Marriage of Haro and Choudhury

Filed 6/22/07 Marriage of Haro and Choudhury CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Mark Millard, Judge. Affirmed.

Law Offices of James P. Karmy and James P. Karmy for Appellant Mazhar Choudhury.

Law Offices of Alan T. Holmes and Alan T. Holmes for Respondents Ernest and Krisana Vigus.

No appearance by Respondent Nina Haro.

* * *

Appellant Mazhar Choudhury appeals from a final order awarding respondents Ernest and Krisana Vigus (the Viguses) attorney fees and costs.[1] The Viguses were third party claimants, formally joined as parties to the marital dissolution proceeding of Choudhury and Nina Haro. Appellant contends attorney fees may not be awarded under Family Code section 271 (section 271) to a third party joined in a marital dissolution proceeding. We disagree and affirm the order.

FACTS

In their marital dissolution action, appellant and his wife, Nina Haro, stipulated in writing to sell their residence. The house was listed for sale; the Viguses offered to buy it. Without appellants knowledge, Haro signed a counteroffer which the Viguses accepted. The court ordered appellant to sign the counteroffer. (According to the Viguses, the court also authorized the clerk of the court to sign all documents necessary to effectuate the sale of the property should either party fail to sign.) Appellant wished to buy out Haros interest in the house, and therefore appealed from the courts order requiring him to sign the counteroffer. We affirmed the courts order on the ground appellant had stipulated to sell the house. (In re Marriage of Haro and Choudhury (Apr. 26, 2005, G033303 consolidated with G033934) [nonpub. opn.].)

Six months after we issued the remittitur, the Viguses filed a motion requesting the court to order appellant to pay them $7,721.85 in attorney fees and $508.73 in costs pursuant to section 271 and Civil Code section 1717. The Viguses alleged appellant had refused to cooperate in consummating the sale of the house to them and had unilaterally encumbered the property in the amount of $328,000. As a result of appellants refusal to convey the property as ordered, the Viguses were required to join into this action[2] and incurred attendant attorneys fees and costs. The Viguses further alleged they were entitled to reimbursement for attorney fees under the fully-executed Residential Purchase Agreement between the Viguses, as buyers, and appellant and Haro, as sellers. The Viguses later informed the court they had incurred additional fees since the filing of their original motion, bringing their total request for fees and costs to $11,930.20.

At the hearing on the motion, the Viguses contended they had attended eight previous hearings to enforce the contract to have escrow closed, and to oppose appellants ex parte motion to have the Viguses removed from the house. Pursuant to section 271 and Civil Code section 1717, the court awarded the Viguses $11,890 in attorney fees and costs to be paid from appellants share of escrow proceeds from the sale of the house, striking $377 in fees that were incurred prior to the first appeal. The court found appellant (1) had not always acted in a manner which would promote the settlement and the disposition of the property, (2) had encumbered the property in violation of an injunction and his fiduciary duty to the other parties, and (3) had the financial ability to comply with the order since the fees and costs would be paid from his escrow proceeds.

DISCUSSION

Section 271 Authorizes Attorney Fees Awards to Joined Parties

Appellant contends section 271 applies only to the husband and wife in a dissolution proceeding, not to third party claimants like the Viguses. The normal standard of review for an award of attorney fees is abuse of discretion. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.) Where statutory construction is involved, however, our review is de novo. (Ibid.)

Section 271, subdivision (a) provides: Notwithstanding any other provision of this code, the court may base an award of attorneys fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorneys fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorneys fees and costs is not required to demonstrate any financial need for the award.

Our role in construing a statute is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all. (Code Civ. Proc.,  1858.) Our goal is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) If there is no ambiguity, . . . the plain meaning of the language governs, with words [given] their usual and ordinary meaning. (Ibid.) But if the statutes language is ambiguous, a court may consider extrinsic sources such as legislative history. (Ibid.) A court may not add to or alter the statutes words to accomplish a purpose that does not appear on the face of the statute or from its legislative history. (In re Marriage of Siller (1986) 187 Cal.App.3d 36, 43.)

With these precepts in mind, we decide de novo whether section 271 permits sanctions to be awarded to a nonspouse third party joined in the marital dissolution proceeding. Section 271 forbids an award of sanctions that would impose an unreasonable financial burden on the party against whom the sanction is imposed. ( 271, subd. (a), italics added.) The statute also eliminates any requirement that the party requesting an award of attorneys fees and costs . . . demonstrate any financial need for the award. (Ibid., italics added.) Thus, by its terms section 271 applies to parties to the proceeding. But nothing in the statute creates or implies a narrow application to spousal parties only. Although rule 5.102(a) provides generally that the only persons permitted to be parties to a proceeding for dissolution . . . of marriage are the husband and wife, the rule makes an express exception for parties joined pursuant to rules 5.150 through 5.160. (Rule 5.102(a).) Persons joined in the marital dissolution proceeding pursuant to these rules are joined as a party to the proceeding . . . . (Fam. Code, 2021, subd. (a); Rule 5.150.) Appellant cites no support for his narrow interpretation of the statute, and claims the issue is one of first impression. Not so. In In re Marriage of Burgard (1999) 72 Cal.App.4th 74, the Court of Appeal affirmed a trial courts award of section 271 attorney fees to a third party claimant in a dissolution action. We likewise conclude section 271 allows an award to any person properly joined as a party in the proceeding.

