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Alan S. v. Superior Court of Orange County

March 18, 2009; as modified April 2, 2009 and April 15, 2009


Original proceedings; petition for a writ of mandate to challenge two orders of the Superior Court of Orange County, Nancy A. Pollard, Judge. Writ granted. (Super. Ct. No. 95D001083).

The opinion of the court was delivered by: Sills, P. J.




We scheduled an OSC on father Alan T. S.‟s writ petition challenging two pre-trial*fn1 orders implicating his ability to retain counsel, because his petition presents an important issue regarding access to justice for pro per*fn2 family law litigants. (See generally Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1369, fn. 20 (Elkins) [recommending task force "to study and propose measures to assist trial courts in achieving efficiency and fairness in marital dissolution proceedings and to ensure access to justice for litigants, many of whom are self-represented"].)

The issue, generally framed, is how courts are to achieve, particularly in low and middle income cases, the legislative goal of assuring "each party has access to legal representation to preserve each party‟s rights." (Fam. Code, § 2030, subd. (a)(1), italics added; see also Fam. Code, § 2032, subd. (b) [goal that "each party, to the extent practical, to have sufficient financial resources to present the party‟s case adequately" (italics added)]; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2008) ¶ 5:180, p. 5-75 (hereinafter Rutter Group Family Law Treatise) ["Several Family Code statutes authorize pendente lite attorney fee awards in various types of Family Code proceedings. In each case, the purpose is to ensure, to the extent possible, that the litigating parties are on an equal footing in their ability to present their cases . . . ."].*fn3

More specifically, Alan challenges two orders made by the trial court preparatory to a child custody hearing brought by his ex-wife, Mary T., which have impacted his own ability to retain counsel. Alan is already paying support for children that were taken away from him by way of a now reversed child custody order. (The upcoming hearing is a product of that reversal, since the trial court, as we explain anon, utilized the wrong standard to gauge whether there had been a change of circumstances.)

The two challenged orders appear to assure that, while Mary is well represented by obviously able and diligent counsel, Alan will be left, like the pro per in Elkins, to haplessly flail away. We scheduled this OSC because, in other words, it appeared that the upcoming custody hearing will not be a fair fight with "each party" being able to present its case.

On scrutiny, we have determined that neither of the challenged orders passes muster.

The first order is an attorney fee order against Alan and in favor of Mary for $9,000. This order does not pass muster, even under an abuse of discretion standard of review, because, as pointed out in In re Marriage of Keech (1999) 75 Cal.App.4th 860, 866-871 (Keech) as well as several other cases, the record must reflect that the court did in fact consider the factors set forth in sections 2030 and 2032. Here, however, there are several significant relevant factors that the trial court did not consider, including Alan‟s negative cash flow of about $800 a month (he ran up a large credit card debt in order to pay a $25,000 attorney fee bill from the time when he was represented), the respective amounts of property owned by the parties (including some horses that Mary owns and apparently rents out and whether either of the parties has any equity in their respective homes), the $1,800 a month in child support that Alan pays to Mary as a result of the now reversed order, new mate or new partner contributions to the respective households (Mary has remarried, Alan lives with a non-marital partner with whom he recently had a child*fn4 ), and, finally, the incurrence by Mary of at least a quantum of fees clearly not "reasonably necessary" for the litigation to date.

The second order involves a clear error of law on the rather esoteric (and under-written on) subject of post-appeal cost orders. The trial court (incorrectly, as we show below) slashed some $6,000 in appellate costs that Alan had coming to him from a previous (unpublished) appellate proceeding to less than $3000, and further, also incorrectly, made the cost order payable in installments of $150. Since a post-appeal cost order is a money judgment, as distinct from an equitable order to pay money, the trial court had no power to unilaterally make that judgment payable in monthly installments.*fn5

Now, one might ask, does not Alan have an adequate remedy at law? After all, both the pendente lite fee order and the order reducing appellate costs are each appealable. No. Not under these particular circumstances. Alan is one pro per litigant who has made it clear he does not want to be in pro per. His objective in filing these writ petitions is to scrape up sufficient money to retain counsel needed to present his case in the upcoming child support proceeding. To borrow a phrase, while all things may not be interrelated, at least in this case Alan‟s ability to obtain "sufficient financial resources to present [his] case adequately" is interrelated with the trial court‟s pendente lite fee order (which allows his adversary to have a lawyer when he doesn‟t) and the error on the cost bill (which deprives him of a sum theoretically otherwise available for use as a retainer). And specifically as to the order reducing the appellate costs, $3,000 may be the difference between being able to hire a lawyer and present his side of the story in the upcoming child custody proceeding. The alternative leaves him playing the role of a pro per whose case, shades of Gideon‟s Trumpet,*fn6 is doomed from the beginning.


