Opinion
G052559
09-20-2017
In re Marriage of CHRISTY and STEPHEN MADIGAN. STEPHEN MADIGAN, Appellant, v. CHRISTY MADIGAN, Respondent.
Masson & Fatini, Richard E. Masson and Susan M. Masson for Appellant. Rallo Law Firm, Thomas C. Rallo, Arthur J. Travieso and Tin Kim Westen for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 12D006259) OPINION Appeal from an order of the Superior Court of Orange County, Clay M. Smith, Judge. Affirmed. Masson & Fatini, Richard E. Masson and Susan M. Masson for Appellant. Rallo Law Firm, Thomas C. Rallo, Arthur J. Travieso and Tin Kim Westen for Respondent.
* * *
Stephen Madigan (Stephen) appeals the trial court's order denying his request for further attorney fees and sanctions against his former wife, Christy Madigan (Christy). The only question on appeal is whether the court abused its discretion under the relevant provisions of the Family Code. Stephen's appeal is essentially no more than a request for us to second-guess the court's conclusions. Because he has no colorable argument that the court abused its discretion, we affirm the order.
Subsequent statutory references are to the Family Code unless otherwise indicated.
I
FACTS
We do not have a full history of the case in the record before us, and because of the limited issues on appeal, we need not delve so deep in any event. Given the issues on appeal and the constrained scope of our review, we include only a limited recitation of the facts.
The parties married in January 1999 and separated on June 7, 2012. They have three minor children.
Christy filed for divorce in June 2012. At the same time, she filed a request for a domestic violence restraining order (DVRO). It was temporarily granted, pending a hearing. Christy's accompanying declaration stated that since she had informed Stephen she wanted a divorce, she no longer felt safe due to his behavior, which included following and stalking her, intimidating and embarrassing her in a public place, and making false accusations to the police. Stephen denied the accusations and submitted evidence on his own behalf.
In August, the parties entered into a temporary custody stipulation (the 2012 stipulation) and the temporary restraining order was allowed to expire without a finding of domestic violence. Stephen contends, however, that "the stigma of the allegations against Stephen affected the entirety of this matter." He offers no record references to support this argument.
The 2012 stipulation appointed an Evidence Code section 730 custody evaluator, specifically, Dr. Miriam Galindo. The next hearing was set for October 25, and Christy agreed to pay Stephen $6,000 for attorney fees and $10,000 to set up new housing. In the meantime, Stephen was to have custody every other weekend, and Tuesday after school until 8:00 p.m.
The custody hearing was continued a number of times. Stephen blames this on Galindo, and Christy states the delays were due to Stephen's failure to attend scheduled appointments and to be cooperative with the evaluation process. In July 2013, the court bifurcated custody from the other issues. Stephen states he was "bound to a stipulation agreed to as a result of a false DVRO, and a defective child custody evaluation order."
In February 2013, Galindo sent a letter to counsel stating "one of the parties is presenting the belief that I was prejudicial . . . . Although I do not agree with the veracity of these statements, I am concerned about the perception of bias." She stated she was recusing herself and returning the check for $5,800 that Christy had written for the evaluation. In October 2014, however, the court reappointed Galindo.
Shortly thereafter, Stephen moved to disqualify Galindo and exclude several preliminary reports she had already submitted. He claimed she was biased, lacked impartiality, and had "created a direct conflict" with Stephen. The court denied the motion. Galindo's final report (there were several interim reports) was submitted in February 2015. The final report recommended modified joint legal custody and maintaining the physical custody schedule pursuant to the 2012 stipulation. Galindo's report also detailed numerous ways in which Stephen had failed to cooperate with the evaluation, including seeking to involve his attorneys in scheduling matters, despite the evaluator's request to the contrary; refusing to participate in an update of Galindo's initial report; failing to follow up with scheduling and return calls. The report stated that Stephen presented himself as both "passive-receptive and aggressive-argumentative."
At some point prior to trial, Christy paid approximately $13,500 toward Stephen's first attorney's fees, and $77,000 towards the fees charged by his second attorneys. She also paid $6,800 toward Galindo's fees.
The relative incomes of both parties is also relevant to this motion. Stephen's income and expense declaration states that his income was $4200 per month at the time of trial, based primarily on his salary. Christy's declaration stated that she made $12 an hour working part time (14 to 22 hours per week) but she also had income from a trust of approximately $19,000 per month and gross distributions from an interest in a marina of $2,526 per month. She also had assets of approximately $5.5 million as preferred shares in a real estate investment trust. Suffice to say that Christy had substantially more personal wealth than Stephen. The court eventually based its child support order on a finding, not contested here, that Christy had an income of $22,317 per month. Starting in December 2012, Christy had been paying Stephen $5,000 a month in support.
