Opinion
B279985
01-03-2019
ALEXANDER THACHER, Petitioner and Appellant, v. TIFFANY THACHER, Respondent.
Law Office of Leslie Ellen Shear, Leslie Ellen Shear, and Alexander C. Thacher, in pro per., for Petitioner and Appellant. Ribet & Silver, Claudia Ribet and Elizabeth Skorcz Anthony, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. GD055168) APPEAL from a judgment of the Superior Court of Los Angeles County. Thomas Trent Lewis, Judge. Dismissed in part, affirmed in part. Law Office of Leslie Ellen Shear, Leslie Ellen Shear, and Alexander C. Thacher, in pro per., for Petitioner and Appellant. Ribet & Silver, Claudia Ribet and Elizabeth Skorcz Anthony, for Respondent.
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This is a marital dissolution case where, in the words of the trial court, the former spouses have "litigated themselves into financial ruin." The litigation opened with a 38-day trial regarding dueling petitions for domestic violence protective orders that ended with stipulated dismissals; moved on to a six-day bench trial that ended with a dissolution judgment resolving all issues but attorney fees, costs and sanctions; and concluded with a several hour hearing on attorney fees and sanctions that produced a judgment on those reserved issues. The husband seeks to overturn both the dissolution judgment and the fees and sanctions judgment, but we lack jurisdiction over the former and conclude the latter was properly entered. Accordingly, we dismiss in part and affirm in part.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
Alexander Thacher (Alex) and Tiffany Thacher (Tiffany) got married on July 12, 2003. They have two daughters who were born in 2008 and 2009. The marriage began to crumble after Tiffany learned of Alex's marital infidelity. The tension reached a crescendo on June 28, 2014. That was the day Alex injured Tiffany with the shards of her iPad (after he smashed it against a countertop) and then broke down the door to the room where Tiffany was huddling with the girls, screaming at them all the while. Alex and Tiffany separated that day.
Because the parties share the same last name, we use the first names employed by the trial court for ease of reference. We mean no disrespect.
II. Procedural Background
A. Petitions for dissolution
Alex and Tiffany each petitioned for marital dissolution. Alex and Tiffany also sought attorney fees and sanctions from one another.
B. Litigation regarding domestic violence protective orders
Alex and Tiffany filed dueling petitions for domestic violence protective orders. The petitions proceeded to an evidentiary hearing. It is represented that Tiffany took 35 days to present her case-in-chief. When Alex was three days into his case, the parties stipulated to dismiss their petitions and to bear their own costs. After confirming with the parties that the parties' "prior testimony" could be used in the still pending dissolution action, the trial court dismissed the petitions in November 2014.
C. Litigation regarding dissolution , support and custody matters
The parties' dissolution petitions were set for trial in June 2015. The trial court ruled that the parties' requests for attorney fees and sanctions would be bifurcated and tried separately.
Prior to trial, the parties entered into a stipulation agreeing that (1) Alex and Tiffany would have joint legal custody of the children (with Tiffany being the ultimate decision-maker), and that Tiffany would have primary physical custody; (2) they would split the proceeds from selling the family's primary residence, which ultimately came to $53,730.86 per spouse; and (3) they would each keep their own pension plans.
Following a six-day trial, the trial court issued a comprehensive 39-page written judgment of dissolution. In that judgment, the court (1) ordered Alex to pay (a) child support of $4,197 per month plus 11 percent of any amounts over his annual salary of $330,000, and (b) one-half of the cost of the girls' private school tuition; and (2) ordered that Alex need not pay Tiffany any spousal support in light of his contribution to the girls' tuition, even though the court otherwise found that the factors enumerated in Family Code section 4320 favored such an award because (a) Alex had "the ability to pay" spousal support to Tiffany in light of his career as head of Ernst & Young's Seattle office and his status as an attorney licensed in three states as compared with Tiffany's salary as a prosecutor making just over one-third of Alex's salary, (b) Alex was enjoying a much higher, post-separation "standard of living" than Tiffany, and (c) Tiffany "ha[d] a need" for spousal support. The court also ruled that Tiffany did not have to pay Alex spousal support for one additional reason—namely, he had committed domestic violence against her. The judgment also allocated the remainder of the parties' assets. The court reiterated that the "remaining issues" "of attorney's fees" and "sanctions" were "being heard independent of the Judgment to be entered in this case."
