Opinion
D080980
09-18-2023
In re the Marriage of ASHLEY and ANDREW DAVIS. v. ANDREW STEPHENS DAVIS, Respondent. ASHLEY CARNEY DAVIS, Appellant,
Ashley Carney Davis, in pro. per.; The Appellate Law Firm and Aaron Myers for Appellant. Andrew Stephens Davis, in pro. per., for Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. 19FL008066N Matthew Brower and Sharon L. Kalemkiarian, Judges. Affirmed.
Ashley Carney Davis, in pro. per.; The Appellate Law Firm and Aaron Myers for Appellant.
Andrew Stephens Davis, in pro. per., for Respondent.
CASTILLO, J.
On appeal, Ashley Davis challenges the denial of her motion for attorney fees under Family Code section 3121 (later references are to this code).
At a hearing during Ashley and Andrew's divorce proceedings, Ashley orally requested that the trial court award her attorney fees to allow her, a self-represented litigant, to obtain counsel. Ashley brought her motion under section 3121, which applies to "any proceeding pursuant to Section 3120, and in any proceeding subsequent to entry of a related judgment." (§ 3121, subd. (a).) Section 3120 permits "an action for the exclusive custody of the children of the marriage." The trial court denied the motion. Ashley appealed.
We first conclude that we have jurisdiction to hear this appeal. The denial of attorney fees was not immediately appealable as a collateral order because it did not require a party to pay money or perform any act. Ashley thus timely appealed after the court issued a notice of entry of judgment.
On the merits, we conclude that the trial court had no duty to independently research and identify attorney fees statutes not raised by any party. Nor did the court err when it denied Ashley's section 3121 motion. The court evaluated the nature of the proceedings before it that day-cross-petitions for domestic violence restraining orders (DVROs) and Andrew's request for exclusive use and possession of the couple's residence-and found that they did not involve child custody or visitation. In doing so, the court exercised its discretion without abusing it. We therefore affirm the judgment.
I.
Ashley and Andrew ended their marriage. During dissolution proceedings, the trial court held hearings on different requests.
On August 25, 2021, the court oversaw a hearing about custody and visitation of the couple's only child. During the hearing, the court adopted the Family Court Services' custody and visitation recommendations with modifications. The court directed Andrew's counsel to submit a findings and order after hearing, which the court entered on September 22, 2021.
On September 14, 2021, the court heard the parties' DVRO cross-petitions and Andrew's request for exclusive use and possession of the residence. At the start of the hearing, Ashley for the first time made an oral motion under section 3121 for attorney fees. Ashley told the court "[i]t is very difficult to represent myself" and she would "prefer to have an attorney." Aside from a brief mention of "Code 721," which appears to address transactions between spouses and the resulting fiduciary duty, Ashley raised no other statutory basis for her motion. (See § 721.)
The court reviewed the text of sections 3121 and 3120. The court found that Ashley's oral motion was procedurally permissible. (See § 3121, subd. (f) [permitting an oral motion without notice during the merits hearing].) Section 3121 requires a court to "ensure that each party has access to legal representation" and, upon a party's request, assess if awarding attorney fees is appropriate. (§ 3121, subds. (a) & (b).) This obligation applies only in "any proceeding pursuant to Section 3120, and in any proceeding subsequent to entry of a related judgment." (Id., subd. (a).) Proceedings under section 3120 involve the "exclusive custody of the children of the marriage" and orders "regarding the support, care, custody, education, and control of the children." (§ 3120.)
Andrew's counsel pointed out that the court had already issued child custody and visitation orders a few weeks earlier.
After hearing from both sides, the court denied Ashley's section 3121 motion. It reviewed the parties' cross-petitions for DVROs and determined that the petitions neither listed the child as a protected person nor sought child custody or visitation orders. The court explained the significance of that detail as follows:
[U]nder Family Code Section 3121, it seems pretty clear that it only pertains to proceedings under Section 3120, and again, Section 3120 is simply the section that addresses actions for exclusive custody. I think I would need to do a little bit more research were it the case that your child [name omitted] were included as an additional protected person and . . . one of the two parties were seeking custody orders regarding [the child]. Because then I think perhaps maybe we would have an issue with this being a hearing that was in part on the subject of an action for exclusive custody and exclusive custody order associated with a domestic violence restraining order filing, but that's not the case here.
