Folkes v. Bufford

Filed 3/28/07 Folkes v. Bufford CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from orders of the Superior Court of Los Angeles County. Michael J. Convey, Commissioner. Dismissed in part and affirmed in part.

________

Art Bufford, in pro. per., for Defendant and Appellant.

Law Offices of Robert B. Clayton and Robert B. Clayton for Plaintiff and Respondent.

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We review this case for the third time. In 2003, Phoneisha Folkes filed a paternity action against Arthur Bufford to determine custody, visitation and child support for their daughter Miyae Bufford, born in 2002.^[1] Our first opinion rejected Buffords appeal and affirmed May 5, 2004 orders denying his motions for modification of child support and reconsideration. (Folkes v. Bufford (Jan. 5, 2005, B175903) [non-pub. opn.], modified on denial of rehearing (Feb. 1, 2005) (Folkes I).)

Now, Bufford appeals from January 31 and February 10, 2006 interlocutory orders denying his motion for discovery, awarding Folkes sanctions and attorney fees, changing the temporary visitation and custody arrangements, and setting child support. No judgment has been entered in the case and all the challenged orders relate to interlocutory rulings. We summarily denied Buffords supersedeas petition seeking a stay pending resolution of the appeal. (Folkes v. Bufford (Jan. 24, 2007, B190336.) Bufford contends the court abused its discretion in making the orders.

Because the discovery, sanctions, and temporary custody orders are not appealable, we dismiss Buffords purported appeals from those orders. As to the attorney fees and support modification orders, we reject his contention and affirm the orders.^[2]

FACTS^[3]

Miyae was born in 2002. The parents never married. In 2003, Folkes filed a petition to determine custody, visitation, and child support. On March 3, 2004, the court ordered, among other things, (1) joint legal custody, (2) shared physical custody, Miyae residing with Bufford 31 percent and with Folkes 69 percent of the time, and (3) Bufford to pay Folkes $416 per month in child support, $1,040 in arrearages, and $3,136 as his share of Folkes attorney fees. On May 5, 2004, the court denied Buffords motions to modify support and for reconsideration, and Folkes I affirmed those orders.

On September 24, 2004, Bufford filed a new motion to reduce his child support obligation and to increase his share of physical custody to 50 percent. He alleged that his income had fallen, Folkes had risen, and the court had overstated his and understated Folkes income in its earlier order. Regarding custody, he alleged that he could provide a better environment for Miyae than could Folkes because Folkes work schedule required her to have Miyae in child care during much of her physical custody periods, whereas Bufford or his mother could care for her during those periods. He also alleged that increasing his percentage of physical custody would beneficially increase Miyaes time spent with her half-sister, whose custody Bufford shared with the half-sisters mother.

On March 1, 2005, while Buffords motion remained pending, Folkes filed a motion seeking attorney fees incurred in litigating Buffords various motions. On July 18, 2005, Folkes filed a motion seeking to alter the parties physical custody of Miyae. Folkes declared that her work schedule had changed, the previous schedule of alternating weekend custody and alternating Monday-Wednesday custody no longer was possible, and that if the custody schedule was not changed, she would have to put Miyae into child care more often, but that paying for additional child care was impracticable because Bufford was not paying his ordered pro-rata share thereof. Folkes sought an order allowing Miyae to spend weekends and Wednesday evenings with Bufford and the rest of the time with Folkes to minimize Miyaes time in child care and maximize Folkes time with Miyae.

In September and October 2005, Bufford filed motions seeking discovery and attorney fees. Bufford declared that Folkes had not fully complied with his discovery demands and had frustrated his attempts to meet and confer. He attached copies of some of Folkes pay records, unemployment insurance checks, and bank deposits, and argued that these records showed she had greater income than she reported on her tax returns and income and expense declarations. Folkes filed oppositions and her own discovery motions requesting sanctions and disputing Buffords allegations. Specifically, she declared that approximately $20,000 in bank deposits related to subleases of an apartment and a car where she nominally rented the apartment and leased the car for friends who could not qualify for the lease or auto loan; the friends paid her the monthly rent and lease amounts, and she then paid the rent and lease payments to the landlord and lease company.

On November 4, 2005, the court referred the discovery dispute to a special master for resolution. On December 20, 2005, the court vacated that order and set the various motions for a January 2006 hearing.

