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In Re the Marriage of Loretta J. Wahl and Drew Perkins v. Drew Perkins

February 2, 2012


Trial Court: Santa Clara County Superior Court Trial Judge: Hon. Aaron Persky (Santa Clara County Super. Ct. No. 1-99-FL-085666)

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


Dr. Loretta Wahl appeals from an order requiring her to pay $552,153.28 as a sanction to respondent Drew Perkins, her former husband, pursuant to Family Code section 271.*fn1 This award arose from appellant's conduct with respect to two post-dissolution orders issued March 16, 2009: "Permanent Order Regarding Custody and Visitation" ("Permanent Order") and "Stipulation and Order re Co-Parent Coordinator" ("Co-Parent Coordinator Order"). Appellant asserts that the court abused its discretion in making the sanctions award.

The record discloses no abuse of discretion and, accordingly, we affirm. In addition, on the court's own motion, we find sanctions on appeal are warranted.

A. Procedural Background

The court issued a Permanent Order Regarding Custody and Visitation in December 2005. The order stated: "This order is a final adjudication of custody and visitation and shall be subject to modification only where there is a showing of a substantial change in circumstances."

In April 2006, appellant sought modification of child custody and visitation.

On August 9, 2006, the court appointed a child custody evaluator to make recommendations regarding custody and visitation.

On February 23, 2009, the scheduled mandatory settlement conference did not proceed because, even though appellant's repeated requests to appear by telephone had been denied, she did not personally appear. Later that day, the parties agreed to hold a private settlement conference with a JAMS judge and the court ordered both parties to appear for that settlement conference. The trial remained set for March 2, 2009. The court reserved the issues of sanctions and attorneys' fees and costs for the failure to proceed with the mandatory settlement conference that day.

The parties ultimately reached a written settlement, which the court approved and made orders of the court in the March 16, 2009 Permanent Order and the March 16, 2009 Co-Parent Coordinator Order. The parties' agreements were in writing and signed by both the parties and their attorneys.

On April 13, 2009, appellant filed a "Substitution of Attorney--Civil" form indicating that she was no longer represented by counsel.*fn2 Notices of withdrawal of Attorney of Record were later filed by appellant's attorneys.

On June 10, 2009, appellant filed a 13-page document entitled "Rescission of Signature and Agreement Affixed Thereto." The document stated that appellant "hereby rescind[ed]" her signature on the March 16, 2009 Permanent Order and rescinded "any perceived agreement to the terms of" that order. She claimed that she had not freely consented due to her "cognitive disability," which she defined as "a physiological condition, [qualifying] for accommodations under the Americans with Disabilities Act Title II, predisposed by domestic violence and precipitated by the retraumatizing conditions and stress of litigation which causes [her] to become symptomatic interfering with [her] ability to be functional during that litigation." Another asserted ground for rescission was the fact that she was "the victim of ineffective assistance of counsel . . . ." In the document, appellant stated that her attorneys had used "coercive, threatening, demeaning, abusive and unconscionable tactics" to obtain her signature that "chronically and acutely instilled profound fear and paralyzing terror which permeates [her] existence and the existence of [her] children."

On June 25, 2009, respondent sought an emergency screening, a child custody evaluation to assist the court in making permanent orders regarding custody and visitation, and an order temporarily transferring sole legal and physical custody of the children to him pending the evaluation. A hearing was set for July 16, 2009.

On July 14, 2009, respondent filed a motion for sanctions pursuant to section 271 based upon appellant's violations of the March 16, 2009 orders. Respondent filed a supporting declaration. The hearing on the sanctions motion was initially set for September 21, 2009.

After the hearing on July 16, 2009 at which appellant did not appear, Judge Aaron Persky issued "Findings and Order after July 16, 2009 Hearing," compelling appellant's compliance with the March 16, 2009 orders, among other things. Both parties were ordered to appear for further hearing on August 10, 2009.

On August 7, appellant filed a letter addressed to Judge Persky and former Chief Justice Ronald George in which she asserted that "procedural and substantive due process deprivations regarding the July 16, 2009 hearing . . . render[ed] the July 16, 2009 'Findings and Order After Hearing' void under any established objective procedural or substantive due process jurisprudence consideration."

Appellant appeared by phone at the August 10, 2009 hearing. Karin Huffer, who was not an attorney and stated that she was appellant's ADA advocate and had power of attorney to speak for appellant, was present in person. Appellant told the court with respect to the March 16, 2009 Permanent Order that she had "rescinded" her signature, she was not waiving "Pennsylvania jurisdiction in this matter in any way," and she could not "humanly honor that order. . . ." The court ordered the parties to appear for an emergency screening on August 17, 2009 and continued the matter to that date.

On August 17, 2009, appellant filed a "Declaration re: Clarification of Rescission filed June 10, 2009" and a document entitled "Conditional Objection Asserting Non Waiver of 28 USC 1738A Pennsylvania Jurisdiction."

On August 17, 2009, after the emergency screening, the court ordered the March 16, 2009 Permanent Order to remain in full force and effect without prejudice to final determination of respondent's request for a change of child custody. The court was willing to proceed with the required judicial custody conference to attempt to settle the custody and visitation issues but respondent's counsel declined to proceed, deeming it "a colossal waste of time." The court admonished appellant that her "compliance with those current existing court orders could have an impact on [her] custody and visitation rights in the future."

On August 25, 2009, respondent brought a motion to compel the depositions of appellant and Karin Huffer. A hearing was set for October 5, 2009.

Respondent then filed an ex parte application to continue the hearing on the section 271 motion, still set for September 21, 2009, and to set a case management conference (CMC) for October 5, 2009. The court granted the application by order filed September 1, 2009.

On September 17, 2009, respondent filed a motion to compel deposition testimony from Walter Hammon, appellant's former counsel.

On October 2, 2009, appellant filed a Case Management Statement in which she asserted that "Pennsylvania is the indisputable 'home state' of the children as defined in 28 USC 1738A(b)(4)" and that "all future custody and visitation issues are under the exclusive jurisdiction of the Court of Common Pleas of Allegheny County, Pennsylvania."

On October 5, 2009, respondent filed a motion to compel the deposition testimony of Robin Yeamans, the second attorney formerly representing appellant.

On October 5, 2009, appellant made no appearance. The court ordered appellant to appear on October 27, 2009 and ordered Karin Huffer to appear on October 30, 2009 for deposition in San Jose. The matter was continued to November 11, 2009 for a CMC.

On October 27, 2009, appellant did not appear for deposition. Appellant did not contact respondent's counsel or seek any relief from the court.

On November 13, 2009, respondent filed a motion to modify the Permanent Order to eliminate the step in the ADR process requiring the parties to attempt to resolve their child custody and visitation disputes with the co-parent counselor prior to resorting to the co-parent coordinator. The declaration of the co-parent counselor indicated that appellant had failed to participate or communicate with her and, consequently, the parties had never engaged in co-parent counseling as ordered. A hearing was scheduled for January 4, 2010.

Also, on November 13, 2009, respondent filed a motion for attorney fees and costs and terminating, issue, evidence, monetary, and contempt sanctions for discovery abuses related to the section 271 sanctions motion. (See Code Civ. Proc., § 2023.030.) A hearing was scheduled for December 21, 2009.

Appellant did not appear at the December 21, 2009 hearing. Following the hearing, the court imposed issue and evidence sanctions against appellant, specifically stating that all facts set forth in respondent's moving papers would be taken as established and barred appellant from presenting any evidence. The court also ordered appellant to pay respondent $20,000 in monetary sanctions. The court set ...

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