Opinion
H043593
11-13-2018
In re the Marriage of DIANA and ALEXANDER BENTLEY. DIANA BENTLEY, Appellant, v. ALEXANDER BENTLEY, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. FL031771)
Diana Bentley appeals from a judgment dissolving her marriage to Alexander Bentley following a trial held in her absence. She challenges the denial of a motion to reconsider issues decided at trial, the denial of permanent spousal support, and the imposition of sanctions under Family Code section 271. For the reasons stated here, we find no error in the trial court conducting the trial in appellant's absence. But we conclude that the trial court abused its discretion when it set permanent support at zero without considering all factors enumerated in Family Code section 4320. We also conclude the trial court abused its discretion by imposing sanctions under Family Code section 271 for discovery violations already sanctioned and for not appearing with counsel at scheduling conferences. We will therefore reverse the judgment with directions to reconsider spousal support and sanctions applying the proper legal standards.
I. BACKGROUND
A. PRE-TRIAL PROCEEDINGS
After Alexander Bentley moved out of the family home in November 2010, Diana Bentley filed for dissolution of their 26-year marriage. The parties appeared in court with counsel several times in 2011 and 2012 to address temporary support and custody issues. (The parties' youngest of four children was 15 at the time of separation.) Early in the proceedings the parties stipulated to Alex paying Diana $4,329 in monthly temporary support. In late 2012 support was reduced to $2,329 based on child support computation software, and to zero eight months later after the child turned 18 and Alex lost his job. Temporary spousal support was set at $1,800 in late 2014 when Alex resumed working.
We refer to the parties by their given names for clarity, intending no disrespect or familiarity.
In February 2012, Alex moved to bifurcate property issues, asking the court to declare the family residence community property and order the sale of the home. Diana opposed selling the home, arguing that it may be "underwater," and in any event she wanted to try to keep it. The motion was denied after several continuances.
In October 2012, the court granted Alex's motion to compel discovery, ordered Diana to answer interrogatories Alex had propounded five months earlier, and ordered Diana to pay Alex's attorney's fees and costs totaling $1,629 as a sanction. In February 2013 Alex sought $6,123 in attorney's fees and costs and a further sanction for continued discovery violations. Diana was sanctioned $1,000 that month and $500 the following month for failing to give compete answers to interrogatories. In April 2013, Alex moved to set aside the October 2012 support order based on Diana's failure to provide an accurate or complete income and expense declaration, and he sought an additional $3,537 in attorney's fees and costs under Family Code section 2107, subdivision (c) for the disclosure violations. The motion was denied, and the request for attorney's fees and costs was postponed to trial, set for the August 2013.
Diana was diagnosed with breast cancer in August 2013. She filed letters from two treating physicians, one stating she could not go to court while receiving chemotherapy, and the other stating she would need daily radiation treatments with an anticipated a "return to work date" of January 1, 2014. Trial was reset for January 2014. Trial was postponed from January to May 2014, then to June and then August, then to January 2015 due to Diana's ongoing medical treatment.
In an August 2014 declaration requesting that Alex be ordered to resume paying temporary support, Diana explained that her ability to work was limited because of her ongoing treatment for stage 4 breast cancer. She also explained, "I am very fortunate that my employer has made a number of accommodations to enable me to continue working as a youth tennis coach to the extent that I can. Generally, I have been working 8-12 hours per week."
Diana's attorney provided a doctor's letter to the court in January 2015, and the matter was set for an April settlement conference at the request of Diana's attorney. The April date was vacated at the parties' request in favor of a June 2015 trial setting hearing. At that hearing Diana's attorney provided a doctor's letter requesting that trial be set after September 16, 2015. Alex requested the earliest possible trial date, noting Diana's continuing ability to work part time as a tennis coach, and her history of delay and lack of cooperation. The court commented that if Diana was capable of working (which required commuting from Bonny Doon to Palo Alto), she was medically capable of attending trial. The court ordered Diana to appear for trial on August 31 if she was still working, and to notify Alex's attorney immediately if she was not working.
