Opinion
D049832
4-25-2008
In re the Marriage of ANN MARIE and THOMAS TIGHE ANN MARIE TIGHE, Respondent, v. THOMAS TIGHE, Appellant
NOT TO BE PUBLISHED
I.
INTRODUCTION
Appellant Thomas Tighe appeals from two postjudgment orders entered in a marriage dissolution proceeding. Thomas moved for a modification of his child support obligation. The matter was set to be heard by Commissioner Randall W. Magnuson, acting as a temporary judge. While that motion was pending, Thomas moved for a determination of child support arrears, claiming that he should be credited with certain payments he made for the childrens medical care and maintenance of the marital house. Thomass ex-wife, Ann Marie, filed a pleading that she referred to as a "companion motion" in which she raised a number of issues concerning expenses she had incurred that Thomas was supposed to pay, pursuant to the judgment. The court made rulings as to those motions on May 19, 2006, but did not sign a formal written order until September 25, 2006 (Reimbursement Order). That same day, the court also awarded Ann Marie attorney fees for fees incurred between the courts May 19 ruling and September 25 (Attorney Fee Order).
We use the parties first names for purposes of clarity.
On appeal, Thomas raises four claims. With regard to the Reimbursement Order, Thomas challenges the commissioners authority to consider and enter an order requiring Thomas to reimburse Ann Marie for money she spent on property taxes and home repairs. Thomas contends that those matters are unrelated to child support, and are therefore beyond the jurisdiction of a commissioner who is acting as a temporary judge in support enforcement proceedings. Second, Thomas challenges the sufficiency of the evidence to support the amounts the commissioner awarded Ann Marie for property taxes, home repairs, and medical insurance premiums, and also asserts that the commissioner abused his discretion in awarding Ann Marie $3,250 in attorney fees as part of the Reimbursement Order because the commissioner was not apprised of the nature and extent of the services rendered. With regard to the separate Attorney Fee Order, Thomas contends that the commissioner violated Thomass right to due process by holding a hearing on the matter without first informing Thomas that the issue of attorney fees would be considered at that particular hearing. Finally, Thomas challenges the entire Reimbursement Order on the ground that he was not present at the time the order was signed, and that entry of that order thus violated his right to due process.
We conclude that because the commissioner was acting as a temporary judge for support enforcement proceedings pursuant to Family Code section 4251, his jurisdiction was limited by the terms of the statute, and he did not have authority to consider issues unrelated to child support. For this reason, we must reverse the commissioners decision to require Thomas to reimburse Ann Marie for property taxes and expenses for home repairs. Those portions of Ann Maries motion should be heard by a judge. In light of our conclusion that the commissioner did not have the authority to consider reimbursement issues unrelated to child support, we also reverse and remand that portion of the Reimbursement Order that awards Ann Marie attorney fees for work related to the Reimbursement Order, to the extent that those fees were incurred for work on matters falling outside the commissioners jurisdiction. The commissioner may exercise discretion in determining an appropriate attorney fee award only for matters that are limited to child support issues.
Further statutory references are to the Family Code unless otherwise indicated.
Because we conclude that the commissioner did not have jurisdiction to require Thomas to reimburse Ann Marie for property taxes or for expenses for home repairs, we need not consider Thomass arguments concerning the sufficiency of the evidence with regard to those matters. However, we conclude that there is sufficient evidence to support the commissioners determination that Thomas must reimburse Ann Marie for Thomass share of medical insurance premiums for the children. We also reject Thomass argument that the Reimbursement Order is invalid because he was not present at the September 25, 2006 hearing, at which the commissioner signed the formal order.
Finally, we reverse the commissioners separate award of attorney fees to Ann Marie for work Ann Maries attorney performed between May 19, 2006 and September 25, 2006, because Thomas was not provided notice that the commissioner would be considering that issue at the September 25 hearing and was not afforded the opportunity to be heard on the issue.
II.
FACTUAL AND PROCEDURAL BACKGROUND
On August 12, 2002, the commissioner entered a stipulated judgment dissolving the parties marriage. Ann Marie and Thomas were to share custody of their two minor children equally, and Thomas agreed to pay $1,200 per month in child support. The parties waived spousal support.
