Opinion
B196921
4-16-2008
In re Marriage of SANDRA V. and RALPH SANCHEZ. SANDRA V. SANCHEZ, Respondent, v. RALPH SANCHEZ, Appellant.
Barry M. Orlyn for Appellant. Eliseo D.W. Gauna for Respondent.
NOT TO BE PUBLISHED
In this dissolution case, the court awarded temporary support to the wife pending resolution of community property issues. The husband appeals, claiming the support award violated due process because it was ordered in his absence. He also challenges the award on the merits. He claims spousal support was not warranted because the couple then had no minor children and because his wifes separate estate was adequate for her support. We affirm.
I
Sandra V. Sanchez and Ralph Sanchez married on May 19, 1973. (For simplicity and meaning no disrespect, we refer to the parties by their given names.) Sandra and Ralph separated in November 2002. Their marriage lasted 29-and a half years. They had three children, who were all in their 20s during the events in this case.
The Sanchezes acquired real property during their marriage: the Downey family residence, a South Gate apartment building, a Huntington Park office building, and a cabin in Crestline, California. The commercial building apparently housed Ralphs dental practice.
Sandra petitioned for legal separation in March 2005. She requested spousal support and a division of community assets. Ralph did not want to pay spousal support or attorney fees. In his opposition to an order to show cause dated January 2006, Ralph claimed Sandra was a licensed dentist currently employed in a dental office, and that she also owned a tortilla manufacturing business. Ralph declared Sandra could support herself and could pay her own attorney fees and costs. Ralph explained in his declaration, "The parties are both mature professionals being both dentists and the children are grown and there are no minor children. [¶] They are both working in their professions and [Sandra] even owns an extra business and both are able to support themselves and pay their attorneys fees and all expenses. There are certain real properties as listed in the property declaration which should be divided between them and the marriage dissolved ...."
Sandra filed an income and expense declaration showing her expenses exceeded her income. Her declaration also showed two of the parties sons, then ages 28 and 25, as well as one of their sons friends, lived with her in the family residence.
Sandra filed a declaration in support of her request for spousal support, attorney fees, an accounting, and for funds to hire a forensic accountant. Sandra declared she had a part-time job in a dental office where she worked as an insurance billing clerk. She said she earned $16 an hour at this job. In 2004, she and a partner opened a small business making tortillas. Sandra stated the money she earned at the dental office funded the tortilla business.
In her declaration, Sandra explained Ralph had managed all financial matters during their marriage. While married she worked in Ralphs dental office. Ralph always had paid, or arranged to have paid, all the familys expenses. Every week during their marriage, Ralph gave Sandra $400 for personal and household expenses. He continued to do so for a while after their separation. But Ralph closed their bank account when the parties could not reach an informal agreement on how to divide the community assets. He cut off the automatic payments for the household expenses. Ralph also stopped giving Sandra $400 a week for living and household expenses. Sandra declared she now had no funds and requested an order directing Ralph to provide funds to hire a forensic accountant to value Ralphs dental practice and to determine the extent of the communitys assets. She also asked for an order directing Ralph to pay her attorney fees.
Ralph paid Sandra a one-time sum of $15,000 in March 2006 as temporary support. He apparently paid nothing further, did not finance a forensic accounting, and did not communicate further with Sandras counsel despite her counsels numerous attempts. In October 2006, Sandra filed another order to show cause. This time she requested a court order for monthly support of $5,000 plus mortgage and household expenses.
The court scheduled the hearing on the order to show cause for December 4, 2006. Ralph opposed Sandras request for support, claiming she was self-supporting. He also argued an accounting was unnecessary. He proposed the real properties be divided: the family residence and mountain cabin to Sandra, and the commercial and apartment buildings to him.
Ralph asked that the hearing date be continued until after the first of the year "because he will be away and unavailable in December."
The court did not continue the hearing date. As relevant to this appeal, on the scheduled hearing date of December 4, 2006, the court entered an order awarding Sandra temporary support of $3,680 per month "without prejudice to recalculation and/or retroactivity." The court arrived at this figure by using the parties income and expense declarations and applying standard guidelines for temporary spousal support.
Ralph appeals from the courts order directing him to pay Sandra temporary spousal support.
II
Sandra claims the temporary support order is a nonappealable interlocutory order on a bifurcated issue that requires a certificate of probable cause to be appealable. She argues a certificate of probable cause is jurisdictional, and because Ralph failed to secure a certificate of probable cause, this appeal should be dismissed. (See Cal. Rules of Court, rule 5.180 [explaining the need for a certificate of probable cause to make an order on a bifurcated issue immediately appealable].)
