Marriage of Kleytman and Pechonkina
Filed 7/18/13 Marriage of Kleytman and Pechonkina CA1/2
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opinion has not been certified for publication or ordered published for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
FIRST
APPELLATE DISTRICT
DIVISION
TWO
In re the Marriage of KLEYTMAN and
PECHONKINA.
YAKOV KLEYTMAN,
Appellant,
v.
ALENA PECHONKINA,
Respondent.
A134740
(San Mateo
County Super.
Ct.
No. FM082528)
Yakov
Kleytman and Alena Pechonkina were divorced in 2005 and a 2008 family court
order governs their custody and visitation
rights regarding their daughter.
Kleytman, proceeding in propria persona, appeals the denial of his
motion to modify the 2008 order because of alleged changed circumstances. Kleytman contends that the court: (1) ignored the changed circumstance of an
increased conflict between the parties; (2) ignored the best interest of the
child; (3) violated Family Code section 3048
order without evidentiary support.
Kleytman also appeals: (1) the
award, pursuant to section 271, of $2,500 in attorney’s fees to Pechonkina and
(2) the court’s determination that it was not in the best interest of the child
for the court to privately interview her.
In addition, Kleytman requests that we sanction the Commissioner
presiding in his case.
We
affirm the order of the family court,
with the exception of the award of attorney’s fees, because the record does not
indicate that Kleytman received proper notice of a section 271 sanction for all
the conduct upon which the award was based.
The award of attorney’s fees is reversed, and the matter remanded for
consideration of an award based on Kleytman’s conduct for which he received
proper notice.
In
connection with his appeal, Kleytman submitted a motion seeking expedited
review and a change in the visitation schedule.
Kleytman’s motion has been denied because the issue of expedited review
is now moot and Kleytman’s allegations supporting his request for a change in
the visitation schedule must first be heard in family court.
Following
Kleytman’s and Pechonkina’s 2005 divorce, a marital settlement agreement
established joint physical and legal custody of the child. As the Superior Court docket indicates,
Kleytman and Pechonkina have serious differences concerning how this joint
custody should be managed. The current
visitation orders, made in 2008, are that (1) Pechonkina’s home is the child’s
primary residence during the school year; (2) during the school year, Kleytman
has care of the child on the first and third weekends of the month; (3) except
for August, if a month of the school year has five weekends, Kleytman has care
of the child on the fifth weekend; (4) pick ups and drop offs are to be at the
child’s school, if possible; (5) during the summer, Kleytman and Pechonkina are
to alternate weeks, with Kleytman receiving two extra weeks—the seventh and
ninth; and (6) several holidays are designated to either Kleytman or
Pechonkina.
On
April 1, 2011, Kleytman
filed a motion for modification of the visitation order so that Pechonkina
would be responsible for transporting the child to and from his residence for
weekend visitation, to reduce the amount of driving required of him. At a hearing on April 28, the court asked
Kleytman what changed circumstances justified modification of the 2008
order. Kleytman stated that the driving
interfered with his career development and affected his health. The court asked Kleytman for evidence of this
and Kleytman said he did not have it that day, but could secure it. The court informed Kleytman that if it put
the matter over for an evidentiary hearing,
he would be expected to produce witnesses to testify in support of his
assertions. Counsel for Pechonkina asked
that Kleytman be placed on notice that Pechonkina would be requesting
attorney’s fees, pursuant to Family Code section 271, if there was no evidence
of changed circumstances presented at an evidentiary hearing. The court admonished Kleytman: “Either you will have the evidence or you
won’t. You show up here without the
evidence, I will consider [Pechonkina’s] request for fees because you can’t
keep coming into court asking for things because you just think previous orders
are not fair. You can’t keep coming in
and asking for things when you don’t have the evidence.†An evidentiary hearing was set for June
24.
At
the June 24, 2011 hearing, Kleytman had no witnesses but had a copy of his
company’s employment policy and letters from doctors. After objection by Pechonkina’s counsel, the
court ruled that the letters were hearsay and would not be admitted into
evidence. Kleytman was unable to explain
how the employment policy indicated that the required driving of the child
prevented him from advancing professionally and the exchange with the court
undermined his claim that driving the child damaged his health, because he was
required to drive even longer distances for work. Pechonkina’s counsel reiterated the request
for fees.
The
court denied Kleytman’s motion to modify the 2008 order because there was no
evidence of medical or physical disability that prevented him from driving and
his arguments regarding the impact on work were insufficient to prove that he
could not continue to do the driving.
