Opinion
G039517
1-29-2009
In re Marriage of DARLEEN N. and GEORGE B. FARAGALLI. DARLEEN N. FARAGALLI, Plaintiff and Respondent, v. GEORGE B. FARAGALLI, Defendant and Appellant.
Merritt L. McKeon, for Appellant. Darleen N. Faragalli, in pro per., for Respondent
Not to be Published in Official Reports
The trial court awarded Darleen Faragalli $ 10,000 in attorney fees as a sanction under Family Code section 271 (all statutory citations are to the Family Code unless specified). Her former husband George argues the trial court made the order without notice to him, failed to hold a hearing on the matter, and improperly included fees that had already been paid or litigated. For the reasons expressed below, we affirm.
We refer to the Faragallis by their first names for clarity and ease of reference, and intend no disrespect. (See In re Marriage of Olsen (1994) 24 Cal.App.4th 1702, 1704, fn. 1.)
I
FACTS AND PROCEDURAL BACKGROUND
The Faragallis married in April 1993, separated in December 2002, and Darleen petitioned to dissolve the marriage in March 2005. The couple has two daughters, born in 1993 and 1996. During the marriage and at the time of the petition Darleen, a legal assistant, earned more than George, a self-employed private investigator.
George argued the date of separation was March 2005 but lost that issue at a trial on the bifurcated issue.
In July 2005, the parties entered a stipulation resolving several isues, none involved in this appeal, and set the matter for trial on the remaining issues. In August, Darleen filed motions to compel production of documents and responses to form interrogatories, seeking some $3,000 in attorney fees as a sanction. George stipulated to comply with the requests without an order and agreed to pay fees and costs of $2,072.
Trial on custody, child and spousal support issues occurred in March and April 2006. Before trial, Darleens lawyer submitted a declaration seeking approximately $17,000 in attorney fees and costs for services rendered up to trial, plus an estimated $3,750 for trial. She stated she sought "some if not all of her legal fees to be reimbursed to her as sanctions as a result of [Georges] willful failure to cooperate in good faith settlement discussions so that some, if not all of this matter, could have been settled." She cited as an example Georges discharge of his previous lawyer in December 2005 "at the very moment and time when settlement discussions would be naturally commencing and had been discussed with prior counsel."
The court issued a written ruling on custody and support issues in May 2006. The court relied on a court-appointed (Evid. Code, § 730) evaluators opinion that George had unresolved anger-management issues, and adopted the evaluators recommendation to modify a week-on, week-off custody arrangement in place for over a year to a 60/40 time split with primary physical custody to Darleen. The court ordered George to pay Darleen $454 in monthly child support and denied spousal support to either party. The court ordered each party to bear their own attorney fees and costs. The order was to take effect July 1, 2006. In August, the court entered judgment largely along the lines of its written ruling.
In September 2006, Darleen sought an order finding George in contempt for failing to pay the September child support installment and his share of the girls gymnastics fees. In November, Darleen submitted a brief concerning property issues in advance of a mandatory settlement conference. In her brief, she requested attorney fees under section 271 for "unnecessary fees and costs" allegedly resulting from several disputes that occurred after the initial trial.
The court held a contempt hearing in January 2007. Darleens lawyer submitted a declaration asserting Darleen had incurred $1,790 in attorney fees and costs in prosecution of the contempt. The parties resolved the contempt proceeding without court order, leaving for the court the issue of fees and costs. The court ordered George to pay Darleen $750 at $ 100 per month, staying the order until March 1 to allow the parties to submit supplemental declarations on the issue of fees. Trial on the remaining issues was continued to April 26. On March 16, the court reaffirmed its order of attorney fees of $750, and ordered payment at $100 per month to commence on April 1, 2006.
In February 2007, George filed an order to show cause (OSC) in propria persona to modify child support based on his decreased income, expenses and mounting debt. Darleen responded with a request to increase child support based on an upward imputation of Georges income, and also sought spousal support. Darleen requested $2,250 for reimbursement of attorney fees and costs as a sanction under section 271 to defend Georges motion. The matter was continued several times and not heard until September 2007.
Meanwhile, on April 20, 2007, Darleen moved to compel responses to her request for production of documents. She sought $1,240 in attorney fees and costs. A June 1 minute order reflects the court granted Darleens motion to compel responses and ordered George to pay $750 in attorney fees forthwith. The court signed a formal order August 17.
On May 25, Georges lawyer sought court approval to withdraw from the case. On June 6, George filed a declaration in support of his OSC to modify child support. Also on June 6, the court granted Georges counsels request to be relieved, and continued the property trial and the hearing on Georges modification request to July 30.
