Marriage of Frost

Filed 10/9/07 Marriage of Frost CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco, Judge. Affirmed in part and remanded with directions.

Taune Gail Mays, in pro. per., for Appellant.

Richard Anthony Frost, in pro. per., for Respondent.

After hearing, the trial court issued an order modifying prior child custody and support orders as requested by Richard Frost (father). The trial court also awarded father attorney fees of $6,080.

Taune Gail Mays (mother) appeals, contending that the trial court (1) should have issued a statement of decision; (2) improperly delegated fact finding authority to fathers counsel; (3) failed to tier the award of child support; and (4) improperly awarded father his attorney fees.

I. FATHERS ORDER TO SHOW CAUSE

The parties were married in 1987 and filed for dissolution on June 1, 1999.^[1] The parties have three children: R.F., B.F., and N.F. In June 2006, R.F. was 16, B.F. was 14, and N.F. was 9.

On June 19, 2006, father filed an order to show cause and an application for modification of existing child custody, visitation, and child support orders. He also requested an award of attorney fees.

The application is accompanied by fathers declaration, which states that the mother previously had physical custody of the three children, with the parents sharing joint legal custody. The application requests that father be given sole legal and physical custody, and that visitation and child support orders be changed accordingly. The application also requests that father be awarded attorney fees and costs of $6,080.

The application was accompanied by fathers seven-page declaration in which he details alleged physical abuse of the three children by mothers husband, Brad Mays, and mothers alleged failure to protect the children from abuse. The application was also supported by evidentiary photographs. The declaration states that the alleged incidents occurred between November 28, 2004, and June 13, 2006. Father states that he became aware of the incidents on April 10, 2005. The abuse allegations were also supported by the statements of the children to investigators.

Father filed an income and expense declaration showing an average income of $5,000 per month, and expenses of $3,871. He submitted a copy of a W-2 form showing annual income of $58,368 in 2005.

The first hearing on the application was held on July 13, 2006. Mothers request for a continuance was granted, but the court ordered that father should have legal and physical custody, terminated child support, and denied visitation to the mother. All other existing orders remained in effect.^[2] Mother was ordered to allow the children to enter her home and remove their personal belongings.

On August 17, 2006, mother filed her responsive declaration. She agreed that father should have physical custody, but requested joint legal custody. She requested weekend and vacation visitation, and she consented to guideline support. She requested that each party bear their own attorney fees and costs.

In an attachment, mother requested unsupervised visitation and assured the court that her current husband would not be present during visitation. Mother reiterated that she agreed with guideline child support, but she requested a tiered support order because the eldest child would be age 18 in less than a year. She objected to the request for attorney fees, contending that there was no basis for such an award based on need, and that an award as a sanction would be improper. Finally, she requested a statement of decision on all controverted matters.

At the same time, mother filed her income and expense declaration. She stated that she was self-employed in the family business and that she was paid $250 per month. Her husbands income was $5,200 per month. Total monthly expenses were $2,570. In her attachment, mother explained her income: I am currently working in a business venture in which my husband and I have a 70% partnership interest. The business is currently operating at a loss but it involves an exclusive franchise that has future potential. The cash I have been able to take from the business would be less than minimum wage. I agree that I am capable of working at my last gainful employment as a casino cashier where I was paid $8.00/hour.

The matter was heard on August 31, 2006, and taken under submission. Since mother agreed that father should have physical custody of the children, the initial issues were legal custody and whether visitation should be monitored. According to fathers attorney, both Child Protective Services and the mediator recommended supervised visitation.

With regard to child support, fathers attorney stated: Another issue before the court is child support, and I ran it two ways; and I think the court will note that its not a function of his income. I put [father] at $5,000. I put him at $7,000. With regard to mothers ability to earn, the attorney used the admitted figure of $8 per hour, or $1,400 per month. Although he did not state that the results were within guidelines, or what computer program he may have used to calculate the amounts, fathers attorney sought $635 a month in child support.

With regard to attorney fees, fathers attorney argued that they would not have been incurred if mother had not failed to protect her children from the physical abuse of the children by her current husband.

The remainder of the hearing dealt with the childrens efforts to recover their personal effects from mother pursuant to the order issued at the July 13, 2006, hearing. The trial court then ordered that all previous orders in the domestic violence prevention case would remain in effect until August 31, 2009.

On September 14, 2006, the trial court issued its order on the contested issues. It awarded sole legal and physical custody of the children to father. It ordered four hours of supervised visitation for mother each Saturday. It ordered mother to pay father $635 per month in child support, and to pay child support arrearages of $1,905. It ordered that the childrens belongings be delivered to them by October 1, 2006. And, finally, the trial court ordered mother to pay father attorney fees and costs of $6,080.

