Filed 12/22/15 Marriage of Bonner CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re the Marriage of CANDY and 

TERENCE BONNER.

CANDY BONNER,

Respondent,

v.

TERENCE BONNER,

Appellant.

 D066627

 (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 
2

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 admission 

 

1 For the sake of clarity and without intending any disrespect, we will refer to the 

parties by their first names. 
3

that 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 the 

 

2 We state the background facts from documents in the appellate record. In his 

opening brief, Terence relates proceedings in this court by which he sought to seal 

portions of his appellant's appendix and the reporter's transcript, but this court issued 

orders denying that request as well as his ensuing motion for reconsideration. We do not 

address Terence's arguments underlying those orders.
4

criminal 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 the 

 

3 More specifically, the protective order defined "Confidential Documents and 

Information" as credit card statements; bank statements; tax returns, pay stubs and other 

income documentation and information; travel and/or expense vouchers and related 

receipts and claims; any and all documentation pertaining to, or information regarding, 

the parties' or either party's personal and/or business interests; any and all documents 

responsive to either party's discovery requests in this matter; financial statements, charts 

or summaries generated by either party and/or their respective counsel; any other 

documents produced or generated by either party and/or their respective counsel and/or 

expert witnesses; pleadings filed or lodged by either party in this action; and any 

stipulation, order or judgment entered in the matter.
5

court 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. 

 

4 Statutory references are to the Family Code unless otherwise specified. 
6

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." The 
7

court 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 closed 

manner regarding what he characterizes as any issue covered by the documents in the 

protective order is clearly overbroad, not pled with specificity and not warranted." Based 

on its ruling, the court did not address Terence's request to seal all transcripts of any 
8

closed proceedings, but found in any event that the requirements of California Rules of 

Court, rule 2.550(d) were not met. 

Terence unsuccessfully moved for reconsideration. He appeals both the July 7, 

2014 order and the order denying reconsideration.

DISCUSSION

I. Principles of Appellate Review

Before we turn to Terence's contentions, we emphasize that Terence as the 

appellant "must be able to affirmatively demonstrate error on the record before the court." 

(In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 822.) He has the burden 

to provide an adequate record on appeal to allow this court to assess the purported error. 

(See In re Marriage of Fink (1979) 25 Cal.3d 877, 887 [" 'It is incumbent upon appellants 

to state fully, with transcript references, the evidence which is claimed to be insufficient 

to support the findings' "]; Bullock v. Philip Morris USA, Inc. (2008) 159 Cal.App.4th 

655, 678.) These rules apply to self-represented litigants like Terence, who is "entitled to 

the same, but no greater, rights than [a] represented litigant[ ] and [is] presumed to know 

the [procedural and court] rules." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) 

Additionally, we apply the settled rule that the family court's orders are presumed correct, 

with " ' "[a]ll intendments and presumptions . . . indulged to support [them] on matters as 

to which the record is silent . . . . This is not only a general principle of appellate practice 

but an ingredient of the constitutional doctrine of reversible error." ' " (In re Marriage of 

Bower (2002) 96 Cal.App.4th 893, 898, quoting Denham v. Superior Court (1970) 2 

Cal.3d 557, 564; see In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) If the 
9

order is correct on any theory, this court will affirm it regardless of the family court's 

reasoning. (See Estate of Beard (1999) 71 Cal.App.4th 753, 776-777; D'Amico v. Board 

of Medical Examiners (1974) 11 Cal.3d 1, 18-19.) 

"Furthermore, error alone does not warrant reversal. 'It is a fundamental principle 

of appellate jurisprudence in this state that a judgment will not be reversed unless it can 

be shown that a trial court error in the case affected the result.' [Citation.] ' "The burden 

is on the appellant, not alone to show error, but to show injury from the error." '

[Citation.] 'Injury is not presumed from error, but injury must appear affirmatively upon 

the court's examination of the entire record.' [Citation.] 'Only when an error has resulted 

in a miscarriage of justice will it be deemed to be prejudicial so as to require reversal.'

