Opinion
2d Civil No. B224864
09-22-2011
CHRIS C. CARPENTER, Plaintiff and Appellant, v. LAURA K. CARPENTER, Defendant and Respondent.
Chris C. Carpenter, in pro. per. for Plaintiff and Appellant. Hosford & Hosford, Inc., and Valerie Ryall Hosford for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. SD035136)
(Ventura County)
This appeal is brought by petitioner husband from a judgment on reserved issues in a marital dissolution action. Appellant contends that his due process rights and right to a fair trial were violated because the trial court denied his request for a trial continuance and his right to legal counsel, awarded excessive child support, was biased, and violated procedures governing mandatory settlement conferences.
Respondent seeks sanctions from appellant who, during the course of these proceedings, violated a restraining order governing the community's 401(k) account, wrongly withheld the children in violation of court order, was adjudicated guilty of three counts of contempt, and prolonged the proceedings over three years for dissolution of a marriage of two- and one-half years duration, even though there was but one asset and child custody issues were resolved before trial on the reserved issues. Appellant's briefs on appeal are bereft of authority, fail to cite to the record, and, to the extent authority is cited, such authority is relevant to criminal proceedings. In sum: frivolous. Accordingly, we affirm and grant the motion for sanctions.
FACTS AND PROCEDURAL HISTORY
Appellant Chris C. Carpenter and Respondent Laura K. Carpenter were married in August 2003. Chris filed a petition for dissolution of marriage on December 18, 2006. The parties have two children. On March 13, 2007, the parties stipulated to joint legal and physical custody of the children. On May 7, 2008, the court ordered Chris to pay child support in the amount of $622 per month. On June 26, 2008, a status only judgment was entered on the parties' stipulation. Among other things, the judgment prohibited Chris from withdrawing funds from his 401(k) account.
We refer to the parties by their first names for clarity. No disrespect is intended.
The court also ordered spousal support, but Laura subsequently agreed to waive spousal support . (Mot. to Aug. 109-110.)
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The parties agreed to mediation on two occasions, and several orders involving custody and visitation were entered based on the mediator's recommendations. On March 11, 2008, the parties stipulated to the appointment of Dr. Gary Rick to perform a child custody evaluation. The court ordered Chris to pay for the evaluation but reserved jurisdiction to reallocate the cost at a future time.
On July 1, 2008, Laura received a temporary order of sole legal and physical custody and a retrieval order because Chris failed to return the children after a scheduled visit. The court also ordered Chris to pay $2,600 in attorney fees and costs.
On October 14, 2008, the court adopted the child custody evaluation prepared by Dr. Rick, which was critical of Chris's parenting skills. Among other things, temporary orders were issued permitting Laura to relocate to Orange County with the children, continued Laura as sole legal and physical custodian of the children, and authorized "clinically supervised" visitation for Chris. As recommended by Dr. Rick, Chris's visits with the children were monitored by a family therapist. The report subsequently filed by the therapist stated that Chris's parenting skills had improved in all areas criticized by Dr. Rick.
On November 12, 2008, Chris filed a motion for modification of child support. On November 19, 2008, a contempt hearing was held concerning Chris's failure to return the children after a scheduled visit and his failure to comply with the court's order prohibiting him from withdrawing funds from the 401(k) account. The court found Chris guilty of three counts of contempt. On December 1, 2008, the court placed Chris on probation for two years and ordered him to pay Laura's counsel $3,480 in attorney fees.
Both parties subsequently filed motions to modify child support. On May 5, 2009, the court ordered Chris to pay child support in the amount of $731 per month. Chris filed a motion to modify child support on June 16, 2009. On September 21, 2009, a final mandatory settlement conference was held and trial was scheduled for March 4 and 5, 2010. At that time, the court refused Chris's request for modification of child support because it had lost jurisdiction of the issue when the Department of Support Services became involved.
On February 5, 2010, Chris made a request to continue the trial due to financial constraints, unavailability of an expert witness, and lack of legal representation. His declaration was devoid of facts supporting his contentions. The court denied the request, and trial was held on March 4, 2010. A judgment was entered on April 7, 2010, ordering: (1) equal division of the 401(k) account in the gross amount of $13,516.38, Chris to reimburse Laura in the amount of $500 per month commencing April 1, 2010, and continuing each month thereafter until paid in full; (2) attorney fees previously awarded to Laura in the amount of $3,480 as a contempt sanction for Chris's withdrawal of all the money in the 401(k) account in violation of a court order to be paid in full on or before December 11, 2010; (3) reimbursement to Laura of $1,600 representing one-half of a cost of a custody evaluation, payable at the rate of $200 per month commencing April 1, 2010.
By operation of law, all the payments would bear interest if not timely paid. The judgment also notes that the custody and visitation order and the child support order in the sum of $731 per month entered on May 9, 2009, were to remain in effect until further order of the court.
