Marriage of Black CA4/3 ( 2024 )

Filed 9/25/24 Marriage of Black CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re the Marriage of MAXIMILIAN
ELIJAH and CHRISTIENNE
MEREDITH BLACK.
MAXIMILIAN ELIJAH BLACK,
G062681
Respondent,
(Super. Ct. No. 14D000459)
v.
OPINION
CHRISTIENNE MEREDITH
BLACK,
Appellant.
Appeal from an order of the Superior Court of Orange County,
Adrianne E. Marshack, Judge. Affirmed.
Christienne Meredith Black, in pro. per., for Appellant.
James D. Decker and Christopher M. Jones for Respondent.
* * *
In this family law matter against her husband, Maximilian
Elijah Black (Max), Christienne Black1 purports to appeal from numerous
orders made at a hearing on March 24, 2023. Most of the issues she attempts
to appeal, however, are nonappealable. Christienne repeatedly attempts to
invoke “due process” as her grounds for appeal, but those are not words that
can turn a nonappealable order into an appealable one. The only appealable
issue before us is an attorney fee order, granting Christienne $10,000 in
attorney fees. She has failed to carry her burden to demonstrate this order
was erroneous. We therefore affirm the order.
FACTS AND PROCEDURAL HISTORY
Neither party provided a summary of the historical facts of this
matter. In 2014, Max filed for dissolution. Trial was originally set for June
2015. By stipulation, in 2016, discovery was reopened and trial was set for
April 2017.
On July 2, 2019, Christienne served a request for production of
documents, which included 35 categories of documents. At a hearing in
August 2019, the court agreed to reopen discovery until 30 days prior to trial.
Another request for discovery was apparently sent in October
2019. This demand included 16 more categories of documents.
In July 2020, Christienne filed a motion to compel. At the hearing
on October 30, there was confusion over whether discovery was open or
closed. The court did not have the transcript of the August 2019 hearing
before it. Max argued that the July 2, 2019 discovery was propounded before
any reopening of discovery in August 2019. Christienne’s counsel offered to
simply re-serve the same discovery if the court was inclined to find the
1 We refer to the parties by their first names due to their common
surname for the ease of the reader and to avoid confusion.
2
discovery had to be served after the August 19 hearing. At that time, trial
was scheduled for December 4. The court agreed to open discovery for 10
more days. The motions to compel were taken off calendar.
Christienne re-served the discovery requests on November 2, and
Max responded with boilerplate objections. According to Christienne (the
document is not in the record) she filed a motion to renew her motion to
compel in November. The matter was heard in March 2022 before a different
judge, who denied her motion and imposed sanctions.
The court’s ruling noted that neither party had lodged the
transcript of the October 30 hearing with the court. The court was left to
review the minute order from that date, which stated: “The Court notes
discovery was not reopen in this proceeding and the discovery date has
expired, and therefore this Court does not have the power to reopen
discovery. [¶] The Court hears argument from all counsel as to the issue of
discovery. [¶] By the stipulation of counsels the Court orders discovery to be
open for ten days commencing this date. [¶] The Court reserves on the issues
of sanctions and fees.” The minute order did not indicate the motion to
compel had been taken off calendar. “Admittedly, the Court could have been
clearer on this point, but this interpretation is supported by the next two
lines of the minute order.” The court noted that the minute order had
reopened discovery, which would not have been necessary if discovery had
already been open. Further, reserving on sanctions and attorney fees would
have been “superfluous” if the matter had been taken off calendar. “Thus, the
most reasonable interpretation of the minute order is that the Court denied
the Motion to Compel because the discovery deadline had passed, but that
the Court was reserving on sanctions and attorney’s fees.” The court
sanctioned Christienne for an unjustified motion in the amount of $2,500.
3
Christienne filed a motion for reconsideration, which the judge did not rule
upon.
Christienne brought a motion to disqualify the trial judge. A
different judge granted the order on the grounds that “a person aware of the
facts might reasonably entertain a doubt that the judge would be impartial.”
The judge had created a “disqualifying appearance of bias.” Rulings by the
judge after the motion to disqualify was filed on May 23, 2022, were vacated.
