Opinion
B329193
10-08-2024
In re the Marriage of THOMAS AND VIRGINA DONNELL. v. VIRGINIA DONNELL, Appellant. THOMAS DONNELL, Respondent,
Law Offices of Cynthia A. de Petris and Cynthia A. DePetris for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. BD561495 Joseph Lipner, Judge. Affirmed.
Law Offices of Cynthia A. de Petris and Cynthia A. DePetris for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CURREY, P. J.
INTRODUCTION
This case concerns a dispute over child support between Virginia Donnell (mother) and Thomas Donnell (father), the parents of 16-year-old T.D. Following a hearing, the trial court granted father's request to modify the parties' prior child support order, which required father to pay mother $2,390 per month in support, and directed mother to: (1) pay father $800 per month in child support based on the guidelines in Family Code section 4055, subdivision (a); (2) reimburse father for the support she received from January 1, 2023 to March 13, 2023; and (3) pay father $6,200 in attorneys' fees and costs under section 271.
All undesignated statutory references are to the Family Code.
On appeal, mother argues that, under In re Marriage of Cryer (2011) 198 Cal.App.4th 1039 (Cryer), the trial court should have exempted her from paying guideline support and directed father to continue paying her $2,390 monthly, even though father had sole custody of T.D. for the time being. She also seeks to overturn the award of section 271 sanctions, arguing the trial court erroneously found she acted unreasonably by relying on Cryer to oppose father's request and by rejecting his efforts to resolve their dispute outside of litigation. For the reasons discussed below, we reject mother's contentions and affirm.
BACKGROUND
Mother and father were married in December 1998. They separated in March 2012. They are the parents of T.D., born in September 2008. Before the events giving rise to this case, the parties shared joint 50/50 custody of T.D. and, per an order filed in December 2019, father was required to pay mother $2,390 per month in child support. Among other factors, father's child support obligation was based on his base income of $37,500 per month and mother's imputed income of $4,000 per month.
On April 29, 2022, T.D. refused to go to mother's home and insisted on staying with father. Consequently, father messaged mother, stating: "I don't know how to write this, but . . . [T.D.] doesn't want to go back to your house today, he is very upset and saying he doesn't want to do overnights with you going forward. He asked me to pick him up from school today, and I did. He is insistent on not going to your house. I can take him for the weekend. It sounds like we need to get a therapist involved again. I will support that."
In response to father's message, mother did not propose any therapists or cooperate with him to jointly select a therapist for T.D. Instead, on May 5, 2022, mother removed T.D. from school early against his will and took him to see two psychologists of her choosing without father's knowledge or consent. Due to this incident, T.D. refused to spend time with mother. Six days later, however, she again went to pick T.D. up from school early. Upon getting called out of class, T.D. ran away. He went to father's home and refused to go to mother's.
As a result of these incidents, on May 13, 2022, T.D.'s counsel filed an ex parte request on his behalf seeking an order requiring T.D. to remain in father's custody pending a hearing previously set for June 28, 2022. There, the trial court intended to address an ex parte application to change custody filed by mother, among other filings. The court granted T.D.'s ex parte request on the date it was filed and ordered: "Pending the next hearing, [T.D.] shall remain in the physical custody of [f]ather."
Thereafter, the proceedings were continued several times. Ultimately, on November 18, 2022, the trial court set an evidentiary hearing on mother's request for an order modifying custody, which was to take place over four days in May 2023. The court also ordered all existing custody and visitation orders to remain in place until the hearing.
On November 21, 2022, three days after the trial court set the evidentiary hearing, father's counsel e-mailed mother's counsel and asked whether she would agree to suspend father's child support payments until further order by the trial court, as he had paid mother child support throughout the time he had sole custody of T.D. Four days later, mother's counsel responded that mother did not agree to suspend father's support payments, arguing mother "is on solid ground in her objection" based on Cryer, supra, 198 Cal.App.4th 1039.
