Marriage of Tanner and Gattuso

Filed 9/24/07 Marriage of Tanner and Gattuso CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Catherine D. Purcell, Judge.

Roger I. Stein for Appellant.

Lori Gattuso, in pro. per., for Respondent.

-ooOoo-

STATEMENT OF THE CASE

On November 23, 2003, respondent Lori Tanner Gattuso (Lori or, mother) filed an order to show cause for modification of child custody, child support, and attorney fees and costs in the action for dissolution of her marriage to appellant Roger Tanner (Roger or, father). Lori prayed for sole legal custody of their three minor children, $1,278 in monthly child support, reasonable attorney fees and actual court costs.

On December 30, 2003, Roger filed a responsive declaration and asked the court to continue an existing child support order pending completion of an evaluation under Family Code^[1]section 730. Roger also urged that the parties bear their respective fees and costs.

On January 7, 2004, the court conducted a contested hearing and accepted the parties stipulation to a continuance to allow minors counsel to research current recommendations from the minors treating physicians.

On January 15, 2004, Roger filed an income and expense declaration reflecting net monthly disposable income of $5,298 and monthly expenses of $3,240.

On April 7, 2004, the parties appeared in court and acknowledged receipt of the section 730 evaluation. The court then set a date for hearing on the order to show cause.

On June 28, 2004, the court conducted a contested hearing on the order to show cause. The parties stipulated to completion of the hearing on that date and agreed each party would visit the court to view Loris exhibit No. 4, a videotape recording of a forensic interview with the minor children. The parties further agreed the matter would be set over for another hearing regarding testimony relating to the tape recording. The court set forth a viewing schedule for the videotape, ordered Loris counsel to submit an attorney fees statement/declaration, and ordered Rogers counsel to submit and serve a property declaration and proposed DissoMaster. The court also ordered mother to have sole legal and physical custody of the minor children on a temporary basis.

On July 9, 2004, Loris counsel filed a declaration regarding attorney fees in the total sum of $11,442.80. On July 29, 2004, Loris counsel filed an income and expense declaration setting forth no monthly income other than $1,534 in adoption assistance for the minor children, $144,634 in real and personal assets, and reflecting total monthly expenses of $5,765.86.

On September 29, 2004, the court called a hearing for final arguments on the order to show cause. After a chambers conference, the court ordered the clerk to set a hearing under the Uniform Child Custody Jurisdiction Enforcement Act and continued the matter to determine the status of the superior courts jurisdiction. The court ordered minors counsel to provide the clerk with the locale of the minors.

On October 26, 2004, Lori filed another order to show cause for child custody, visitation, and attorney fees and costs. She alleged that Roger had molested their minor children and should have no visitation or contact with them. She also prayed for reasonable attorney fees under applicable statutes and for unreimbursed costs of medical care and treatment for the three minor children, including psychiatric care, medical care, counseling, and therapy. She also prayed for boarding school costs for two of the minors and the cost of a second home and caretakers for the third minor, who had recently been incarcerated.

On November 2, 2004, Roger filed a responsive declaration to the order to show cause, denied the allegations of molestation, and requested that each party pay respective costs.

On November 10, 2004, the court conducted a hearing on the order to show cause. After a chambers conference, the court retained jurisdiction over two of the minor children and relinquished jurisdiction over minor J. to a Michigan Juvenile Court. The court noted that the Michigan court would relinquish its jurisdiction over J. after a disposition in J.s juvenile case. The court took the matter under submission and granted a motion to relieve minors counsel from further legal representation.

On January 13, 2005, the court filed a minute order (1) permitting Roger to withdraw his order to show cause for reinstatement of visitation; (2) granting Loris order to show cause for sole legal and physical custody with no visitation and contact between Roger and the minors; (3) relinquishing jurisdiction over minor J. to a Michigan Juvenile Court pending disposition in a criminal juvenile action; (4) awarding Lori $11,400 in attorney fees pursuant to Family Code sections 2030 and 271; and (5) ordering Roger to pay guideline child support and one-half payment for unreimbursed medical, dental, vision, and psychological bills of the minors.

On March 29, 2005, Roger filed a motion to set aside the rulings of January 13, 2005.

On May 4, 2005, the court continued Rogers motion to set aside the judgment.

On May 17, 2005, Roger submitted and filed an income and expense declaration reflecting $7,500 in monthly income and $8,642 in total monthly expenses. In conjunction with that declaration, Roger alleged that a federally-funded Adoption Assistance program had provided $9,000 per month to the minors and that he had provided $1,278 a month in child support, sums exceeding the expenses of the minor children.

On May 18, 2005, the court ordered the parties to submit points and authorities prior to a scheduled confirmation hearing.

On August 24, 2005, the court ordered Roger to pay for Loris travel and lodging for a September 2 hearing.

On August 26, 2005, Loris counsel filed a declaration for attorney fees, alleging his client had incurred an additional $14,202.75 in legal fees in July 2004, because Roger failed to timely pay a fee for a court-appointed evaluator and failed to timely schedule an appointment for evaluation.

On September 2, 2005, the court conducted a contested hearing on the order to show cause. Rogers counsel limited his request for set aside to the January 13, 2005 ruling regarding attorney fees only. Counsel also limited Rogers request for modification of child custody to a request for joint legal custody. The court took the matter under submission after receiving documentary and testimonial evidence.