As of February 1, 2003, this amount was modified to $971 per month.
Pursuant to the judgment, Ann Marie owned 20 percent of the marital house and Thomas owned the remaining 80 percent. Ann Marie was to retain possession of the house until the youngest child reached age 18 or graduated from high school, after which the parties were to sell the house and disburse the proceeds in conformance with the terms of the judgment.
The judgment also specified how the parties were to divide the costs of maintaining the house. Thomas was to obtain a loan against the house in the amount of $65,000, of which he was to set aside $5,000 in a joint account to be used for "hallway bathroom repair and furnace repair." Of the remaining $60,000, Thomas was to pay $15,000 to Anne Marie and $45,000 to Ann Maries attorney. By paying these amounts, Thomas would satisfy any support arrears that had accrued up to the date of the dissolution.
Thomas was ordered to pay any delinquent property taxes, interest and penalties. Ann Marie was responsible for future taxes and homeowners insurance. Under the terms of the judgment, if Ann Marie failed to pay the insurance or taxes, Thomas could make the payments and deduct those amounts from his child support obligation.
Ann Marie was to pay for any repairs to the house that cost less than $1,000. The parties were to share the cost of repairs that exceeded that amount in proportion to their ownership interest.
Each of the parties was to pay half of the medical insurance premiums for the children, as well as any reasonable medical expenses not covered by insurance.
The current controversy began in September 2005, when Thomas brought a motion to modify his child support obligation, to permit inspection of the house, and to confirm his right to deduct reasonable medical expenditures, including "monthly out-of-pocket premiums," from the amount he owed for child support.
The trial court granted Thomass motion to inspect the house and continued his motion to modify child support to November 28, 2005. The court also transferred the child support issue to "Department 44 of the San Diego County Superior Court," a department that is presided over by a commissioner who is dedicated to hearing only child support enforcement matters. On November 28, the commissioner continued the hearing to January 2006 and ordered the parties to file declarations stating the amount of time the children spent with each party between August and November 2005. The commissioner also ordered Thomas to provide more information regarding his financial situation.
Pursuant to statute, the superior courts assign to commissioners the responsibility for hearing child support cases that have been filed by the local child support agency or have been referred to the local child support agency for enforcement. (See § 4251, subd. (a).)
The hearing was continued again. On February 10, 2006, Thomas filed a "Request for Judicial Determination of Support Arrearages," with a hearing date of March 23. Thomas also filed an ex parte application for a stay of enforcement pending the hearing. In his application, Thomas claimed that he did not owe Ann Marie any arrearages, but rather, that she owed him $2,000. On March 7, after retaining counsel, Ann Marie responded to Thomass motion and filed an accompanying declaration. She also filed an order to show cause, which she identified as a "companion motion," in which she requested attorney fees and an order requiring that Thomas reimburse her for home repairs and that Thomas sign the grant deed pursuant to the judgment of dissolution. The hearing on Ann Maries companion motion was also set for March 23.
On March 16, Thomas filed a declaration in which he challenged the allegations in Ann Maries motion and asserted that the issues of property taxes and home repairs were "irrelevant to child support and are therefore beyond the jurisdiction of this Court."
After a number of delays, on April 28, 2006, the commissioner heard Thomass motion to modify child support, Thomass request for a determination of the support arrears, and Ann Maries request for attorney fees and other relief. After hearing argument from both parties, the commissioner took the matters under submission and continued the hearing to May 19, 2006, at which time the commissioner was to render a decision.
Although the record becomes unclear at this point, it appears that the commissioner issued a decision regarding the pending motions, but asked Ann Maries attorney to prepare a formal order. Ann Maries attorney sent Thomas a proposed draft of a "Findings and Order after Hearing" on May 26, 2006. The parties were not able to agree to the language of a final order. After a number of months, Ann Maries attorney requested that the commissioner enter an order that the attorney had prepared. Ann Maries attorney submitted a declaration in which she indicated that Thomas would not sign any of her draft orders despite her attempts to incorporate his proposed changes, and she identified the minor discrepancies between her order and one Thomas had prepared. Anne Maries attorney mailed the package to Thomas on September 25, 2006. That same day, she left a copy of the package at the courthouse for the commissioner to review.
