Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWD003122, Thomas Hudspeth, Temporary Judge. (Pursuant to Cal. Const., art. VI., § 21.) Affirmed.
Salvatore A. Buono, in pro. per., for Appellant.
Carolyn N. Beggs, in pro. per., for Respondent.
OPINION
HOLLENHORST Acting P. J.
This is Salvatore A. Buono’s (Husband) second appeal in the dissolution of marriage proceedings initiated by him against Carolyn N. Beggs (Wife). In the first appeal (E040402), Husband challenged the trial court’s order awarding the couple’s residence to Wife, setting child support at $454 per month, awarding custody of the minor child to Wife, and limiting Husband’s visitation. Rejecting all of his contentions, we affirmed the trial court’s orders and awarded costs to Wife. (E040402) In this appeal, Husband contends: (1) No “reasonable Justice” could have found Husband capable of paying Wife $25,000 in attorney fees, and (2) the trial court violated Husband’s right to due process by making an “instant ruling” relating to attorney fees under Family Code sections 270 and 2030, which had not been discussed in Wife’s arguments.
Absent an objection, we will take judicial notice of our opinion in In re Marriage of Buono, case No. E040402. (Evid. Code, §§ 452, subd. (d)(1), 455, subd. (a), and 459, subds. (a), (c) & (d).)
I. INTRODUCTION
Husband and Wife married on July 27, 1997, and separated on January 19, 2004. The couple had one child, born in 2003. During the marriage, Wife worked full time for Robinson’s-May department store. Husband wrote a book; otherwise, he was unemployed. On January 20, 2004, Husband initiated a petition for dissolution of marriage. Several months later, on May 19, 2005, the trial court announced its rulings on custody, visitation, and support. Judgment was entered on March 28, 2006. Husband appealed, and we affirmed the judgment.
While the first appeal was pending, on December 14, 2006, Wife filed a motion for attorney fees and costs, “so that [she] can have proper representation, throughout the course of the appeal.” Husband opposed the motion, arguing that his appeal was not frivolous. In support of his opposition, Husband attached a copy of his opening brief. On January 23, 2007, the day of the hearing, Husband filed an Income and Expense Declaration. Following argument, the trial court granted Wife’s motion and ordered Husband to pay the sum of $25,000 to Wife for attorney fees. Husband appeals.
II. AWARD OF ATTORNEY FEES TO WIFE
“During the pendency of a dissolution action, a court may order that one party pay some or all of the other party’s legal fees and costs. [Citation.] ‘“California’s public policy in favor of expeditious and final resolution of marital dissolution actions is best accomplished by providing at the outset of litigation, consistent with the financial circumstances of the parties, a parity between spouses in their ability to obtain effective legal representation.”’ [Citation.] ‘A motion for attorney fees and costs in a dissolution action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citations.] The discretion invoked is that of the trial court, not the reviewing court, and the trial court’s order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made. [Citations.]’ [Citation.]” (In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.)
In this case, Wife asked that she be awarded reasonable attorney fees for defending Husband’s first appeal. Family Code section 2030, subdivision (a)(1), provides: “In a proceeding for dissolution of marriage . . . and in any proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party, . . . to pay to the other party, or to the other party’s attorney, whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.”
“California’s public policy favors providing ‘a parity between spouses in their ability to obtain legal representation.’ [Citation.] . . . ‘The basis for awarding attorney’s fees is that each party must have access to legal representation in order to preserve all of his or her rights.’ [Citation.] ‘To tell a woman who wishes in good faith to appeal a judgment in a divorce action and who is without funds to pay necessary counsel fees that no such fees will be allowed except possibly on an application for a final decree is practically equivalent to denying her the right to appeal unless her attorney is willing to act without compensation or for the mere possibility that some attorney’s fee may be awarded later.’ [Citation.] This is even more true as to protecting a favorable decision of the trial court on appeal.” (In re Marriage of Green (1989) 213 Cal.App.3d 14, 27 [discussing former Civ. Code § 4370, now Fam. Code § 2030], italics omitted.)