All further statutory references are to the Family Code unless otherwise indicated.
Alex filed a motion for a new trial, which the trial court denied on November 24, 2015.
Alex did not file a notice of appeal from the judgment of dissolution.
D. Litigation regarding attorney fees and sanctions
1. Hearing
On March 4, 2016, the trial court entertained argument on the reserved issues of attorney fees and sanctions. By that time, Tiffany's attorney fees came to $1.2 million; Alex's came to $603,000. Alex had had three lawyers, but was by that time represented for free by his mother, who was a family law attorney.
2. Memorandum of Intended Decision and Order
On March 17, 2016, the court issued an eight-page Memorandum of Intended Decision and Order. In that Memorandum, the court ordered Alex to pay $87,500 of Tiffany's attorney fees, to pay $46,000 in sanctions, and to pay $2,917.50 in costs.
With respect to attorney fees, the court noted that both spouses had employed "expert family law counsel," and that Tiffany had "reasonably incurred" $87,500 in preparing for the dissolution trial, including on the issues of child and spousal support, as well as the division of the remaining property. The court also found that Alex had the "superior ability to pay attorney's fees . . . based on his income after payment of support," and citing its section 4320 findings from its earlier judgment of dissolution. The court denied Tiffany's request for a greater award of attorney fees.
With respect to sanctions, the court ordered Alex to pay (1) a net sanction of $15,000 under section 271 because he had "over litigated" four matters, which was calculated as a sanction of $27,000 against Alex offset by a competing sanction against Tiffany for $12,000 (also for "over litigat[ing]" matters); (2) $17,500 in sanctions—and, specifically, $12,500 in discovery sanctions and $5,000 in sanctions under section 271—because he unreasonably opposed Tiffany's motion to quash subpoenas Alex had issued to Facebook and Instagram to obtain information from Tiffany's social media accounts; (3) $12,000 in sanctions under section 271 for defying the court's order to attend an Early Neutral Intervention; and (4) $1,500 in sanctions under section 271 for defying the court's order to attend a Family Court Services mediation prior to making a request to modify a child custody order.
With respect to costs, the court ordered Alex to pay the $2,917.50 in costs for the canceled Early Neutral Intervention.
The court specified that these amounts were all owed to Tiffany's attorney and were to be paid from Alex's share of the net proceeds from the sale of the family residence, from his share of any funds remaining in the trust account paying for the girls' independent counsel, and from his other earnings and assets. At the time the order was entered, Alex's share of the net proceeds was $53,730.86, and his share of the remaining funds was $22,795.78, leaving an outstanding balance of $76,526.63 to pay from his annual salary of $330,000.
3. Findings and Order After Hearing
On April 15, 2016, the court entered a three-page Findings and Order After Hearing. In that order, the court found that there was a "demonstrated disparity between the parties in access to funds" and that Alex "has or is reasonably likely to have the ability to pay for" the attorney fees, sanctions and costs it ordered.
4. Motion for reconsideration
On April 25, 2016, Alex filed a motion for reconsideration on the ground that he lost his job at Ernst & Young on March 22, 2016. Ernst & Young provided Alex with a lump sum severance payment of $125,242.83. His earned income from January 1 through March 22, 2016, came to $73,838.
The trial court denied Alex's motion on August 26, 2016, and ordered the parties to prepare a proposed judgment for the court.
5. Entry of judgment
On November 4, 2016, the trial court entered a judgment on "reserved issues of attorney's fees, costs, and sanctions." The judgment was not a judgment of dissolution.
E. Appeal
On January 3, 2017, Alex filed a notice of appeal seeking to appeal the trial court's (1) November 5, 2015 judgment of dissolution, and (2) November 4, 2016 judgment regarding attorney fees, costs and sanctions.
