Opinion
NOT TO BE PUBLISHED
Super. Ct. No. DS19270
APPEAL from an order of the Superior Court of San Diego County, Susan P. Finlay, Judge. Affirmed.
McINTYRE, J.
In this family law case, the father I. B. unsuccessfully moved for postjudgment modification of the custody plan and visitation with his ten-year-old son. The mother, S. T., sought attorneys fees, costs and sanctions. The court modified an earlier finding by eliminating what it and parties refer to as the "first right of refusal." It also awarded S. T. $3,500 in attorney fees and $1,500 in sanctions. Appearing in propria persona, I. B. appeals. S. T. did not file a respondent's brief. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The subject of this appeal is an October 1, 2008, order denying I. B.'s motion. I. B. presents us with a barebones record on appeal. The clerk's transcript includes the minute orders from the hearings on July 21, 2008 and August 6, 2008, and the findings and order after the August 6, 2008 hearing which were filed on October 1, 2008. The clerk's transcript also includes documents filed in the superior court record after the October 1, 2008, order which is the subject of this appeal. We granted I. B.'s motion to augment the record with two income and expense declarations, only one of which was filed before the order challenged here. Not included in the clerk's transcript are the parties' respective motions for modification of custody and visitation, and for attorneys fees, costs and sanctions, along with supporting declarations and other evidence relevant to the issues raised.
The reporter's transcript of the August 6, 2008 hearing includes the points argued by counsel and the court's findings. I. B. challenges the following three parts of the trial court's findings and order:
1. The court eliminated the following language from an earlier report or findings: "Should either parent require childcare for three hours while the child is in his/her physical care, the other parent shall have first option to provide child care." The court reasoned that this procedure was unnecessary if the parties were getting along but "create[d] terrible problems" if the parties were not getting along "which appeared to be the case here...."
2. The court awarded attorneys fees of $3,500 pursuant to Family Code section 2030, payable at the rate of $100 per month. (Undesignated statutory references are to the Family Code.) The court based the award on the income and expense declarations filed by the parties in preparation for the hearing. I. B.'s July 23, 2008 income and expense declaration indicated that in addition to state disability in the sum of $1,984 per month, he also received $555 in public assistance. I. B. also listed under "self-employment" a three-month-old debt collection business called "Trinity Financial Services." However, I. B. inserted a further explanation of his change in income in the last 12 months, contradicting other statements in the income and expense declaration: "I recently went on state disability and I am preparing to start up a debt collection business but I cannot begin until my disability is cleared. Therefore, I am only receiving state disability at this time." The court observed at the hearing: "I think it's up to [I. B.] to establish something. He goes around and tells people he's got his own business. He doesn't file anything to support his position.... I'm assuming that when he said he had his own business, he's got it.... Why wouldn't I believe [$2,500 is] about what he makes?" However, the court reserved jurisdiction to reconsider the attorney fee award in the event either party came forward with documentation regarding I. B.'s continuing disability and/or the status of his new business.
3. The court awarded S. T. $1,500 in sanctions pursuant to section 271 "for the filing of [a] frivolous Summary Judgment Motion." It also found that I. B.'s motion to modify the parenting plan "contained many unreasonable requests which give rise to sanctions..., such as reduction in the child care time which would trigger the right of first refusal, reduction in the 'grace period,' request that the child not be permitted to eat in any fast food restaurant, request that the Court order Respondent to ensure that the child take his vitamin, request for Court order that [S. T.] follow the vehicle code, to list a few." The court observed that these things "just didn't rise to the level of judicial intervention in this type of case." The sanctions were payable at the rate of $100 after the attorney fees were paid.
DISCUSSION
I. Introduction
The trial court informed I. B. at the August 6, 2008 hearing, in the presence of his newly-retained lawyer, that "if [I. B.] is going to act as his own lawyer, then he better be really careful because he's held to the same standard." The court considered the motions filed by I. B. in propria persona in that light.
We are required to do the same. A party who represents himself in propria persona "'is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys.' [Citation.]" (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.) Like a licensed attorney, I. B. is required to follow the rules of appellate procedure.
"A fundamental principle of appellate practice is that an appellant '"must affirmatively show error by an adequate record.... Error is never presumed.... 'A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent....' (Orig. italics.)" [Citation.]' [Citations.]" (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 (Null).) Thus, California Rules of Court, rule 8.204(a)(1)(B) and (C) requires appellants to "support each point by argument and, if possible, by citation of authority" and "[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." Based on these principles and rules, "[w]hen [an] appellant asserts a point but fails to support it with reasoned argument and citations to authority, the court may treat it as waived and pass it without consideration." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2008) ¶ 8:17.1, pp. 8-5 to 8-6.)
