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In Re the Marriage of Tahir J. Naim and Jennifer L. Price v. Jennifer L. Price

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT


December 16, 2010

IN RE THE MARRIAGE OF TAHIR J. NAIM AND JENNIFER L. PRICE, TAHIR J. NAIM, APPELLANT,
v.
JENNIFER L. PRICE, RESPONDENT.

(Santa Clara County Super. Ct. No. FL091712)

The opinion of the court was delivered by: Bamattre-manoukian, Acting P.J.

Marriage of Naim and Price

CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

I. INTRODUCTION

In this marital dissolution action, appellant Tahir J. Naim, a self-represented litigant, challenges the trial court's order awarding need-based attorney fees in the amount of $7,149 to his former wife, respondent Jennifer L. Price. For the reasons explained below, we determine that Naim has failed to meet his burden as an appellant to affirmatively demonstrate trial court error. Therefore, we will affirm the attorney fees order.

II. FACTUAL AND PROCEDURAL BACKGROUND

Our summary of the factual and procedural background of this case is drawn from the limited record on appeal and appellant's opening brief, since no respondent's brief was filed.

After their marriage in 1992, Tahir J. Naim and Jennifer L. Price had a daughter, Anna, who was born in 1995 and currently resides with Price in Texas. Naim and Price separated in 1999 and were "legally divorced" on December 31, 2000. The child support order entered on December 6, 2005, ordered Naim to pay $1,152 in monthly child support. At that time, Naim was employed as an attorney with a gross monthly income of $17,726. Jennifer has a Ph.D in anthropology. Her average monthly income, as reflected in her September 30, 2005 income and expense declaration, was $6,936.

On July 27, 2007, the trial court entered its order granting Price's request that the court decline to exercise its jurisdiction to make a child custody determination in favor of the child custody action then pending in the 345th Judicial District Court of Travis County, Texas.

Naim filed a motion for modification of the December 6, 2005 child support order on January 11, 2010. In his motion, Naim stated that he had been laid off from his job and was receiving monthly unemployment benefits of $1,800. Due to his reduction in income, Naim requested that his monthly child support obligation be reduced and Price be ordered to seek employment at her earning capacity and pay one-half of the premiums for their daughter Anna's health insurance.

The parties filed additional income and expense declarations in February 2010. Naim's income and expense declaration, filed on February 25, 2010, indicated that he was self-employed as the sole proprietor of a law firm, with average monthly earnings of $11,850 (although his earnings for the previous month were zero). He also stated that he had assets in the total amount of $22,000. Price's February 26, 2010 income and expense declaration stated that she had average monthly earnings of $3,871 and $3 in assets. Both parties also had various amounts of debt.

On March 15, 2010, Naim filed a "responsive declaration to order to show cause or notice of motion" that stated he did not consent to Price's requests concerning child support and attorney fees and costs. (Capitalization omitted.) The record does not include a copy of the order to show cause or motion filed by Price, or any other submission concerning attorneys fees, to which Naim was responding in his March 15, 2010 declaration. Naim also filed, together with his responsive declaration, his request that Price be ordered to pay one-half of Anna's health insurance premiums, travel expenses, and unreimbursed medical expenses. Naim additionally requested that an employment efforts order be imposed on Price and that income of $7,755 be imputed to her. Finally, Naim requested that each party bear his or her own attorney fees and costs.

Naim filed a second declaration on March 15, 2010, in which he expanded his responses in his first March 15, 2010 declaration. Regarding Price's request for attorney fees, Naim stated that he was unable to pay his own attorney fees or Price's attorney fees and he believed that Price had intentionally reduced her income after he filed his motion for modification of child support.

The record also includes a declaration by Naim, dated March 23, 2010, summarizing his unsuccessful efforts to find employment and stating his contention that Price was underemployed. He also acknowledged that he had a brokerage account with a value of $151,897. On March 25, 2010, Naim filed "points and authorities supporting petitioner's position on correction of prior CS order," in which he again requested that income be imputed to Price for purposes of calculating child support. (Capitalization omitted.)

A hearing on Naim's "post-judgment motion to modify child support and Ms. Price's request for attorney fees and costs" was held on March 25, 2010. The parties advised the trial court that they had entered into a stipulation that resolved a number of issues, and that the issues that remained before the court included Price's attorney fees request, the imposition of an employment efforts order on Price, and payment of the cost of therapy for Anna.

Only the attorney fees request is at issue in the present appeal. When the trial court asked Price what she was seeking in attorney fees, her attorney responded, "Your Honor, to date my client for this motion has incurred $7,149 in attorney's fees and costs. Her request for this court was $5,000 in attorney's fees and costs. She has no ability to pay for same. She took a loan from family to pay $5,000 toward my office."

