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In Re Marriage of Richard Falcone and Kathey Fyke. v. Kathey Fyke

February 23, 2012

IN RE MARRIAGE OF RICHARD FALCONE AND KATHEY FYKE. RICHARD S. FALCONE, APPELLANT,
v.
KATHEY FYKE, RESPONDENT.



Trial Court: Santa Clara County Superior Court Superior Court No. 1-03-FL116312 Trial Judge: Hon. Michael L. Clark Hon. Thomas William Cain Hon. Patricia M. Lucas Hon. Margaret Johnson

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

CERTIFIED FOR PUBLICATION

(Santa Clara County Super. Ct. No. 1-03-FL116312)

These are five more in propria persona appeals that we are considering together in the series of appeals or writ petitions filed in this court since 2005 by Kathey Fyke in her dissolution of marriage proceeding with Richard S. Falcone. Here, Kathey*fn1 challenges (1) a judgment distributing marital property (H034104), (2) a postjudgment order awarding attorney fees, costs, and sanctions against her (H034127), (3) a postjudgment order confirming an accounting and distributing funds (H034869), (4) a postjudgment order awarding sanctions against her for appealing an order awarding sanctions against her (H035337), and (5) a prejudgment order awarding sanctions against her for misconduct in her efforts to obtain a trial continuance (H036368). We reject the challenges and affirm the judgment and orders. We also find that Kathey is a vexatious litigant henceforth subject to a prefiling order pursuant to Code of Civil Procedure section 391.7.*fn2

H034104--the judgment distributing marital property

Background

During in limine proceedings before trial court judge Thomas William Cain, Kathey made a request for need-based attorney fees pursuant to Family Code section 2031, subdivision (b)(1), which allows that such a motion may be made orally, without notice, at the time of the hearing of the cause on the merits. The colloquy is as follows.

"[Kathey]: Okay. On May 12th, you told me that I couldn't file any more motions, and I respected that. But I have a couple issues that I would like to address that are kind of--I would like to make one more request for attorney's fees. I'd like to make that in accordance with Family Code 2031(b), that provides for oral motion. And, again, because the opposition had asked you that I not be able to file any more motions, I'm putting it in the form of an oral motion. [¶] I have the 5-12 transcript if you would like to look at that. I--I have a current I&E. One was recently filed. I'm not sure if you have it, but I brought a courtesy copy for you. I'm prepared to discuss the financial capabilities of both parties. I also brought the required . . . [¶] . . . [¶] . . . three years of tax returns with me. [¶] I'd like to address the Saratoga funds which seem to be brought up a lot. And given the fact if I touch the fruits of the judgment, I waive my right to appeal the sale of the Saratoga home-- . . . I think there is no parity in our representation. I realize that this is the 11th hour, but I would still like to request attorney fees.

"THE COURT: The request is denied.

"[Kathey]: Okay. Can I request attorney fees for the appeal process?

"THE COURT: The request is denied.

"[Kathey]: Okay. Along those--can I ask why?

"THE COURT: Not timely.

"[Kathey]: To both of them?

"THE COURT: Yes, among other reasons."

Also during the in limine proceedings, the trial court granted Richard's motion "to exclude testimony and documents as to any reimbursement claims that [Kathey] might have, and expenses, that based on failure to provide documentation in discovery for which she was ordered to produce, including characterization, valuation, division of assets, any reimbursement claims she might have or expenses, attorney's fees, health issues." During the proceedings, it remarked: "You were ordered to produce. You have produced very little, if anything." It observed: "I'm looking at binders that you've provided to the Court. [¶] . . . [¶] Four full binders of 215 exhibits. [¶] . . . [¶] . . . [but] the only thing that's attached to [your response to form interrogatories] is two tax returns and two mortgage statements. [¶] . . . [¶] I'm just saying that's all you've produced, yet you've provided me with four binders of 215 exhibits." Concerning Richard's request for production of documents, the trial court asked Kathey "What else did you produce?" When Kathey replied that "I produced probably 25 [or 12] boxes of stuff," the trial court asked Kathey "To whom did you provide these 12 boxes of documents?" Ultimately, Kathey replied: "I didn't give them to anybody . . . ." The trial court also declined Kathey's request to consider a specific real estate appraisal after remarking that the case had been continued for reasons of Kathey's health and Kathey had obtained the real estate appraisal during the interim. It concluded: "Let's put it this way, [Kathey]. I'm going to grant the exclusion and it's going to be up to you, if you attempt to produce something, to demonstrate that it was provided in response to either their interrogatories, requests for production, or prior order of the court. And failing that, it will not be considered."

