Opinion
C094597
04-20-2023
In re the Marriage of LEAH and RUDOLFO CHAVEZ. v. RUDOLFO CHAVEZ, Appellant. LEAH CHAVEZ, Appellant,
NOT TO BE PUBLISHED
Order Filed Date 5/9/23
Super. Ct. No. STA-FL-DWC-2014-0005424
MODIFICATION OF OPINION AND DENIAL OF PETITION FOR REHEARING
THE COURT:
Appellant filed a petition for rehearing with this court. It is hereby ordered that the petition for rehearing is denied.
It is also ordered that the opinion filed herein on April 20, 2023, be modified as follows: 1. Delete the word "permanent" from the first sentence of the first paragraph on page 3. That sentence will now read:
In August 2018, Leah filed a request for order (RFO) that sought spousal support and modification of the child support order.
2. Delete footnote 3 on page 3 and replace with a new footnote 3 to read as follows:
This document was not included in the appellate record. However, the record discloses that Leah requested permanent spousal support and an order modifying the child support order. After we issued our opinion, Leah filed a request for judicial notice and a petition for rehearing. In her rehearing petition, Leah argued that the legal analysis in our opinion was based on a "misunderstanding" of a "material fact" because there was no motion for permanent spousal support pending when the trial court ordered the vocational examination. Leah argued for the first time that the trial court erred in ordering the examination because she only requested temporary spousal support in her August 2018 RFO, not permanent spousal support. In support of her position, Leah asks us to take judicial notice of her August 2018 RFO. We treat Leah's request for judicial notice as a motion to augment the record and grant the motion. While the RFO does not specifically request permanent spousal support, the record makes clear that Leah did in fact seek such relief in connection with the dissolution trial. Therefore, we see no basis to grant the petition for rehearing.
This modification does not change the judgment.
DUARTE, J.
In this family law action, appellant Leah Chavez, a self-represented litigant, appeals from an order made in connection with the dissolution of her marriage to respondent Rudolfo Chavez. Leah challenges the order requiring her to undergo a vocational examination pursuant to Family Code section 4331. Finding no error, we shall affirm.
We refer to the parties by their first names to avoid confusion.
Undesignated statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
We take our factual and procedural history from the settled statement, the documents in the clerk's transcript, the documents in the augmented appellate record, and the documents subject to judicial notice. We note that our review in this case is hampered to some degree by an incomplete appellate record and the lack of a respondent's brief. Although not entirely clear, it appears that the material facts are not in dispute.
The parties married in January 2001 and separated in June 2012. During the marriage, Rudolfo was employed at various jobs while Leah was a homemaker and a stay-at-home mother. The parties have four children together.
In August 2013, Rudolfo filed a petition for the dissolution of his marriage to Leah. Thereafter, the parties have engaged in protracted and highly contentious legal proceedings involving, among other things, child support, which Rudolfo was ordered to pay after the petition for dissolution was filed. The record reflects that, at all relevant times, Leah had sole physical custody of the parties' four children.
In September 2014, Leah obtained a five-year domestic violence restraining order against Rudolfo, which also protected the parties' children.
In January 2015, the family court issued an order to show cause regarding contempt due to Rudolfo's failure to make child support/medical payments. In March 2018, the family court issued a second, separate, order to show cause regarding contempt due to Rudolfo's continued failure to make child support/medical payments.
In August 2018, Leah filed a request for order (RFO) that sought permanent spousal support and modification of the child support order. The next day, Leah filed a motion for breach of fiduciary duty, arguing that sanctions against Rudolfo were warranted because he failed to timely disclose his substantial pay increase and the existence and value of a community property retirement account. In her motion, Leah explained that Rudolfo had recently served her with an updated income and expense declaration indicating that his income had increased by more than $70,000 as of August 2017.
This document is not included in the appellate record. However, the record discloses that Leah requested permanent spousal support and an order modifying the child support order. Although not entirely clear, it appears that Leah was not awarded (or did not seek) temporary spousal support.
In September 2018, the family court issued an order stating that it would treat Leah's breach of fiduciary duty motion as a motion in limine and would hear it at the time of the dissolution trial. The court also noted that it would issue a written decision on whether Rudolfo waived his constitutional right against self-incrimination by filing the income and expense declaration, and whether the support hearing could take place prior to the resolution of the contempt proceedings.
In October 2018, Leah filed a RFO, asking the family court for an order shortening the time to hear the "support matter," which was set for February 2019. Leah argued that such relief was appropriate because her children were in "emergency need of adequate support," explaining that while Rudolfo earned more than $120,000 annually, she and the children "survive off $19,800 annually."