The court denied Georges ex parte application to continue the trial on the grounds it had been set in his absence for a date during a planned vacation with his daughters. Darleen argued George had received notice of the new trial date on June 11, but did not seek a continuance until July 11.
The parties signed a stipulation dated July 30, 2007, for judgment on reserved issues. The stipulation allocated assets and debts and required George to make an equalizing payment of $69,075. The stipulation also provided, "each party shall submit a fee declaration with respect to the issue of attorneys fees within 10 days of the date of the stipulation. After 10 days the matter will be deemed submitted and the court may render a decision on same. Notice shall be provided via minute order." The court signed and filed the stipulation as an order on July 31. The court continued Georges order to show cause to September 11.
A minute order reflects counsel represented George on July 30 and July 31, but did not sign the stipulation. The order reflects George substituted into the case in propria persona on July 31.
Darleens lawyer filed and served a declaration dated July 30 in support of a request for attorney fees and costs. She asserted she had incurred $14,150 in fees and $512 in costs. The fees were "incurred in preparation for property trial and . . . in defense of OSC and ex parte Applications." She also anticipated fees and costs for trial of $7,500. Counsel stated her client was "seeking some if not all of her legal fees to be reimbursed to her as sanctions as a result of [Georges] wilful [sic] failure to cooperate in good faith settlement discussions so that some, if not all of this matter, could have been settled." Counsel asserted George had "done nothing but delay, harass, stall and refuse to discuss settlement at any point in this portion of the matter." She cited as examples of his "intent to cause problems and cause fees to escalate" Georges ex parte application to continue the trial because it conflicted with his vacation and his OSC to modify child support. She also stated, "This is not a complicated or unusual matter and the issues are fairly common and straight forward. Despite that fact, [George] and/or his various other fourcounsel besides the two times he has represented himself, have repeatedly refused to engage in meaningful settlement negotiations and at the point at which those discussion might well have taken place, [George] dismissed each counsel and hired alternative counsel on the alleged theory that he was not interested in cooperating in settlement as his prior counsel had indicated they would."
On August 9, George filed a demand for production of documents (Code Civ. Proc., § 2031) that sought income and expense information from Darlene. He also filed a current income and expense declaration.
On August 17, Darleens lawyer filed an amended declaration in support of her request for attorney fees and costs. She claimed Darleen owed her $20,275 in fees and $534 in costs, exclusive of amounts "necessary to prepare for this trial and my appearance at this trial." The declaration tracked her earlier declaration in seeking the fees and costs as sanctions based on Georges failure to cooperate. Counsel described events transpiring on July 30 and July 31. George appeared with new counsel who did not know a trial had been scheduled. This resulted in "an entire day of an attempted MSC that ultimately went no where and required us to return July 31 . . . ." On July 31, the relationship between George and his lawyer broke down and counsel substituted out, but Darleens counsel and George were able to "salvage the settlement . . . that had been worked out the day before." Counsel stated "this entire process could have been resolved [] many months earlier . . . ." Counsel blamed George for frequently substituting counsel and not cooperating with his lawyers "to bring this matter to a swift conclusion." She also faulted George for "deluding himself" into believing "he would be receiving" an equalizing payment and "his unsounded thinking has caused friction and has caused a tremendous waste of time, effort, money and energy in this matter."
On August 28, George filed a "supplemental declaration" asserting Darleens counsels amended declaration was untimely and the court should therefore consider his declaration. He asserted Darleens counsel did not detail the work or hours she provided. He also denied being uncooperative or acting in bad faith and stated Darleens counsel had not presented reasonable settlement offers and faulted her for poisoning his relationship with his lawyer.
On September 11, 2007 the court heard Georges order to show cause to modify child support. The court received the parties income and expense declarations and both parties testified. The court reduced child support to $321 per month commencing March 1, 2007.
On September 20, the court issued a minute order awarding Darleen $10,000 in attorney fees: "[Darleen] is asking the court for attorney fees pursuant to Family Code section 270 and 271. Based on the evidence received the court finds that [Georges] actions or inactions did, in fact, delay these proceedings, which resulted in both of them incurring additional unnecessary attorney fees. [¶] Therefore, pursuant to Family Code section 270 and 271, the court is ordering [George] to pay a contributive share of [Darleens] attorney fees in the amount of $10,000.00. This amount shall be payable forthwith." George appeals.
II
DISCUSSION
Family Code section 271 provides, "(a) Notwithstanding any other provision of this code, the court may base an award of attorneys 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 attorneys fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorneys fees and costs is not required to demonstrate any financial need for the award. [¶] (b) An award of attorneys fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard. [¶] (c) An award of attorneys fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned partys share of the community property."