Stephen makes numerous factual contentions regarding Christy's income that are not supported by references to the record. We disregard them. (Nwosu v. Uba (2004)122 Cal.App.4th 1229, 1246.) --------
Eventually the matter proceeded to trial and the court issued its order in November 2015. Joint legal custody of the children was ordered, and the visitation schedule, with a modification to allow Stephen an overnight midweek, was also ordered. Christy was ordered to pay Stephen child support of $991 per month. She was also ordered to pay Stephen spousal support of $5,000 per month until his death or remarriage.
The issue of attorney fees was reserved until after trial. Stephen incurred attorney fees in excess of $227,000, and he had employed two sets of attorneys over the course of the matter; his current attorneys (Masson & Fatini) requested $80,000 from Christy, and his former attorney (Manfredo E. Lespier) requested $21,565.
With respect to Masson & Fantini, the court's order stated, in pertinent part: "As the Court has previously expressed on the record, this case represents the very unfortunate circumstances in which the litigation was needlessly excessive. In fact, the record suggests that the parties collectively spent in excess of $600,000.
"Of course, [Christy] blames [Stephen's] aggressive and uncompromising approach for causing the case to get out of control. [Stephen], of course, blames [Christy], the child custody evaluator, the court, and frankly anyone other than himself for the excessive cost of this case. . . .
"Early in the case, [Christy] filed a request for a [DVRO]. The basis for the order was thin and, ultimately, [Christy] agreed to allow the temporary restraining order to expire and not pursue the order after hearing. But the damage was done. [Stephen] felt badly aggrieved and, as a result, he made no serious efforts to compromise and resolve the case. He needed to go to trial to prove the falsity of the domestic violence allegations. This approach to the litigation was particularly inappropriate in light of the fact that the domestic violence proceeding was resolved two months after it was filed and was resolved in his favor.
"Another factor in [Stephen's] unfortunate approach to this case was his reaction to the report of the child custody evaluator, Dr. Miriam Galindo. Dr. Galindo had some totally appropriate and absolutely on-target critique of [Stephen] and recommended that he take co-parenting classes and anger management counselling. Again, his reaction was to refuse to yield in any way and to push the matter to trial to demonstrate the error of Dr. Galindo's report. Of course, he failed to do so and the record demonstrates that Dr. Galindo's assessment was absolutely correct. Her proposed parenting plan was very reasonable and her recommended counselling for [Stephen] was indispensable.
"[Stephen's] reaction to the entirely appropriate evaluation report was one of intransigence and belligerence. In this process, [Stephen] became very adversarial with Dr. Galindo. His conduct seemed calculated to antagonize and offend Dr. Galindo that [Christy] argued, with some degree of persuasiveness, that [Stephen] had embarked on a course of conduct specifically intended to compromise Dr. Galindo's objectivity so that he could successfully disqualify her. Fortunately, her professionalism enabled her to maintain her objectivity throughout the process.
"The real tragedy here is that if [Stephen] had taken a reasonable approach by putting in place the recommended parenting plan (or something reasonably close thereto) and promptly completely the anger management and co-parenting programs, he would have been in an excellent position to seek a greater time-share with the children years ago. Instead, we are just now getting started on the steps which are precedent to such changes in the parenting plan."
The court also identified the conduct of Stephen's attorney as "symbolic of [his] approach to this case," choosing to argue "with the Court (not to the Court), refusing to follow the Court's direction to conclude the argument, and being confrontational to the point that the Court had to even consider the extraordinary remedy of a finding of direct contempt . . . ." The court characterized Stephen's general approach as one of "inflexibility and confrontation . . . utterly at odds with the express and overriding policy of family law to promote settlement" and reduce costs. The court, therefore, concluded that a substantial part "of the fees incurred by both parties was unnecessary and flowed directly from [Stephen's] intransigence and insistence on proving the falsity of the domestic violence allegations (long ago resolved in his favor) and the error of Dr. Galindo's recommendations (which . . . was in fact borne out by the evidence)."
With respect to economic factors, the court found Christy's resources were clearly greater than Stephen's, however, after the payment of child support ($991 per month) and spousal support ($5,000) their net spendable incomes were "relatively close." Christy had $325,000 in debts whereas Stephen had approximately $172,000. The court determined that neither party had appreciable amounts of cash or liquid assets. While Christy owned the real estate trust stock, it was the primary source of her income, and forcing her to sell it would compromise her ability to meet her other obligations, including child and spousal support. The DissoMaster computation completed at the time of trial reflected Stephen's net spendable income was $4,049 while Christy's was $4,376.