Meanwhile, on August 9, 2006, Thomas sought an ex parte hearing on his application for an order cancelling or staying the suspension of his California State Bar license. The commissioner heard the matter that same day and entered an order in which it "cancelled and released" the suspension of Thomass bar license, and also indicated that Thomass bar license was to "continue to be released pending further order." The commissioners order also stated that Thomas was "to file a license release motion. Hearing set 9-25-06."
Pursuant to section 17520, a partys failure to comply with a child support order may result in the suspension of that partys drivers license and/or other business, occupational, or professional license.
Thomas was not present at the hearing on September 25, 2006. He contends that the September 25 hearing was to be a "drivers license review hearing" only. Thomas mailed an ex parte application to the court requesting a continuance of the September 25 hearing. In his request, Thomas informed the commissioner that he had a pre-operative appointment with his doctor that day. The ex parte request for a continuance is marked with a file stamp indicating that it was filed on September 25, 2006.
Ann Marie maintains that the purpose of the September 25 hearing was to further review the commissioners release of Thomass bar license, not his drivers license. The reporters transcript supports Ann Maries description of the purpose of the hearing, evidencing that the commissioner understood that the hearing was set to review of the status of Thomass bar license. The commissioner determined that the matter was moot because Thomas "ha[d]nt filed the motion he needed to file for today." The commissioner thereafter ordered that Thomass bar license be revoked.
The commissioner proceeded to consider the matters Ann Maries attorney had raised in papers filed that day regarding the parties inability to reach a consensus on the language of a formal order related to the May 19 hearing. The commissioner approved Ann Maries proposed order. Pursuant to that order, Thomass support obligation was decreased to $671 for the period between October 1, 2005 and July 1, 2006. After July 1, 2006, his obligation would again decrease to $665, and Ann Maries obligation to pay health insurance premiums for the children would terminate. The order also established that Ann Marie owed Thomas $7,711.09 for a variety of expenses, including uncovered medical and dental expenses, half of the health insurance premiums Thomas had paid for approximately four years, and homeowners insurance premiums, and it established that Thomas owed Ann Marie $14,473.14 for property taxes, his share of medical insurance premiums that Ann Marie had paid, his share of uncovered medical, dental, and counseling expenses, and his share of expenses for home repairs. In addition, Thomas was ordered to pay $3,250 for Ann Maries attorney fees.
The commissioner then heard from Ann Maries attorney regarding a new request for additional attorney fees. After hearing from Ann Maries attorney, the commissioner ordered that Thomas pay an additional $1,100 in attorney fees for fees incurred between May 19 and September 25, including those incurred in conjunction with his ex parte motion.
Thomas timely appealed the commissioners orders on November 15, 2006.
III.
DISCUSSION
Thomas raises four claims on appeal, three of which relate to the Reimbursement Order, and the fourth to the subsequent Attorney Fee Order. With regard to the Reimbursement Order, Thomas first challenges the commissioners authority to consider and enter an order requiring him to reimburse Ann Marie for property taxes and home repairs, which he contends are matters unrelated to child support. Second, Thomas challenges the sufficiency of the evidence to support the amounts the commissioner awarded Ann Marie for property taxes, home repairs, medical insurance premiums, and attorney fees. With regard to the separate Attorney Fee Order, Thomas contends that the commissioner violated Thomass right to due process by holding a hearing on the matter without informing Thomas that the court would consider that issue at that particular hearing. Finally, in an argument consisting of a single sentence, Thomas suggests that the entire Reimbursement Order is invalid because the commissioner agreed to sign the written order at a hearing at which Thomas was not present.
A. The commissioner, acting as a temporary judge, had jurisdiction to hear only matters related to child support
We agree with Thomas that the commissioner, acting as a temporary judge, did not have the authority to enter an order pertaining to reimbursements that were not related to child support. Section 4251 authorizes the court to assign commissioners to hear child support cases. Section 4251 provides in pertinent part:
"(a) . . . [E]ach superior court shall provide sufficient commissioners to hear Title IV-D[] child support cases filed by the local child support agency. . . . All actions or proceedings filed by the local child support agency in a support action or proceeding in which enforcement services are being provided pursuant to Section 17400, for an order to establish, modify, or enforce child or spousal support, including actions to establish paternity, shall be referred for hearing to a child support commissioner unless a child support commissioner is not available due to exceptional circumstances, . . . . All actions or proceedings filed by a party other than the local child support agency to modify or enforce a support order established by the local child support agency or for which enforcement services are being provided pursuant to Section 17400 shall be referred for hearing to a child support commissioner unless a child support commissioner is not available due to exceptional circumstances, . . . .