The trial court finally noted that the parties had agreed to bifurcate the issue of attorney fees: "Because with regard to attorney's fees, it's my understanding that [Richard] has requested that the issue be bifurcated and heard by declaration, or whatever, posttrial. And I gathered from the items that [Kathey] had provided me that sounded like [Kathey] had no objection to that." To this, Kathey replied, "No." She then added, "But with regards to that, I would like to do it in person, not just by paper." The trial court then concluded: "Well, again, we can address the forum, but the concept being it's separated and we'll deal with it after the trial."

The trial court conducted the trial in 2008 on August 13 through 15, 18 through 22, 25 through 27, and October 6 through 7. During trial and Kathey's testimony, the trial court reminded Kathey that the trial was scheduled to take two weeks "And we got to the end of it and to be fair to you, I wanted to give you a chance to testify because we never got to your testimony. [¶] . . . [¶] That's why I gave you the extra day over objections of opposing counsel. So I just wanted to warn you. I am aware that you are concerned about having enough time. It's up to you how you want to use it." Kathey nevertheless again objected to "the time limit of only one day." She explained: "It is my understanding that the trial was originally estimated to require two weeks. We've only had four full days and six half days, equating to seven days, not the ten days as originally requested. Those days were used by [Richard] to present his case." The trial court then replied as follows: "Well, [Kathey], as I repeatedly reminded you during the course of the earlier two-week proceedings that you were burning time over nonproductive matters. It was not unusual for [Richard] to present a witness that took 20 minutes and you spent literally four hours in unproductive cross-examination. [¶] I kept warning you that you are burning your own time and you continued to pursue every witness in that same unproductive fashion, to the point that if you are short of time you have no one to blame but yourself. Consequently, request for further time beyond the two days--excuse me--the two afternoons is denied." Kathey nevertheless continued to argue with the trial judge raising points such as "a comment that [the trial court] made back in August. . . . [¶] . . . [¶] [r]egarding those 20 boxes of documents and the discovery issues," "this is a case of abuse of . . . power," and "[Richard's] intent was to leave [her] without the funds to maintain her own attorney." This argument takes up six pages of the reporter's transcript after which the trial court inquired, "Again, why are you testifying to all of this? What does this have to do with the issues before me? This sounds like a closing argument. It doesn't sound like testimony with regard to the property issues." Kathey continued making her points motivating the trial court to ask, "Why don't you get to the property issues. That's what's before the Court." When Kathey did not address the property issues, the trial court commented: "Well, I don't understand why you are going through the history of who represents whom and who you contacted and everything else. None of this has to do with the property issues. You've got a lot of property issues you need to address." After the trial court stated "I don't even know what your basic position is as to any of the issues," Kathey exclaimed, "That's what I'm trying to preface here. I could have been through by now. We wasted 10 minutes on this."

The trial court rendered a proposed statement of decision, a statement of decision incorporating the proposed statement, and a judgment incorporating the statement. The judgment expresses the following.