In December 2019, the family court found that Rudolfo did not waive his constitutional right against self-incrimination by filing the declaration, and that the support hearing could go forward despite the pending contempt proceedings.
In January 2019, Rudolfo pleaded no contest to 10 counts of contempt of court in connection with the order to show cause filed in January 2015. He was sentenced to 50 days in county jail and ordered to pay a fine of $1,000. The family court suspended Rudolfo's sentence for two years on the condition that he "not pick up any more contempt charges" and obey all family law orders, including child support and medical reimbursement orders.
The next day, Rudolfo filed a RFO, asking the family court to order Leah to undergo a vocational examination under section 4331 to asses her ability to obtain employment that would allow her to maintain herself at the marital standard of living.Rudolfo also asked the court to issue an employment effort order or an order requiring Leah to attend job training pursuant to section 3558. Rudolfo argued that a vocational examination was appropriate given Leah's request for spousal support and her request to modify the child support order. In support of his position, Rudolfo noted the parties had been living apart for over five years and Leah had not worked or sought employment during this time period, despite having earned a law degree. Rudolfo also noted that the parties' youngest child was nine years old and that none of their children had any special needs that would prevent Leah from obtaining employment.
Section 4331, subdivision (a), provides that in a "proceeding for dissolution of marriage . . . the court may order a party to submit to an examination by a vocational training counselor. The examination shall include an assessment of the party's ability to obtain employment based upon the party's age, health, education, marketable skills, employment history, and the current availability of employment opportunities. The focus of this examination shall be on an assessment of the party's ability to obtain employment that would allow the party to maintain herself or himself at the marital standard of living."
Section 3558 provides: "In a proceeding involving child or family support, a court may require either parent to attend job training, job placement and vocational rehabilitation, and work programs, as designated by the court, at regular intervals and times and for durations specified by the court, and provide documentation of participation in the programs, in a format that is acceptable to the court, in order to enable the court to make a finding that good faith attempts at job training and placement have been undertaken by the parent."
In February 2019, Leah filed a responsive declaration, arguing that a vocational examination was not proper because Rudolfo had been found to be in contempt of court for violating child support orders. On that same day, Leah filed a motion in limine requesting the family court exclude any evidence at the support trial regarding Rudolfo's request for a vocational examination, based on his contempt.
In March 2019, the family court issued a written order, finding that good cause existed to require Leah to "submit to and comply with a vocational evaluation pursuant to [section] 4331 on both the issue of permanent spousal support and to assist the court in assessing the applicability of . . . [section] 3558 to [her]." In so ruling, the court explained: "[Leah] has had several years to seek employment to assist in the support of the parties' minor children and herself and has, by her own previous testimony before the court, not actively sought employment for various reasons. The court believes, given [Leah's] education and training, and demonstrated abilities in representing herself in court, that a vocational evaluator can provide her with invaluable assistance and provide assistance to the court on the issue of permanent spousal support and whether an employment efforts order should issue." The court rejected Leah's contempt argument and the arguments she made for the first time at the hearing, including her contention that a vocational examination was not proper because discovery was closed. As for the discovery issue, the court found that a vocational examination "is not discovery barred by the provisions of CCP § 2019.010(d)." The court reserved ruling on the issue of whether an employment efforts order was appropriate.
The date initially set for trial was in August 2017. Thus, the discovery cutoff date was in July 2017, and discovery closed at that time by operation of law. (In re Marriage of Boblitt (2014) 223 Cal.App.4th 1004, 1022 [family law proceedings subject to 30-day pretrial discovery deadline].)
Code of Civil Procedure section 2019.010 provides: "Any party may obtain discovery by one or more of the following methods: [¶] (a) Oral and written depositions. [¶] (b) Interrogatories to a party. [¶] (c) Inspections of documents, things, and places. [¶] (d) Physical and mental examinations. [¶] (e) Requests for admissions. [¶] (f) Simultaneous exchanges of expert trial witness information." (Italics added.)
Two days later, Leah filed a motion to "correct" or set aside the family court's order. Leah argued that the order was void because a vocational examination is a "discovery tool" and Rudolfo did not request a vocational examination until after the discovery cutoff date. Shortly thereafter, Leah filed several motions in limine. As relevant here, Leah reiterated her arguments as to why a vocational examination was improper. At a hearing two days later, the family court acknowledged that a vocational examination is a "discovery tool in some matters," and explained that a vocational examination "survives the discovery statutes" because it may be ordered "after the case is over" (i.e., during post-judgment proceedings).