It does not appear there were any orders relevant to this appeal issued by the
disqualified judge after that date.2
The new judge assigned to the case denied Christienne’s motion
for reconsideration of the discovery order. At the time, trial was set for early
2023. The court also reopened discovery on a limited basis for issues
identified by the parties in their statements of issues reserved for trial.
Documents could be requested by letter, and if any disputes arose, the
attorneys were directed to contact the court’s clerk to schedule an immediate
conference call. The court’s order setting forth these conditions was dated
October 17, 2022.
Christienne, for reasons unknown, waited until November 22 to
request formal discovery rather than the informal letter contemplated by the
court’s October 17 order. The due date for discovery was less than 30 days
before the trial date set for January 24, 2023. Max sent objections
electronically on December 27, 2022. Christienne’s request for relief was filed
more than 45 days later, on February 27, 2023. (At some point, the January
24 trial date was apparently vacated.)
2 Christienne claims all of this judge’s orders must be deemed
void and set aside, but she provides no authority for this proposition.
4
Around this same time, Christienne again moved to disqualify
the trial judge. The matter was reassigned to another judge, apparently
without further hearings, in December.
Christienne states that she brought an “‘informal motion to
compel’” but does not cite to a document in the record. Max’s response, which
states Christienne’s discovery request was untimely for several reasons, is in
the record. On March 24, 2023, the new judge assigned to the case issued a
ruling, finding that the statutory cutoff for discovery was 30 days before the
January 24, 2023 trial date. The court, therefore, was required to hear any
discovery motion 15 days prior to trial. Because vacating the trial date did
not reopen discovery, the court could not hear the motion to compel.
In the same order, the court partially granted Christienne’s
motion for attorney fees, finding that a disparity existed between the parties
to access funds to retain counsel. The court noted that the parties income and
expense declarations stated Max’s income at $10,000 per month, and
Christienne was unemployed. The court found an attorney fee order of
$10,000 was reasonable under the circumstances, without prejudice to a
future request for fees.
Christienne now appeals.
DISCUSSION
I.
PRINCIPLES OF APPELLATE REVIEW
The existence of an appealable judgment or order “‘is a
jurisdictional prerequisite to an appeal.’ [Citation.] A corollary of this rule is
that an appeal from a judgment or order that is not appealable must be
dismissed.” (In re Marriage of Deal (2022) 80 Cal.App.5th 71, 77-78.)
5
Generally, with some exceptions, only final judgments are appealable; this is
known as the “final judgment rule.” (Ibid.)
Further, “the right to appeal is strictly statutory, and a judgment
or order is not appealable unless made so by statute.” (Enrique M. v.
Angelina V. (2004) 121 Cal.App.4th 1371, 1377.) In civil matters, Code of
Civil Procedure section 904.1 is the main statutory authorization for appeals.
In addition to final judgments, Code of Civil Procedure section 904.1,
subdivision (a)(10) provides that an appeal may be taken from “an order
made appealable by [the provisions of] the Probate Code or the Family Code.”
When this court finds that jurisdiction is proper, we review the
matter with certain principles in mind. “A judgment or order of a lower court
is presumed to be correct on appeal, and all intendments and presumptions
are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990)
51 Cal.3d 1130, 1133.) “The burden of affirmatively demonstrating error is on
the appellant. This is a general principle of appellate practice as well as an
ingredient of the constitutional doctrine of reversible error.” (Fundamental
Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.)
Accordingly, the burden is on Christienne “to present argument
and authority on each point made” (County of Sacramento v. Lackner (1979)
97 Cal.App.3d 576, 591; Cal. Rules of Court, rule 8.204(a)(1)(B))3 and to cite
to the record to direct the reviewing court to the pertinent evidence or other
matters in the record that demonstrate reversible error (rule 8.204(a)(1)(C);
Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115). The failure
to do so may result in an argument or issue being deemed waived. (Duarte v.
3 All subsequent rule references are to the California Rules of
Court.
6
Chino Community Hospital (1999) 72 Cal.App.4th 849, 856; see Stover v.