The court heard the motions on January 31 and February 10, 2006. Both parties testified. Regarding his motion to compel discovery, Bufford argued that Folkes failed to respond to his discovery requests, requiring him to subpoena her records, which resulted in production of the desired material. Regarding his motion to modify child support, Buford stated that Folkes records disclosed that she had about $100,000 of unreported assets and had leased an expensive Mercedes and maintained its lease payments, demonstrating that her income was greater than that reported on her income and expense declarations filed with the court. Regarding the parties competing motions to modify Miyaes physical custody, Bufford argued that granting him greater physical custody would benefit Miyae by maximizing her time with him and his family and minimizing her time in child care when Folkes had physical custody. Regarding Folkes motion for attorney fees and sanctions, Bufford argued that Folkes reasonably could pay her own attorney fees and was more responsible than he for delays and the failure to resolve outstanding issues by agreement.

Folkes argued that she had fully disclosed all her income, and that several of Buffords discovery requests were duplicative. She also argued that Bufford consistently failed to report his home equity of approximately $1,000,000, and that his records disclosed that, contrary to his allegations, he was working and earning far more than he disclosed. She also argued that because of her altered work schedule, increasing her physical custody to the requested times would decrease Miyaes time in child care, increase Miyaes time with her, and thus benefit Miyae. Regarding attorney fees and sanctions, Folkes asked for $43,000 in attorney fees and for $10,000 in discovery sanctions and $10,000 in family law sanctions for unnecessarily extending litigation.

The court denied Buffords motion to compel discovery, finding that two of the motions were duplicative, that Bufford failed to provide sufficient support for the requests, and that Folkes had substantially complied. Regarding Buffords motion to modify child support, the court found that Folkes testimony was persuasive and that Bufford had failed to show significant changed circumstances regarding either partys income, although the court reduced Buffords monthly support obligation from $416 to $406. Regarding the parties motions to modify Miyaes physical custody, the court found that Folkes suggested plan was more child-centered and provided greater stability. The court ordered Miyaes physical custody schedule changed so that Bufford had physical custody from Friday afternoon through Monday morning and on Wednesday evenings, and Folkes had custody the rest of the time. The court calculated that the new schedule did not significantly alter the percentage of either parents physical custody.^[4] Regarding attorney fees and sanctions, the court reviewed and found reasonable Folkes evidence of attorney hours expended, rates charged, and services rendered. The court found that Bufford was primarily responsible for the discovery delays and for unnecessarily litigating the issues, but that Folkes bore some limited responsibility for delaying in responding to some requests. The court ordered Bufford to pay $5,000 in discovery sanctions pursuant to Code of Civil Procedure sections 2030.290, 2030.300, and 2031.310, an additional $5,000 in family law sanctions pursuant to Family Code section 271, and $30,000 in attorney fees pursuant to Family Code section 2030.

On March 20, 2006, the court denied Buffords motion to reconsider the rulings made on January 31 and February 10. On March 30, 2006, Bufford mailed a notice of appeal, challenging the January 31 and February 10, 2006, orders.

DISCUSSION

I. Interlocutory Discovery Orders, Sanctions Awards Not Exceeding
$5,000, and Temporary Custody Orders Are Not Appealable.

Bufford purports to appeal from the interlocutory orders denying his motions to compel discovery, awarding Folkes two $5,000.00 sanctions (one pursuant to Code of Civil Procedure section 2030.290 et seq. and one pursuant to Family Code section 271), and granting Folkes and denying his motions for temporary changes in Miyaes physical custody schedule. He argues that the court abused its discretion in making each of those orders. Because these are interlocutory orders pending final judgment, none of which are separately appealable, we dismiss his appeal from those orders.

Code of Civil Procedure section 904.1 precludes appeals from interlocutory orders where a final judgment has not yet been entered in the case, except where such orders specifically are made appealable. Regarding the sanctions awards, subdivision (b) of the Code of Civil Procedure specifically precludes appeals from sanction orders of $5,000 or less. Thus, because neither of the two sanctions orders exceeded $5,000, neither is appealable, either individually or in combination, nor do the circumstances warrant extraordinary writ relief. (Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 42-45; Ballard v. Taylor (1993) 20 Cal.App.4th 1736, 1738-1740.)