The trial court then inquired as to Naim's ability to pay. Price's attorney asserted that "[Naim] has a stock account approximately worth $200,000. He made $250,000 a year while having approximately $4,000 in expenses. So he had a surplus of $14,000 per month that was being put somewhere after tax. So far we have located a Scott Trade account that has significant sums in it. He has a Patelco Credit Union account that he last stated has $22,000 dollars in it. He has significant 401K contributions from his time at Cooley Godward and Fenwick, and it is believed that he has other sums possibly with Fidelity."

Price therefore claimed that Naim had assets from which he could pay $5,000 in attorney fees. She also explained that her request for attorney fees was based on "disparity of income and [Naim's] conduct today." Additionally, Price's attorney asserted that Naim "is a lawyer and Ms. Price is not and . . . she requires legal assistance in this matter."

In response, Naim claimed that Price's representation that her expenses exceeded her income by $5,000 per month lacked credibility. He also claimed that he had unsuccessfully attempted settlement.

The trial court found that Naim had "resources" and was "much better off" than Price. Accordingly, the court granted Price's request for attorney fees and ordered Naim to pay attorney fees of $7,149 in 30 days.

The trial court's attorney fees order was entered on June 4, 2010. On July 28, 2010, this court ordered that Naim's previously premature appeal was deemed filed as of June 4, 2010.

III. DISCUSSION

As we will discuss, we find that Naim's failure to meet his burden as an appellant to affirmatively demonstrate error is fatal to his appeal of the attorney fees order. For that reason, we will provide an overview of the general rules that govern our appellate review and also place certain burdens on the appellant.

A. General Rules of Appellate Review and Appellate Practice

In conducting our appellate review, we presume that a judgment or order of a lower court is correct. "All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Therefore, a party challenging a judgment or an appealable order "has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) " '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.' [Citations.]" (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Thus, where the appellant fails to provide an adequate record as to any issue the appellant has raised on appeal, the issue must be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)

Additionally, where the sufficiency of the evidence is challenged on appeal, "the reviewing court must start with the presumption that the record contains evidence sufficient to support the judgment; it is appellant's burden to demonstrate otherwise." (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.) Therefore, when challenging the sufficiency of the evidence, the appellant is required to provide a summary of all of the evidence, not merely his or her own evidence, with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) In other words, we presume that the record contains sufficient evidence to support the trial court's finding, unless the appellant affirmatively demonstrates that the evidence is insufficient. (Baxter Healthcare Corp. v. Denton, supra, 120 Cal.App.4th at p. 368.)

The appellant must also present argument supported by relevant legal authority as to each issue raised on appeal. " '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.] This principle is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence. [Citation.]' " (People v. Stanley (1995) 10 Cal.4th 764, 793.)

Naim is not exempt from compliance with these general rules of appellate practice because he is representing himself on appeal. "Under the law, a party may choose to act as his or her own attorney. [Citations.] '[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]' [Citations]." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Thus, a self-represented litigant is not entitled to lenient treatment. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

Having reviewed the general rules of appellate review and appellate practice, we turn to the issue that Naim seeks to raise on appeal.

B. Need-Based Attorney Fees

Naim contends that the trial court erred in awarding $7,149 in attorney fees to Price. Based on our review of the limited record, we assume for purposes of this appeal that the trial court awarded need-based attorney fees to Price under Family Code sections 2031*fn1 and 2032.

In a marital dissolution action, the trial court may award need-based attorney fees "to provide one of the parties, if necessary, with an amount adequate to properly litigate the controversy. [Citations.]" (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768 [former Civil Code section 4370].)

The Family Code currently authorizes an award of need-based attorney fees pursuant to section 2032, which sets forth the criteria for the award: "(a) The court may make an award of attorney's fees and costs under Section 2030 or 2031 where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties. [¶] (b) In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately, taking into consideration, to the extent relevant, the circumstances of the respective parties described in Section 4320. The fact that the party requesting an award of attorney's fees and costs has resources from which the party could pay the party's own attorney's fees and costs is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances."

"The parties' circumstances described in section 4320 ' "include assets, debts and earning ability of both parties, ability to pay, duration of the marriage, and the age and health of the parties." ' [Citation.] In assessing one party's need and the other's ability to pay, the court may consider evidence of the parties' current incomes, assets, and earning abilities. [Citation.]" (In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 829.)