Bruntz (2017) 12 Cal.App.5th 19, 28.)
II.
MOTION TO AUGMENT
Christienne filed a motion to augment the record in this case
with reporter’s transcripts from August 20, 2019, October 30, 2020, March 18,
2022, October 13, 2022, March 24, 2023, June 12, 2023, and June 13, 2023.
Rule 8.155 permits augmenting the record on appeal.
Augmentation, however, is not unlimited. “‘Augmentation does not function
to supplement the record with materials not before the trial court.
[Citations.] . . . Rather, normally “when reviewing the correctness of a trial
court’s judgment, an appellate court will consider only matters which were
part of the record at the time the judgment was entered.” [Citation.]’
[Citation.] The augmentation procedure cannot be used to bring up matters
occurring during the pendency of the appeal because those matters are
outside the superior court record.” (In re K.M. (2015) 242 Cal.App.4th 450,
455–456.)
The challenged orders here were, according to Christienne, from
March 24, 2023. She claims she is not seeking to augment the record with
transcripts from June 12 and June 13, 2023, to “bring up matters that were
not before the trial court” but “as evidence [the trial judge] knew about the
disqualification of [the former judge] before March 2023.” Nonetheless, she
cannot use a transcript after the date of the challenged order to “prove” this
or anything else. Ultimately, as we shall discuss below, the issue of what the
trial judge knew and when she knew it is irrelevant anyway.
The motion to augment is granted as to the transcripts for
August 20, 2019, October 30, 2020, March 18, 2022, and October 13, 2022.
7
The March 24, 2023, transcript is already part of the record, so the request to
augment is duplicative and therefore denied. The transcripts from June 12,
2023, and June 13, 2023, were not before the court on March 24, and
augmentation is therefore denied.
In her reply letter brief, Christienne also asks us, for the first
time, to take additional evidence and make additional factual findings on
appeal. This request is procedurally improper and not supported by legal
argument. It is therefore denied.
On our own motion and without objection by the parties, we
augmented the record with the Register of Actions dated July 10, 2024.
III.
“REFUSAL TO HEAR” MOTION TO COMPEL
Christienne argues the court’s “refusal” to hear her motion to
compel is a due process violation. First, the record reflects that the most
recent trial judge assigned to the case did consider Christienne’s motion and
found it untimely. The court did not refuse to rule on the motion.
Second, it is important to note that as we discussed above, only a
narrow class of orders are appealable. There is no “due process” exception to
appealability, nor does invoking due process turn a nonappealable order into
an appealable one. Discovery orders are not appealable orders under Code of
Civil Procedure section 904.1. Accordingly, we cannot consider Christienne’s
appeal of this order until there is a final judgment in this case.
Christienne cites In re J.R. (2022) 82 Cal.App.5th 569, for the
proposition that “a due process violation confers standing on Christienne to
pursue this appeal.” First, this is not an issue of standing, which is a question
of whether the proper party is before the court. In a case involving
particularly egregious facts, In re J.R. held that in a dependency appeal
8
challenging the termination of parental rights, the appellant father had
standing to challenge the social service agency’s violation of the mother’s due
process rights. (Id. at p. 573.) Unlike this matter, the issue was not whether
there was an appealable order.
The law is clear that discovery orders, with narrow exceptions
not applicable here, are not final, appealable orders. “‘The rationale for this
rule is that in the great majority of cases the delay due to interim review is
likely to result in harm to the judicial process by reason of protracted delay
[citation] and discovery orders may be reviewed on appeal from a final
judgment on the merits.’” (Curtis v. Superior Court (2021) 62 Cal.App.5th
453, 463–464.)
IV.
MAX’S INCOME AND EXPENSE DECLARATION
The next issue Christienne raises in her opening brief is her
claim that the trial court violated her right to due process by
“unquestioningly accepting” Max’s income and expense declaration,4 which
was relevant to the court’s decision on her attorney fee motion.
(Capitalization & boldface omitted.) As Max correctly points out, this is not
an issue that can be appealed independently; there is simply no appealable
order. In her reply brief, Christienne clarifies that she is not attempting to
independently appeal this issue.
