Opinion
B284308 B286004
08-20-2020
In re Marriage of STEPHEN and NATHALIE GAGLIANO STEPHEN GAGLIANO, Respondent, v. NATHALIE GAGLIANO, Appellant.
Law Offices of Cynthia A. de Petris and Cynthia A. de Petris for Respondent and Appellant. Marla J. Wolfe for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. YD066142) APPEAL from orders of the Superior Court of Los Angeles County, Maria Puente-Porras, Judge. Dismissed in part, affirmed in part. Law Offices of Cynthia A. de Petris and Cynthia A. de Petris for Respondent and Appellant. Marla J. Wolfe for Petitioner and Respondent.
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INTRODUCTION
Appellant Nathalie Gagliano and respondent Stephen Gagliano divorced in 2007. They have two children, Mikhaela and Tristan. Though both children were minors when the events described herein occurred, both are now adults.
In November 2015, Stephen filed a request for order (RFO), asking the court to issue an order regarding visitation and to award attorney fees. In May 2016, Nathalie filed her own RFO, asking the court to issue orders regarding custody, visitation, and child support, and to award attorney fees. The court heard both RFOs simultaneously, and issued two statements of decision. One addressed custody and visitation issues. The other awarded Stephen $75,000 in sanctions under Family Code section 271, for fees he incurred due to Nathalie's actions. The latter order detailed the complicated nature of the case and Nathalie's conduct that contributed to Stephen's incurring over $122,000 in fees and costs. Nathalie appeals both orders.
All further undesignated statutory references are to the Family Code.
Regarding the custody order, Nathalie argues the court erred by: (a) using the wrong standard in deciding whether to modify a previous custody order; (b) giving insufficient weight to the expert witnesses; and (c) declining to interview the minor children. Because both children are now adults, Nathalie's appeal regarding the custody order is moot. As a court cannot make a custody order regarding an adult, it would be impossible to grant Nathalie any effective relief.
Regarding the sanctions order, in her opening brief, Nathalie argues: (1) the court relied on erroneous or nonexistent facts; (2) the court failed to explain how its award of $75,000 related to the fees and costs Stephen incurred; and (3) had the court used the correct standard in determining the custody order, Nathalie would have prevailed. In her reply brief, she raises the additional arguments that the court failed to take into account her ability to pay the sanctions, and that its determination that she was not credible was based on bias.
We conclude: (1) Nathalie has forfeited any challenge to the underlying basis of the sanctions order; (2) the court was not required to delineate how it arrived at the amount of a sanctions award under section 271, having made clear that the amount awarded was to compensate Stephen for incurred attorney fees; (3) the court did not use the wrong standard in deciding the custody order; and (4) while we need not address arguments raised for the first time in a reply brief, the court did consider Nathalie's ability to pay and its finding that she was not credible was based on her own contradictory testimony and unsupported accusations. We affirm the sanctions order.
STATEMENT OF RELEVANT FACTS
A. Events Prior to the Filing of the Operative RFOs
In 2007, Nathalie and Stephen entered into a stipulated judgment, dissolving their marriage and outlining a parenting plan. They have two children, Mikhaela (born in May 2000) and Tristan (born in October 2001).
In November 2013, Nathalie filed an RFO asking to modify child custody, visitation, and child support, and requesting attorney fees. On January 29, 2014, the court implemented a custody plan that gave Stephen custody of the children approximately 35% of the time, and ordered Nathalie to pay Stephen $456 a month in child support. Prior to this order, Stephen had been required to pay Nathalie $1,000 a year to help with the children's clothing expenses, and to pay for half of certain other expenses such as daycare and mutually agreed upon extracurricular activities, but no other support had been due from either party.
On June 10, 2014, while the children were in Stephen's custody, an incident occurred. The parties agree on the basic facts: Stephen ordered Tristan to go upstairs to his room, then physically escorted him up the stairs when he decided Tristan was not moving fast enough. Mikhaela attempted to intervene and, as a result, Stephen grabbed her by the arm and escorted her upstairs as well. Both children were then told to stay in their room. The children reported the incident to Nathalie. The parties disagreed as to whether the force used by Stephen was excessive. After the incident, both children refused to see Stephen.
On July 17, 2014, Nathalie filed another RFO to modify child custody, visitation, and child support, and specifically requested Stephen's visitation rights be stayed until the children were appointed minor's counsel or the parties agreed otherwise. In support of the RFO, Nathalie submitted a declaration giving her understanding of the June 10 incident, stating therein "[t]he police came on 6/12/14 so I could advise them of the incident." However, Nathalie later admitted that she did not go to the police for six weeks, and that she did so only after filing her declaration, five days before filing an ex parte request for a domestic violence temporary restraining order, which the court denied.