On September 13, 2005, the court filed a ruling by minute order and (1) denied Rogers request for joint legal custody; (2) ordered Roger to pay the below guideline sum of $400 per month effective October 1, 2005, to assist in the unpaid expenses of two of the minors while they are in boarding facilities; (3) amended the January 13, 2005 ruling by ordering Roger to pay one-half of the reasonable uninsured health care costs and psychological costs for minor children over whom the court had jurisdiction; (4) granted Loris initial request for attorney fees in the sum of $11,400; and (5) granted Loris request for current fees and costs in the sum of $8,000 pursuant to Family Code section 2030.

On January 13, 2006, the court filed formal findings and order after the September 2, 2005 hearing, awarded a total of $19,400 to Loris counsel, and set forth the other rulings made on September 13, 2005. In reducing monthly child support to the sum of $400, the court noted the following special circumstances: [T]he adoption monies received for [minors C. and A.] pay almost entirely for their expenses while they are in boarding facilities. In addition, it has not been determined whether they will ever return to the mothers residence.

On February 2, 2006, Roger filed a motion to set aside the attorney fees order of September 2, 2005, on the ground that Lori engaged in fraud with respect to her representation of household income.

On February 22, 2006, Lori filed a responsive declaration to Rogers motion, alleging there is no basis in fact for the request made by Mr. Tanner.

On March 8, 2006, the court conducted a contested hearing, denied Rogers motion to set aside the attorney fees order, and took the issues of attorney fees and costs [for the March 8 hearing] from both sides under submission.

On March 9, 2006, Roger filed a timely notice of appeal from the January 13, 2006 order (case No. F050058).^[2]

On March 23, 2006, the court filed a minute order finding each party responsible for $5,000 in fees, which is of the total fees allotted for the hearing. The court directed Roger to pay Lori the sum of $2,500 within 30 days of the date of mailing of the ruling.

On September 14, 2006, the court filed formal findings and order after the March 8, 2006 hearing and pursuant to the March 23, 2006 ruling by minute order.

On September 25, 2006, Roger filed a timely notice of appeal from the March 23, 2006 minute order and the formal order filed thereon on September 14, 2006 (case No. F051401).

On November 20, 2006, this court consolidated case Nos. F050058 and F051401 (under case No. F050058) for briefing and determination of all issues pursuant to stipulation of the parties.

On February 8, 2007, this court augmented the record to include copies of the exhibits submitted at the March 8, 2006 hearing in superior court.

STATEMENT OF FACTS

Facts Elicited from the Reporters Transcript of the November 10, 2004 Hearing

On November 10, 2004, the court conducted a hearing on five orders to show cause (OSCs), one filed by Rogers counsel and four filed by Loris counsel. The court noted that all of the OSCs related to custody, visitation, and payment of monies (i.e., attorney fees and medical, psychological, and other costs for the minor children). The parties were not present for the hearing but attorney Wayne Silva appeared on behalf of Lori, attorney Roger Stein appeared on behalf of Roger, and attorney Lawrence Sires appeared on behalf of the minor children. The court took all of the matters under submission and noted that minor J. was under the mandatory jurisdiction of a juvenile court in Michigan. The court expressed its intention to retain jurisdiction of minors C. and A. and to relinquish jurisdiction of minor J. to the juvenile court in Michigan only for such period of time as they have mandatory jurisdiction. At the conclusion of the proceeding, the court relieved attorney Sires from his appointment as counsel for the minor children.

Facts Elicited from the Ruling of January 13, 2005

The following facts are taken substantially verbatim from the ruling incorporated by reference into the superior courts minute order of January 13, 2005:

This case came before the court on November 10, 2004 for the following actions:

1) Respondents [Rogers] OSC for Reinstatement of Visitation order, filed December 18, 2002

2) Petitioners [Loris] OSC re Modification of Child Custody, Child Support and Attorneys Fees and Costs, filed November 28, 2003

3) [Loris] OSC re Child Custody, Visitation and Attorneys Fees (FC 271 & FC 2030) and Costs, filed October 26, 2004

Mother resides in Michigan with the minor children and Father resides in Kern County. This case involves a history of accusations of Father of sexual molestation of the three minor children the parties adopted during their marriage: [C., J., and A.]. Currently, [C.] is in a residential psychiatric facility, [J.] is in a juvenile facility for a sexual criminal offense and [A.] is residing with Mother and her new husband, all in Michigan.

History and Background

By way of brief history and background, on February 21, 2001, Judge John Oglesby ordered primary physical custody of the minor children to Mother with Father having various visitation periods at holidays and during the summer. On December 11, 2001, pursuant to an OSC filed by Mother, Judge John Quinlen made temporary orders prohibiting any visitation or contact with Father due to Mothers further allegations of sexual abuse of the children by Father, and a then pending criminal investigation. Mr. Sires was appointed to represent the minor children. After several continuances, the parties agreed on May 29, 2002, that all current hearings related to the December 11[th] OSC would go off calendar but the no visitation order to Father would remain in effect. At this time it was up to Father to bring a new OSC for reinstatement of visitation in the future. Up to this time, Father had been represented by Mr. Michael Nusbaum.