The court ultimately found that none of the "three causes of action that we have on calendar for this afternoon"-the two DVRO petitions and the residence request-"fall under the Family Code Section 3120 action for exclusive custody orders." The court issued orders on those three matters that same day.
On June 3, 2022, the court entered judgment of dissolution, which reiterated the court's earlier rulings on child custody and visitation, the DVRO cross-petitions, and the residence request.
On June 8, 2022, the court issued a notice of entry of judgment.
On August 5, 2022, Ashley filed her notice of appeal.
II.
A.
We start by confirming our jurisdiction to hear this matter. (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 252.)
We have jurisdiction over a direct appeal where it flows from an appealable order or judgment. (Griset v. Fair Political Practices Com'n (2001) 25 Cal.4th 688, 696.) The right to appeal is generally governed by the "one final judgment" rule, which permits appeal only from a final judgment that disposes of the entire action. (In re Baycol Cases I &II (2011) 51 Cal.4th 751, 754, 756.) An exception to this rule is the collateral order doctrine. (Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1235.) To be appealable under this doctrine, an order must (1) be a final determination (2) of a collateral matter and-most pertinent here-(3) direct the payment of money or performance of an act. (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119.)
A timely notice of appeal is an "absolute prerequisite" to appellate jurisdiction. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 670.) Entry or notice of a judgment or an appealable order typically starts the clock for a party to seek appellate review. (See Cal. Rules of Court, rule 8.104(a) & (c).)
Andrew challenges our jurisdiction over what he asserts is an untimely appeal. Andrew argues that the trial court's September 14, 2021 order denying attorney fees was a "collateral order" that became immediately final and appealable. Thus, according to Andrew, Ashley's window to appeal expired long before she filed her August 5, 2022 notice of appeal. We disagree.
This appeal is timely and falls within our jurisdiction because, in our view, the order denying attorney fees was not an appealable collateral order. Because the order denied attorney fees, it directed neither the payment of money nor the performance of any act. It thus did not satisfy the collateral order doctrine's third requirement. (Sanchez v. Westlake Services, LLC (2022) 73 Cal.App.5th 1100, 1108.) Andrew looks to cases where an order granting attorney fees was immediately appealable and reasons that the reverse must be true. (See In re Marriage of Weiss (1996) 42 Cal.App.4th 106; In re Marriage of Skelley (1976) 18 Cal.3d 365.) But an order granting attorney fees qualifies for direct appeal because, in addition to being a final judgment of a collateral matter, it obligates a party to pay money. (In re Marriage of Weiss, at p. 119.) An order denying attorney fees, by contrast, does not.
We acknowledge that other courts have heard direct appeals on similar orders denying the payment of money. Some courts did so without appearing to assess appealability. (See, e.g., N.S. v. D.M. (2018) 21 Cal.App.5th 1040, 1046-1047.) Other courts decided appealability by relying on case law involving the grant of attorney fees without discussing the grant-denial distinction. (See, e.g., Askew v. Askew (1994) 22 Cal.App.4th 942, 964, fn. 37.) Finally, at least one court concluded that collateral orders are not limited to those obligating a party to pay money or perform an act. (Muller v. Fresno Community Hospital &Medical Center (2009) 172 Cal.App.4th 887, 901-902 (Muller).) Muller, however, represents the minority view. (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2022) § 2:79.) "The majority view is that an appealable 'collateral' judgment or order must direct the payment of money or performance of an act." (Id., § 2:78.) In this case, Andrew does not offer any argument that would persuade us to deviate from the majority view. (See Longobardo v. Avco Corp. (2023) 93 Cal.App.5th 429, 434-435.)
Because we conclude that the order denying attorney fees was not a collateral order, it did not become appealable until after the trial court entered judgment. (See Dr. V Productions, Inc. v. Rey (2021) 68 Cal.App.5th 793, 797-798.) Although Andrew protests that the judgment did not reference the attorney fees motion, he provides no legal authority for why that detail would preclude Ashley's appeal. Ashley filed her notice of appeal within 60 days after the trial court issued notice of entry of judgment. Her appeal is therefore timely, and we have jurisdiction to hear this appeal. (Cal. Rules of Court, rule 8.104(a).)
B.