On January 23, 2007, the trial court ordered Husband to pay Wife her appellate attorney fees in the amount of $25,000 under Family Code section 2030. Husband challenges this award, claiming that the trial court failed to find that he “has or is reasonably likely to have the ability to pay” such fees. (Fam. Code, § 270 [“[i]f a court orders a party to pay attorney’s fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay”].) Husband also claims that (1) there was no immediate need for attorney fee’s; (2) Wife’s conduct caused the excessive court costs; and (3) the use of counterfeit checks resulted in an incorrect calculation of Husband’s income, which made it impossible for the trial court to make a reasonable determination of Husband’s ability to pay.
Beginning with his ability to pay, Husband points to Wife’s declaration, attached to her order to show cause filed on February 11, 2004, and claims she “testified” that he suffered from mental illnesses, was unable to work outside the home, failed to complete his education, and lived in a mobile home which did not have a proper septic system. He also claims that he was granted fee waivers for court costs and that his income through the divorce was below poverty. He states that he is already in debt to Wife for over $17,000 in child support, that he was unable to pay for his own legal defense, and his disposable income has been greatly reduced by the child support order and other expenses.
Although Husband paints a very bleak picture of his financial situation, the record from the first appeal shows otherwise. In our opinion in Husband’s first appeal, we found substantial evidence to support the trial court’s award of child support. In doing so, we noted: “In February 2005, Wife requested that the trial court base Husband’s child support obligation on his monthly income of $1,936. In support of this figure, Wife submitted bank records showing that Husband had deposited $14,523 in his checking account during the first eight months of 2004. Husband failed to offer any evidence to refute this monthly income figure. On May 9, 2005, the trial court specifically ordered Husband to provide proof of income to the court on May 19; however, Husband failed to do so and failed to appear. Thus, the trial court used the figure of $1,936, applied the formula mandated by Family Code section 4055, and ordered Husband to pay child support in the amount of $394 per month, plus a daycare contribution of $60 per month, for a total amount of $454 per month.” This evidence belies Husband claim of a lack of ability to pay.
Regarding the immediate need for attorney fees, Wife asked for the fees to retain an appellate attorney. Such award is available pursuant to Family Code section 2030, subdivision (a)(1). (In re Marriage of Green, supra, 213 Cal.App.3d at p. 27 [discussing former Civ. Code § 4370, now Fam. Code § 2030].)
Husband faults Wife for the appellate costs, arguing that if she had not deceptively taken his home, he would not have had to file an appeal. Husband’s attempt to place blame on Wife is misplaced. Having failed to provide the court with a full disclosure of his income (or lack thereof) and the source of funds used to purchase his home, the trial court could only act upon the evidence available. Thus, the home, a community asset, was awarded to Wife, while 100 percent of Husband’s book royalties was awarded to Husband. Likewise, Husband cannot complain about any incorrect calculation of his income. As noted in the first appeal, Husband failed to provide the court with accurate evidence of his income despite repeated requests to do so by both Wife and the court.
III. RIGHT TO DUE PROCESS RE: AWARD OF ATTORNEY FEES
Finally, Husband claims that his right to due process was violated when he was denied an opportunity to present arguments as to his financial capabilities. According to Husband, Wife’s initial request for attorney fees was based on the “grounds that the Primary Appeal [E040402] was frivolous.” Husband contends that his defense was thus “limited to a defense of his Right to Appeal.” Thus, he argues that he was “denied the opportunity to express any arguments as to the defense of Attorney’s Fees upon any other grounds.” We disagree.
While the motion for attorney fees did not specifically identify the applicable Family Code sections, we note that Wife’s declaration clearly indicated the reasons why she was requesting the fees. Wife stated: “Pursuant to my understanding, and direction of my attorneys, I bring this motion for the court to award to me attorney’s fees respecting this appeal. [¶] This appeal is going to cost me a substantial amount of money. [Husband] does not follow court orders, nor has he followed them in the past. [¶] I believe this appeal to be frivolous at best. [¶] It is my understanding that the court can award to me attorney’s fees, so that I can have proper representation, throughout the course of the appeal.” (Emphasis added.)