In December of 2002, Father hired new counsel, Mr. Roger Stein, and filed his OSC at issue, described above. At the initial filing of Fathers OSC in December of 2002, the parties agreed to an Evidence Code section 730 evaluation. Over the course of the past two years since the filing, there have been several continuances of the actions for various reasons including that Father did not timely pay the retainer for the 730 evaluation by Dr. Thomas Spahn, a licensed psychologist. Such order for payment was made by this Court on February 7, 2003. Dr. Spahns assessment had to be completed in separate parts due to the fragile emotional condition of the minor children. The adult parties were interviewed first and then the two boys. The oldest child [C.] was never interviewed given her severely disturbed emotional state and based upon recommendations against such interviews by medical and psychological professionals. Multiple final 730 reports were acknowledged as received by the parties on April 7, 2004, and a special setting for hearing was set for June 28, 2004. The 730 reports basically recommended no contact by father with the two boys, [J.] and [A.]. Dr. Spahn found that [A.] and [J.] believed they had been molested (although Dr. Spahn could not make such a finding) and the emotional effort to reestablish contact would be too damaging to the children. Simply put, these children genuinely feared Father. Therefore, future contact or visitation with Father was not recommended in the best interest of the children.

On June 28, 2004, the Court held an all day evidentiary hearing on the OSCs pending at the time. At the conclusion of the hearing, it was determined that all parties, attorneys and the Court should view Mothers exhibit, a videotape related to a forensic interview. The matter was continued for all parties and the court to view the tape and for further hearing. At a further hearing, Father indicated in court that he wished to withdraw his OSC filed in December 2002, wherein he requested reinstitution of the 2001 visitation order. Based upon Fathers request to withdraw his OSC, it was agreed by all parties and attorneys that the pending 3 OSCs before the Court would be submitted to the Court for ruling ....

Findings and Ruling

Custody and Visitation: [] ... []

The Court finds that after reviewing all the evidence in the case, the Court cannot make a definitive finding that Father molested the children, although it does make the finding that contact with him is not in their best interest for the reasons stated above. These adoptive children originate from a dysfunctional home where it is reported that certain of the abuse and/or neglect could have been sexual in nature. While the possibility exists, based upon the history of the childrens background, the Court cannot make a finding that Father has sexually abused the children. However, the children believe they were molested and that the perpetrator is Father, whom they view in a very negative way. This being their reality and given their extremely fragile emotional states, the Court finds that the order herein for no contact with Father is in their best interest.

Financial Matters Attorneys Fees

The request for attorneys fees and costs by Mother is considered pursuant to Family Code section 2030 and 271. Mother is requesting $11,442.80 in attorneys fees and costs. Pursuant to Family Code section 2030 and 271, the Court grants Mothers request for payment of attorneys fees by Father in the amount of $11,400. [] ... []

This Court finds, after analysis of the [In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870] factors, that the instant case is fairly complex due to the involved analysis of the molestation issue and need for expert evaluation. This litigation was lengthy and took 2 years to complete. Mother has full custody of the children and is not working. The children have multiple serious psychological difficulties requiring her attention. Imputing any income to her at this time is not in the best interest of the minor children. The Court has determined that Father has the ability to pay attorneys fees.

The Court has considered all the factors cited in Keech and has further considered each and every billing record of counsel for Mother. After full evaluation and application of applicable legal principles, and careful scrutiny of all billing records, it is the considered judgment of the Court that the following order for fees and costs should be made.

In addition, Family Code section 271 provides for fees in the nature of a sanction. As an alternative theory, the Court orders the attorneys fees pursuant to this section based upon the description of conduct in the case in Mothers OSC. The Court further finds that the award of fees in the amount of $11,400 does not impose an unreasonable financial burden on Father.

Facts Elicited from the Reporters Transcript of the September 2, 2005 Hearing^[3]

The court called the case and noted the pendency of several longstanding matters. These included: (1) Rogers March 29, 2005 motion on the issue of child custody; (2) Rogers request to set aside the order of January 13, 2005; (3) an issue of child support continued from the hearing of January 13, 2005; and (4) the requests of Loris counsel, Wayne Silva, for attorney fees. Rogers counsel, Roger Stein, indicated he wanted to only relitigate the issue of attorney fees. The court advised that Roger would be permitted to address that issue and then attorney Silva would be permitted to request further attorney fees. The court further clarified to the parties: [I]n the prior hearing and order ... I indicated ... as an alternative theory that soft sanctions [under Family Code section 271] would possibly be appropriate because of conduct. [] The conduct I was referring to was litigation conduct, not conduct alleged in this case.

Testifying by telephone, Lori stated her middle child, J., was a temporary ward of the State of Michigan and had been incarcerated a little over a year ago. Lori said C., the oldest child, was age 14 and did not reside with her because C. did not want Roger to know her whereabouts. Lori admitted that she received monetary adoption assistance for all three of her children. She received $7,260 per month for minor J. alone. Lori explained that she would sign each check over to the State of Michigan. Lori also said she purchased J.s clothes, books, gear, incidentals, and miscellaneous items. Lori said she received $546 a month in adoption assistance for C. Lori admitted telling minors counsel that she would never be able to have C. back in her home. Lori also indicated she wanted to give up her parental rights and have C. go back to her natural/biological father, but that Roger refused all contact to accomplish this. Lori said she had last seen C. in November 2004 but declined to give the name of the state in which C. lived because we have problems when Mr. Tanner finds us. Lori said she occasionally paid for miscellaneous items for C. and that those expenses amounted to a couple hundred dollars here and there.

Lori testified minor A. was in boarding school, that she received $1,118 in adoption assistance for him, that the current cost of his boarding school was $1,160, and that she was paying the difference. Lori said A. was in boarding school because of a variety of psychological problems and he was last in her home in August 2004. She later testified that A. had been at boarding school for about one year, which she characterized as the minimum stay.