In September 2014, the court issued an order (with Stephen's consent) stating, among other things, that the children were to begin therapy, and Stephen's contact with the children would be subject to the direction of their therapist. The parties also agreed to participate in a custody evaluation under Evidence Code section 730 (a 730 Evaluation). The custody evaluator was to address alleged parental alienation by Nathalie and alleged physical abuse by Stephen.
B. Nathalie and Stephen File More RFOs
In November 2015, with the 730 Evaluation still not yet begun, and the children's therapist still refusing Stephen permission to see his children, Stephen filed an RFO asking that his visitation rights be restored, requesting attorney fees and costs, and asking the court to designate Dr. Renee Cohen as the custody evaluator, with a hearing set for January 27, 2016. On January 27, the parties stipulated that Dr. Cohen would perform the 730 Evaluation, and continued the hearing to May 9, 2016. On May 9, Stephen asked to continue the hearing to May 26. On May 11, Nathalie filed an RFO asking for, among other things, sole custody, an award of attorney fees, and a modification of the stipulation regarding the 730 Evaluation. The court later found that Nathalie's filing of an RFO two weeks before the May 26 hearing regarding the "same issues that had been ongoing for some time . . . was just one more attempt to delay the matter."
C. The Court Reinstates the January 29 , 2014 Custody Order
The court heard both RFOs simultaneously, deciding to first hear evidence and make a determination regarding custody issues before doing the same regarding financial issues, including the request for attorney fees. The hearing regarding custody spanned 12 days, from August 2016 to January 2017. In May 2017, the court issued a tentative statement of decision. Nathalie objected to the statement of decision and in June 2017, the court issued its final 45-page statement of decision, sustaining two of Nathalie's objections and overruling the remainder. The portions of the statement of decision relevant to this appeal are set forth below.
1. The Legal Standard
The statement of decision provided that "Custody must be awarded in accordance with the best interest of the children. (Fam. Code § 3040.) The Court must also find that a substantial change of circumstance has occurred when a modification is sought after a Judgment, permanent, order [sic] has been entered. The rule requiring a substantial change of circumstance is in addition to the statutory 'best interests' test for determining child custody (Fam. Code §§ 3011, 3040(b)." However, despite noting the existence of the "changed circumstances" rule, the court's statement of decision made no findings regarding whether there had been a substantial change of circumstances; instead, there are numerous instances in which it considered the children's best interest. For example, even though the court concluded that Stephen was more likely to provide the children with frequent and continuing contact with the other parent, the trial court chose not to grant Stephen custody because it was concerned "that a change of custody to [Stephen] would absolutely be counterproductive to the children's interest in that they are so aligned with [Nathalie], thus a therapeutic setting and approach is warranted first and foremost." The court also noted that Nathalie's "perceived notion that because the kids say no, they don't want to see [Stephen], there is nothing that needs to be done . . . is not child centered or in the best interest of the children."
2. Nathalie Gagliano
The court found Nathalie not credible, stating that "[h]er allegations of prior abuse, her purported efforts to co-parent and willingness to work with [Stephen] were in direct contradiction to her actions over the years." The court also noted an incident during the hearing where Nathalie alleged through her counsel that Stephen had been making eye contact while she was testifying, and had been gesturing and attempting to intimidate her. The court noted on the record that it had observed both parties during the testimony, and had not seen Stephen engaging in the alleged conduct -- in fact, it was Nathalie who was "'staring' down" Stephen from the witness stand. The court further noted that despite Nathalie's declaration that she had taken the children to the police station soon after the June 10 incident, the police report was dated July 23, six weeks later, and five days before she unsuccessfully sought a protective order.
The court ultimately reinstated the January 29, 2014 custody order but found "it would be a disservice to the children to force them to immediately resume the custodial order"; accordingly it stayed the order "until the children have been reunified with [Stephen] in therapy. It is the Court's intent that the stay shall only be in effect until March 1, 2017 to allow for the parties to initiate the reunification therapy."
D. The Court Awards Stephen $75,000 in Sanctions
The hearing regarding financial issues, including sanctions under section 271, spanned five days in May, June, and July of 2017. According to a June 28, 2017 income and expense declaration, Stephen incurred $88,782.87 in attorney fees and costs from December 2013 to April 2017. In total, he incurred $122,083.82 in fees and costs.
