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In re Marriage of Earnshaw

California Court of Appeals, First District, Third Division
Sep 30, 2008
No. A119789 (Cal. Ct. App. Sep. 30, 2008)

Opinion


In re the Marriage of CHRISTINE EARNSHAW and KARL NICHOLAS. CHRISTINE EARNSHAW, Respondent, v. KARL NICHOLAS, Appellant. A119789 California Court of Appeal, First District, Third Division September 30, 2008

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Marin County Super. Ct. No. FL023263

Siggins, J.

Karl Nicholas (Father) appeals the family court’s order denying his motion to modify a stipulated judgment regarding visitation and child support, and awarding respondent Christine Earnshaw (Mother) $1,500 in sanctions. We find no abuse of discretion and affirm.

Factual and Procedural Background

In October 2005, the parties and their counsel agreed to a stipulated judgment of dissolution on reserved issues. Sole legal and physical custody of the couple’s eight-year-old daughter was awarded to Mother, and she was permitted to move to Australia with the child. The stipulated judgment included a domestic violence restraining order, provided for supervised therapeutic visitation with Father, and continued monthly child support. The court retained jurisdiction “for a period of two years from October 19, 2005 so long as [Father] resides in the nine Bay Area counties . . . .”

The stipulated judgment was entered in January 2006.

The stipulated judgment provided for supervised telephone contact and therapeutic visitation with Father under the supervision of Dr. Nancy Frease until Mother and child relocated to Australia, and for appointment of an Australian therapeutic supervisor thereafter who was “experienced in matters involving allegations of sexual abuse.” The parties agreed to “share equally the expenses for the Australian telephonic and Australian visitation supervisors in regard to supervised telephonic contact and supervised therapeutic visitation.” Father’s opening brief states that “[s]upervised visitation is ordered because of serious accusations of child sexual abuse made by the child at the onset of this case.”

In January 2006, Mother and daughter relocated to Australia. In April 2007, the court appointed Dr. Wendy Roberts as the therapeutic visitation supervisor in Australia. Father appealed that order, but subsequently dismissed his appeal. In July 2007, the family court, pursuant to Family Code section 2030, ordered Father to pay Mother’s attorney fees in connection with that dismissed appeal. Father appealed the fee order, and this court reversed because the judgment on reserved issues specifies that the parties would each bear their own costs and attorney fees in this action.

Family Code section 2030 authorizes the family court to “ensure that each party has access to legal representation to preserve each party’s rights by ordering, if necessary based on the income and needs assessments, one party . . . to pay to the other party . . . whatever amount is reasonably necessary for attorney’s fees and for the cost of maintaining or defending the proceeding during the pendency of the proceeding.” (Subd. (a)(1).) All further statutory references are to the Family Code.

In this appeal, Father seeks review of the denial of his August 2007 motion seeking modification of visitation and child support, and proposing to replace the parties’ stipulated judgment with a new 11-page order. Mother successfully opposed the motion, and was awarded attorney fees and costs as a sanction.

Father appeared in propria persona at the hearing and Mother appeared through counsel. Father had no “current information about the child,” and claimed that Dr. Roberts, the court-appointed Australian visitation supervisor, was not responsive to his concerns. When the court asked Mother’s counsel if he had similar difficulty communicating with the Australian visitation supervisor, counsel said he did not.

Father’s opening brief states that “visitation between the father and the child ceased after the mother moved to Australia in January 2006.”

The court denied Father’s motion to modify the child custody and visitation order because Father had not demonstrated a significant change in circumstances. The court suggested that Father take advantage of the opportunity to arrange visitation with his daughter, and advised him: “[Y]ou keep throwing up obstacles so that these visits don’t happen. [¶] It’s very simple. You pay the retainer to the supervisor, and she sets up a time and place for the calls to take place. That’s all there is to it.”

The court determined that Father’s inability to visit with his daughter was, in part, due to his own conduct. Father refused to sign Dr. Robert’s retainer agreement, and had recently written to her and said “that he refused to participate in supervised visitation despite the fact that Dr. Roberts agreed to comply with the protective order and confidentiality provisions of the Stipulated Judgment.” The court found nothing improper about Dr. Robert’s access to confidential documents concerning this case, and “that good cause exists for the visitation supervisor to have access to the parties’ evaluation if she complies with the Judgment provisions regarding confidentiality.” Specifically, the court concluded “that either parent’s privacy rights do not override the best interests of the child.”

The court found that Dr. Roberts “has the expertise, training and experience to establish the proper visitation protocol. Dr. Roberts appears willing and able to initiate the visits and Mother has signed her retainer agreement.” The court also found that Dr. Frease, who previously supervised visitation in California, “has submitted a statement in which she declines to fulfill her role as visitation supervisor.”