The court also noted it had already attempted to balance the needs and resources of the parties. Christy had already paid $77,000 in attorney fees, which "should have been more than sufficient to conclude this case." Accordingly, the court declined to order Christy to contribute further to Masson & Fatini's fees.
With respect to attorney Lespier, the court noted the $25,000 he sought was in addition to $13,500 already paid by Christy on Stephen's behalf. Lespier's services were primarily to oppose the restraining order, which was successfully concluded in Stephen's favor. All relevant factors considered, the court ordered Christy to make an additional contribution of $7,000.
Each party requested sanctions against the other pursuant to section 271. The court found Christy's conduct did not meet the standard to impose sanctions. The court also found that Stephen's conduct did, but to impose sanctions would constitute an unreasonable financial burden.
Stephen now appeals.
II
DISCUSSION
Standard of Review and Relevant Law
With the exception of Stephen's request for sanctions, which we discuss separately below, the relevant statute here is section 2030. Section 2030, subdivision (a)(1), states that to ensure equal access to representation, the court may require, based on income and needs assessments, one party in a dissolution proceeding to pay the other party's "reasonably necessary" attorney fees.
Section 2030, subdivision (a)(2), states: "When a request for attorney's fees and costs is made, the court shall make findings on whether an award of attorney's fees and costs under this section is appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay for legal representation of both parties. If the findings demonstrate disparity in access and ability to pay, the court shall make an order awarding attorney's fees and costs."
In ruling on a request for attorney fees under section 2030, the court looks to section 2032, subdivision (a), which states an award may be made "where the making of the award, and the amount of the award, are just and reasonable under the relative circumstances of the respective parties." (In re Marriage of Sharples (2014) 223 Cal.App.4th 160, 164-165.) "In determining what is just and reasonable under the relative circumstances, the court shall take into consideration the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately . . . ." (§ 2032, subd. (b).)
Courts have "considerable latitude in fashioning or denying an attorney fees award." (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1313.) "[N]o particular language is required in an order awarding attorney fees under sections 2030 and 2032, the record (including, but not limited, to the order itself), must reflect an actual exercise of discretion and a consideration of the statutory factors in the exercise of that discretion." (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 254.)
Because attorney fees are an exercise of the court's discretion, our review on appeal is for an abuse of that discretion. We may only overturn the family court's decision if no judge could reasonably have made it. (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 406.)
Excessive Litigation
One of the factors pertinent to an award of attorney fees is the conduct of party seeking fees during litigation. (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1167.) The court set forth an extensive discussion of Stephen's conduct and explained how his conduct had prolonged the case and increased his own fees and costs. As the court noted, "[Stephen], of course, blames [Christy], the child custody evaluator, the court, and frankly anyone other than himself for the excessive cost of this case. . . ."
Nothing has changed on appeal. While paying lip service to the standard of review, Stephen seeks to relitigate his conduct as far back as the beginning of the case and the DVRO in order to justify the $227,000 in attorney fees he incurred. He continues to insist that the temporary order had a "ripple effect" on the entire case. He provides no record citations or evidence to support this assertion, and it was rejected by the trial court. Rather than creating any tangible legal effect, the only impact of the short-lived order was on Stephen's determination to fight to prove the allegations were false long after the allegations became legally irrelevant.
Stephen also argues it was not he, but Christy, who refused to settle; that Christy was at fault for refusing to significantly deviate from the 2012 stipulation (which Stephen had agreed to), unless approved by Galindo; and that Galindo was responsible for delays. Were we considering this matter in a vacuum, we would parse each of these allegations individually, but given our limited scope of review, we need not do so. The trial court considered all of the same arguments Stephen is offering here, and rejected them; what he fails to do is demonstrate why the trial court's findings amount to an abuse of discretion as a matter of law.
He does offer a legal argument, albeit an ill-conceived one, with respect to the court's comments about the conduct of his counsel, including the tendency to argue "with the Court (not to the Court), refusing to follow the Court's direction to conclude the argument, and being confrontational to the point that the Court had to even consider the extraordinary remedy of a finding of direct contempt . . . ." Stephen argues counsel's conduct is an inappropriate basis for a finding under section 2030. What Stephen omits, however, is that the court's comments about the conduct of counsel were a direct reflection "symbolic of [Stephen's] approach to this case." Therefore, the court did not deny additional fees based on the conduct of counsel, but based on Stephen's tactics as reflected by counsel's overall approach. This argument is without merit.
