Filed 8/17/16 Marriage of Walther CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of KIRA and HOWARD 2d Civil No. B267209
WALTHER. (Super. Ct. Nos. 1440419, 1440375)
(Santa Barbara County)
KIRA WALTHER,
Respondent,
v.
HOWARD WALTHER,
Appellant.
Howard Walther (husband) appeals from an order directing him to pay
$50,000 in pendente lite attorney fees to Kira Walther (wife). He also appeals from (1)
an order directing him to pay attorney fees to counsel who was representing the parties’
son, and (2) an order directing a child custody evaluator to prepare a report. The latter
order is nonappealable. We dismiss the appeal to the extent it seeks review of this order.
In all other respects, we affirm.
This is the second time that husband has appeared before us on appeal in
this case. In an unpublished opinion filed in 2015, we ordered the trial court to determine
a “reasonable rate of return” on husband’s assets and to recalculate temporary child and
spousal support. (In re Marriage of Walther (Nov. 30, 2015, B260104).)
Factual and Procedural Background
The parties married in February 1998 and separated in February 2014.
They have two children: a son born in 2003 and a daughter born in 2009. In March 2014
wife filed a petition for dissolution of marriage.
In August 2015 wife filed a request for pendente lite attorney fees.
According to her Income and Expense Declaration filed on August 12, 2015, her average
monthly wages for the last 12 months were $2,078, but she had earned $3,131 the
previous month. She was receiving monthly spousal support of $1,952. Her sole asset
was $20,991 in cash. Her average monthly expenses were $8,335.
According to husband’s Income and Expense Declaration filed on July 21,
2015, his average monthly income for the last 12 months was $1,500. His income was
derived entirely from dividends and interest. His assets consisted of $1,500 in cash,
$1,120,000 in “[s]tocks, bonds, and other assets [he] could easily sell,” and $1,183,000 in
real property. The real properties were “up for sale and no longer rented.” His average
monthly expenses were $3,507.
At a hearing in September of 2015, the court ordered husband to pay wife’s
attorney fees of $50,000. Pursuant to husband’s request, the court asked wife to prepare a
statement of decision. On September 30, 2015, husband filed a notice of appeal.
The court did not sign a statement of decision. Instead, on November 4,
2015, it signed and filed a document entitled, “Findings and Orders after Hearing
Granting [Wife’s] Request for Order for Pendente Lite Attorney Fees” (hereafter
“Findings and Orders”).
On October 18, 2015, wife filed an “Ex Parte Application In Support of
Emergency Orders Pending Trial.” Wife requested, inter alia, that San Filippo, a child
custody evaluator, be ordered to prepare a report and that husband be ordered to
immediately pay attorney fees of $8,332.45 to Charles Oxton, who was representing the
parties’ son. At a hearing on October 26, 2015, the trial court granted the requested relief
and directed wife to prepare an order. Three days later, husband filed a notice of appeal.
2
On November 24, 2015, the court signed a document entitled “Findings and Order after
Hearing,” which incorporated its findings and orders at the hearing on October 26, 2015.
Appeal from Order Awarding Pendente Lite Attorney Fees
Live Testimony
Husband contends that, at the hearing on wife’s motion for pendente lite
attorney fees, the trial court erred in refusing to receive live testimony without making a
finding of good cause for its ruling. Family Code section 217, subdivision (a) provides:
“At a hearing on any . . . notice of motion brought pursuant to this code, absent a
stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court
shall receive any live, competent testimony that is relevant and within the scope of the
hearing . . . .”1
We need not, and do not, determine whether the trial court erred. If it had
erred, the error would not have been reversible because husband failed to make an offer
of proof. Evidence Code section 354, subdivision (a) provides that a decision shall not be
reversed because of the erroneous exclusion of evidence unless the error “resulted in a
miscarriage of justice” and “[t]he substance, purpose, and relevance of the excluded
evidence was made known to the court by the questions asked, an offer of proof, or by
any other means . . . .” “This rule is necessary because . . . the reviewing court must
know the substance of the excluded evidence in order to assess prejudice [i.e., to
determine whether the exclusion resulted in a miscarriage of justice]. [Citations.]”
(People v. Anderson (2001) 25 Cal.4th 543, 580-581.) “An offer of proof must consist of
material that is admissible, and it must be specific in indicating the name of the witness
and the purpose and content of the testimony to be elicited. [Citation.]” (People v.
Rodrigues (1995) 8 Cal.4th 1060, 1176.)
Husband did not comply with this requirement. He provided a list of his
witnesses (himself, wife, and an unnamed “forensic accountant”) and described the
subject matter of their testimony. But he provided no information about the “content of
the testimony to be elicited.” (People v. Rodrigues, supra, 8 Cal.4th at p. 1176.)
