Opinion
B288727
06-16-2020
In re the Marriage of CATHY E. and LEIF J. HARCKE. CATHY E. HARCKE, Respondent, v. LEIF J. HARCKE, Appellant.
Greene Law and Colin T. Greene for Appellant. Law Office of Noelle M. Halaby, Noelle M. Halaby and Maria D. Houser for 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BD630051) APPEAL from a judgment of the Superior Court of Los Angeles County, Robert B. Broadbelt III and Carl H. Moor, Judges. Affirmed. Greene Law and Colin T. Greene for Appellant. Law Office of Noelle M. Halaby, Noelle M. Halaby and Maria D. Houser for Respondent.
____________________
Leif J. Harcke (Father) appeals from the judgment entered following a marital dissolution trial. Father contends the family court erred in denying his request for a child custody evaluation to determine whether his two children had special needs requiring their mother, Cathy E. Harcke (Mother), to work part time and to care for the children after school, and in denying Father's request to impute income to Mother when calculating child and spousal support. Father also contends the trial court erred in ordering sanctions against him pursuant to Family Code section 271. We affirm.
All further undesignated statutory references are to the Family Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Petition for Dissolution and Pretrial Orders
The background facts are taken from the parties' declarations submitted in connection with their requests for orders regarding child custody.
Mother and Father were married in 1999 and have two children together: daughter Haley, born in 2004, and son Erik, born in 2007. Mother has a doctorate in physical therapy and works part time as a pediatric physical therapist. Father has a Ph.D. in mechanical engineering and works full time as a systems engineer.
On November 5, 2015 Mother filed a petition for dissolution of marriage, seeking a determination of custody and visitation, child and spousal support, and a division of property. On March 15, 2016 Mother filed a request for order (RFO) seeking primary physical custody of the children, at least $2,500 per month in spousal support, and guideline child support based on mother's working 10 hours per week as a physical therapist and caring for the children after school. In her declaration in support of the RFO, Mother stated it was critical she spend afternoons helping the children with their homework because Haley has attention deficit hyperactivity disorder (ADHD) and Erik "is on the autism spectrum and has developmental delays, including in writing, so writing assignments are especially challenging." Father stated in his responsive declaration Haley was thriving academically and testing in the highest ranges, and Erik had never been diagnosed with autism and studied in a general education classroom.
Section 4055 provides a mathematical formula for computing the guideline amount of child support based on the relative income of the parents and their time-sharing arrangement for physical custody of the children.
The family court heard Mother's RFO on May 4, 2016 and awarded Mother $1,100 per month in spousal support and a total of $1,935 per month for the children in guideline child support. The court did not impute income to Mother, "finding that it's not in the best interest of the minor children at this time because children have special needs and the Mother attends to those special needs and the Father has not met his burden of proving the ability and opportunity [for Mother] to earn[] the amount [F]ather seeks to impute to the Mother at this time." The court deferred ruling on custody based on the parties' stipulation to participate in a one-day child custody evaluation (parenting plan assessment; PPA) to be conducted by a family court services child custody evaluator.
Judge Robert Broadbelt III presided over the case from the time of filing through the trial setting conference on December 19, 2016; Judge Mark Epstein presided over pretrial proceedings in early 2017; Judge Hank Goldberg presided over the final pretrial and settlement conference on August 1, 2017; and Judge Carl H. Moor presided over the trial beginning on August 7, 2017.
Anne Lintott, a licensed family and marriage therapist and a court-appointed child custody evaluator, conducted the PPA on the morning of August 4, 2016. Lintott met with Mother and Father and each of the children, and she spoke with Cecily Roberts, an occupational therapist employed by the Glendale Unified School District who worked with Erik during second and third grade. That afternoon, Lintott presented her findings and testified at a hearing on the PPA. Following the hearing, and relying on Lintott's recommendation, the family court ordered joint custody pursuant to a coparenting plan that allocated custodial time approximately 60 percent to Mother and 40 percent to Father, with Mother having primary custody on most weeknights during the school year.
