Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Fresno County Superior Court. James L. Quaschnick, Judge. (Retired Judge of the Fresno S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Super. Ct. No. 04 CE FL 06982
Karen McBrien, in pro. per., for Appellant.
Stammer, McKnight, Barnum & Bailey and Abigail R. Leaf for Respondent.
OPINION
Levy, J.
Appellant, Karen McBrien (Karen), appeals from a July 17, 2008, child custody and visitation order. That order continued the award of sole legal and physical custody of the minor child to respondent, David McBrien (David), and limited Karen’s contact with the child to participation in the child’s counseling. The court also awarded David $16,000 in attorney fees under Family Code section 271.
As is customary in family law cases, the parties will be referred to by their first names for clarity. No disrespect is intended.
All further references are to the Family Code unless otherwise indicated.
Karen contends the trial court erred in ordering her to pay $16,000 in attorney fees on the grounds that the court did not consider the factors set forth in section 4320 and that the award creates an undue burden. Karen further claims that the court was biased against her and that the court did not consider important evidence affecting the custody and visitation order.
Karen has also raised issues pertaining to earlier proceedings. However, this appeal is limited to issues relating to the July 17, 2008, order. (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625.) Karen cannot relitigate the divorce proceedings by way of this appeal.
As discussed below, Karen has not met her burden of demonstrating error. Accordingly, the order will be affirmed.
BACKGROUND
Karen and David separated after 13 years of marriage. They have one minor child, M., who is 16 years old.
In March 2005, the parties stipulated to child custody and visitation. Karen moved to Texas with M. and David had weekend and holiday visitation. However, in 2006 custody and visitation were modified due to Karen’s increasingly erratic behavior. David was given custody of M. and Karen had one weekend of visitation per month in Fresno. The parties were also ordered to undergo psychological evaluations. Karen’s visitation was modified again in 2007 to two supervised hours per week pending completion of a psychological evaluation and a family assessment.
In January 2008, Dr. Richard Engeln prepared an updated psychological evaluation report. Dr. Engeln determined that Karen “does, in fact, present with a delusional thought disorder, deluded with control, and intrusion projected onto the divorce focused around Mr. McBrien and his extended family.” He opined that Karen needed to pursue psychiatric evaluation and treatment for her delusional thought disorder and to relocate closer to Fresno to facilitate regular, organized visitation. Dr. Engeln recommended that sole legal and physical custody remain with David and that Karen and M. participate in joint counseling.
Two family assessments were prepared by Cheryle Jolly. After interviewing the parties and M. and reviewing Dr. Engeln’s report, Ms. Jolly recommended that custody remain with David and that Karen have only therapeutic visits with M. Karen filed objections to both family assessments.
When the parties could not reach an agreement at a hearing on Ms. Jolly’s recommendation, the court set the matter for trial.
A two-day trial was held before the Honorable James Quaschnick on the issues of custody and visitation and David’s request for attorney fees under section 271. Although Karen was the objecting party, she called no witnesses and declined to testify on her own behalf. Testimony was given by Dr. Engeln, Ms. Jolly, and David with lengthy cross-examination by Karen.
The trial court ruled that David was to have sole legal and physical custody of M. and that Karen was to have supervised therapeutic visits with M. Based on the evidence presented at trial, the court concluded that David was a caring and responsible parent. Karen, on the other hand, had been diagnosed as delusional and paranoid and had refused to seek psychiatric help.
By way of her cross-examination of David’s witnesses, Karen set forth a plethora of accusations against David regarding his ability to properly care for M. The court found these allegations to be unfounded, without merit and not supported by the evidence. For example, Karen accused David of: trying to poison her and M.; placing her under surveillance and monitoring her home through both law enforcement and private detectives; exposing her and M. to toxic levels of asbestos; and tampering with her car’s brakes and engine numerous times. The court further noted that Karen’s trial brief consisted of 14 pages of allegations of bias and prejudice against her by law enforcement, the judges, David’s family, Dr. Engeln, Ms. Jolly, all of the agencies involved in the case, and the school system. The court stated that, through its recap of the evidence, it primarily intended to address the problems Karen was having and suggest to her what needed to be done for her own mental health in an effort to restore a relationship with her daughter and eventually establish liberal and unsupervised visitation. The court hoped that Karen would read the decision along with the psychological evaluation and mediation report with an objective attitude and recognize that she may be the problem rather than the subject of prejudice and bias by everyone else she comes in contact with concerning the issues in the case.
