Marriage of Schmitt

Filed 3/14/06 Marriage of Schmitt CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Frederick Schmitt (husband) and Barrie Todd Schmitt (wife) dissolved their marriage in 2003. They have three minor children. On February 8, 2005, the trial court ruled on wife's order to show cause (OSC), modifying husband's child support obligations and finding him $2,507.50 in arrears on support payments. In two consolidated appeals, husband contends the trial court erred because, when wife's then-counsel filed the OSC, counsel was under a temporary suspension from the State Bar of California for failure to pay bar dues.[1] Counsel had been reinstated to active status before the hearing on the OSC. Husband further contends the trial court was biased against him because it ruled on the OSC even after it learned about counsel's suspension. Finally, he contends the trial court erred because it ruled on the OSC before wife complied with an order to produce her income tax returns and W-2 forms. We affirm.

First, the trial court had no obligation to strike the OSC based on counsel's temporary suspension. By the time of the hearing, counsel had been restored to active status. Moreover, husband has not shown that his substantial rights were affected by the ruling or that a miscarriage of justice occurred. (Code Civ. Proc., § 475; see also Cal. Const., art. VI, § 13.) Had the trial court declined to rule on the OSC, wife would have been able to re-file the same papers after her attorney was reinstated, and she would have obtained exactly the same result. Any error was harmless.

Second, husband's motion to disqualify the trial court judge pursuant to Code of Civil Procedure section 170.6 was properly denied as untimely. Code of Civil Procedure section 170.6 requires that a motion to disqualify be filed "within 10 days after notice" that a case has been assigned to the judge at issue. (§ 170.6, subd. (a)(2).) This case was assigned to Judge Covarrubias on January 15, 2004. Husband filed the motion to disqualify more than 10 months later, on November 22, 2004.

We reject husband's third contention. Child support orders are reviewed for abuse of discretion. (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 555.) To prevail, husband must show that the trial court's ruling was arbitrary, capricious and exceeded the bounds of reason. He has not done so. He has only made a factual assertion, unsupported by any reference to the record on appeal, that the trial court ruled on husband's support allegations without complete information about wife's income and expenses. This is not sufficient to show an abuse of discretion. (Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710.)

The orders in B182395 and B183362

are affirmed. Costs to wife.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Manual Covarrubias, Judge

Superior Court County of Ventura

______________________________

Frederick Paul Schmitt, in pro per, Appellant.

Gregory T. May, for Respondent.

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[1] Husband's notice of appeal in No. B182395 refers to the trial court's order of February 8, 2005. The notice of appeal in No. B183362 refers to an order filed on May 10, 2005. Husband's opening brief on appeal does not raise any issues relating to the May 10, 2005 order. We consider the appeal from that order to have been abandoned. (Berger v. Godden (1985) 163 Cal.App.3d 1113, 1119.)