Opinion
A161532
11-18-2021
ALEX DANEMAN, Petitioner, v. THE SUPERIOR COURT OF MARIN COUNTY, Respondent; DEBORAH DANEMAN, Real Party in Interest.
NOT TO BE PUBLISHED
(Marin County Super. Ct. No. FL000821)
SIMONS, Acting P. J.
On December 10, 2020, petitioner Alex Daneman (Husband) filed a petition that this court deemed a petition for writ of habeas corpus/prohibition. Husband requested a stay of a November 25, 2020 custody order (Order) entered by respondent Superior Court of Marin County, and further requested issuance of a writ directing that the Order be vacated. The Order was based on Husband's failure to comply with a January 8 spousal support order in favor of real party in interest Deborah Daneman (Wife), which resulted in an October 21 finding of contempt of court. The Order stated that Husband "is guilty of 10 counts of contempt and sentenced to 50 days in jail. 40 days are stayed pending compliance with support order and 10 days in custody at the Marin Co[unty] jail."
On August 23, 2021, this court rejected Husband's appeal from the January 8, 2020 support order. (See In re Marriage of Daneman (Aug. 23, 2021, A159773) [nonpub. opn.].) On August 25, this court denied Husband's petition for writ of review/mandate/habeas corpus regarding the trial court's contempt finding. (Daneman v. Superior Court for the County of Marin (Aug. 25, 2021, A161937) [nonpub. opn.].)
In his petition, Husband argued the Order was issued in violation of former section 1218, subdivision (c)(4) of the Code of Civil Procedure (Stats. 2013, ch. 352, § 56) (former Section 1218(c)(4)), in effect at the time of the Order, which required the trial court to "take parties' employment schedules into consideration when ordering … imprisonment." Husband also argued the Order was cruel and unusual punishment. On December 11, 2020, this court stayed the Order and issued an order to show cause why the Order should not be vacated based on Husband's claim under former Section 1218(c)(4).
Former section 1218(c)(4) stated, "The court shall take parties' employment schedules into consideration when ordering either community service or imprisonment, or both." That language now appears in section 1218, subdivision (c)(1)(D) of the Code of Civil Procedure. (Stats. 2020, ch. 283, § 1, eff. Jan. 1, 2021.)
Wife filed a return and Husband filed a traverse to Wife's return. On October 15, 2021, this court issued an order observing that Husband "implicitly concedes he did not argue below that the trial court was obligated under [former Section 1218(c)(4)] to consider his 'employment schedules' before entering a contempt order of imprisonment." This court asked the parties to file supplemental briefs addressing whether Husband "forfeit[ed] his claim by failing to rely on that statute below," as well as whether any failure to consider Husband's employment schedules was prejudicial.
On October 25, 2021, Husband and Wife filed the requested supplemental briefs. Husband does not claim he argued below that it would be a violation of former Section 1218(c)(4) for the trial court to issue the Order without considering his employment schedules. Instead, Husband argues that the language of former Section 1218(c)(4) is mandatory, that it was the trial court's obligation to comply with the statute regardless of whether Husband brought it to the court's attention, and that Husband did inform the court "[h]e was working to re-establish business relations to make the Court Ordered Payments." (Emphasis omitted.)
It is well established that "a reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected." (In re S.B. (2004) 32 Cal.4th 1287, 1293; see also People v. Saunders (1993) 5 Cal.4th 580, 589-590.)" '" 'If any other rule were to obtain, the party would in most cases be careful to be silent as to his objections until it would be too late to obviate them, and the result would be that few judgments would stand the test of an appeal.'" '" (Saunders, at p. 590; accord People v. Zaragoza (2016) 1 Cal.5th 21, 49.) Husband's supplemental brief fails to explain why or cite any authority that the mandatory language in former Section 1218(c)(4) affects application of the standard forfeiture rule; this court will not develop Husband's arguments for him. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.)
Although we have discretion to consider an issue not raised below in a case "presenting an important legal issue," this is not one of the "rare[]" cases where it is appropriate to do so. (In re S.B., supra, 32 Cal.4th at p. 1293.) The principal issue as framed by the briefs filed by Husband and Wife is whether it is appropriate to presume the trial court considered Husband's employment schedule where the record is silent on that question. That issue would not exist had Husband argued below that former Section 1218(c)(4) required the trial court to consider his employment schedule.
Accordingly, we conclude Husband has forfeited any claim of error under former Section 1218(c)(4).
DISPOSITION
The petition for writ of habeas corpus/prohibition is denied. This court's stay of the November 25, 2020 custody order will be dissolved upon finality of the opinion as to this court. (Cal. Rules of Court, rule 8.387(b).)
WE CONCUR. NEEDHAM, J., BURNS, J.