"The issues that are addressed below are all matters that could have been resolved by the parties with even the least bit of cooperation on the part of [Kathey]. [¶] Although in contested matters there is generally fault to be found with both sides, in this matter, the relatively isolated shortcomings of [Richard] pale in comparison to [Kathey's] delay tactics; the lack of any ascertainable direction or remotely perceptible objective on her part as to any issue; the endless motions (most of which had been previously been repeatedly ruled upon); the virtually valueless and lengthy time-consuming cross-examination of each and every trial witness; her many emotional outbursts; and, her endless pretrial insistence upon providing almost nothing in terms of discovery responses to [Richard], that not only gave little indication as to where she was headed on the various issues, but resulted in the granting of an in limine motion that prevented her from presenting anything at time of trial that had not been previously provided to the other side which, unfortunately, placed her in a virtually impossible position to effectively advance anything on her own behalf. [¶] . . . [¶] As a somewhat belated preface, it cannot be stressed too strongly how difficult it had been to commence the preparation of this 'ORDER.' This is because even though the undersigned may disagree with the methodology by which someone chooses to proceed towards a particular trial objective, one can often still speak positively about the objective itself, or even if the objective itself is unrealistic, at least there is a philosophical understanding that can be acknowledged. But, when no such trial objective can be ascertained, and all that is presented is the questionable or disagreeable methodology, it is hard to start out in any way but in a manner which would not be perceived as being negative and one-sided. And, if such was not, in and of itself, difficult enough, the Court was presented at the outset of the trial with a disturbing complication. [¶] Exhibit 'I' was 87 proofs of service covering the period November 2, 2006, to August 11, 2008 (the last being two days before the commencement of the trial herein), that were attached to (and filed with) [Kathey's] pleadings that were served upon [Richard's] counsel. All of the proofs of services were signed by a 'Dora Williams' whose address was '1070 Reed Avenue, Sunnyvale California 94086.' Under oath, [Kathey] described Dora Williams as a friend; where she resided and worked; and, more importantly, stated that she, [Kathey], did not sign the proofs of service. Testimony was then received that various means were utilized to locate Dora Williams, but without success. The resident manager of 1070 Reed Avenue in Sunnyvale for the past six years testified that she has never had contact with a 'Dora Williams,' and has never even heard of her (she also having reviewed records back into the 1990's with similar results). An expert forensic document examiner . . . then testified that a comparison of samples of [Kathey's] handwriting . . . with these proofs of service, caused her to reach the conclusion that the signature was not a true signature, and it was 'highly probable' (95%) certain that it had been written by [Kathey]. Consequently, there was not only more than sufficient evidence to demonstrate that [Kathey] had not only given false testimony under oath, but that the proofs of service, that were executed 'under penalty of perjury,' by someone who was 'a resident of the State of California, over the age of eighteen years, and not a party to the within action,' was fraudulently prepared by [Kathey]. . . . [¶] Understanding that this all came unannounced to [Kathey] at the very outset of the trial, the Court waited until the commencement of the next day's proceedings to point out its very serious concerns over this matter as it then stood, and its impact upon the believability of any of [Kathey's] subsequent trial testimony. It also expressed the need to remove this 'cloud' by having Dora Williams come into court and testify, under oath, as to these proofs of service. Subsequent thereto, almost on a daily basis, the Court inquired as to when it could expect to hear from Ms. Williams. [Kathey's] repeated response was either that she 'refused to say,' or that 'I'm working on it.' As the end of the trial drew near, the Court set a time for Dora Williams to be present, or the Court would be forced to conclude that she did not exist, and that it was [Kathey] who, in fact, had executed the proofs of service. At that date and time, [Kathey] did not produce Dora Williams, nor did she provide the Court with a satisfactory reason why she could not do so. [¶] It is important to understand that false testimony under oath, and the fraud that the execution of the proofs of service played upon [Richard], his counsel, the Court, and on the legal process itself, was not the only error that [Kathey] committed as to this issue. With the Court, by repeatedly asking [Kathey] as to the status of her efforts to bring in Dora Williams, was also, in effect, giving [Kathey] an opportunity to 'come clean' and admit that Dora Williams did not exist. But, by her responding that she 'refused to say,' or worst [sic] still, that 'I'm working on it,' was itself yet another lie, a lie that was repeated upon each inquiry by the Court."

The judgment then found and equally divided an equity of approximately $600,000*fn3 in the Sunnyvale family residence in which Kathey resided, found a rental value from the date of separation until trial ($286,000) and charged Kathey with one-half of that amount, divided funds held in a Wells Fargo trust account ($1.8 million) from the sale of the parties' Saratoga real property (56.5 percent to Kathey, which accounted for prior disbursements), and provided that the trust account funds would be the source of an equalizing payment to be determined following the posttrial hearing on attorney fees. It then divided the community interest in Richard's pension plans ($685,000) and accounted for certain of Richard's partnership distributions. It also accounted for Richard's separate funds used by Kathey since separation for support while there was no pendente lite support order in effect ($1.2 million) and found an amount for reimbursement to Richard ($585,000) representing those separate funds used by Kathey that were over and above reasonable support that would have been due under the Santa Clara County support guidelines. It then awarded Kathey $261,000 for additional support pursuant to an existing order obligating Richard for additional spousal and child support "pursuant to a Smith/Ostler calculation" from his additional income over and above $17,000 monthly. It noted that "The appropriate percentage that was to be utilized to obtain such a Smith/Ostler determination, or the amount due, or even the date by which such additional support was to be paid, was never set, and no subsequent motion was ever filed to determine any of these unknown aspects." The judgment then makes other miscellaneous findings and distributions. It concludes: "The court refers both the issue of the fraudulent proofs of service and the violation of the restraining order on the trust funds by [Kathey] to the Santa Clara County District Attorneys Officer for investigation and, if appropriate, prosecution."