On October 7, 2016 Father filed an RFO to modify custody and support based on Mother's increase in working hours from 10 to 25 hours per week, and Father's contention Mother should be working full time, further reducing Father's support obligations. Father also requested the court order a "full" child custody evaluation and a vocational evaluation of Mother to assess her earnings capacity. Father argued the PPA was deficient because Lintott had substituted for a different child custody evaluator on the morning of the PPA and had "insufficient time and resources to properly evaluate this case." Further, Lintott failed to telephone Haley's school therapist or the director of Erik's individualized education plan (IEP). Father maintained "it is in the best interests of the children to have a full custody evaluation. This will allow time for them to be observed in both households and at school, to give the evaluator enough time to interview several of the teachers and behavioral service providers at school, so that the full scope of their custodial needs can be clearly identified."
The family court heard Father's RFO on November 30, 2016. The court denied Father's request for modification of the existing custody order and his request for a child custody evaluation, finding Father "has not met his burden of proving it is in the best interest of the minor children to order a full child custody evaluation pursuant to . . . section 3111." However, the court granted Father's request for a vocational examination of Mother to assess her ability to obtain employment to maintain herself at the marital standard of living. The court also found Mother's increased income from working 25 hours per week constituted significant changed circumstances warranting adjustment of Father's support obligations. B. Evidence at Trial
Father did not designate any trial testimony in his notice designating the reporter's transcript on appeal. Father listed exhibit Nos. 1 through 108 on his designation, but according to the statement of decision, the exhibits were to be picked up from the court and maintained by the parties. The trial exhibits are not included in the record, and Father has not requested we augment the record to include them. (Cal. Rules of Court, rule 8.155(a).) Mother filed a request to augment the record to include the trial testimony of Mother, Roberts, and Melissa Stephan, which we granted on April 12, 2019. On appeal, "'"the appellant bears the burden of providing an adequate record affirmatively proving error."'" (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 996; accord, Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 970.) "'"Failure to provide an adequate record on an issue requires that the issue be resolved against appellant."'" (Mack v. All Counties Trustee Services, Inc. (2018) 26 Cal.App.5th 935, 940; accord, Hotels Nevada, LLC v. L.A. Pacific Center, Inc. (2012) 203 Cal.App.4th 336, 348.) Our summary of the evidence at trial therefore relies on the testimony of the three witnesses included in the record and the family court's factual findings set forth in its statement of decision.
The trial was held on August 7, 8, and 14, 2017. Prior to trial the parties reached several stipulations resolving their disputes concerning the division of property. The family court noted the primary issues for trial concerned custody and visitation, specifically, "whether and to what extent Erik and Haley have special needs, and whether their best interests are best promoted by [Mother]'s availability to be an after school parent, as [Mother] contends, or by their attendance in an after school program, as [Father] contends," and spousal and child support.
Judge Moor.
The only disputed issues with respect to child support at trial concerned the custodial time share and Mother's income, including whether income should be imputed. Other guideline support factors, including the children's expenses and Father's income and benefits were undisputed. On appeal Father does not challenge other aspects of the family court's awards of child and spousal support.
Mother and Father and several nonparty witnesses testified at trial. Roberts (Erik's occupational therapist) testified on Mother's behalf. Melissa Stephan, a third grade teacher who knows both children, had Erik in her class, and was part of Erik's IEP team, also testified for Mother. Lintott, the court custody evaluator, testified about the PPA, and the court also received her August 4, 2016 testimony by stipulation of the parties. The court received the report and heard testimony from Kim Shirin, Ph.D, a marriage and family therapist Father retained to evaluate Lintott's PPA under Evidence Code section 733. Finally, the court received the report and heard testimony from Phillip Sidlow, an expert on vocational economic analysis whom Father retained to conduct the vocational evaluation of Mother.
Evidence Code section 733 allows a party to introduce expert evidence on the same matters addressed by an expert appointed by the court under Evidence Code section 730.