When considered as part of the attorney award, we find no error.
Such declarations are a required part of motion practice in family court. (See
4 Max correctly points out that Christienne failed to include this
income and expense declaration in her appendix on appeal. While that is
grounds for deeming her contention waived, Max did include the declaration
in his appendix. We therefore address the issue briefly in the interests of
justice.
9
rule 5.111.) Any objections are required to be submitted to the court prior to
the hearing, and there is no evidence that Christienne filed objections here.
(Rule 5.111 (c)(1).) Only upon a showing of good cause, which the court did
not find, may such objections be raised at the hearing. (Ibid.)
Further, despite her arguments to the contrary, Christienne has
no statutory right to cross-examine a declarant at a hearing for attorney fees
under Family Code section 2030.5 Christienne also makes numerous
statements about the “errors” in the judge’s ruling, but fails to support them
with citations and legal argument. We find the court did not err by
considering Max’s income and expense declaration and giving it whatever
weight the court deemed proper.
V.
ATTORNEY FEE AWARD
As noted above, the trial court, pursuant to Christienne’s request,
granted her $10,000 in attorney fees of the $450,000 she sought pursuant to
section 2030. “On appeal, we review an attorney fee award under section
2030 for an abuse of discretion.” (In re Marriage of Sorge (2012) 202
Cal.App.4th 626, 662.) We will not reverse a need-based award “absent a
showing that no judge could reasonably have made the order, considering all
of the evidence viewed most favorably in support of the order.” (In re
Marriage of Falcone and Fyke (2012) 203 Cal.App.4th 964, 975.) The court’s
factual findings are reviewed for substantial evidence. (In re Marriage of
Smith (2015) 242 Cal.App.4th 529, 532.) The petitioning party bears the
burden of demonstrating the need for an attorney fee award under section
2030. (In re Marriage of Bendetti (2013) 214 Cal.App.4th 863, 868.)
5 All further undesignated statutory references are to the Family
Code.
10
“In deciding whether to award attorney fees, the trial court
considers the parties’ respective needs and incomes, including their assets
and liabilities.” (In re Marriage of Bendetti, supra, 214 Cal.App.4th at p. 868.)
The court undertook such an analysis here. The court first found “a disparity
exist[ed] between the parties in access to funds to retain counsel.” “Based on
the information contained in the parties’ Income and Expense Declarations,
[Max] earns $10,000 per month, and [Christienne] is unemployed. [Max] has
a potential for bonuses, which have not been factored into the $10,000
monthly base salary, as he just recently started his position. [Max] also
resides in Texas, where there is no state income tax, resulting in a higher
monthly net spendable than if he lived in a state that collected income tax.
[Max] has greater access to funds to pay fees than does [Christienne],
including over $20,000 in stocks, bonds, and other assets he admits he could
easily sell. Both parties have some equity in the marital residence that was
awarded to [Christienne] but has not yet been equalized. Further, although
[Max] identifies household expenses that nearly reach what he contends is
his monthly income, he also admits that his current wife contributes to some
of the household expenses, while [Christienne] is not receiving assistance
with household expenses from another member of her household. Pursuant to
the current child support order, [Max] is ordered to pay [Christienne] $4,007
per month in child support (August 4, 2022 Order). An order from March 24,
2022, indicates that [Max] was in arrears for child support, suggesting that
[Christienne] may have gone without support for some period of time, and
[Max]’s Income and Expense Declaration indicates that he is paying $650 per
month in child support arrears.
“The Court finds that given [Max]’s assets, he has the ability to
make a contribution to [Christienne]’s attorneys’ fees. The Court further finds
11
that fees to maintain or defend the proceeding are reasonably necessary,
particularly because the parties are scheduled to go to trial in June, and
presentation of evidence will likely be more efficient and expedient with the
assistance of counsel. That all said, the Court cannot conclude, based on the
evidence presented, that [Max] can pay all of [Christienne]’s legal fees . . . .