In preparing for trial, Alex filed an expert witness disclosure, a notice compelling Diana to attend trial with specific records, and a brief in which he identified sale of the community residence and permanent spousal support as trial issues. He argued that Diana's behavior during the last years of their marriage constituted domestic violence and should be considered as a basis for denying permanent support. In the event spousal support were awarded, he asked that it be set at $1,485, and he attached a corresponding settlement offer which had been emailed to Diana's attorney. As part of that offer, Alex agreed to defer sale of the family residence until September 2016.
B. AUGUST 2015 TRIAL
Diana's attorney, Martin Nichols, contacted the court and Alex's attorney the Friday before the Monday set for trial, informing both that he was not well and attorney Robert Frandeen would appear in his stead at trial. Alex appeared for trial with his attorney and expert witnesses (a CPA and a real estate appraiser). Mr. Frandeen appeared specially for Mr. Nichols, and on behalf of Diana who did not appear. Trial commenced without an objection from either party after the attorneys and the court met in chambers. Alex testified to the jurisdictional facts and that irreconcilable differences led to a breakdown of the marriage, and the court ordered a judgment of dissolution. His experts did not testify.
The court noted credible evidence in the court file of spousal abuse perpetrated on Alex by Diana. It reduced Alex's support obligation to zero effective that day, and reserved jurisdiction over spousal support. The court ordered the immediate sale of the community residence, and ordered Diana to cooperate with the sale. The court ordered the proceeds of the sale to be deposited in Alex's attorney's trust account for further disbursement, reserving to Alex the right to deduct from the proceeds costs associated with the trial (including expert witness costs) and attorney's fees ordered under Family Code section 271.
C. DIANA'S MOTION FOR RECONSIDERATION
Represented by Mr. Frandeen, Diana moved for reconsideration regarding the home sale and spousal support. Her supporting declaration stated that her former attorney Mr. Nichols had not contacted her for several months and she had no notice of the August trial date. She stated that Mr. Frandeen "was only noticed of the hearing on the Friday before the Monday trial," had never met her, and was unable to reach her before the trial. She stated she had been diagnosed with stage 4 metastatic breast cancer in August 2013, she was treated with radiation and chemotherapy for three months before undergoing surgery in December 2013 to remove a tumor and several lymph nodes, and the surgery was followed by several weeks of chemotherapy and radiation, including radiation to treat a tumor on her femur. She explained that she teaches tennis to children at Stanford University, that Stanford has allowed her to work part-time as she is able, that she can only work two to three hours per day and not in August, that most of her instruction is now verbal, that she is exhausted after a couple of hours of instruction and has to return home to rest for several hours. She takes medication daily which makes her tired and ill during the day, and she has been depressed and too ill during most of 2014 and 2015 to appear in court. Diana filed an income and expense declaration with pay statements for June and July 2015 showing her working for Stanford Campus Recreation Association, earning $25 per hour. She worked an average of 14 hours per week in June and July, and her 2015 year-to-date earnings showed her working an average of 11 hours per week since January 1.
In an opposing declaration, Alex's attorney stated that Mr. Nichols had notified her a few days before trial that he could not attend trial due to health issues, and that Mr. Frandeen had represented to the court at trial that he had tried to contact Diana but she was unresponsive and might be in the hospital. Diana did not claim to have been hospitalized, and no new information justified rehearing the matters resolved at trial.
At a hearing on the motion, Diana testified that she had not been advised about her case for two years, Mr. Nichols had not contacted her for several months before trial, and she had no notice of the trial date. She was not convinced Mr. Nichols was telling her everything, and she was considering contacting the State Bar about him. She was having trouble with voice messages on her land line, and Mr. Frandeen had been unable to reach her before trial. She testified that she was 57 years old, suffering from stage 4 metastatic breast cancer, and on a daily medication regimen. Her treatment made it hard for her to concentrate and remember things, for most of 2014 and 2015 she had been too ill to attend court, and it would be an extreme hardship to move from the family residence at that time. She had been working 10 to 15 hours per week as a tennis instructor since 2011.
