Marriage of M.A. and M.A.

Filed 2/24/15
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of M.A and M.A. et al.
D065078
M.A.,

Appellant, (Super. Ct. No. DN129090)

v.

M.A. et al.,

Respondent.

APPEAL from post-judgment orders of the Superior Court of San Diego County,

Pennie K. McLaughlin, Commissioner. Affirmed in part, reversed in part, and remanded.

M.A., in pro per., for Appellant.

M.A., in pro per., for Respondent.

Kamala D. Harris, Attorney General, Julie Weng-Gutierrez, Assistant Attorney

General, Linda M. Gonzalez and Ricardo Enriquez, Deputy Attorneys General, for The

Public Interest.
 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 Code of Civil Procedure section 170.3, subdivision (c)(1). Father appeals from

post-judgment orders: an order dated October 25, 2013, awarding mother $6,500 in

attorney fees under Family Code section 2030; and November 22, 2013 orders,

determining the amount of child support he must pay and other matters.

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 Code of Civil Procedure

section 170.3, subdivision (c)(4). We agree and, therefore, we reverse these orders and

remand the matter to the superior court for further proceedings.

BACKGROUND

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

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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

the one-half of the actual cost of day care and the children's health care premiums.

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 "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."

In March 2011 the County of San Diego Department of Child Support Services

(Department) began enforcing the dissolution judgment and eventually levied

approximately $7,600 from father's bank account. In October 2011 the Department filed

two motions. One motion requested a modification of father's child support obligation

and a seek work order against father. The other motion requested a determination of

child support arrears. It included a declaration from mother detailing father's child

support history from January 2008 to September 2011. The declaration indicated father

had been ordered to pay $817 a month, but had never paid this amount. Rather, one

month he paid or was credited for paying $2,000, and the remaining months he paid

differing amounts ranging from a low of nothing to a high of $390, with $68 being the

most common amount.

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

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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

Fam. Code, § 4251, subd. (b).)

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 day care

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

Family Code section 271. In support of her requests, mother produced evidence showing

father had miscellaneous income of $473,923 in 2011 and a checking account balance of

$175,240.71 as of November 30, 2012.

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 day care and health care expenses. Father argued the plain

language of the judgment, supported by the parties' course of dealing, only required him

to pay half of whatever the actual costs of the children's day care and health care were for

any given month.

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 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 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

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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 Code of Civil Procedure sections 170.1 and 170.3 against the

commissioner handling the case. In the statement, father alleged the commissioner

showed bias by, among other acts: (1) failing to take any "corrective action" against

mother's counsel after interpreting the dissolution judgment's child support provisions in

father's favor; and (2) awarding mother temporary child support.

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 Code of Civil Procedure section 170.3, subdivision (c)(1). The

court further found the face of the statement failed to state legal grounds for

disqualification as the allegations of bias in the statement were based solely on the

commissioner's prior rulings.

At the August 1, 2013, hearing, the court advised the 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,"

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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 Code of Civil Procedure sections 128.5, 128.7, and Family Code section

271. Mother opposed father's request for sanctions and in turn sought sanctions against

him.

At a hearing on October 25, 2013, the court heard mother's request for attorney

fees and awarded her $6,500 under Family Code section 2030, subd. (a).1 The court

continued the hearing as to father's motion for sanctions and the determination of father's

child support obligation from November 1, 2011, forward.2

1 Mother initially sought attorney fees under Family Code section 3557. She later
orally modified her request to seek attorney fees under Family Code section 2030.

2 Although the October 25, 2013, hearing was reported, our knowledge of what
transpired at the hearing is limited because father did not include a transcript of it in the
appellate record.

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 In November 22, 2013, the day of the continued hearing, father filed a combined

objection under Family Code section 4251 to the commissioner acting as a temporary

judge and a second statement seeking the commissioner's disqualification under Code of

Civil Procedure sections 170.1 and 170.3. Regarding the objection under Family Code

section 4251, father indicated he had not previously objected to the commissioner acting

as a temporary judge because the commissioner never provided him with the required

notice advising him of his right to have the proceedings reviewed by a superior court

judge and how to exercise the right. (See Fam. Code, § 4251, subd. (b).) He further

asserted the commissioner's failure to provide him with the required noticed rendered all

of her prior orders void. Consequently, he requested the court vacate the July 5, 2013,

order requiring him to pay temporary child support and the October 25, 2013, order

requiring him to pay mother's attorney fees. He did not, however, request the court

vacate the July 5, 2013, order finding his child support obligation under the dissolution

judgment was limited to half of the actual day care and health insurance premium

expenses.

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 Family Code section 4251,

subdivision (b); (2) refusing to allow him to make arguments at the August 1, 2013,

hearing on his attorney's motion to be relieved; and (3) failing to read his pleadings or

allow him to make arguments before awarding mother attorney fees at the October 25,

2013, hearing.

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 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 the father's objection under Family Code section 4251, the court initially

sustained the objection, but later reversed itself and found the objection was untimely.