In April 2019, the family court ordered Leah to set up an appointment for a vocational examination by Marlis Bruns. In doing so, the court provided Leah with Bruns's address, phone number, and e-mail address. The court stated that the examination "shall be pursuant to the parameters set forth in . . . [section] 4331(a)."
In July 2019, Rudolfo pleaded guilty to eight counts of contempt of court in connection with the March 2019 order to show cause. The family court imposed a sentence of 384 hours in county jail, but stayed execution of sentence for three years and placed Rudolfo on probation with the condition that he comply with the current support order and pay at least $75 per month on the medical arrears of $2,701.38. On the same day, the family court denied Leah's motion to correct or set aside the order requiring her to undergo a vocational examination, and ordered Leah to contact the vocational examiner within five days to set up an appointment in September 2019.
In August 2019, following a settlement conference resolving various issues (e.g., division of real property, health insurance for the parties' children), the family court bifurcated the issue of marital status and granted a "status-only judgment" dissolving the marriage "upon grounds of irreconcilable differences." The court noted that the only issues remaining for trial were Leah's requests that Rudolfo maintain her on his health insurance and obtain a life insurance policy through his employer.
Leah objected to the court's order, arguing that the termination of marital status was improper because there were outstanding issues (regarding health insurance for her and life insurance for the children). She appealed the order, and the trial court denied her request to vacate the dissolution trial pending the appeal. In April 2022, a panel of this court affirmed the order, rejecting Leah's contention that the trial court lacked authority to "bifurcate and terminate the parties' marital status" on its own motion. (In re Marriage of Chavez (April 18, 2022, C090325 [nonpub. opn.].)
In September 2019, the dissolution trial commenced. On the first day of trial, the family court advised Leah that it would not be "hear[ing] anything . . . remotely related" to the issue of support until she submitted to a vocational examination. As part of the discussion of this issue, the court noted that Leah violated a court order by failing to submit to the vocational examination, and explained that because health insurance was "kind of a loss of income," it was a "component of support," which would not be ruled on until after the vocational examination was completed. Thereafter, the court rejected Leah's attempt to relitigate the merits of whether the vocational examination was properly ordered.
On the second day of trial, there was evidence presented as to the breach of fiduciary duty issue raised by Leah in August 2018; that is, whether sanctions against Rudolfo were warranted because he failed to disclose the existence and value of a community property retirement account, and failed to timely disclose his substantial pay increase. The family court also heard argument on various other issues, including whether evidentiary sanctions were warranted due to Leah's failure to submit to the vocational examination. The court reiterated that it would "not hear the issue of spousal support," which included the issue of health insurance for Leah, until she submitted to a vocational examination.
Prior to the third day of the dissolution trial, Leah filed a motion in limine seeking to exclude any evidence related to the court-ordered vocational examination. In support of her motion, Leah relied on the same grounds she had previously raised, and added that evidence related to the vocational examination should be excluded due to Rudolfo's extensive history of discovery abuse and non-compliance with court rules. Leah also argued that Rudolfo waived his right to request discovery sanctions for her failure to submit to a vocational examination, and that, in any event, discovery sanctions were not authorized under the circumstances of this case. Leah also claimed that there was "substantial justification" for her failure to comply with the court's order directing her to undergo a vocational examination. She argued that compliance was "impossible" because the court had failed to specify "the time, manner, conditions, [and] scope of examination."
The fourth and final day of the dissolution trial was continued to March 2020 and thereafter several more times due to the COVID-19 pandemic. The final day of trial occurred in January 2021.
Meanwhile, in October 2020, Rudolfo pleaded guilty or no contest to 12 counts of contempt of court for violating various orders, including the child support order. The trial court imposed a sentence of 288 hours in county jail and 12 hours of community service, but stayed execution of sentence for three years and placed Rudolfo on probation with the condition that he comply with the current support order and pay at least $146.25 per week on the medical arrears of $5,104.86.
In March 2021, the family court issued a tentative decision on the remaining outstanding issues in the dissolution trial. In April 2021, Leah filed objections to the tentative decision. In June 2021, the court issued a statement of decision. Among other things, the court found that Rudolfo had breached his fiduciary duty by failing to disclose his substantial increase in income in his April 2017 income and expense declaration, and that the erroneous figure he provided was used in setting the amount of the child support payment. Based on this conduct and Rudolfo's failure to disclose the existence of retirement plans in a timely manner, the court sanctioned Rudolfo in the amount of $2,586.39. The court also ordered Rudolfo to reimburse Leah for the costs associated with a $300,000 life insurance policy naming her as the beneficiary, explaining that such a policy would provide security for the payment of child support until the parties' youngest child reached 18 and arrearages were paid in full. The court additionally ordered Rudolfo to obtain a disability policy in the amount of $4,000 and maintain it until the parties' youngest child turned 18.
