Filed 10/5/18 Jordan v. Binford CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT
| SHAWN BINFORD JORDAN,
Respondent,
v.
BRYAN BINFORD,
Appellant.
|
F075265
(Super. Ct. No. 09CEFL06207)
OPINION |
THE COURT*
APPEAL from an order of the Superior Court of Fresno County. D. Tyler Tharpe, Judge.
Bryan Binford, in pro per., for Appellant.
No appearance for Respondent.
-ooOoo-
In this family law case, appellant Bryan Binford (Bryan) claimed that his ex-wife, respondent Shawn Binford Jordan (Shawn), had willfully disobeyed a custody and visitation order that granted to Bryan supervised visitation every other Saturday with the parties’ three children.[1] Bryan filed an affidavit in the trial court alleging contempt; an order to show cause was issued, and a hearing was held on the contempt charge. After Bryan presented his evidence at the hearing, the trial court found Shawn not guilty of contempt because Bryan had failed to present sufficient evidence, or proof beyond a reasonable doubt, that Shawn had willfully disobeyed the subject order. Bryan’s request at the contempt hearing for an award of need-based attorney fees was also denied, without prejudice. Bryan appeals from the trial court’s order adjudicating the contempt charges and denying attorney fees. We conclude that Bryan has failed to demonstrate an abuse of discretion relating to his request for attorney fees at the contempt hearing, and we affirm the trial court’s order on that issue. Moreover, we dismiss Bryan’s appeal from the trial court’s order regarding the contempt charges because that aspect of the order was not reviewable by appeal.
FACTS AND PROCEDURAL BACKGROUND
On February 4, 2015, the trial court’s minute order stated that the parties reached a temporary agreement regarding visitation prior to trial: That is, Bryan was to have third-party supervised visits of the children every other Saturday, from 10:00 a.m. to 2:00 p.m., supervised by the paternal grandfather (the visitation order).
On June 22, 2016, Bryan filed an “Order to Show Cause and Affidavit for Contempt” (the affidavit). The affidavit stated that “since February 4, 2015,” Shawn had failed to comply with the visitation order “sixteen times without notice or reasonable excuse.” According to the affidavit, on the occasions that Shawn failed to comply, she would merely offer “a flimsy excuse or just plain lies” to the supervising agency in Sacramento where the parties met for a supervised exchange of the children.
An order to show cause was issued and a hearing on the contempt charge was initially scheduled for October 3, 2016. The hearing date was continued to January 3, 2017.
At the hearing, Bryan testified regarding the alleged violations of the court’s order and he also referred to exhibits and his original affidavit. The trial court commented on Bryan’s approach, which was lacking in specifics: “You are never ever, ever going to succeed on a contempt trial, like we have today, unless you can convince me beyond a reasonable doubt, a very high standard, that you were to have parenting time on a specific day and she failed to comply. So you need to take me through the calendar and identify a specific date each of these months that you were to have parenting time and you missed out on it because [Shawn] chose to willfully not comply.” At the conclusion of Bryan’s presentation of his contempt case, counsel for Shawn moved for a judgment in Shawn’s favor on the ground that Bryan’s evidence was “insufficient … to prove beyond a reasonable doubt any of his alleged incidents of contempt of court.”[2] The trial court granted the motion for a defense judgment and found [Shawn] “not guilty” of contempt, stating: “[Bryan] has failed to carry his burden of proving … that [Shawn] willfully violated the Court order respecting custody and visitation and, further, in light of the response in the alleged affirmative defense, had the ability to perform.”