Diana was not cross-examined about her medical condition. She was presented on cross-examination with her request for spousal support and the income and expense declaration filed in August 2014, both bearing her signature. She testified she was not sure she signed the documents. After being reminded by the court that she was under oath and should be able to recognize her own signature, she stated she had signed them. She acknowledged that her monthly support payments were sent to Mr. Nichols' office in 2015, and either she or a family member would picked them up. When presented with the May 2015 doctor's letter explaining she was too ill to attend trial, Diana said she was not sure why the doctor had written the letter. When pressed by the court, she acknowledged having asked the doctor to write the letter and agreed that it was reasonable to conclude she had requested it in preparation for the June hearing. When asked whether she had notice of the trial given Mr. Frandeen's representations about leaving messages on her landline, Diana maintained that she had trouble with her landline.
In a written order denying the motion, the trial court found Diana's claimed lack of awareness of court proceedings for two years was contradicted by the August 2014 filings bearing her signature; the letter she had requested from her treating physician in May 2015 demonstrated awareness of the June 2015 setting; and her claimed ignorance of the August trial setting was inconsistent with Mr. Frandeen's representations that he had left several messages for her regarding the trial. The court found Diana had received actual notice of the August trial date from her attorneys, but even if she had not, she had an obligation to inquire about the status of the June trial setting conference of which she was aware as established by the May 2015 doctor's letter. The court found Diana had willfully absented herself from trial for tactical reasons, including delay. The court set a trial date to address spousal support issues, including spousal abuse claims raised by both parties.
D. NOVEMBER 2015 SPOUSAL SUPPORT TRIAL
A two-day trial on spousal support issues occurred in November 2015. Diana was represented by a new attorney, John P. Hannon II, who reminded the court at the start of trial that Diana had stage 4 metastatic cancer. Anticipating the testimony of her treating physician, counsel made an offer of proof that Diana suffered from a cognitive impairment resulting from either chemotherapy treatments or a chemical imbalance attributable to the cancer itself. He asked for the court's indulgence in allowing extra time for Diana to respond to questions. Diana testified about her health, her job, the standard of living during the marriage, and the household finances before and after separation.
Diana's treating physician took the witness stand but did not testify. Alex objected to the doctor's testimony for lack of notice, and Diana declined the court's offer to have the doctor testify at a later date after disclosing Diana's records to Alex and paying Alex's attorney fees attributable to the delay.
The parties' 24-year-old daughter testified that she and her older brothers contributed financially to the household after their parents' separation. She testified that Diana had a hole in her femur, and balance issues and fatigue as a result of her treatment. She testified that Alex had two seizures in 2008 when she was in high school.
The parties eldest son testified that he contributed $600 to $750 monthly to the household after his father's seizures. Alex needed constant care after his seizures, and was extremely dependent on the eldest son who attended to his father's basic needs, dispensed his medication, and ensured his safety. He dispensed his father's medication according to the doctor's prescriptions, and he never increased the dosage against Alex's will. After his second seizure, Alex was volatile and sometimes violent toward the family. At times he was a "raging lunatic," "very angry," "very mean," and threatened to harm himself. He also threatened to take all the money and leave the family with nothing.
The parties' second son testified that he moved out of the family home when he was 21, a year after his father's seizures. He contributed financially to the family household after turning 18, with his contributions increasing to about $300 per month before he moved.
Alex testified regarding his accounting of child and spousal support paid since separation, and his current income and expenses. He was aware Diana had cancer, and he stipulated that he had the ability to pay reasonable spousal support. The focus of his testimony was his post-seizure claim of domestic abuse. He testified that Diana and his children controlled his income, medication, and ability to drive, restricted his movements, and constantly berated him so that he was essentially a prisoner in his own home. Alex left the family home in November 2010 when no one was home, taking what he could pack in his truck. He denied intentionally trying to hurt his children. (The court ultimately found that Alex had failed to carry his burden of proving that he was a victim of spousal abuse that would relieve him of his obligation to pay spousal support.)
Alex's appraiser testified that he appraised the Bentley residence from a distance in July 2015. After taking photographs of the home from an adjacent property, he spoke with two women who approached the residence in a car. The appraiser thought the women were Diana and the parties' daughter, whom he observed in court. He told them he was appraising a house down the street, and Diana told him that he was on her property and to leave. After later inspecting the home from the inside, he adjusted the appraisal downward.