The court stated that it would consider the request for fees if
Pechonkina’s counsel submitted a declaration concerning the costs involved in
the April 1 and June 24 hearings, after which Kleytman would have a week to
respond, including a current income and expense declaration. The court’s order denying the motion was
filed on August 2, 2011.
On
June 27, 2011, Kleytman filed another motion for modification of the 2008
visitation order. The motion sought a
mirror image of the current visitation arrangement, with Kleytman having
custody of the child during the school week and every other weekend and
Pechonkina having custody on the alternate weekends. As the change in circumstances justifying the
motion, Kleytman cited Pechonkina’s plan to move and enroll the child in
another school district. Pechonkina’s responsive
papers included notice that she would again request attorney’s fees at the
hearing.
At
a hearing on August 15, 2011, Pechonkina’s counsel argued that after the move,
Pechonkina would live closer to Kleytman.
He also argued that although the child would now be changing schools,
she had been in the same school for the last three years and had not been
subjected, as Kleytman represented, to an unstable school environment. Kleytman told the court that the child wished
to address the court personally. He also
told the court that it would actually take him longer to drive to the new home,
though geographically closer, because he would have to deal with bridge
traffic. The court indicated that it
would order Kleytman and Pechonkina to participate in mediation by Family Court
Services. Following a recess, a
mediation date of October 27, 2011, had been set with Family Court
Services. The court ordered the parties
to return on November 21, 2011.
On
October 31, 2011, Family Court Services submitted its report to the court. This report indicated that Kleytman and
Pechonkina had not come to agreement and recommended that the parents undergo
an updated private child custody evaluation—an evaluation that Family Court
Services could not itself provide. It
also recommended that the current custody
and visitation orders remain in effect pending the outcome of the child
custody evaluation.
At
a hearing on November 21, 2011, both Kleytman, in a declaration, and
Pechonkina, through counsel, opposed the recommendation. The court noted that the mediator had been
unaware that many of Kleytman’s concerns had been addressed in numerous
hearings before the court. The court had
arranged with Family Court Services for the mediator to interview the child and
to contact a counselor who had been involved with the family
relationships. Pechonkina’s counsel then
brought up the request for attorney’s fees and Kleytman said there was a change
of circumstances. He informed the court
that he had recently had surgery, had been forced to quit his job for health
reasons, and was on disability. Kleytman
also renewed his request, because of his health issues, for relief from the
driving requirement imposed by the current visitation order. Questioned by the court, Kleytman said that
his surgery took place on October 7 but that he had managed since then to
transport his daughter as required.
During a recess, the Family Court Services mediator set November 28 as
the date to interview the child. The
court ordered the parties to return for a hearing on December 19. The court continued the matter of Kleytman’s
driving pending new recommendations from the mediator. The court pointed out to Kleytman that the
issue of the driving requirement was not in his moving papers and that he
should deny the request for that reason, but he would reserve the issue until
the next hearing. The court also stated
that it was inclined to grant Pechonkina’s request for fees, but needed an
updated income and expense declaration from Kleytman.
Family
Court Services filed an updated report with the court. The mediator recommended that the current
custody and visitation orders remain in effect, but that Pechonkina and the
child be ordered to resume mother-daughter counseling for at least 12 sessions,
selecting a therapist from one of three recommended by the mediator.
At
a hearing on December 19, 2011, Pechonkina’s counsel stated that the
recommendation was acceptable to her, but requested that the court allow her to
select a therapist at Kaiser, so that insurance would cover the cost. The court found that it was not in the best
interest of the child for the court to interview the child, because the child
had been interviewed by Court Family Services and that interview was emotional
for her: “I don’t want to put her
through that again.†Regarding fees,
Kleytman had submitted an income and expense statement, but stated in his
declaration that the court, in making its ruling, should assume that he was
still working.
title="">[2] The court adopted the recommendations made by
Family Court Services, with the modification that a therapist experienced “in
this type of counseling†could be chosen.
The court also granted Pechonkina’s request for attorney’s fees,
ordering Kleytman to pay Pechonkina’s counsel $2,500. The court’s order, following the hearing, was
filed on December 30, 2011.
Kleytman
filed a notice of appeal on February 23, 2012.
Kleytman
appeals from the family court’s order of December 30, 2011, adopting the
recommendations made by Family Court Services.
Maintaining the terms of the 2008 custody and visitation order was part
of those recommendations, so that the court’s order was an implicit denial of
Kleytman’s June 27, 2011 motion to modify the 2008 order because of changed
circumstances due to Pechonkina’s move and the child’s change of school. Kleytman’s briefs on appeal dwell on many
issues unrelated to the denial of his June 27, 2011 motion. We consider only Kleytman’s June 27, 2011 motion
and the subsequent proceedings in family court, except as necessary to address
the award of attorney’s fees.