Kathey contends that the trial court erred by (1) denying her motion for attorney fees, (2) precluding her from introducing evidence, (3) limiting the time to present her case, (4) finding against her credibility before she had put on her case, and (5) making three property rulings (offsetting Smith/Ostler support arrearages against debt, reimbursing Richard for the separate funds used while there was no pendente lite order in effect, and reimbursing the community for the fair rental value of her residence). These contentions have no merit.

Attorney Fees

Pursuant to Family Code sections 2030 and 2032, the trial court is empowered to award fees and costs between the parties based on their relative circumstances in order to ensure parity of legal representation in the action.*fn4 It is entitled to take into consideration the need for the award to enable each party to have sufficient financial resources to present his or her case adequately. In assessing a party's relative need and the other party's ability to pay, it is to take into account " ' "all evidence concerning the parties' current incomes, assets, and abilities." ' " (In re Marriage of Dietz (2009) 176 Cal.App.4th 387, 406.) That a party who is requesting fees and costs has the resources is not, by itself, a bar to an award of part or all of such party's fees. Financial resources are only one factor to consider. (Ibid.) The trial court may also consider the other party's trial tactics. (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1314; In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1157 [trial court may consider trial tactics (normally a matter for sanctions) in a Family Code section 2030 award].)

In summary, the proper legal standard for determining an attorneys' fees award requires the trial court to determine how to apportion the cost of the proceedings equitably between the parties under their relative circumstances. (In re Marriage of Dietz, supra, 176 Cal.App.4th at p. 406.) In making this determination, the trial court has broad discretion in ruling on a motion for fees and costs; we will not reverse absent a showing that no judge could reasonably have made the order, considering all of the evidence viewed most favorably in support of the order. (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769.) However, "although the trial court has considerable discretion in fashioning a need-based fee award [citation], the record must reflect that the trial court actually exercised that discretion, and considered the statutory factors in exercising that discretion." (In re Marriage of Braud (1996) 45 Cal.App.4th 797, 827.)

Kathey argues that the trial court erred by denying her oral motion for attorney fees because it improperly denied the motion as untimely and failed to consider the relative financial circumstances of the parties as required by Family Code section 2032, subdivision (b). We disagree.

Kathey is implicitly urging that the trial court failed to consider the merits of her motion because it found the motion to be untimely though the statute permits a motion to be made at the time of the hearing. But we do not so construe the trial court's remark. Here, Kathey admitted that she was making an "11th hour" motion that was repetitive ("one more request for attorney fees"). At no point did she explain why she had not used her own resources to hire an attorney who could prepare for trial on the date set for trial as well as seek need-based attorney fees on her behalf. She instead waited until trial to make a motion that, if granted, would require a trial continuance to hire an attorney and allow the attorney to prepare. Thus, the trial court's remark reflects its view that the 11th-hour nature of Kathey's motion was a factor in denying the motion rather than a procedural barrier to making the motion.

This interpretation is supported by the trial court's additional comment that untimeliness was only one "among other reasons" for denial of the motion. And other reasons do support the trial court's decision.

As mentioned, Kathey was making a repetitive motion. But at no point did she indicate to the trial court that she was making her motion because the parties' relative financial circumstances had changed since her prior motion had been denied. It is not irrational to deny a repetitive motion in unchanged circumstances.

Moreover, the instant motion was one in a series of Kathey's oral motions for attorney fees. Oral motions in this context, though permitted by the statute, do not precisely articulate the reasoning and authority underlying the request. (See Cal. Rules of Court, rule 3.1113(a) [court may construe absence of supporting memorandum as admission that the motion is without merit and cause for its denial].) We have before commented on Kathey's tactic of making oral motions for need-based attorney fees: "We find it curious that Kathey has apparently never once brought a written motion for need-based attorney fees pursuant to Family Code section 2031, subdivision (a)(1), particularly given her steadfast insistence that such fees are essential to protecting her interests in these proceedings. After several years of intensively litigating this case in propria persona at both the trial and appellate level, Kathey is obviously well-versed in law and motion practice." (In re Marriage of Falcone & Fyke (March 5, 2009) H031458/H031792 [nonpub. opn.], p. 16, fn. 1.) In addition, Kathey's other questionable conduct during the course of this litigation is well known. (See, e.g., In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th 814 [affirming $64,500 sanctions order against Kathey for prosecuting contempt motion without any factual or legal basis and pursuit of a meritless motion for new trial].) Her tactics are relevant to evaluate the relative need-based fees between the parties and support the trial court's decision to deny such to Kathey.