The limited record available in this case indicates that Price requested and the trial court awarded need-based attorney fees under section 2031, subdivision (a)(1), which provides for a temporary attorney fees order: "Except as provided in subdivision (b) [oral motion procedure], during the pendency of a proceeding for dissolution of marriage, for nullity of marriage, for legal separation of the parties, or any proceeding subsequent to entry of a related judgment, an application for a temporary order making, augmenting, or modifying an award of attorney's fees, including a reasonable retainer to hire an attorney, or costs or both shall be made by motion on notice or by an order to show cause."

C. Standard of Review

We review the trial court's award of attorney fees and costs under the abuse of discretion standard. "A motion for attorney fees in a marital dissolution action is left to the sound discretion of the trial court and will not be overturned absent an abuse of that discretion. [Citations.] ' "[T]he trial court's order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order made. [Citations.]" ' [Citations.]" (In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1523.)

As we have noted, Price did not file a respondent's brief in this appeal. "However, we do not treat the failure to file a respondent's brief as a 'default' (i.e., an admission of error) but examine the record, appellant's brief, and any oral argument by appellant to see if it supports any claim of error made by the appellant. [Citations.] (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; Cal. Rules of Court, rule 8.220(a)(2).)

D. Analysis

We understand Naim to challenge the trial court's order awarding attorney fees of $7,149 to Price on the following grounds: (1) the court failed to make findings of fact regarding the factors set forth in section 4320; (2) the evidence of Price's income and assets was insufficient due to lack of credibility; (3) Price's previous requests for attorney fees had been denied; (4) the evidence was insufficient to show that the attorney fees requested were reasonably necessary; and (5) in light of the insufficiency of the evidence, the trial court abused its discretion in awarding attorney fees to Price.

We find no merit in Naim's contentions, for three reasons. First, he has not provided any authority for the proposition that the trial court is required to make express findings regarding the section 4320 factors considered in making the award of need-based attorney fees. The decision on which he relies, In re Marriage of Keach (1999) 75 Cal.App.4th 860, does not stand for that proposition. Instead, in that case the appellate court reviewed the evidence submitted by both parties with regard to attorney fees and determined that the evidence was insufficient to justify the amount of attorney fees awarded. (Id. at pp. 869-871.)

Second, Naim has not met his burden to present a record that is adequate to show reversible error with respect to the attorney fees award. (Ballard v. Uribe, supra, 41 Cal.3d at p. 574.) Specifically, the record does not include all of the moving papers and evidence that were before the trial court when the court determined that Price was entitled to need-based attorney fees and calculated the amount of the award. Our review of the available record indicates that Price made a motion to the trial court in support of her request for attorney fees of $5,000, but her motion was not included in the record. As we have noted, when challenging the sufficiency of the evidence, the appellant is required to provide a summary of all of the evidence, not merely his or her own evidence, with citations to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C); Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) We must therefore presume that the record contains sufficient evidence to support the trial court's finding that Price is entitled to need-based attorney fees under the criteria set forth in section 2032. (Baxter Healthcare Corp. v. Denton, supra, 120 Cal.App.4th at p. 368.)

Third, even assuming that the record on appeal is adequate, Naim's claim that the evidence was insufficient fails under the applicable standard of review. "In a substantial evidence challenge to a judgment, the appellate court will 'consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]' [Citation.] We may not reweigh the evidence and are bound by the trial court's credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.]" (In re Estate of Young (2008) 160 Cal.App.4th 62, 76.)

Further, " '[a]n appellate court will not disturb the implied findings of fact made by a trial court in support of an order, any more than it will interfere with express findings upon which a final judgment is predicated . . . . So far as it has passed on the weight of the evidence or the credibility of witnesses, its implied findings are conclusive." (Griffith Co. v. San Diego College for Women (1955) 45 Cal.2d 501, 507-508.)

Here, the trial court impliedly found that the evidence showed that the parties' relative circumstances were such that Price needed an award of attorney fees in order to properly litigate the matters in controversy, the attorney fees she sought were reasonable and necessary, and Naim's financial resources were adequate to pay the requested attorney fees. (In re Marriage of Sullivan, supra, 37 Cal.3d at p. 768; § 2032.) Our standard of review, combined with our inability to review the evidence submitted by Price, precludes us from considering Naim's contention that the trial court's express and implied findings were based on evidence that lacked credibility or was otherwise insufficient.

For these reasons, we determine that Naim has not met his burden to show that the trial court abused its discretion in awarding need-based attorney fees of $7,149 to Price, and we will affirm the order.

IV. DISPOSITION

The order of June 4, 2010, awarding attorney fees of $7,149 to respondent Jennifer Price is affirmed. Costs on appeal are awarded to respondent.

WE CONCUR: MIHARA, J. duffy, J.


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