Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. DN80288, Joseph P. Brannigan, Judge.
McINTYRE, J.
Wanda L. Kline appeals an order entered in this divorce action requiring her to provide her residential address to her former husband, Robert F. Kline Jr., and denying her request that he pay certain of her attorney fees. She contends that the court abused its discretion in ordering her to disclose her home address and in denying her request for fees. On the record before us, we find her arguments unavailing and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Wanda and Robert married in December 1975 and separated in December 1993, when Wanda filed a petition for dissolution of the marriage. After the parties separated, their oldest son, Chad, lived with Robert; the parties were unable to reach agreement on the custody of their younger son, Shane, however, and protracted and acrimonious proceedings ensued on that issue, as well as issues relating to support. (Kline v. Kline (Dec. 12, 2002, D036674) [nonpub. opn.] p. 2.) During those proceedings, the court appointed independent counsel to represent Shane (ibid.) and, according to Robert's declaration (which is uncontradicted in the record before us), it also issued several restraining orders against Wanda.
The marriage was dissolved in October 1997. At a subsequent trial, the court awarded custody of Shane to Robert, subject to supervised visitation with Wanda, and ordered Robert to pay Wanda monthly spousal support of $750, subject to certain offsets. (Kline v. Kline, supra, D036674, at p. 2.) In 1999, the court terminated Wanda's visitation rights after a hearing in which Shane testified that he did not want further contact with his mother. (Id. at p. 3.)
In May 2005, Robert filed a motion seeking to have his spousal support obligation reduced or terminated; in support of the motion, he submitted evidence that he had been injured in October 2004 while working for his family's business and that the injury had rendered him disabled and unable to work. He pointed out that he had been paying spousal support to Wanda for more than half the length of the parties' marriage and that, despite the court's prior admonitions that Wanda become self-supporting, she had refused to seek employment.
The hearing on Robert's motion was continued multiple times; the second hearing date was continued based on Wanda's contention that she was not properly served with the motion, with the minutes indicating that Wanda had declined to receive service of the motion at her post office box and that Robert's counsel served Wanda with the papers at the hearing. The matter was continued a third time based on Wanda's recent retention of counsel to represent her in the matter.
Wanda ultimately filed written opposition to the motion, contending in part that she was unable to work because of her own disabilities. She also filed her own motion for spousal support arrearages and requested an award of attorney fees.
Robert submitted supplemental declarations indicating in part that his income was limited to worker's compensation benefits of $800 per month, that his family's business had continued to pay the costs of his health insurance and, in accordance with an earlier wage assignment order, his spousal support obligations, but that he owed the company $3,823.56 for such payments and had signed a promissory note reflecting that obligation. He also declared that his mother's estate (which owned the business) had been tied up in litigation, with no assets being distributed, and that although Wanda purported to live alone and have a rental obligation of $400 a month, her bank statements did not establish any such payments, either by check or cash withdrawals. He further indicated that, in response to his request for documents, she had refused to produce any tax returns or documentation substantiating her claimed monthly expenses.
Wanda also submitted a supplemental declaration; in it, she indicated that Robert stood to inherit one-third of the family business, that the business was paying a number of his expenses and that he had two of the business's vehicles for his own use. She also challenged whether Robert was truly disabled.
In December 2005, the court issued an order denying Robert's request to terminate or reduce spousal support without prejudice to a more complete showing of Robert's interest in his family's business and/or his mother's estate, conditionally granting Wanda's request for support arrearages and ordering Robert to contribute $4,000 for Wanda's attorney fees.
Robert did not further challenge the support arrearages, but did not pay them either, so Wanda obtained a judgment against him for arrearages of $8,046.02 plus interest. Thereafter Wanda noticed a judgment debtor's exam for Robert, requesting that he produce 35 categories of documents in connection therewith.
In January 2007, Robert made another motion to terminate spousal support, contending that he could not pay his own modest living expenses while continuing to pay support to Wanda. Wanda responded by making a motion to recover support arrearages that had accrued since the court's arrearages judgment and by filing papers contending in part that Robert had received more than $3,000,000 from his mother's estate. (No evidence in the record supports Wanda's latter contention.)
While both motions were pending, Robert propounded discovery on Wanda, requesting various information, including her residential address. Wanda refused to disclose her home address, contending that her post office box should suffice.
At the hearing on the motion to terminate spousal support and the motion for support arrearages, Robert argued that he believed Wanda was secreting bank accounts and other relevant information and that her contention that she paid everything, including her rent (which she indicated was $400 a month), in cash rather than by check was not credible and could not be substantiated from looking at the only set of bank statements that she had produced.