Title IV-D is a provision of the federal Social Security Act. (42 U.S.C. § 651, et seq.) Title IV-D "imposes a series of obligations on the states, including the requirement that the state provide services related to the enforcement of child support obligations. [Citation.]" (County of Yuba v. Savedra (2000) 78 Cal.App.4th 1311, 1317.)
"(b) The commissioner shall act as a temporary judge unless an objection is made by the local child support agency or any other party. The Judicial Council shall develop a notice which shall be included on all forms and pleadings used to initiate a child support action or proceeding that advises the parties of their right to review by a superior court judge and how to exercise that right. The parties shall also be advised by the court prior to the commencement of the hearing that the matter is being heard by a commissioner who shall act as a temporary judge unless any party objects to the commissioner acting as a temporary judge. While acting as a temporary judge, the commissioner shall receive no compensation other than compensation as a commissioner.
"(c) If any party objects to the commissioner acting as a temporary judge, the commissioner may hear the matter and make findings of fact and a recommended order. Within 10 court days, a judge shall ratify the recommended order unless either party objects to the recommended order, or where a recommended order is in error. In both cases, the judge shall issue a temporary order and schedule a hearing de novo within 10 court days. Any party may waive his or her right to the review hearing at any time."
Under the terms of the statute, child support commissioners are authorized generally to preside over matters involving child and spousal support. Under certain circumstances, commissioners may also hear a select list of matters that are related to, but outside the scope of, support matters: "Upon request, the commissioner shall join issues of custody, visitation and protective orders with the action filed by the local child support agency, but if these issues are contested, the commissioner may hear them `only if the court has adopted procedures to segregate the costs of hearing Title IV-D child support issues from the costs of hearing other issues pursuant to applicable federal requirements." (Orange County Dept. of Child Support Services v. Superior Court (2005) 129 Cal.App.4th 798, 806 (Orange County), quoting § 4251, subd. (e)(3).)
Here, the parties requested that the commissioner decide a number of issues concerning credits and reimbursements. Thomas requested that he receive credit against the child support arrears for (1) payments he made for homeowners insurance; (2) health insurance premiums he paid for the children; and (3) uninsured medical expenses he had paid for the children. Ann Marie requested that she be reimbursed for (1) property taxes that were Thomass responsibility under the judgment; (2) portions of the cost of home repairs that were Thomass responsibility under the judgment; (3) health insurance premiums for the children; and (4) uninsured medical expenses she had paid. The commissioner made determinations as to all of these matters and included those findings in his ruling as to the amount of child support arrears Thomas owed.
As Thomas points out, Ann Maries requests to be reimbursed for property taxes and the costs of certain home repairs are not matters related to child support. Rather, Ann Maries right to reimbursement for such payments derives from portions of the judgment that are unrelated to the child support award. Specifically, the judgment requires that Thomas pay any real property tax arrears on the house, interest and penalties, and any other existing liens on the house as of the date of the judgment. However, the judgment does not tie this requirement to the payment of child support. Ann Maries request to be reimbursed for these payments is derived strictly from the fact that the judgment states that Thomas must pay for those items as part of the division of assets and liabilities. Similarly, the provision on which Ann Marie relies in requesting reimbursement for house repairs is not intertwined with the child support award in the judgment. The relevant provision states, "Any repairs over $1,000.00 in agreed repairs shall be paid 80% by Mr. Tighe and 20% by Mrs. Tighe." Acknowledging that these matters are not related to child support, the San Diego County Department of Child Support Services (Department), which is identified as an intervenor and respondent in this appeal, states in its respondents brief, "These issues [regarding home repairs and property taxes] are not child support and the Department is not authorized to collect these sums."