Alex's CPA testified that each spouse's marital standard of living at the time of separation was $2,385. He arrived at that figure by averaging the net marital income for the three years preceding separation and adjusting for child-rearing costs. Half of the resulting $4,769 figure represented the marital standard of living for each spouse. If spousal support were to reflect an equalizing payment, based on the parties' income and itemized deductions Alex would owe Diana $1,485. That figure would increase by approximately $500 without Diana's property tax and interest deductions.
The court ordered zero spousal support payable to Diana. It adopted the marital standard of living as proposed by Alex's expert, and found that Diana could meet the standard of living by working an additional seven hours per week, based on the earnings reported on her current income and expense declaration. The court acknowledged that Diana had been diagnosed with breast cancer and had undergone treatment. It found that Diana "enjoy[ed] a modicum of health, as she is working as a tennis instructor at Stanford part time, and that cancer patients are living longer and better than before, and that expecting [Diana] to be a more significant contributor to her own support is not unreasonable." The court characterized the case as having "a tortured history." It identified "extensive instances of a failure to file necessary documents in a timely manner, failure to comply with discovery requests, a knowing and willful failure to come to court to gain a tactical standing, ... and a failure to cooperate in the sale of the family home" as contributing to its spousal support analysis.
E. ALEX'S REQUEST FOR ATTORNEY'S FEES UNDER FAMILY CODE SECTION 271
Alex had incurred approximately $58,000 in attorney's fees and costs since retaining new counsel in January 2014, and he asked that Diana at a minimum bear responsibility for the approximately $35,000 incurred following the August 2015 trial. His attorney's declaration documented Diana's attorneys' lack of response throughout the litigation, and estimated that the failure on Diana's part to conduct the litigation in a manner consistent with the policy of settlement had more than doubled Alex's fees and costs. At a hearing in January 2016, the court noted a general lack of good faith cooperation and failure to work within the spirit of the Family Code. But it distinguished Diana's conduct from that of her attorneys, noting as an example Alex's pretrial settlement offer made when Diana's attorney "was not as attentive to his duties as he should have been." It received counsel's billing records, intending to parse out costs and fees clearly attributable to Diana.
The court issued a written order in February 2016 awarding attorney's fees and costs to Alex. The court found Diana had willfully failed to appear at trial to gain a tactical advantage; at different times throughout the case her actions were not conducive to settlement and caused unnecessary litigation and delay; and her testimony was willfully false and motivated to gain tactical and financial advantage. The court charged to Diana costs incurred by Alex for: (1) motions to compel discovery and associated hearings; (2) Diana's failure to appear for trial; (3) expert witness fees for preparing and appearing at the August 2015 trial; (4) litigating the motion for reconsideration; (5) the ex parte motion to stay sale of the home; and (6) trial conferences at which Diana failed to appear while able to work as a tennis coach. Alex was awarded $11,304 in attorney's fees, expert witness fees totaling $3,090, and $10,000 as "sanctions and estimated fees paid to previous counsel."
Final judgment was entered in March 2016. Diana filed a timely notice of appeal, and requested that the appeal proceed on a settled statement as to the August trial and the September hearing on the motion for reconsideration, which were not reported. A hearing was held in August 2016 to review a draft settled statement. Alex filed a settled statement in the trial court in September 2016, and in January 2017 the court signed a stipulation by the parties deeming the September filing to be the settled statement on appeal.
II. DISCUSSION
A. TRIAL ISSUES
1. Diana's Representation
Diana argues that the trial court committed a prejudicial abuse of discretion by not continuing the trial due to the incapacity of Mr. Nichols. Diana acknowledges the representation in the settled statement that the matter "proceeded to trial without objection by either attorney or party." But she contends that Mr. Frandeen had no authority to proceed on her behalf. In her view, his authority was limited to informing the court of his inability to contact her and Mr. Nichols' incapacity.
