Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. J. Michael McCoy, Temporary Judge, Super.Ct.No. IND89542
Scott Allen Wasko, in pro. per., for Appellant.
Law Offices of J. Alan Plott and J. Alan Plott for Respondent.
OPINION
Gaut, J.
Scott Allen Wasko (Scott) in propria persona appeals from temporary orders for spousal support and attorney’s fees awarded to Lori Ann Wasko (Lori). He contends that (1) the entry of Lori’s default on Lori’s failure to timely file a response to his petition barred Lori from filing the order to show cause that resulted in the orders he appeals; (2) Lori should not have been granted relief from this default; (3) none of the relief requested in the order to show cause should have been granted because it was not served in advance of the hearing; (4) the order for him to pay Lori support and attorney fees was not supported by his and Lori’s income and expenses; and (5) Lori and Lori’s counsel should pay sanctions to Scott because the positions and actions they have taken have been meritless. We affirm and deny sanctions.
We will refer to the parties by their first names for purposes of clarity and not out of disrespect. (Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1, and cases cited therein.)
1. Background
Scott filed a petition for dissolution of the marriage which was personally served on Lori on August 7, 2006. On September 8, 2006, at Scott’s request, the clerk entered Lori’s default. The same day, Lori attempted to file a response, which the clerk rejected, although she did file the order to show cause that is the subject of this hearing. In the order to show cause, which was set for hearing on October 18, 2006, Lori requested temporary spousal support, attorney fees, payment of their two mortgages, return of a pickup truck, accounting of a $50,000 bank deposit, and property restraint and control orders. On September 22, 2006, Lori filed a motion to set aside the default, which was set for hearing on October 25, 2006.
Lori did not file a proof of service of the order to show cause. Nevertheless, Scott filed a responsive declaration on October 11, 2006. On October 16, 2006, Scott filed a memorandum in opposition to the order to show cause and proof of service by mail.
At the October 18, 2006, hearing on the order to show cause, the court stated it would not consider Scott’s “untimely filed pleadings,” which was a reference to Scott’s memorandum filed October 16, 2006. Because there was no proof of service of the order to show cause, the court considered Scott’s response filed on October 11, 2006.
After the October 18, 2006, hearing on the order to show cause, the court entered a minute order including $1,551 per month spousal support to Lori, $2,500 attorney fees in monthly payments of $250 to Lori’s attorney, mutual property restraint orders, exclusive possession of the residence and pickup truck to Lori, an accounting by both parties of any amounts withdrawn from the bank deposit with any remaining funds to be held in Lori’s attorney’s trust account, a denial of Lori’s request that Scott pay the mortgages, and a direction that Lori’s attorney file a formal order.
On October 25, 2006, the court set aside Lori’s default, and she filed a response to the petition on November 1, 2006. On March 7, 2007, the formal Findings and Order after Hearing were filed. Scott filed a notice of appeal on March 22, 2007, specifying only the formal order.
2. Discussion
A. Entry of Default
Scott contends that Lori’s default in failing to timely file a response to his petition barred Lori from filing the order to show cause and deprived the court of jurisdiction to make the temporary orders. Not so.
While a default in timely filing a response in a dissolution action prevents the respondent from contesting the petition on the merits until the default is set aside, the default does not prevent the respondent from requesting, or the court from granting, temporary orders effective until the final judgment is entered. (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1037-1038; Washington v. Washington (1959) 170 Cal.App.2d 652, 655.) This is so because temporary orders are not final determinations of the issues raised in the petition, and because temporary orders are necessary to permit the family to survive and the litigation to go on. (In re Marriage of Askmo, supra, at pp. 1038-1039.)
Here, as noted by the superior court judge, no judgment had yet been entered, so the action was pending and Lori had the right to ask for, and the court had the jurisdiction to make, the temporary orders set forth in the minute order of October 18, 2006, and the formal order filed March 7, 2007.
B. Relief from Default
Scott contends that Lori should not have been granted relief from default. We ignore the contention because it does not set forth a ground for reversing the temporary orders.
The only order appealed was the formal order granting temporary orders. As set forth in the previous section, the entry of default did not bar Lori from asking for, nor deprive the superior court of jurisdiction to make, the temporary orders. Thus, whether relief was granted or denied from the default does not affect the propriety of the temporary orders. That issue will only become relevant if an appeal is taken from an appealable judgment adjudicating issues raised in the petition and response.