Finally, the family court rejected Leah's request to issue a written ruling on her September 2019 motion in limine, which sought to exclude evidence related to any vocational examination. The court explained that there was no mention of this issue at trial, and that the court's previous ruling as to the vocational examination "stands." This appeal followed. After delays to augment the record and continue the briefing schedule, the opening brief was filed on November 4, 2022, and the case was assigned to this panel on January 31, 2023.
DISCUSSION
Leah raises multiple claims of error related to the family court's order requiring her to undergo a vocational examination. As we explain, we find no basis for reversal.
I
Principles of Appellate Practice
Our review is governed by a fundamental principle of appellate procedure, namely, that" '[a] judgment or order of the lower court is presumed correct,'" and thus," 'error must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 see also Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) The appellant has the burden to show error as well as prejudice from that error. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) Reversal is only required where the appellant demonstrates prejudicial error based on sufficient legal argument supported by citation to the record. (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557.) "We are not required to examine undeveloped claims or to supply arguments for the litigants." (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52.)
These principles of appellate practice apply with equal force to a plaintiff who has chosen to represent herself on appeal, as Leah has done here. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) The law affords self-represented litigants" 'the same, but no greater consideration than other litigants and attorneys.'" (Id. at p. 1247.)
II
Discovery Cutoff Date and Sanctions
Leah initially contends that the family court had no authority to order a vocational examination because it was requested by Rudolfo after the discovery cutoff date. Leah adds that the family court had no authority to impose terminating sanctions for her failure to comply with the vocational order, as Rudolfo never requested such sanctions and the sanctions were imposed by the court on its own motion without notice and without consideration of a lesser sanction.
A. Applicable Legal Principles
The payment of health insurance premiums is a form of spousal support. (In re Marriage of Benjamins (1994) 26 Cal.App.4th 423, 430.)
There are two distinct types of spousal support under California law, based on the timing and the purpose of the award. (In re Marriage of Mendoza &Cuellar (2017) 14 Cal.App.5th 939, 942.) Temporary spousal support is intended to maintain the living conditions and standards of the parties as closely as possible to the status quo, pending trial and the division of the assets and obligations of the parties. (In re Marriage of Wittgrove (2004) 120 Cal.App.4th 1317, 1328.) In contrast, permanent spousal support is intended to provide financial assistance as determined by the financial circumstances of the parties after their dissolution and the division of their community property. (In re Marriage of Winter (1992) 7 Cal.App.4th 1926, 1932.)
"' "Permanent spousal support 'is governed by the statutory scheme set forth in sections 4300 through 4360. Section 4330 authorizes the trial court to order a party to pay spousal support in an amount, and for a period of time, that the court determines is just and reasonable, based on the standard of living established during the marriage, taking into consideration the circumstances set forth in section 4320.'" '" (In re Marriage of Maher &Strawn (2021) 63 Cal.App.5th 356, 363.)
In ordering permanent spousal support, the trial court must consider and weigh all of the relevant circumstances enumerated in section 4320. (In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1316.) There are 14 statutory circumstances or factors, among which include "[t]he extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following: [¶] (1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment. [¶] (2) The extent to which the supported party's present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties." (§ 4320, subd. (a).) This statutory factor "is relevant as a reference point against which the other statutory factors are to be weighed." (In re Marriage of Diamond (2021) 72 Cal.App.5th 595, 601.) Other statutory factors include the supporting party's ability to pay; the needs of each party, based on the marital standard of living; the obligations and assets, including the separate property, of each party; the duration of the marriage; the supported party's ability to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party; the age and health of the parties; all documented evidence of domestic violence between the parties; the balance of hardships to the parties; and the goal that the supported party be self-supporting within a reasonable period of time. (See § 4320, subds. (b)-(n) [setting forth the factors].)
In making a spousal support order, a trial court has broad discretion to fairly exercise the balancing process of section 4320, with the goal of accomplishing substantial justice for the parties in the case before it. (In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 108.) In balancing the statutory factors, the trial court has discretion to determine the appropriate weight to accord to each. But the court must exercise its discretion within legal principles, taking into consideration the applicable circumstances of the parties as set forth in section 4320, especially their reasonable needs and their financial abilities. (Ibid.) The court does not have discretion to ignore any relevant circumstance enumerated in the statute. The court must recognize and apply each applicable statutory factor in setting spousal support. (Ibid.) "Failure to do so is reversible error." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.)