A. The Backstory

Alan and Mary had two children -- Thomas, born in 1991, and Sarah, born in 1993. Alan and Mary separated; divorce proceedings were initiated in the family law court in Orange County in 1995. A final, formal judgment as regards child custody was filed in 1997, which awarded custody of both children to Alan. At the time, Alan was a law librarian for a large law firm in Orange County. In 1999, Mary relocated to the area around Reno, Nevada, where she found work as a clerk in family law court in Washoe County. She made no attempt to change custody even though the increased geographical separation of the parents made visitation problematic.

In any event, the two children lived with their father for the next seven years, during which time he found work as a law librarian for a big firm in Century City. However, in 2004 Mary leveled allegations of physical abuse of the children at Alan. The allegations resulted in a petition to establish juvenile court jurisdiction over the children being sustained, based on discrete instances of his having slapped the children.

However, the juvenile dependency court did not remove the children from Alan‟s care. In fact, in preparation for a status review hearing scheduled for January 2006, a social worker wrote that since November 2005, "there has been no safety concerns regarding the children under the care of the father."

Accordingly, on February 9, 2006, the juvenile court terminated jurisdiction. The order of termination in Los Angeles County Juvenile Court case CK 56151, specifically stated that: "No custody order is issued."

That meant the termination of juvenile court jurisdiction order left both children in the custody of their father, Alan.

Almost immediately, Mary filed an OSC in Orange County Superior Court family law court seeking a modification of custody based on allegations that Thomas, then about 14 years old, did not want to live with his father. She also filed ex parte papers in what was basically her own home court (in more than one sense of the word), the Nevada court where she sought a change of custody based on the same allegations. The Nevada court, however, declined to grant Mary‟s ex parte request, in part because a hearing was already scheduled in California for a few weeks later in April.

In April, the Orange County family law court, Judge Naughton presiding, granted temporary change of custody to Mary. At this point, Alan was in pro per.

About a week later Alan would unsuccessfully move to recuse Judge Naughton for cause based on his having had a telephone conversation with a Nevada judge concerning Mary‟s unsuccessful ex parte application in Nevada. Judge Naughton noted that it was "good judicial practice" under the Uniform Child Custody Jurisdiction and Enforcement Act for judges in courts outside the jurisdiction to communicate with each other. (By the way, Judge Naughton was wholly correct in talking to the Nevada judge. (See Guardianship of Donaldson (1986) 178 Cal.App.3d 477, 491 ["The resolution of jurisdictional conflict between two states by direct interstate judicial communication and consultation is not discretionary; it is mandatory."].))

Judge Naughton‟s April 2006 order was temporary, but it was not until January 2007 that the custody change would eventually be heard,*fn7 and one should note the obvious: Given the time lapse, Mary now had the de facto status quo going for her even though, technically, it was her OSC to change custody from him to her. For some reason Judge Naughton did not hear the case; rather it was assigned to Judge Monarch, an experienced family law judge who had recently retired. For the hearing, Alan was able to retain counsel (to whom he would eventually pay $25,000). Mary was represented by her current counsel.

The hearing lasted two full days. Alan‟s retained counsel managed to place the issue of what is the proper standard in a family law child custody proceeding in the wake of a juvenile court exit order properly before Judge Monarch: Is the proper standard any change of circumstances since the exit order, or is it simply the best interest of the child ab initio, as would be the case if the court were tending to the initial dissolution? Judge Monarch recognized that "it‟s an area I‟m not clear on" and took the matter under submission.

