Marriage of Sherr CA3 ( 2014 )

Filed 5/16/14 Marriage of Sherr CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
In re the Marriage of CYNTHIA GAYLE and C070012
DAVID BRIAN SHERR.
CYNTHIA GAYLE SHERR, (Super. Ct. No. 09FL05503)
Respondent,
v.
DAVID BRIAN SHERR,
Appellant.
Wife sought a trial court order establishing child and spousal support arrearages,
awarding the exclusive use and possession of personal property, and awarding attorney
fees. Husband did not file a timely response to wife’s motion. After the trial court
rejected Husband’s late attempt to file a response and entered an order in Wife’s favor on
all three issues, Husband sought relief from the late filing, which the trial court rejected.
On appeal, Husband contends that the trial court abused its discretion by not granting
relief from the late filing and erred in various aspects of the order.
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We conclude the trial court did not abuse its discretion in denying relief from the
late filing. We also conclude that Husband’s contentions concerning the merits of the
order are forfeited or without merit.1
BACKGROUND
Cynthia and David Sherr (Wife and Husband) married in 1989 and have four
daughters. Wife filed a petition to dissolve the marriage in 2009, and they separated on
March 10, 2011. The parties stipulated to an order requiring Husband to pay $486 in
spousal support and $1,987 in child support each month starting in May 2011.
After proceedings not challenged in this appeal, Wife, on September 27, 2011,
filed a motion seeking:
(1) exclusive use and possession of (a) a Lexus, (b) a Dodge truck, and (c) a boat
and trailer,
(2) to establish support arrearages totaling $11,152, and
(3) for attorney fees under Family Code sections 271 and 2030.
She stated that she needed the vehicles for transportation and desired to sell the
boat and trailer to pay living expenses and attorney fees. The hearing was set for October
26, 2011, and Wife served the notice of hearing on Husband.
On October 6, 2011, the trial court granted Wife’s request for a domestic violence
restraining order, requiring Husband to stay away from Wife for three years.
Husband stated his response was due on October 12, 2011, but Husband failed to
file a timely response on the merits to Wife’s September 27, 2011, motion. (Code Civ.
Proc., § 1005, subd. (b).)
On October 21, 2011, five days before the scheduled hearing, Husband filed an ex
parte application to continue the hearing scheduled for October 26, 2011, with counsel
1 Wife did not file a respondent’s brief on appeal.
2
claiming that he and Husband had not had time to draft a response. The trial court denied
the ex parte application.
Also on October 21, 2011, Husband filed a belated responsive declaration to
Wife’s motion without leave to file it late. The response was limited to an argument that
Wife’s notice of the motion was defective.
On October 24, 2011, two days before the scheduled hearing, the court issued a
tentative ruling on the motion, in which the court granted Wife’s motion (1) to establish
arrearages of $11,152 (requiring payment of $1,000 per month until paid in full), (2) to
sell the boat and trailer, (3) for control of the Lexus, and (4) for an award to Wife of
$3,457 in attorney fees. The tentative ruling denied Wife’s motion for control of the
Dodge truck.
On October 25, 2011, one day after the tentative ruling and one day before the
scheduled hearing, Husband belatedly filed another responsive declaration without leave
to file it late. He requested that all property remain as situated pending trial on property
issues. In his attached declaration, Husband claimed that Wife had sold personal
property including guns and coins and had used cash (with a total value for the property
and cash of $58,491.81) that had been in a safe at the parties’ home. Husband also
attached an income and expense declaration (not filed separately). Husband claimed for
the first time (in the current record on appeal) that he had no income. Finally, Husband
conceded that he was in arrears on child and spousal support payments.
At the October, 26, 2011, hearing, the trial court denied Husband’s request to
consider the responsive declaration filed the day before. The court modified the tentative
ruling to make the arrearages payable at $500 per month, but in all remaining aspects the
court affirmed the tentative ruling and denied Husband’s request to stay the order.
Also at the October 26, 2011, hearing, Husband’s counsel was fined $500 for
using coarse language. In a later order, the trial court noted that “compounding the
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parties’ dissolution process was an evident lack of professional civility by [Husband’s]
counsel.” (Husband is no longer represented by that attorney.)
On October 27, 2011, Husband filed a motion for relief under Code of Civil
Procedure section 473 for the late filing of the responsive declaration and for
reconsideration of the orders entered the prior day. The motion was set for a hearing on
November 28, 2011.
