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In Re Marriage of Maureen J. Duris and William August Urbany. v. William August Urbany

March 14, 2011

IN RE MARRIAGE OF MAUREEN J. DURIS AND WILLIAM AUGUST URBANY.
MAUREEN J. DURIS, APPELLANT,
v.
WILLIAM AUGUST URBANY, RESPONDENT.



Colleen K. Sterne, Judge Superior Court County of Santa Barbara (Super. Ct. No. 1112027)

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

CERTIFIED FOR PUBLICATON

(Santa Barbara County)

Summary proceedings are common in family law cases. Nevertheless, however certain a court may be that a party or an attorney in a family law proceeding deserves sanctions, it must keep in mind an immutable principle that cuts across all areas of the law: sanctions may not be summarily imposed. Due process demands more.

Petitioner Maureen J. Duris appeals a post-judgment order requiring her to pay $10,000 to respondent William August Urbany as sanctions for unnecessary litigation filed by Duris's former attorney in this dissolution of marriage action. We conclude, among other things, that the trial court erred by: 1) awarding sanctions without first giving advance notice to Duris that sanctions were an issue at a child support modification hearing, and 2) not affording Duris a hearing to present evidence to contest the imposition of sanctions and the amount of the fees. We reverse and remand for a new hearing.

FACTS

Duris filed a petition for dissolution of her marriage to Urbany. On June 2, 2004, the trial court entered a judgment of dissolution. The court subsequently ordered the custody of their two children to be shared by Duris and Urbany.

On January 29, 2009, Duris filed a motion to modify the shared custody order. She sought "100% physical and legal custody" of her two sons and increased child support. Urbany filed an opposition.

Duris represented herself, but on September 8, 2009, she substituted Jacqueline Misho as her attorney. Misho commenced discovery and filed a motion to compel Urbany to produce documents. The trial court denied the motion. It ordered the parties to meet and confer to complete discovery.

On November 16, 2009, Duris substituted herself in place of Misho.

On November 23, 2009, the trial court held a hearing on Duris's custody and support motion. At the beginning of this proceeding, it described the issue to be decided as "modification of child support." After the completion of the testimony on the child support issues, the court said it would impose $10,000 in sanctions against Duris because of "unnecessary legal activity" filed by Misho. The court referred to Misho's prior motion to compel as a "fee sink" that "nonetheless required response on the other side." It said, "And for that reason of the approximately $25,000 that Mr. Urbany has expended in attorney's fees to date, I'm going to order Ms. Duris to absorb $10,000."

Duris told the trial court that she was an unemployed attorney, trying to find a job, and could not pay $10,000 and support her children. She said, "How am I being penalized for hiring [Misho]? How was I supposed to know? I thought she was the best there was." The court did not take evidence on the sanctions and attorney fee issues.

DISCUSSION

Notice, Hearing and Evidence ...


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