The statement of decision adopted the model that the case turned on whether there had been a significant change in material circumstances since the February 1997 final family law court judgment, as distinct from the 2006 juvenile court exit order. Using that standard, the trial judge changed primary physical custody of both Thomas and Sarah to Mary, in particular noting, "the pattern of discipline imposed by" Alan "[f]rom and after February, 1997" but only referenced son Thomas. As to Sarah, the statement of decision said that she had "suffered extreme emotional distress" having "witnessed the toxic relationship being developed and maintained between" father and son.

Alan, representing himself in pro per, appealed the order.*fn8 This court, in an unpublished opinion (In re Marriage of Alan T. S. and Mary T. (May 12, 2008, G039262) [nonpub. opn]) reversed the decision to award custody to Mary because the trial judge, as a matter of law, had used the wrong standard to gauge whether there had been a material change of circumstances. The case of In re Marriage of David and Martha M. (2006) 140 Cal.App.4th 96, construing the 2000 enactment of subdivision (d) to section 302 of the Welfare and Institutions Code, had made it reasonably clear that the proper standard in our case would be change of circumstances since the juvenile dependency court's exit order, not change of circumstances since the 1997 initial award of custody to Alan.*fn9

The change-of-custody order had to be reversed, and the case was sent back to the trial court for application of the proper standard.

B. The Skirmishing Prior to the Remanded Custody Hearing

1. Alan Tries to Recover Costs from his Successful Appeal

We are required at this point in the narrative to make a quick digression on the theme of discontinuity in the family law courts, a theme on which this court has had a number of occasions to write. (E.g., Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672 [trial judge needlessly declared mistrial of dissolution simply because she was being re-assigned to a next door domestic violence calendar, thus costing parties thousands of dollars in extra attorney fees]; In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 809 ["Not counting Judges Stock, Didier and Hutson, who routinely approved stipulations, this case has passed from Rutter to Cox to Knox to Smallwood to Mandel to Woolley to Posey. And not one of these judges ever heard more than one of Ida‟s modification requests!"].) It is a theme apparently understood in the Orange County family law department,*fn10 but, as the facts in this case show, the problem persists.

In this case, the first six hearings right after our previous opinion was handed down in Spring 2008 were conducted by Judge Smith. (These hearings took place in the period late May 2008 through mid-July 2008.) After these six hearings, beginning July 25, 2008, Judge Nancy Pollard conducted most of the hearings, though Judge Smith still conducted four hearings since July 25, 2008. Why the case went from Judge Clay to Judge Monarch is not apparent from the record, and why the case went, for a period, back and forth between Judge Pollard and Judge Clay is not apparent from the record furnished us in this proceeding. Meanwhile, what happened to Judge Monarch? It appears that he was disqualified on remand by Alan. (See Code Civ. Proc., § 170.6, subd.(a) (2) ["A motion under this paragraph may be made following reversal on appeal of a trial court‟s decision . . . ."].)

In any event, while few pro pers ever prevail on appeal, Alan had beaten the odds. Then again, while Mary had had counsel in her victory at the trial level, she had elected to proceed in pro per herself at the appellate level, so Alan‟s victory on appeal wasn‟t as if Alan had prevailed against an adversary with counsel. In the wake of remand, Mary retained counsel. After all, given the disparity in the parties respective incomes her counsel would likely be able to obtain an attorney fee award against Alan (more on that below). For his part, Alan began looking for money to retain counsel for himself.

His first effort is the subject of the unpublished companion opinion to this one (G040870).*fn11 Essentially, Alan tried to recover some $3,500 in an attorney fee order also contained in the previously challenged change of custody order. As we explain in the companion opinion, Alan‟s failure to challenge the attorney fee order in his prior appeal precluded his later challenge to it in a "motion for restitution" after the appeal. So the trial court properly denied his "motion for restitution."

But Alan had another possibility to scrape up money for an attorney of his own -- recover his costs from the previous appeal. On July 24, 2008, Alan filed a memorandum of costs on appeal (Judicial Council form of California MC-013 (Rev. January 1, 2007)) for $5,915.81. Mary filed, on July 31, 2008, a series of "objections" to each item of Alan‟s memorandum of costs, each repeating the statement that "Petitioner has not ...

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