Lori said she was working and earning about $5,000 a month in gross pay at the time she met her present husband, Joseph Gattuso. At the time of this hearing, she was not working and was not seeking employment. Lori said she owned three adult and three young Shire horses but was not engaged in breeding and selling them. She estimated their total worth at $24,000.

Loris 2004 income tax return with Mr. Gattuso indicated $156,000 of income. She said she sold the Michigan home she owned with Gattuso in July. Lori said she used the child support money from Roger to pay her attorney, Wayne Silva. The child support amounted to $1,278 per month. Lori said she wanted to see C. and A. but funds were limited. When Rogers counsel asked why she moved from the state of Michigan to the state of Maine, Lori replied, We bought a house over a year ago before an awful lot of this happened.

On cross-examination, Lori said she worked as a scenario planner for Brandeis Associates in the state of Michigan prior to her marriage to Joseph Gattuso. They were married about three and a half years before the hearing and she ceased employment outside the home at the time of the marriage. She said her first priority was to stay home and care for the children. Lori also said she was responsible for the care of C. and A. and made necessary arrangements with their schools and care facilities. Lori admitted she did not need to return to work because of Joseph Gattusos income. She acknowledged that they have a small home farm and that she and Gattuso agreed that she would stay home and take care of the house. She also testified the three children have had difficulties since basically since we brought them to our home at age 3, 4, and 5 .... According to Lori, C. had been hospitalized many times and her last stay ended on October 31, 2004.^[4] The fall of 2004 was the last time C. was in Loris home. According to Lori, some of the hospitalizations lasted for a few days and others for a few months. The hospital stays spanned a year and a half, beginning in the spring of 2003 and ending in October 2004. The longest hospital stay was three months.

Lori said she strongly objected to Roger obtaining any form of joint legal custody of the children because C. would not be able to maintain her sanity, J. is a temporary ward of the state of Michigan, and A. needs privacy. Lori was concerned that Roger would try to contact the children. She said that Roger had contacted J.s psychotherapist, Dr. Ron Gruders, on a frequent basis. Lori also said the child support she received did not improve the standard of living for the children and she had to use those funds for necessary legal expenses. She explained she did not presently have money to pay the kinds of expenses that the instant legal action generated.

With respect to expenses, Lori said her monthly expenses were about $7,000 due to the move to a new home and the need for repairs. She said the monthly mortgage payment was $913, that taxes and insurance were paid separately, and the total owed on the new home was $80,000. Although she and Joseph Gattuso realized more than $100,000 on the sale of the Michigan home, they had to spend between $40,000 and $50,000 to renovate the home they purchased in Maine. The latter home was appraised at $160,000 just before the time of the instant hearing. Lori explained that they purchased their current home about a year earlier but had only lived in it since June of 2005. Lori also said she was currently turning over her child support money to her counsel as payment for legal services. Lori acknowledged that her 2004 joint tax return listed Joseph Gattusos annual income as $138,948. However, she explained the income figure included military retirement money and that Gattuso had child and spousal support obligations of his own. She said that Gattuso received about $17,000 in annual retirement, that he pays spousal and child support from those funds, and that he realizes about $250 a month after making those payments. Lori also said that Gattusos income was high because he was promoted to vice president at his employer, the Brandeis firm, in 2004.

Roger Tanner initially testified about the alleged delay in arranging for Dr. Spahns consulting services in 2003. Roger said in May 2003, he received a letter explaining how and where to pay for Dr. Spahns services. Roger said he wrote a check to Human Resource Services on June 10, 2003, and the check was cashed on June 16. According to Roger, no time was specified for Lori, their children, and him to meet with Dr. Spahn. Roger did not initially contact Dr. Spahn because the order said he could not do so. When Roger did not hear from Spahn, he consulted with his counsel and then called Dr. Spahn to make an appointment near the Thanksgiving holiday in 2003. Roger eventually learned that Lori and the children had seen Spahn in July 2003. Roger said he did not delay the process and in fact wanted the children to see Dr. Spahn as fast as possible.

Roger confirmed he had requested joint legal custody of the children and wanted to know what was happening to them. Roger said he receives updates from Dr. Gruder, a psychologist, who is working with J. However, he had not received any information from Lori about the children within the past year. Roger said two years before the hearing Lori wanted to give up her rights to minor C. Roger said he maintained the children on his health insurance and they were covered by Medi-Cal through adoption assistance and also by Joseph Gattusos health insurance under Blue Cross/Blue Shield. Roger said he had not received any health insurance claims for the medical care of the children.

Roger said he did not intend to contact the children directly and had made no effort to contact or bother Lori. He said he knew the location of her home because it was listed on a website for horse breeders. Roger said he was still interested in maintaining some kind of contact with the children and in getting information about them. He explained that was his reason for seeking joint legal custody. He said that even when he had joint legal custody, he did not make any effort to contact the children when they were in custodial institutions. Roger testified he did not feel he could afford the attorney fees requested by Lori. An Air Force employee, Roger acknowledged his W-2 statement for 2004 listed wages as $86,105, Medicare wages as $99,105, and that he received $21,121 in military reserve compensation. Roger said he owned a rental home worth between $140,000 and $150,000 with a $67,000 mortgage. He said he received $650 in monthly rent and made an $850 monthly mortgage payment. Roger also said he lived in a three-bedroom, 1,600 square foot home worth between $135,000 and $140,000 with a mortgage between $125,000 and $127,000. Roger indicated he had $501,000 in gross assets and debt of about $195,000.

