In re Marriage of Chavez

1

In re the Marriage of LEAH and RUDOLFO CHAVEZ.

LEAH CHAVEZ, Appellant, v. RUDOLFO CHAVEZ, Appellant.

C094597

California Court of Appeals, Third District, San Joaquin

April 20, 2023

NOT TO BE PUBLISHED

(Super. Ct. No. STA-FL-DWC-2014-0005424)

Duarte, J.

In this family law action, appellant Leah Chavez, a self-represented litigant, appeals from an order made in connection with the dissolution of her marriage to respondent Rudolfo Chavez.^[1] Leah challenges the order requiring her to undergo a vocational examination pursuant to Family Code section 4331.^[2] Finding no error, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We take our factual and procedural history from the settled statement, the documents in the clerk's transcript, the documents in the augmented appellate record, and the documents subject to judicial notice. We note that our review in this case is hampered to some degree by an incomplete appellate record and the lack of a respondent's brief. Although not entirely clear, it appears that the material facts are not in dispute.

The parties married in January 2001 and separated in June 2012. During the marriage, Rudolfo was employed at various jobs while Leah was a homemaker and a stay-at-home mother. The parties have four children together.

In August 2013, Rudolfo filed a petition for the dissolution of his marriage to Leah. Thereafter, the parties have engaged in protracted and highly contentious legal proceedings involving, among other things, child support, which Rudolfo was ordered to pay after the petition for dissolution was filed. The record reflects that, at all relevant times, Leah had sole physical custody of the parties' four children.

In September 2014, Leah obtained a five-year domestic violence restraining order against Rudolfo, which also protected the parties' children.

In January 2015, the family court issued an order to show cause regarding contempt due to Rudolfo's failure to make child support/medical payments. In March 2018, the family court issued a second, separate, order to show cause regarding contempt due to Rudolfo's continued failure to make child support/medical payments.

In August 2018, Leah filed a request for order (RFO) that sought permanent spousal support and modification of the child support order.^[3] The next day, Leah filed a motion for breach of fiduciary duty, arguing that sanctions against Rudolfo were warranted because he failed to timely disclose his substantial pay increase and the existence and value of a community property retirement account. In her motion, Leah explained that Rudolfo had recently served her with an updated income and expense declaration indicating that his income had increased by more than $70,000 as of August 2017.

In September 2018, the family court issued an order stating that it would treat Leah's breach of fiduciary duty motion as a motion in limine and would hear it at the time of the dissolution trial. The court also noted that it would issue a written decision on whether Rudolfo waived his constitutional right against self-incrimination by filing the income and expense declaration, and whether the support hearing could take place prior to the resolution of the contempt proceedings.

In October 2018, Leah filed a RFO, asking the family court for an order shortening the time to hear the "support matter," which was set for February 2019. Leah argued that such relief was appropriate because her children were in "emergency need of adequate support," explaining that while Rudolfo earned more than $120,000 annually, she and the children "survive off $19,800 annually."

In December 2019, the family court found that Rudolfo did not waive his constitutional right against self-incrimination by filing the declaration, and that the support hearing could go forward despite the pending contempt proceedings.

In January 2019, Rudolfo pleaded no contest to 10 counts of contempt of court in connection with the order to show cause filed in January 2015. He was sentenced to 50 days in county jail and ordered to pay a fine of $1,000. The family court suspended Rudolfo's sentence for two years on the condition that he "not pick up any more contempt charges" and obey all family law orders, including child support and medical reimbursement orders.

The next day, Rudolfo filed a RFO, asking the family court to order Leah to undergo a vocational examination under section 4331 to asses her ability to obtain employment that would allow her to maintain herself at the marital standard of living.^[4]Rudolfo also asked the court to issue an employment effort order or an order requiring Leah to attend job training pursuant to section 3558.^[5] Rudolfo argued that a vocational examination was appropriate given Leah's request for spousal support and her request to modify the child support order. In support of his position Rudolfo noted the parties had been living apart for over five years and Leah had not worked or sought employment during this time period, despite having earned a law degree. Rudolfo also noted that the parties' youngest child was nine years old and that none of their children had any special needs that would prevent Leah from obtaining employment.

In February 2019, Leah filed a responsive declaration, arguing that a vocational examination was not proper because Rudolfo had been found to be in contempt of court for violating child support orders. On that same day, Leah filed a motion in limine requesting the family court exclude any evidence at the support trial regarding Rudolfo's request for a vocational examination, based on his contempt.

In March 2019, the family court issued a written order, finding that good cause existed to require Leah to "submit to and comply with a vocational evaluation pursuant to [section] 4331 on both the issue of permanent spousal support and to assist the court in assessing the applicability of [section] 3558 to [her]." In so ruling, the court explained: "[Leah] has had several years to seek employment to assist in the support of the parties' minor children and herself and has, by her own previous testimony before the court, not actively sought employment for various reasons. The court believes, given [Leah's] education and training, and demonstrated abilities in representing herself in court, that a vocational evaluator can provide her with invaluable assistance and provide assistance to the court on the issue of permanent spousal support and whether an employment efforts order should issue." The court rejected Leah's contempt argument and the arguments she made for the first time at the hearing, including her contention that a vocational examination was not proper because discovery was closed.^[6] As for the discovery issue, the court found that a vocational examination "is not discovery barred by the provisions of CCP § 2019.010(d)."^[7] The court reserved ruling on the issue of whether an employment efforts order was appropriate.

Two days later, Leah filed a motion to "correct" or set aside the family court's order. Leah argued that the order was void because a vocational examination is a "discovery tool" and Rudolfo did not request a vocational examination until after the discovery cutoff date. Shortly thereafter, Leah filed several motions in limine. As relevant here, Leah reiterated her arguments as to why a vocational examination was improper. At a hearing two days later, the family court acknowledged that a vocational examination is a "discovery tool in some matters," and explained that a vocational examination "survives the discovery statutes" because it may be ordered "after the case is over" (i.e., during post-judgment proceedings).

In April 2019, the family court ordered Leah to set up an appointment for a vocational examination by Marlis Bruns. In doing so, the court provided Leah with Bruns's address, phone number, and e-mail address. The court stated that the examination "shall be pursuant to the parameters set forth in . . . [section] 4331(a)."

In July 2019, Rudolfo pleaded guilty to eight counts of contempt of court in connection with the March 2019 order to show cause. The family court imposed a sentence of 384 hours in county jail, but stayed execution of sentence for three years and placed Rudolfo on probation with the condition that he comply with the current support order and pay at least $75 per month on the medical arrears of $2,701.38. On the same day, the family court denied Leah's motion to correct or set aside the order requiring her to undergo a vocational examination, and ordered Leah to contact the vocational examiner within five days to set up an appointment in September 2019.

In August 2019, following a settlement conference resolving various issues (e.g., division of real property, health insurance for the parties' children), the family court bifurcated the issue of marital status and granted a "status-only judgment" dissolving the marriage "upon grounds of irreconcilable differences."^[8] The court noted that the only issues remaining for trial were Leah's requests that Rudolfo maintain her on his health insurance and obtain a life insurance policy through his employer.

In September 2019, the dissolution trial commenced. On the first day of trial, the family court advised Leah that it would not be "hear[ing] anything . . . remotely related" to the issue of support until she submitted to a vocational examination. As part of the discussion of this issue, the court noted that Leah violated a court order by failing to submit to the vocational examination, and explained that because health insurance was "kind of a loss of income," it was a "component of support," which would not be ruled on until after the vocational examination was completed. There...