In fact, the Department did not address any of Thomass arguments other than his argument regarding the sufficiency of the evidence to support that portion of the commissioners order requiring that Thomas reimburse Ann Marie for expenditures she incurred for health insurance premiums for the children.
Ann Marie contends that the relationship of these matters to child support is sufficient to have made it proper for the commissioner to hear all of these requests at one time. Specifically, Ann Marie argues, "Given the Legislatures intent to have child support matters resolved in a timely matter, it certainly fits within those parameters to have one Court hear all matters in a case dealing with the child support and financial issues arising from child support. [¶] In the Tighe case, child support, child support arrears, . . . deductions from child support, and other arrears were at issue. [Citation.] Having the same court hear a connected financial issue, i.e., home repairs, also fit into the child support scheme." Ann Marie also observes that it makes sense to have the commissioner make additional financial determinations, since the commissioner is already familiar with the case and the financial issues the parties have raised. She asserts that because "Comm. Magnuson had read and reviewed the file, reviewed the lodgments provided by both parties, and heard argument on the issues on more than one occasion, it was more expeditious and fitting within the Legislatures intent for a simple, speedy, conflict-reducing system to have one court decide all issues."
The Department makes no argument in this regard, stating that it "takes no position on whether the commissioner had jurisdiction, sitting as a family law commissioner, to hear non-child support issues."
Although we understand why Ann Maries attorney and the commissioner wanted to incorporate into a single proceeding all of the financial questions that were outstanding between the parties, the statute does not authorize the commissioner to consider issues that are unrelated to determining the child support arrearages and/or modifying the child support order already in place.
Ann Marie suggests that the issue addressed in Orange County, supra, 129 Cal.App.4th 798, is similar to the issue in this case. In Orange County, the Orange County Department of Child Support Services (OCDCSS), on behalf of the custodial mother, filed contempt charges against an obligor father who, the mother alleged, had failed to pay support for a number of months. (Id. at p. 801.) A commissioner, acting pursuant to section 4251, presided over the contempt proceeding and ultimately found in favor of the father on all counts, determining that there was "reasonable doubt as to the willfulness of his nonpayment." (Id. at p. 802.) The father then filed an order to show cause (OSC) seeking sanctions against OCDCSS and its counsel. He argued that OCDCSSs counsels refusal to dismiss the case against him even after she had received cancelled checks showing a number of payments the father had made to the mother constituted the "`continued prosecution of a non-meritorious frivolous action." (Id. at p. 803.)
The OSC was set before a judge and not the commissioner "because the case was part of her direct calendar inventory." (Orange County, supra, 129 Cal.App.4th at p. 803.) The judge denied OCDCSSs repeated requests to have the matter transferred to the commissioner. The judge then "concluded sanctions were warranted" and ordered OCDCSS, counsel for OCDCSS, and the mother to pay sanctions in the amount of $1000, $1500, and $1000, respectively, and to pay $1000 each for attorney fees. (Id. at pp. 803-804.)
On appeal, OCDCSS argued that the judge erred in failing to transfer the OSC to the commissioner for hearing because the commissioner "[was] in a better position than [the judge] to determine the nature of [the attorneys] conduct." (Orange County, supra, 129 Cal.App.4th at p. 804.) The appellate court agreed, determining first, however, that the judge also should have made a subjective finding of bad faith on the part of the attorney to justify the sanctions order against her, and that the record did not support such a finding. (Ibid.)
With regard to the issue of which judicial officer should have heard the OSC, the court disagreed with the fathers argument that the commissioner lacked authority to hear the sanctions motion because it "was not part of the child support proceeding." (Orange County, supra, 129 Cal.App.4th at p. 806.) After briefly reviewing the history of the creation of the child support enforcement scheme in California and the authority of commissioners to hear support matters pursuant to section 4251, the court determined that the sanctions hearing "arose out of" the contempt proceedings that were properly before the commissioner and therefore should have been heard by the commissioner. (Id. at pp. 806-807.)