In response to questioning from Loris counsel regarding visitation, Roger said he was only asking to see the children in the presence of a counselor once or twice a year, to tell them that I still love them and that whatever they were told was untrue. Roger believed that Lori and Joseph Gattuso had made statements about the children being fearful of him. Roger also said he contacted J.s counselor, Dr. Gruder, after first calling J.s case worker. This contact occurred in April or May of 2005. In making the contact, Roger informed Gruder that he did not have any right to legal custody of the children. Roger said he knew the whereabouts of minor J. but had not tried to trace the location of the other children. Nevertheless, he admitted obtaining a copy of the deed to the Gattusos home and learning of their address through a website for horse breeders. He explained that he was looking for financial records in relation to the instant litigation.

Loris current spouse, Joseph A. Gattuso, testified minor C. expressed significant distress about possible reunification with Roger. This occurred prior to C.s interview with Dr. Spahn. Gattuso said C. expressed to Lori certain specific concerns about what had occurred to her and her fears about what might be done to her in the future . . .. These statements occurred outside of Gattusos presence. However, on many occasions, in Gattusos presence, C. expressed great fear of seeing or being located by Roger. C. said she was afraid Roger would kill her. Minor A. said he was very, very afraid that he will be molested again.

Facts Elicited from the Ruling of September 13, 2005

The following facts are taken substantially verbatim from the ruling incorporated by reference into the superior courts minute order of September 13, 2005:

Ruling on Submitted Matters Regarding Child Custody, Child Support, and Attorneys Fees

This matter came before the Court for a hearing on September 2, 2005, on the issues of child custody, limited to the question of legal custody as to the minors [C.] and [A.] only (The Court became aware that [J.] is under the jurisdiction of the Michigan Court since November 2004).... [] ... []

Attorneys Fees and Costs

The trial court has wide discretion in ordering payment of an award of attorneys fees in a family law case. In re Marriage of Lynn (2002) 101 Cal.App.4[th] 120, 133. The request for attorneys fees and costs by Mother is considered pursuant to Family Code sections 2030 and 271 for fees incurred prior to July, 2004, and pursuant to section 2030 only for fees incurred since that time. As amended in 2005, this section provides in part that the Court shall, upon determining an ability to pay and in consideration of the respective incomes and needs of the parties, insure that each party has access to legal representation to preserve each partys rights by ordering attorneys fees in whatever amount is reasonably necessary to maintain or defend the proceeding. In making an appropriate attorneys fees order, the Court considers the needs of each party pursuant to factors specified in Family Code section 4320, and considers ability to pay in light of all financial obligations. [] ... []

This Court finds, after analysis of the [In re Marriage of Keech (1999) 75 Cal.App.4th 860, 870] factors, that the instant case is fairly complex due to the involved analysis of the molestation issue and need for expert evaluation. This litigation was lengthy and took 2 years to complete. Mother has full custody of the children and is not working outside the home, although the Court recognizes that each child is not currently living in the home. Mother has a small farm on property in the East. The children have had multiple serious psychological difficulties that have required Mothers attention and ultimately the children have been placed in various boarding facilities. The Court has determined that Father has the clear ability to pay attorneys fees based upon his monthly income and overall finances, while Mother continues to have custody of the children and less financial ability to pay the fees. After full evaluation and application of legal principles, and careful scrutiny of all billing records, it is the considered judgment of the Court that the order for fees and costs herein is appropriate.

Prior Fees & Costs: The request for $11,442.80 in prior fees and costs by Mother (through July 2004) pursuant to Family Code sections 2030 and 271, is granted in the amount of $11,400 based on Mothers need and Fathers ability to pay.

Family Code section 271 provides for fees in the nature of a sanction. As an alternative theory for the prior fees, the Court orders the attorneys fees pursuant to this section based upon the description of litigation conduct in the case contained in Mothers OSC. The litigation was involved and required multiple hearings and use of minors counsel and a 730 expert. The case was delayed on several occasions due to Fathers failure to set appointments with the expert, and required multiple hearings. Ultimately, after completion of a portion of the lengthy court hearing, Father withdrew his OSC request for Custody and Visitation. The Court further finds that the award of fees in the amount of $11,400 does not impose an unreasonable financial burden on Father, as his income is over $100,000 and his net worth is over $300,000.

Current Fees and Costs: As to the current fees and costs that are being requested in the amount of $14,202.75, pursuant to Mothers Declaration filed August 26, 2005, the Court grants further fees and costs in the amount of $8,000.00 pursuant to Family Code section 2030. The Court finds that Mother has the need for payment of the fees and Father has the clear ability to pay the fees, based on all the current financial circumstances of each party. Certain credit is being given to Father for payment of fees already made by Mother with monies sent for child support at time when the children were in the boarding facilities.

Facts Elicited from the Reporters Transcript of the March 8, 2006 Hearing

On March 8, 2006, Roger sought to set aside the prior order for attorney fees on the basis of extrinsic fraud. He alleged that Loris income was not fully revealed to the court at the prior hearing. Lori testified she was currently residing in Oakfield, Maine with her husband, Joseph Gattuso. She said she was last employed in February of 2003. Within one year of the March 8, 2006, hearing, Lori did tell one Jennifer Rhodes that she was employed and working. She communicated with Rhodes via the Internet in October or November 2005. Lori said she had six Shire horses, that she bred such horses, but that she had not sold any during the preceding year. In a March 20, 2005, e-mail to Rhodes, Lori wrote about occasionally having foals for sale and about the possibility of selling some Shires in the fall of 2006. In an October 3, 2005, e-mail to Rhodes, Lori wrote:

We arent doing much with horses any longer; because I just got a great job with a multi-national corporation. ... I hate to do it, but I just couldnt pass up the paycheck.