DISCUSSION
Claims Regarding Trial Continuance and Legal Representation
Chris asserts his due process rights and right to a fair trial were denied because the trial court refused his March 4, 2010, oral motion to continue the trial one day because he had purportedly hired a new attorney who was unavailable on March 4.
Continuances are granted only on an affirmative showing of good cause. Reviewing courts must uphold a trial court's choice not to grant a continuance unless the court has abused its discretion. (In re Marriage of Falcone and Fyke (2008) 164 Cal.App.4th 814, 823.) In considering whether a continuance should be granted, the trial court must exercise its discretion with due regard to all the interests involved. If the ground advanced for continuance is the unavailability of a party's attorney, the reasons for that unavailability must be carefully considered. (Arm v. State Bar of California (1990) 50 Cal.3d 763, 774.)
In In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1168-1169, the court stated: "Generally speaking, the courts have repudiated the view that the trial court should exercise great liberality in granting continuances. As stated by the court in County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, '[C]onsidering the need for efficient use of judicial resources, we conclude that there is no policy in this state of indulgence or liberality in favor of parties seeking continuances. Rather, such parties must make a proper showing of good cause, in accordance with . . . the Rules of Court . . . and . . . case law. And, if the law must have some kind of litany or Gregorian chant in this field, we respectfully suggest that "continuances be granted sparingly, nay grudgingly, and then only on a proper and adequate showing of good cause."' (Id., at p. 781, fn. omitted.)" Only if the refusal of a continuance has the practical effect of denying the applicant a fair hearing does reversible error occur. (Id. at p. 1169.)
The record does not contain any evidence that denial of the continuance deprived Chris of a fair trial or legal representation. The record establishes that Chris had four different attorneys representing him during the proceedings, that the court granted his requests for continuances many times because of new legal representation, and trial was scheduled six months in advance. The record also shows the trial court denied Chris's request to continue the trial a month earlier on the same grounds. At that time, the court said: "You have a month to find an attorney. That's plenty of time." The record supports the trial court's sound exercise of discretion in denying the trial continuance.
Award of 401(k) Funds, Attorney Fees, Child Support and Child Evaluation Costs
Awards of child support and attorney fees and other costs are both reviewed for abuse of discretion. (See, e.g., In re Marriage of Aylesworth (1980) 106 Cal.App.3d 869, 876 [child support]; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314 [attorney fees].)
Chris contends he cannot afford to pay the amounts ordered in the judgment for child support, reimbursement of the illegally withdrawn 401(k) funds, attorney fees, and his share of the cost of the custody evaluation. He requests that the court relieve him of the burden of paying those costs under the court's authority to consider a party's ability to pay.
The major difficulty with these contentions is that the awards were made in previous orders that were not timely challenged. On November 19, 2008, Chris was found guilty of contempt for wrongfully withdrawing the 401(k) funds. At that time, Chris was ordered to pay attorney fees and to reimburse Laura for one-half the gross amount of the 401(k). (Fam. Code, § 271; see In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1100 ["section 271 'advances the policy of the law "to promote settlement and to encourage cooperation which will reduce the cost of litigation." . . . Family law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys' fees and costs as a sanction. . . .'"].) Chris did not appeal the contempt order or the attorney fee award.
Child support in the amount of $731 per month was awarded previously, on May 9, 2009. Although Chris made several requests for modification, they were denied by the court and never appealed. (See In re Marriage of Archuleta (2002) 101 Cal.App.4th 1415, 1418 [time to appeal order modifying child support runs from time of entry of formal order].) No further request for modification was before the court at the time of trial.
Chris stipulated to the child evaluation and was ordered to pay for it. (Cal. Rules of Court, rule 5.220 (d)(1)(D).) Chris did not appeal that ruling. (See In re Marriage of Laurenti (2007) 154 Cal.App.4th 395 [appeal from order to pay cost of child evaluation].)
The order reimbursing Laura for her share of the wrongfully withdrawn 401(k) funds was a matter of dividing community property and not subject to an ability to pay standard. (See, e.g., In re Marriage of Williams (1985) 163 Cal.App.3d 753, 762 [retirement benefits from employment during marriage are community property, subject to division upon dissolution of marriage].) In other words, having wrongfully appropriated Laura's share of the account, he protests that the order to pay her what was not his to take is a financial burden we should consider. We decline the invitation.
The trial court correctly noted: "If I were ordering something new or some attorney fee[] award or some other type of award, the ability to pay is a factor. However, what we're not doing is ordering any new fee awards. We're just settling a payment plan on already ordered items, the first being the $3,480 in attorney fees for contempt, the $1,600 for the evaluation that you stipulated to, and the $ 6,758 [one-half of the 401(k) funds] which has been awarded today, but which you knew, ultimately, that you would have to pay back at some point because you have been in proceedings relating to it. [¶] So the analysis of ability to pay, I don't believe, on any of the issues here, applies." The trial court correctly determined that consideration of ability to pay was not relevant under the circumstances.