1
Unless otherwise stated, all statutory references are to the Family Code.
3
Husband states, “[He] did make offers of proof with regard to evidence to
be presented.” This conclusory assertion, unaccompanied by any analysis, is insufficient
to show that he made an adequate offer of proof. (In re S.C. (2006) 138 Cal.App.4th 396,
408-410.) Husband improperly cites pages 34-52 of the reporter’s transcript. “[I]t is
manifestly ‘the duty of a party to support the arguments in its briefs by appropriate
reference to the record, which includes providing exact page citations. [Citations.]’
[Citation.] [Husband’s] single citation to a reporter’s transcript with block page
references, for example, ‘RT Vol 6, 2480–2501,’ frustrates this court’s ability to evaluate
which facts a party believes support his position, particularly when [as here] a large
portion of that citation referred to points that appeared to be irrelevant.” (Nazari v.
Ayrapetyan (2009) 171 Cal.App.4th 690, 694, fn. 1.)
In any event, the cited pages of the reporter’s transcript do not show that
husband disclosed the “content of the testimony to be elicited.” (People v. Rodrigues,
supra, 8 Cal.4th at p. 1176.) “Because [husband] . . . failed to make an offer of proof, the
[live testimony] issue was not preserved for appeal.” (Magic Kitchen LLC v. Good
Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1165.)
Section 4320 Factors
In determining whether to award pendente lite attorney fees, the court
“shall take into consideration the need for the award to enable each party, to the extent
practical, to have sufficient financial resources to present the party’s case adequately,
taking into consideration, to the extent relevant, the circumstances of the respective
parties described in Section 4320.” (§ 2032, subd. (b).) Husband argues that the trial
court erred because it “failed to address the relevant Section 4320 factors in its findings
and order.” We consider only the relevant factors claimed by husband to have not been
addressed by the court. We review the award of attorney fees for abuse of discretion.
(In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866.)
Section 4320 provides that the court shall consider the parties’ assets and
income. Husband asserts that, although the trial court “dr[e]w a comparison between
Wife’s income and Husband’s assets,” it “failed to make any findings with regard to
4
Wife’s assets or Husband’s income.” We disagree. In its Findings and Orders, the court
found that wife “has savings in the sum of $24,000.” The court did not mention
husband’s income, but this omission did not constitute an abuse of discretion in view of
wife’s minimal assets and husband’s substantial assets. The court found that, “by his
admissions made in his first filed Income and Expense Declaration [husband] has $2.8
million in securities and real estate . . . .” The court acknowledged that husband “now
contends [in his current Income and Expense Declaration filed on July 21, 2015,] that he
is attempting to liquidate rental income producing properties and that his liquid stock and
cash assets have [been] reduced to $1,120,000 from $1,230,840.”
Husband complains that the court “elected to rely” upon the $2.8 million
figure in his first Income and Expense Declaration “instead of relying on his more
recently filed Income and Expense Declaration.” The court’s above- quoted statements
show that it considered his current Income and Expense Declaration, which supports the
award of pendente lite attorney fees.
Statement of Decision
At the hearing on pendente lite attorney fees, husband requested a statement
of decision. The trial court asked wife to prepare the statement. In its subsequently filed
Findings and Orders, the court observed that a statement of decision is not required in
“[a] proceeding to determine whether a spouse should be awarded . . . attorney’s fees
pendente lite.” Thus, “rather than issuing a statement of decision as requested by
[husband], the court is issuing findings and orders after hearing.”
Husband agrees that “no statement of decision is required [for a pendente
lite attorney fees order,] notwithstanding a party’s timely request. [Citation.]” But,
without further discussion, he claims, “[The trial judge] elected to exercise his discretion
in ordering the preparation of a statement of decision and his subsequent reversal of this
decision represents an abuse of that discretion.” “This is no legal analysis at all. It is
simply a conclusion, unsupported by any explanation of why [the court abused its
discretion]. Hence, [husband] has forfeited the claim of error. [Citation.]” (In re S.C.
(2006) 138 Cal.App.4th 396, 410.)
5
Appeal from Order Awarding Attorney Fees to Son’s Counsel
In July 2015 the trial court appointed Charles Oxton to represent the
parties’ son in a lawsuit filed by husband on behalf of son. In August 2015 the court
“broadened Charles Oxton’s duties . . . to also include matters of custody and visitation.”
In addition, it appointed Oxton “as Guardian ad Litem of [son]” for purposes of the
lawsuit. It ordered that husband “be responsible for Mr. Oxton’s fees and costs.” On
October 26, 2015, the court ordered husband to pay Oxton’s attorney fees of $8,332.45
for services rendered through September 28, 2015.