During the same hearing, the trial court turned its attention to Bryan’s attorney fee request. The trial court noted that, ordinarily, in the context of a contempt proceeding, the party prosecutes the alleged contempt through the representation of an attorney, and if that party is successful in showing a willful violation of a court order, the contempt statutes would allow for recovery of attorney fees. (See Code Civ. Proc., § 1218, subd. (a).) Since that was not the situation before it, the trial court inquired if Bryan was seeking “need-based attorney’s fees,” and when Bryan responded in the affirmative, the trial court indicated that its intention was to schedule a subsequent hearing date to consider needs-based attorney fees and to order the parties “to file and serve current income and expense declarations seven calendar days in advance of the hearing.” Bryan appeared to agree with this approach and informed the trial court of his preference to have the attorney fee issue addressed at a subsequent hearing, so that he could more adequately prepare. However, Shawn’s attorney objected to the idea of setting another hearing date and wanted the fee issue to be disposed of. At that point, the trial court inquired whether Bryan had filed a current income and expense declaration. Bryan represented to the trial court that he had not submitted a current income and expense declaration and conceded that he would need to submit a new one. Counsel for Shawn agreed that “[w]e were provided no information [by Bryan] as to his income” and “[t]he Court has no admissible evidence at all as to his income.” Apparently in view of the lack of adequate financial information, the trial court held as follow: “The Court denies [Bryan’s] request for an award of needs-based attorney’s fees without prejudice. [¶ ] [Bryan], what that means is you can file a request for order for needs-based attorney’s fees. Your request today is denied.”
On January 3, 2017, following the hearing, the trial court issued a minute order reflecting the orders it had made during the contempt hearing, including the trial court’s (i) finding that Shawn was not guilty of contempt due to failure of Bryan to meet his burden of proof, and (ii) denial of Bryan’s request for needs-based attorney fees without prejudice.
On March 1, 2017, Bryan timely filed his notice of appeal from the trial court’s January 3, 2017 order.
DISCUSSION
I. Contempt Order Was Not Appealable.
This is an appeal from the trial court’s order or judgment finding that Shawn was not guilty of contempt. The problem, however, is that an appeal does not lie from a judgment or order made in a contempt proceeding. (Code Civ. Proc., § 904.1(a)(1) [contempt judgment is not appealable]; Code Civ. Proc., § 1222 [judgment and orders in contempt cases are “final and conclusive”].) “It is well settled that orders and judgments made in cases of contempt are not appealable, and this rule has been held applicable both where the trial court imposed punishment for contempt and where the alleged contemner was discharged.” (John Breuner Co. v. Bryant (1951) 36 Cal.2d 877, 878; see In re Holmes (1983) 145 Cal.App.3d 934, 941 [“contempt judgments are final, conclusive, and not appealable”]; 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 147, pp. 221–222.) An order or judgment in a contempt proceeding is only reviewable by means of a writ of certiorari if it was in excess of jurisdiction or, where appropriate, by a writ of habeas corpus. (John Breuner Co. v. Bryant, supra, 36 Cal.2d at p. 878; see Davidson v. Superior Court (1999) 70 Cal.App.4th 514, 522 [“A contempt judgment is not appealable … and must be reviewed, if at all, by writ”]; In re Buckley (1973) 10 Cal.3d 237, 259; Taylor v. Superior Court (1942) 20 Cal.2d 244, 246; Gale v. Tuolumne County Water Co. (1914) 169 Cal. 46, 50 [since “the judgment in a contempt case is not appealable[,] … [t]he party aggrieved in such a case must resort to other remedies”].) The rule that such orders are not appealable applies with equal force where, as here, the lower court refused to hold the party in contempt or dismissed the contempt proceedings. (Butler v. Butler (1967) 255 Cal.App.2d 132, 135–136; 8 Witkin, Cal. Procedure (5th ed. 2008) Enforcement of Judgment, § 362, p. 393.)
Because an order or judgment in a contempt case is not appealable and cannot be reviewed on appeal, where such an appeal is filed the appropriate disposition is to dismiss the appeal. (See, e.g., Butler v. Butler, supra, 255 Cal.App.2d at p. 136 [wife appealed from order dismissing contempt proceeding against husband; review on appeal not available, appeal dismissed]; Smith v. Harbegger (1963) 213 Cal.App.2d 183, 184 [on similar facts holding “we have no alternative … except to dismiss the appeal”]; John Breuner Co. v. Bryant, supra, 36 Cal.2d at p. 878 [in an appeal from contempt order finding party not guilty of contempt, motion to dismiss appeal granted and appeal dismissed]; Gale v. Tuolumne County Water Co., supra, 169 Cal. at p. 53 [as contempt judgment “cannot be reviewed on appeal,” “the attempted appeal … is hereby dismissed”].)