The trial court also awarded David $16,000 in attorney fees under section 271. The court noted that David had paid more than $32,000 in fees in responding to Karen’s petition for dissolution and her prosecution of child custody and visitation issues. Although Karen is currently representing herself, she has had four different attorneys and has sued all of them claiming they did neither what she wanted done nor what they promised. The court concluded that Karen “has pursued the prosecution of a child custody proceeding requesting custody and/or extended unsupervised visitation knowing she has not complied with court orders concerning her visitation and doing nothing constructive to provide the court with evidence of changed circumstances or providing evidence to the court it would be in the best interest of the child to change custody or order unsupervised visitation.” With regard to the financial burden on Karen, the court found that she received $2,500 in spousal support per month and had $90,000 from the proceeds of the sale of the family residence.
DISCUSSION
1. The trial court did not abuse its discretion in awarding attorney fees.
The trial court awarded attorney fees to David pursuant to section 271. Section 271, subdivision (a), provides 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.” A party requesting a section 271 award is not required to show any financial need for the award or any actual injury. (In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225.) The only stricture is that the sanction may not impose an unreasonable financial burden on the party sanctioned. (Id. at 1226.) In sum, section 271 authorizes a fees and costs award as a penalty for obstreperous conduct. (Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, 1520.)
A section 271 sanctions order is reviewed for abuse of discretion. (In re Marriage of Feldman (2007) 153 Cal.App.4th 1470. 1478.) Accordingly, the appellate court will overturn such an order only if, considering all the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably have made the order. (In re Marriage of Corona, supra, 172 Cal.App.4th at pp. 1225-1226.) The burden is on the party sanctioned to show error. (Id. at p. 1227.)
Karen contends the trial court erred in ordering her to pay $16,000 in attorney fees because it did not consider all the factors set forth in section 4320. Karen further argues the award creates an undue hardship.
Section 4320 sets forth the circumstances the court must consider in awarding spousal support. These circumstances are inapplicable to an attorney fee award under section 271. As noted above, section 271 authorizes the court to penalize a party for obstreperous conduct. With the exception of whether the sanction imposes an unreasonable financial burden on the party sanctioned, the parties’ relative financial needs are irrelevant.
Karen has also not demonstrated that the attorney fee award imposed an unreasonable financial burden. Although Karen characterizes her financial situation as bleak, she receives spousal support and has $90,000 in a trust account. Karen has not met her burden of showing the trial court abused its discretion in making the award.
2. There is no evidence of judicial bias.
Karen alleges that Judge Quaschnick was biased against her and may not have disclosed all conflicts of interest. However, there is absolutely no evidence to support Karen’s position. Rather, Karen’s claims of bias are nothing more than unsupported speculation. For example, Karen attributes statements to Judge Quaschnick that are not in the record. Karen also characterizes Judge Quaschnick’s treatment of her has derogatory whereas the record reveals that Judge Quaschnick treated Karen with patience and courtesy. Karen hypothesizes that Judge Quaschnick may have had a conflict of interest because a partner in his former law firm treated her rudely. However, Judge Quaschnick stated that he had never heard of this case before. Karen further contends Judge Quaschnick improperly excluded evidence but she offered no evidence for him to exclude. Accordingly, Karen has not demonstrated bias.
3. The trial court’s custody and visitation order is supported by the record.
In making custody and visitation orders, the overarching concern is the best interest of the child. (In re Marriage of Lucio (2008) 161 Cal.App.4th 1068, 1076.) In making this determination, the trial court is given discretion to consider any relevant factors. (In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1343.)
On appeal, the standard of review is the deferential abuse of discretion test. (Ragghanti v. Reyes (2004) 123 Cal.App.4th 989, 995.) Thus, the appellate court must uphold the trial court if its ruling is correct on any basis. (Id. at p. 996.) The court asks “‘… whether any rational trier of fact could conclude that the trial court order advanced the best interests of the child.’” (In re Marriage of Battenburg, supra, 28 Cal.App.4th at p. 1343.)
