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In Re the Marriage of Valerie Kim and John Dennis Cadigan. v. John Dennis Cadigan

November 30, 2011

IN RE THE MARRIAGE OF VALERIE KIM AND JOHN DENNIS CADIGAN. VALERIE KIM CADIGAN, APPELLANT,
v.
JOHN DENNIS CADIGAN, RESPONDENT.



(Super. Ct. No. 05FL05617)

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

Marriage of Kim and Cadigan

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this family law proceeding, Valerie Kim Cadigan appeals the trial court's denial of her motion for various forms of postjudgment relief against John Dennis Cadigan. She asserts that the trial court erred by (1) failing to hold an evidentiary hearing, (2) denying her motion to obtain reimbursement from John for their son Michael's respite care, (3) denying her claim for unreimbursed medical expenses, again with respect to Michael's respite care, (4) denying reimbursement for fees she paid to an attorney she hired to represent Michael's interests, and (5) denying her request to modify spousal support that John pays to her.

None of Valerie's contentions has merit. Therefore, we affirm.

BACKGROUND

Because of deficiencies in Valerie's briefing, this is a difficult case to summarize. Valerie makes many of her assertions in her opening brief concerning the facts of this case and the trial court proceedings without providing citations to the record to support the assertions. For example, she asserts that their autistic teenage son Michael is over six feet tall and weighs more than 180 pounds. For this assertion, she cites to factual findings from an administrative hearing when Michael was three years old. Also, she states that the couple hired an attorney to advocate for Michael's special education needs; however, the page of the record to which Valerie cites for this proposition states only that "[e]ach party will pay one-half of all agreed upon legal fees on behalf of Michael." Similarly, Valerie relates the story of the couple's daughter who died of leukemia, with no accompanying citation to the record or explanation of the relevance to this appeal of this sad event in their lives.

Stating facts and trial court procedure without a supporting citation to the record violates rule 8.204(a)(1)(C) of the California Rules of Court. We therefore disregard all unsupported statements of fact and procedure in Valerie's brief.

In 2005, Valerie petitioned to dissolve her 17-year marriage to John. Their son, Michael, was born in 1997, and he is autistic, requiring 24-hour supervision. Both parties claim that a judgment of dissolution was entered, but no such judgment is present in the record on appeal. John notes that deficiency and cites to a later order referring back to the judgment. Valerie, on the other hand, states that a judgment was entered and cites to a support order in the record on appeal as if it were a judgment of dissolution.

Valerie has been represented in this action by several attorneys serially. We need not recount their names, nor the extent of their involvement.

This appeal arises from trial court proceedings relating to Valerie's postjudgment motion to modify child support and spousal support. It appears from the record that, at the time Valerie initiated this motion to modify, the existing orders for support, from John to Valerie, included $2,367 per month in child support and $4,733 per month in spousal support. The parties retained joint custody of Michael, with Valerie having 80 percent physical custody. That order was entered April 16, 2009, pursuant to the parties' stipulation.

A little more than six months later, on October 28, 2009, Valerie initiated this proceeding as an order to show cause concerning modification. The pertinent parts of her motion requested (1) an order setting aside the April 16, 2009, order, (2) additional support and reimbursements, and (3) attorney and expert witness fees and sanctions.

First, Valerie asked the court to set aside the stipulation and order of April 16, 2009, based on allegations of unilateral mistake of law and John's fraud. She claimed that she received bad advice from her attorney that (1) giving John the dependency exemption for Michael would not have an adverse financial impact on her, (2) her disability payments for her depression and anxiety ($1,339 per month) should be included as her income in calculating support, (3) disability income she receives in behalf of Michael ($669 per month) should be included as her income in calculating support, and (4) attributing $9,000 per month in additional income to John would adequately compensate her for John's stock sales and bonuses.

Second, Valerie sought (1) additional child support for Michael because Michael's respite care increased by $1,767 per month because of changes in Medi-Cal, (2) additional spousal support because her health insurances premiums went up $504 per month, (3) $739.17, representing one-half of Michael's medical expenses uncovered by insurance, (4) $25, representing one-half of the charge due to the Folsom Fire Department to transport Michael to the emergency room, (5) $6,926.35, representing one-half of attorney fees charged by Richard Ruderman to represent Michael with respect to government benefits and services, and (6) $3,690, representing respite care costs for Michael incurred by Valerie when she was injured and had surgery on her foot.

And third, she requested need-based attorney fees of $25,000, expert witness fees of $10,000, and sanctions pursuant to Family Code section 271 of $100,000.

In Valerie's declaration attached to her motion to modify, she stated: "Because of the complexity and number of the issues involved, I am requesting that, save for my request for need based attorney fees and expert fees in the amount of $35,000, that [sic] this matter be set for a long cause hearing or special set."

John opposed Valerie's request to set aside the April 16, 2009, order as untimely and unsupported by facts. He opposed the requested modifications to child and spousal support because there was no material change of circumstances. John did not object to paying one-half of Michael's reasonable uninsured health care expenses, but he objected to payment of Ruderman's fees because he did not agree to those fees and Ruderman's services were neither necessary nor affordable. He opposed Valerie's request for attorney fees, expert witness fees, and sanctions, and he requested $5,000 in sanctions against her.

In his responsive declaration, John stated, in part: (1) he did not agree to Ruderman's attorney fees for representation of Michael and felt they were unnecessary, (2) he did not agree that he should pay for additional respite care for Michael while Valerie was convalescing from foot surgery because she refused his offer to take Michael in exchange for suspension of child support payments, and (3) some of the health care expenses incurred by Valerie for Michael's care could have been avoided if she had used John's insurance.

The trial court held a hearing on Valerie's motion on November 30, 2009. Counsel for Valerie argued that the April 16, 2009, order should be set aside. He then stated: "I think the credits and reimbursements, because those are in dispute because of the exact dollar amount, are going to necessitate a long-cause hearing. As is the issue of spousal support, because we are going to have to look at the [Family Code section] 4320 factors . . . ." Counsel then summarized some of Valerie's contentions.

Counsel for John started by saying, "I'm not going to address all the factual allegations. We are going to long cause on this stuff." Nonetheless, counsel argued ...


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