In re the Marriage of M.A. and M.A.
- Reporters:
- ,
- Before:
- McConnell, O’Rourke, Aaron
McCONNELL, P. J.—
INTRODUCTION
This case presents a harsh reminder of the severe consequences that may result from a judicial officer‘s failure to properly handle a statement of disqualification filed under
As to the October 25 order, father contends the court abused its discretion in awarding the fees because of mother‘s superior financial condition and higher percentage of parenting time. We conclude father has not met his burden of establishing a clear abuse of discretion and affirm this order.
Father contends the November 22 orders were invalid because, among other reasons, the commissioner who made it was disqualified under
Father and mother divorced in 2004. They have two children. On the topic of child support, the judgment of dissolution incorporated the parties’ marital settlement agreement, which provided: “A. So long as both parties are gainfully employed, the goal is for [father and mother] to share equally the children‘s day care expense, health insurance, clothing and food, and other necessaries until the children turn age 18. Currently, day care expenses are $1444.00 per month; and the children‘s health care premiums are $190.00 per month. The current total of the children‘s day care and health care premiums are $1634.00 monthly. One-half of that amount is $817.00, which is being used as a basis for the calculations below. The parties agree to modify, pro-rata, the terms of children‘s support based on changes in actual cost of day care and or health care premiums.
“B. It is understood that, at this time, [mother] is making a steady income from professional employment; and that [father] is currently unemployed and has no income. [Father] expects to return to work next month, in a self-employed capacity, and that it [is] anticipated that it will take a reasonable period of time before he has a steady source of income from which to pay for his full share of child care and support related expenses. It is anticipated that he may have to incur debt to pay for business and personal expenses. For these reasons, the parties wish to provide for an increase in the amount of [father‘s] child expense contributions over a period of time.
“C. Commencing August 15, 2003, [father] shall pay [mother] $385.00 per month, and the 15th of each month thereafter. Payment shall be made directly, not by wage assignment.
“D. [Mother] acknowledges prepayment of August, September and October payments. Therefore, [father‘s] next payment of $385.00 is due on November 15, 2003.
“E. Commencing February 15, 2004, the amount shall increase to $550.00.
“F. Commencing June 15, 2004, the amount shall increase to $700.00.
“G. Commencing October 15, 2004, the amount shall increase to the $817.00, or . . . one-half of the actual cost of day care and the children‘s health care premiums.
“H. Both [father and mother] will each pay for the children[‘s] clothing, food, entertainment and other necessaries, while in their physical custody without contribution from the other parent.”
Both motions were submitted on Judicial Council forms, which contained a notice informing the parties, “This case may be referred to a court commissioner for hearing. By law court commissioners do not have the authority to issue final orders and judgments in contested cases unless they are acting as temporary judges. The court commissioner in your case will act as a temporary judge unless, before the hearing, you or any other party objects to the commissioner acting as a temporary judge. The court commissioner may still hear your case to make findings and a recommended order. If you do not like the recommended order, you must object to it within 10 court days; otherwise, the recommended order will become a final order of the court. If you object to the recommended order, a judge will make a temporary order and set a new hearing.” (See
In March 2012 father filed an order to show cause (OSC) why his child support obligation should not be modified to zero. In support of his OSC, he submitted a declaration disputing the dissolution judgment obliged him to pay child support of $817 a month and asserting the judgment only obliged him to pay half the actual cost of daycare and health insurance premiums.
In January 2013 mother filed a request for an order establishing the amount of child support arrears, awarding her attorney fees and costs, and sanctioning father under
The court heard the parties’ respective motions to modify child support and determine arrears at a hearing on July 5, 2013. Mother argued the dissolution judgment required father to pay child support of $817 a month because it was an amount certain and there was no evidence allowing the court to determine with certainty the actual amount of the children‘s past daycare and health
The court essentially agreed with father, finding “the amount was set at [$]817 back in 2003 and that the parties contemplated that it would change over time with the change in the needs of the child care or the rising costs potentially or decreasing [sic] for the health care insurance premiums.” Accordingly, the court found the enforceable support amount for purposes of determining arrears was “[$]817 or one half the actual costs.”
Following the court‘s ruling, the parties stipulated father did not have any child support arrears through October 31, 2011, and father waived any right to claim a credit against his child support obligations for a cash loan made to and personal property transferred to mother. The parties further stipulated father had a credit against his prospective child support obligations of $27,599.68 based on $20,000 he had prepaid to mother and $7,599.68 the Department had previously collected from him.
The court continued the hearing to determine the amount of ongoing child support for the period starting November 1, 2011. In the interim, the court ordered father to pay temporary child support of $2,229 per month from November 1, 2011, through July 31, 2012, based on father‘s then 5 percent parenting schedule, and $1,317 per month from August 1, 2012, forward based on father‘s current 35 percent parenting schedule. The court calculated the temporary support based on mother‘s current income and father‘s receipt of approximately $474,000 from his law practice in 2011. The court amortized father‘s income over a three-year period because father earned almost all of the $474,000 from working on a single contingency fee case for several years.