The court directed that Father’s motion to modify child support be heard in the Department of Child Support Services. The court declined to set aside the provision in the stipulated judgment that reserved jurisdiction in Marin County until October 19, 2007, “except for any jurisdiction exercised by the Department of Child Support Services.” The court observed that after October 19, 2007, the action would be transferred to Australia, where a case had been initiated by Mother in accordance with the stipulated judgment. The court also concluded that “[t]he parties’ Stipulated Judgment is a final order and the time for appeal has run.”

The court found that “[Father’s] conduct has frustrated effectuating the court’s order regarding supervised visitation and has resulted in Mother having to incur significant attorney’s fees and costs to respond to [Father’s] filings and dismissals.” Father was ordered to pay Mother $1,500 “as sanctions for attorneys fees and costs pursuant to Family Code §271.” The court also advised Father “that any further attempts to circumvent valid, final orders will result in a further fee award to Mother . . . .” Father timely appealed.

Section 271, subdivision (a) provides, in relevant part: “Notwithstanding any other provision of this code, the court may base an award of attorney’s fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney’s fees and costs pursuant to this section is in the nature of a sanction.”

Discussion

A. Motion to Modify Stipulated Judgment

“ ‘The standard of appellate review of custody and visitation orders is the deferential abuse of discretion test.’ ” (Montenegro v. Diaz (2001) 26 Cal.4th 249, 255.) Father has not shown that the family court abused its discretion when it denied his motion to modify the stipulated final judgment.

Father argues the court erred by requiring him to show changed circumstances in order to justify a modification of the judgment, because there was no “clear, affirmative indication” that the parents intended the stipulated custody determination to be final. But at the same time Father concedes that the parties’ “custody and visitation agreement was entered by the Marin County Superior Court as a final judgment between the parties in this case.” The language of the stipulated judgment also supports the family court’s ruling. (Cf. In re Marriage of Richardson (2002) 102 Cal.App.4th 941, 951-952 [no clear affirmative indication parties intended stipulated dissolution judgment to be a final judicial determination of custody, when language of order and parties’ conduct suggested they did not intend it to be permanent].)

Father argues that even though he did not need to make such a showing, there has been a significant change in circumstances “[b]ecause Nancy Frease, the Marin therapist, has declined to fulfill her role [as visitation supervisor], and because almost two (2) years have elapsed since contact between the Father and the child . . . .” When the trial court considered these circumstances, it concluded that the Australian visitation supervisor was ready and able to facilitate visitation, and it was Father who had refused to cooperate and take advantage of visiting opportunities. The stipulated judgment’s general requirement for “reasonable visitation” between Father and daughter does not trump the specific provisions regarding supervision of visitation, and Father has not shown that the court “abused its discretion by refusing to issue orders the visitation must commence as soon as possible.”

Father also argues that the court erred when it referred his motion to modify child support to the Department of Child Support Services. He contends that section 17404, subdivision (e)(4) prohibits the Department from ruling on his request. But Father does not demonstrate that he raised this issue in the trial court, and he has therefore waived it on appeal. (See Jansen Associates, Inc. v. Codercard, Inc. (1990) 218 Cal.App.3d 1166, 1170.) Nor has Father shown that section 17404 applies to the order here under review, which does not require the Department of Child Support Services to determine custody or visitation.

Father relies on language in section 17404, subdivision (e)(4) that states: “Orders concerning custody and visitation may be made in an action pursuant to this subdivision only if orders concerning custody and visitation have not been previously made by a court of competent jurisdiction in this state or another state and the court has jurisdiction and is the proper venue for custody and visitation determinations.”

Father also argues that the court order violates sections 3100, subdivision (c) and 3011, subdivision (e)(1) because those sections require that when a protective order has been issued, the court’s visitation order must specify the details of visitation. Again, Father does not claim to have raised this issue in the trial court, and he has therefore waived the right to argue it on appeal. Nor is Father’s argument persuasive on the merits.

Section 3100, subdivision (c) provides that “the visitation order shall specify the time, day, place, and manner of transfer of the child, so as to limit the child’s exposure to potential domestic conflict or violence and to ensure the safety of all family members.” (Italics added.) Section 3011, subdivision (e) provides for similar specificity in the visitation order when the court awards custody to a parent who is alleged to have been abusive, but also provides that the subdivision “shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.” (§ 3011, subd. (e)(2).)