Subsequently, on November 29, 2022, father's counsel sent a letter to mother's counsel to meet and confer further on the child support matter. Asserting mother's refusal to suspend or modify father's support payments was unreasonable, counsel noted that by the time of the May 2023 evidentiary hearing, mother will have received over a year's worth of child support from father while not having T.D. in her care. Father's counsel also criticized mother's reliance on Cryer. Counsel ultimately advised that he was preparing a request for an order seeking payment of child support from mother, reimbursements by mother for father's overpayments of child support to her, and section 271 sanctions. Counsel noted that although he intended to file the request by December 1, 2022, father "remains hopeful that [mother] will resolve these issues with him" and "propose[d] that child support shall be set at $0, commencing December 1, 2022."
Receiving no substantive response to the letter, on December 2, 2022, father filed his request for an order modifying child support. He asked that the trial court order mother to pay him guideline support, reimburse him for all overpayments of child support he had paid to her through the date on which his request is heard, and award him at least $8,000 in attorneys' fees and costs as sanctions under section 271. In support of his request, father emphasized that "[u]nder the current custody orders, [he] has had sole physical custody of [T.D.] since at least [May 13, 2022]" and mother "has had no visitation with [T.D.]"
On March 13, 2023, the trial court issued a statement of decision granting father's request to modify child support. In short, as noted above, the trial court ordered: (1) retroactive to January 1, 2023, and beginning with payments on April 1, 2023, mother shall pay guideline support to father in the amount of $800 per month; (2) mother shall repay father the child support she received from January 1, 2023 to the date of the court's order; and (3) mother shall pay father $6,200 in section 271 sanctions. We will discuss the trial court's reasoning in support of its orders below.
DISCUSSION
I. Modification of Prior Child Support Order
"A child support order may be modified when there has been a material change of circumstances. [Citation.] The party seeking the modification bears the burden of showing that circumstances have changed such that modification is warranted. [Citation.] 'The ultimate determination of whether the individual facts of the case warrant modification of support is within the discretion of the trial court. [Citation.] The reviewing court will resolve any conflicts in the evidence in favor of the trial court's determination.'" (Cryer, supra, 198 Cal.App.4th at p. 1054.)
"The amount of child support normally payable is calculated based on a complicated algebraic formula found at Family Code section 4055." (Cryer, supra, 198 Cal.App.4th at p. 1047, fn. omitted.) "By statute, the amount of child support established under the guideline formula is presumed to be the correct amount of child support. [Citation.] However, that presumption 'may be rebutted by admissible evidence showing that application of the formula would be unjust or inappropriate in the particular case, consistent with the principles set forth in [s]ection 4053,' because of . . . one or more of the factors enumerated in section 4057. [Citation.] One such factor is that '[a]pplication of the formula would be unjust or inappropriate due to special circumstances in the particular case.'" (In re Marriage of Rodriguez (2018) 23 Cal.App.5th 625, 636, original italics, fn. omitted.) "The 'special circumstances' exception of section 4057, subdivision (b)(5) gives the trial court 'considerable discretion to approach unique cases on an ad hoc basis.' [Citations.] The trial court has 'broad discretion' to determine when special circumstances apply." (Cryer, at p. 1049.)
"A trial court's award concerning child support is reviewed for abuse of discretion. [Citations.] Likewise, a determination regarding a request for modification of a child support order will be affirmed unless the trial court abused its discretion ...." (In re Marriage of Leonard (2004) 119 Cal.App.4th 546, 555.) "As is standard in this type of review, we do not substitute our judgment for that of the trial court, and we will disturb the trial court's decision only if no judge could have reasonably made the challenged decision." (Cryer, supra, 198 Cal.App.4th at pp. 10461047.)