DISCUSSION
I. Appeal of November 2015 Judgment of Dissolution
Alex argues that the November 2015 judgment of dissolution must be overturned because (1) the trial court's ruling limiting evidence of domestic violence to the evidence presented during the 38-day evidentiary hearing violated the rules of evidence and due process, (2) the trial court erred in relieving his retained counsel prior to the dissolution trial due to Alex's non-payment of attorney fees, and (3) the trial court was biased against him. Tiffany urges that we cannot reach these issues because Alex did not file a timely notice of appeal from the November 2015 judgment of dissolution. We independently review whether we have jurisdiction over all or part of an appeal. (California Redevelopment Assn. v. Matosantos (2011) 53 Cal.4th 231, 252.)
Although California adheres to a "'one final judgment' rule" that generally empowers litigants to appeal only from a judgment that "terminates the proceedings in the lower court" (and hence not from interlocutory orders short of such a "final judgment") (In re Marriage of Van Sickle (1977) 68 Cal.App.3d 728, 734 (Van Sickle); Civ. Proc. Code, § 904.1, subd. (a)(1)), the one final judgment rule does not bar an appeal from a judgment that does not terminate the proceedings if that judgment nevertheless "finally" "determines" (and thus is "dispositive of") "the rights of the parties in relation to a collateral matter" (Van Sickle, at p. 735; In re Marriage of King (2000) 80 Cal.App.4th 92, 115-116). Applying these principles, a judgment of dissolution is appealable even though other matters such as spousal support and the division of property—and, most pertinent here, attorney fees—have yet to be litigated. (In re Marriage of Lusk (1978) 86 Cal.App.3d 228, 232; Van Sickle, at pp. 735-736; In re Marriage of Fink (1976) 54 Cal.App.3d 357, 366.) Under this precedent, the November 2015 judgment of dissolution was appealable.
Alex did not file a timely appeal from that judgment. Because he filed a motion for new trial, he had 30 days from the trial court's November 24, 2015 electronic service of notice of the denial of his motion to file a notice of appeal. (Cal. Rules of Court, rules 8.104, subd. (a)(1), 8.108, subds. (a), (e)(1).) Alex's January 2017 notice of appeal was accordingly untimely.
What is more, Alex's failure to file a timely appeal from the November 2015 judgment is fatal to his attempt to do so now. That is because "an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment." (People v. Ramirez (2008) 159 Cal.App.4th 1412, 1421.) This is an absolute, jurisdictional bar. (Ellis v. Ellis (2015) 235 Cal.App.4th 837, 842.)
Alex raises two arguments in response. First, he asserts that a trial court's judgment regarding attorney fees and sanctions "cannot be severed" from its judgment of dissolution. He is wrong. The cases noted above are to the contrary, and for good reason in this case: The issues underlying the dissolution judgment (involving spousal support, child support and distribution of property) are quite different from the issues underlying the attorney fees and sanctions (involving the propriety of the parties' litigation conduct). Second, Alex urges that our Legislature's decision to amend Civil Procedure Code section 904.1 to make appealable a "final order or judgment in a bifurcated proceeding regarding child custody or visitation rights" (Civ. Proc. Code, § 904.1, subd. (a)(14)) implies that orders regarding attorney fees and sanctions are not separately appealable. Again, he is wrong. This new exception was added in 2017 (Stats. 2017, ch. 41, § 1), long after the above described decisions had ruled that a judgment of dissolution was separately appealable. Our Legislature's decision to recognize additional types of separately appealable judgments in family law cases does not call into question the validity of precedent recognizing other separately appealable judgments, particularly when our Legislature did not see fit to alter this longstanding precedent. (See Coker v. JPMorgan Chase Bank, N.A. (2016) 62 Cal.4th 667, 688 ["'When a statute has been construed by courts, and the Legislature thereafter reenacts that statute without changing the interpretation put on that statute by the courts, the Legislature is presumed to have been aware of, and acquiesced in, the courts' construction of that statute.'"], quoting People v. Bouzas (1991) 53 Cal.3d 467, 475.)
We accordingly dismiss the portion of Alex's appeal from the November 2015 judgment of dissolution.
Our dismissal on jurisdictional grounds obviates any need to consider Tiffany's alternative bases for affirming the judgment of dissolution.
