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In Re the Marriage of John William Logan Iii and Kyndra Mychelle v. Kyndra Mychelle Davis


July 19, 2011


(Super. Ct. No. PFL20050063)

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

Marriage of Logan and Davis CA3


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant Kyndra Mychelle Davis (Davis) sought to set aside a 2006 order that she pay child support to her former husband, respondent John William Logan III (Logan) for their two young daughters, alleging the order was predicated upon an allegedly fraudulent income and expense declaration submitted by Logan. The trial court denied her motion.

Davis appeals pro se from that order, contending the trial court "demonstrated personal bias and prejudice" against her and deprived her of due process when it decided the matter "before reading [her] motion or having heard arguments on their merits." She also contends the court abused its discretion by not referring the matter for trial or evidentiary hearing, and by continuing "unrelated" matters to the same date.

We find no error and affirm the judgment.


Logan and Davis, who are now divorced, have two girls, born in 1998 and 2000.*fn1

In October 2006, while the girls were living with Logan in El Dorado County, the El Dorado Superior Court (by Commissioner Dwyer) entered an order after hearing that Davis pay $484 per month in combined child support and child care costs for the two girls, and that she continue to bear financial responsibility for transporting them to and from her home in Utah for visitation. This order was made after Davis sought to modify the parties' then existing visitation and support arrangement.

In June 2009 Davis brought the instant motion to set aside the 2006 support order. (Fam. Code, § 3691.) She filed a declaration of 43 pages, plus a five-page amendment and many exhibits, for the purpose of showing that Logan had provided her and the court with fraudulent information concerning his expenses and financial status. The gravamen of Davis's motion was that, in or about April 2009, she discovered that the income and expense declaration submitted by Logan three years earlier fraudulently inflated his claimed child care expenses from $117 to $400 per month, and manipulated them by changing the child care arrangements immediately before the hearing. She also averred that since 2006, Logan had interfered with her efforts to obtain records from child care providers, and "effectively blackmail[ed] me out of taking him back to court" by threatening to reveal to the family law court in California the fact of her 2005 Utah arrest on a prostitution charge, which was ultimately dropped and expunged.

Davis asked the court to issue a retroactive support order "using the I & Es submitted before [the 2006] hearing; setting [Logan's] child care expenses to $117, include [Davis's] visitation expenses of $450, and include the addition [of Logan's] non-taxable income of $344 [from] his [current] spouse's child support awarded to her for her child from another relationship, whom [Logan] claims as a dependant [sic]." Davis also asked the court to adjust Logan's claimed uninsured medical costs, to reduce her support arrearages by $2,500, and to award her punitive damages of $50,000.

Logan responded by asserting Davis's service of the motion was improper. He also sought to deny Davis visitation at her home in Utah, and instead to allow her only supervised visitation in California, "due [to Davis's] financial instability" and his belief she was "neglecting the basic needs of our children during her visits" because she was "unable to provide [them] with a safe stable place to stay" or "suitable and safe accommodations for [them]."

The hearing on Davis's motion was originally set for June 25, 2009 (further date references are to events that occurred in 2009). Before the hearing, Davis filed two applications for orders to show cause why Logan should not be held in contempt for violating the visitation orders; those applications are not in the record.

At the June 25 hearing, the superior court continued the hearing on Davis's motion and her applications for contempt orders to August 27, remarking to Davis, "I have to be honest with you, ma'am. There's over 100 pages -- [¶] . . . [¶] -- that you've filed. I can't read all this stuff. And a lot of it is duplicative stuff over and over again, the same thing that you're asking for."

At the August 27 hearing, the court began: "Let me just start off with something. [¶] Mrs. Davis, I don't know -- I'm going to be very honest with you. There's some hundred pages that have been filed for all of these motions that have been filed. There are 60 or 70 exhibits, some of them having several pages. [¶] I don't know who you expect is going to have the time to go through all of this. Part of the problem is it's very disorganized. I can't even follow exactly what you're asking for. So I'm going to ask you to tell me what it is. [¶] . . . [¶] . . . I'm just trying to let you know that I have a certain amount of time. You saw the stacks of files that I had here today. I don't have time to go through -- I don't know how many hundreds of pages you have here."

Addressing Davis's application for contempt orders against Logan, the court granted Logan's request for appointed counsel and appointed an attorney.

It then turned to Davis's motion to set aside the 2006 support order and said, "Well, we're not going to hear that today because I don't have time. This isn't the time and place for a contested hearing. This is simply the law and motion calendar.

"Ms. Davis: Okay. I understand that.

"The Court: Mr. Logan, what's your position?

"Mr. Logan: I did not commit fraud on my Income and Expense on my income itself. I think Commissioner Dwyer took everything into account very fairly that day, and he set the support as to what he felt it should be. And there is no fraud, and I have the documents to prove that there is none.

"Ms. Davis: Your Honor, the -- the supplemental declaration supporting the request to set aside support orders was added Wednesday. This is new information I just received that proves that Mr. Logan was dishonest in those Income and Expense Declarations.

"The Court: Ma'am, this is what you have filed. This and this. That is, what, seven inches of paperwork --

"Ms. Davis: Seven?

"The Court: -- with attachments, at least, in the last month and a half. I will be the first to admit I haven't read it all. I don't have time to read it all at this point.

"I will set this out for a ruling. If you have nothing else to submit, I will make a decision on this, but it's going to take me a couple months before I'm going to be able to get through all this. That's the best I can do.