Assuming the information on the parties’ Income and Expense Declarations
is correct and that [Max] is paying the court-ordered support, the parties
have a cash flow that is in parity with one another. Given that [Max] has
access to funds he can easily liquidate, however, the Court finds that a
contribution by [Max] to [Christienne]’s attorneys’ fees in the amount of
$10,000 is reasonable under the circumstances.”
Christienne appears to contend the trial court did not include all
of the relevant factors in reaching its decision. But the case she cites for this
proposition, Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 253, does
not hold that the court must consider all of the factors set forth in section
4320, a different attorney fee statute. It provides: “To be sure, not all section
4320 factors will be relevant all the time (hence the ‘to the extent relevant’
language in § 2032). But obviously a number of section 4320 factors will
usually bear on a pendente lite fee order. These surely include earning
capacity (subd. (a)); ability to pay, taking into account such things as assets
and standard of living (subd. (c)); respective needs (subd. (d)); obligations and
assets (subd. (e)); age and health (subd. (h)); and the overall balance of
hardships (subd. (k)).” (§ 4320.)
Here, the court considered all of these explicitly with the
exception of “age and health,” and as Christienne offers no argument on how
consideration of age and health might have resulted in a different outcome,
we conclude the court considered all of the relevant factors. The record
12
reflects that the court actually exercised its discretion in fashioning the
attorney fee award. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269,
315.)
Christienne next contends the court lacked substantial evidence to find
Max’s income was $10,000 a month. This reflects a fundamental
misunderstanding of the nature of appellate review for substantial evidence.
A party “raising a claim of insufficiency of the evidence assumes a ‘daunting
burden.’” (Whiteley v. Philip Morris Inc. (2004) 117 Cal.App.4th 635, 678.) On
review for substantial evidence, “We do not review the evidence to see if there
is substantial evidence to support the losing party’s version of events, but
only to see if substantial evidence exists to support the verdict in favor of the
prevailing party. Thus, we only look at the evidence offered in [defendant’s]
favor and determine if it was sufficient.” (Pope v. Babick (2014) 229
Cal.App.4th 1238, 1245.)
Here, Max’s income and expense declaration was supported by
his signature under penalty of perjury, a spreadsheet showing his
outstanding installment payments, and an offer letter from his employer
showing his salary as of February 9, 2023, and a supplemental declaration.
Christienne, without citing to evidence or the record, states Max’s declaration
“(a) was certainly incomplete and non-compliant, (b) was alleged to be
falsified in the extreme.” This is unhelpful and does not support her claim
that the court’s order was not supported by substantial evidence. She also
claims the court should have considered a Department of Child Support
Services order finding that as of August 2022, Max’s monthly income was
$16,092. It was not an abuse of discretion for the court not to consider this in
light of Max’s documentation of new employment.
13
Christienne also argues the court erred by not considering Max’s
litigation tactics, but this is a discretionary factor, not a required one. (In re
Marriage of Hearn (2023) 94 Cal.App.5th 380, 386–388; In re Marriage of
Sorge, supra, 202 Cal.App.4th at pp. 662–663.) Given the balance of equities
and the use of questionable tactics by both parties, it was not an abuse of
discretion not to consider litigation tactics.
In sum, we find no abuse of discretion in the court’s attorney fee
order. Christienne may seek additional fees at any time.
VI.
REQUEST TO DISQUALIFY THE TRIAL JUDGE
Finally, Christienne argues the current trial judge should be
“disqualified” because she purportedly relied on void orders. This request is
procedurally improper. (Code Civ. Proc., § 170.3; Tri Counties Bank v.
Superior Court (2008) 167 Cal.App.4th 1332, 1337.) Further, Christienne’s
argument on this point in her opening brief is less than a page long and
includes no legal analysis. Accordingly, the issue would be deemed waived
even if it was properly raised. (Duarte v. Chino Community Hospital, supra,
72 Cal.App.4th at p. 856.)
14
DISPOSITION
The court’s order is affirmed. Max is entitled to his costs on
appeal.
MOORE, ACTING P. J.
WE CONCUR:
GOETHALS, J.
GOODING, J.
15