A. Background - Trial Court's Reasoning
In granting father's request, the trial court first found father "demonstrated a material change in circumstances." It explained: "The prior order . . . required [f]ather to pay mother a minimum of $2,390 per month in child support. The premise of the prior order is that [f]ather and [m]other are sharing custody of [T.D.] with each having 50% of the time. Since May 21, 2022, [T.D.] has been solely in [f]ather's custody." Thus, the court concluded: "The change in time share is a material change that necessitates a change in the child support order."
The trial court then noted that, per the formula set forth in section 4055, "[m]other owes [f]ather $800 per month in guideline child support." The court's guideline support calculation was based on its finding that mother earns at least $8,200 per month based on the tax returns filed by the law firm of which she is the sole owner. It then rejected mother's contention that deviation from guideline support was appropriate based on Cryer, reasoning "[t]he facts at issue here are far different" from those in Cryer.
B. Analysis
Because it is central to mother's argument, we begin by summarizing the Cryer opinion. There, the father was the costar of a well-known TV show, and the mother was his former spouse. (Cryer, supra, 198 Cal.App.4th at p. 1043.) In the stipulated judgment entered around the same time their marriage was dissolved, the parties agreed to share joint custody of their child, with the mother having the child 65% of the time, and the father agreed to pay her $10,000 per month in child support. (Ibid.) The child primarily resided with the mother in her condominium, which she had purchased with the father's assistance. (Ibid.)
Three years after the parties divorced, the Department of Children and Family Services initiated a dependency case on the child's behalf after his half-brother was injured in the mother's home. (Cryer, supra, 198 Cal.App.4th at p. 1044.) As a result, the child was immediately placed with the father. (Ibid.)
A few months later, the father filed an order to show cause seeking to reduce his monthly child support obligation from $10,000 to zero. (Cryer, supra, 198 Cal.App.4th at p. 1044.) He argued that because the child was in his care, and the mother was only allowed to have short periods of monitored visitation, his child support obligations should cease. (Ibid.)
The trial court modified the father's child support obligations, ordering him to continue paying $10,000 to the mother in support for the remainder of the year, and then to pay $8,000 per month beginning in January of the next year. (Cryer, supra, 198 Cal.App.4th at pp. 1044-1045.) In so doing, the court departed from the amount of support required by the statutory guidelines, i.e., payment of $1,141 per month from the father to the mother, "finding that it would be 'unjust and inappropriate' under the special circumstances of the case to modify [the father's] obligations to such an extent ...." (Id. at p. 1048.)
The appellate court affirmed the trial court's modification order. (Cryer, supra, 198 Cal.App.4th at p. 1043.) In support of its holding, the court explained: "This case . . . presented anything but normal circumstances. The trial court was faced with a pending and uncertain dependency case over which it had no control and which, although initiated months prior, was still in an early procedural stage. An imprudent order had the potential to undermine the preferred objective of the dependency matter, reunification. The trial court also faced the strong possibility that visitation and custody arrangements could change quickly, as they often do in dependency matters. Furthermore, while one parent enjoyed an extraordinarily high income and could easily afford to pay monthly child support of $8,000 or $10,000, the other had essentially no income, and would be unable to maintain a household of the sort to which [the] child was accustomed absent substantial support. Given these unusual circumstances, and particularly because the trial court's ruling reflected a paramount concern of protecting [the] child's best interest, we cannot say that the [trial] court abused its discretion." (Id. at p. 1047.)
In arguing reversal is required, mother contends the facts in this case are sufficiently analogous to those in Cryer to justify a similar departure from guideline support. Specifically, she argues that, instead of ordering her to pay father $800 per month based on the guideline formula, the trial court should have ordered father to continue paying her $2,390 per month in support, even though he had sole custody of T.D. Attempting to draw parallels between Cryer and this case, mother asserts: (1) there is a "significant gap in income" between father and herself, which should be "given great weight when making child support orders and modifications to such" under Cryer; (2) as a result of the trial court's order, she is at risk of losing her home in Long Beach where T.D. resides while in her care; and (3) father had only been granted sole custody of T.D. temporarily. With respect to her final contention, mother emphasizes that, in July 2023, the parents stipulated to resume sharing joint 50-50 custody of T.D.
