Court of Appeal Case G048816 - Oral Argument 11/18/2014

Описание: https://www.courts.ca.gov/opinions/no...
https://casetext.com/case/bustillo-v-...

Appeal from an order of the Superior Court of Orange County, Lon F. Hurwitz, Judge. Motion to dismiss the appeal granted; sanctions motion denied.
Todd C. Bustillo, in pro. per., for Appellant.
Michel & Rhyne and Karen Rhyne for Respondent.
Todd Bustillo (Todd) appeals from the trial court’s May 11, 2012, order requiring him to pay $5,000 in attorney fees to respondent Kari Bustillo (Kari). Kari filed a motion to dismiss the appeal and also moved for sanctions against Todd for pursuing a frivolous appeal. We grant Kari’s motion to dismiss the appeal, but decline to award sanctions.
I
PROCEDURAL BACKGROUND
The parties married in October 2004 and separated in October 2009. The trial court entered the judgment of dissolution and the division of property and debts on April 8, 2011. Kari filed a motion in July 2011 to set aside the judgment, claiming Todd failed to disclose assets, but the trial court denied the motion, which we upheld on appeal. (Bustillo v. Bustillo (May 3, 2013, G046725) [nonpub. opn.].)
The proceedings continued on reserved issues, and in May 2012 the trial court granted Kari’s motion for attorney fees. Both Todd and Kari were represented by counsel. The court noted the fee request pertained “to the ability to adjudicate the child custody, visitation issues, child support issues and . . . unadjudicated assets . . .” at the upcoming hearing. The court explained the Family Code provides for fee awards to ensure each party has access to legal representation. Based on a disparity of income in which Kari had monthly income of $400 and no assets, and Todd earned about $8,000 a month and had $4,500 in the bank, the trial court ordered Todd to pay $5,000 directly to Kari’s counsel as a share of Kari’s attorney fees.
The trial court’s minute order states: “Pursuant to [Family Code] 2030 and 2032, the court orders the respondent pay attorney fees to petitioner’s attorney in the amount of $5,000.00 subject to further adjudication and determination at the time of Trial. Respondent shall pay the sum of $2,500.00 forthwith, $1,000.00 by 5/31/12, and $1,500.00 by 6/15/12. To the extent evidence is presented, the court may make adjustments as to this attorney award at the time of Trial.”
The court did not order either party to prepare a notice of ruling. Nevertheless, a year later in May 2013, Todd wrote the court a letter enclosing an original and two copies of a document he entitled, “Findings and Order After Hearing.” He wrote: “Petitioner’s attorneys, The Law Offices of Michel and Rhyne, were to prepare a formal order. Pursuant to California Rules of Court, Rules 3.1312(a), the order was to be prepared within five (5) days of the hearing. I did not receive one from them. Pursuant to California Rules of Court, Rules 3.1312(d), if the prevailing party fails to prepare and submit a formal order, the other party may do so.” Todd stated he served the proposed order on Kari’s counsel on April 28, 2013, but received no response from her attorneys.
II
DISCUSSION
A. A Pendente Lite Family Law Attorney Fee Order Is Separately Appealable
Kari contends Todd may not appeal the July 2013 order after hearing that incorporated the original May 2012 minute order because the latter is an interim order for attorney fees and therefore lacks finality. Kari focuses on the July 2013 order, insisting it is not final because it states attorney fees are “subject to further adjudication and determination at the time of Trial” and “[t]o the extent evidence is presented, the court may make adjustments as to this attorney award at the time of Trial.” But the logic of her position also applies to the May 2012 order. Todd claims the May 2012 order was not final because it included similar language, justifying his decision not to appeal that order. He justifies his appeal of the July 2013 order after hearing because it apparently postdated the resolution of some reserved issues, though the July 2013 order did not mention or adjudicate those issues, but instead referred only to the May 2012 fee award.

C. Sanctions
Although the appeal is untimely, sanctions are not warranted. “An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts. Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)