A vocational examination is a type of discovery that may be used when, as here, there is a pending motion for a spousal support order. (See In re Marriage of Stupp and Schilders (2017) 11 Cal.App.5th 907, 913-914.) The court may order a party to submit to a vocational examination to assess the party's "ability to obtain employment that would allow the party to maintain their marital standard of living." (§ 4331, subd. (a).) The vocational examination may only be ordered following a motion for good cause shown. (§ 4331, subd. (b).) Any showing that the party seeking support is capable of working but is unemployed or underemployed is sufficient to justify a vocational examination. (In re Marriage of Stupp and Schilders, supra, 11 Cal.App.5th at p. 913.)
A party who fails to comply with an order for a vocational examination is "subject to the same consequences provided for failure to comply" with an order for a physical or mental examination pursuant to the Civil Discovery Act, (§ 4331, subd. (c)), which include a monetary sanction, issue sanction, evidence sanction, or terminating sanction (e.g., an order staying further proceedings by a party until an order for discovery is obeyed). (Code Civ. Proc., §§ 2032.410, 2023.030, subds. (a)-(d).)
B. Analysis
We see no prejudicial error. The record reflects good cause for the family court to order Leah to undergo a vocational examination, and that the court effectively issued a terminating sanction against Leah by staying the proceedings as to her request for permanent spousal support until she complied with the order. Leah's failure to comply with the order left the family court without the necessary evidence to assess whether her request for permanent spousal support was warranted under the relevant section 4320 factors. Leah's earning capacity was one of the factors the court was required to consider in ruling on her request for permanent spousal support. The court could properly have simply denied Leah's request for failure of proof.
In light of this conclusion, we need not and do not reach Leah's contention that the family court's order directing her to undergo a vocational examination was in effect an unlawful order permitting discovery after the discovery cutoff date. However, we note that Leah has not cited, and our independent research has not disclosed, any authority holding that a family court lacks the authority to order a vocational examination after the discovery cutoff date when there is a pending motion for permanent spousal support, as was done here. Further, we fail to see how the family court could have complied with its mandatory duty to consider the relevant section 4320 factors without the vocational examination. Indeed, it would have been reversible error for the family court to award permanent spousal support to Leah without considering her earning capacity.
III
Contempt of Court
Leah next argues that the trial had no authority to order a vocational examination because Rudolfo was adjudicated to be in contempt of court for violating various court orders, including the child support order. In support of her position, Leah relies on Code of Civil Procedure section 1218, subdivision (b), which states:
"Any party, who is in contempt of a court order or judgment in a dissolution of marriage, dissolution of domestic partnership, or legal separation action, shall not be permitted to enforce such an order or judgment, by way of execution or otherwise, either in the same action or by way of a separate action, against the other party. This restriction shall not affect nor apply to the enforcement of child or spousal support orders. (Code Civ. Proc., § 1218, subd. (b), italics added.)
This statutory provision is of no assistance to Leah. Here, in response to Rudolfo's request, the family court ordered Leah to "submit to and comply with a vocational evaluation pursuant to [section] 4331 on both the issue of permanent spousal support and to assist the court in assessing the applicability of [section] 3558 to [her]." Although it is true that Rudolfo pleaded no contest to numerous counts of contempt for violating family court orders (including the child support order), he was never adjudicated to be in contempt of a spousal support order. Nor was he attempting to enforce such an order. And, even if he were, the express terms of the statute Leah relies on specifically exclude spousal support orders. Further, to the extent that Rudolfo believed a vocational examination was necessary due to Leah's request for "modification of child support," he was not attempting to enforce the child support order. In any event, the express terms of the relevant statute specifically exclude child support orders. (See Moffat v. Moffat (1980) 27 Cal.3d 645, 653 ["deem[ing] the language of section 1218 to be susceptible of no meaning other than its plain intendment that the enforcement of child support orders shall not be barred by the contumacious behavior of a party to a dissolution proceeding"].) Leah offers no authority supporting her contention that Rudolfo was "barred" from requesting a vocational order under the circumstances of this case.
IV
Remaining Contentions
We have rejected, on the merits, what we perceive to be the primary claims of trial error Leah has raised on appeal. As for her remaining fragmented contentions, we conclude that Leah has not met her burden to show there was any prejudicial error requiring reversal.
DISPOSITION
The family court's order directing Leach to undergo a vocational examination is affirmed. Rudolfo has not appeared in this appeal; Leah shall bear her own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: Mauro, Acting P.J., Boulware Eurie, J.