Mother's contentions are unavailing because they overstate the similarities between Cryer and this case and ignore the standard of review. We acknowledge that a previously-decided case need not mirror the facts of a pending case precisely to guide the latter's resolution. (See Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [noting an opinion need not be "'on all fours'" with the pending matter to have precedential value].) The analysis of the prior case, however, must have rested on sufficiently similar facts to warrant application. (See McGee v. Superior Court (1985) 176 Cal.App.3d 221, 226 ["The holding of a decision is limited by the facts of the case being decided"].) Thus, as discussed below, we agree with the trial court that "[t]he facts at issue here are far different" from those in Cryer and conclude exemption from guideline support is not warranted based on that case.
With respect to her first argument, mother aptly observes that father earns more money than she does. The similarities between this case and Cryer end there, however. In Cryer, the father earned approximately $327,000 per month, while the mother had "negligible average income and liquid assets," and reported the father's support payments constituted her only significant source of income. (Cryer, supra, 198 Cal.App.4th at p. 1044.) Here, by contrast, the trial court found that, "far from having no income, [mother] has her own law firm that grosses over $1 [m]illion per year and nets her" income of at least $8,200 per month. The record supports the trial court's findings and additionally demonstrates mother owns over $1 million in assets, including properties located in Big Bear and Long Beach. And although father earns approximately 4.5 times more than she does, i.e., $37,500 per month, we agree with the trial court that the parties' finances here are incomparable with the parties' in Cryer.
In addition, we note the appellate court in Cryer did not - as mother contends - hold that courts should "give[ ] great weight" to the parties' disparate incomes when deciding whether to modify a child support order. Rather, as discussed above, the appellate court concluded the trial court acted within the bounds of its broad discretion by considering the parties' finances, along with numerous other facts, to order the father to pay more support than required by the guideline formula. (See Cryer, supra, 198 Cal.App.4th at pp. 1047, 1048-1051.)
Next, mother argues, as she did in the trial court, that like the mother in Cryer, she will lose the home where T.D. resides while in her care if required to pay father guideline support and repay father for the last two months of support she received. This argument is unavailing because here, in contrast with Cryer, the trial court determined: "Mother's assertion that she would lose her house if child support were suspended pending the [May 2023] evidentiary hearing is unsupported and not credible." (Cf. Cryer, supra, 198 Cal.App.4th at pp. 1044, 1046, 1050 [trial court found the mother would lose the home in which she and the child resided if father's support payments were reduced to the guideline amount].) In so doing, it found that, based on the evidence before it, mother earns (as noted above) substantial income from her law practice, which grosses over $1 million per year, receives additional income in the form of perquisites and money she was putting toward retirement, received $16,730 in child support from father across seven months in which she did not have T.D. in her care, and carried no significant debt. Accordingly, mother's argument essentially asks us to reweigh the evidence, reevaluate her credibility, and substitute our judgment for that of the trial court. This is not our function as an appellate court reviewing for abuse of discretion. (Cryer, supra, 198 Cal.App.4th at pp. 1046-1047; In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.)
For this reason, we also reject mother's contention that she will suffer an unreasonable financial burden if required to pay father $6,200 in section 271 sanctions.