1. Testimony concerning Erik's needs
Erik, who was 10 years old at the time of trial, does not have a medical diagnosis of autism. However, his school developed an IEP for him in recognition of his entitlement to occupational therapy based on "characteristics of autism." As Roberts testified, "[Erik] is extremely distracted. He has a very difficult time staying on task. He has difficulty following directions. If they're given verbally, if they're given in a written way, if he has a piece of paper in front of him and he understands what to do and it's at his academic level, it is extremely difficult to get him to get started on the assignment, to then sustain his attention throughout it in order to complete it." Further, Erik is emotional and "holds on to the issue and it becomes his sole focus, and he really can't think about anything else until he's able to get past that, and that may take an hour even for a very small thing."
As a result, Erik cannot complete assignments without continual adult prompting. Roberts testified, "It's mandatory. It's required. I've never observed Eri[k] complete work without adult prompting." According to Roberts, it takes Erik at least twice as long to complete assignments as his peers, he often must bring unfinished schoolwork home to try to keep current with his classmates, and he requires adult supervision to complete homework just as in school. Stephan likewise testified Erik requires an adult support person with him at all times in the classroom.
According to the testimony, traditional afterschool programs are not well-suited to Erik's special needs because the length of the school day is already taxing on Erik. Roberts testified, "He struggles all day long for six hours during the normal school day. And then afterwards he's being asked to do homework, and not only the homework that everyone else has, but also work that he missed during the school day because he was already trying to keep up and wasn't able to." Mother added, "[S]ometimes after school or evenings, especially after a long day, he doesn't have the same coping strategies that he would have on Saturday at 10 o'clock in the morning. I see that both after school, and the longer the day and the longer he's been at school, the more I see that." Roberts also noted afterschool programs are geared more toward student safety than helping students finish their work: "Eri[k] is not the type of student who you can say, 'Eri[k], go do your homework,' and then he'll go do it. He isn't capable of doing it. He needs assistance with that, and the after school program doesn't have the structure in place. It doesn't have enough adults to be able to manage that." Further, "he's so easily distracted that if it were the kind of situation where he was being asked to sit down and do his work and other students were already done and they were playing, he would perceive that as being very unfair and be distracted by watching other kids playing."
2. Testimony concerning Haley's needs
Haley, who was 13 years old at the time of trial, is a strong student, but she suffers from anxiety and has a "Section 504" plan from her school district for her ADHD. Mother testified Haley often struggles to complete her math homework, and Mother often tutors Haley in math: "I've had days where I've done two hours of math homework with her in one day, many days like that." During court-ordered therapy, Haley reported her "biggest stress is having to plan how to get help with her homework now that she does not see her mother every day." Mother testified although Haley's special needs are not as significant as Erik's, Haley "has her own needs and work that has to be completed," and if Mother were to pick Erik up from an afterschool program in the evening after work, rather than earlier in the afternoon, "I don't just have two kids to do homework with. I also have to take care of dinner and their basic needs as well."
Section 504 of the Rehabilitation Act of 1973 and the federal implementing regulations require public schools to provide a plan of accommodation for children with qualifying disabilities to satisfy their special needs. (29 U.S.C. § 794; 34 C.F.R. 104.1 et seq.)
3. Mother's income potential
The family court found Mother was employable as a full-time physical therapist with four years of experience; the median salary range in the Los Angeles area for such a position ranged between $68,000 and $97,000 per year, and the work was readily available. Mother's actual gross monthly income, based on working 24 hours per week at $36 per hour, was $3,792 ($45,504 per year). The court found Mother's current hourly wages provided credible evidence of her earnings capacity, such that Mother would earn $6,240 per month ($74,880 per year) if she worked 40 hours per week. C. Statement of Decision and Judgment
The family court issued a final statement of decision on December 3, 2017, finding it was in the best interests of the children to adopt the parenting plan already in place with a 60/40 custody allocation and preference for Mother's custody after school. The court reasoned, "The current parenting plan was adopted initially at the time of the PPA in August 2016 based upon the recommendations of Ms. Lintott. The Court finds Ms. Lintott's testimony on the best interests of Haley and Erik to be credible and her recommendations to be well-founded. Specifically, the Court agrees with Ms. Lintott's recommendation that a parenting plan that promotes, to the extent possible, [Mother's] role as the after school parent during most of the weekdays promotes important structure and consistency for the minor children, who, as discussed below, have unique needs."