Father argues that the trial court erred by ordering that “any relevant documents” be given to Dr. Roberts, the Australian visitation supervisor. The stipulated judgment provided that various documents generated in connection with the case would be “subject to a protective order such that they shall only be used in this custody proceeding, in child’s therapy, or child’s medical treatment.” Therefore, Father argues, it was error to give them to Dr. Roberts. But the court found that its “previous order stated that the visitation supervisor should be provided with all relevant documents, including the evaluation as this is related to the ‘custody proceeding(s)’,” and that “good cause exists for the visitation supervisor to have access to the parties’ evaluation if she complies with the Judgment provisions regarding confidentiality.” (See § 3025.5, subd. (d) [authorizing disclosure of confidential evaluations to “[a]ny other person upon order of the court for good cause”].) Nor has Father shown that the court “abused its discretion by failing to dismiss the Australian supervisor in the best interest of the child.”

Father’s final argument on the merits is that the family court “has continuing and exclusive jurisdiction,” which it could not “summarily cede” to Australian courts. But the stipulated final judgment provides that the Marin County Superior Court would only retain jurisdiction until October 19, 2007, and it permitted Mother and daughter to relocate to Australia. The court declined to set aside the provisions concerning jurisdiction. At the hearing on Father’s motion to modify the stipulated judgment, the court also observed: “I think that the court in Australia where the therapist is located and [the child] is located probably would have a better ability to get a beat on what’s in the best interest of the child.” Father has not shown that the court erred when it declined to adopt his proposed modification that would have provided for jurisdiction to remain in Marin County until the child reached the age of majority. Moreover, unlike the cases cited by Father, the court here did not purport to terminate parental rights by stipulation of the parties. (See In re Marriage of Jackson (2006) 136 Cal.App.4th 980, 990-993; Kristine M. v. David P. (2006) 135 Cal.App.4th 783, 790-792.)

B. Sanctions Award

“[S]ection 271 provides that the court may impose an award of attorney’s fees and costs ‘in the nature of a sanction’ where the conduct of a 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.’ ” (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82.) We review the court’s ruling for abuse of discretion, and overturn it “ ‘ “only if, considering all the evidence viewed most favorably in support of its order, no judge could reasonably make the order . . . .” [Citations.]’ ” (Ibid; accord, In re Marriage of Feldman (2007) 153 Cal.App.4th 1470, 1478.)

When she opposed Father’s motion to modify the stipulated judgment, Mother requested attorney fees and costs of $2,500 pursuant to section 271, and the court awarded $1,500 in sanctions. On appeal, Father argues the order was error because there was “no evidence to support a need for sanctions.” But as the trial court concluded: “[Father’s] conduct has frustrated effectuating the court’s order regarding supervised visitation and has resulted in Mother having to incur significant attorney’s fees and costs to respond to [Father’s] filings and dismissals.” The court explained to Father: “I have myself sat through sufficient hearings in this case and understand that the amounts expended by mother must be far in excess of $1,500. And that amount is simply an amount being imposed so that you understand that there are consequences and ramifications to the filing, and dismissing, and the contesting of things that frankly don’t need to be contested, or that are later dropped. And of taking positions, frankly, that are without any and/or all legal merit. [¶] So that’s the basis for the fee award.” Sanctions were awarded because Father repeatedly and without legal justification was challenging and contesting court orders, or in his words, was “attempting to mediate issues.” Father has failed to show the court abused its discretion in doing so.

In his reply brief, Father requests that we take notice of our prior decision “that both parties are to bear their own costs and fees . . . .” But our prior decision reversed the court’s award of attorney fees under section 2030. We did so because the language of the stipulated judgment requires the parties to bear their costs and fees. This appeal involves an award of sanctions under section 271. Father cites no authority that suggests the terms of the stipulated judgment precluded an award of sanctions under section 271 in these circumstances.

Because we find no abuse of discretion and affirm the court’s orders on the merits, we do not address Mother’s argument that the appeal should be dismissed as moot because, under the Uniform Child Custody Jurisdiction Act, the court no longer retains jurisdiction over visitation. No one disputed that the family court had jurisdiction to consider Father’s motion to modify the stipulated judgment when it made the orders under review in this appeal.

Disposition

The orders of the court are affirmed.

We concur: McGuiness, P. J., Jenkins, J.


Summaries of

In re Marriage of Earnshaw

California Court of Appeals, First District, Third Division
Sep 30, 2008
No. A119789 (Cal. Ct. App. Sep. 30, 2008)
Case details for

In re Marriage of Earnshaw

Case Details

Full title:CHRISTINE EARNSHAW, Respondent, v. KARL NICHOLAS, Appellant.

Court:California Court of Appeals, First District, Third Division

Date published: Sep 30, 2008

Citations

No. A119789 (Cal. Ct. App. Sep. 30, 2008)