On November 4, 2011, Wife filed an income and expense declaration. She
declared that she had income of $1,400 and expenses of $4,748 per month.
On November 10, 2011, Wife responded to Husband’s motion, requesting that the
current orders remain in effect. Concerning the property and cash from the safe, Wife
gave an accounting of what the money was used for, including attorney fees, mortgage
payments, other bills, and living expenses.
On November 28, 2011, the court held a hearing on Husband’s motion. It denied
the motion for relief from the late filing of the responsive declaration, and it granted the
motion for reconsideration. However, it appears that the only change to the October 26,
2011, order was that support arrearages would be determined at trial. Husband was still
ordered to pay $500 per month against the arrearages.
Husband filed a notice of appeal from the October 26 and November 28, 2011,
orders.
On December 27, 2011, Husband, having retained a new attorney, filed a request
to stay the proceedings pending appeal. On January 3, 2012, the trial court granted the
request, subject to the condition that Husband deposit with the court both cash and
property.
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DISCUSSION
I
Motion for Relief under Code of Civil Procedure section 473
Husband contends the trial court abused its discretion by not granting his motion
for relief from the late filing of his response to Wife’s September 27, 2011, motion.2 The
contention is without merit.
Under Code of Civil Procedure section 473 (§ 473), a party may bring a motion
for relief from a “judgment, dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable neglect.” (§ 473, subd.
(b).) A party’s neglect is excusable only if a reasonably prudent person in similar
circumstances might have made the same error. (Bettencourt v. Los Rios Community
College Dist. (1986) 42 Cal. 3d 270, 276.)
“The standard for appellate review of an order denying a motion to set aside under
section 473 is quite limited. A ruling on such a motion rests within the sound discretion
of the trial court, and will not be disturbed on appeal in the absence of a clear showing of
abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest
miscarriage of justice. Where a trial court has discretionary power to decide an issue, an
appellate court is not authorized to substitute its judgment of the correct result for the
decision of the trial court. [Citations.] . . . The burden is on the complaining party to
establish abuse of discretion, and the showing on appeal is insufficient if it presents a
state of facts which simply affords an opportunity for a difference of opinion.
[Citation.]” (In re Marriage of Eben-King & King (2000) 80 Cal. App. 4th 92, 118.)
Here, Husband argues that the trial court’s denial of the motion for relief under
section 473 was an abuse of discretion because Husband’s counsel believed he could
2 Husband places this contention last in his opening brief. We address it first
because it affects the resolution of Husband’s other contentions.
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obtain a continuance of the hearing simply by filing an ex parte request. Counsel
declared, in support of the section 473 motion, that “the belated filing of [Husband’s]
responsive declaration was due to [the trial court’s] denial of [Husband’s] counsel’s ex
parte request to continue the hearing . . . .” Counsel claimed that, on the day the response
was due, he was in the second day of a four-day trial. By counsel’s own admission,
however, the ex parte request to continue the hearing was filed nine days after the
response to the motion was due. Furthermore, a second responsive declaration was filed
one day after the court had already issued a tentative ruling on the motion.
Under these facts, the trial court was justified in concluding that Husband was not
entitled to relief under section 473. Even if counsel was in trial at the time the response
was due, it could have been filed before the short trial, or counsel could have sought a
continuance then, rather than waiting until much later. Counsel’s neglect in failing to
respond to the motion in a timely manner was not excusable. It was not merely an
oversight.
Therefore, the trial court was not required to consider Husband’s belated response
on the merits of Wife’s motion or to grant Husband relief from his late filing under
section 473.3
Husband, on appeal, properly contends only that the trial court failed to grant
discretionary (not mandatory) relief from default. Under the discretionary relief
provision of section 473, the party seeking relief must show that any neglect was
excusable. Here, the neglect was not excusable.
3 Even though the trial court denied the motion for relief from the late filing, it
acknowledged in its ruling that it “considered [the Oct. 25 late filing] at the October 26
hearing as it pertained to the vehicles[,] particularly, the Lexus, marine vessel and
trailer.” Husband notes this selective reliance on the late-filed papers, but he does not
argue that such selective reliance required the trial court to consider everything else
contained in the late filing.
