Marriage of Howse

Filed 4/20/07 Marriage of Howse CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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In this child custody dispute, petitioner Ginger Howse appeals from the trial courts award of $3,500 in attorney fee sanctions to her former husband Marc.^[1] She contends the sanction was unjustified by the facts and uninformed by any consideration of the parties relative financial statements. We agree only with the second contention, and shall order the matter remanded for the trial court to follow the mandate of Family Code^[2]section 271, subdivision (2), that it take into consideration all evidence concerning the parties incomes, assets, and liabilities and consider whether imposing a sanction would impose[] an unreasonable financial burden.

BACKGROUND

The record before us is incomplete. First, there is no respondents brief. Consequently, California Rules of Court, rule 8.220(a)(2) provides this court will decide the appeal on the record, the opening brief, and any oral argument by the appellant. In applying this rule, we examine the record on the basis of appellants brief and . . . reverse only if prejudicial error is found. (Votaw Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55; accord, Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 80, fn. 2.)

Second, Ginger has elected to proceed by an appellants appendix in lieu of a clerks transcript, which contains an incomplete version of documents filed in the trial court by Marc. From the limited record on appeal, we glean the following facts.

Ginger and Marc were married in 1988, they separated in 2002, and their marriage was dissolved in June 2003. They have one daughter, T., who was 12 years old at the time of the events that led to the challenged order.

In 2002 before their divorce was final, the parties stipulated to an interim order regarding custody of their daughter, T, one provision of which they agreed that neither would consume alcohol while he or she had custody of T.

In October 2005, the parties entered into a stipulation regarding joint custody and parenting. One term of that agreement provided that they use a mutually agreed upon special master to resolve custody and parenting disputes.

Ginger brought the instant petition ex parte on February 7, 2006, seeking sole physical and legal custody of T. In support of the application, she averred that the previous January 20, while T. was in his custody, Marc drank several beers, his behavior was uncontrollable and he drove T[.] to and from [a] school dance drunk. Marc also told his girlfriend . . . that he wanted to throttle T[.] (to choke or to strangle). Marc has a court order not to drink while in [sic] custody. I have had 2 (clets and family law) restraining orders on Marc . . . in [the] past because of his violent behavior as a result of his drinking. After custody was awarded we were assigned a Special Master . . . [who] has not given me any response. I desperately seek your help for the safety and protection of my daughter. . . . I am scared and so is my daughter. Ginger attached to her application an email message from Marcs girlfriend stating there were beer bottles in the trash while T. was in Marcs custody. The court issued the ex parte temporary order and set the matter for hearing.

Prior to the hearing, Marc submitted a written declaration in which he denied that any current order restricted the parties alcohol use, and averred that Ginger had previously expressly agreed that their old alcohol restriction stipulations would not be renewed. He also denied drinking while T. was in his custody and denied driving T. after drinking.

Marc further challenged Gingers application by asserting that she had violated existing custody orders by refusing him scheduled custody in the week before she filed the ex parte petition, had initiated this action to circumvent the procedures in place that required resolution of custody and parenting issues by a special master, and has since withheld visitation with their daughter in contravention of the existing custody order.

Finally, Marc requested an award of $3,500 in attorney fees as sanctions pursuant to Family Code section 271 for Gingers having obtain[ed] orders which had no basis and which were obtained in an improper manner at his great expense.

At the hearing (at which Ginger appeared pro se and Marc was represented by counsel), Ginger told the court that Marc continues to subject T[.] to his drinking behavior problems and she doesnt want to be a part of it or him, that after she received information regarding [Marc]s alcohol use, she acted to protect their daughter until she could confirm or deny the information provided, and her repeated attempts to obtain help from the special master went unanswered. Ginger also opposed Marcs request for sanctions, noting that they would constitute a hardship in light of the $180,000 she has already paid for counsel in this case.

Arguing in favor of a sanction award, Marc asserted Gingers ex parte petition was obtained without notice, based on allegations in an unverified hearsay document, and an old restraining order. In his view, Gingers actions merely represented her dissatisfaction with the pace and/or substance of the special masters response to her allegations, and was a bad faith manipulative effort to prevent Marc from having a relationship with T.

After taking the matter under submission, the court dissolved the ex parte relief granting Ginger sole custody of T. and ruled as follows. The parties entered into an agreed-upon process for resolving disputes and vested in the Special Master the ability to investigate and pursue relief, including emergency relief through ex parte application. At the ex parte hearing, a full copy of the appointment document was not provided nor readily available. At the full hearing, additional representations were made that clarified the activity of the Special Master with regard to the instant allegations. At the ex parte, [Ginger] represented that the Special Master was ignoring her request for assistance. In addition, [Ginger]s ex parte representation that existing orders preclude [Marc] from consuming alcohol is, at best, disingenuous. [] Good cause appearing, . . . sanctions pursuant to Family Code Section 271 in the amount of $3,500 are awarded. [Ginger] got to court faster, which was part of her objective. Unfortunately for [her], ignoring the agreed-upon procedures/processes and failing to properly consider the advice of counsel and/or the Special Master results in consequences.