Upon inquiry from the court about Wanda's refusal to disclose her home address, Wanda's counsel admitted that her fear of Robert was based on an alleged threat Robert allegedly made against her 13 years earlier. The court noted the remoteness of the incident, which was based on Wanda's report to the police, and found that in any event Wanda's claim of domestic violence by Robert was "ludicrous." The court (1) granted Wanda's motion for support arrearages in part, (2) denied Robert's motion to terminate spousal support, again without prejudice, (3) ordered Wanda to disclose her home address to facilitate further discovery, particularly relating to whether she had additional bank accounts, and (4) denied Wanda's request to have Robert pay her attorney fees. Wanda appeals.
DISCUSSION
1. Ordered Disclosure of Wanda's Home Address
Wanda argues that the court abused its discretion in ordering her to provide her home address because (1) there is no pending litigation between the parties, (2) the original dissolution proceedings involved allegations of domestic violence by Robert against her, (3) she has a post office box address, and (4) the application for an order to show cause that was currently at issue before the court did not request such an order. As Wanda admits, however, we review the court's order requiring her to divulge her home address to Robert for an abuse of discretion and will affirm the order unless it exceeds the bounds of reason. (Cadiz Land Co., Inc. v. Rail Cycle, L.P. (2000) 83 Cal.App.4th 74, 117; see generally Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 330 [recognizing that the "[m]anagement of discovery lies within the sound discretion of the trial court"].) This deferential standard of review requires us to uphold the trial court's determination, even if we disagree with it, so long as it is within reason. (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882.)
Furthermore, the traditional presumption on appeal, i.e., that the order is correct, applies and Wanda bears the burden of affirmatively showing error. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Bianco v. California Highway Patrol (1994) 24 Cal.App.4th 1113, 1125.) Here, the record on appeal does not include any of the exhibits that were provided to the superior court in the proceedings below, despite this court's issuance of an order granting Wanda's request to augment the record and giving her leave to resubmit an amended set of lodgments.
Applying the principles outlined above, we find that Wanda has not established an abuse of discretion. The superior court found that, notwithstanding Wanda's protestations to the contrary, there was no credible evidence in the record to substantiate the existence of domestic violence by Robert, her stated reason for refusing to reveal her home address to him, and, in accordance with the applicable standards of review, we accept the court's finding in that regard. (In re Heather A. (1996) 52 Cal.App.4th 183, 193 [issues of fact and credibility are the province of the trial court, not the court of appeal].) Further, the issue of whether Wanda should be required to disclose her address to Robert was argued at the hearing on the second set of motions, suggesting that the matter was properly raised for the court's consideration below. In any event, however, Wanda's argument to the superior court did not include any objection that the matter was not before the court and thus she is deemed to have waived any appellate challenge to the court's order on that basis. (See generally Petropoulos v. Department of Real Estate (2006) 142 Cal.App.4th 554, 561.)
After considering the briefing and evidence submitted by the parties in connection with the second set of motions, the court concluded that Wanda may have been "hiding the ball" and ordered her to provide her home address. Having reached this conclusion, the court acted within its sound discretion in ordering Wanda to disclose her home address.
2. Denial of Attorney Fees
In a divorce proceeding, the trial court may order payment of such fees and costs as between the parties, based on their relative circumstances, to ensure a parity of legal representation in the action. (Fam. Code, §§ 2030, 2032; all further statutory references are to this code.) The decision as to whether one party should be ordered to pay the other's attorney fees and costs, and the amount to be paid, is to be based on a consideration of the parties' respective incomes and needs and any factors affecting their respective abilities to pay. (§ 2030; see also § 2032 [court may make an award of attorney fees and costs where the award, and its amount, are just and reasonable under the relative circumstances of the respective parties].) The trial court exercises its sound discretion in ruling on a request for an award of fees and costs and we will not disturb its determination of the issue absent a clear showing of abuse. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769.)
"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, taking into consideration . . . the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances." (§ 2032, subd. (b).)
In accordance with the foregoing, the primary factor in determining whether to award fees and the amount of any such award is the relative circumstances of the parties (In re Marriage of O'Connor (1997) 59 Cal.App.4th 877, 882-883); thus a disparity in the parties' respective circumstances may itself demonstrate relative "need," even where the applicant spouse has the wherewithal to pay his or her own fees. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.) However, the court is also entitled to consider a party's conduct and tactics in the proceedings in determining whether to make an attorney fee award in her favor. (Ibid.; see also In re Marriage of Dick (1993) 15 Cal.App.4th 144, 167-168; generally In re Marriage of Popenhager (1979) 99 Cal.App.3d 514, 525-526.)
Wanda contends that based on the substantial discrepancies in the parties' circumstances, the court abused its discretion in denying her request to have Robert pay the fees and costs that she has incurred in these proceedings. However, the evidence in the record before us is conflicting and, as noted above, we do not have the benefit of the exhibits submitted by the parties in the proceedings below and thus must assume that those exhibits provided sufficient evidence to support the court's decision to deny Wanda's request for fees.
DISPOSITION
The order is affirmed. Wanda is to bear her own costs on appeal.
WE CONCUR: HUFFMAN, Acting P.J. HALLER, J.