[Citation.] A miscarriage of justice is not found 'unless it appears reasonably probable 

that, absent the error, the appellant would have obtained a more favorable result.' " (In re 

Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at pp. 822-823.) We have these 

contentions in mind as we consider Terence's arguments.

II. Order Denying Motion for Private Proceedings

Terence contends the family court prejudicially erred by denying his motion for 

private proceedings. The order, we note, is appealable as a final order on a collateral 

matter. (Lechowick, supra, 65 Cal.App.4th at pp. 1410-1411; accord, Burkle v. Burkle

(2006) 135 Cal.App.4th 1045, 1051, fn. 6 [order denying sealing of pleadings in divorce 

proceeding was final order on collateral matter].) Terence makes several different 

arguments on this point, which we address in turn. 
10

First, Terence maintains the family court erred by failing to consider his 

accompanying motion to strike portions of Candy's responsive pleadings. But while 

Terence has included his mandatory Judicial Council Request for Order form FL-300 in 

the appellate record, he has not included any of the supporting documentation for his 

motion to strike, or any of Candy's pleadings filed in response to his motion for private 

proceedings. Consequently, we have no indication what specific documents or portions 

of documents he sought to strike, and there is no factual or legal reasoning apparent as to 

the basis for striking portions of Candy's responding papers. Terence asserts the family 

court considered Candy's responsive pleadings despite his motion, but the record does not 

support this assertion, as the trial court simply stated that "[Candy] opposes the request 

for private proceedings, citing to case law supporting the Fifth Amendment." Because 

Terence did not obtain a ruling on the motion, we presume the trial court denied it (see, 

e.g., Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1480, fn. 7), and it was Terence's 

burden to demonstrate that evidentiary ruling was an abuse of discretion. (In re Marriage 

of Dupre (2005) 127 Cal.App.4th 1517, 1525.) He has neither shown the trial court 

erred, or that any error prejudiced him by somehow disclosing confidential documents or 

information.

Terence next argues that he has a reasonable belief his financial information could 

be used against him in a subsequent criminal proceeding, the family court's order vitiates 

the April 2014 protective order it put in place, and the order nullifies his protections 

under the Fifth Amendment. Even assuming Terence demonstrated a reasonable belief 

his financial documentation could be used against him in a criminal proceeding and that 
11

disclosure of those documents implicated his Fifth Amendment rights against selfincrimination, his arguments ignore the fundamental issue in his motion: whether his 

showing justified an order for a closed trial or other family law proceeding under section 

214. An order for closed proceedings is an entirely different order, unrelated to the 

court's protective order covering documents. Indeed, if the family court's broad 

protective order alone justified closed proceedings in any matter involving the protected 

documents, it would eliminate the need for a section 214 showing. This is not the law. 

Section 214 provides that a family court "may, when it considers it necessary in 

the interests of justice and the persons involved, direct the trial of any issue of fact joined 

in a proceeding under this code to be private, and may exclude all persons except the 

officers of the court, the parties, their witnesses, and counsel." "[S]ection 214 only 

authorizes the closing, under some circumstances, of court hearings and proceedings. It 

is not generally applicable to the issue of sealing court files." (Lechowick, supra, 65 

Cal.App.4th at p. 1413, citing Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1119.) 

When the court closes a family law hearing or part of a proceeding to the public, "it 

follows that, unless the court's order suggests to the contrary, any and all exhibits and 

transcripts deriving from any such proceeding should likewise be considered 

confidential." (Lechowick, at p. 1413.) However, section 214 "is not a device by which a 

court may close to the public all proceedings in a given family law matter. Rather . . . it 

[is] plain that a section 214 order must pertain to the trial of one or more particular 

'issue[s] of fact' and be justified by a showing of particularized need by the moving 

party." (Lechowick, at pp. 1414-1415.)
12

Under this provision, in order to obtain an order for private proceedings, Terence 

was required to show a particularized need for a closed trial of one or more specific 

issues of fact. The family court found Terence did not make any such showing, and 

having reviewed the record, we are compelled to conclude Terence has not shown error. 