Claim of Judicial Bias
Chris asserts he was denied a fair trial because the judge was biased against him. A claim of judicial bias is reviewed for abuse of discretion. (People v. Farley (2009) 46 Cal.4th 1053, 1110].) The appellant bears the burden of establishing facts supporting a claim of judicial bias and showing prejudice. (Betz v. Pankow (1993) 16 Cal.App.4th 919, 926.)
The claim is without merit for at least two reasons. First, the claim is forfeited by Chris's failure to assert it below. (People v. Chatman (2006) 38 Cal.4th 344, 362-367; People v. Samuels (2005) 36 Cal.4th 96, 114; see also, Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1218 [party did not preserve claim of judicial bias for review because he did not object to the alleged improprieties and never asked the judge to correct remarks or recuse himself].)
Second, the only evidence Chris submitted in support of this claim is the trial court's refusal to grant his untimely request for a trial continuance. As discussed above, the trial court reasonably refused to grant the request under the circumstances of this case. (See People v. Guerra (2006) 37 Cal.4th 1067, 1112, overruled on a different ground in People v. Rundle (2008) 43 Cal.4th 76, 151 ["a trial court's numerous rulings against a party-even when erroneous-do not establish a charge of judicial bias, especially when they are subject to review"].)
Chris has failed to demonstrate any judicial bias let alone any misconduct that deprived him of a fair trial.
Mandatory Settlement Conference Procedures
Chris contends that a mandatory settlement conference scheduled for September 2009 did not take place or, if it did, it was improper because Laura did not attend.
This contention is without merit for several reasons. First, the record reveals that a mandatory settlement conference was held on September 9, 2009. Chris fails to show that Laura's counsel did not have authority to settle or show how Laura's absence from that conference prejudiced him in any manner.
Even assuming that no conference took place, there is no rule or statute that requires the court to conduct a mandatory settlement conference. Trial courts have the inherent power to control proceedings before them (Code Civ. Proc., § 128, subd. (a)(3)) and to adopt suitable methods of practice (id. § 187) to the extent its orders do not conflict with any statute and are not inconsistent with law. (Jeld-Wen, Inc. v. Superior Court (2007) 146 Cal.App.4th 536, 542.) California Rules of Court, rule 3.1380, permits but does not require the trial court, on its own motion or at the request of a party, to set one or more mandatory settlement conferences. Given the history of the proceedings and the multiple mediation sessions, Chris cannot say he was unaware of Laura's position on the issues remaining for trial or suffered prejudice in any other way from the alleged failure to hold a mandatory settlement conference.
Request for Sanctions on Appeal
Laura filed a motion requesting sanctions on appeal on the grounds that the appeal is frivolous and taken solely for the purpose of harassment or delay. (Code Civ. Proc. § 907; Cal. Rules of Court, rule 8.276.) The Supreme Court has defined a frivolous appeal as one that "is prosecuted for an improper motive-to harass the respondent or delay the effect of an adverse judgment-or when it indisputably has no merit-when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) The court stressed that an appeal is not frivolous simply because it is without merit. (Ibid.)Sanctions are intended to prevent "indefensible conduct" but not to deter the "vigorous assertion of a [party's] rights. [Citation.] (Id. at p. 648; see also Leek v. Cooper (2011) 194 Cal.App.4th 399, 421-422 [same].)
As we stated above, Chris's conduct during the trial court proceedings was obdurate. He sought continuances and filed meritless motions for no purpose but harassment and delay. His briefs on appeal failed to cite relevant authority or provide accurate citations to the record. This is a case where any reasonable lawyer would agree that the appeal is totally and completely without merit. (Millennium Corporate Solutions v. Pekinpaugh (2005) 126 Cal.App.4th 352, 360; see also In re Marriage of Flaherty, supra, 31 Cal.3d at p. 649 [the total lack of merit of an appeal is viewed as evidence that appellant must have intended it only for delay].) We grant Laura's request to award attorney fees and costs as sanctions against Chris for this frivolous appeal. (Code of Civ. Proc., § 907.)
The order is affirmed. We grant Laura's request to award attorney fees of $7,500 and costs of $1,109 as sanctions for this frivolous appeal. (Code of Civ. Proc., § 907.) In addition to those sanctions, costs on appeal are awarded to Laura.
NOT TO BE PUBLISHED.
PERREN, J. We concur:
YEGAN, Acting P.J.
COFFEE, J.
Roger L. Lund, Judge
Superior Court County of Ventura
Chris C. Carpenter, in pro. per. for Plaintiff and Appellant.
Hosford & Hosford, Inc., and Valerie Ryall Hosford for Defendant and Respondent.