We find no abuse of discretion in the court proceeding to trial under the circumstances, with Mr. Frandeen appearing for Mr. Nichols. Diana provides us with no authority that a trial court abuses its discretion by failing to sua sponte continue a proceeding when an absent party is represented by stand-in counsel. Diana was ordered by the court to be present at trial, and she did not seek a continuance. Given her unexplained absence, it was not improper to commence trial with Mr. Frandeen representing her interests in absentia. Diana argues that the court would have been obligated to continue the trial for good cause had she appeared. But Diana was not present at trial and no motion to continue was made. What might have happened had she appeared has no bearing on the court's election to proceed in her absence based on the information presented at the time.
Diana contends that proceeding to trial without Mr. Nichols was a denial of her due process right to be represented by counsel, citing Vann v. Shilleh (1975) 54 Cal.App.3d 192, 199-200, a case acknowledging a civil litigant's due process right to representation by counsel. Although ordered to appear for the August 31 trial, Diana did not appear, nor did she request a continuance. Her due process rights were not violated, and Mr. Nichols' absence does not insulate her from the consequences of a willful failure to appear.
Diana's reliance on In re C.P. (1985) 165 Cal.App.3d 270 is inapposite. There the court found reversible error in failing to continue a jurisdictional hearing to allow time for the minor's attorney appointed two days earlier to make contact with the father who lived out of state. (Id. at pp. 271-272.) The In re C.P. court emphasized a parent's right to notice and an opportunity to be heard at a jurisdictional hearing in a dependency case. (Id. at p. 271.) The continuance was necessary to provide the father a reasonable opportunity to prepare for the hearing. (Id. at p. 274.) In contrast here, Diana had notice of the trial and a reasonable opportunity to prepare, and she elected not to personally appear.
Diana also cannot show that proceeding to trial in her absence resulted in prejudice. Under the California Constitution, a reviewing court may not set aside a judgment based on procedural error "unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." (Cal. Const., art. VI, § 13.) Diana had the opportunity to explain her absence to the trial court, it found her testimony regarding knowledge of the trial date not credible, and substantial evidence in the record supports that adverse credibility finding. Diana testified at the hearing on her motion for reconsideration that she had no contact with her attorney for two years. But she had signed a request for spousal support and an income and expense declaration filed on her behalf in August 2014, and she had provided Mr. Nichols with several letters from her treating physicians between August 2013 and June 2015 prepared for the express purpose of postponing trial. The May 2015 letter demonstrated Diana's awareness of the June date for setting trial, and it is reasonable to infer from the physicians' letters and her regular contact with Mr. Nichols' office to collect support checks that she was aware of the August trial date.
2. Reporting of Trial Court Proceedings
According to its local rules in effect at the time of trial, the Santa Cruz County Superior Court did not provide court reporters in its family law departments. (Super. Ct. Santa Cruz County, Local Rules, rule 9.1.02(b)(2).) Litigants wishing to have a court reporter present in a family law department were required to "arrange for or hire a private certified court reporter pro tempore to report any scheduled hearing or trial." (Id., rule 9.1.02(c).) The California Rules of Court require trial courts to provide notice to litigants regarding the court's official reporting services. (Cal. Rules of Court, rule 2.956(b)(1)-(2); see also Gov. Code, § 68086, subd. (d) [requiring Judicial Council to adopt rules regarding access to court reporter services].) Unless court reporters are normally provided for civil trials, the trial court "must require that each party file a statement before the trial date indicating whether the party requests the presence of an official court reporter." (Cal. Rules of Court, rule 2.956(b)(3).)
The expense of a certified court reporter may be recoverable as costs. (Cal. Rules of Court, rule 2.956(c).
A court reporter was not present at the August 2015 trial or the hearing on the motion for reconsideration. A verbatim record of those proceedings was thus unavailable, and a settled statement on appeal was used as the record of oral proceedings. A court reporter was present at the November 2015 spousal support trial and the hearing on Alex's request for attorney's fees, and the appellate record includes the reporter's transcripts from those proceedings.