In his declaration accompanying the motion, Terence related the background and 

conclusion of the federal criminal proceedings, and explained that during discovery in his 

criminal case, the federal government had produced "more than 60,000 pages of 

documents and hundreds of spreadsheets containing millions of data entries." He stated, 

"Notwithstanding the scope and breadth of the information that the federal government 

obtained, to the best of my knowledge it did not obtain any information related to the six 

joint credit card accounts that Petitioner and I had shared. The federal government did 

not provide me with any documents pertaining to such accounts during discovery in my 

criminal case. [¶] To the best of my knowledge the federal government did not seek or 

obtain any information regarding any of my individual credit card accounts after May of 

2011. The federal government did not provide such documents to me during discovery in 

my criminal case." Terence further averred that Candy's discovery sought information

pertaining to their joint and his individual credit card accounts, and that there was "a 

large amount of other financial information that may be discoverable and/or admissible in 

the instant proceeding which the federal government did not obtain during its criminal 

investigation of me."

It was not enough for Terence to recite a generalized need to protect his credit card 

accounts and other financial documents from disclosure under the Fifth Amendment. 
13

Nothing in Terence's showing describes the particular issues of fact relating to his 

confidential documents that in the interest of justice warranted a closed trial or hearing. 

Indeed, there was not even information from which the family court could deduce such 

issues, as Terence did not suggest any potential crimes with which he might be charged 

as a result of the disclosure of the above referenced documents.

Finally, Terence argues the family court applied the wrong legal standard to his 

motion: that the court's finding above—that Terence did not specify what particularized 

issues would be covered or that a closed hearing was necessary in the interest of justice—

is "at odds with established case law." According to Terence, it is "well-settled that 

persons invoking their constitutional right against self-incrimination cannot be required to 

state the precise hazards that they fear, as doing so could compel them to surrender such 

rights." Terence relies on Hoffman v. U.S. (1951) 341 U.S. 479 and Blackburn v. 

Superior Court (1993) 21 Cal.App.4th 414 for the proposition that the requirements of 

section 214 "could provide a link in the chain of evidence needed to prosecute him." 

In Hoffman v. U.S., the United States Supreme Court held that the Fifth 

Amendment privilege "not only extends to answers that would in themselves support a 

conviction under a federal criminal statute but likewise embraces those which would 

furnish a link in the chain of evidence needed to prosecute the claimant for a federal 

crime. [Citation.] But this protection must be confined to instances where the witness 

has reasonable cause to apprehend danger from a direct answer. [Citations.] The witness 

is not exonerated from answering merely because he declares that in so doing he would 

incriminate himself—his say-so does not of itself establish the hazard of incrimination. It 
14

is for the court to say whether his silence is justified, [citation], and to require him to 

answer if 'it clearly appears to the court that he is mistaken.' " (Hoffman v. U.S., supra, 

341 U.S. at p. 486, italics added; see also People v. Seijas (2005) 36 Cal.4th 291, 304; 

People v. Ford (1988) 45 Cal.3d 431, 441; Blackburn v. Superior Court, supra, 21 

Cal.App.4th at pp. 427-428.) " 'To sustain the privilege, it need only be evident from the 

implications of the question, in the setting in which it is asked, that a responsive answer 

to the question or an explanation of why it cannot be answered might be dangerous 

because injurious disclosure could result.' " (People v. Seijas, at pp. 304.)

