Opinion
B185811
4-24-2007
EUGENE STURMAN, Plaintiff and Respondent, v. PATRICIA OSHITA, Appellant and Respondent.
Patricia Oshita, in pro. per., for Appellant and Respondent. Victor & Victor and Robert M. Victor for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appellant Patricia Koch-Oshita appeals from an award of attorneys fees in the nature of a sanction entered in the dissolution action of her marriage to respondent Eugene Sturman. We conclude that the trial court did not abuse its discretion in ordering sanctions. Koch-Oshita also appeals from an order requiring her to pay three-quarters of the fees incurred by counsel appointed to represent the parties child. Koch-Oshita raises no cognizable grounds for reversing this order. We will therefore affirm the order making both of these awards.
FACTUAL AND PROCEDURAL BACKGROUND
Koch-Oshita and Sturman were married in October 2000. They separated in 2003. A major point of contention in the dissolution of their marriage is the custody of Tien, a child adopted by Koch-Oshita six months before the marriage. Sturman sought visitation with Tien. Koch-Oshita opposed such visitation, and challenged it at every opportunity.
Koch-Oshita opposed Sturmans initial request for visitation. Sturman was required to spend fees associated with a five-day hearing in order to ultimately obtain an order for visitation.
Koch-Oshita failed to appear at the first scheduled visitation, claiming that she need not comply as the courts order was not in writing. Sturman was required to obtain an ex parte order compelling Koch-Oshita to attend the court-ordered visitation.
Koch-Oshita again refused to attend the court-ordered visitation. Sturman was required to obtain a second ex parte order compelling her attendance.
Koch-Oshita appeared at visitation, but refused to allow Tien to visit with Sturman unless she could have her attorneys law clerk tape record the visit. Sturman was required to obtain a third ex parte order to compel the visitation without observation. The court then set an order to show cause, in order to guarantee Koch-Oshita was personally served with its order; Sturman incurred additional fees in connection with this hearing.
Koch-Oshita then filed a series of three ex parte applications, seeking that the visitation be suspended and that she be permitted to have an observer present at the visits. The ex parte applications were denied. Sturman was required to expend additional attorneys fees opposing these applications.
Koch-Oshita also refused to comply with the courts order for an interactive session between Sturman and Tien. Sturman was required to expend attorneys fees in connection with two further hearings in order to obtain Koch-Oshitas compliance.
Subsequently, Koch-Oshita issued five deposition subpoenas to Sturmans financial institutions. Sturmans counsel contacted the deposition officer listed in the subpoenas, and was told that this individual had not issued the subpoenas and had not authorized his name to be placed on them. Koch-Oshita did not respond when Sturmans counsel asked her to confirm that the subpoenas had been withdrawn. Sturmans counsel incurred additional fees contacting the financial institutions to confirm that the subpoenas were either not served or withdrawn.
The issue of the allocation of attorneys fees between Sturman and Koch-Oshita was to be heard on May 18, 2005. Koch-Oshita had filed an income and expense statement which the court found to be inadequate. The court ordered Koch-Oshita to file an updated income and expense statement that complied with the law by May 24, 2005, and continued the issue of fee allocation.
On May 24, 2005 and May 25, 2005, Koch-Oshita filed supplements to her income and expense statement, both of which were inadequate to cure the deficiencies in her initial statement. The court explained, "The income and expense information provided by [Kosh-Oshita] is incomplete and confusing. The current submissions and the prior Income and Expense declaration and financial information provided by [Koch-Oshita] are merely estimates with no supporting documentation. The documents submitted have done nothing to explain the recorded income [Koch-Oshita] is shown by [Sturman] to have received for the year of 2004 (stated by [Sturman] to be greater than $450,000) or to document her approximation of $5,000 per month that she contends is earned by her law practice. [Koch-Oshita] has still failed to submit her tax returns for the years 2003 and 2004 for herself and her law practice as are required by [statute and the Rules of Court]."
On June 20, 2005, Sturman filed a request for an award of attorneys fees under Family Code section 271, based on Koch-Oshitas violation of, and refusal to comply with, numerous court orders.
The request also referenced Code of Civil Procedure section 128.6, but the trial courts award of fees was not made pursuant to that section.
A hearing was held on June 21, 2005. The first issue for determination was whether Sturman could progress from monitored to unmonitored visitation. After argument, the trial court concluded no monitor was necessary. As the court stated its ruling, Koch-Oshita interrupted in order to file a statement of disqualification against the trial court under Code of Civil Procedure section 170.1, for bias. The trial court halted proceedings.