Karen argues the visitation is too minimal to maintain a parent-child relationship and must be reversed for that reason. However, the court carefully considered the evidence before it and concluded that this visitation schedule was in the best interests of M. This evidence, which includes Dr. Engeln’s psychological evaluation, Ms. Jolly’s family assessment and the testimony given at the hearing, supports the trial court’s order. Dr. Engeln concluded that Karen is a person who suffers from mental illness and needs psychiatric treatment. Based on his interviews with both Karen and M., Dr. Engeln recommended that visitation be limited to “participation in a conjoint therapeutic experience,” with extensions of visitations at the discretion of the therapist. Ms. Jolly’s conclusions were in accord. Despite these expert recommendations, Karen refuses to seek psychiatric treatment.
Karen further contends the trial court did not consider evidence of David’s prior domestic violence or inadequate care of M. However, Karen presented no evidence substantiating her claims. Rather, she merely made unfounded allegations of such behavior. Neither Dr. Engeln nor Ms. Jolly found evidence of domestic violence or substandard parenting. Similarly, the court found Karen’s allegations to be unfounded and meritless.
Karen also argues that the psychological evaluation and family assessment were flawed and biased. Again, Karen provides no support for her allegation.
Finally, Karen asserts that M. was concealed during the trial and that the court did not allow her to call M. as a witness. However, Karen made no effort to have M. testify. Karen chose to not call any witnesses.
In sum, the trial court’s custody and visitation order is supported by substantial evidence. Any rational trier of fact could conclude that the trial court advanced the best interests of M.
4. Motions on appeal.
Karen has filed two motions. Karen first seeks production of further evidence on appeal. This additional evidence includes discovery of whether: David, his relatives and others obtained an order against Karen that has made all rulings go against her, precluded her from assistance, or made her the subject of research by law enforcement; Karen has been deceived by David since the beginning of their marriage; David is of a federal agency or contractor working against Karen; David intended to use Karen and minor child for research conducted by his family’s firm; David and his firm have been surveilling Karen in all places. According to Karen, she was unable to produce this evidence in the trial court because the governmental agencies would not grant her discovery and because she had ineffective assistance of counsel.
Karen’s second motion is for factual determinations to be made upon appeal. Karen’s lengthy list of requests pertains to Judge Quaschnick, David, and David’s counsel. For example, with respect to Judge Quaschnick, Karen requests this court to determine whether: his wife was involved in this matter; his prior law firm had cases involving the parties; he is part of the same minority group or belongs to the same religious society as David’s relatives; he is of the same minority status as David, i.e., is a pro-homosexual judge; he was in the military because he may be involved with a life sciences group. Karen’s requests regarding David and his counsel are along similar lines, such as “[w]hether [David] married [Karen] in conjunction with a governmental malicious prosecution and/or civil conspiracy against her, which may have begun in 1985, the first year that [Karen] was introduced to [David], and whether [David] was an informant for the government throughout the marriage, causing intentional distress to [Karen] and [the] minor child, in order to gain a reward for it from the government or have the ability to use [Karen] and [the] minor child for research, in order to gain profits from it” and whether David’s counsel, being Bavarian, works for the Foreign Service, State Department or other governmental agency as an agent.
Karen relies on Code of Civil Procedure section 909 in support of her motions. That section does authorize the appellate court to make factual findings on appeal. However, this authorization does not affect the respective provinces of the trial court and the appellate court, i.e., the trial court decides questions of fact and the appellate court decides questions of law. (In re Heather B. (2002) 98 Cal.App.4th 11, 13; Monsan Homes, Inc. v. Pogrebneak (1989) 210 Cal.App.3d 826, 830.) Rather, the power to invoke Code of Civil Procedure section 909 is to be exercised sparingly, and absent exceptional circumstances, no such factual findings should be made. (In re Heather B., supra, 98 Cal.App.4th at p. 14.) Further, such power will not be exercised except to affirm the judgment. (Ibid.)
Here, Karen has not presented exceptional circumstances justifying taking evidence or making factual findings on appeal. Her requests are based on unfounded and fantastic speculation. Moreover, she is requesting that this court make factual findings to reverse the trial court, not affirm it. Accordingly, the motions are denied.
DISPOSITION
The order is affirmed. Costs on appeal are awarded to respondent.
WE CONCUR: Ardaiz, P.J.Gomes, J.