Terence's argument in effect is that once he has invoked his Fifth Amendment 

privilege, he has no further burden to prove that his answers (or more to the point, his 

specification of particularized issues under section 214) may provide incriminating 

testimony. If we accept Terence's contention, we would exonerate a witness based solely 

on his "say-so," contrary to Hoffman. But under Hoffman, the final determination as to 

whether the privilege was properly invoked lies with the family court.5 Assuming, 

 

5 The Supreme Court explained in United States v. Reynolds (1953) 345 U.S. 1: 

"[I]n the earlier stages of judicial experience with the [Fifth Amendment privilege against 

self-incrimination], both extremes were advocated, some saying that the bare assertion 

[of the Fifth Amendment privilege] by the witness must be taken as conclusive, and 

others saying that the witness should be required to reveal the matter behind his claim of

privilege to the judge for verification. Neither extreme prevailed, and a sound formula of 

compromise was developed. . . . There are differences in phraseology, but in substance 

it is agreed that the court must be satisfied from all the evidence and circumstances, and 

'from the implications of the question, in the setting in which it is asked, that a responsive 

answer to the question or an explanation of why it cannot be answered might be 

dangerous because injurious disclosure could result.' [Citation.] If the court is so 

satisfied, the claim of the privilege will be accepted without requiring further disclosure." 

(Id. at pp. 8-9.) 
15

without deciding, that Hoffman applies to the inquiry under section 214, Terence did not 

demonstrate to the court that he had "reasonable cause to apprehend danger from a direct 

answer" (Hoffman, supra, 341 U.S. at p. 486), or from a direct explanation of the 

particular factual issues at hand, so as to justify a closed proceeding. 

The family court's denial of Terence's request for closed proceedings does not 

affect the protective order for confidential documents the court already put in place. 

Presumably, future hearings will proceed as did those on Candy's or Terence's motions in 

the matter, with the parties lodging confidential documents with the trial court, and the 

parties making their arguments and presenting facts under oath during the hearing.

III. Interim Order For Distribution of Terence's Pension Benefits

Terence challenges on several grounds the family court's order requiring him to 

pay Candy one half of all Border Patrol pension payments received by him. In part, he 

argues the court ignored the parties' income and expenses, ignored his entitlement to a 

share in other community assets and thus did not equally distribute the community estate, 

and disregarded evidence that Candy had received funds from his pension.6 

 

6 More specifically, Terence contends the family court failed to address the parties'

current income and expenses, and "skewed the distribution of the parties' assets and 

liabilities to the point of absurdity." He argues the court "focused exclusively on [his] 

pension income and ignored the fact that he is entitled to one-half of the housing rental 

income, as well as one-half of respondent's 401(a) retirement savings account and a 

significant portion of her pension." Terence contends the court "ignored the devastating 

financial effect that its 'interim' division of [his] pension has on his ability to pay for the 

necessities of life as well as his own legal representation," leaving him with only 26.7 

percent, and Candy with 74.3 percent, of the parties' total gross income. He maintains the 

order compels the conclusion that the family court premised its decision on the belief he 

had not provided Candy with any funds from his pension since she filed for dissolution or 
16

We need not address these contentions, because we conclude the interim 

distribution order is not appealable, but interlocutory, and thus we lack appellate 

jurisdiction to consider it. " 'In "determining whether a particular decree is essentially 

interlocutory and nonappealable, or whether it is final and appealable . . . [i]t is not the 

form of the decree but the substance and effect of the adjudication which is 

determinative." ' " (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1216.) 

" ' "[I]t may be said that where no issue is left for future consideration except the fact of 

compliance or noncompliance with the terms of the first decree, that decree is final, but 

where anything further in the nature of judicial action on the part of the court is essential 

to a final determination of the rights of the parties, the decree is interlocutory." '

[Citations.] A judgment [or order] is final ' " 'when it terminates the litigation between 

the parties on the merits of the case and leaves nothing to be done but to enforce by 

execution what has been determined.' " ' [Citations.] ' "[W]here anything further in the 

nature of judicial action on the part of the court is essential to a final determination of the 

rights of the parties, the decree is interlocutory" ' and not appealable." (Id. at pp. 1216-

1217.)

