Marriage of Schlafly

Filed 8/1/07 Marriage of Schlafly CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellant Roger Schlafly, former husband of respondent Julie Schlafly, appeals from a June 20, 2006 order to pay a portion of Julies[1] attorneys fees. Roger claims that the court erred by denying him the opportunity to cross-examine Julies counsel regarding the claimed fees. We affirm the attorneys fees order.

                                                                                                                                                                I.            Background

Roger and Julie married in December 1996 and have two minor children. The couple separated in October 2003, and Julie filed for dissolution of marriage. In 2004, the court ordered, and Roger paid, $6,500 in attorneys fees. In May 2005, the court ordered Roger to pay $20,000 in additional attorneys fees but Roger paid only $13,500 and contested the remaining $6,500. On December 16, 2005, the trial court confirmed the attorneys fees award and ordered Roger to pay the remaining amount. In an opinion filed on April 10, 2007, this court affirmed the December 16, 2005 order to pay the remaining $6,500. (See In re Marriage of Schlafly (2007) 149 Cal.App.4th 747.)

In April 2006, while the prior appeal was pending, Julie moved for an additional attorneys fees award to cover the balance of fees incurred through October 2005 (when she substituted in as a pro per litigant). She requested $32,573 in fees incurred (Fam. Code, 2030, 2032), $32,573 as sanctions (Fam. Code, 271), and $50,000 in pendente lite attorneys fees to respond to the pending appeal (Fam. Code, 2030, subd. (a)(2)).[2] A declaration from Julies former counsel, Jennifer Gray, supported the motion. Roger filed an opposition brief that disputed many of Grays statements and objected to any additional attorneys fees award. He generally contended that Grays work only complicated the litigation and did not lead to any tangible benefit to Julie or to a more satisfactory resolution of the case.

At the May 18, 2006 hearing on the motion, the court noted that it had reviewed the voluminous pleadings and then asked if the parties had anything to add. Roger stated that he was disputing several things from Miss Jennifer Grays declaration. And if thats to be considered, Id like to have an opportunity to cross-examine her. The court denied the request, explaining that such testimony is not heard on the motion calendar. The court asked Roger to clarify what, in particular, he was contesting. Roger reiterated the general arguments made in his opposition brief.

The court calculated the resulting attorneys fees award by deducting the fees incurred prior to the last attorneys fees motion in May 2005 ($40,450) from the total fees Julie incurred ($54,892). Citing sections 2030 and 2032, the court ordered Roger to pay $10,000 of the $14,440 balance. The court ordered an additional $5,000 in fees to allow Julie to retain representation for the pending appeal. The order provided that the $5,000 was payable only if Julie retained an appellate attorney and actually incurred that amount.

                                                                                                                                                                 II.           Discussion

Pursuant to section 2030 of the Family Code, the court may order a party to pay to the other party, or to the other partys attorney, whatever amount is reasonably necessary for attorneys fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding. ( 2030, subd. (a)(1); see also  2032, subds. (a), (b) [authorizing fees if the court finds it is just and reasonable under the relative circumstances of the respective parties and providing guidelines for the determination].) On appeal, an attorneys fees award is reviewed for abuse of discretion. (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 283.)

Roger objects to the trial courts reliance on the Gray declaration, arguing that it is not evidence of the fees incurred and is mere hearsay absent an opportunity to cross-examine the declarant. He points out that Gray was present at the May 18, 2006 hearing, but that he was not allowed to call her to the stand. Roger disputes several of the factual assertions in the declaration and argues that it was an error for the trial court to ignore [these] factual disputes[.][3]

Contrary to Rogers conclusory assertion, a declaration is the proper form for admission of evidence at a law and motion hearing. (See Cal. Rules of Court, rule 3.1302(a) [Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown].) Rule 2.4.03(b) of the applicable local court rules expressly states: Oral testimony is ordinarily not allowed on the law and motion calendar. If oral testimony is desired, a request must be made to the Law and Motion Judge, pursuant to California Rules of Court, Rule [3.1306, formerly Rule 323], who will either grant the request and leave the matter on the law and motion calendar, grant the request and direct that set the matter be specially set with the Calendar Secretary, for special hearing, or deny the request and insist that the matter be heard on declarations. (Super. Ct. Santa Cruz County, Local Rules, rule 2.4.03(b).) Nothing in the record indicates that Roger followed the procedure set forth in California Rules of Court, rule 3.1306, which requires that [a] party seeking permission to introduce oral evidence, . . . must file, no later than three court days before the hearing, a written statement stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. . . . (Cal. Rules of Court, rule 3.1306(b).) We therefore find no error in the courts refusal to allow Roger to cross-examine Gray in connection with the attorneys fees motion.

As evidenced by the courts comments on the record, the trial court considered the arguments and evidence submitted by both parties and did not simply ignore Rogers factual contentions. The attorneys fees order is well-supported, and we find no error in the courts ruling.

                                                                                                                                                              III.         Disposition

The June 20, 2006 attorneys fees order is affirmed.

_______________________________

Mihara, Acting P.J.

WE CONCUR:

_____________________________

McAdams, J.

_____________________________

Duffy, J.

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[1] Because the parties share a common surname we use their given names to avoid confusion.

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

[3] At the conclusion of his opening brief, Roger further states that the $20,000 in attorneys fees paid thus far should be refunded. As the earlier attorneys fees orders are not before this court on appeal, this argument is summarily rejected.