The father also argued that the stipulation he had entered into to allow the commissioner to hear the contempt proceeding did not extend to the sanctions hearing, and that he could therefore refuse to stipulate to the commissioner deciding the issue on remand. (Orange County, supra, 129 Cal.App.4th at p. 807.) The court noted that a commissioner is "empowered to adjudicate a `cause until its final determination," and that the "determination of a cause encompasses subsequent proceedings that are its `direct progeny, but not those considered `ancillary to the stipulated cause." (Ibid., citing Cal. Cont., art. IV, § 21 and Reisman v. Shahverdian (1984) 153 Cal.App.3d 1074, 1095.) The court explained:
"Direct progeny are those which are a continuation of the stipulated cause or question its finality, such as motions to vacate or reconsider. [Citations.] An ancillary proceeding, on the other hand, is heard on a separate record and seeks an independent judgment or reviewable order. [Citation.] A contempt hearing, while related to the cause out of which it arose, is nonetheless considered ancillary to the cause and outside the scope of the parties original stipulation to a temporary judge. [Citation.]" (Orange County, supra, 129 Cal.App.4th at p. 807.)
The court thus agreed with the father on this point, concluding that the sanctions request "[sought] a separately reviewable order" and thus was "outside the scope of the stipulation the parties entered into when the contempt hearing began," such that the father could object to the commissioner hearing that particular matter on remand (Orange County, supra, 129 Cal.App.4th at p. 807.) The court determined, however, that "the distinction makes no practical difference." (Ibid.) According to the court, "Family Code section 4251, subdivision (c) provides that a child support commissioner `may hear the matter and make findings of fact and a recommended order even if a party objects to him or her acting as a temporary judge. Although a judge must later review the order and entertain any objections to it by the parties, the record will contain the commissioners subjective findings." (Orange County, supra, 129 Cal.App.4th at p. 807.)
The Orange County court then vacated the order imposing sanctions and remanded the matter to the trial court "with directions that the order to show cause re sanctions . . . be heard by [the commissioner]." (Orange County, supra, 129 Cal.App.4th at p. 808.) In addition, the court directed that "[i]f the parties refuse to stipulate to [the commissioner] acting as a temporary judge, he shall hear the matter under Family Code section 4251, subdivision (c)." (Orange County, supra, 129 Cal.App.4th at p. 808.)
The Orange County court thus made two determinations. First, the court concluded that a sanctions hearing "is based on the record in the contempt proceedings and thus arises out of it," such that "judicial economy and common sense compel [the conclusion] that the same judicial officer should hear both." (Orange County, supra, 129 Cal.App.4th at p. 807, citing In re Steven A. (1993) 15 Cal.App.4th 754, 768-769 [holding that "a motion to reconsider also falls within the authority of the temporary judge appointed to conduct the original hearing"].) In making this determination, the Orange County court concluded that the sanctions hearing arose out of a proceeding over which the commissioner had the authority to preside pursuant to section 4251 and, therefore, the commissioners authority extended to the sanctions hearing. Second, the court concluded that even though the father had stipulated to have a commissioner hear the contempt proceeding, the scope of that stipulation did not extend to the commissioner hearing a subsequent sanctions motion. However, because the court had already concluded that the sanctions motion fell within the nature of the types of actions a commissioner may hear pursuant to section 4251, subdivision (a), (i.e., it was part of the contempt proceeding), the court determined that even without the parties stipulation, the commissioner could hear the matter and make findings that would be reviewed by a judge, pursuant to section 4251, subdivision (c).
In this case, the order that Ann Marie sought pertaining to the property taxes and home repairs was an order for reimbursement owed pursuant to terms of the judgment that are independent of the child support terms. Unlike the sanctions request in Orange County, these requests did not "arise from" proceedings over which the commissioner had authority to preside. Ann Maries requests for reimbursement for these items are separate and independent from the determinations to be made regarding modification of the child support order and determination of child support arrears. The commissioner thus did not have the authority to consider those issues. Even if Thomas had stipulated to the commissioner hearing these separate matters — which he clearly did not — such a stipulation could not confer on the commissioner the power to hear matters that the statute does not authorize the commissioner to hear.