Here, the family court's order, which it expressly described as "interim,"

contemplates further proceedings to distribute Terence's pension, namely the preparation 

of a QDRO. Further, the court explicitly reserved the determination of the 

characterization and distribution of Terence's pension funds as a property division or as 

 

that his post-separation payments of community expenses were gifts, which was "at 

odds" with the financial information filed and lodged with the court and "clear error."
17

additional attorney fees. Because more " ' "in the nature of judicial action on the part of 

the court is essential to a final determination of the rights of the parties," ' " (In re 

Marriage of Corona, supra, 172 Cal.App.4th at p. 1217), this aspect of the July 7, 2014

order is not appealable.

Though the court's pension distribution order directs the payment of money, we 

cannot say it falls within the so-called collateral order doctrine, which is an exception to 

the one final judgment rule. (City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 

781.) " 'Where the trial court's ruling on a collateral issue "is substantially the same as a 

final judgment in an independent proceeding" [citation], in that it leaves the court no 

further action to take on "a matter which . . . is severable from the general subject of the 

litigation" [citation], an appeal will lie from that collateral order even though other 

matters in the case remain to be determined. [Citation.] [¶] In determining whether an 

order is collateral, "the test is whether an order is 'important and essential to the correct 

determination of the main issue.' If the order is 'a necessary step to that end,' it is not 

collateral." ' " (Ibid, quoting Lester v. Lennane (2000) 84 Cal.App.4th 536, 561; see also 

In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 734-735.) Here, the court's 

order does not "leave[] the court no further action to take" (City of Colton, at p. 781) on 

the distribution of Terence's pension. Additionally, the family court expressly declined to 

bifurcate the issue for separate trial and thus the rules permitting certification of an 

immediate appeal from a bifurcated issue do not apply. (See § 2025; Cal Rules of Court, 

rule 5.392; In re Marriage of Lafkas (2007) 153 Cal.App.4th 1429, 1433.) The record 
18

does not indicate Terence attempted to invoke appellate jurisdiction by this procedure in 

any event.

Anticipating our conclusion, Terence asks us to treat any nonappealable order as a 

petition for an extraordinary writ. However, his arguments merely relate to the family 

court's order denying his motion for private proceedings: he maintains that absent 

appellate relief, his Fifth Amendment rights will be nullified and he will be exposed to 

potential criminal prosecution by the disclosure of his financial information covered by 

the trial court's April 2014 protective order. Even assuming Terence's request applies to 

the court's pension distribution order, he has not show the requisite extraordinary or 

unusual circumstances necessary for us to exercise this jurisdiction. (See Olson v. Cory

(1983) 35 Cal.3d 390, 401; Katzenstein v. Chabad of Poway (2015) 237 Cal.App.4th 759, 

770, fn. 16.) "A petition to treat a nonappealable order as a writ should only be granted 

under extraordinary circumstances, ' "compelling enough to indicate the propriety of a 

petition for writ . . . in the first instance . . . ." ' " (Estate of Weber (1991) 229 Cal.App.3d 

22, 25.) In In re Marriage of Ellis (2002) 101 Cal.App.4th 400, relied upon by Terence, 

both parties agreed it was prudent and economical to bifurcate the issue of whether the 

community had an interest in a medical subsidy—which was akin to a liability 

determination—from its valuation, which was akin to damages. (Id. at pp. 404-405.) 

The court stated that if the husband was correct that the medical subsidy was not 

divisible, "an expensive trial to determine its value would be unnecessary." (Id. at p. 

404.) 
19

We discern no such unusual or extraordinary circumstances associated with this 

purported appeal. Terence makes no showing that an appeal would not provide an 

adequate remedy at law, one of the necessary elements for proceeding by way of a 

petition for writ of extraordinary writ. (In re Marriage of Lafkas, supra, 153 Cal.App.4th

at pp. 1434-1435.) Thus, we decline to treat this aspect of Terence's appeal as a petition 

for writ of mandate.