Husband argues that Oxton should have been disqualified and is not
entitled to attorney fees because he failed to comply with rule 5.242 of the California
Rules of Court.2 The disqualification issue is not properly before us because in the trial
court husband did not seek to disqualify Oxton and the court did not rule on this issue.
(Ernst v. Searle (1933) 218 Cal. 233, 240-241.) The attorney fee issue, on the other hand,
is properly before us. We reject wife’s contention that the order is nonappealable.
“‘When a court renders an interlocutory order collateral to the main issue, dispositive of
the rights of the parties in relation to the collateral matter, and directing payment of
money or performance of an act, direct appeal may be taken. [Citations.]’ [Citation.] . . .
[¶] The [October 26, 2015,] order finally determined the issue of previously incurred
attorney fees [i.e., fees incurred through September 28, 2015] . . . . ‘Such a determination
is substantially the same as a final judgment in an independent proceeding.’ [Citation.]”
(In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1311.)
Rule 5.242(b)(3) provides that, “[t]o be eligible for appointment as counsel
for a child, counsel must . . . [m]eet the education, training, and experience requirements
of this rule.” The requirements are set forth in rule 5.242(c)-(g). “A person appointed as
counsel for a child must . . . [f]ile a declaration with the court indicating compliance with
the requirements of this rule no later than 10 days after being appointed and before
beginning work on the case. Counsel may complete the Declaration of Counsel for a
Child Regarding Qualifications (form FL-322) . . . for this purpose.” (Rule 5.242(h)(1).)
2
All References to rules are to the California Rules of Court.
6
Oxton did not file form FL-322 within the required 10-day period. Instead,
he filed it late on October 9, 2015. The form shows that he met the education, training,
and experience requirements of rule 5.242.
Husband has not presented any legal argument in support of his claim that
Oxton “should be precluded from . . . [receiving] payment in this matter” because he
“was never in compliance” with rule 5.242. Accordingly, we deem the claim abandoned.
“When an issue is unsupported by pertinent or cognizable legal argument it may be
deemed abandoned and discussion by the reviewing court is unnecessary. [Citations.]”
(Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.)3
Order Requiring Child Custody Evaluator to
Prepare a Report is Nonappealable
Husband asserts that the trial court erroneously ordered San Filippo, a child
custody evaluator, to “provide a summary of (a) work done to date, (b) road blocks she
has encountered preventing completion, and (c) a summary of the witness interviews she
has conducted.” Code of Civil Procedure section 904.1, subdivision (a)(10) provides that
an appeal may be taken “[f]rom an order made appealable by the provisions of the . . .
Family Code.” We are not aware of any Family Code provision that authorizes an appeal
from the order in question. We therefore dismiss the appeal to the extent it seeks review
of that order.4
3
In his reply brief, husband’s counsel states that he “searched extensively through
the existing state case law and could not find a published case which addressed the failure
to timely and properly file a [form] FL-323.” The absence of a case directly on point did
not preclude the discussion of cases involving similar situations.
4
We reject husband’s claim in his reply brief that the order is an “appealable
collateral order.” The order is not “truly collateral in that it is [not] ‘distinct and
severable’ from the subject matter of the underlying litigation. [Citation.]” (Apex LLC v.
Korusfood.com (2013) 222 Cal.App.4th 1010, 1016.) In addition, the order does not
“‘direct the payment of money by appellant or the performance of an act by or against
him.’ [Citations.]” (Lester v. Lennane (2000) 84 Cal.App.4th 536, 561.)
7
Sanctions
In the conclusion of her brief, wife asks this court to “issue an order to
show cause as to why [husband] should not be sanctioned for a frivolous appeal, and
should order [him] to pay [wife’s] attorney fees for having to oppose it.” Wife “has not
filed a separate sanctions motion as required by California Rules of Court, rule
8.276(b)(1). Sanctions cannot be sought in the respondent’s brief. [Citation.] The
request for sanctions is denied [for failure to comply with rule 8.276(b)(1)]. [Citation.]”
(Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 919.) Wife may seek recovery of her
appellate attorney fees in the trial court.
Disposition
The appeal is dismissed to the extent it seeks review of the order directing
San Filippo to prepare a report. In all other respects, the orders appealed from are
affirmed. Wife shall recover her costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
8
James E. Herman, Judge
Superior Court County of Santa Barbara
______________________________
Newman and Horton, Alex S. Newman, for Appellant.
Law Offices of Stephanie J. Finelli, Stephanie J. Finelli; Drury Pullen,
Susanna V. Pullen, for Respondent.