The Court Did Not Abuse Its Discretion

Appellant asserts the court abused its discretion by failing to consider his income, assets and liabilities or those of the the Viguses, thereby contravening section 271s directive that the court shall take into consideration all evidence concerning the parties incomes, assets, and liabilities. ( 271, subd. (a).) Appellant also relies on rule 5.128, which requires a current Income and Expense Declaration or other forms to be filed by a party appearing at a hearing at which the court is to determine an issue as to which such declarations would be relevant (rule 5.128(a)), and mandates that when a party is represented by counsel and attorneys fees are requested by either party, the section on the Income and Expense Declaration pertaining to the amount in savings . . . must be fully completed, as well as the section pertaining to the amount of attorneys fees incurred, currently owed, and the source of money used to pay such fees. (Rule 5.128(b).)

To the extent appellant argues the court failed to consider his financial condition, we review his assertion under an abuse of discretion standard and reject his contention. The court found appellant could afford to pay the award of $11,890 out of his escrow proceeds of over $100,000. Three weeks before the Viguses filed their request for attorney fees, appellant filed with the court his Income and Expense Declaration showing his average monthly income was $5,605 and his average monthly expenses were $5,366. Of those expenses, $3,596 consisted of mortgage payments and other costs related to the house; thus, appellants monthly expenses would decrease once he sold the property. Appellant alleges the court disregarded his Income and Expense Declaration. But he provides no support from the record for this allegation and we find none. Where the record is silent, we indulge all intendments and presumptions to uphold the courts order; therefore we presume the court considered appellants declaration. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d 554, 563.) The court did not abuse its discretion by finding appellant had the financial ability to pay the award.

To the extent appellant contends section 271 required the court to order the Viguses to produce financial information, we review his statutory interpretation de novo. In this regard, section 271 subdivision (a) states: In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorneys fees and costs is not required to demonstrate any financial need for the award. (Italics added.)

We interpret section 271, applying the rules of statutory construction and seeking to give effect to all the statutes provisions without insert[ing] what has been omitted. (Code Civ. Proc.,  1858.) We turn to the statutes language. Section 271, subdivision (a) directs the court to consider all evidence concerning the parties incomes, assets, and liabilities, but also expressly eliminates the usual requirement that the party requesting an award of attorneys fees . . . demonstrate any financial need for the award.

Based on the statutes plain language, and giving effect to all of its parts, we construe section 271 to require a court to consider all financial evidence submitted to it by the requesting party. In other words, if the party requesting section 271 sanctions chooses to file financial information, the court must consider it. But the statute does not direct the court to require the requesting party to submit financial evidence, and we decline to read such a mandate into it. On the other hand, a court has discretion to advise or order the requesting party to file such data (or risk an adverse decision on the motion) if the court feels such information would be helpful and relevant. Our interpretation that section 271 does not require the requesting party to submit financial evidence is consistent with the statutes express provision that the requesting party is not required to demonstrate a financial need for the award. Thus, a requesting party may choose to submit financial evidence to demonstrate financial need, and in that case, the court must consider it. But the requesting party is not obliged to do so.

There is another scenario where financial evidence may be relevant. Although a section 271 award is a sanction not based on need, it is entirely consistent with this code section for trial courts to take account of the comparative wealth of the competing litigants and the effect of wealth disparities on litigation behavior . . . . (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 60 [discussing Civil Code section 4370.5, a predecessor to section 271] (Norton).) By comparing the parties relative wealth, a court avoids discouraging a party from litigating legitimate claims or defenses for fear of excessive sanctions. (Id. at p. 59.) In many cases, such a disparity may be evident; for example, at the time of the Norton case, less affluent parties were typically wives. (Ibid.) Thus, a court may in its discretion require financial data from a party for purposes of making a wealth comparison.

Our conclusion that section 271 directs the court to consider financial evidence (1) voluntarily submitted by the requesting party or (2) requested by the court in its discretion, eliminates useless paperwork while ensuring the court considers all relevant financial information. Such relevant information assists the court to decide whether an award will promote settlement and reduce litigation costs by encouraging cooperation between the parties and attorneys. ( 271, subd. (a).)

Rule 5.128 is consistent with our interpretation of section 271. Rule 5.128 requires financial forms to be filed only if such declarations are relevant to the issue to be determined by the court. We note the Judicial Councils Income and Expense Declaration form is expressly applicable, inter alia, to need-based awards under Family Code sections 2030 through 2032.

We turn to appellants contention the court should have ordered the Viguses to produce financial information to enable the court to compare their wealth with his own. We disagree. Appellant failed to make a showing he was significantly less affluent than the Viguses. The court expressly found appellant had the financial ability to pay a sanction of $11,890. Under these circumstances, the court acted within its discretion by deciding the motion in the absence of financial evidence from the the Viguses.

Appellant also alleges the court (1) sanctioned him because he filed an appeal, (2) disregarded his efforts to settle the case, (3) disregarded his claim that the Viguses incurred wasted attorney fees by failing to properly enforce their right to possess the property, and (4) arbitrarily calculated the amount of the award. These contentions are unsupported by the record. The court did not abuse its discretion by awarding the Viguses attorney fees and costs as a sanction under section 271.

Because we have concluded the court properly awarded fees and costs pursuant to section 271, it is not necessary that we analyze appellants alternative argument that attorney fees were not properly awarded under Civil Code section 1717.

DISPOSITION

The order is affirmed. Respondents Ernest and Krisana Vigus are awarded costs on appeal.

IKOLA, J.

WE CONCUR:

SILLS, P. J.

OLEARY, J.

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[1] [A]n order requiring an aggrieved party immediately to pay money or perform some other act is appealable as a final determination of a collateral matter distinct and severable from the general subject of the litigation. (Lachkar v. Lachkar (1986) 182 Cal.App.3d 641, 645, fn. 1.)

[2] The court ordered the Viguses joined in the dissolution proceeding as claimants. (See Fam. Code, 2021, subd. (a); California Rules of Court, rules 5.150 through 5.160; all further rule references are to the California Rules of Court.)