IV. Attorney Fee Order

A. Legal Principles and Standard of Review

"In any proceeding subsequent to the entry of a dissolution judgment, 'the court 

shall ensure that each party has access to legal representation, including access early in 

the proceedings, to preserve each party's rights by ordering, if necessary based on the 

income and needs assessments, one party, except a governmental entity, to pay to the 

other party, or to the other party's attorney, whatever amount is reasonably necessary for 

attorney's fees and for the cost of maintaining or defending the proceeding during the 

pendency of the proceeding.' [Citations.] [¶] In determining whether to award attorney 

fees, the court must consider the parties' respective needs and incomes. [Citation.] The 

court is not limited to considering the parties' salaries. The court may also consider all 

evidence of the parties' income, assets and abilities." (In re Marriage of M.A. & M.A. 

(2015) 234 Cal.App.4th 894, 903; citing in part § 2030, subd. (a)(1).) The family court 

may further consider the other party's trial tactics, as well as the complexity of the case 

relating to property rights and support. (§ 2032, subd. (d); In re Marriage of Winternitz

(2015) 235 Cal.App.4th 644, 657; In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 
20

1313.)7 "[T]he purpose of section 2030 is not the redistribution of money from the 

greater income party to the lesser income party. Its purpose is parity: a fair hearing with 

two sides equally represented. The idea is that both sides should have the opportunity to 

retain counsel, not just (as is usually the case) only the party with greater financial 

strength." (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251-252.)

Section 2030, subdivision (a)(2) provides that "[w]hen a request for attorney's fees 

and costs is made, the court shall make findings on whether an award of attorney's fees 

and costs under this section is appropriate, whether there is a disparity in access to funds 

to retain counsel, and whether one party is able to pay for legal representation of both 

parties. If the findings demonstrate disparity in access and ability to pay, the court shall 

make an order awarding attorney's fees and costs. A party who lacks the financial ability 

to hire an attorney may request, as an in pro per litigant, that the court order the other 

 

7 Section 2032 provides in part: "(a) The court may make an award of attorney's 

fees and costs under Section 2030 or 2031 where the making of the award, and the 

amount of the award, are just and reasonable under the relative circumstances of the 

respective parties. [¶] (b) In determining what is just and reasonable under the relative 

circumstances, the court shall take into consideration the need for the award to enable 

each party, to the extent practical, to have sufficient financial resources to present the 

party's case adequately, taking into consideration, to the extent relevant, the 

circumstances of the respective parties described in Section 4320. The fact that the party 

requesting an award of attorney's fees and costs has resources from which the party could 

pay the party's own attorney's fees and costs is not itself a bar to an order that the other 

party pay part or all of the fees and costs requested. Financial resources are only one 

factor for the court to consider in determining how to apportion the overall cost of the 

litigation equitably between the parties under their relative circumstances. [¶] . . . [¶] 

(d) Either party may, at any time before the hearing of the cause on the merits, on noticed 

motion, request the court to make a finding that the case involves complex or substantial 

issues of fact or law related to property rights, visitation, custody, or support. Upon that 

finding, the court may in its discretion determine the appropriate, equitable allocation of

attorney's fees, court costs, expert fees, and consultant fees between the parties."
21

party, if that other party has the financial ability, to pay a reasonable amount to allow the 

unrepresented party to retain an attorney in a timely manner before proceedings in the 

matter go forward."

"[A] motion for attorney fees and costs in a dissolution proceeding is left to the 

sound discretion of the trial court. [Citations.] In the absence of a clear showing of 

abuse, its determination will not be disturbed on appeal." (In re Marriage of Sullivan 

(1984) 37 Cal.3d 762, 768-769.) We affirm the court's order unless " 'no judge could 

reasonably make the order made.' " (Id. at p. 769; see also In re Marriage of Duncan

(2001) 90 Cal.App.4th 617, 630.) 