Diana argues that the trial court committed reversible error by failing to elicit a statement from either party under rule 2.956(b)(3) before the August trial date and the date for hearing the motion for reconsideration. In her view, that failure was tantamount to a failure to warn, denying her a substantial right to a complete record on appeal. Diana cites In re Marriage of Obrecht (2016) 245 Cal.App.4th 1 for the proposition that the absence of a court reporter "can have the effect of denying a party's due process rights." As here, Obrecht was an appeal from a family law matter in the Santa Cruz County Superior Court conducted without a court reporter. (Id. at p. 8.) In dicta, the Obrecht court expressed its concern with the disparate impact limited court reporter services may have on litigants without financial means. (Id. at p. 9, fn. 3.) But in contrast to the record here, the appellant in Obrecht did not seek a settled statement as the record of oral proceedings. (Id. at pp. 8-9.) The Obrecht court adhered to the fundamental principles that an appellant must affirmatively show error and that a judgment of the lower court is presumed correct in affirming the trial court's judgment. (Id. at p. 9.)
Although we are also concerned about the potential effects on litigants and reviewing courts from the pervasive absence of reporting in family court proceedings, we are not convinced that the trial court's failure to address the issue of a reporter worked an injustice to Diana on this record. Nor are we persuaded by Diana's related argument that she was denied due process and equal protection as a result of an inadequate settled statement. She complains that the settled statement omits "on the record" discussions regarding Mr. Nichols' health, contains improper editorial comments injected by the trial court in contemplation of an appeal, and is insufficient for purposes of substantial evidence review. But the editorial comments she complains of are generally drawn from the court's written findings after hearing, and they do not impact our substantial evidence review of the court's adverse credibility finding as to Diana. Other issues from the proceedings are either moot (as the community residence has been sold), or are within the scope of our remand for a new trial.
B. SPOUSAL SUPPORT
In dissolving a marriage, the court may order spousal support "based on the standard of living established during the marriage, taking into consideration the circumstances" provided in section 4320. (Fam. Code, § 4330.) Section 4320 requires the trial court to consider certain factors in ordering support, including the earning capacity of each party; the supporting party's ability to pay support; the needs of each party based on the standard of living established during the marriage; the age and health of the parties; the balance of hardships to each party; the goal that the supported party become self-supporting within a reasonable period of time; and documented evidence of any history of domestic violence. (Fam. Code, § 4320, subds. (a), (c), (d), (h), (i), (k), (l).) Once the court has considered the factors mandated by the statute, "the ultimate decision as to amount and duration of spousal support rests within its broad discretion and will not be reversed on appeal absent an abuse of that discretion." (In re Marriage of Kerr (1999) 77 Cal.App.4th 87, 93, footnote omitted.) The trial court "does not have discretion to ignore any relevant circumstance enumerated in the statute." (In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 304.) Failure to "recognize and apply each applicable statutory factor" is an abuse of discretion. (Ibid.)
Diana argues that the trial court abused its discretion setting permanent spousal support at zero because it focused solely on the marital standard of living and failed to consider all factors set forth in Family Code section 4320. She argues the court misunderstood Alex's unopposed motion to strike Diana's declaration at the spousal support trial as a motion to strike her testimony in its entirety and as a result ignored evidence that Diana's breast cancer had spread to her lungs.
At the close of evidence, the court solicited the parties' input as to whether it should rule on permanent spousal support at that time or wait until the family residence had sold to account for all assets. Diana favored an immediate ruling; her attorney noted that Alex had control over the sale and could "string it [a]long until my client dies of cancer." The court responded: "Let's be very clear, there is no evidence in front of this Court of any kind about your client's medical condition. What I know is she works as a tennis coach at Stanford. There is no evidence of any kind of greater disability or any reason why she is not working full-time." Diana's attorney disagreed, pointing to his client's testimony. The court responded: "Your client's testimony was stricken. All of it. You had no objections. So there is no evidence from her. ... So there is no evidence in front of this Court that I will consider that tells me she is not capable of working or she has any limitations. There were opportunities to put on evidence and you chose not to." Diana's attorney offered that Diana was competent to testify about her own medical condition. The court continued: "But she didn't, did she? ... There was a motion to strike the witness's testimony in its entirety. You had no objection. I have actually checked with the court reporter at the recess saying, I'm sorry, was that to strike the testimony completely. She said, 'Yes, it was.' And you had no objection. You have rested. So you have not put your client on, so there is no testimony, sir, from your client." Diana's attorney maintained that Alex's motion was to strike Diana's declaration, not her testimony. The court then asked the court reporter whether she had reviewed her notes at the court's request, and whether there was "in fact a motion to strike all of the testimony of Diana Bentley?" The reporter confirmed the court's recollection of events.