We recognize that it may seem inefficient and imprudent to require the parties to sort out the amount of money owed by one party to the other for child support in a proceeding presided over by one judicial officer, and then require those same parties to go before a different judicial officer in a different proceeding to sort out other amounts owed under different sections of the judgment. However, this is the inevitable result of the two-pronged system the Legislature has created under section 4251 for matters relating to child or spousal support arising from a dissolution action or other action in which matters other than support are also addressed. Commissioners acting as judges pursuant to section 4251 are authorized to determine only very limited matters, all of which relate to issues of support; they are not authorized to decide questions regarding the parties respective financial responsibilities for upkeep or maintenance of marital property that has been divided between them in the judgment. Ann Marie must therefore raise any issues unrelated to child support in a proceeding before a judge, not the child support commissioner.
B. There is substantial evidence to support the commissioners order regarding reimbursement for Ann Maries expenditures for health insurance premiums
Thomas challenges the commissioners finding that he owes Ann Marie $969.73, half of the $1,939.47 Ann Marie identified as the amount she paid for health insurance premiums for the couples two children between 2002 and 2003. According to Thomas, Ann Marie did not present sufficient evidence to support her claim that she paid this amount for the childrens health insurance premiums. We disagree.
Testimony from a single credible witness, even a party to the action, may constitute substantial evidence to support a trial courts finding. (In re Marriage of Mix (1975) 14 Cal.3d 604, 614.) Ann Marie submitted a declaration in which she stated that she had paid a total of $1,939.47 for health insurance premiums, and that the documents she was submitting were offered to show how much she had paid pursuant to the judgment for health insurance premiums for the children. Thomas did not object to Ann Maries declaration. The commissioner was free to accept Ann Maries assertion that she was claiming only the amount she had paid for health insurance premiums for the children. There was thus sufficient evidence to support the trial courts finding regarding the amount Thomas owes Ann Marie for his half of the cost of health insurance premiums for their children.
C. Thomas was not provided sufficient notice or an opportunity to be heard on the issue of the additional attorney fees awarded to Ann Marie at the September 25 hearing.
Thomas contends that the commissioner violated his right to due process by awarding Ann Marie an additional $1,100 in attorney fees for work her attorney claimed to have completed between May 19, 2006 and September 25, 2006. Thomas notes that he received no notice that the commissioner was going to consider Ann Maries request for additional attorney fees at the September 25, 2006 hearing, which was originally scheduled as review hearing regarding Thomass bar license.
Generally, "[a]n award of attorney fees under Family Code section 2030 is reviewed for abuse of discretion . . . ." (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.) In this instance, the commissioners award of additional attorney fees was an abuse of discretion because the order was entered in violation of Thomass right to due process.
"Procedural due process focuses upon the essential and fundamental elements of fairness of a procedure that would deprive an individual of important rights. As stated in Fuentes v. Shevin (1972) 407 U.S. 67, 80[] `. . . the central meaning of procedural due process [is] clear:" Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified." [Citations.] It is equally fundamental that the right to notice and an opportunity to be heard "must be granted at a meaningful time and in a meaningful manner." [Citation.] [Citation.]" (In re Joshua M. (1998) 66 Cal.App.4th 458, 471.)
Thomas was not provided notice that the commissioner was going to hear Ann Maries request for additional attorney fees at the hearing scheduled for September 25. In fact, Ann Marie did not mail Thomas notice of her request that the commissioner sign her version of the proposed written order from the May 19 hearing, or her request for additional attorney fees, until September 25 — the date of the hearing. Thomas thus could not have known that the court would be considering Ann Maries request for additional attorney fees that day.
The transcript demonstrates that the commissioner may not have been aware of the fact that Thomas had not received notice of Ann Maries request prior to the hearing. When Ann Maries attorney raised the issue of additional attorney fees, the commissioner asked, "Does [Thomas] have notice that all this was going to happen today?" In response counsel for Ann Marie said, "I gave him a copy of my declaration. Like I said, the court could do that at any time.[] In my declaration, pursuant to the local rules, it says how they differ. And all of our letters back and forth were attached. [¶] Pursuant to the Code, the court can augment attorney fees, because Ive had to go back and forth with him three or four times on this and come in for ex parte [hearings] twice and prepare everything, because he refuses to sign the order."