B. Contentions

Terence challenges the family court's order awarding Candy $2,500 in attorney 

fees, contending (1) Candy did not provide the court with information required by 

California Rules of Court, rule 5.427(b)(2), (d)(2); (2) Candy did not show any disparity 

in income that would justify his paying attorney fees, since he was paying the majority of 

community expenses; (3) the court did not consider the factors set forth in sections 2030 

and 2032; (4) the court's finding concerning complexities in the case was "contrary to 

law;" and (5) there is no factual support for the court's conclusion that he has the ability 

to pay $2,500 in attorney fees. 

C. Analysis

With the settled appellate review principles in mind, we address and reject 

Terence's contentions in turn. Preliminarily, there is no merit to Terence's procedural 

argument concerning Candy's compliance with rule 5.427 of the California Rules of 
22

Court, which specifies documents that must be submitted with a request for attorney fees 

and costs. The family court expressly found Candy's moving papers contained the 

required family law forms, and her motion was "procedurally adequate." Because we 

presume the court's findings are correct, it is Terence's burden to affirmatively 

demonstrate that they are incorrect, unsupported by the evidence, or somehow 

contradicted by the record. In the face of a silent record, we presume the documents 

before the family court supported its findings. (Denham v. Superior Court, supra, 2 

Cal.3d at p. 564.)

The appellate record in this case does not contain Candy's motion for attorney 

fees, or any of her supporting documentation. It indicates that Terence lodged in the 

family court a 10-page declaration opposing Candy's request to divide his pension, but 

that declaration is likewise not in the record. He also filed a declaration opposing 

Candy's request for attorney fees. Though the record indicates he attached four pages of 

supporting material to that declaration, those documents are not in the record. 

Consequently, the only opposing information by Terence in the record is a statement that 

Candy had the ability to pay her own attorney fees and costs and the sworn factual 

assertions he made to the trial court that are reflected in the reporter's transcript.8

 

8 We recognize that the family court's protective order required the parties to limit 

disclosure of a broad category of documents and lodge items so that they were not 

publicly accessible. But the family court's April 2014 protective order expressly 

anticipated the potential need to disclose documents "for the purposes of appeal," and this 

court has procedures in place to submit items that were sealed in the lower court or that 

the parties wish to file under seal in this court. (See Cal. Rules of Court, rules 8.46, 

8.47.) 
23

Terence's failure to provide an adequate record—his omission of not only Candy's 

moving papers but also his own opposing documentation—means that his complaints 

about the court's findings concerning disparity in income and his ability-to-pay must be 

resolved against him as well. (Hernandez v. California Hospital Medical Center (2000) 

78 Cal.App.4th 498, 502, citing Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Where 

an appellant challenges the trial court's factual findings, we defer to the trial court's

determinations and " 'do not reweigh evidence or reassess the credibility of witnesses.' "

(In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531; see In re Marriage of 

Calcaterra & Badakhsh (2005) 132 Cal.App.4th 28, 34.) Terence argues Candy did 

not demonstrate any disparity in income, that "[a] review of the parties' income and 

expense[ ][declarations] reveals that there was no disparity in access to funds to retain 

counsel," and he could not afford to pay for legal counsel for himself. The sole 

"evidence" he cites for these propositions are his statements made at oral argument on the 

matter that the parties' gross incomes were within $340 of each other "when you plug in 

the correct figures for [Candy's] salary, as well as the rental income," and that he was 

paying the "lion's share" of the community expenses. 

