Marriage of Starnes

Filed 9/24/07 Marriage of Starnes CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County. Ana Maria Luna, Judge. Affirmed.

Bruce Flamenbaum for Appellant.

Law Office of Kari M. Myron and Kari M. Myron; DAntony, Doyle & Moore and Sherry Graybehl DAntony for Respondent.

Appellant Vernon Starnes, Jr., appeals from a judgment of the family court directing him to pay respondent Sandra Lee Starness attorney fees pursuant to Family Code 271.^[1] We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

After Sandra initiated the underlying marital dissolution, the family court awarded her exclusive possession of the family residence pending resolution of the action.^[2]Subsequently, she filed a motion for an order to compel Vernon to produce documents regarding his business and financial affairs. At a contempt proceeding on April 29, 2004, the family court found that Vernon had repeatedly violated the order granting Sandra possession of the family residence and sentenced him to 24 days in the Los Angeles County Jail, but stayed 10 days of the sentence on the condition that he obey all orders. The next day, it issued an order directing Vernon to produce his financial and business records.

On September 27, 2004, Sandra submitted a trial brief on the issues of child custody and support, spousal support, and division of the community estate. In requesting an award of attorney fees, the brief stated: [Sandra] has expended thousands of dollars in attorneys fees due to [Vernons] failure to provide accurate information as to his income and the income of his company. [Vernon] has continually ignored the court order to stay away from [Sandras] residence after she received an order for the exclusive use of the family residence. Numerous letters were written to [Vernons] counsel warning him that if he didnt stay off the property that we would bring a contempt proceeding. Only as a last resort did [Sandra] file a contempt [sic] and won. [Vernon] failed to produce records and a Motion to Compel was filed. Further, numerous records had to be subpoenaed because [Vernon] failed to produce them at a significant cost to [Sandra]. [] [Vernon] still continues to fail to produce documents in compliance with the court order to provide to [Sandras] counsel all ongoing business records.

From October 2004 through May 2005, the family court conducted a trial on the division of the community estate. At trial, Sandra presented testimony from Vernons employee and other individuals regarding his financial records and business practices. On November 8, 2005, the family court issued its judgment regarding the division of the community estate. The judgment reserved Sandras request for a fee award for resolution during later proceedings.

The trial on the remaining issues in the action occurred on January 30 and 31, 2006. Sandras trial brief on these issues, which was filed on January 30, 2006, requested a fee award of $77,000 under section 271, contending that Vernons misconduct during the proceedings had forced her to incur additional fees. On the same date, Sandra filed an income and expense declaration in which she affirmed under penalty of perjury that she had paid $70,014 in attorney fees and costs, that she owed an additional $77,813 in fees and costs, and that her attorneys hourly rate was $250. After the close of the presentation of evidence, Vernon argued that the award to Sandra could not exceed $1,000 due to her attorneys failure to submit a declaration in support of the fee request, as required under former Los Angeles Superior Court rule 14.10 (former rule 14.10).

On July 17, 2006, the family court entered its judgment on the remaining issues in the action. Regarding Sandras fee request, the judgment stated: [Vernon] has been on notice throughout the pendency of the action, and certainly was put on notice during trial, that the court believed his conduct frustrated the early settlement of the action and required the expenditure of many attorney hours by [Sandras] counsel to obtain the very basic information needed to evaluate the case. As an example, [Sandras] counsel had to subpoena bank records to recreate [Vernons] business for [the] purpose of valuation by the forensic accountant. [Sandras] counsel had to depose [Vernons employee] and bring that individual to court to explain the practices kept (or not kept) by Vernon concerning the operation of his insurance agency. [Sandras] counsel had to bring an ex parte hearing to get [Vernon] to sign a grant deed allowing [Sandra] to pull monies from the equity in the family residence so that necessary repair work could be done on the residence . . . .  The court has a long history going back to the Spring of 2004 with [Vernons] recalcitrant behavior which was easy to excuse, early on, as [Vernon was] a lousy record keeper even during the marriage. However, the fact is that he made no effort to reduce the litigation costs and cooperate in pulling together his records in time for trial or even as recently as January 2006 for the custody/support hearing.