I. The Denial of Kleytman’s Motion
Kleytman
first asserts that the family court erred because it “ignored the key issueâ€
which he identifies as “an escalated high intensity conflict between parents
and its effects on their child.â€
Kleytman cites an Oregon case recognizing that “the increased conflict
between the parents and the effect of that conflict on child constitutes a
substantial change in circumstances.†(
580.) However, Kleytman never asserted in his moving papers that the conflict
between him and Pechonkina had escalated and that this was, in addition to the
move and change in school, a changed circumstance. Nor, at the hearings, did Kleytman assert or
offer any proof that the conflict had escalated since the 2008 order was
entered. If the conflict has escalated
since 2008, Kleytman is free to seek a change to the 2008 order in family court
on that basis, but he cannot do that in an appeal of an order that rejected a
different assertion of changed circumstances.
Kleytman’s
second assertion of error is that the court “avoided to ask the ultimate
question whether the current situation as shown in its entirety is detrimental
to [the child].†We find nothing in the
record indicating that the family court was unconcerned with the best interests
of the child. At the August 15, 2011
hearing, Kleytman was unable to demonstrate that Pechonkina’s move and the
child’s change of school were a changed circumstance that warranted a change to
the 2008 order. Nevertheless, the court
ordered mediation by Family Court Services.
When both Kleytman and Pechonkina objected to the mediator’s
recommendations, the court again involved Family Court Services to interview
the child and adduce additional background information. The outcome with which Kleytman is unhappy
was one that took account of his input, as well as that of Pechonkina and the
child. Kleytman can point to no factual
finding by a court or evidence beyond his own declarations that would lead us
to believe that the family court did not proceed in the best interest of the
child in this case.
Kleytman
also alleges that the court’s order was not compliant with Family Code section
3048, subdivision (a), which specifies the contents that “every custody or
visitation order shall contain.†We are
not persuaded that section 3048 applies to the family court’s order, because it
simply left an existing custody and visitation order in place and only added a
requirement for mother-daughter counseling.
In any case, even if we found that section 3048 did apply and that the
court’s order did not comply, Kleytman does not explain why non-compliance was
prejudicial to him or provide authority for the proposition that reversal would
be required even in the absence of prejudice.
(See, e.g., People v. Freeman
(1994) 8 Cal.4th 450, 509-511 [declining to reverse a death sentence, absent
prejudice, because of failure to comply with Penal Code section 190.9,
requiring that all proceedings in a capital case be conducted on the record
with a court reporter present].)
Finally,
Kleytman contends that the court’s order is not supported by the evidence. He is wrong.
It was Kleytman’s burden to show that changed circumstances warranted a
change in the current custody and visitation order. His contention was that Pechonkina’s move and
the child’s change of school was such a change in circumstances. However, Pechonkina was actually moving
closer to Kleytman and the child had not experienced an unstable school
environment. Despite being unconvinced
that this change in circumstances would justify a change in custody or
visitation, the court ordered Family Court Services mediation, which ultimately
resulted in a report that recommended keeping the current custody and
visitation orders in place. The record
provides ample reason for a court to determine that Kleytman had failed to
satisfy his burden.
II. The Sanction Imposed on Kleytman
In
relevant part, Family Code section 271 provides: “(a)
Notwithstanding any other provision of this code, the court may base an
award of attorney’s 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 attorney’s 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 attorney’s fees and costs
is not required to demonstrate any financial need for the award. [¶]
(b) An award of attorney’s fees
and costs as a sanction pursuant to this section shall be imposed only after
notice to the party against whom the sanction is proposed to be imposed and
opportunity for that party to be heard.â€
The notice required by subdivision (b) “must also advise of the specific
grounds and conduct for which the fees or sanctions are sought, and must be
directed to the specific person against whom they are sought.†(In re
Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1529.)
Kleytman
appeals the court ordered sanction that he pay $2,500 to Pechonkina’s counsel. The family court docket indicates that in the
year prior to Kleytman’s motion of April 1, 2009, Kleytman had filed motions
for modification of the 2008 order on May 3 and August 18, 2010 After hearings, both of these motions were
denied. Following the August 18, 2010
motion, the court ordered Kleytman to pay Pechonkina’s counsel $1,500 in
attorney’s fees. Kleytman appealed and
we reversed the award of attorney’s fees because the record did not indicate
that the notice required by Family Code section 271, subdivision (b), had been
provided to Kleytman. (
A130779) [nonpub. opn.].)