II. Appeal of November 2016 Judgment Regarding Attorney Fees, Costs and Sanctions
Alex challenges the trial court's order requiring him to pay a portion of Tiffany's attorney fees as well as sanctions and costs. We review a trial court's award of attorney fees under section 2030 and sanctions and costs under section 271 for an abuse of discretion. (In re Marriage of Duncan (2001) 90 Cal.App.4th 617, 629-630 (Marriage of Duncan) [attorney fees]; Sagonowsky v. Kekoa (2016) 6 Cal.App.5th 1142, 1152 (Sagonowsky).) In undertaking this review, "[w]e defer to the trial court's factual findings so long as they are supported by substantial evidence, and determine whether, under those facts, the court abused its discretion." (Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538, 544.)
A. Merits of attorney fees , sanctions and costs order
1. Attorney fees
In a marital dissolution proceeding, a trial court has the discretion to order one spouse to pay all or part of the other spouse's attorney fees if (1) "there is a disparity in access to funds to retain counsel," such that the receiving spouse "needs" the money "to present [her] case adequately," and (2) the paying spouse is "able to pay for legal representation of both parties." (§§ 2030, subds. (a)(1) & (a)(2), 2032, subd. (b).) The amount of fees to be shifted must be "just and reasonable under the relative circumstances." (§ 2032, subd. (a).) In assessing whether to shift fees and the amount of fees to be shifted, the court should "tak[e] into consideration, to the extent relevant, the circumstances of the respective parties described in section 4320." (§ 2032, subd. (b), italics added.) The trial court's discretion to shift fees is meant to create "parity" by "apportion[ing] the overall cost of the litigation equitably between the [spouses]" (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251-252; § 2032, subd. (b)), so the fact that the spouse receiving fees "could pay [her] own attorney's fees and costs is not itself a bar" to fee shifting. (§ 2032, subd. (b).) A fee order is valid only if the trial court makes certain findings in its order. (§ 2030, subd. (a)(2).)
The trial court did not abuse its discretion in ordering Alex to pay $87,500 toward Tiffany's attorney fees. Substantial evidence supports the court's finding that there was a disparity in access to funds (and hence a "need") because Alex's base income of $330,000 per year was nearly three times greater than Tiffany's income. (Accord, In re Marriage of Hatch (1985) 169 Cal.App.3d 1213, 1219 [trial court "must consider the respective incomes and needs of the [spouses]"].) Substantial evidence also supports the court's finding that Alex was able to pay the $87,500 in fees ordered. The court specified the two "pots of money" that Alex should use to pay the attorney fees and sanctions order—namely, the proceeds from the sale of the family residence and any funds leftover from the trust account for the girls' counsel. These sources produced $76,526.63, leaving Alex to pay from his earnings and other sources a remaining balance of $59,890.87 (that is, the total attorney fees, sanctions and cost award of $136,417.50 minus $76,526.63). Given Alex's $330,000 base annual salary and his live-in girlfriend's payment of half of Alex's living expenses, the court did not abuse its discretion in concluding that Alex was able to pay the remaining balance of $59,890.87. The court's order also contained the findings required by statute.
Alex raises three broad categories of objections to the attorney fees order.
First, he argues that the trial court ignored or gave insufficient weight to several facts. This argument fails as a legal matter because Alex is effectively asking us to weigh the evidence differently than the trial court, and because our review for substantial evidence limits us to viewing the evidence in the light most favorable to the trial court's findings; reweighing the evidence is beyond our purview. (In re Roderick P. (1972) 7 Cal.3d 801, 808.)
This argument also fails as a factual matter. Alex urges that there was no disparity between his and Tiffany's access to funds for counsel, and that Tiffany had no need for funds because (1) Tiffany had spent too much on attorney fees (racking up nearly twice as much in fees as he did), (2) her need for fees was caused by her own unwillingness to settle, and (3) she had repaid more of her outstanding bills for attorney fees than he did, due to her access to other sources of funds, such as a loan she got from her mother. The trial court considered and rejected these arguments when it noted that Tiffany had incurred greater fees but found that those fees were "reasonably incurred toward the expeditious resolution of the case," concluded that Alex had engaged in more "over litigation" than Tiffany, and observed that both spouses had access to contributions from family members (whether it be the promissory note from Tiffany's mother or the free legal services from Alex's mother).