II. FAILURE TO PROVIDE A STATEMENT OF DECISION

Mother argues that the trial court should have issued a statement of decision for three orders made here: the order modifying child support, the order modifying child custody, and the order awarding attorney fees. Mother points out that she requested a statement of decision in an attachment to her responsive declaration to the order to show cause.

Mother relies on Family Code section 3654,^[3]which states: At the request of either party, an order modifying, terminating, or setting aside a support order shall include a statement of decision.^[4]

With regard to child custody, section 3022.3 states: Upon the trial of a question of fact in a proceeding to determine the custody of a minor child, the court shall, upon the request of either party, issue a statement of the decision explaining the factual and legal basis for its decision pursuant to Section 632 of the Code of Civil Procedure.

On the attorney fee issue, mother argues that the issue is sufficiently important to require explanation in a statement of decision. She cites In re Marriage of Askmo (2000) 85 Cal.App.4th 1032. In that case, the court summarized the applicable law as follows: Code of Civil Procedure section 632 requires the trial court to issue a statement of decision upon the trial of a question of fact when it receives a request therefor by a party appearing at trial. In general, however, section 632 applies when there has been a trial followed by a judgment. [Citation.] It does not apply to an order on a motion. [Citation.] This is true even if the motion involves an evidentiary hearing and the order is appealable. [Citation.] Since the proceeding on respondents order to show cause was not a trial and was not followed by a judgment, under the general rule, the trial court was not required to issue a statement of decision. [] Exceptions to the general rule have been created for special proceedings. [Citations.] In determining whether an exception should be created, the courts balance (1) the importance of the issues at stake in the proceeding, including the significance of the rights affected and the magnitude of the potential adverse effect on those rights; and (2) whether appellate review can be effectively accomplished even in the absence of express findings. [Citation.] [Citation.] (Id. at p. 1040.)

Father argues that mother waived her right to a statement of decision by failing to reiterate her request at the August 31, 2006, hearing, following her written request as set forth in her attachment to her response to the order to show cause. Even when a party has previously requested a statement of decision, where [the] party remains silent at the hearing and fails to bring the issue to the trial courts attention, he or she waives the right to a statement. [Citation.] (In re Marriage of Cauley (2006) 138 Cal.App.4th 1100, 1109.)

But even if mother waived her right to a statement of decision, this court is not bound by mothers waiver. A statement of decision is as much, or more, for the benefit of the Court of Appeal as for the parties. It is our touchstone to determine whether or not the trial courts decision is supported by the facts and the law. [Citation.] [Citation.] (In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1010.) The importance of the statement for appellate purposes is underscored by the rule that a trial courts failure to render a statement of decision is reversible error. (Ibid., citing In re Marriage of Ananeh-Firempong (1990) 219 Cal.App.3d 272, 282.)

Mothers original written request for a statement of decisionas set forth in her attachment to her response to the order to show causeauthorized the trial court to issue a statement regarding its modification of the existing support order pursuant to section 3654. In addition, the award of attorney fees to father was sufficiently important to require the trial court to issue a statement of decision pursuant to mothers written request. (In re Marriage of Askmo, supra, 85 Cal.App.4th at p. 1040.) Our review of these issues will be more effectively accomplished with the benefit of the trial courts statement of decision on these matters. (See ibid., citing Gruendl v. Oewel Partnership, Inc. (1997) 55 Cal.App.4th 654, 660.)

III. THE DOMESTIC VIOLENCE RESTRAINING ORDER

On June 13, 2006, father filed a request for a domestic violence restraining order under a separate case number. The following day, after hearing, the request was granted and an order issued. The order included an award of sole legal and physical custody of the children to father, without visitation by mother. At the hearing on July 13, 2006, the two cases were consolidated and the restraining order was continued until the August 31, 2006, hearing.

In her initial legal discussion, mother states that she intended to appeal from the granting of the restraining order, but was under the mistaken belief that it was included in the September 14, 2006, order. She concedes that the issues relating to the order are not part of this appeal, and that the time to appeal the order has passed. Accordingly, no issues regarding the restraining order are properly before this court.

IV. DISPOSITION

The matter is remanded to the trial court with directions to prepare a statement of decision concerning its modification of the support order and its award of $6,080 in attorneys fees to father. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ McKinster

Acting P.J.

/s/ Miller

J.

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^[1] Our record contains scant factual background, but the essential facts are undisputed. By order filed July 17, 2007, we granted fathers motion to augment the record. We have therefore considered the documents filed with that motion as part of our record on appeal.

^[2]The existing orders included those issued in a domestic violence prevention action filed June 13, 2006. As discussed below, that action was consolidated with this action at the July 13, 2006, hearing.

^[3] All further statutory references are to the Family Code unless otherwise indicated.

^[4]Mother also quotes section 4056, which requires findings when a support order varies from the statewide uniform guideline formula amount. However, that section is inapplicable because there was no evidence or argument here that the support ordered by the trial court was different from the guideline amount.