In September 2017, the court issued a tentative statement of decision regarding sanctions. Nathalie objected to the statement of decision and requested a hearing. The court denied Nathalie's request and issued its final statement of decision on December 12, 2017, sanctioning Nathalie $75,000 for having "caused unreasonable delays and . . . fail[ing] to comply with court order[s]." Specifically, the court found Nathalie had not made good faith efforts to resolve the issues between the parties, had presented altered e-mails to Dr. Cohen causing "excess time in Dr. Cohen's testimony because the e-mails had to be dissected by date, time, verbiage and comparison," had presented "dishonest testimony" and had "disobeyed the court's custody order which caused the parties to return to court on an ex-parte basis, in part, to put an end to her unilateral decision making." The court also found that the delay in completing the 730 Evaluation "falls squarely on [Nathalie's] shoulders." In summary, the court found that Nathalie's "efforts to resolve the matter were non-existent and she caused additional costs in requesting continuances, delaying of signing the expert's retainer, delay in paying the expert, providing altered emails to the expert and failing to disclose her income and assets and the existence of her new business."
The court recognized its award "must not exceed the complaining party's total reasonable fees and costs incurred in the case," and that the sanctions "cannot be outside of the attorney fees and costs." It also stated that, in this case, it was "not appropriate to limit fees and costs to specific sanctionable conduct, because the conduct was so pervasive that it infected the entire litigation"; it characterized the award as "proportionate to the seriousness of the conduct," and confirmed that it had "determined the reasonable fees and costs." The court further found Nathalie had sufficient income and assets to pay the sanctions. The court concluded that the sanctions award was "premised on [Nathalie]'s ongoing failure to comply with the terms of the parties' stipulations, [therapy and evaluation] and her continued efforts to delay hearings, her willful failure to disclose her financial status and her willful efforts to mislead based on evidence presented to the court and to Dr. Cohen as reflected in the emails and as previously discussed."
Specifically, the court noted that: (1) Nathalie "has consistently and continually been liquidating her annuity" which had a balance of $400,000; (2) her "most recent income and expense reflects having $205,000 available in real property, and cash and checking accounts reflecting a total of $6,000"; (3) as of February 2017, she had a net worth of $343,000; and (4) Nathalie used to make between $16,000 and $20,000 per month and the court did not believe she was no longer able to work due to disability. The court found Nathalie was "willfully suppressing her income."
Nathalie separately appealed the court's orders regarding custody and sanctions and we granted her motion to consolidate the appeals.
DISCUSSION
A. The Appeal of the Custody Order Is Moot
Nathalie argues the court erred in issuing its custody order because it used the "changed circumstances" standard -- rather than the "best interest" standard -- in deciding whether to modify the previous custody order, failed to give sufficient weight to expert testimony, and elected not to interview the children. We find Nathalie's arguments moot because both children are now adults; even were we to agree the court erred in its custody order, it would be impossible for us to grant effective relief.
"Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates 'a significant change of circumstances' indicating that a different custody arrangement would be in the child's best interest." (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.)
"'[A]n appeal is moot if "'the occurrence of events renders it impossible for the appellate court to grant appellant any effective relief.'"'" (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2016) 2 Cal.App.5th 586, 590.) "The court may . . . make an order for the custody of a child during minority . . . ." (§ 3022, italics added; see also § 2010, subd. (b) ["In a proceeding for dissolution of marriage . . . the court has jurisdiction to . . . render any judgment and make orders that are appropriate concerning . . . custody of minor children of the marriage" (italics added)]; Edwards v. Edwards (2008) 162 Cal.App.4th 136, 143 ["[A]n adult . . . is not in the custody of either parent"]; In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 594 ["Visitation is a form of custody . . . and thus . . . the court had no authority to issue a visitation order regarding [the child] after he reached the age of majority"].) Because the trial court may no longer issue a custody order regarding the children, it is impossible for us to grant Nathalie any effective relief regarding the allegedly erroneous custody order. Therefore, this portion of her appeal is moot.
Nathalie argues her appeal of the custody order is not moot because: (a) we should apply Welfare and Institutions Code section 607, which provides that if a dependency court has found a minor to be a dependent, it may retain jurisdiction over that person until the age of 21; (b) under section 3910, subdivision (a), parents have the responsibility to maintain "a child of whatever age who is incapacitated from earning a living and without sufficient means" and therefore we should opine on judicial errors made when the children were minors; (c) there is still an actual dispute between the parties; and (d) this is a situation capable of repetition yet evading review.