With respect to Dr. Shirin's Evidence Code section 733 evaluation of the PPA, the family court found, "Some of Dr. Shirin's critiques regarding the limited nature of the PPA are well founded: [H]e credibly testified that Ms. Lintott's evaluation was performed on a compressed time schedule, only included one collateral witness (Cecily Roberts), and necessarily was based on limited information. . . . Dr. Shirin's critiques fail, however, to undermine the fundamental conclusions reached by Ms. Lintott in the PPA, particularly when viewed in light of the totality of evidence introduced at trial. For example, neither Dr. Shirin nor [Father] identify any specific documents, information, or collateral witnesses not considered by Ms. Lintott that cast doubt on her conclusions."
Crediting the testimony of Roberts and Stephan, the family court found the "evidence supports a finding that Erik requires near constant adult prompting to get his academic work done," and "[t]hese challenges that he faces on a daily basis support [Mother's] view that the custody and visitation order should, in Erik's best interests, promote [Mother's] availability to provide after school help for Erik." By contrast, "[Father's] proposal that Erik be regularly enrolled in traditional after school programs as a complete substitute for the afternoons that [Mother] spends with Erik, either at his school or at [Father's] workplace . . . , fails to account for Erik's special needs. . . . [Father] has made no showing that the kind of adult prompting and attention that Erik needs is available at either after school option he recommends." With respect to Haley, the court found "[the] combination of Haley's wishes and her own anxiety over homework indicate it is in her best interests to also have [Mother] available as an after school parent, given that [Mother] will be assisting Erik."
With respect to Father's child support obligation, the only remaining dispute after resolution of the custodial timeshare was whether to impute income to Mother based on her full-time earning capacity in calculating guideline support. The court found credible Sidlow's testimony Mother "has an earning capacity greater than her current income because she could obtain full-time work based upon her qualifications and the availability of jobs for which she is qualified." However, the court "decline[d] to exercise its discretion to base its child support calculation on [Mother's] earning capacity, rather than her actual income, because to do so would not be consistent with the best interests of Erik and Haley." In reaching this conclusion, the court found "credible [Mother's] testimony that the part-time schedule of 24 hours per week that she is currently working is designed to maximize her work hours consistent with these after-school obligations for the children."
With respect to spousal support, the court declined to reduce Father's payments or issue a Gavron warning to Mother, concluding, "Given the circumstances discussed above in connection with imputation of income to [Mother] and the overall factors under . . . section 4320, the court finds that it is not in the best interests of the minor children at this time to set the expectation that [Mother] shall be self-supporting." The court ordered Father to pay Mother child support in the total amount of $1,843 per month and spousal support of $1,650 per month.
In In re Marriage of Gavron (1988) 203 Cal.App.3d 705, 712 the Court of Appeal concluded the family court must provide a warning to a supported spouse of the need to become self-supporting before the court modifies spousal support based on the failure to achieve this status.
Finally, the family court awarded Mother $15,400 in attorneys' fees and costs incurred during the period between the settlement conference and the trial pursuant to section 271, finding Father did not participate in settlement negotiations in good faith. The court declined to award Mother additional attorneys' fees pursuant to section 2030, finding no disparity between the parties in access to funds to retain counsel.
The family court entered judgment on January 12, 2018, including final orders concerning custody and support. Father timely appealed.
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Denying Father's Request for a Full Custody Evaluation
Father contends the family court erred in denying his pretrial request for a full custody evaluation, thereby leaving him "without evidence to establish his argument that the children do not have special needs that necessitate [Mother] working only part-time." Father's argument is not persuasive.