Likewise, interlocutory discovery orders are not separately appealable. (Bishop v. Merging Capital, Inc. (1996) 49 Cal.App.4th 1803, 1806-1809; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 117, p. 181.) Thus, the order denying Buffords motions to compel discovery is not appealable.^[5] Moreover, because Bufford obtained most if not all of the information by subpoena, the facts do not warrant writ relief. (Bishop v. Merging Capital, Inc., supra, 49 Cal.App.4th at pp. 1806-1809; 9 Witkin, supra, 117, p. 181.)

In addition, temporary custody orders are not separately appealable. (Lester v. Lennane (2000) 84 Cal.App.4th 536, 556-565.) Moreover, this record does not warrant extraordinary writ relief because the change in custody is temporary, does not significantly reduce Buffords time with his daughter, and will be reconsidered after a full custody evaluation.^[6] Further, the court did not abuse its discretion in its temporary custody order. (Cf. id. at pp. 565-566.)

II. The Court Did Not Abuse its Discretion in Awarding
Attorney Fees or in Modifying the Support Order.

Bufford contends that the court abused its discretion in awarding Folkes $30,000 in attorney fees and in reducing his monthly support obligation only from $416 to $406. Bufford argues that the court erred in not making his monthly support payments significantly lower. The contentions lack merit.

The order modifying Buffords monthly child support obligation is appealable (In re Marriage of Padilla (1995) 38 Cal.App.4th 1212, 1216), as is the order awarding attorney fees (In re Marriage of Weiss, supra,42 Cal.App.4th at p. 119). A determination regarding whether a modification in a support award is warranted will be upheld in the absence of an abuse of discretion. [Citation.] (In re Marriage of Kepley (1987) 193 Cal.App.3d 946, 951.) The same standard governs review of attorney fee awards. (In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1523.) Because many of the same facts and arguments apply to both orders, we consider them together to avoid repetition.

Regarding the attorney fees, the court determined that Bufford was primarily responsible for the unnecessarily prolonged discovery dispute, as evidenced by his filing repetitive motions and failing to make reasonable efforts to resolve the disputes. The court reviewed and found reasonable Folkes showing of attorney hours expended, rates charged, and services rendered in support of her request for $43,000 in attorney fees. The court also found, however, that Folkes to a lesser degree contributed to the disputes litigiousness, and awarded her $30,000, thereby reducing the fee award by more than 25 percent. The court did not abuse its discretion in doing so.

Regarding Buffords ability to pay both the fee award and child support, the court considered Buffords equity in his house and his admitted 40-hour work week which contradicted his claim of being unemployed. The court also credited Folkes explanations that many of the deposits to her bank accounts involved transactions for friends that did not constitute income to her. Because substantial evidence supports these findings, the court did not abuse its discretion in making the attorney fees or support orders. Bufford points to some facts supporting his position, ignores contrary facts, and argues that the court should have adopted his interpretation of the evidence. An appellate court, however, cannot substitute its judgment about witness credibility or the weight to apply to various facts for that of the trial court.

DISPOSITION

Buffords purported appeal from the orders denying his motions for discovery, imposing sanctions, and temporarily modifying Miyaes physical custody, is dismissed. The January 31 and February 10, 2006 orders awarding attorney fees and setting child support are affirmed. Folkes is awarded her costs on appeal. Folkes request for attorney fees and sanctions for a frivolous appeal is denied.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

VOGEL, Acting P.J.

JACKSON, J.^*

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^[1] Bufford has represented himself both below and on appeal since late 2004.

^[2] We deny Folkes request for attorney fees and sanctions for a frivolous appeal. This ruling does not preclude Folkes from seeking attorney fees on this appeal in a later motion in the trial court. (Fam. Code, 2030.)

^[3] We granted Folkes and denied Buffords motions to augment the record. Bufford supplied only an appellants appendix which included primarily unconformed copies of various motions. Folkes provided a respondents appendix with conformed copies of most of the same documents, her responses, and a few minute orders, as well as reporters transcripts of the hearings regarding the challenged orders. Many of Buffords motions referenced earlier court orders that are not part of the record.

^[4] The court also ordered a child custody evaluation pursuant to Evidence Code section 730 and that the parties enroll in and complete the Parenting Without Conflict program, and calendared a further hearing in August 2006. The court expressly made the new physical custody schedule temporary.

^[5] The order awarding Folkes attorney fees for litigating the discovery disputes, however, is appealable. (In re Marriage of Weiss (1996) 42 Cal.App.4th 106, 119.)

^[6] Indeed, the court already may have conducted a new hearing regarding custody and support, which had been set for August 2006.

^* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI,  6 of the Cal. Const.)