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“Section 473, subdivision (b) provides for two distinct types of relief -- commonly
differentiated as ‘discretionary’ and ‘mandatory’ -- from certain prior actions or
proceedings in the trial court. ‘Under the discretionary relief provision, on a showing of
“mistake, inadvertence, surprise, or excusable neglect,” the court has discretion to allow
relief from a “judgment, dismissal, order, or other proceeding taken against” a party or
his or her attorney. Under the mandatory relief provision, on the other hand, upon a
showing by attorney declaration of “mistake, inadvertence, surprise, or neglect,” the court
shall vacate any “resulting default judgment or dismissal entered.” ’[4] [Citation.]
Applications seeking relief under the mandatory provision of section 473 must be
‘accompanied by an attorney’s sworn affidavit attesting to his or her mistake,
inadvertence, surprise, or neglect.’ (§ 473, subd. (b).) The mandatory provision further
adds that ‘whenever relief is granted based on an attorney’s affidavit of fault [the court
shall] direct the attorney to pay reasonable compensatory legal fees and costs to opposing
counsel or parties.’ [Citation.]” (Luri v. Greenwald (2003) 107 Cal. App. 4th 1119,
1124.)
On appeal, Husband cites no authority that mandatory relief under section 473
should have been granted based on an attorney’s declaration of fault. He does not even
quote the part of section 473, subdivision (b) that provides for mandatory relief; he
4 The mandatory relief provision of section 473, subdivision (b) states:
“Notwithstanding any other requirements of this section, the court shall, whenever an
application for relief is made no more than six months after entry of judgment, is in
proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her
mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the
clerk against his or her client, and which will result in entry of a default judgment, or (2)
resulting default judgment or dismissal entered against his or her client, unless the court
finds that the default or dismissal was not in fact caused by the attorney's mistake,
inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an
attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees
and costs to opposing counsel or parties. . . .” (§ 473, subd. (b).)
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quotes only the part that provides discretionary relief. (Amato v. Mercury Casualty Co.
(1993) 18 Cal. App. 4th 1784, 1794 [appellate court may treat as forfeited any contention
not support by authority].) Because Husband properly argues on appeal only that
discretionary relief under section 473 should have been granted, we need not consider
whether mandatory relief under section 473 should have been granted.5
Since Husband fails to establish on appeal that the neglect was excusable, we find
that the trial court did not abuse its discretion in denying relief.
II
Award of Exclusive Use and Possession of Personal Property
Freely relying on the evidence in Husband’s response, which the trial court
determined would not be considered because the response was late, Husband claims the
trial court had no authority to award Wife exclusive use and possession of any personal
property. He asserts that, “given her dissipation of almost $60,000 in the previous five
months,” the trial court could not award the personal property to Wife because it might
interfere with equal division of community property in the future. This assertion is
without merit because it is based on evidence in the late response.
5 We note that, in one of his declarations in the trial court, Husband’s attorney
sought “relief pursuant to [] Section 473 for the mistake and surprise resulting from [the
trial] court’s rulings regarding a continuance . . . .” (Italics added.) Husband’s attorney
also stated: “In as much as the tardy filing of [Husband’s] Responsive Declaration was
due solely to the actions of [Husband’s] attorney, relief pursuant to [] section 473(b) of
the Court’s order denying consideration of [Husband’s] Responsive Declaration filed on
October 25, 2011, would appear to be warranted.” The trial court, in its ruling on the
motion for relief, concluded that Husband’s motion “does not establish any factual basis
upon which [the trial] court could properly grant relief pursuant to [] section 473.” We
presume this means that the trial court found, as a factual matter, that there was no
mistake or surprise involved in the lateness of the filing. In any event, as we stated
above, Husband does not rely on the mandatory relief provision of section 473 on appeal.
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Under the heading in his opening brief, Husband argues: (1) the court must divide
community property equally, (2) the court could not allow Wife to sell the boat and trailer
without ensuring that it would be able to equalize the distribution of property later, (3) the
court could not award the property as past due support, and (4) the court could not award
the property as a deposit on future support payments.
Because Husband did not file a timely response to Wife’s motion, these arguments
were not made in the trial court, and they were not preserved for appeal. (See Karlsson v.
Ford Motor Co. (2006) 140 Cal. App. 4th 1202, 1216-1217 [issues not raised in trial court
forfeited on appeal].) Furthermore, the arguments rely on evidence submitted in
Husband’s late response. Therefore, the arguments fail because there is no evidence to
support them.
In any event, legal precedent and common sense allow that community property
assets may have to be depleted during the course of dissolution proceedings if income is
insufficient to meet reasonable expenses. (See Auclair v. Auclair (1946) 72 Cal. App. 2d
791, 800-801 [community property may be consumed by expenses]; Fam. Code, § 2045,
subd. (a) [recognizing the use of property to provide necessities of life].)