"A 'child custody evaluation' is an expert investigation and analysis of the health, safety, welfare, and best interest[s] of children with regard to disputed custody and visitation issues." (Cal. Rules of Court, rule 5.220(c)(3).) A family court may order a child custody evaluation pursuant to section 3111, subdivision (a), which provides "the court may appoint a child custody evaluator to conduct a child custody evaluation" if the court determines that such an evaluation is in the child's best interests. (See In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 221 ["[S]ection 3111 authorizes use of a 'court appointed investigator' to 'conduct a custody investigation and file a written confidential report on it.'"].) Evidence Code section 730 likewise provides the court "may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial." (Accord, In re Marriage of Lloyd, at p. 221 ["The objective of the court in seeking 'reports and recommendations' and 'input' on custody, visitation and related issues may be met by appointment of an expert under Evidence Code section 730 . . . ."]; see Cal. Rules of Court, rule 5.220(b) [setting qualifications and procedures "govern[ing] both court-connected and private child custody evaluators appointed under Family Code section 3111 [or] Evidence Code section 730"].)
A family court's decision whether to appoint a child custody evaluator is reviewed for an abuse of discretion. (In re Marriage of E.U. & J.E. (2012) 212 Cal.App.4th 1377, 1391; In re Daniel C. H. (1990) 220 Cal.App.3d 814, 835.) Where the trial court has sufficient information on which to make a child custody determination, it is not an abuse of discretion to deny a child custody evaluation. (See In re Daniel C. H., at p. 835 [trial court did not abuse its discretion in denying father's request for an independent expert in addition to two court-appointed evaluators because "further evaluation of [child] by yet another expert would be detrimental to [child] and . . . unnecessary because of the availability of sufficient expert opinions"]; cf. Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 906 [family court abused its discretion in granting out-of-state father primary physical custody without adequately weighing factors, noting the "court missed an opportunity to obtain expert guidance when it rejected the parents' stipulation to share in the costs to retain and use an Evidence Code section 730 evaluator to analyze the matter and to make recommendations for custody and visitation"]; In re Marriage of McGinnis (1992) 7 Cal.App.4th 473, 478 [family court should only change custody arrangement in "'move away'" case after allowing spouse objecting to change to obtain outside evaluation of best interests of children], disapproved on another ground in In re Marriage of Burgess (1996) 13 Cal.4th 25, 38, fn. 10.)
Here, the family court had sufficient information on which to determine the best interests of the children. The family court denied Father's October 2016 request for a further child custody evaluation only after Lintott, a licensed family therapist and family court services child custody evaluator, performed a half-day PPA. In his October 2016 RFO, Father's criticized the PPA on the grounds Lintott had substituted for another custody evaluator on the morning of the PPA and had telephoned Erik's occupational therapist (Roberts), but not Erik's teacher, classroom aid, or speech therapist, nor Haley's school therapist. But as Mother observed in her responsive declaration, Father never requested Lintott contact the additional individuals, and Lintott—who interviewed both parents and the children— testified the additional interviews were not necessary to evaluate custody. Nor did Father show the additional interviews would have affected Lintott's recommendation. Father did not challenge Lintott's qualifications or specify the additional information the additional evaluation would have provided.
Father also asserted an additional evaluation would allow the children to be observed in their parents' homes and at school, but Father failed to show how Lintott's observation of the children was inadequate.
Under these circumstances, the family court did not abuse its discretion in finding Father "has not met his burden of proving it is in the best interest[s] of the minor children to order a full child custody evaluation." Further, the family court was able to obtain additional information at trial on which to base its decision. Lintott and three of Erik's school support team testified at the 2017 trial, and Dr. Shirin ultimately prepared a report and testified at the trial. As the family court found in reaching a final custody determination after trial, "Dr. Shirin's critiques fail . . . to undermine the fundamental conclusions reached by Ms. Lintott in the PPA, particularly when viewed in light of the totality of evidence introduced at trial. . . . [T]he additional witness testimony and documentary evidence introduced at trial . . . provides further support for Ms. Lintott's conclusions and recommendations." (See In re Marriage of Michaely (2007) 150 Cal.App.4th 802, 808 [to obtain reversal, appellant must show error was prejudicial, resulting in harm or a miscarriage of justice]; see also Code Civ. Proc., § 475 ["No judgment . . . shall be reversed or affected by reason of any error . . . unless it shall appear from the record that such error . . . was prejudicial . . . ."].) B. The Trial Court Did Not Abuse Its Discretion in Declining To Impute Income to Mother
Father contends the family court erred in rejecting Father's request to impute income to Mother despite her ability to work full time. It did not.