The court stated that "monitoring has been a disaster for many reasons, but primarily because [Koch-Oshita] has created a very difficult situation for any monitor and for herself as well as the minor child."
The next day, after research, the court struck the statement of disqualification as untimely and disclosing no legal grounds for disqualification. (Code Civ. Proc., § 170.4, subd. (b).) The court ordered unmonitored visitation for Sturman.
At a hearing on August 16, 2005, the pattern repeated. After the court heard argument and entered a ruling adverse to Koch-Oshita, she filed a second statement of disqualification. The court took a break to research the issue, and subsequently struck the request as untimely and not raising a legal basis for disqualification.
Apparently, Koch-Oshita had already filed the statement with the filing clerk, but chose not to present it to the trial court until the court had ruled against her.
Later in that hearing, the court reached the issue of the allocation of attorneys fees. The court also considered the costs of an expert evaluation to be ordered under Evidence Code section 730. Sturmans counsel argued at length for an award of fees, based on Koch-Oshitas repeated baseless attempts to prevent the case from proceeding. Sturmans counsel argued that he had billed in excess of $57,000 solely in order to respond to Koch-Oshitas bad faith tactics. Sturmans counsel noted, in passing, that Koch-Oshita had still failed to submit the necessary financial information as ordered.
Tiens counsel indicated that, since the time of the last order regarding payment of her fees, she had incurred $5,148 in fees. Tiens counsel argued that Koch-Oshita should be responsible for the bulk of her fees, as Koch-Oshita caused the fees by filing repeated ex parte applications and untimely statements of disqualification.
Koch-Oshita responded, taking the position that every action she had taken had a legitimate basis. As to Tiens counsel, Koch-Oshita simply argued that she need not pay any further fees as she did not believe Tiens counsel had properly performed her duties. As to the costs of the expert evaluation, Koch-Oshita said that she "cant afford to advance anything." Koch-Oshita agreed that she had not filed the necessary financial documents. She represented that she has incurred over $185,000 in litigation expenses and had no money left.
Koch-Oshita argued that she was so drained from transporting Tien to visits, she did not have time to prepare her tax returns.
The court concluded that Koch-Oshita should be required to pay a portion of Sturmans attorneys fees. The court stated, "I dont think there is probably a case thats more of a model, in my view, for [Family Code section] 271 sanctions. In this case, there has been, in my view, grounds, without getting into detail, the record speaks for itself." With respect to Koch-Oshitas ability to pay, the court stated, "Ability to pay attorneys fees under [Family Code section] 271 is not an issue, its by way of a sanction and I believe that in this case [Sturmans] fees should be paid 50 percent by [Koch-Oshita] in the amount of $28,500.00 based upon what I consider to be behavior that falls squarely within [Family Code section] 271."
As to Tiens counsels fees, the court concluded that at least three-quarters of the fees were caused by Koch-Oshitas delaying tactics, and therefore ordered Koch-Oshita to pay three-quarters of the fees or $3,861.75. The court ordered Sturman to advance the funds for the expert evaluation, stating, "I dont know that there is any grounds for, on a financial basis, to say [Koch-Oshita] at this time can afford to pay for that after payment of the minors counsels fees and the other sanctions."
On appeal, both Sturman and Koch-Oshita believe the trial court also ordered Koch-Oshita to pay half of the amount due to Tiens counsels expert. The trial courts order states no such thing. The order simply states that Sturman may choose to advance any amounts Koch-Oshita is required to pay Tiens counsel or the expert (apparently due to prior orders) and receive a dollar-for-dollar credit in the form of a judgment.
Koch-Oshita filed a timely notice of appeal.
ISSUES ON APPEAL
Koch-Oshitas brief on appeal raises numerous irrelevant issues, including her contention that Sturman engages in improper behavior on visits with Tien, and her assertion that Tiens counsels law firm engages in improper collusion with its chosen psychologists. These issues have no place in this appeal. The sole issues on appeal are (1) whether the trial court abused its discretion in its allocation to Koch-Oshita of a portion of the attorneys fees charged by Sturmans counsel and Tiens counsel and (2) whether in making the award of fees in favor of Sturman, the trial court erred by failing to (a) set forth in sufficient detail Koch-Oshitas sanctionable conduct, and (b) take into account her financial situation.