Lori testified that this e-mail statement was not true. She wrote it because she realized that Roger was stalking me on the InterNet and she hoped he would submit these things, so that we could get him to stop stalking me. She explained she sent this e-mail to determine whether the recipient was really Jennifer, or if it was Mr. Tanner pretending to be Jennifer, which was to me very creepy. Lori admitted that her husband, Joseph, had sent an October 18, 2004, e-mail falsely reporting that minor C. had been killed in Hurricane Katrina. She said the false e-mails were deliberately sent to see whether they would get back to Roger.

As to the accuracy of her financial reporting at the prior hearing, Lori testified that she and Joseph Gattuso reported his $122,000 salary from Brandeis Associates and his $17,000 military pension on their joint tax return for 2005. The return did not reflect any financial information for their horse breeding operation because the horses generated a deficit.

Roger testified he received Loris e-mails from his friend, Jennifer Rhodes, who was interested in horses.^[5] Roger said he did not ask Rhodes to send Lori any e-mails and did not obtain the e-mails as they were transmitted. Roger said he obtained the first e-mail, about minor C.s alleged death, on October 19. Rhodes first called him about the content of that e-mail and then she forwarded it to him. Roger said he was devastated by the news and attempted to verify the truth of the e-mail by filing a missing persons report with Hurricane Katrina social workers. Roger said the e-mail was believable because a 2004 e-mail from Lori stated that minor C. was going to live with her birth father whether Roger agreed or not. Roger later learned that the birth father lived in Louisiana.

Roger believed the e-mails about C.s alleged death and about Loris employment were true and that is the reason he filed the motion to set aside the prior attorney fees order. He also filed the motion because at the prior hearing there were false statements about [J.s] expenses, those ran up our attorney fees. During examination by the court, Roger said he had no idea that Rhodes was communicating with Lori in the two years of his friendship with Rhodes. Roger said Rhodes did not own horses at the time of the instant hearing but her family had owned horses.

Upon further examination, Lori testified that Roger was subject to a March 10, 2002, court order precluding him from contacting her. After the September 2005 court hearing, Lori believed Rhodes might be Roger himself or someone acting on his behalf. She came to that conclusion after listening to the telephone interview for the September court hearing where I heard many of the questions Ms. Rhodes asked repeated by Mr. Tanners attorney in court. One of the e-mails invited Lori to lunch in Arizona and Lori thought Rhodes was actually Roger and that he might be trying to set her up to get killed. Lori believed Rhodes was actually Roger or that he was using someone as a front.

As to horse breeding, Lori said her name and address were located on a restricted portion of the Shire website and that access required a code. However, her e-mail address was not located within the website. When asked why she did not ignore the e-mails from Rhodes, Lori said she wanted the court to stop Roger from stalking her and she put out false information with the hopes that he would come to court and confess that he has been violating not only state but federal statutes regarding stalking.

At the conclusion of the hearing, Loris counsel requested attorneys fees and costs in the amount of $8,500, based on the cost to my client and her husband to come out here from Maine on very short notice and the attorneys fees that I have actually incurred.

As to the motion to set aside, the court ruled from the bench and denied the order to set aside the attorney fees order because [i]t has not been shown that Mrs. Gattuso has money ... even though the e-mails were sent or has income, indeed, she does not have income. The court took the request for attorney fees and costs under submission and offered his reasoning as to the case. He noted in pertinent part: (1) Rogers statements about his relationship with Rhodes and his knowledge of the e-mails were not credible; (2) the transmission of the e-mail regarding the purported death of minor C. was a very cruel thing; (3) Loris statement about getting a new job did not amount to bad faith because [s]he had a belief that Mr. Tanner was somehow garnering this information; and (4) Roger should not be trying to contact Lori but at the same time he should not be subject to cruel conduct that ... I feel has gone on here.

Facts Elicited from the Ruling of March 23, 2006

The following facts are taken substantially verbatim from the ruling incorporated by reference into the superior courts minute order of March 23, 2006:

Procedural and Factual Background

This matter came before the Court for a hearing on March 8, 2006, on the issues of setting aside the prior attorneys fees order and modification of child support from the below guideline amount of $400 per month to $0. ... After presentation of evidence, the Court denied Respondents [Rogers] motion to set aside attorneys fees based on fraud and for modification of child support. The Court took under submission the issue of further attorneys fees for this proceeding which was raised by each party under the theories of FC 2030 and FC 271.

The evidence at the motion centered on a very unusual set of facts that developed due to e-mails between the parties. By way of background, Mrs. Gattuso [Lori] has sole legal and physical custody of the ... 3 adopted children, none of whom live with Mrs. Gattuso. All children have substantial emotional and/or legal problems and are cared for by professional agencies. A prior order of the court is that Mr. Tanner have no contact with Mrs. Gattuso. Lengthy previous litigation led to another order by the Court for substantial attorneys fees to be paid by Mr. Tanner in the custody battle. The attorneys fees order was based on FC 2030 and, alternatively, FC 271.