But these assertions are arguments drawn from documents and factual matters, 

including income and expense declarations and other sworn declarations, that are not 

before us. The family court plainly rejected Terence's arguments, and we have no basis 

by which to assess the court's conclusions, which we presume are supported by the 

documents and pleadings provided by Terence and Candy. We observe also that the 
24

parties' earnings are not the only factor the court must consider. As the Supreme Court 

has stated: " '[T]he cases have frequently and uniformly held that the court may base 

its decision on the [paying spouse's] ability to earn, rather than his [or her] current 

earnings . . . .' for the simple reason that in cases such as this, current earnings give a 

grossly distorted view of the paying spouse's financial ability." (In re Marriage of 

Sullivan, supra, 37 Cal.3d at p. 769 [involving former Civ. Code, § 4370].) Under these 

circumstances we reject Terence's sufficiency of the evidence arguments, including 

Terence's argument that there is no factual support for the court's finding that he has an 

ability to pay. 

Nor is there merit to Terence's contention that the family court failed to consider 

the factors set out in sections 2030 and 2032. According to Terence, the order "contains 

no discussion of the factors required by law, and they were not discussed during the 

hearing." But the record is to the contrary. The trial court acknowledged that Candy 

attached the required forms (FL-150, FL-158 and FL-319) to her papers, and it referenced 

both parties' income and expenses in making its ruling. It acknowledged the parties'

competing arguments as to whether they had disparate income, and it expressly 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 [Terence],"

and that Terence had "an ability to pay the fees based on his income and expenses." 

These findings meet the requirements of section 2030, subdivision (a)(2).

Under section 2032, subdivision (b) (see footnote 7, ante), the family court was 

required to take into consideration Terence's and Candy's needs for sufficient financial 
25

resources to present their case adequately, and take into account, "to the extent relevant,"

their circumstances as described in section 4320. (§ 2032, subd. (b).) Section 4320 lists 

the circumstances to be considered in determining spousal support, including the 

supported party's marketable skills, earning capacity, the supporting party's ability to pay 

spousal support, each party's needs, each party's obligations and assets, their age and 

health, and the duration of the marriage. Section 2032 makes clear that the court was not 

required to make explicit findings on all the section 4320 factors where some of the 

factors were irrelevant (§ 2032, subd. (b)), and it possessed discretion to determine the 

weight of each factor in balancing them. (In re Marriage of Cheriton (2001) 92 

Cal.App.4th 269, 304.) We presume the trial court had before it sufficient information 

from Candy's moving and Terence's opposing papers to consider these matters, and 

Terence has not affirmatively demonstrated that anything in the record overcomes that 

presumption.

Terence's claim that the family court's finding concerning the complexity of the 

case is "contrary to law" also fails. Citing section 2032, subdivision (d), he maintains the 

complexity in the case related not to property rights, visitation, custody or support, but to 

his criminal investigation and prosecution, and his invocation of his Fifth Amendment 

rights. Terence fails to appreciate that the potential for another criminal prosecution and 

his claimed need for Fifth Amendment protection resulted in the broad protective order 

covering virtually all documents and pleadings in the matter. This protective order 

potentially impacted the parties' ability to try virtually any issue in the case, especially 

issues requiring consideration of financial documentation including the division of 
26

Terence's pension, a community property asset. Under the circumstances, the court did 

not legally err by finding the case involved "complex or substantial issues of fact or law 

related to property rights . . . ." (§ 2032, subd. (d).) 

V. Order Denying Reconsideration

Terence makes no separate substantive argument challenging the family court's 

order denying reconsideration of his motion for private proceedings, other than to argue 

that that order is appealable as a " 'final disposition of a claimed right which is not an 

ingredient of the cause of action and does not require consideration with it.' " An order 

denying a motion for reconsideration is not separately appealable but is reviewable as 

part of an appeal from the underlying order, if that order is reviewable. (Code Civ. Proc. 

§ 1008, subd. (g).) We have considered and disposed of Terence's appeal from the order 

denying his request for private proceedings. Absent any substantive arguments 

challenging the reconsideration order, we conclude he has not demonstrated error in 

connection with that motion.
27

DISPOSITION

The orders are affirmed. 

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

HALLER, J.