While the court implicitly acknowledged it had not advised father of his right to object to

the commissioner acting as a temporary judge, the court found father was aware of this

right because he was represented by a family law specialist prior to the commencement of

the July 5, 2013, hearing, and he had been personally served with the Department's

motion for modification of support, which contained the advisement.3

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 mother's income and

$97,000 of claimed expenses associated with father's 2011 contingency fee earnings. The

modified ordered required father to pay monthly child support of $1,843 from

November 1, 2011 through July 31, 2012; $946 for August 1, 2012 through October 31,

2013; $894 from November 1, 2013 through October 31, 2014; and nothing after

November 1, 2014. The modified order continued to credit father for amounts previously

paid by or collected from him. The court additionally denied father's request for

3 Although father was not under oath at the time, father informed the court his
former attorney never told him of his right to object.

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sanctions, father's request for reconsideration of the October 25, 2013, attorney fees

award, and mother's request for another award of attorney fees.

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." (Fam. Code, § 2030, subd. (a)(1); In re Marriage of

Sullivan (1984) 37 Cal.3d 762, 768 [the purpose of a pendente lite attorney fees award is

to provide a party, where necessary, with adequate funds to properly litigate the

controverted issues].)

4 Although the Department has taken a position on the other issues raised on appeal,
it has not taken a position on this issue because the issue does not involve the statewide
child support program.

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 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 abilities. (Ibid.) The decision to award

attorney fees is left to the court's sound discretion. (Id. at pp. 768-769.) We will not

disturb the award on appeal absent a clear showing of abuse, e.g., a clear showing no

judge could have reasonably made the award. (Id. at p. 769.)

Here, the record, viewed in the light most favorable to the court's decision, shows

the court considered the parties' respective income 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.) Accordingly, father has not shown the requisite clear abuse necessary for us to

reverse the court's order.

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 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. (Code

Civ. Proc., §§ 170.3, subd. (c)(1); 170.5, subd. (a).) The statement must be presented at

the earliest practicable opportunity after the party discovers the facts constituting the

grounds for disqualification. (§ 170.3, subd. (c)(1).)

Once a statement of disqualification is filed, the commissioner has limited power

to act in the proceeding until the question of his or her disqualification is determined.

(Code Civ. Proc., § 170.4, subd. (a), (d).) The commissioner may, without conceding

disqualification, "request any other judge agreed upon by the parties to sit and act in his

or her place." (Code Civ. Proc., §§ 170.3, subd. (c)(2), 170.4, subd. (a)(2).) The

5 Generally, a party may only obtain review of the determination of the
disqualification of a commissioner by filing a petition for writ of mandate. (Code. Civ.
Proc., § 170.3, subd. (d); People v. Brown (1993) 6 Cal.4th 322, 336.) There is an
exception to this rule for claims asserting the deprivation of constitutional due process.
(See, e.g., People v. Brown, supra, at pp. 332-335; Brown v. American Bicycle Group,
LLC (2014) 224 Cal.App.4th 665, 673; Tri Counties Bank v. Superior Court (2008) 167
Cal.App.4th 1332, 1339.) We need not decide whether this exception applies here
because father is not challenging the propriety of the court's failure to act on his statement
of disqualification. Rather, he is challenging the import of the court's failure to act on the
validity of the court's subsequent orders.
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commissioner may also, within 10 days of the filing or service of the statement,

whichever is later: (1) order the statement stricken if the statement is untimely or, on its

face, discloses no legal grounds for disqualification; (2) consent to disqualification; or (3)

file a written verified answer to the statement. (Code Civ. Proc., §§ 170.3, subd. (c)(3);

170.4, subd. (b).) However, the commissioner may not ignore the statement. (Urias v.

Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 421.)

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. (Code Civ. Proc.,

§ 170.3, subd. (c)(4); Urias v. Harris Farms, Inc., supra, 234 Cal.App.3d at pp. 418-419,

421-422; Hollingsworth v. Superior Court (1987) 191 Cal.App.3d 22, 26; Lewis v.

Superior Court (1988) 198 Cal.App.3d 1101, 1103-1104.)

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. (Code Civ. Proc., § 170.4, subd. (d);

Lewis v. Superior Court, supra, 198 Cal.App.3d at pp. 1103-1104.) Thus, the orders she

made at the hearing regarding father's objection under Family Code section 4251 to her

acting as a temporary judge, the Department's and father's motions for modification of

child support, father's request for sanctions, father's request for reconsideration of the

award to mother of $6,500 in attorney fees, and mother's request for an award of

additional attorney fees are all invalid. (People v. Cowan (2010) 50 Cal.4th 401, 454

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[except as permitted by Code of Civ. Proc. § 170.4, actions taken by a disqualified judge

are invalid]; accord, Rossco Holdings, Inc. v. Bank of America (2007) 149 Cal.App.4th

1353, 1362; Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 776.) Given this

consequence, we need not address father's remaining challenges to these orders.

DISPOSITION

The post-judgment order of October 25, 2013, awarding mother attorney fees of

$6,500 is affirmed. The post-judgment 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.

MCCONNELL, P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

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