In calculating child support, the family court "may, in its discretion, consider the earning capacity of a parent in lieu of the parent's income, consistent with the best interests of the children, taking into consideration the overall welfare and developmental needs of the children, and the time that parent spends with the children." (§ 4058, subd. (b).) Similarly, in awarding spousal support, the court must consider "[t]he ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party." (§ 4320, subd. (g).) We review a family court's decision whether to impute income based upon a parent's earning capacity for an abuse of discretion. (In re Marriage of Berger (2009) 170 Cal.App.4th 1070, 1079; In re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 282-283 (Cheriton).) In applying this standard, "'[w]e consider only "whether the court's factual determinations are supported by substantial evidence and whether the court acted reasonably in exercising its discretion." [Citation.] . . . "[W]e do not substitute our own judgment for that of the trial court, but determine only if any judge reasonably could have made such an order."'" (In re Marriage of McHugh (2014) 231 Cal.App.4th 1238, 1247; accord, Berger, at p. 1079.) We are mindful, however, that "no authority permits a court to impute earning capacity to a parent unless doing so is in the best interest of the children." (Cheriton, at p. 301.)
Here, the family court made detailed findings it was in the best interests of Erik and Haley for Mother to spend weekday afternoons with them. As discussed, the court credited Lintott's recommendation that "a parenting plan that promotes, to the extent possible, [Mother's] role as the after school parent during most of the weekdays promotes important structure and consistency for the minor children, who . . . have unique needs." The court likewise credited the testimony of Roberts and Stephan that "Erik requires near constant adult prompting to get his academic work done," and "the custody and visitation order should, in Erik's best interests, promote [Mother's] availability to provide after school help for Erik." The court also found Haley's wishes and anxiety over homework also supported having Mother being available as an after school parent. Given the children's needs, the court found credible Mother's testimony "the part-time schedule of 24 hours per week that she is currently working is designed to maximize her work hours consistent with these after-school obligations for the children."
In his reply brief, Father contends Roberts's and Stephan's testimony "does not apply to the disputed after-school period from 2:30 pm to 6:00 pm, as Ms. Roberts and Ms. Stephan have never observed Erik in his after school-program." However, Roberts and Stephan were part of Erik's IEP team and were knowledgeable about his academic needs, which were not restricted to the afternoon hours.
On this factual record, the family court did not abuse its discretion in rejecting Father's request to impute full-time income to Mother. (See In re Marriage of Ficke (2013) 217 Cal.App.4th 10, 18-19 ["Since the child support statutes expressly state the purpose of California's guideline child support system is to 'place the interests of children as the state's top priority' . . . , it is counterintuitive—often counterproductive—to impute income to a custodial parent, because the objective effect of such an imputation will be to reduce the money otherwise available for the support of any minor children."]; Cheriton, supra, 92 Cal.App.4th at p. 301 [remanding to family court to consider whether imputing income to custodial spouse was in the children's best interests].) C. The Trial Court Did Not Abuse Its Discretion in Awarding Mother Attorneys' Fees Under Section 271
Father contends the family court erred in imposing $15,400 in attorneys' fees and costs as a sanction under section 271. Section 271 provides, "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." (§ 271, subd. (a); see Boblitt v. Boblitt (2010) 190 Cal.App.4th 603, 612 ["The duty imposed by . . . section 271 requires a party to a dissolution action to be cooperative and work toward settlement of the litigation on pain of being required to share the party's adversary's litigation costs."].)
We review an award of sanctions under section 271 for an abuse of discretion. (In re Marriage of Pearson (2018) 21 Cal.App.5th 218, 233; In re E.M. (2014) 228 Cal.App.4th 828, 850.) The imposition section 271 sanctions "will be upheld on appeal unless the reviewing court, 'considering all of the evidence viewed most favorably in its support and indulging all reasonable inferences in its favor, no judge could reasonably make the order.'" (In re E.M., at p. 850; accord, In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1524; Menezes v. McDaniel (2019) 44 Cal.App.5th 340, 347.)