We also observe that the trial court had before it Kathey's updated income and expense declaration, which was filed two days before Kathey made her motion. And it had Richard's updated trial statement with an updated income and expense declaration, which was filed on the same day. Contrary to Kathey's assertions, nothing in the record shows that the trial court was unfamiliar with and refused to consider the declarations. We therefore presume that the trial court considered these papers. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 822.)

Kathey's Evidence

Kathey contends that the trial court improperly excluded her trial binders and all her evidence. There is no merit to the contention. The trial court found that Kathey had willfully failed to comply with discovery. It therefore excluded Kathey's evidence as a discovery sanction, while allowing her to demonstrate that any proffered evidence was produced in discovery. (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 36.) Kathey makes no argument that the trial court abused its discretion in rendering the discovery sanction. The most that she advances is that "it was an abuse of the court's discretion to exclude Kathey's evidence on a discovery basis, when Richard had equal access to it all." But she supports the underlying fact with a double negative that "the transcript did not disclose that Richard actually claimed he did not have equal access to the documents." We treat the contention as forfeited. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)

Kathey's Time To Present Her Case

Kathey complains about the trial court's imposition of a limit on her trial time. But the record and judgment are crystal clear that any constraint on the time to present her case was due to her own unproductive use of her time, which included arguing to the trial court about irrelevant issues. Moreover, Kathey fails to demonstrate prejudice resulting from the supposed time restriction upon her. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at pp. 822-823.)

Finding Against Kathey's Credibility

Kathey complains that the trial court found that she had testified untruthfully about Dora Williams and the proofs of service "before [she] had an opportunity to . . . produce evidence and witnesses to defend her innocence." There is no error here, and Kathey fails to cite authority to support that there is. Kathey's credibility was directly in issue. Richard proved facts so seriously impugning Kathey's credibility that the trial court was constrained to advise Kathey to produce rebuttal evidence. In any event, since Kathey failed to produce rebuttal evidence, the supposed error in finding against Kathey's credibility before Kathey put on her rebuttal evidence was harmless.

Property Rulings

Kathey contends that the trial court erred by offsetting Smith/Ostler support arrearages against debt. She fails to cite the part of the record where the trial court so offset. She has therefore forfeited the point.*fn5

Kathey contends that the $585,000 reimbursement to Richard of his separate funds representing money over and above what was determined to be reasonable support was improper because that money was a gift. She relies upon that "there never was an agreement for Kathey to have to pay the funds back to [Richard]." There is no merit to this claim. Gifts from one spouse to another must be in writing. (Fam. Code, § 852.)

Kathey finally contends that the trial court improperly charged her with one-half the $286,000 rental value of her residence. According to Kathey, "Richard did not qualify for fair rental value, since Kathey paid all the community debts, including the mortgage, homeowner dues, taxes, insurance, maintenance and repair since the date of separation" and "Kathey did not make a claim for reimbursement of payments during this period." According to Kathey, "The granting of a rental value when there is no corresponding reimbursement of payments results in an unfair and unequal division of property." Kathey's analysis is erroneous.

"Where one spouse has the exclusive use of a community asset during the period between separation and trial, that spouse may be required to compensate the community for the reasonable value of that use." (In re Marriage of Garcia (1990) 224 Cal.App.3d 885, 890.) The right to such compensation is commonly known as a "Watts charge." (In re Marriage of Watts (1985)171 Cal.App.3d 366, 374.) Where the Watts rule applies, the court is "obligated either to order reimbursement to the community or to offer an explanation for not doing so." (In re Marriage of Bell (1996) 49 Cal.App.4th 300, 311.) But "where the asset is not owned outright by the community but is being financed," the spouse in possession "may satisfy the duty to compensate the community for use of the asset by making the monthly finance payments from his or her separate property." (In re Marriage of Garcia, supra, at pp. 890-891.) Such offsets are commonly called "Epstein credits." (In re Marriage of Epstein (1979) 24 Cal.3d 76, 84-85.)