Based on the discussion above, it is clear that Bryan cannot appeal from the trial court’s order or judgment finding Shawn not guilty of contempt. Accordingly, Bryan’s appeal from the order or judgment in the contempt proceeding is hereby dismissed.
II. No Abuse or Discretion Shown Regarding Attorney Fee Request
To the extent that Bryan is contending the trial court abused its discretion in denying without prejudice his request for attorney fees, no specific or cogent legal argument is made, nor is any legal authority cited. An appellant must affirmatively demonstrate prejudicial error based on adequate legal argument and citation to the record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 556–557.) When points are perfunctorily raised, without adequate analysis and authority, we pass them over and treat them as forfeited. (Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [failure to provide reasoned legal argument waives issue]; Placer County Local Agency Formation Com. v. Nevada County Local Agency Formation Com. (2006) 135 Cal.App.4th 793, 814; People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4 [an argument raised in a perfunctory fashion is waived]; People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19 [“To the extent defendant perfunctorily asserts other claims, without development … they are not properly made, and are rejected on that basis”].) On this record, we conclude that Bryan has waived any challenge to the attorney fee ruling.
But even if the issue were properly raised, we would conclude that no abuse of discretion has been shown in this case. “The family court has broad discretion in ruling on a motion for fees and costs; we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order.” (In re Marriage of Winternitz (2015) 235 Cal.App.4th 644, 657.) In the absence of a clear showing of abuse of discretion, the trial court’s determination on an attorney fee request will not be disturbed on appeal. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768–769.)
A motion for fees under Family Code sections 2030 and 2032 requires the trial court to consider, among other factors, the parties’ respective needs, incomes and assets. (In re Marriage of M.A. & M.A. (2015) 234 Cal.App.4th 894, 902–903.) In addition to assessing relative need and ability to pay, the court may consider the other party’s trial tactics. (In re Marriage of Winternitz, supra, 235 Cal.App.4th at p. 657.) At the hearing, the trial court was apparently concerned about lack of adequate financial information to evaluate a need-based fee motion and, thus, the court expressly inquired whether Bryan had filed a current income and expense declaration in connection with his attorney fee request. Bryan responded that he had not done so, and he conceded that he would need to submit a new one.[3] Bryan also represented to the court that he was requesting a later or subsequent hearing for the attorney fee issue. That is, Bryan’s position was that he wanted to deal with the attorney fee issue “at another time,” after he had more time to prepare. At the hearing, counsel for Shawn objected that her client was “provided no information [by Bryan] as to his income” and that “[t]he Court has no admissible evidence at all as to his income.” Apparently in light of the acknowledged lack of financial documentation, as represented by both sides at the hearing, the trial court held as follows: “The Court denies [Bryan’s] request for an award of needs-based attorney’s fees without prejudice. [¶ ] [Bryan], what that means is you can file a request for order for needs-based attorney’s fees. Your request today is denied.” (Italics added.) As is clear from the tenor of the order, Bryan’s request for fees was denied without prejudice, with Bryan having a right to file a subsequent motion for such fees. Thus, the court was not denying fees altogether, but was denying his request as presented at that particular time, while allowing Bryan the opportunity to reassert his request for needs-based fees in a subsequent motion. On these facts, we fail to discern any abuse of discretion.
DISPOSITION
Bryan’s appeal from the trial court’s contempt order is dismissed. The trial court’s order denying Bryan’s attorney fee request is affirmed. No costs are awarded on appeal.
* Before Levy, Acting P.J., Detjen, J. and Franson, J.
[1] First names are used for convenience only; no disrespect is intended.
[2] Proof beyond a reasonable doubt is the correct standard. Our Supreme Court has held that “in California all contempt proceedings are quasi-criminal in nature and …, as a consequence, ‘an accused on trial for contempt must be proved guilty beyond a reasonable doubt.’ ” (Ross v. Superior Court (1977) 19 Cal.3d 899, 913.)
[3] In his appeal, Bryan asserts that he was mistaken during the hearing. He now represents that a current income and expense declaration had been ensconced somewhere in his paperwork filed with his contempt motion, and he includes a copy thereof in his appendix. Be that as it may, the trial court was clearly entitled to rely on the parties’ representations or admissions during oral argument, including Bryan’s own concessions about what he failed to submit.