In its statement of decision, the family court made findings concerning Father's lack of cooperation in settlement negotiations. The court found that "[p]rior to the final settlement conference . . . [the] record indicates at least five settlement overtures and proposals were made [by Mother] without a response from [Father]." Further, at the settlement conference Father refused to counter a settlement proposal by Mother in which she offered to agree to the imputation of income to her at $50,000 per year until Erik reached high school and $80,000 per year thereafter, as well to make significant concessions to Father on custody, visitation, and the effective date of dissolution for property division. Following the conference, the settlement judge twice asked Father if he would make a counterproposal, and each time Father's counsel refused to make any proposal on the "financial issues." The court admonished Father, "I do not think it is acceptable not to relate to or not to try to settle a case on some terms . . . ." Based on this evidence, the family court concluded "the above identified conduct of [Father] did frustrate that policy of the law, as the offers made by [Mother] on August 1, 2017 conceded most of what [Father] was seeking at trial, yet did not even succeed in getting [Father] to participate in good faith settlement negotiations."
Judge Goldberg presided over the settlement conference and the hearing following the conference.
Judge Moor.
The family court did not abuse its discretion in sanctioning Father on this basis. "Section 271 does not require that the sanctioned conduct be frivolous or taken solely for the purpose of delay." (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1318.) Rather, section 271 "'"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 Davenport, supra, 194 Cal.App.4th at p. 1524; see In re Marriage of Abrams (2003) 105 Cal.App.4th 979, 991-992 [father's "totally one-sided" settlement offer "imposing all of the obligations on mother and giving father all of the benefits" violated policy favoring settlement], disapproved on other grounds in In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1097; see also In re Marriage of Tharp, at p. 1318 [affirming award of sanctions where spouse thwarted discovery and filed numerous motions to compel discovery, unnecessarily increasing litigation costs]; In re E.M., supra, 228 Cal.App.4th at p. 851 [affirming award of sanctions where evidence showed mother filed § 7822 petition to terminate father's parental rights in order to impede father's visitation with children and to delay resolution of father's requests to modify custody and visitation order].)
On appeal Father contends he substantially cooperated in settlement by stipulating to a marital property division and most custody and visitation issues, leaving the imputation of income as the primary issue at trial. Father also argues he should not have been sanctioned for pursuing his right to a trial on this central issue. We agree Father should not be sanctioned for litigating a nonfrivolous position. (See In re Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th 196, 205 [remanding for determination whether father's refusal to settle dispute was "'unreasonable and recalcitrant,'" thereby supporting § 271 sanctions, where Court of Appeal vindicated father's substantive position an oral agreement to divide property unevenly was enforceable]; In re Marriage of Abrams, supra, 105 Cal.App.4th at p. 991 [father's litigation of burden of proof on mother's move away request "was not so devoid of merit" to support § 271 sanctions].)
But that is not what happened here. As the family court found, "Father's contention that the case had to be tried in order to address the issue of imputed income provides an insufficient justification for the refusal to even engage in negotiations, particularly given the offer made by [Mother] on that very issue." Indeed, given Father's averred willingness to compromise on custody and visitation supports Mother's position, Father could readily have responded to Mother's offer to stipulate to $50,000, and later $80,000 in imputed yearly income with a counterproposal concerning overall support obligations, even if Father was unwilling on principle to compromise on imputation. Father's unequivocal refusal to cooperate in settlement negotiations, both before and at the settlement conference, supports the family court's exercise of discretion to sanction Father.
Mother's proposal assumed she would continue to work 24 hours per week until Erik was in high school (presently earning $45,504 per year at $36 per hour), then full-time employment thereafter (calculated at $74,880 per year).
DISPOSITION
The judgment is affirmed. Mother is to recover her costs on appeal.
FEUER, J. We concur:
PERLUSS, P. J.
SEGAL, J.