The trial court determines what is due the community "after taking into account all the circumstances" relevant to the exclusive possession by one spouse. (In re Marriage of Watts, supra, 171 Cal.App.3d at p. 374.)

Here, the trial court imposed a Watts charge upon Kathey and did not give her an Epstein credit. But this is because Kathey, by her own admission, did not make a claim for an Epstein credit. Kathey asserts that she did make a claim for $196,000 representing the years 2005 through August 2008. But the trial court rejected this claim "Based upon a lack of sufficient supporting evidence." As the trier of fact in this case, the trial judge was the exclusive judge of the credibility of the evidence. (Hicks v. Reis (1943) 21 Cal.2d 654, 659.) In that role, the judge may reject any evidence as unworthy of credence, even uncontradicted testimony. (Id. at pp. 659-660.)

h034127--the order for attorney fees, etc.

On December 23, 2008, the trial court issued the statement of decision after trial. The statement ordered the following: "As to the reserved matter of attorney's fees and costs, this shall be handled by means of written declarations and supporting documentation, with each side filing their original requests by January 23, 2009; then any responses to the foregoing requests being filed by January 30, 2009; and, any replies by February 6, 2009, with the fees and costs issue being deemed to be under submission as of February 6, 2009."

Kathey filed an objection that the matter was to be heard as a reserved matter based only on written submissions rather than as a bifurcated trial. She claimed that, over her objections at trial, the trial court permitted Richard "to present evidence and testimony that solely went to the issue of attorney fees and costs." She claimed that "By restricting [her] defense to written submissions, [she was] prevented from cross examining [Richard's] witnesses and presenting her own rebuttal defense." She added that she wished to pursue discovery and have Judge Lucas rather than Judge Cain hear the matter because Judge Cain was not familiar with the three years of matters and hearings before trial. She complained about having only seven days to respond to Richard's papers: "Such an abbreviated period of time does not afford [Kathey] the time necessary to properly defend her interests, especially in a situation where [Richard] is requesting hundreds of thousands of dollars in attorney fees in a matter that spans five years."

On January 21, 2009, Richard filed his supporting papers seeking $833,025 in attorney fees, costs, and sanctions under, among other authorities, Family Code sections 271 (sanctions), 1101, subdivision (g) (breach of fiduciary duty), and 2032 (just and reasonable attorney fees and costs). The papers principally consisted of a 1500-page declaration by Richard's trial counsel detailing the fees and costs incurred by Richard and summarizing Kathey's "scorched-earth litigation tactics," which included at that time "thirteen (13) appeals, at least eleven (11) motions to vacate trial court decisions, another seven or eight motions for a new trial, and objections to virtually every single court order that was filed."

On January 30, 2009, Kathey filed her opposition papers, which consisted of over 100 pages advancing a litany of procedural, factual, and legal objections to Richard's request. For example, Kathey claimed that Richard did not file a notice of motion or serve a current income and expense declaration; she urged that a sanctions award would impose an unreasonable burden on her; she argued that attorney fees were not appropriate for the contempt and appellate matters; she stated that she had not breached her fiduciary duty regarding tax and pension issues even though the trial court had held to the contrary; she denied refusing to settle the case; she made 29 quibbles with trial counsel's declaration--many of which were objections based on hearsay or lack of personal knowledge about peripheral points; and she rehashed final matters, such as impugning Richard's trial expert for his appraisal of her residence because his "approach [was] contrary to standard appraisal methodology." Kathey admitted receiving "a property division with a gross value of $883,780." But she claimed a net worth of only $35,000 because of taxes and other debts.

On February 6, 2009, Richard replied to Kathey's opposition and, among other refutations, disputed Kathey's analysis of her financial situation ("[Kathey] has attached incomprehensible calculations [and] provided no documentation to substantiate the numbers that she is using"). Richard pointed out that Kathey's tax analysis did not "comport with generally accepted tax and accounting principles." He showed that Kathey would be receiving $288,000 from the property division rather than $95,000 as argued by Kathey. Richard reiterated that Kathey had $600,000 equity in her residence. And he reminded that Kathey had been charged in the property division with receiving over $1 million since separation but had never explained what she did with the money.