Earlier in the proceeding, the commissioner had asked Ann Maries attorney whether she had sent Thomas a copy of the declaration she had filed that day regarding the proposed order related to the May 19 hearing. Counsel responded to the commissioners inquiry by stating, "It went out in the mail to Mr. Tighe. So that is something the court can do at its leisure to sign off on the order after hearing." It appears that Ann Maries attorney was not expecting the commissioner to consider Ann Maries requests that day, but, rather, thought the commissioner would consider the requests at a later time. Nevertheless, when it became clear that the commissioner intended to hear and consider Ann Maries request that day, counsel did not inform the commissioner that the notice had been sent out only that day.
It seems clear that the commissioner was under the misimpression that Thomas had received Ann Maries papers prior to the September 25 hearing, when, in fact, that was not possible because the papers had been sent to him only that day. As a result, the commissioner considered and granted a new request for attorney fees from Ann Marie without providing Thomas notice and an opportunity to be heard on that issue.
Ann Marie argues that Thomas was aware that there was going to be a hearing before the commissioner on September 25, and that "if [Thomas] wanted to know what was going to happen at the September 25, 2006 hearing, he should have been present."
However, Thomas had notice only that a hearing would be held on the matter of his bar license. Contrary to Ann Maries suggestion, under fundamental judicial principles, there is no requirement that a party show up at a hearing in order to find out what additional matters might be raised and considered at the hearing. Rather, a party is to receive notice and an opportunity to be heard before the court rules in a manner that affects that partys rights. Because Thomas did not have notice of Ann Maries request for additional attorney fees prior to the September 25 hearing, we reverse that portion of the commissioners order awarding $1,100 in attorney fees for work completed between May 19 and September 25, 2006. The commissioner can reconsider the issue of attorney fees regarding that work at a hearing where both parties have been provided notice and an opportunity to be heard.
D. The Reimbursement Order is valid
Thomas asserts, by way of a section heading, that the Reimbursement Order, which arose out of the courts rulings on May 19, 2006 but was approved and signed on September 25, 2006, is invalid because of the same procedural due process concerns he has raised regarding the Attorney Fee Order. Under that heading, Thomass entire argument consists of his suggestion that if he had "been given notice and an opportunity to take part in the impromptu September 25, 2006 hearing" where the commissioner approved Ann Maries proposed written order documenting the commissioners findings and orders arising from the May 19, 2006 hearing, that order "might have turned out quite differently." Aside from the fact that we may treat this argument as waived for lack of legal argument with citation of authorities (see, e.g., Trinkle v. California State Lottery (2003) 105 Cal.App.4th 1401, 1413), the argument has no merit. Thomas was present and had an opportunity to be heard during the hearing from which the Reimbursement Order arose. Even though the parties could not agree on a proposed written order to memorialize the courts rulings of May 19, the differences between the parties proposed orders were minor, and the transcript of the commissioners rulings on May 19 supports the version Ann Marie proposed. The commissioner made no new findings or rulings on September 25 regarding the Reimbursement Order. Rather, the commissioner merely approved a proposed written version of the rulings made on May 19. This action did not violate Thomass procedural due process rights, nor was it an abuse of the commissioners discretion.
IV.
DISPOSITION
With regard to the order filed September 25, 2006 relating to the rulings of the commissioner on May 19, 2006, we affirm that portion of the order in which the commissioner ordered Thomas to reimburse Ann Marie for his share of the medical insurance premiums for the children. We reverse the portions of the order requiring that Thomas reimburse Ann Marie for property taxes and home repair payments. We also reverse that portion of the order awarding Ann Marie attorney fees for work completed concerning matters both within and in excess of the commissioners jurisdiction, and remand the matter for the trial court to reconsider the issue. On remand, the commissioner may exercise discretion in determining an appropriate attorney fee award for work related to addressing the child support issues. Ann Marie may file with the superior court judge a motion requesting reimbursement for amounts she claims are owed to her pursuant to the judgment of dissolution.
With regard to the commissioners order filed September 25, 2006 awarding Ann Marie $1,100 in attorney fees, we reverse and remand the order to the commissioner to hold a new hearing on the matter. The commissioner shall ensure that both parties receive notice of the hearing and an opportunity to be heard. The parties are to bear their own costs on appeal.
WE CONCUR:
OROURKE, Acting P. J.
IRION, J.