Turning to the merits, Ashley asserts that the trial court abused its discretion by not considering other sections of the Family Code, like sections 2030 and 7605, that might have supported her request for attorney fees. She also argues that the court should have performed the analysis for awarding fees under section 3121 because the DVRO hearing was related to the underlying dissolution and custody proceedings. We address each argument in turn.
1.
Although she sought attorney fees under section 3121 only, Ashley claims that the trial court was obligated to consider all possible Family Code sections under which she might have moved (but did not). But Ashley provides no legal authority imposing such a duty on trial courts. As a result, the point is waived. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 ["Appellate briefs must provide argument and legal authority for the positions taken."].)
While the canons of judicial ethics "provide a path to ensure a selfrepresented litigant can be fairly heard on the merits," they also require the court to maintain its impartiality and "not assume (or appear to assume) the role of advocate or partisan." (Holloway v. Quetel (2015) 242 Cal.App.4th 1425, 1434.) Ashley essentially asks us to direct the trial court to become her advocate, which we cannot do.
2.
Next, we assess the trial court's finding that the matters being heard on September 14, 2021, were not related to a child custody proceeding for purposes of section 3121.
We review a denial of attorney fees for abuse of discretion and independently review questions of statutory interpretation. (N.S. v. D.M., supra, 21 Cal.App.5th at p. 1053.) Whether an action is "related" within the meaning of a statute "is a factual question for determination by the trial court." (In re Marriage of Green (1992) 6 Cal.App.4th 584, 591.) Thus, "[t]he standard of appellate review usually will be, as here, whether substantial evidence supports the trial court's findings." (Ibid.) As the appellant, Ashley bears the burden of showing that the trial court abused its discretion. (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 16.)
We are not persuaded that the court abused its discretion when it found that the DVRO and residence hearing were unrelated to child custody for purposes of section 3121. Ashley claims that "it is obvious that the findings from the [DVRO] hearing were related for purposes of the family code to the underlying dissolution and custody proceedings, even if the minor child was not specifically named as a protected party." She does not cite to the record for this assertion or explain why. For this point, Ashley appears to rely on two facts: (1) the September 14, 2021 hearing shared the same case number as the underlying dissolution action and (2) the dissolution judgment included copies of the orders issued at the September 14, 2021 hearing. But those facts connect the hearing to the dissolution proceeding, not the child custody order. For section 3121 to apply, the September 14, 2021 proceedings had to be related to child custody, not the dissolution proceeding. (Compare § 3121, subd. (a) and § 3120 ["action for the exclusive custody of the children"] with § 2030, subd. (a) ["proceeding for dissolution of marriage"].)
We agree with Ashley that the analysis in C.T. v. K.W. (2021) 71 Cal.App.5th 679, is "pertinent" here because it illustrates why the trial court found the September 14, 2021 matters unrelated. C.T. v. K.W. involved two separate cases: a Uniform Parentage Act (UPA) case to establish paternity, which did not issue any custody orders, and a Domestic Violence Prevention Act (DVPA) case in which the father sought protective orders as well as sole custody of the couple's son. (Id. at p. 681.) In the DVPA case, the mother sought to modify custody and visitation and moved for attorney fees under section 7605, among other statutes. (Id. at p. 682.) Like section 3121, section 7605 applies to "any proceeding subsequent to entry of a related judgment." (§ 7605, subd. (a).) Under section 7605, a judgment must be "related" to child custody or visitation proceedings under the UPA. (Ibid.) Even though the DVPA case was not brought under the UPA, it was "unquestionably related for purposes of section 7605" because the father's DVRO petition included a request for child custody and visitation orders, which is the same or similar subject matter and could have been resolved in the UPA case. (C.T. v. K.W., at pp. 684-685.)
Here, in contrast, neither DVRO petition sought to protect or decide custody or visitation of the couple's son. The court's finding hinged on that detail. With no child custody matters before it that day, the court reasonably found that the DVRO petitions and residence request did not fall under section 3121. We conclude that substantial evidence supports the court's finding.
Because the trial court found that sections 3120 and 3121 did not apply, it could deny Ashley's motion without further analysis. As the court did not have to engage in the section 3121 analysis, we do not need to reach Andrew's argument about purported procedural defects in Ashley's motion.
III.
We affirm the judgment. The parties shall bear their own costs on appeal.
WE CONCUR: McCONNELL, P. J. HUFFMAN, J.