Alex also urges that the trial court ignored evidence that he did not have the ability to pay the attorney fees award because the court focused on his income rather than his expenses (including his outstanding debt for attorney fees), did not consider his "tenuous employment situation," and ignored that he had been granted indigent status in the parallel criminal case. These factors do not undermine the trial court's analysis of Alex's ability to pay: The court noted that both parties had "overstated" their expenses, carefully explained how Alex could pay a good portion of the total attorney fees and sanctions award from sources explicitly identified in its order, and found that he had ample cash flow to pay any remaining balance; the court had no evidence that Alex's employment was "tenuous" because all it knew at the time was that Alex's bid for partnership at Ernst & Young was being postponed in light of the ongoing litigation; and the court expressed incredulity at the news that "the taxpayers [were] funding" his criminal case in light of Alex's substantial income.
Second, Alex notes that the statutes governing the shifting of attorney fees require courts to examine "the circumstances of the respective parties described in section 4320" (§ 2032, subd. (b)), and that "history of domestic violence" is a circumstance listed in section 4320 (§ 4320, subd. (i)); from this, Alex contends that the trial court's refusal to let him put on more evidence of domestic violence during the dissolution trial infected the court's subsequent award of attorney fees. We reject this contention. The fee shifting statutes incorporate section 4320's factors only "to the extent [they are] relevant" (§ 2032, subd. (b)), not (as Alex implies) every factor. (Alan S., supra, 172 Cal.App.4th at p. 253 ["not all section 4320 factors will be relevant all the time"].) Because the fee shifting statutes focus on the need for fee shifting and the spouses' respective abilities to pay, the section 4320 factors "relevant" to fee shifting are those concerned with the "assets, debts and earning ability of both parties, ability to pay, duration of the marriage, and the age and health of the parties." (Marriage of Duncan, supra, 90 Cal.App.4th at p. 630.) Domestic violence is not among them. What is more, the trial court expressly noted that the fees it was awarding were "associated with preparation for a custody trial, the preparation and participation in the support and remaining property division issues, and fee issues at time of trial"; notably absent is any reference to fees incurred in the litigation over the domestic violence protective orders.
Third, Alex asserts that the trial court was biased against him because Tiffany had once served as a legal extern for a different judge of the Superior Court who had a family law assignment. Without more, this does not satisfy the requirements of mandatory disqualification under Code of Civil Procedure section 170.1. (Hunt v. American Bank & Trust Co. of Baton Rouge, La. (11th Cir. 1986) 783 F.2d 1011, 1016 ["If a [law] clerk has a possible conflict of interest, it is the clerk, not the judge, who must be disqualified."]; see generally Gai v. City of Selma (1998) 68 Cal.App.4th 213, 220 [requiring moving party to "'demonstrate concretely the actual existence of bias'"].)
2. Sanctions and costs
In a marital dissolution proceeding, the trial court also has the discretion under section 271 to impose sanctions and costs for a party's conduct that frustrates settlement or increases the costs of litigation. (Sagonowsky, supra, 6 Cal.App.5th at p. 1152; § 271, subd. (a).) Due to section 271's focus on the broader array of conduct that thwarts settlement and raises the costs of litigation, section 271 does not require a showing 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) or a showing that the party to whom sanctions are paid has "any financial need for the award" (§ 271, subd. (a)). However, a sanction award may not "impose[] an unreasonable financial burden on the party against whom the sanction is imposed." (§ 271, subd. (a).)
The trial court did not abuse its discretion in imposing $46,000 in sanctions and $2,917.50 in costs against Alex under section 271. The court enumerated four categories of conduct warranting sanctions and explained how they either thwarted settlement or raised the costs of litigation. Further, the court explained why Alex would have the assets to pay the sanctions and costs.