Evidence Presented at the Hearing

The testimony at the current motion revealed that Mrs. Gattuso believed a woman who had been e-mailing her regarding some horses she was raising was, in reality, either Mr. Tanner or a person Mr. Tanner was using to communicate with her against the Court order. Therefore, Mrs. Gattuso and her husband wrote several false and misleading e-mails to this alleged woman indicating that Mrs. Gattuso had received a very high paying job and was making an extraordinary income. In addition, Mr. Gattuso wrote an e-mail to the woman stating the false fact that one of the children of Mr. Tanner and Mrs. Gattuso (who had been the subject of the previous litigation) had been killed in Hurricane Katrina. The communication detailed the identification of the childs body.

Mr. Tanner testified that he became aware of the communications between the Gattusos and the woman because this woman merely happens to be an acquaintance of his, and she had no knowledge that Mrs. Gattuso was his former wife. Mr. Tanner testified that it wasnt until the news of the death of the child came in the e-mail that the woman told him of all the e-mails, including the one about the high-paying job. Based only [on] the e-mail regarding Mrs. Gattusos high paying job, Mr. Tanner brought the present motion to set aside the prior attorneys fees order and to modify child support.

Attorneys Fees and Costs

Both parties have requested attorneys fees and costs: [Rogers counsel] Mr. Stein is requesting $2,500 for the motion and the Gattusos are requesting $8,500 for attorneys fees and the costs of attending the motion, as they live out of state. Based on the limited statements regarding fees and costs presented at the hearing, the Court finds that fees and costs in the amount of $10,000 were reasonably expended by both parties ($2,500 for Mr. Tanner & $7,500 for Mrs. Gattuso.) As stated at the hearing, the Court finds that Mr. Tanner is not credible in his statement that he did not know the woman sending the e-mails until a later time. Also as stated at the hearing, the actions of the Gattusos in making a false and misleading statement about the death of the Tanner/Gattuso child were extremely inappropriate under any scenario and, despite his lack of custody rights at this time, constituted a cruel treatment of Mr. Tanner. [] ... []

This Court finds, after analysis of the Keech factors that each party has the ability to pay and the need to receive $5,000. Therefore, each party is responsible for $5,000 in fees, which is of the total fees allotted for the hearing. Since Mr. Tanners fees were $2,500, he is to pay Mrs. Gattuso $2,500 within 30 days of the date of mailing of the ruling.

Family Code Section 271 provides that the Court may base an award of attorneys fees and costs as a sanction upon a party 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 reduce the cost of litigation by encouraging cooperation between the parties and attorneys. There is no consideration of need of the receiving party for such an award. The Court has taken into consideration all evidence concerning the parties incomes, assets and liabilities and hereby finds that an award under this section is warranted and that the award made herein does not impose an unreasonable financial burden on Petitioner, given all the facts and circumstances of her economic position. As an alternative theory for the fees ordered above pursuant to FC 2030, the Court orders the attorneys fees pursuant to section 271 based upon the description of the litigation conduct by both parties as described above.

DISCUSSION

I.

THE TRIAL COURT DID NOT ERRONEOUSLY AWARD SANCTIONS

PURSUANT TO FAMILY CODE SECTION 271 IN ITS RULINGS OF

SEPTEMBER 13, 2005 AND MARCH 23, 2006

Roger contends the award of sanctions under section 271 in its rulings of September 13, 2005 and March 23, 2006 constituted error.

A. Applicable Law

Section 271 states:

(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.

Somewhere along the line, litigation must cease. (In re Marriage of Crook (1992) 2 Cal.App.4th 1606, 1613.) Attorney fees are proper where a spouse engages in conduct that frustrates a settlement and increases the cost of litigation. (In re Marriage of Mason (1996) 46 Cal.App.4th 1025, 1028.) A motion for attorney fees and costs in a dissolution proceeding is left to the sound discretion of the trial court. In the absence of a clear showing of abuse, its determination will not be disturbed on appeal. The 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 made. (In re Marriage of Hublou (1991) 231 Cal.App.3d 956, 965.)

While fees and costs imposed under section 271 are in the nature of a sanction, the requisite wrongs are limited. Section 271 does not require that the conduct be frivolous or taken solely for the purpose of delay. Rather, the statute is aimed at conduct that furthers or frustrates settlement of family law litigation and at reduction of litigation cost. The statute contemplates that sanctions be assessed at the end of the lawsuit, when the extent and severity of the partys bad conduct can be judged. (In re Marriage of Freeman (2005) 132 Cal.App.4th 1, 6.) Expressed another way, the statute simply vests family law courts with an additional goal 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 (1993) 19 Cal.App.4th 1102, 1110 [construing predecessor statute].)

B. September 13, 2005 Ruling

Roger contends he had no proper notice under section 271, subdivision (b) and that reversal is required. He specifically argues:

As a sanction, Family Code Section 271 awards are subject to the same due process prerequisites governing other sanctionable conduct and shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and an opportunity for that party to be heard. Family Code Section 271(b); In re the Marriage of Petropoulos (2001) 91 C.A.4[th] 161, 179.

In its ruling of September 13, 2005 the trial court refers to the description of the litigation conduct in the mothers OSC while the court does not specify what OSC. While the court does not specify what OSC it refers to the only OSC seeking Family Code Section 271 sanctions is the one filed by respondent on October 26, 2004 and so Appellant will refer to that OSC only. [] ... []

Respondents request for Family Code Section 271 sanctions are not set out on the face of the OSC and are first mentioned on page 4 of the OSC. On page 3 of the OSC #9 other relief say See attachment one. Attachment one states at #2a The respondent Roger Tanner be order to pay: [] (a) petitioner Lori (Tanner) Gattusos attorney fees under Family Code Sections 271, 230 and any other applicable statutes.