The judgment concluded that Vernon was able to pay a sizeable fee award, rejected his contention that former rule 14.10 limited an award to $1,000, and accorded Sandra $50,000 under section 271. Vernon noticed an appeal from this portion of the judgment.

DISCUSSION

Vernon contends that the family court erred in issuing the fee award under section 271. He argues (1) the failure of Sandras attorney to provide a declaration pursuant to former rule 14.10 limited the award to $1,000, and (2) the evidence is insufficient to support the award. As we explain below, he is mistaken.

A. Former Rule 14.10

Under section 271, the family court may base a fee award 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.^[3] Because such an award is in the nature of a sanction, the party requesting it is not required to demonstrate any financial need for the award ( 271, subd. (a)); moreover, the amount of the award is not limited to the cost [to the party seeking the award] resulting from the bad conduct (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970 (Quay)). The family court may issue the award only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard. ( 271, subd. (b).) Moreover, in issuing the award, the family court must consider all evidence concerning the parties incomes, assets, and liabilities, and it may not impose an award that imposes an unreasonable financial burden on the party obliged to pay the award. ( 271, subds. (a), (b).)

Former rule 14.10 states in pertinent part: Any request in excess of $1,000 in attorneys fees and court costs shall be accompanied by a separate written fee declaration signed by the attorney . . . .  Fee declarations should include the services performed and costs incurred to date; the time expended; the hourly rate charged, if applicable; counsels years in practice and years in family law practice; professional certifications; his/her best estimate of future services to be performed, costs to be incurred and the necessity therefor; each partys access to community assets; the specific amounts requested, and amounts paid by or on behalf of the party requesting fees and costs; and prior awards of fees and costs.^[4]

Vernon advances two challenges to the award predicated on the failure of Sandras counsel to submit a declaration in compliance with former rule 14.10. He argues that (1) the family court lacked the evidence required for the award under section 271, and (2) the absence of the declaration denied him a fair opportunity to challenge the fee request. The family court rejected these challenges, reasoning that Sandras counsel was not obliged to submit the declaration because this requirement under rule 14.10 conflicted with section 271. We agree with the family court on this matter.

Generally, rules of court that conflict with statutes are invalid. (2 Witkin, Cal. Procedure (4th ed. 1996 & 2007 supp.) Courts, 204, p. 272.) A narrow exception to this principle exists in the area of family law, where the Legislature has authorized the Judicial Council to promulgate rules that superced[e] contrary statutes. (In re Marriage of Cream (1993) 13 Cal.App.4th 81, 87-88; see 210.) This exception does not encompass local rules adopted by family courts, which have no authority to promulgate local rules that conflict with any statute or Judicial Council rule or are inconsistent with law. [Citations.] (Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1321.)

Because former rule 14.10 was promulgated by the departments of the Los Angeles County Superior Court (see Los Angeles County Superior Court, rule 1.10), rather than by the Judicial Council, it is invalid to the extent it conflicts with section 271. In resolving whether the former rule conflicts with section 271, we interpret the rule in light of its language and apparent purpose. (Lammers v. Superior Court, supra, 83 Cal.App.4th at pp. 1321-1322.) Former rule 14.10 precludes a fee award exceeding $1,000 unless the party seeking the award submits a declaration from his or her attorney providing a detailed account of the attorneys services, the fees incurred in connection with the services, and the partys access to community assets to pay for the services. The rule thus caps fee awards in the absence of an attorney declaration containing evidence addressing the extent to which the party incurred fees as a direct result of the opposing partys misconduct, and (2) the partys financial need for a fee award.

In our view, the former rule improperly ties the maximum permissible award to considerations that do not control the family courts discretion under section 271. As we have explained, section 271 permits the family court to issue an award determined by the extent to which the opposing partys conduct frustrated policies promoting settlement and cooperative litigation; moreover, the amount of the award is not limited to the fees the requesting party incurred directly in connection with the misconduct , and the requesting partys financial need is irrelevant. Because former rule 14.10 tethers the amount of an award pursuant to section 271 to the presentation of evidence not required under the section, the rule contravenes the language and function of section 271. (Cortez v. Bootsma (1994) 27 Cal.App.4th 935, 938 [local rule that imposes limit on fee award not found in statute authorizing award is invalid].) The family court therefore properly determined that it could issue the award in the absence of the declaration required under former rule 14.10.

