Manning v. Kim, A149875

JEREMIAH F. MANNING, Appellant, v. LUCY J. KIM, Respondent.

A149875

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

April 10, 2019

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Mateo County Super. Ct. No. FAM0123613)

Jeremiah F. Manning appeals from the trial court's final judgment in his dissolution action against Lucy J. Kim awarding Kim sole physical custody of their three minor children and awarding Manning spousal support. He raises several issues that were forfeited by failing to appeal from appealable orders or by failing to raise them below. Manning also claims that the custody evaluator in the case was biased against him. We reject each of Manning's arguments and therefore affirm.

I.

FACTUAL AND PROCEDURAL

BACKGROUND

Our ability to understand fully the factual and procedural history of this case is hampered because Manning failed to include several key documents— such as the petition for dissolution and some relevant trial court rulings— in his appellant's appendix, and Kim failed to submit either a respondent's appendix or a brief. We therefore summarize the factual and procedural history as best we can based on the record before us.

Manning is an attorney licensed to practice in New York, and Kim is a doctor. They were married for around 12 years and have three children. They separated on November 26, 2013.

These proceedings were initiated in December 2013, and soon thereafter Manning requested Kim's financial support to help him pay his legal fees. A March 2014 trial court order memorializes an agreement that Kim would take out a personal loan of $50,000 guaranteed by a community asset (a retirement fund), that Manning would make monthly repayments to Kim for his half of the loan, and that $25,000 would be paid to an attorney on Manning's behalf as soon as the loan closed. Also in March, the court appointed a child-custody evaluator.

An attorney apparently briefly represented Manning but then filed a motion to withdraw in June 2014.¹ Manning complained about insufficient funds to pay for his legal fees as early as September 2014. At that time, he was proceeding without legal representation. He stated in a settlement conference statement that he "desperately require[d] counsel" because of "the litigious behavior of [Kim] and her attorneys."

The child-custody evaluator submitted a confidential report dated September 16, 2014, recommending that the parents share legal custody of the children, that Kim have sole physical custody of the children, and that the then-current visitation plan for Manning to see the children continue.

Also in September 2014, the trial court ordered Kim to pay Manning $4,633 per month for spousal support and $634 per month for child support. Manning did not appeal from the order.

Manning repeatedly, and unsuccessfully, sought attorney fees. He requested $25,000 in attorney fees by motion filed in October 2014. Kim opposed the request, arguing that Manning had made an insufficient showing of need for the fees under FamilyCode, section 2030.² The trial court denied the request by order filed in February 2015. Manning did not appeal from the order. He likewise did not appeal from an order in July 2015 that again denied his attorney fees. Manning filed another motion requesting attorney fees at the end of July. It is unclear from the record how the court ruled on the motion, but Manning did not retain counsel.

During this same time, Manning filed a request for an order to remove the custody evaluator and to exclude her report. The trial court denied the request.

Trial regarding custody issues began in September 2015. On the second day of trial, Manning again requested attorney fees. The trial court denied the request, stating, "So I will note for the record this is day two of trial that there has been no evidence or information presented to the Court by way of financial documents with regard to this motion for attorney[] fees. There have been multiple motions made in the past. We are not going to continue the trial. I'm not going to allow [Manning's] motion, so the motion is denied." Manning did not appeal.

At the start of proceedings on October 28, 2015, the trial court (Judge Susan Greenberg) made a statement about an attorney who was apparently affiliated with a law firm representing Kim. Judge Greenberg stated: "Good morning. So through this trial [attorney] Mr. [Joseph] Crawford has not been present and it was— I didn't know and I didn't expect him to be here yesterday. So I need to state for the record although he didn't participate other than to provide a couple of documents, I need to state for the record that about 18 months ago during my campaign he made a thousand dollar donation to my campaign but he has not been participating and none of the other attorneys made donations so there was nothing to disclose. I thought that I would just throw it out there because he's here again." Manning did not object, and Kim's counsel continued with her closing argument. The issue of child custody was submitted to the court in late October.

Around five months later, in March 2016, Manning discovered on the California Secretary of State's website that two of the law firms representing Kim had given JudgeGreenberg campaign contributions in 2014. One contribution was in the amount of $2,000, and the other was in the amount of $500. Manning requested ex parte that Judge Greenberg recuse herself, but the motion was denied on March 18. Manning thereafter submitted a written request to disqualify Judge Greenberg under Code of Civil Procedure section 170.3, subdivision (c). He alleged that Judge Greenberg had failed to disclose campaign contributions as required under Code of Civil Procedure section 170.1. He asked the court to vacate all of its orders since September 5, 2014, order a new trial on custody and support issues, and then recuse itself.

The trial court on April 5, 2016, struck Manning's statement of disqualification. The court concluded that (1) the statement was untimely, (2) disqualification was not mandatory because no individual lawyer (as opposed to law firm) in the proceeding contributed more than $1,500 (Code Civ. Proc., § 170.1, subd. (a)(9)(A)), and (3) Manning did not set forth further specific facts that would constitute a basis for disqualification under Code of Civil Procedure section 170.3, subdivision (c)(1). Manning did not challenge the order.

At the start of trial on financial issues, on April 6, 2016, Manning renewed a request for attorney fees. The trial court denied it. The court noted that Manning was still receiving around $5,200 a month in spousal and child support and that "[o]nce spousal support has been ordered and is being paid it equalizes the parties['] incomes to enough of a degree that there is no need for attorney[] fees after that point." Trial proceeded and was submitted to the court on June 1 after six days of trial.

The trial court entered final judgment on September 16, 2016. In a detailed order spanning 23 pages, the court ordered that Manning and Kim share joint legal custody of their children and that Kim be awarded sole physical custody, with reasonable visitation to Manning. The court provided detailed guidance and procedures for visitation and communications between the parties. As for financial issues, the trial court modified child and spousal support to Manning, retroactive to temporary orders entered in May 2014. He was awarded monthly child and spousal support. The court made further orders and findings regarding property division.

Manning timely appealed. Kim filed a cross-appeal that was dismissed after she filed a request for dismissal. Manning at first proceeded without an attorney as he had in the trial court, but he retained counsel after the trial court granted his motion for Kim to pay his appellate attorney fees.

II.DISCUSSION

A. Manning Forfeited His Right to Challenge the Denial of Attorney Fees Under Section 2030.

Manning argues at length that he was severely prejudiced by the trial court's denial of his request for attorney fees under section 2030. Section 2030 provides that to ensure that each party has access to legal representation, the court may order one party to a dissolution action to pay the attorney fees of the other party. (§ 2030, subd. (a).) At oral argument, Manning's counsel argued that the court awarded sole physical custody to Kim because of Manning's inability to pay for an attorney. To support the argument, he pointed to a statement in the court's judgment that Manning was "often acting as an advocate more than a father, and is over-zealous at times. It is frustrating for [Kim] and her counsel as well as the Court at times." According to Manning's counsel, this statement proves that the court's custody rulings would have been more favorable to Manning if he had not been self-represented. We are not persuaded. The statement, read in context, simply describes Manning's overall behavior toward his children and the court. It falls far short of demonstrating an error in awarding physical custody in Kim, especially since the judgment elsewhere makes clear that Manning did not at the time have a permanent address in California.

In any event, we lack jurisdiction to review Manning's complaints about the denial of his requests for fees. "It is clear that the denial of a request for pendente lite attorney fees [in dissolution actions] is appealable." (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1311; see also In re Marriage of Skelley (1976) 18 Cal.3d 365, 368 [when a court renders interlocutory order collateral to main issue and dispositive of rights of parties, direct appeal...