Near the end of the hearing, father‘s counsel indicated he would be filing a motion to be relieved. The court set a briefing schedule for the motion and set it to be heard on August 1, 2013. Less than a week later, father‘s counsel filed the motion. Counsel supported the motion with a declaration stating he and father had irreconcilable differences, which had caused a complete breakdown of their attorney-client relationship.
Three days after counsel filed his motion to be relieved, father filed a statement of disqualification under
The commissioner discovered the statement while reviewing the file in preparation for the August 1, 2013, hearing. Before the hearing commenced, the court issued an order striking the statement, finding father had failed to serve it on the commissioner in the manner required by
At the August 1, 2013, hearing, the court advised father and his counsel of the order striking the statement. Father requested an opportunity to argue the matter; however, the court denied his request, noting father had “spoken through [his] 11 pages of writing. I have reviewed it. It fails to state any legal basis for disqualification.”
The court then heard father‘s counsel‘s motion to be relieved. Counsel confirmed there had been, and still was, a “complete breakdown of the attorney/client relationship,” and nothing “could be done to allow [counsel] to continue to represent [father],” who counsel asserted “failed to follow [counsel‘s] instructions, has not effectively cooperated and frustrated [counsel‘s] ability to represent him.” Based on counsel‘s representations, the court granted the motion and relieved counsel. Father requested permission to substantively respond to the motion; however, counsel objected to the request because father had not filed any responsive papers. After the court noted it did not have any responsive papers from father and father acknowledged he had not filed any, the court denied his request for argument.
In September 2013 father filed a motion seeking sanctions against mother and her attorney under
At a hearing on October 25, 2013, the court heard mother‘s request for attorney fees and awarded her $6,500 under
Regarding the second statement of disqualification, he alleged the commissioner committed new acts of bias since he filed the first statement of disqualification. These acts included (1) failing to give him the notice required by
As to the second statement of disqualification, the court indicated it would not “entertain any other motion on disqualification” at that time. The court nonetheless assured father it was not biased against him and responded to some of the allegations in the statement.
As to father‘s objection under
The court then turned to the merits of the matters before it and modified its July 5, 2013, temporary child support order to account for an increase in
DISCUSSION
I
October 25, 2013, Attorney Fees Order
Father contends the court abused its discretion in awarding mother attorney fees of $6,500 at the October 25, 2013, hearing, because she was in better financial condition than he and she had a higher percentage of parenting time.4 We disagree.
In any proceeding subsequent to the entry of a dissolution judgment, “the court shall ensure that each party has access to legal representation, including access early in the proceedings, to preserve each party‘s rights by ordering, if necessary based on the income and needs assessments, one party, except a governmental entity, 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.” (
In determining whether to award attorney fees, the court must consider the parties’ respective needs and incomes. (In re Marriage of Sullivan, supra, 37 Cal.3d at p. 768.) The court is not limited to considering the parties’ salaries. The court may also consider all evidence of the parties’ income, assets and
Here, the record, viewed in the light most favorable to the court‘s decision, shows the court considered the parties’ respective incomes and expenses and decided to award mother approximately one-third of the attorney fees she had actually incurred based on the significant disparity in the parties’ cash assets and its effect on the parties’ respective abilities to fund the litigation. Such a decision based on such considerations was well within the court‘s discretion. (See, e.g., In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 631 [108 Cal.Rptr.2d 833].) Accordingly, father has not shown the requisite clear abuse necessary for us to reverse the court‘s order.
II
November 22, 2013, Orders
Father contends the court‘s orders of November 22, 2013, are void because the court became disqualified after failing to act on father‘s second statement of disqualification.5 We agree.
A party may seek a commissioner‘s disqualification for cause by filing and serving a written verified statement objecting to the hearing before the commissioner and setting forth the facts constituting the grounds for the commissioner‘s disqualification. (
The commissioner in this case did not take any of the permissible actions in response to father‘s second statement of disqualification. Instead, the commissioner impermissibly ignored the statement by declining to entertain it. As a result, the commissioner is deemed to have consented to disqualification. (
Moreover, because the question of the commissioner‘s disqualification was not determined at or before the November 22, 2013, hearing, she lacked power to decide the merits of the matters before her at the hearing. (
The postjudgment order of October 25, 2013, awarding mother attorney fees of $6,500 is affirmed. The postjudgment orders of November 22, 2013, are reversed and the matter is remanded to the superior court for further proceedings consistent with this decision. The parties are to bear their own appeal costs.
O‘Rourke, J., and Aaron, J., concurred.