C. Service of the Order to Show Cause
Scott contends that none of the relief requested in the order to show cause should have been granted because “proper notice of [the] order to show cause hearing [was not served on him] sufficiently in advance of the hearing thereon to allow [him] . . . the opportunity to attend and to rebut any requests made therein . . . .” We disagree.
“Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing. . . . All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days, and all reply papers at least five court days[,] before the hearing.” (Code Civ. Proc., § 1005, subd. (b); Cal. Rules of Court, rule 3.1300(a) [follow Code Civ. Proc., § 1005 in family law proceedings].) “Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (Cal. Rules of Court, rule 3.1300(c).) The clerk may not reject late filings, but the court may refuse to consider them, in which case the minutes or order must record the refusal. (Cal. Rules of Court, rule 3.1300(d).)
“‘[I]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.’” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288, review den. June 13, 2007, S152657.)
Lori’s order to show cause appears not to have been served at all, violating the requirements for service, and the filing of proof of service, before the hearing. Scott’s responsive declaration was filed only seven days before the hearing, in violation of the nine-day rule, and his further opposition filed two days before the hearing violated the same rule. Nevertheless, the trial court exercised its discretion to consider Lori’s order to show cause and Scott’s response, but not to consider Scott’s further opposition filed just two days before the hearing. Scott appeared and contested the order to show cause on the merits without raising Lori’s failure to serve him, and he may not now object that the order to show cause was not served.
D. Spousal Support
Scott argues the trial court erred in ordering temporary spousal support and attorney’s fees. Because Scott has failed to provide an adequate record for review, we must affirm.
In an appeal, the appellate court is constitutionally required to presume the superior court’s judgment correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [“an ingredient of the constitutional doctrine of reversible error”].) The appellant has the burden of overcoming that presumption by, most fundamentally, providing an adequate record for review. (See Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296 [court declines to order rehearing on attorney fees because appellant failed to provide reporter’s transcript of settled statement showing trial court’s rationale for reduced award].) “‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) A judgment will be affirmed on an inadequate record because “[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, . . .” (Denham v. Superior Court, supra, 2 Cal.3d at p. 564.) Thus, if an appellant asserts error based on only a partial record, and the missing part of the record could provide grounds for affirming the judgment, the appellate court will affirm the judgment. (Osgood v. Landon (2005) 127 Cal.App.4th 425, 435.)
Both the award of spousal support and the award of attorney fees are primarily based on the spouses’ relative need and ability to pay. (Fam. Code, §§ 2030, subd. (a), 4320, subds. (c) & (d).) In assessing one spouse’s relative “need” and the other party’s ability to pay, the court considers evidence concerning the parties’ current incomes, assets, and abilities, including investment and income-producing properties. (Fam. Code, §§ 2030, subd. (a), 4320; In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.) Thus, the parties’ income and expense declarations are usually the most important evidence considered in awarding spousal support and attorney’s fees.
At the hearing on the OSC, Lori’s counsel referred to the fact that both parties had filed income and expense declarations. However, those declarations are not part of the record on appeal. Without that information, we must presume the trial court properly exercised its discretion in ordering temporary support and attorney’s fees. Scott has not demonstrated an abuse of discretion in awarding spousal support or attorney’s fees pendente lite.
E. Contempt
In his conclusion, Scott seeks reversal of a finding that he was in contempt of court. The record on appeal does not include the motion, any opposition, or any order respecting a contempt ruling. Nor does the record include any information, aside from an entry in the register of actions, relating to any contempt proceedings. Further, the notice of appeal did not specify such an order as included in the appeal. (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.) Because Scott has neither appealed, nor provided the record needed to review, the contempt order, we will not address his contentions respecting it.
He has not provided an adequate record for review so we cannot presume his intention to appeal any other orders under the rules of liberal construction. Thus, we cannot review Scott’s arguments relating the finding that he was in contempt.
F. Sanctions
Scott also seeks sanctions against Lori and her counsel for the positions and actions taken by them, presumably in the trial court. However, he did not request sanctions in the trial court so he has forfeited that argument. “‘A party on appeal cannot successfully complain because the trial court failed to do something which it was not asked to do.’” (Chyten v. Lawrence & Howell Investments (1993) 23 Cal.App.4th 607, 617.)
3. Disposition
The temporary orders for spousal support and attorneys fees are affirmed. Scott is ordered to pay costs on appeal.
We concur: Ramirez, P. J., King, J.