III
Considerations in Awarding Support Arrearages
Husband contends the trial court erred by failing to consider two circumstances in
awarding support arrearages to Wife: (1) Husband’s late-filed income and expense
declaration stating that he had no income and (2) Husband’s late-filed declaration that
Wife had spent almost $60,000. Again, this contention assumes that the trial court was
required to consider Husband’s late-filed papers. Since the trial court did not err by
refusing to consider Husband’s late filings, this contention has no factual basis.
In any event, Husband offers no authority for the proposition that the trial court
was required to consider the money spent by Wife in determining support obligations.
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We may treat as forfeited any contention for which the brief does not provide citation to
authority. (Amato v. Mercury Casualty Co., supra, 18 Cal.App.4th at p. 1794.)
IV
Attorney Fees
In her motion filed September 27, 2011, Wife requested an award of attorney fees
under Family Code sections 271 and 2030. The court awarded $3,457 in attorney fees.
Husband contends the award was improper because (1) Wife did not file an income and
expense declaration before the award was made, (2) the award was statutorily
unauthorized, and (3) the court did not properly exercise its discretion. The contentions
are without merit.
A. Failure to File Income and Expense Declaration
The record on appeal provided by Husband shows no income and expense
declaration filed by Wife until November 4, 2011, which was after the trial court awarded
attorney fees. In his belated responsive declaration, Husband suggested the motion for
attorney fees should be denied because Wife did not file “an updated income and expense
declaration,” but Husband cited no authority for that proposition. As noted, the trial court
awarded attorney fees to Wife.
On appeal, Husband contends that, at the time of the attorney fees award, the
California Rules of Court required the party seeking an award of attorney fees to provide
a current income and expense declaration. (Cal. Rules of Court, former rule 5.128; see
also current rule 5.427.) Although he did not raise the issue until his late filing, which
was not considered by the court, Husband claims “the court was required to recognize
this inherent flaw in [Wife’s] request for fees . . . .” He provides no authority suggesting
the trial court has this duty to discover, on its own, this “inherent flaw.” (Contra, Burkle
v. Burkle (2006) 144 Cal. App. 4th 387, 403 [income and expense declaration requirement
not jurisdictional, and reversible only on showing of prejudice].) We reject Husband’s
contention that the trial court improperly awarded attorney fees without a current income
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and expense declaration from Wife because he did not properly raise the objection in the
trial court; the filing was late, and it offered no authority for the objection.
B. Statutory Authorization
Husband contends the record does not support a finding the attorney fees award
was proper under Family Code section 271 or 2030. We reject this contention because,
as we have already noted, he did not properly object to the award in the trial court.
“In order to preserve an issue for appeal, a party ordinarily must raise the
objection in the trial court. (In re S.B. (2004) 32 Cal. 4th 1287, 1293.) ‘The rule that
contentions not raised in the trial court will not be considered on appeal is founded on
considerations of fairness to the court and opposing party, and on the practical need for
an orderly and efficient administration of the law.’ (People v. Gibson (1994) 27
Cal. App. 4th 1466, 1468; accord, In re Dakota S. (2000) 85 Cal. App. 4th 494, 501.)
Otherwise, opposing parties and trial courts would be deprived of opportunities to correct
alleged errors, and parties and appellate courts would be required to deplete costly
resources ‘to address purported errors which could have been rectified in the trial court
had an objection been made.’ (People v. Gibson, supra, 27 Cal.App.4th at pp. 1468,
1469.) In addition, it is inappropriate to allow any party to ‘trifle with the courts by
standing silently by, thus permitting the proceedings to reach a conclusion in which the
party could acquiesce if favorable and avoid if unfavorable.’ (In re Urayna L. (1999) 75
Cal. App. 4th 883, 886.)” (In re S.C. (2006) 138 Cal. App. 4th 396, 406.)
By failing to make a timely response and objection to the requested award of
attorney fees, Husband forfeited review of the issue.
C. Exercise of Discretion
Finally, Husband contends the record does not establish that the trial court
properly considered the relevant factors in exercising its discretion to award attorney
fees. This contention is also forfeited on appeal because Husband did not challenge the
request for attorney fees in a timely manner.
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DISPOSITION
The order is affirmed. The parties shall bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
NICHOLSON , Acting P. J.
We concur:
HULL , J.
MURRAY , J.
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