"You're asking me to go back over three years to review a bunch of information. You've got documents attached in support of it. You may be right, Mrs. Davis. I'm just telling you, realistically, I can't make a determination at this point, and that's going to take me time, because this isn't the only case I have."

After reiterating that it would "take a look at it, then," the court announced that the matter was deemed submitted.

On September 4, the court entered a minute order denying Davis's motion. Davis appeals.


I. Applicable Standards of Review

On appeal, a judgment or order of the trial court is presumed to be correct, and all intendments and presumptions are indulged to support it on matters as to which the record is silent. Thus, an appellant has the burden to affirmatively demonstrate reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; In re Marriage of Gray (2002) 103 Cal.App.4th 974, 977-978.)

The appellant's burden to follow the California Rules of Court (rule) includes: (1) presenting each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made (rule 8.204(a)(1)(B), (2)(A)); (2) providing an adequate record that affirmatively demonstrates error (rule 8.120 et seq.); (3) supporting all appellate arguments with legal analysis and appropriate citations to the material facts in the record (rule 8.204(a)(1)(C)); and (4) showing exactly how the error caused a miscarriage of justice (rule 8.204(a)(2)(A); Cal. Const., art. VI, § 13). If the appellant fails to comply with any of these rules, the contentions are forfeited. (Rule 8.204(a)(1)(B); Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296; City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239-1240 (Lincoln).)

Because the arguments on appeal must be restricted to evidence in the record, any reference to matters outside the record on appeal generally will not be considered. (Rule 8.204(a)(2)(C).) Accordingly, to the extent either party refers to evidence or other matters not contained in the record on appeal, we disregard them.

Lack of legal counsel does not entitle an appellant to special treatment. (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795; Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055; Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.) A pro se litigant is held to the same restrictive rules of procedure as an attorney. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 638-639.) "A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation." (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985.)

II. Davis's Contentions Lack Merit

Davis first contends the trial court "demonstrated personal bias and prejudice against [her], and, based on those prejudices, decided its ruling before reading [her] motion or having heard arguments on their merits," thereby depriving her of due process of law and violating the California Code of Judicial Ethics, canon 3B(5). She asserts that the court's "remarks toward only her regarding the size and number of filings" and its "unwarranted criticisms regarding their organization and style throughout the proceedings" showed "the court had a personal prejudice against [her] from the start of proceedings."

Reversal for a new trial is required where the trial judge engages in judicial bias or unfairness to such an extent that the appellant could not have received a fair trial. (See Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1008; Hall v. Harker (1999) 69 Cal.App.4th 836, 841, disapproved on another point in People v. Freeman (2010) 47 Cal.4th 993, 1000, 1006.) Davis has the burden of establishing facts supporting her claim of judicial bias. (Betz v. Pankow (1993) 16 Cal.App.4th 919, 926.)

Davis has failed to meet that burden. First, we note that she fails to point to specific statements in the reporter's transcript that she contends demonstrate bias or prejudice (rule 8.204(a)(1)(C)); her failure to do so forfeits her argument (rule 8.204(a)(1)(B); Lincoln, supra, 102 Cal.App.4th at pp. 1239-1240.)

Even were this argument not forfeited, it has no merit. We have reviewed the entire appellate record and have found no evidence of bias. The trial court's relatively mildly-stated frustration with the size of the filings and/or that Davis had filed multiple motions does not suggest bias against Davis or against the relief she sought, and the fact that the trial court ruled against her does not indicate bias, even were that ruling erroneous.*fn2

Davis's other contentions fare no better.

She asserts that the court abused its discretion when it took her motion under submission rather than "referring the matter to trial or evidentiary hearing." These actions do not constitute an abuse of discretion. First, a trial with oral testimony is not required for this postjudgment proceeding; such proceedings in marital dissolution matters may occur without oral testimony. (Zimmerman, supra, 183 Cal.App.4th at p. 913; Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 485.) Moreover, while local rules grant the trial court discretion to allow an evidentiary hearing on certain matters, Davis did not comport with the requirements of requesting such an evidentiary hearing, such as an explicit request for an evidentiary hearing and an offer of proof as to what she expected to establish at the evidentiary hearing. (See Super. Ct. El Dorado County, Local Rules, rule 8.06.02.)

Even the right to an oral hearing on a motion is not absolute: unless the statute expressly contemplates one, the opportunity to be heard does not necessarily compel an oral hearing. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1247.) ". . . California courts have concluded that use of the terms 'heard' or 'hearing' does not require an opportunity for an oral presentation, unless the context or other language indicates a contrary intent." (Ibid.; but see In re Marriage of Dunn (2002) 103 Cal.App.4th 345, 347-348; TJX Companies, Inc. v. Superior Court (2001) 87 Cal.App.4th 747, 750-751, and cases cited therein.) Davis's motion is authorized by Family Code section 3691. Neither that statute, nor the others in the same article, indicate that an oral hearing, or any hearing, is required in connection with a motion to set aside a support order.*fn3 Under these circumstances, that the court ruled on Davis's motion based upon the parties' moving papers does not indicate any prejudice against her.

Nor can the trial court be said to have abused its discretion in "continuing unrelated matters to the same date" as her motion to set aside the support order. The court's discretion to manage its own calendar is very broad. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 498-499.) The record reflects no abuse of discretion in the court's scheduling multiple pending matters between the same parties to the same date.*fn4


The order is affirmed. Logan is awarded costs on appeal. (Rule 8.278(a)(1).)

We concur: HULL , J. HOCH , J.

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