We quickly dispense with Nathalie's first three arguments: First, this case did not originate in dependency court, and we decline her invitation to apply Welfare and Institutions Code section 607 out of context. Second, nothing in the record suggests either of the children is incapacitated, and the court issued no orders under section 3910. Third, that the parties dispute the correctness of the trial court's order does not affect our inability to grant effective relief.
We further reject Nathalie's argument that we should consider her appeal because the issues raised are capable of repetition yet evading review. While we have "inherent discretion to resolve an issue rendered moot by subsequent events if the question to be decided is of continuing public importance and is a question capable of repetition, yet evading review" (Ogunsalu v. Superior Court (2017) 12 Cal.App.5th 107, 111), Nathalie fails to demonstrate the issues she raises will evade review. Indeed, they have not. Whether the "changed circumstances rule" applies to a custody order that is not a final judicial custody determination was addressed by our Supreme Court in Montenegro v. Diaz (2001) 26 Cal.4th 249, a case Nathalie cites prominently in her brief. Similarly, other cases have addressed a court's discretion to disregard expert testimony, or to decline to have children testify at a custody hearing. (See, e.g., In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1345 ["trial court is not required to accept even unanimous expert opinion at face value"]; Niko v. Foreman (2006) 144 Cal.App.4th 344, 366 ["'Although a trial court is authorized to consider and give due weight to the wishes of a child who is of sufficient age and capacity so as to form an intelligent preference as to custody (§ 3042, subd. (a)), it need not call a child as a witness where the best interests of the child so dictate, and may instead provide alternative means of obtaining information regarding the child's preferences (id., subd. (b))'"].) Because the children's adulthood prevents us from granting Nathalie any effective relief, and because the issues raised by Nathalie's appeal have not evaded review, we dismiss her appeal of the custody order as moot.
B. The Court Did Not Err in Sanctioning Nathalie
The trial court awarded Stephen $75,000 in sanctions pursuant to section 271, finding that Nathalie had "caused unreasonable delays and . . . failed to comply with court order[s]." The court made specific findings that Nathalie had not made good faith efforts to resolve issues, and had given Dr. Cohen altered e-mails, requiring Stephen to expend an excessive amount of time at the hearing presenting and then comparing and contrasting each altered e-mail. The court further found Nathalie had given false testimony and had disobeyed court orders, thus requiring Stephen to file an ex parte application. Additionally, the court found Nathalie had caused delay in completing the 730 Evaluation, and had failed to disclose her income and assets and the existence of her new business.
Section 271 provides in pertinent part that "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." (§ 271, subd. (a).)
In her opening brief, Nathalie argues the sanctions order is erroneous because: (1) there is no factual basis to support the court's findings; (2) the court failed to explain how its award of $75,000 related to the fees and costs Stephen incurred; and (3) had the court used the correct standard in determining the custody order, Nathalie would have prevailed. In her reply brief, she also argues the court failed to take into account her ability to pay the sanctions, and that the court's determination that she was not credible was based on "clear bias." We address each of her arguments in turn.
1. Nathalie Has Forfeited Any Challenge to the Basis of the Sanctions Order
Nathalie summarily argues that in making the sanctions order, the court relied on erroneous facts or facts not in evidence, made determinations based on its observation of Nathalie, and failed to consider that Stephen had also delayed proceedings. Additionally, in the heading to her argument regarding the sanctions order, she asserts that substantial evidence does not support the order; she fails to develop this argument beyond the text of the heading. We consider her challenge to the basis of the sanctions order forfeited for three reasons.
First, her recitation of alleged errors lacks any citation to the record in violation of California Rules of Court, rule 8.204. (Cal. Rules of Court, rule 8.204(a)(1)(C) [an appellate brief must "[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears"].) We exercise our discretion to "decline to consider passages of a brief that do not comply with this rule." (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 60.)
Second, "[a] party who challenges the sufficiency of the evidence to support a finding must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable." (Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218.) By ignoring all evidence unfavorable to her, Nathalie forfeits the argument. (Ibid. ["Because plaintiff has failed in his obligations concerning the discussion and analysis of a substantial evidence issue, we deem the issue waived"].)
Third, Nathalie forfeits her contention that substantial evidence does not support the sanctions order by failing to support it with reasoned argument or citation to authority. (Public Employment Relations Bd. v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927, 939 ["'"[A]ppellate briefs must provide argument and legal authority for the positions taken. 'When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.'" [Citation.]' (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 .) '"We are not bound to develop appellants' arguments for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived." [Citations.]' (Ibid.)"].)
