Marriage of Dolansky and Overton
Filed 10/2/09 Marriage of Dolansky and Overton CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re the Marriage of SHAWN DOLANSKY and JAMES A. OVERTON. | |
SHAWN DOLANSKY, Respondent, v. JAMES A. OVERTON, Appellant. | D054297 (Super. Ct. No. D491976) |
APPEAL from orders of the Superior Court of San Diego County, Lorna A. Alksne, Judge. Affirmed.
The trial court designated James A. Overton a vexatious litigant in June 2008, and prohibited him from filing further litigation in this case without obtaining leave of the supervising judge of the family court. (Code Civ. Proc., 391.7; undesignated statutory references are to the Code of Civil Procedure.) We affirmed that order in the nonpublished opinion, In re Marriage of Shawn Dolansky and James A. Overton (Sept. 9, 2009, D053050 [nonpub. opn.].) (Dolansky I). In this appeal, Overton challenges three subsequent orders denying him leave to file: (1) an order to show cause regarding modification of custody, visitation and child support; and (2) orders to show cause regarding contempt. He argues that his underlying claims have merit and the court erred in preventing him from moving forward with the litigation in family court. We disagree and affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
The court and the parties are familiar with the procedural history of this case, which dates back to August 2005. (See Dolansky I, supra, D053050.) Since July 2006, when the court granted Dolansky's request to move to Boston with the minor children Alex and Julia, the disputes between Dolansky and Overton have focused almost entirely on custody, visitation, and child support. Dolansky has been represented by counsel in all the trial court proceedings and Overton has appeared in propria persona. Because Overton's statement of the case and statement of facts are one-sided and fail to comply with the appellate rules, we shall disregard them in summarizing the relevant background to this appeal. (Cal. Rules of Court, rule 8.204(a)(2)(C).)
Among other things, the July 14, 2008 judgment of dissolution on reserved issues (judgment) awarded Dolansky sole physical custody of Alex and Julia and set forth a schedule for visitation with Overton. Because the children were too young to fly between San Diego and Boston alone, the judgment detailed the manner in which Dolansky and Overton would "alternate paying for the transportation necessary for the children to visit with [Overton]." The judgment ordered Overton to pay for transportation for the next visit "actually taken" by him and Dolansky was "responsible only for paying the transportation costs for a visit following a visit for which [Overton] [had] paid the transportation costs." The judgment also ordered Overton to pay Dolansky $319.00 per month in child support commencing May 1, 2008. In addition, the court found that Overton owed child support arrearages in the sum of $15,654.31 through April 30, 2008 plus interest, and stated that Dolansky was "free to pursue her remedies for collection of the arrearages." The judgment also awarded Dolansky Family Code section 271 sanctions in the sum of $500 to be paid by Overton at the rate of $50 per month.
Shortly thereafter, Dolansky sought a change in the manner of payment for visitation transportation, asking the court to order Overton "to pay for the children's travel expenses for the next scheduled visitation in August 2008, and for each visitation after that which [Dolansky] would otherwise pay for until [Overton] is current in child support and has paid all of the sanctions order." Instead, the court fashioned a different order, filed August 4, 2008, which read in relevant part: "For so long as [Overton] is in arrears on child support and/or sanctions (as ordered on May 1, 2008, and as set forth in the [judgment]), [Overton] shall pay for the transportation costs for the children that would otherwise be paid by [Dolansky] in the manner set forth below: [] 1) [Overton] shall purchase the airplane tickets for the children that would otherwise be paid by [Dolansky]. [] 2) [Overton] shall provide to [Dolansky], with a copy to [Dolansky's] attorney, true copies of actual receipts for all of the transportation costs that [Overton] (or somebody on [Overton's] behalf) has paid for that would otherwise be paid by [Dolansky]. [] 3) [Dolansky], within 30 days of her receipt of the true copies of actual receipts shall reimburse [Overton] for 50 % of those costs. The other 50% shall be deemed a payment by [Overton]against his child support and/or sanctions (as ordered on May 1, 2008, and as set forth in the [judgment]). [] 4) Should [Dolansky] contest [Overton's] reimbursement claim, [Dolansky] shall bring such issue to the Court's attention within the 30-day period referenced above. [] 5) When [Overton] is current in both child support and the sanctions (as ordered on May 1, 2008, and as set forth in the [judgment]), payment for visitation transportation costs shall revert back to what it was before the orders of July 28, 2008, were made." (Italics added.)
In his response to Dolansky's October 2008 request to move the case to Massachusetts, Overton declared that Dolansky had not reimbursed him for her share of the cost of the children's last visitation. He attached an e-mail from Dolansky's attorney in which the attorney noted that Overton had continued to disregard the court's order to pay Dolansky $319.00 in child support each month, and stated that "[w]hen [Overton] failed to meet [his] obligation under the child support order, [Overton] left Ms. Dolansky without the ability to pay [him] what she would otherwise be obligated to pay . . . ."