Relying on In re Marriage of Tydlaska (2003) 114 Cal.App.4th 572 (Tydlaska), Vernon contends that the declaration requirement in former rule 14.10 is valid. There, the court affirmed the application of a local rule requiring the parties seeking spousal support to submit an income and expense declaration, but no question was raised or addressed as to whether the rule conflicted with the applicable statutes. (Id. at pp. 574-576.) Tydlaska thus provides no guidance on the issue before us. (Bishop v. Merging Capital, Inc. (1996) 49 Cal. App.4th 1803, 1807.)

In view of our conclusion regarding former rule 14.10, we also reject Vernons suggestion that Sandras failure to provide the declaration denied him due process in connection with the fee award. The record discloses that Vernon had ample notice that Sandra sought an award under section 271 at the trial in January 2006, and that he had a full opportunity during the trial to present evidence bearing on the factual predicates for such an award. (See Quay, supra, 18 Cal.App.4th at pp. 969-971.) Accordingly, the family properly issued the fee award in the absence of the declaration required under former rule 14.10.

Sufficiency of the Evidence

Vernon contends that the evidence is insufficient to support the award because no evidence regarding his misconduct was presented at the January 2006 trial, and the only evidence regarding the fees Sandra had incurred was stated in the income and expense declaration she filed in connection with the trial. In Quay, supra, 18 Cal.App.4th at pages 969-971, the court rejected a similar contention on materially identical facts. There, the family court bifurcated trial in a marital dissolution action, and first conducted a trial on property issues. (Id. at p. 966.) Prior to the trial on the remaining issues, the wife sought a fee award under section 271, which the family court issued after the second trial. (Id. at pp. 969-971.) On appeal, the husband contended that he lacked notice that his earlier conduct was in issue at the second trial, and that the only evidence regarding fees concerned fees incurred after his misconduct. (Id. at p. 970.) The appellate court rejected his contentions, concluding that the wifes fee request placed him on notice that his prior misconduct was at issue, and that the record was replete with evidence supporting the award. (Id. at p. 969.) We reach the same conclusion here.

In view of Quay, the family court properly consulted the record as a whole in granting the award because Sandras fee requests provided adequate notice that Vernons past behavior was in issue. The record on appeal discloses that Sandra provided sufficient evidence regarding the fees she had incurred to support an award under section 271, but it lacks a complete reporters transcript of the underlying proceedings. Because Vernon has not provided a full record of the evidence before the family court regarding his conduct and ability to pay the award, we presume that substantial evidence supports the family courts findings regarding the factual predicates for the award. (9 Witkin, Cal. Procedure (4th ed. 1997 & 2007 supp.) Appeal, 349, 354, pp. 394-396, 402-403; see Cal. Rules of Court, rule 8.163.) In sum, the trial court did not err in issuing the fee award.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

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^[1] All further statutory citations are to the Family Code.

^[2] Because the key parties share a surname, we refer to them by their first names. (In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 803, fn. 2)

^[3] Section 271 provides: (a) 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. [] (b) An award of attorneys 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. [] (c) An award of attorneys fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned partys share of the community property.

^[4] Effective July 1, 2006, rule 14.10 was amended to provide in pertinent part: Any request, oral or written, for an order for payment by another party of attorney's fees and court costs in excess of $1,000, should be accompanied by a separate written fee declaration signed by the attorney or party seeking such order. A failure to submit such declaration may result in the court limiting the evidence in support of such request to the evidence that may already be before the court in the pending proceeding . . . .  [] Fee declarations should include the services performed and costs incurred to date; the time expended; the hourly rate charged, if applicable; counsels years in practice and years in family law practice; professional certifications; his/her best estimate of future services to be performed, costs to be incurred and the necessity therefor; each partys access to community assets; the specific amounts requested, and amounts paid by or on behalf of the party requesting fees and costs; and prior awards of fees and costs. (Italics added.) The parties do not address the amended rule, and we do not examine it.