not a situation in which the reporter's transcript and clerk's transcript conflict—this is a situation in which the reporter's transcript is incomplete. Looking at the clerk's transcript, it appears Wife stipulated to Commissioner Burgess hearing the matter as Judge Pro Tem when the morning calendar began at 8:30 a.m. on February 1. As a result, Wife will need to do more than point to a gap in the reporter's transcript to establish error. (See People v. Malabag, supra, 51 Cal.App.4th at p. 1423 [incomplete reporter's transcript did not affirmatively establish error].) In sum, we conclude no error has been demonstrated.
Husband requests this court take judicial notice of documents filed at this court in the case of Campbell v. Superior Court (E065712). We grant the request as required by law. (Evid. Code, §§ 452, subd. (d), 453.) --------
DISPOSITION
The order is affirmed. Husband is awarded his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: RAMIREZ
P. J. SLOUGH
J.