In addition to making a reference to Wife’s belief that the appeal is frivolous, she also expressed her understanding that she could be awarded attorney fees so that she could be represented. While there is no direct cite to Family Code section 2030, the language speaks for itself. While Husband claims that he did not have an opportunity to present any argument as to his financial capabilities, the record of the dissolution proceedings was before the trial court. The fact that Husband failed to provide sufficient evidence of his financial status is his fault. During the hearing on January 23, 2007, Husband provided the court with a copy of his income and expense declaration, which he had just filed that morning. The following discussion then occurred:
“THE COURT: . . . [Husband], did you publish a book?
“[HUSBAND]: Um, yes, your Honor.
“THE COURT: What is it’s [sic] name, sir?
“[HUSBAND]: ‘C Sharp and Game Programming’ (phonetic).
“THE COURT: And do you know how sales of that book are progressing?
“[HUSBAND]: Yes, your Honor. Um, it — it’s not in print anymore, but it sold — made 5,000 dollars of which the money was all sent to [Wife]. [Wife] changed the address from the publisher to send it to her house, and I filed that with the Court, and that’s why I kept asking them for the records, and they never was [sic] able to turn them into [sic] the Court because it kept getting mailed to [Wife’s] house.
“THE COURT: What are you doing for a living, sir?
“[HUSBAND]: I do day care. Child day care.
“THE COURT: What is the nature and extent of your educational background?
“[HUSBAND]: Well, I dropped out of school [in] sixth grade, and then I managed to go to junior college for about two years.
“THE COURT: And what did you take in junior college?
“[HUSBAND]: Mathematics, mostly.
“THE COURT: What type of mathematics?
“[HUSBAND]: Well, just
“THE COURT: What? Adding? Subtracting?
“[HUSBAND]: Well, I went through and just studied mathematics, what they had to offer.
“THE COURT: What?
“[HUSBAND]: Up to calculous [sic].
“THE COURT: So sixth grade education but able to study calculous [sic]?
“[HUSBAND]: Yes.
“THE COURT: At a college level?
“[HUSBAND]: Yes. And, in fact, I did poorly in everything but math.
“THE COURT: Well, so did Albert Einstein.
“[HUSBAND]: Yeah.
“THE COURT: You know, that happens. Now, why on earth with mathematical background of that type and an acumen for mathematics are you doing day care?
“[HUSBAND]: Well, I’m actually — I’m going blind. I could bring medical records to that, and I have dysgraphia, which makes it difficult for me.
“THE COURT: Sir, you ever heard of Stephen Hawking?
“[HUSBAND]: Yes.
“THE COURT: Do you know who he is?
“[HUSBAND]: Yes.
“THE COURT: The Newtonian Chair of Physics at Oxford University.
“[HUSBAND]: Yes, sir.
“THE COURT: Do you have any idea what his physical condition is today?
“[HUSBAND]: Yeah, I know. It’s really bad, your Honor.
“THE COURT: Oh yeah. Amyotrophic Lateral Sclerosis. He’s unable to talk. He’s almost unable to breathe. Unable to walk. Unable to communicate in any way. He’s almost deaf. He’s almost completely blind. He’s the Newtonian Chair of Physics. Isaac Newton’s chair at Oxford.
“[WIFE’S COUNSEL]: Your Honor, I would remind the Court that the Court has caught [Husband] outright lying on numerous occasions. [¶] . . . [¶]
“THE COURT: I recall being shown in this court a deed transferring title property to a third party. That was directly denied by [Husband] in this court. I found that that act was in direct violation of an earlier order made by Commissioner Kennedy of this court. As a result, I ordered, as I recall, an elisor to sign documentation to undo that transfer and restore the status quo of Judge Kennedy’s order, . . .”
Given the evidence before the court, clearly, Husband’s financial abilities and skills were a factor in the decision granting Wife’s motion. As the court said to Husband, in closing: “I wish you well on getting yourself into the work-a-day world at a level that is commensurate with your obvious and proven abilities.”
Based on the record before this court, we can not find any violation of Husband’s due process rights.
IV. DISPOSITION
The judgment is affirmed. Costs of appeal to be awarded to Wife.
We concur: GAUT, MILLER J.