Opinion
B197322
7-30-2008
In re the Marriage of EILEEN and GERALD BURK. EILEEN BURK, Respondent, v. GERALD BURK, Appellant.
Gerry Burk, in pro. per., for Appellant. No appearance for Respondent.
Not to be Published
Appellant Gerald Burk (Gerald) appeals from the denial of his application for an order to show cause (OSC) regarding a May 7, 2001 order that required him to pay respondent Eileen Burks (Eileen) attorney fees to defend his appeal from the judgment entered following the dissolution of their marriage. We affirm.
As the parties share the same last name, we use their first names to avoid confusion and intend no disrespect.
FACTUAL AND PROCEDURAL BACKGROUND
The dissolution of the parties marriage resulted in a judgment entered on December 22, 2000. Gerald filed an appeal. On May 7, 2001, the court ordered Gerald to pay Eileens attorney fees in the amount of $40,000 to allow her to hire counsel "to defend the appeal" (the May 7th order).
Our records reveal two prior appellate opinions filed in conjunction with this case. In the first appeal (consolidated cases, Nos. B148081 & B152240), Gerald appealed from various orders relating to child support and the payment of attorney and private judging fees. A nonpublished opinion affirming the orders was filed on April 4, 2002. In the second appeal (No. B154399), Gerald appealed from the family courts order granting Eileen legal custody of the children. That order was affirmed in a nonpublished opinion filed on October 29, 2002. In each appeal, the parties appeared in propria persona.
On August 11, 2006, over five years after the May 7th order, Gerald filed an OSC and attached a pleading entitled "Request for an Accounting and Determination of Rights," in which he claimed that Eileen had not provided an accounting of monies expended during the appeal process. He alleged that she had proceeded in propria persona and had not paid attorney fees. He asserted that she wrongfully claimed the May 7th order constituted a personal judgment, even though the award was for the payment of legal fees and costs. Gerald requested an accounting and a determination of "what rights each party has in this matter and whether any money is owed [Eileen] in this matter."
At a hearing held on January 3, 2007, Gerald acknowledged that he did not comply with the May 7th order and Eileen admitted she did not incur attorney fees on appeal. The court took the matter under submission.
By minute order dated January 5, 2007, the trial court found that the May 7th order had become final and could not be modified. It also noted Gerald had failed to comply with the May 7th order, and determined that equity demanded that his request be denied. This appeal followed.
Geralds appellants appendix includes a motion to vacate the January 5, 2007 order. The motion is not file-stamped and there is no indication that the trial court ruled on the motion. On January 16, 2007, Gerald filed, inter alia, a request for a statement of decision. Again, we do not know if the trial court issued a ruling. In any event, Geralds March 1, 2007 notice of appeal states only that he is appealing "from the January 5th, 2007 minute order prepared, entered and signed" by the commissioner. Thus, we address only that ruling.
DISCUSSION
Gerald contends that the family court was required to conduct a full accounting of Eileens expenses incurred on appeal. He asserts that the May 7th order can and should be modified because Eileen did not pay attorney fees. We disagree.
Eileen did not file a brief. By letter, she stated that she could not afford counsel, as Gerald has not complied with the May 7th order. She pointed out this is the fourth appeal Gerald has filed in connection with the dissolution, and requested that the appeal be dismissed.
It is not at all clear why Gerald filed his application for an OSC. The May 7th order was issued so that Eileen could retain counsel on appeal. As we have discussed, the decision in the last appeal involving the parties was filed in October 2002 and is now final. Gerald acknowledges that he did not pay Eileens attorney fees as required by the May 7th order. He does not allege that Eileen has filed an action in a belated attempt to collect the attorney fees he was ordered to pay. Although Gerald claimed in his request for an accounting that Eileen "has put forth that [he] owes [her] the entire amount awarded in the minute order as this was a `personal judgment against [him] in her favor," he has not directed us to anything that suggests such an action is pending. Thus, there is no current controversy and no reason to determine the parties respective rights and obligations under the May 7th order. Put simply, the matter is moot. The trial courts order denying the application for an OSC was appropriate.
DISPOSITION
The order denying Geralds application for an OSC is affirmed.
We concur:
EPSTEIN, P. J.
WILLHITE, J.