On November 5, 2008, the trial court summarily denied Overton's request to file new litigation under section 391.7. Overton sought a change in custody, visitation and child support, arguing that Dolansky's failure to reimburse him for her share of visitation costs constituted a change in circumstances. The supporting papers, which the court declined to file, also reiterated earlier allegations that Dolansky failed to preserve the children's multicultural heritage, failed to provide adequate care for Alex following his assault by an older child, and intentionally sought to hamper personal and webcam visitation. He also repeated an earlier claim that the trial court erred in calculating the parties' income for purposes of child support.
On November 21, 2008, the court summarily denied two separate requests to file new litigation in the form of orders to show cause regarding contempt allegedly arising from Dolansky's failure to reimburse him for 50 percent of the summer visitation costs. The 127-page document which the court declined to file repeated earlier allegations that Dolansky filed a false marital settlement agreement, emotionally intimidated Alex, falsely accused Overton to being a threat to abduct the children, failed to provide a timely report of Alex's "assault and rape," denied Overton visitation, committed perjury in imputing business income to him, and engaged in a campaign of parental alienation and interference with court-ordered visitation. Overton also attached evidence on his medical condition which he submitted before the May 2008 trial.
DISCUSSION
I. Section 391.7
The Legislature enacted the vexatious litigant statutes ( 391 et seq.) in 1963 "to curb misuse of the court system by those acting in propria persona who repeatedly relitigate the same issues. Their abuse of the system not only wastes court time and resources but also prejudices other parties waiting their turn before the courts." (In re Bittaker (1997) 55 Cal.App.4th 1004, 1008.) The Legislature added section 391.7 in 1990 "to provide the courts with an additional means to counter misuse of the system by vexatious litigants" who seek to file new litigation. (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 221 (Bravo).) This appeal provides an example of the misuse of time and resources, where Overton ordered preparation of 22 volumes of reporter's transcript and 1473 pages of clerk's transcript dating back to 2006only a fraction of which was arguably relevant to the issues on appeal.
Section 391.7, subdivision (b) reads in part: "The presiding judge shall permit the filing of [new litigation] only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay." (Italics added.) Unlike other sections of the vexatious litigant law which grant the court discretion in the initial determination of vexatious litigant status (Bravo, supra, 99 Cal.App.4th at p. 219 [court exercises its discretion in determining whether a person is a vexatious litigant and that ruling is upheld on appeal if supported by substantial evidence]), the language of section 391.7 is mandatory if the statutory conditions are met. We therefore review the denial of a request to file new litigation under section 391.7 for sufficiency of the evidence. We will affirm the trial court orders if there is any substantial evidence, contradicted or uncontradicted, that supports the implied finding that Overton's orders to show cause lacked merit or were filed for purposes of harassment or delay. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053 (Bickel), citing Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429.) As we explain, Overton fails to sustain his challenge to the sufficiency of the evidence.
II. Change in Custody, Visitation and Child Support
Overton's November 5, 2008 request under section 391.7 involved further litigation on issues of custody, visitation and child support.Apart from the conclusory statement that the law, facts, and final orders of the court support his arguments, Overton's opening brief offers no argument or citation to the record or case authority on the merits of his underlying claim, that is, why modification of custody, visitation and child support was warranted. "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.) Overton has the burden of affirmatively showing error by citation to the record and case authority. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532 (Null); Cal. Rules of Court, rule 8.204(a)(1)(C).) We conclude he failed to sustain that burden.
III. Contempt of Court
Both of the November 21, 2008 orders denying Overton leave to file new litigation involved his claim that Dolansky was guilty of contempt and should be forced to pay him her share of visitation costs as outlined by the court in the August 4, 2008 order. This time, Overton recited various aspects of the law of contempt with some citations to statutory law. Overton did not, however, provide citations to the record to show there was no evidence to support the court's implied finding that his contempt claim was meritless or that he sought to file the orders to show cause for purposes of harassment or delay. Indeed, there is evidence in the record to support both findings.
The implied finding regarding the lack of merit in the contempt claim is supported by the e-mail from Dolansky's attorney in which he stated that Dolansky was unable to reimburse Overton for her share of visitation costs because Overton failed to pay child support in violation of the July 14, 2008 judgment. We resolve conflicting evidence in favor of the order. (Bickel, supra, 16 Cal.4th at p. 1053.) The implied finding that Overton sought to file the new litigation for purposes of harassment or delay is supported by his attempt to place before the court and reargue the multitude of issues finally resolved in the previous judgment and orders.
DISPOSITION
The orders are affirmed. Dolansky is awarded costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
McINTYRE, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
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