This argument is in error. The decision in In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, on which Sandra relies, is distinguishable. In Lafkas, the husband attempted to appeal an order that a particular asset was community in character. The Lafkas court said an order on this type of bifurcated matter, resolving only part of an issue, is not separately appealable and thus requires a certificate of probable cause to vest jurisdiction in the Court of Appeal. (Id. at p. 1433.)
By contrast, an order for temporary support is directly appealable. (In re Marriage of Skelley (1976) 18 Cal.3d 365, 368 ["Historically, this court has looked to the substance of an order pendente lite rather than to chronology or to form, and has held temporary support orders directly appealable."]; In re Marriage of de Guigne (2002) 97 Cal.App.4th 1353, 1359 ["even temporary support orders are appealable."]; Eisenberg & Horvitz, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) § 2:83, p. 2-53 ["A direct appeal lies from an order in a family law case granting or modifying temporary spousal, domestic partner or child support."].)
Because the order for temporary support in this case is directly appealable, we move to the merits. (Cal. Rules of Court, rule 5.180(a) ["This rule does not apply to appeals from ... orders that are separately appealable."].)
III
Ralph says the court erred by ordering him to pay Sandra spousal support. He asserts that "there is no right or liability for support by either" because the parties are self-supporting and have no minor children.
Ralph claims two sections of the Family Code support his argument. One is Family Code section 4302: "A person is not liable for support of the persons spouse when the person is living separate from the spouse by agreement unless support is stipulated in the agreement." The other provision is Family Code section 4322. This section states, "In an original or modification proceeding, where there are no children, and a party has or acquires a separate estate, including income from employment, sufficient for the partys proper support, no support shall be ordered or continued against the other party."
These sections are part of the Family Code concerned with permanent, not temporary, support orders. They each present factors a court should consider when addressing the propriety of a permanent award of spousal support. These sections do not control the entirely separate matter of temporary spousal support during the dissolution proceedings. Rather, temporary support may be awarded based on need and available community resources alone. Family Code section 3600 specifies that during the pendency of a dissolution or legal separation action, the court may order either party to "pay any amount that is necessary for the [other partys] support," subject to certain limitations in domestic violence situations. (Italics added.)
"Awards of temporary spousal support do not serve the same purposes, nor are they governed by the same procedures, as awards for permanent spousal support. Temporary spousal support is utilized to maintain the living conditions and standards of the parties in as close to the status quo position as possible pending trial and the division of their assets and obligations. On the other hand, [t]he purpose of permanent spousal support is not to preserve the preseparation status quo but to provide financial assistance, if appropriate, as determined by the financial circumstances of the parties after their dissolution and the division of their community property. [¶] Awards of temporary spousal support rest within the broad discretion of the trial court and may be ordered in `any amount (§ 3600) subject only to the moving partys needs and the other partys ability to pay. Permanent support, by contrast, is constrained by numerous statutory factors set out in section 4320." (In re Marriage of Murray (2002) 101 Cal.App.4th 581, 594, internal citations, quotation marks, and footnote omitted.)
The amount of an award of temporary support pending the dissolution proceedings is a matter within the courts broad discretion. An award of temporary support will only be reversed on appeal "on a showing of clear abuse of discretion." (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1327 [award of over $13,000 per month in child support was not an abuse of discretion in light of the "big picture" concerning the parties assets and income].)
The court based its order for temporary support on the parties income and expense declarations. The court simply applied the standardized guidelines to the parties own figures to arrive at the support amount. This amount was considerably less than the amount Sandra requested.
Ralph has not shown how the courts order for temporary spousal support was an abuse of discretion. We have no cause to disturb the courts order.
IV
Ralph asserts the courts order for temporary spousal support must nevertheless be reversed. He claims the court entered the order without jurisdiction and in violation of due process because he was not personally present at the hearing when the court made its order.
The court certainly had jurisdiction of the subject matter. Ralph does not argue otherwise. The court also had jurisdiction of the parties. Again, Ralph does not dispute this fact. He filed his own petition for dissolution and voluntarily appeared numerous times in the proceedings.
Instead, Ralph claims it was a violation of due process for the court to enter a temporary spousal support order when he was not physically present at the hearing. This is incorrect. Ralph had specific notice of the hearing and of the issues proposed to be resolved at the December 4, 2006 hearing. Ralph had the opportunity to be heard at this hearing. Before the December 4, 2006 hearing Ralph filed opposition to Sandras request for (among other things) temporary support pending trial and explained why he believed spousal support was unnecessary. In his opposition, Ralph took the opportunity to present his proposed division of the community real properties as well. Ralph technically appeared at the hearing even if Ralph was not there himself. According to Sandra, Ralph was represented at the hearing by counsel. Ralph does not dispute this point.
There was no due process violation and no error.
V
The courts order is affirmed. Respondent is awarded her costs of appeal.
We Concur:
PERLUSS, P. J.
WOODS, J. --------------- Notes: Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.