Although the trial court's order specified that $12,500 of the sanctions award for opposing Tiffany's motion to quash his subpoena for records from Facebook and Instagram was imposed as "discovery sanctions" (as opposed to under section 271), Alex's arguments do not address this separate legal basis for sanctions. The Civil Discovery Act authorizes the imposition of monetary sanctions when a party "[p]ersist[s], over objection . . . in an attempt to obtain information or materials that are outside the scope of permissible discovery" "without substantial justification." (Civ. Proc. Code, §§ 2023.010, subd. (a); 2023.030, subd. (a).) As discussed in the text, Alex's subpoena to Facebook and Instagram was "without substantial justification," rendering sanctions appropriate on this distinct legal basis.
Alex levels three categories of objections to the court's sanctions order.
First, he attacks as invalid three of the four grounds upon which the court imposed sanctions. He argues that Tiffany's refusal to provide meaningful discovery responses to his request for her Facebook and Instagram accounts somehow means that he was justified in subpoenaing Facebook and Instagram directly for her account records and in opposing her motion to quash his subpoenas. He is wrong. As the trial court correctly noted, the federal Stored Communications Act precludes electronic communications services such as Facebook and Instagram from disclosing the content of their customers' accounts in response to a subpoena. (18 U.S.C., § 2702, subds. (a) & (b).) Indeed, Alex's own counsel admitted that Tiffany's motion to quash Alex's subpoena was "well-taken." Alex also argues that he only failed to appear for court-ordered Early Neutral Intervention because the neutral had cancelled the session. But, as the trial court noted below, the session was not cancelled until after Alex's counsel sent an email stating that it would be "a waste of time." Alex lastly argues that he did not "intend" to violate the court's mediation order, but his undisclosed intent does not excuse his noncompliance.
Second, Alex contends that the sanctions order imposes an "unreasonable financial burden" upon him. For the reasons explained above, it does not.
Lastly, Alex asserts that he is entitled to reversal because the trial court did not allow him to present more evidence regarding the domestic violence incidents between the parties prior to the dissolution judgment. This assertion lacks merit because the grounds for issuing sanctions, including that Alex used the domestic violence protective order proceedings "as a discovery tool to assist him in his defense of the [pending] criminal case . . . against him," have nothing to do with whether Alex or Tiffany did or did not commit domestic violence. (Evid. Code, § 351 [No evidence is admissible except "relevant evidence."].) Alex also seems to suggest that the absence of a full record on domestic violence issues somehow justified his discovery conduct and thereby rendered him immune to any sanctions for misuse of the litigation process. The law erects no such immunity.
B. Motion for reconsideration
Within 10 days of a trial court's entry of an order, a party may ask the court to reconsider its order "based upon new or different facts, circumstances, or law." (Civ. Proc. Code, § 1008, subd. (a).) We review the denial of such a motion for an abuse of discretion. (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 42.)
The trial court did not abuse its discretion in denying Alex's motion to consider its attorney fees, sanctions and cost order. Alex's motion proffered the "new" fact of his termination from Ernst & Young, and argued that he consequently lacked the ability to pay the order. However, Alex still had his income he earned in 2016 prior to his termination ($73,838) as well as his severance pay ($125,242.83) to pay the outstanding balance of $59,890.87. The court did not abuse its discretion in concluding that Alex could pay $59,890.87 from a portion of the $199,080.83 available to him.
Alex raises two arguments in rejoinder. First, he asserts that the trial court improperly denied his motion for reconsideration by treating its April 2016 Findings order as a final judgment from which reconsideration may not be sought. This assertion is not supported by the record, which indicates that the court rejected Alex's motion on its merits and then ordered the parties to file a subsequent, non-retroactive judgment. Second, Alex contends that his financial condition got even worse by September 2016. However, we adjudge the trial court's denial of reconsideration as of the date of its ruling (in July 2016), not based on facts that did not exist until months later.
Because Alex's appeal lacks merit, we necessarily reject his request to require Tiffany to pay his attorney fees.
DISPOSITION
The appeal from the November 5, 2015 judgment is dismissed. The November 6, 2016 judgment is affirmed. Tiffany is entitled to her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
/s/_________, J.
HOFFSTADT We concur: /s/_________, Acting P. J.
ASHMANN-GERST /s/_________, J.
CHAVEZ