Bonner v. Bonner (In re Bonner)

In re the Marriage of CANDY and TERENCE BONNER.

CANDY BONNER, Respondent, v. TERENCE BONNER, Appellant.

D066627

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

December 22, 2015

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. ED88462)

APPEAL from orders of the Superior Court of San Diego County, Darlene A. White, Judge. Affirmed.

Terence Bonner, in pro. per., for Appellant.

No appearance for Respondent.

Appellant Terence Bonner, a self-represented litigant, appeals from an order of the family court (1) awarding $2,500 in attorney fees to his former spouse, respondent Candy Bonner;¹ (2) granting Candy's request for an interim order requiring Terence to pay her one half of his community property pension distributions; and (3) denying Terence's request for "private proceedings" on issues of fact, which Terence sought based on his Fifth Amendment right against self-incrimination. Terence also appeals from the family court's order denying reconsideration of the above-referenced order. Terence contends the family court prejudicially erred in these rulings. With respect to his motion for private proceedings, he argues in part that the court failed to rule on a motion to strike Candy's pleadings, its order both vitiates a prior discovery protective order and nullifies his protections under the Fifth Amendment, and the court applied the wrong legal standard in making its order. As for the attorney fees and pension distribution orders, Terence contends they contravene laws that mandate parity in access to legal representation; the attorney fees order is unsupported and unjustified; and the division of his pension was prejudicial in part because it constitutes an unequal distribution of the community estate and hampers his ability to retain counsel.

Candy has not filed a respondent's brief in this matter. California Rules of Court, rule 8.200 states: "Each respondent must serve and file a respondent's brief." (Cal. Rules of Court, rule 8.200(a)(2).) This rule provides that if the respondent does not timely file a brief, this court "may decide the appeal on the record, the opening brief, and any oral argument by the appellant." (Cal. Rules of Court, rule 8.220(a)(2).) We elect to do so, and will not treat Candy's failure to file a respondent's brief as a default or an admissionthat the family court erred. (In re Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1.) The better practice is to examine the record on the basis of Terrence's brief and reverse only if prejudicial error is found. (See In re Bryce C. (1995) 12 Cal.4th 226, 232-233.)

Applying this procedure, we conclude Terence has failed to provide us with an adequate record to permit review of some of his claims. To the extent his claims are reviewable on the record provided, we conclude the family court did not err. Accordingly, we affirm the orders.

FACTUAL AND PROCEDURAL BACKGROUND²

Terence and Candy were married in March 1978 and separated on August 29, 2012. Dissolution proceedings commenced after their separation. Terence is retired from the U.S. Customs and Border Patrol (Border Patrol), where he worked from May 1978 to May 2010, and he receives a pension in connection with that employment. In August 2012, Terence was indicted by a federal grand jury on criminal charges of conspiracy to commit wire fraud, wire fraud and aiding and abetting.

In January 2014, the family court entered a judgment of dissolution as to Terence and Candy's marital status only. The next month, the federal government dismissed thecriminal charges against Terence with prejudice and agreed to " 'forgo bringing any new charges against [him] based on evidence or information currently in its possession.' "

In April 2014, the family court issued a protective order for nondisclosure of specified financial information and documents to third parties and others. The protective order broadly covered the parties' documents such as bank and credit card statements, tax returns and other pay information, work vouchers and expense receipts, documents responsive to both parties' discovery requests, pleadings, stipulations, orders, and judgments entered in the action.³

In June 2014, Candy moved for an order bifurcating the issue of Terence's community property Border Patrol pension and setting it for trial. She submitted a declaration averring that the pension was a community property asset as they were married throughout the entire time Terence worked for the Border Patrol, but Terence had not agreed to equally divide his pension under community property laws. She averred that since their August 2012 separation, Terence was drawing his pension but had not provided her with any portion of his monthly pension benefit payments. Candy asked thecourt to reserve jurisdiction over her interest from the date of separation until benefits were divided. At some point, Candy also moved for attorney fees.

Terence thereafter filed a motion "for private proceedings in the trial of any issue of fact covered by the terms of the court's April 30, 2014 protective order." He argued his Fifth Amendment rights mandated such private proceedings; he maintained that those facing the possibility of criminal charges could not be compelled to waive their rights against self-incrimination in a civil proceeding, and in his case the federal government, despite its dismissal of the criminal charges, did not grant him immunity from prosecution or foreclose the possibility of bringing future charges based on other evidence or information. Terence asserted he demonstrated the requisite "particularized need" for private proceedings in keeping with Family Code⁴ section 214. He argued his right against self-incrimination outweighed any public interest in monitoring the family law proceedings, pointing out federal agents could observe the public proceedings or access the public records relating to the case. He argued that allowing such public access would render the provisions of the Court's protective order "wholly meaningless and ineffective . . . ."

Candy opposed Terence's motion for private proceedings, and Terence moved to strike certain portions of her opposing declaration and opposition papers. Terence also opposed Candy's motion for attorney fees, and to divide his pension.

After swearing the parties in and hearing their arguments on the matter, the court took the matter under submission.

On July 7, 2014, the court filed its findings and order after hearing. As to Candy's request for attorney fees, it summarized her arguments, and stated she had attached the required family law forms to her request. It found her motion procedurally adequate, as Candy had requested an award both for payment of past fees incurred and to hire counsel, and she had "provided the necessary declarations and testimony in support of her request." The court found Candy "has a need for attorney's fees based both on her income and expenses, and based on the complexities of this case and numerous motions and issues raised by respondent." It further found Terence "has an ability to pay the fees based on his income and expenses." The court awarded Candy $2,500 in attorney fees payable on or before August 1, 2014.

The court granted Candy's request to divide Terence's pension and bifurcate the issue for a separate trial. It ruled: "[Terence] has been receiving the entirety of his pension since this case has been pending, without voluntarily providing [Candy] her community property share. There is no dispute that the pension is community property. While [Terence] argues that there are other financial considerations that the court should consider in equally dividing the community estate, the court does not find those to be dispositive on this issue, or that wife should not receive her share of the pension pending further resolution of those issues. Finally, the court does not find that a bifurcated trial on the issue is necessary, as this is an interim order without prejudice to either side to argue a different distribution or characterization of the funds at any settlement or trial." Thecourt ordered Terence to begin paying Candy one half of any pension distributions forthwith until an interim QDRO [qualified domestic relations order] could be prepared, and its order states it "specifically reserves over the characterization and distribution of these funds at a later date as either a property division, or as and for additional attorney's fees."

The court denied Terence's motion for private proceedings. Relying on section 214 and In re Marriage of Lechowick (1998) 65 Cal.App.4th 1406 (Lechowick), the court stated it could only order a closed proceeding in a family law matter if the court finds such a hearing " 'is necessary in the interests of justice and the persons involved' " and such an order "must pertain to one or more particular issues of fact and the moving party has the burden of showing a particularized need for a closed trial on that issue." It reasoned: "Here, [Terence] is requesting that the court conduct 'private proceedings' for anything that may involve documents or financial issues covered by the protective order in this case. He does not specify with any particularity what particularized issues would be covered, nor does he meet his burden of showing that a closed proceeding is necessary in the interests of justice. While [Terence] cites to his Fifth Amendment rights, implying that they outweigh any First Amendment issues, the argument is without merit. [Terence] may, if he chooses to, invoke his Fifth Amendment right at any trial or proceeding in this case. However, to conduct his family law proceedings in a...