Kleytman
contends that the family court had no cause to impose a sanction. Kleytman was clearly put on notice, at the
hearing on April 28, 2011, that Pechonkina would be seeking payment of
attorney’s fees. The court informed
Kleytman that if he came to the next hearing without witnesses who could
testify that transportation of the child harmed his career or health, then it
would consider the request for attorney’s fees.
Kleytman came to the next hearing without admissible evidence and this
establishes cause for the imposition of the sanction.
However,
the sanction was not imposed solely because of the proceedings related to the
April 1, 2011 motion. At the December
19, 2011 hearing, the court stated:
“Regarding the request by [Pechonkina] for contribution of fees, again,
it’s not just, for the record, based on today’s hearing, or this motion, it was
in connection with the previous several motions filed by [Kleytman]. That request is granted.â€
On
November 16, Pechonkina’s counsel filed a declaration in support of
Pechonkina’s request for Attorney’s fees.
This declaration cites Kleytman’s motions of May 3, 2010 and August 18,
2010, which were denied. It notes that
following the hearing on the August 18, 2010 motion, Kleytman was ordered to
pay $1,500 in attorney’s fees, which had not been paid. It went on to note that on October 8, 2010
and November 16, 2010, Kleytman filed motions concerning that award of fees,
and those motions were denied. It noted
that Kleytman’s motion of April 1, 2011, was denied and that the parties were
referred to mediation following the motion of June 27, 2011. All this declaration establishes is that
Kleytman is a frequent litigant, but the simple fact that he has made motions
that were denied does not, in itself, mean that those motions were
frivolous. We cannot interpret this
declaration as providing notice of “specific grounds and conduct†for which sanctions
are appropriate.
If
the award of attorney’s fees had been based solely on Kleytman’s conduct
related to the April 1, 2011 motion, for which, as we have noted, proper notice
had been provided, we would affirm the award of fees. However, the court based the award, to an
unknown extent, on unspecified conduct “in connection with the previous several
motions,†including the June 27, 2011 motion that was currently before the
court. Because Kleytman had notice only
about specific conduct related to the April 1, 2011 motion, we must reverse the
award of attorney’s fees and remand to the family court, which may reimpose an
award of attorney’s fees limited to the Kleytman’s conduct connected to the
April 1, 2011 motion.
III. Request that the Child be Interviewed by the Court
Kleytman
objects to the court’s determination that it was not in the child’s best
interest to be interviewed by the court, complaining that “there is not a
single word in the court order of why the child’s testimony would not be in her
best interest.†However, the court
clearly explained its reasoning during the hearing—the child had been
interviewed by Court Family Services, that interview was emotional for her, and
the court did not want to repeat that ordeal for her. Kleytman believes that California Rules of
Court, rule 5.250 requires the court to state its reason for declining to
interview a child in writing, but we find no such requirement in that
rule.
IV. Kleytman’s Allegations Concerning the Commissioner and Requested Sanctions
Under
the current visitation order, Kleytman is required to pick up the child at her
school for weekends that the child is with him, and drop her off at school
after the weekend. Kleytman raised the
issue of his driving at the November 21, 2011 hearing, stating that he needed
relief from the requirement for health reasons, due to a recent surgery. The court reserved the matter for the next
hearing. Although Kleytman, in a
subsequent declaration, included attachments demonstrating the fact of his recent
surgery, none of those attachments would tend to show that he was currently
unable to safely drive the child.
Because of this, Kleytman asks us to take the following actions against
the Commissioner presiding in family court:
“to relie[ve] her from the bench, revoke her license to practice law,
terminate her judicial immunity and
subject to a criminal inquiry to be charged with 2 counts of child endangerment
and 1 count of aggravated assault and battery.â€
Even if we had the power to extend such relief, Kleytman provides no
reason for us to do so, not least because the record is devoid of evidence,
beyond his own declaration, that he could not safely transport the child.
The
family court’s order of December 30, 2011 is affirmed, with the exception of
the award of attorney’s fees to Pechonkina, which is reversed. The matter of attorney’s fees is remanded to
the family court, which may impose fees only for conduct for which Kleytman has
received proper notice.
_________________________
Lambden,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Richman, J.
citations are to the Family Code.
following: “If I was ordered to continue
driving with an open wounds [sic] and
nurse dressing them every day, then I believe that asking the court not to
stipulate my income even during lasting unemployment in the country, is just a
waste of time. Just consider me ‘fully
employed,’ like I did not quit at all.
Based on this I present two last paystubs . . . .â€