II. First Right of Refusal
I. B. argues that the court had no basis to eliminate the parents' first right of refusal "when the parents are getting along...." We read this argument as a challenge to the sufficiency of the evidence to support the court's finding that I. B. and S. T. did not get along.
When a party challenges the sufficiency of the evidence to support a factual finding, "'we are bound by the "elementary, but often overlooked principle of law, that... the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted," to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.' [Citation.]" (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) The appellate court does not evaluate the credibility of witnesses but defers to the trier of fact. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) The testimony of a single witness is sufficient to sustain a factual finding. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.)
Here, I. B. cites only his own argument at the hearing in support of his claim that the court had no basis on which to eliminate the first right of refusal. He cites no evidence to support his claim that he and S. T. were getting along. His argument fails on that basis alone. (Null, supra, 206 Cal.App.3d at p. 1532; Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, 8:17.1, pp. 8-5 to 8-6.)
III. Attorney Fees
I. B. argues that "[t]he amount of the [attorneys fee] award is excessive and not just or reasonable considering the fact that [he] is on long-term state disability, which severely affect[ed] [his] ability to pay any party's attorney's fees, including his own, and the fact that [he] earns about 20% less than [S. T.]." Once again, he cites his own argument at the August 6, 2008 hearing rather than relevant evidence from the record to support his claim on appeal.
Section 2030, subdivision (a)(2) reads in relevant part: "Whether one party shall be ordered to pay attorney's fees and costs for another party, and what amount shall be paid, shall be determined based upon, (A) the respective incomes and needs of the parties, and (B) any factors affecting the parties' respective abilities to pay." The court may award attorney fees "where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties." (§ 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...." (§ 2032, subd. (b).) The trial court has broad discretion in ruling on a motion for attorney's fees. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768.) We will not disturb the court's determination on appeal absent a clear showing of abuse of discretion as long as the record shows that the court actually exercised that discretion in accordance with the statutory requirement. (Id. at p. 769; In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.)
We conclude there was no abuse of discretion in this case. The trial court explained the basis for its award, emphasizing that it took I. B.'s July 23, 2008 income and expense declaration at face value to establish the disparity in income. The court also made clear it would reconsider the attorney fee order if either party came forward with additional documentation regarding the status of I. B.'s business and disability. I. B. offers no case authority to support his suggestion that the needs assessment under section 2032 is affected by the fact S. T.'s fees were purportedly paid by her parents.
IV. Sanctions
Section 271, subdivision (a) authorizes an award of attorneys fees and costs as sanctions based on "the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys.... In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award." An appellate court "will not interfere with the order for sanctions unless the trial court abused its broad discretion in making it." (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 178 (Petropoulos).)
I. B. argues that the court abused its discretion because the $1,500 in sanctions imposed an unreasonable financial burden on him. He maintains that the income and expense declarations filed in July 2008 and December 2008 show that he "does not have, or [is not] reasonably likely to have, any means to pay sanctions under this code."
We begin by noting that the income and expense declaration filed in December 2008 was not part of the superior court record pertaining to the October 1, 2008 order. Documents not before the trial court at the time of the challenged ruling cannot be included in the appellate record and "thus must be disregarded as beyond the scope of appellate review." (Pulver v. Avco Financial Services (1986) 182 Cal.App.3d 622, 632.) Next, we reject I. B.'s suggestion that the court failed to fully consider the financial burden created by the sanctions. In reviewing that question, "we indulge all reasonable inferences to uphold the trial court's order." (Petropoulos, supra, 91 Cal.App.4th at pp. 177-178.) Finally, we note that in exercising its discretion, the court ordered payment of sanctions at the $100 per month rate set for payment of attorneys fees, with the payments for sanctions to begin only after I. B. fully paid the attorneys fees. Thus, the sanctions imposed no greater monthly financial burden than the attorneys fees. Moreover, as we explained, the court left open the possibility that either party could request a financial review at a later date based on updated information regarding I. B.'s business and disability. Based on the foregoing, we conclude there was no abuse of discretion in awarding S. T. $1,500 in sanctions.
DISPOSITION
The order is affirmed. S. T. is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
WE CONCUR: BENKE, Acting P. J., HALLER, J.