Section 270 provides, "If a court orders a party to pay attorneys fees or costs under this code, the court shall first determine that the party has or is reasonably likely to have the ability to pay."
George contends he "had no opportunity to be heard. He did not file [a declaration] within ten days after the stipulation . . . and therefore did not anticipate that the Court would consider anyones late filed documents. [Darleen] submitted her fee declaration seven days after the `cut off date of August 10, 2007 . . . ."
We do not find this contention persuasive. The court provided George with an opportunity to be heard on the issue of attorney fees. George agreed to submit fee declarations within 10 days of the stipulation, and also agreed to submit the issue to the court after the 10th day. Darleens counsel filed a declaration on July 30, within the 10-day period, asking for fees of $14,150 as a sanction under section 271. Moreover, there is no evidence the court did not consider Georges untimely "supplemental declaration." We reject Georges contention the court denied him an opportunity to be heard.
George also notes he "won the OSC, lowering support" and complains "[d]espite the fact [he] was able to show he had overpaid child support, apparently the trial court awarded [Darleen] her attorney fees, while [George] was successful, as a pro per litigant, in lowering support costs."
As noted above, in her original declaration filed July 30, 2007, Darleens counsel stated Darleen had incurred $14,150 in fees in preparation for the property trial and in defense of Georges OSC. While she did not separate the fees incurred for each proceeding, in conjunction with her February 2007 response to Georges OSC, counsel had requested $ 2,250 for attorney fees and costs to defend against the OSC. The courts order on the OSC modifying child support did not provide for an award of attorney fees to either party. Nothing suggests the courts award of $10,000 included any fees for defending against the OSC. In the absence of a record to the contrary, we must assume the amount awarded related to the property phase of the trial.
George notes he had been ordered to, and did, pay $1,500 in combined fees for the earlier contempt and discovery violations and states, "Surely a part of [the fees requested for preparation of the property trial] had already been awarded." Appellate counsel states George "believes that the previously ordered $1,500 in attorney fees as a sanction, and the lack of a hearing to present evidence regarding his efforts to avoid further attorney fees, as well as to effectuate settlement, were all he was required to pay, especially in light of the request for attorney fees to `defend the OSC for modification of support [] which OSC was successful, for [George], due to the actual lack of child care costs despite the Judgment that he must pay those costs."
Nothing in the record suggests Darleens counsels request included amounts already awarded or received for the contempt and discovery matters. Georges allegations concerning this are unfounded speculation.
Finally, Georges reliance on Niko v. Foreman (2006) 144 Cal.App.4th 344 is misplaced. In Niko, the mother filed an order to show cause to modify a prior joint custody judgment that provided for a 50/50 coparenting plan to facilitate a move out of state. The trial court continued the joint custody order but allowed mother to move with the child and adjusted the coparenting plan accordingly. A panel of this court rejected the fathers contention the trial court erred in not awarding sanctions against the mother pursuant to sections 3027.1 and 271 based on the mothers false abuse allegations. The court held the sanction request was procedurally defective under section 271 because the father first made his sanction request in his written closing argument. The court noted section 271 provides the court may not award fees and costs without notice to the party against whom sanctions are sought and an opportunity for that party to be heard. In Niko, the fathers untimely request for sanctions failed to comply with the statute and denied the mother her due process right to respond or be heard on the matter. Here, in contrast to the facts in Niko, George received notice and an opportunity to respond to the sanctions request.
Nevertheless, George argues he "was not given notice in the [s]tipulation that the `attorney fee declarations were for a noticed [s]anctions hearing" and asserts he "fell prey to a bait and switch situation." The record does not support this claim. Darleens counsels declaration filed on July 30 clearly raised the issue of section 271 sanctions. George submitted a declaration that responded to counsels original and amended declarations and denied acting in bad faith. George had previously stipulated to forego a hearing and agreed the court could decide the matter on written declarations. Georges procedural claims therefore lack merit. (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 179 [party who does not request a separate hearing on matter of attorney fees and does not move for reconsideration or new trial after the issue is decided waives any objection].)
Finally, George does not argue the court abused its discretion in finding he engaged in sanctionable conduct, such as frequently substituting counsel to disrupt and delay the proceedings, failing to appear for trial and engaging in unreasonable conduct designed to frustrate settlement and increase litigation costs. (In re Marriage of Quay (1993) 18 Cal.App.4th 961, 970; see In re Marriage of Feldman (2007) 153 Cal.App.4th 1470 [sanction order under section 271 reviewed for abuse of discretion].) Nor does he assert the court failed to take into consideration evidence concerning the parties incomes, assets, and liabilities, or that the sanction imposed an unreasonable financial burden on him. We discern no basis to reverse the award of fees to Darleen.
The order is affirmed.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.