Contrary to the understanding of the trial court and the reporter, the reporter's transcript clearly shows that the motion to strike was limited to Diana's declaration and not her entire testimony. After Diana testified on cross-examination that the declaration did not reflect her electronic edits and contained mistakes, Alex's attorney moved to strike the filing: "Then I would at this time move to strike this declaration, signed, only from the record. It's not the one that she signed, apparently." Diana's attorney responded: "If counsel wants to strike, fine. Then this last hour of testimony means almost nothing, or it means nothing. And I would agree that the motion to strike should be granted." The court granted the motion, and Diana's testimony concluded.
Undisputed evidence was presented at the spousal support hearing that Diana had stage 4 metastatic breast cancer. The trial court plainly abused its discretion by failing to consider that evidence in setting permanent spousal. Diana testified that she had undergone a complete mastectomy, and she still had cancer in her lungs. She did not feel capable of working more than the 10 to 15 hours per week. Her medical condition caused fatigue and balance issues, which have resulted in her missing work. Her condition has slowed her cognition, and it was difficult to relate dates and times as a result of chemotherapy treatments. The parties' daughter testified that Diana had a hole in her leg from radiation treatment on her femur, had fallen a couple of times since her treatment, had trouble with her balance, and was often fatigued after work. Alex testified that he was aware Diana has cancer, and he did not dispute any testimony related to her health at either the spousal support trial or the earlier hearing on Diana's motion for reconsideration. His attorney told the court at the spousal support trial they were not denying that Diana "has stage 4 cancer," and neither Diana nor the daughter were cross-examined on the issue.
We accept the trial court's credibility finding as to Diana's willful failure to appear at the August trial. But we find no basis in the record to impute any lack of credibility to Diana's testimony related to her medical condition.
The trial court also abused its discretion by relying on the marital standard of living as a fixed measure of reasonable need rather than as a "reference point for determining need and support." (In re Marriage of Smith (1990) 225 Cal.App.3d 469, 484.) The court adopted as the marital standard of living what amounted to Alex's net income after deducting expenses for the minor children, and found that Diana could earn approximately half of that amount ($2,385) by working more hours each week. The figure arrived at does not reflect Diana's reasonable needs, which would include housing costs (at the time a $2,700 monthly mortgage) and living expenses.
On remand, the trial court is directed to determine spousal support considering all relevant statutory factors, including Diana's reasonable needs in light of the standard of living during the marriage, her age and health, the balance of hardships, her earning capacity, and Alex's ability to pay reasonable support.
C. ATTORNEY'S FEES
Family Code section 271 authorizes the court to "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." Under section 271, an award of attorney's fees and costs "is in the nature of a sanction." It may not be imposed without considering the parties' income, assets, and liabilities, and must not be an unreasonable financial burden on the sanctioned party. (Fam. Code, § 271.) " 'The imposition of sanctions under section 271 is committed to the sound discretion of the trial court. 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, [determines] no judge could reasonably make the order." [Citation.]' " (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1152.)
Diana argues that awarding attorney's fees to Alex as a sanction under Family Code section 271 was an abuse of discretion for several reasons. We are persuaded by some of her arguments. We will therefore vacate the order imposing sanctions and remand for further consideration.