We likewise reject mother's assertion that Cryer should guide the outcome in this case because here, as in Cryer, father was temporarily granted sole custody of T.D. Her argument oversimplifies the appellate court's analysis in Cryer. In affirming the modification order, the appellate court did not fixate solely on the temporary nature of the child's placement. Instead, it emphasized the child's "visitation and custody situation was potentially volatile" and "subject to potentially sudden change" because the child was involved in a dependency case "over which [the trial court] had no control and . . . was still in an early procedural stage." (Cryer, supra, 198 Cal.App.4th at pp. 1047, 1049-1050.) Here, however, T.D. is not the subject of a dependency proceeding. The trial court had exclusive control over custody and visitation. And when father filed his request to modify child support in early December 2022, the court was aware T.D. would remain in father's custody until the evidentiary hearing set for May 2023 based on its own orders in place at the time. Therefore, T.D.'s custody and visitation situation was not as unpredictable or volatile as the child's in Cryer. And although mother aptly notes the parties stipulated to resume sharing 5050 custody of T.D. in July 2023, her observation has no bearing on our analysis because the stipulation was filed two months after the trial court issued the modification order.
Finally, we are not persuaded by mother's contention that, by declining to exempt her from paying guideline support under Cryer, the trial court "impl[ied] that child support guidelines are inflexible except for in cases of extreme wealth." The trial court had "'considerable discretion'" to decide whether departure from guideline support is warranted based on special circumstances. (See Cryer, 198 Cal.App.4th at p. 1049.) Correctly eschewing Cryer's analysis because the opinion is factually distinguishable, the trial court examined the "record facts" and explained why deviation from the guideline support was inappropriate. In so doing, it did not establish a rule limiting section 4057, subdivision (b)(5)'s application to cases involving "extreme wealth." Instead, it applied well-settled legal principles to the facts before it to arrive at a conclusion falling well within the bounds of its "'broad discretion.'" (See Cryer, at p. 1049; see also McGee v. Superior Court, supra, 176 Cal.App.3d at p. 226 ["The holding of a decision is limited by the facts of the case being decided"].)
In sum, for the reasons discussed above, we conclude the trial court did not abuse its discretion by modifying child support.
II. Award of Section 271 Sanctions to Father "Section 271 provides that a family court may impose an award of attorney fees and costs 'in the nature of a sanction' where the conduct of a party or attorney '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.' (§ 271, subd. (a).) A party requesting an award of attorney fees and costs under section 271 is not required to demonstrate any financial need for the award. (Id., subd. (a).)" (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1316-1317.) "Section 271 does not require that the sanctioned conduct be frivolous or taken solely for the purpose of delay. Rather, the statute is aimed at conduct that frustrates settlement of family law litigation. Expressed another way, section 271 vests family law courts with an additional means with which to enforce this state's public policy of promoting settlement of family law litigation, while reducing its costs through mutual cooperation of clients and their counsel." (Id. at p. 1318.) "We review an award of attorney fees and costs under section 271 for abuse of discretion." (In re Marriage of Fong (2011) 193 Cal.App.4th 278, 291.)
A. Background - Trial Court's Reasoning
The trial court awarded father $6,200 in section 271 sanctions on two grounds. First, it found mother unreasonably adopted "an overly aggressive litigation position" by relying on Cryer to assert "she is not subject to guideline support, and that [f]ather should be obligated to keep paying her $2,390 per month for child support even though the child is not in her custody ...."
In support of this finding, the trial court reiterated that "there is no comparison between the mother who lacked any source of income other than child support in Cryer and [m]other here, who earns a good living and owns her own law firm which grosses over one million dollars a year."
Second, and more important, the trial court awarded father attorneys' fees and costs based on mother's outright rejection of his efforts to resolve the matter outside of litigation. It observed father initially sought to avoid litigation by suggesting suspension of his support payments without prejudice while he had T.D. in his care, but mother rejected his offer and made no counter-offer or offer to compromise of her own. Instead, the trial court noted, mother insisted that father continue paying her $2,390 monthly in support, even though she was not caring for T.D. and, consequently, "caused [f]ather to incur unnecessary fees."
B. Analysis
Mother contends the award of section 271 sanctions must be reversed because she reasonably relied on Cryer to oppose father's request to modify child support and was improperly penalized for "her refusal to settle when [father] proposed a resolution [to the child support dispute] which she did not agree with ...." Her arguments are meritless.