DISCUSSION
The trial court awarded attorneys fees in favor of Sturman as a sanction under Family Code section 271. That section provides, in pertinent part, "[T]he 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." We review an award under this section for abuse of discretion. (In re Marriage of Hublou (1991) 231 Cal.App.3d 956, 965.)
2. The Award of Fees in Favor of Sturman Was Sufficiently Specific.
A trial court need not detail the reasons for its award, particularly when the motion for attorneys fees puts the party on notice of the conduct for which sanctions are sought. (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970.)
Koch-Oshita challenges the sanction award on the basis that the trial courts statement that "the record speaks for itself" is an insufficient basis for an award of sanctions. We disagree. Koch-Oshita did not request a statement of decision, and Family Code section 271 imposes no requirement of a written order detailing the conduct supporting a sanctions award. Sturmans motion put Koch-Oshita on notice of the conduct for which sanctions were sought, Sturmans counsel further argued that conduct at length at the hearing. Koch-Oshita also argued at length, attempting to justify her sanctionable conduct. Koch-Oshita was well-aware of the conduct which formed the basis for the sanctions award.
It is apparent, by our recitation of the procedural history of this case, that this was an appropriate case for an award of Family Code section 271 sanctions. Koch-Oshitas conduct — refusing to comply with valid trial court orders, repeatedly raising the same challenges to the courts orders, and repeatedly attempting to disqualify the judge in response to adverse rulings — is the very antithesis of attempting to promote settlement and reduce the cost of litigation by encouraging cooperation.
3. The Trial Court Did Not Fail To Take Into Account Koch-Oshitas Financial Situation.
Family Code section 271 expressly provides that an award of attorneys fees pursuant to its terms "is in the nature of a sanction." The statute requires that, in making such an award, "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." However, the statute is also clear that "the party requesting an award of attorneys fees and costs is not required to demonstrate any financial need for the award." In assessing a partys contention "that the trial court failed to consider the financial burden of its sanction award, we indulge all reasonable inferences to uphold the trial courts order." (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 177-178.)
In this case, Koch-Oshita has the burden of establishing the trial court failed to consider the financial burden of the sanctions award. She has failed to meet this burden. It is true that the trial court stated, "Ability to pay attorneys fees under [Family Code section] 271 is not an issue, its by way of a sanction." Koch-Oshita argues this statement implies that the court failed to consider all of the financial evidence and whether the award imposed an unreasonable financial burden on her. We disagree. The courts statement is ambiguous; it just as easily could have meant that, as an award of attorneys fees under Family Code section 271 is in the nature of a sanction and not a payment to equalize the burdens between the spouses, the parties relative abilities to pay their respective attorneys is not a consideration. This is an accurate characterization of Family Code section 271.
Moreover, there is no indication that, to the extent Koch-Oshita placed financial information before the court, the court failed to consider it. Indeed, the courts later conclusion, that Koch-Oshita would not be required to contribute toward an expert evaluation in light of the sanctions imposed, suggests that the court was well-aware of Koch-Oshitas limited means. Finally, we cannot help but note that, at the time of the hearing imposing sanctions, Koch-Oshita had concededly failed to file a properly-supported income and expense statement, and that there was a vast disparity between the $ 60,000 per year Koch-Oshita claimed she earned and the $450,000 per year Sturman believed she earned. To the extent the trial court simply refused to believe Koch-Oshitas claims of poverty in light of her repeated refusal to properly document her claims, the trial court did not err.
4. The Attorneys Fee Award in Favor of Tiens Counsel Must be Affirmed
Koch-Oshita has not raised, either at trial or on appeal, a valid challenge to the award of fees in favor of Tiens counsel.
Before the trial court, Koch-Oshita argued only that she believed Tiens counsel had not properly performed her duties to Tien. The trial court disagreed, and the record presented by Koch-Oshita on appeal is insufficient to establish an abuse of discretion. On appeal, Koch-Oshita argues Tiens counsel is not entitled to attorneys fees in light of information that Koch-Oshita purportedly discovered subsequent to the order awarding fees. The trial courts ruling cannot be challenged based on evidence that was not before the trial court at the time it ruled.
DISPOSITION
The order awarding attorneys fees in favor of Sturman and Tiens counsel is affirmed. Sturman shall recover his costs on appeal.
We Concur:
KLEIN, P. J.
ALDRICH, J.