In light of our remand, it is unnecessary for us to determine whether imposing over $24,000 in sanctions constitutes an unreasonable financial burden on Diana. --------
1. Sanctions for failing to appear at trial and for seeking reconsideration
Diana argues that the trial court abused its discretion imposing sanctions related to her failure to appear at trial because the trial should have been continued under the circumstances. We have upheld the trial court's finding that Diana willfully failed to appear for trial, and have concluded that no prejudicial error resulted from proceeding in her absence. Diana conceded in the trial court that sanctions attributable to her absence are warranted, acknowledging that Alex was entitled "to compensation for wasting his time and attorney['s] fees for showing up ... ." She challenges sanctions attributed to the motion for reconsideration as the motion was brought in good faith and not for delay, and she sought reconsideration of spousal support which was later the subject of a two day trial. We find no abuse of discretion sanctioning Diana for Alex's attorney's fees and costs related to her motion for reconsideration, given that the motion may have been unnecessary had Diana appeared for trial.
2. Sanctions associated with the ex parte motion
The trial court imposed sanctions for "[t]he ex parte motion to delay the sale of the home previously ordered by the Court." Diana argues that the court erred by imposing sanctions related to Alex's ex parte motion for an order appointing a judicial officer to sign the closing documents on her behalf, brought in January 2016 after the hearing on attorney's fees. But Diana also filed an ex parte motion—an application for an order shortening time to hear her motion for reconsideration, resulting in the trial court sua sponte staying sale of the family residence until the motion was heard. We understand the sanctions order to be referring to Diana's application because only it could have delayed the sale of the home. Imposing sanctions related to Diana's ex parte application was not an abuse of discretion, as it accompanied her motion for reconsideration.
To the extent the court intended to sanction Diana for expenses associated with Alex's ex parte motion, such a sanction would be an abuse of discretion because Diana has a statutory right to notice and a hearing before sanctions are imposed (Fam. Code, § 271), and the hearing here took place before Alex had filed his motion. It would also be an abuse of discretion to impose sanctions related Alex's ex parte motion given that the court (albeit a different judge) had already denied Alex's related request for sanctions in connection with his ex parte motion. (In re Alberto (2002) 102 Cal.App.4th 421, 430 [a judge is prohibited from interfering with another judge's order unless the judge issuing the order is unavailable or the order is made through inadvertence, mistake or fraud].)
3. Sanctions for discovery violations
The trial court ordered Diana to pay Alex $10,000 "as Family Code § 271 sanctions and estimated fees paid to" Alex's former attorney who handled the early discovery disputes. She argues the award resulted in double punishment. Alex's former attorney was awarded $1,629 in fees and costs in 2012 for prevailing on a motion to compel discovery. In 2013 the same attorney requested a total of $9,660 for fees and costs related to discovery and disclosure violations; she was awarded $1,500 at the time, with the court advising that attorney's fees and costs "shall be addressed at the Court Trial." Section 271 does not authorize a court to award sanctions other than attorney's fees and costs (Sagonowsky v. Kekoa, supra, 6 Cal.App.5th at p. 1144), and does not allow for the imposition of exemplary damages. (Id. at p. 1156.) We therefore reject Alex's argument that the $10,000 sanction was reasonable even though it exceeded the total amount of his attorney's fees and costs. Having been awarded $1,500 in 2013, the total amount of sanctionable fees and costs incurred by Alex for his former counsel was $8,160. The trial court abused its discretion by exceeding that amount.
4. Sanctions for not appearing at court settings
Diana was sanctioned in part for costs related to her "fail[ing] to appear" at "various status conferences and trial readiness conference[s]" when she was working as a tennis coach. There was no legal basis to sanction Diana for making those appearances through her attorney. Diana was not ordered to appear personally at those conferences, and her counsel had the authority to bind her with respect to procedural matters under Code of Civil Procedure section 283. She cannot be sanctioned for having her attorney appear on her behalf.
III. DISPOSITION
The March 21, 2016 judgment is reversed. The matter is remanded to the trial court with the following directions: (1) to reenter a judgment of dissolution; (2) to vacate the February 3, 2016 order regarding attorney's fees and sanctions and the February 24, 2016 order after hearing; and (3) to reconsider Diana's request for permanent spousal support and Alex's request for sanctions consistent with this opinion. The parties shall bear their own costs on appeal.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Greenwood, P. J. /s/_________ Premo, J.