DISCUSSION

I

Standard Of Review

A sanction order under section 271 is reviewed under the abuse of discretion standard. [T]he trial courts order will be overturned only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order . . . . [Citations.] (In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1106)

Ginger contends the trial court abused its discretion in awarding $3,500 in attorney fee sanctions to Marc because: (1) her ex parte petition constituted a valid request that Marc be required to comply with a prior order; and (2) the court should not have made any sanction order without taking into account the parties respective incomes, assets, and liabilities.

Although there was sufficient basis for imposing sanctions, we agree that the trial court failed to follow the statutory requirement to take into consideration all evidence concerning the parties incomes, assets, and liabilities and shall remand the matter.

II

The Court Did Not Err In Finding A Basis For Sanctions

Attorney fee sanctions are authorized in family law cases by section 271, which provides that the court may impose an award of attorney fees and costs in the nature of a sanction where the conduct of a 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. ( 271, subd. (a).)

Section 271 advances the policy of the law to promote settlement and to encourage cooperation which will reduce the cost of litigation. [Citation.] Family law litigants who flout that policy by engaging in conduct that increases litigation costs are subject to the imposition of attorneys fees and costs as a sanction. (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177.) The statute evolved from former Civil Code section 4370.6, which simply vested family law courts with an additional goad with which to enforce this states public policy of promoting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel. Thus, a party who individually, or by counsel, engages in conduct frustrating or obstructing the public policy is thereby exposed to liability for the adverse partys costs and attorney fees such conduct generates. (In re Marriage of Daniels, supra, 19 Cal.App.4th at p. 1110; see In re Marriage of Hublou (1991) 231 Cal.App.3d 956, 964.)

Gingers first contention fails because she has not shown that the court abused its discretion in concluding that sanctions were warranted. The trial court awarded sanctions because Ginger rushed into court for ex parte relief, notwithstanding her prior agreement that parenting and custody disputes would be resolved by the appointed special master,

and that the special master was conducting an ongoing investigation of her concerns. It was not an abuse of the courts discretion to conclude under the circumstances that Gingers conduct was intended to frustrate or obstruct the special master procedures, to which she had expressly agreed and which were designed to encourage mutual cooperation between the parties and reduce the cost and tension of family law litigation. (See In re Marriage of Daniels, supra, 19 Cal.App.4th at p. 1110.)

III

The Court Did Err In Failing To Consider

The Parties Financial Positions

Gingers second contention -- that the court failed to properly consider the parties respective financial positions -- does have merit. As we noted above, section 271 provides that the court shall take into consideration all evidence concerning the parties incomes, assets, and liabilities before imposition of an attorney fee sanction, and shall not impose one if the sanction constitutes an unreasonable financial burden on the party against whom it is imposed. ( 271, subd. (a).) In sum, the sanction must be scaled to the payors ability to pay and must be made in light of both parties financial circumstances. (See In re Marriage of Norton (1988) 206 Cal.App.3d 53, 59-60; In re Marriage of Hublou, supra, 231 Cal.App.3d at p. 964.) In reviewing a sanction order, we indulge all reasonable inferences to uphold it. (In re Marriage of Petropoulos, supra, 91 Cal.App.4th at pp. 177-178.)

Ginger contends the $3,500 sanction imposes an unreasonable financial burden on her. At the hearing, Ginger told the court she is well over $100,000 in debt and has a second mortgage as a result of divorce expenses and later objected to Marcs sanction request by stating: I would say that I have a hardship, I cannot afford that, that is why Im here rep -- I have had legal counsel for the last three and a half years of over $180,000.^[3]

Despite our deferential standard of review, neither the reporters transcript nor the courts decision supports an inference that the court considered Gingers assertion of financial hardship before making its order. Nor does the record support an inference the court made any attempt to weigh evidence concerning the parties respective incomes, assets, and liabilities. Indeed, it was erroneously informed by Marcs counsel that no such evidence was necessary. Following argument on Marcs request for sanctions, the court asked whether Marc had filed a current I&E [income and expense declaration] and counsel responded I dont believe one is required for [section] 271 sanction requests.

We agree with Ginger that the court should have considered the parties respective financial circumstances before imposing an attorney fee sanction against her. Its failure to do so was prejudicial error. We shall reverse and remand.

DISPOSITION

The order imposing attorney fee sanctions is reversed and the matter remanded for the court to apply the standards in section 271. Appellant is awarded costs on appeal. (Cal. Rules of Court, rule 8.276(a)(1).)

ROBIE , J.

We concur:

MORRISON , Acting P.J.

BUTZ , J.

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^[1] We refer to the parties by their first names for clarity and simplicity. No disrespect is intended.

^[2] All further statutory references are to the Family Code unless otherwise indicated.

^[3] On appeal, Ginger restates that her financial distress now prevents her from seeking the advice of counsel.