First, we agree with the trial court that mother's "reliance on Cryer [to demand father continue paying her $2,390 per month in support even though he had sole custody of T.D.] does not . . . withstand reasonable scrutiny." As discussed in detail above, Cryer is factually distinguishable from this case.
Next, we note that in arguing she was inappropriately sanctioned for "her refusal to settle," mother relies on In re Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th 196 (Dellaria) and Triplett v. Farmers Ins. Exchange (1994) 24 Cal.App.4th 1415 (Triplett). These cases, however, also are factually distinguishable and do not apply here.
Despite mother's argument, we discern no factual similarities between Dellaria and this case. In Dellaria, a marital dissolution action, the husband challenged the trial court's uneven distribution of community property based on the parties' oral post-separation agreement. (Dellaria, supra, 172 Cal.App.4th at p. 198.) The appellate court reversed the trial court's order, concluding the agreement was void because it violated section 2550. (Ibid.) In light of this holding, the appellate court also vacated the trial court's award to the wife of $175,000 in section 271 sanctions based the husband's rejection of the wife's settlement offer. (Id. at p. 205.) According to the wife, she proposed to settle the matter if, among other things, the husband agreed not to challenge the parties' division of property based on their oral agreement. (Ibid.) Having reversed the trial court's division of community property, the appellate court remanded the case to the trial court so it could re-evaluate whether the husband's refusal to settle was "'unreasonable and recalcitrant,'" as the wife had argued, and reconsider its section 271 sanction award. (Id. at pp. 205-206.)
For purposes of marital dissolution actions, section 2550 requires courts to "divide the community estate of the parties equally" unless the parties execute a "written agreement" or make an "oral stipulation . . . in open court" seeking other relief.
Nor are we persuaded that reversal is warranted under Triplett. That case arose out of a personal injury action. (Triplett, supra, 24 Cal.App.4th at p. 1417.) The plaintiff obtained a jury verdict against the defendant following the parties' involvement in a car accident. (Id. at pp. 1417-1418.) Later, the trial court ordered that the defendant's insurer be added to the case as an additional defendant and sanctioned the insurer over $15,000 under Code of Civil Procedure section 128.5, having found the insurer acted in bad faith by refusing to settle the case before trial. (Ibid.) The appellate court reversed, holding: "[H]owever salutary the benefits of encouraging pretrial settlements, the court is not empowered to sanction a defendant under Code of Civil Procedure section 128.5 for defending an action rather than settling, much less to add an insurer after judgment as a party in order to impose such a sanction." (Id. at p. 1418, fn. omitted.)
Code of Civil Procedure section 128.5, subdivision (a) authorizes courts to "order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay."
Again, the facts in Triplett are not akin to those in this case, as mother contends. Here, the trial court did not award father attorneys' fees and costs under Code of Civil Procedure section 128.5. Nor did it sanction mother simply because she refused to settle the dispute at hand. Instead, the trial court found that, in addition to rejecting father's reasonable proposal to suspend his child support payments without prejudice while T.D. remained in his care, mother made no attempt whatsoever to reciprocate his cooperative efforts or negotiate with him to avoid litigation. Based on these findings, which are supported by undisputed evidence, the trial court could reasonably conclude mother's immediate adoption of a hardline stance and steadfast refusal to work toward a compromise constituted "uncooperative conduct [that] . . . frustrated the policy of promoting settlement of litigation and cooperation among litigants" in family law matters. (In re Marriage of Tharp, supra, 188 Cal.App.4th at p. 1317.) Accordingly, the trial court did not abuse its discretion by awarding section 271 sanctions to father.
DISPOSITION
The trial court's order is affirmed. Appellant shall bear her own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur: COLLINS, J., FEUER, J. [*]
[*] Justice of the Court of Appeal, Second Appellate District, Division Seven, assigned to Division Four, by the Chief Justice pursuant to article VI, section 6 of the California Constitution.