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In re Marriage of Herr

June 17, 2009

IN RE THE MARRIAGE OF SANDRA L. AND MARK A. HERR.
SANDRA L. FURTON, APPELLANT,
v.
MARK A. HERR, RESPONDENT.



APPEAL from a judgment of the Superior Court of El Dorado County, John J. Golden, Judge. Reversed. (Super. Ct. No. PFL20030318).

The opinion of the court was delivered by: Sims , J.

CERTIFIED FOR PUBLICATION

Although a trial court has inherent authority to correct an erroneous ruling or order on its own motion, it has no inherent authority to order a new trial. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107-1109; Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162.) Here, although the trial court announced it was granting reconsideration on its own motion of a support order, it in fact ordered a full "hearing on reconsideration" and directed the parties both to submit new declarations and to be prepared at the hearing to present additional evidence.

Such a reexamination of factual issues does not fall under the rubric of "reconsideration." It is a new trial. And, because the trial court here had no authority to order a new trial, we shall reverse its order purporting to grant reconsideration.

BACKGROUND

We glean the following background facts from the limited record on appeal.

The parties were married in or about 1990, and have three children. In August 2006, they entered into a written stipulation that Mark*fn1 would pay child and spousal support to Sandra.

Sandra moved thereafter to modify child support and determine arrearages; Mark moved to modify the parties‟ custody, parenting, child support and spousal support. These matters were all tried together on June 26, 2007 (all other date references are to events in 2007). No transcript of the trial is in the record. The minute order of the two-day trial indicates both parties were present, testified and introduced documentary evidence.

At the close of trial on June 27, the court announced its ruling from the bench.*fn2 The court denied Mark‟s motion to reduce child support; it fixed the amount of spousal and child support to be paid by Mark to Sandra, ordered that Mark pay Sandra‟s attorney fees of nearly $10,000, and determined support arrearages owed by Mark to be nearly $11,000. The court refused to consider Mark‟s motion regarding child custody because it was not explicated in his moving papers. The minute order reflects that the court then directed Sandra‟s counsel "to prepare the order for the court‟s signature by" the following day.

A form "findings and order after hearing" was signed by the court on June 28, and the proof of service signed by Sandra‟s counsel shows the order was served by mail on Mark on June 29.

Fifty-six days later, on August 24, Mark filed a motion for reconsideration pursuant to Code of Civil Procedure, section 1008 or, in the alternative, for a new trial, pursuant to Code of Civil Procedure section 657. In it, he denied having received written notice of the court‟s order after hearing and argued the court erred in denying his motion to continue the trial, and erred in failing to advise him of his rights regarding pending contempt proceedings concerning support, including that his trial testimony could be used against him in those contempt proceedings. Mark further argued the court erred at trial in failing to consider: (1) the "dissomaster" reports he had prepared; (2) the mediator‟s report; (3) the fact that the children currently reside with him; (4) the true fact that his income was less than half the imputed amount; and that, (5) since the hearing, he had been placed on complete disability due to depression and anxiety.

In response, Sandra complained that Mark‟s motion was untimely and raised no new facts or law.

At a hearing on September 26, the court granted reconsideration on its "own motion," and set the matter for further hearing.*fn3 The court announced that the subject matter of all of the motions previously heard at the two-day trial would be revisited: "[A]t the hearing on reconsideration, which will be scheduled by the clerk in due course, each of the parties must be prepared, must have filed then current Income and Expense Declarations thoroughly conforming to the requirements of the Family Code, and must then be prepared to offer competent evidence on all issues involved in the reconsideration, particularly on the issues of [Mark]‟s earnings." For example, the court stated, "if [Mark] contends that his earnings are affected by a disability from employment which he suffers, he should be prepared to offer a competent declaration by a physician to the effect that the physician has examined him and formed the opinion that [Mark] is disabled from employment.

"In addition, each party must be prepared to offer competent evidence of the approximate percentage of time that each of them has or will have primary physical responsibility for the children compared to that of the other party, in ...


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