Attachment Two ... set forth the declaration of the respondent herein and requests a finding that appellant molested the minor children and should be punished therefore with, among other things, Family Code Section 271 sanctions. There is absolutely no mention of the so called conduct found by the trial in its ruling of September 13, 2005 namely that father had delayed the hearings with the expert and this caused multiple hearings.

The trial court specifically made no finding that Appellant molested the minor children and that courts ruling refers to the description of litigation conduct in the case contained in the mothers OSC.

The trial court mentions conduct such as Appellant delaying appointments with the expert witness and multiple hearings. Such conduct is not alleged in the OSC of October 26, 2004 and therefore Appellant had no notice that sanctions were being sought based on such allegations.

The effect of the ruling of the trial court relating to the Family Code Section 271 sanctions prevented Appellant from having proper notice under Family Code Section 271(b) and must therefore be reversed.

Questions regarding notice and hearing require an appellate court to interpret section 271. Those assertions therefore present a question of law for our independent review. (In re Marriage of Petropoulos (2001)91 Cal.App.4th 161, 177-178.) In her application for order to show cause filed October 26, 2004, Lori prayed for reasonable attorney fees and actual costs and other relief. The request for other relief referenced Attachment One to the application for order and facts in support of relief referenced Attachment Two to the application for order. In Attachment One, Lori prayed that Roger be ordered to pay Petitioner Lori (Tanner) Gattusos attorney fees under Family Code, Sections 271, 2030, and any other applicable statu[t]es. In Attachment Two, Lori alleged:

The children have accused the Respondent, Mr. Tanner, of molesting them. Therefore, he should not be allowed legal custody, visitation, or any contact with them.

... The children have expressed to their attorney Larry Sires and their therapists that they do no[t] wish to see the Respondent or talk with him. They are all very scared of the Respondent because he has threatened to beat them, kidnap them, and/or kill them. [] ... []

I am requesting that the court order the Respondent to pay my attorney fees and court costs, and expense relating to the children which were a direct result of the Respondents actions. The Respondents molestation of the children has caused them to have severe emotional problems which resulted in [C.] being institutionalized in various mental facilities, [J.] being incarcerated, and [A.] being sexually abused by his older brother. If the Respondent had not molested the children, I would not have incurred all of these expenses.

Therefore, I respectfully request that the court order the Respondent to pay the expenses I have had to incur listed in Attachment One according to proof at the time of the hearing which are a direct result of his molestation of the children.

In view of the foregoing allegations, this record clearly demonstrates that Roger had adequate notice that he might be sanctioned under section 271. (See In re Marriage of Petropoulos, supra, 91 Cal.App.4th at p. 178.) Rogers claim of lack of notice may be more properly characterized as a challenge to the adequacy of the trial courts ruling of September 13, 2005. He maintains the trial court relied on factorssuch as the delaying of appointments with the expert witness and multiple hearingsthat were not alleged in Loris application for OSC filed October 26, 2004.

Attachment One of Loris application specifically included a request for a statement of decision regarding all controverted issues in accordance with Code of Civil Procedure, Section 632. Although the ruling of September 13, 2005, was not labeled a statement of decision, it was the equivalent of a statement of decision because it provided an explanation of the factual and legal basis for the courts decision. (Onofrio v. Rice (1997) 55 Cal.App.4th 413, 425.) A litigant who fails to bring to the attention of the trial court alleged deficiencies in the courts statement of decision waives the right to complain of such errors on appeal, thereby allowing the appellate court to make implied findings in favor of the prevailing party. Under California law, it is unfair to allow counsel to lull the trial court and opposing counsel into believing the statement of decision was acceptable and thereafter take advantage of an error on appeal although it could have been corrected at trial. The Supreme Court has held it is clearly unproductive to deprive the trial court of the opportunity to correct such a purported defect by allowing a litigant to raise the claimed error for the first time on appeal. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1132, 1137-1138; Rebney v. Wells Fargo Bank (1991) 232 Cal.App.3d 1344, 1349-1350.)

Nothing in the instant record suggests that Roger gave the trial court an opportunity to correct the claimed defects in its ruling of September 13, 2005. Having failed to do so at or after the rendition of the ruling, he cannot fairly be permitted to complain of them now. (Rebney v. Wells Fargo Bank, supra, 232 Cal.App.3d at p. 1350.)

B. March 23, 2006 Ruling

Appellant further contends the trial court erroneously awarded sanctions under section 271 in its ruling of March 23, 2006.

He specifically argues:

Appellants notice of motion filed herein on February 2, 2006 does not request sanctions pursuant to Family Code Section 271 and the response of respondent states no basis for an award of sanctions pursuant to Family Code Section 271. Simply saying you want a sanction award pursuant to Family Code Section 271 does not provide adequate notice for a hearing.

The trial court fails to state what in sanctions are pursuant to Family Code Section 271 and proper findings were not made to justify such an order and that portion of the ruling made herein on March 23, 2006 must therefore be set aside and remanded to the trial court at the very least to clarify its ruling.

On February 2, 2006, Roger filed a motion to set aside the prior order for attorney fees, alleging Lori was working and earning a substantial salary prior to the hearing of September 2005, and that she failed deliberately to disclose this information to respondent or