Overall, the court characterized Stephen's general approach as one of "inflexibility and confrontation . . . utterly at odds with the express and overriding policy of family law to promote settlement" and reduce costs. It concluded a substantial part of both party's fees were "unnecessary and flowed directly from [Stephen's] intransigence and insistence on proving the falsity of the domestic violence allegations (long ago resolved in his favor) and the error of Dr. Galindo's recommendations (which . . . was in fact borne out by the evidence)."
Stephen presents nothing to establish the court's findings were beyond the bounds of reason, so far astray that no judge could reasonably enter the order. (In re Marriage of Dietz, supra, 176 Cal.App.4th at p. 406.) The court's determinations with respect to Stephen's conduct were not, accordingly, an abuse of discretion.
Disparity in Incomes
The court based its determination regarding the parties' incomes on the factual findings it made at the end of the trial: Stephen's income was $4,038 per month, and that Christy's was $22,317 per month. The court also concluded that Stephen's net spendable income was $4,049 while Christy's was $4,376.
Christy paid costs of $6,800 for the initial child custody evaluation. She also claims to have paid the majority costs of $20,000 for Galindo's services, but provides no record reference on this point. Further, as noted above, Christy made significant contributions to Stephen's attorney fees while the case was pending.
"The trial court is to decide 'what is just and reasonable under the relative circumstances' [citation], taking into consideration 'the need for the award to enable each party, to the extent practical, to have sufficient financial resources to present the party's case adequately . . . . The fact that the party requesting an award of attorney's fees and costs has resources . . . is not itself a bar to an order that the other party pay part or all of the fees and costs requested. Financial resources are only one factor for the court to consider in determining how to apportion the overall cost of the litigation equitably between the parties under their relative circumstances' [citation]." (In re Marriage of Terry (2000) 80 Cal.App.4th 921, 933.)
Stephen argues the court abused its discretion by considering the parties' spendable incomes rather than Christy's total assets in assessing need. Indeed, the court should properly consider assets, not merely income. (In re Marriage of Drake, supra, 53 Cal.App.4th at p. 1167.) But the record does not reflect that the court did not consider Christy's other assets. Indeed, it considered her liquid assets along with her debt, concluding it would be unwise to force her to sell the stock she relied upon as her primary source of income and payment of her spousal and child support obligations. Thus, contrary to Stephen's contention, the court did consider Christy's assets, not just her income. How to consider the assets was within the court's discretion.
Further, the record reflects an excess of income over expenses each month for Stephen, considerable prior contributions by Christy to Stephen's legal fees, and that many costs of the case were borne by Christy. Stephen claims "Christy had no incentive to resolve this matter," but the court found that it was not Christy who litigated and argued every point into the ground - it was Stephen. As financial resources are only one factor to consider (§ 2032, subd. (b)), given the court's findings with respect to Stephen's conduct of the case, we find no abuse of discretion with respect to the court's overall decision to deny Stephen additional attorney fees.
Motion for Sanctions
The court denied both Stephen and Christy's motions for sanctions pursuant to section 271. Section 271, subdivision (a), states: "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." As with all of the arguments in this appeal, we review an order with respect to sanctions under section 271 for abuse of discretion. "'The trial court's order will be upheld on appeal unless the reviewing court, "considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order." [Citation.]' [Citation.]" (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1152.)
As set forth in the trial court, Stephen's request for sanctions of $20,000 was based on the following: an issue regarding Stephen failing to appear at one of the trial dates, an incident where Christy's attorney allegedly ripped up a proposed settlement agreement, and the lack of good faith settlement attempts. These were supported by counsel's declaration and no further evidence.
On appeal, Stephen now asserts that sanctions should have been granted for a host of additional reasons that were never raised to the trial court. We do not consider arguments raised for the first time on appeal. (Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131.) The reason for this rule is that a party should bring errors to the attention of the trial court while there is an opportunity to correct them; if the party does not do so, he or she forfeits any objection to the error. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264.) The exception to this rule is that pure matters of law can be ruled on by the appellate court. (Gonzalez, at p. 1131.) But this is not a pure question of law; awarding sanctions under section 271 is an exercise of discretion, and accordingly all arguments about the application of that section must be presented to the trial court in the first instance.
With respect to Stephen's remaining arguments, we find no abuse of discretion. The trial court, based on the totality of the facts, concluded that Stephen, not Christy, was largely responsible for the failure to settle the matter. As discussed above, this was an entirely reasonable conclusion based on the facts set forth in the court's well-reasoned order. Denying Stephen's request, accordingly, was an entirely proper exercise of discretion.
III
DISPOSITION
The order is affirmed. Respondent is entitled to her costs on appeal.
MOORE, ACTING P. J. WE CONCUR: ARONSON, J. FYBEL, J.