2. The Court Was Not Required to Explain the Connection Between the Award and the Fees
Nathalie does not dispute that Stephen incurred over $122,000 in attorney fees and costs in the litigation, some $47,000 more than the sanctions award. Rather, she contends the court was required to delineate how its $75,000 award correlated to the specific fees and costs Stephen incurred. While both parties contend we should review the court's order for an abuse of discretion, the issue before us is whether section 271 requires a court to delineate the relation between the amount awarded and the fees incurred. Thus, "'[t]o the extent that we are called upon to interpret the statutes relied on by the trial court to impose sanctions, we apply a de novo standard of review.'" (Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1152 (Sagonowsky).)
"'Section 271, subdivision (a) authorizes sanctions to advance the policy of promoting settlement of litigation and encouraging cooperation of the litigants' and 'does not require any actual injury.' [Citation.] Litigants who flout that policy by engaging in conduct that increases litigation costs are subject to imposition of attorney fees and costs as a section 271 sanction." (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225.) Further, "a sanctions award under section 271 need not 'be limited to the cost to the other side resulting from the bad conduct.'" (Id. at 1226.) "[S]ection 271 is not a need-based statute and does not require a correlation between the sanctioned conduct and specific attorney fees . . . ." (Ibid.) Therefore, it is irrelevant that the court did not delineate how the sanctions amount was related to the fees and costs Stephen incurred.
Nathalie's reliance on Sagonowsky is unhelpful. Sagonowsky held that "sanctions available under [section 271] are limited to 'attorney fees and costs.'" (Sagonowsky, supra, 6 Cal.App.5th at 1153.) It therefore reversed the portion of the sanctions the trial court had awarded to punish the offending party, and the portion awarded to compensate the wronged party for the decrease in value of real property resulting from the offending party's actions, as these items were not attorney fees or costs. (Id. at 1156.) But nothing in Sagonowsky suggested a trial court must calculate the exact amount of fees incurred as a result of bad conduct, or delineate the relationship between the amount awarded and the fees incurred. Indeed, the court made clear that "the party seeking sanctions pursuant to section 271 need not establish with great precision an amount directly caused by improper conduct." (Id. at 1155.) Manifestly, a court need not delineate what a party need not demonstrate. In short, Nathalie has failed to show error in the court's award of sanctions.
3. The Court Used the Correct Standard
Nathalie argues that had the court not erroneously used the "changed circumstances" rule in deciding custody, she would have prevailed. While she does not explain the import of this, we assume she intends to argue that had she prevailed, a sanctions order under section 271 would have been improper.
Preliminarily, we note that nothing in the text of section 271 precludes the award of sanctions against a prevailing party, and Nathalie has presented no authority standing for this proposition. But we need not decide this issue because the custody order was not based on the "changed circumstances" rule. While the court's statement of decision did note the existence of the "changed circumstances" rule, the court made no findings regarding whether there had been a substantial change of circumstances; instead, it considered the children's best interest. For example, even though the court concluded that Stephen was more likely to provide the children with frequent and continuing contact with the other parent, the trial court chose not to grant Stephen custody because it was concerned "that a change of custody to [Stephen] would absolutely be counterproductive to the children's interest in that they are so aligned with [Nathalie], thus a therapeutic setting and approach is warranted first and foremost." Because the court did not use the "changed circumstances" rule in deciding custody, we reject the premise of Nathalie's argument.
4. We Decline to Address Arguments Raised for the First Time on Reply
In her reply brief, Nathalie argues for the first time that the court failed to take into account her ability to pay the sanctions, and that its determination that she was not credible was based on "clear bias." We need not consider arguments first raised in a party's reply brief. (In re Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477 ["'Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant'"]; id. at 1478 ["'"[P]oints raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before"'"].) Nathalie has shown no good reason for her failure to argue these points in her opening brief. In any case, the court did consider Nathalie's finances, and its finding as to her credibility -- which we do not reweigh -- was based at least in part on her own contradictory testimony and unsupported accusations.
DISPOSITION
We dismiss Nathalie's appeal regarding the court's custody order as moot, and affirm the court's December 12, 2017 order awarding sanctions of $75,000 in favor of Stephen and against Nathalie. Stephen is awarded his costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J. We concur: WILLHITE, J. COLLINS, J.