The trial court granted Richard's motion and awarded Richard $833,025 in attorney fees, costs, and sanctions "with these fees, costs, and sanctions being paid from [Kathey's] portion of the remaining funds from the sale of the parties' Saratoga property that are held in a special trust account at the Wells Fargo Bank." It found: "The Court has considered the assets and debts of each Party, as well as their income and expenses. The Court finds that this order is just and reasonable under the relative circumstances of the respective parties; that it was necessitated by [Kathey's] conduct which by all means and extent imaginable frustrated the policy of the law to promote settlement and reduce litigation costs in an absolutely groundless fashion; and, based upon all of the foregoing, will not impose an unreasonable financial burden on [Kathey]."

Statement of Decision

Kathey contends that the trial court erred by failing to issue a statement of decision. (§ 632 [trial court's explanation of "the factual and legal basis for its decision as to each of the principal controverted issues at trial."].) There is no merit to the claim.

A trial court is not required to issue a statement of decision for an attorney fee award. (Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 65.)

In any event, Kathey failed to request a statement of decision. She argues that she made a request in her opposition papers. It is true that on page 29 of her 31-page opposition Kathey inserted the following paragraph: "[Kathey] respectfully requests a statement of decision on the matter of attorney fees. She requests the statement to include the basis for any numeric calculation as well as the underlying evidence used to compute any attorney fees, costs and sanctions." But this paragraph does not "specify those controverted issues as to which the party is requesting a statement of decision." (§ 632.) To the extent that the paragraph requests a statement on the "basis for any numeric calculation," the request does not go to a "principal controverted issue" at trial given that it was uncontroverted that the basis of the trial court's calculation was Richard's supporting declarations. The principal controverted issue at trial was Richard's right to attorney fees and sanctions, not the basis for calculating any award. Kathey's claim that she submitted a second request for a statement of decision five days after the trial court filed its amended order is also without merit. This five-page request, rather than a request for the legal/factual basis for the trial court's decision on the principal controverted issues, was instead a document that made a laundry list of 52 demands including such items as "The specific behaviors that were deemed sanctionable under Family Code section 271" and "The mathematical breakdown of the portion of attorney fees and costs associated with the behaviors identified as sanctionable under Family Code section 271." In other words, Kathey sought findings on evidentiary facts without suggesting the specific factual finding requested. "Such a requirement cannot be made of the court." (People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509, 525.) " 'The established practice presupposes that counsel desiring such special findings will draft and propose them in the usual form [citation]. The action of the court in approving or disapproving them will constitute the ruling. [Kathey] here sought to conduct a general inquisition and neither drafted nor submitted any proposals for such consideration.' " (McAdams v. McElroy (1976) 62 Cal.App.3d 985, 993.)

Due Process

Kathey contends that the trial court denied her due process because it bifurcated the attorney fees and sanctions issue from the trial and heard the matter on the written submissions rather than live testimony. She relies on Elkins v. Superior Court (2007) 41 Cal.4th 1337 (trial court's discretion to exclude oral testimony does not apply to trials). There is no merit to the point.

Elkins involved a challenge to a local superior court rule requiring that parties present their case in dissolution trials by means of written declarations. (Elkins v. Superior Court, supra, 41 Cal.4th at p. 1344.) Our Supreme Court concluded the rule was inconsistent with Family Code section 210, which provides that " 'the rules of practice and procedure applicable to civil actions generally . . . apply to, and constitute the rules of practice and procedure in, proceedings under [the Family Code].' " (Elkins, supra, at p. 1354.) Because the rules governing civil actions disallow the use of declarations at trial as inadmissible hearsay (subject to statutory exceptions), the use of declarations at dissolution trials must be subject to the same limitation. (Id. at p. 1344.)

A family law court is empowered to hear motions based upon declarations and to exclude oral testimony. (Reifler v. Superior Court (1974) 39 Cal.App.3d 479, 485; In re Marriage of Kelso (1998) 67 Cal.App.4th 374, 384; Cal. Rules of Court, rule 5.118(b).) Although the trial court has discretion to allow oral testimony in appropriate cases, it is not required to do so. (Reifler v. Superior Court, supra, at p. 485.)

Kathey provides no reason or authority why an attorney fee or sanctions issue is not a "motion" matter. "[C]courts determine the reasonableness of attorney fees every day by ruling on motions. [Citation.] In those hearings, the court has before it evidence in the form of declarations only, not live testimony, and detailed billing records are not required to support an award." (Padilla v. McClellan (2001) 93 Cal.App.4th 1100, 1106; see, e.g., In re Marriage of Borson (1974)37 Cal.App.3d 632, 636 ["motion" that the husband be ordered to pay the wife's attorneys]; Armstrong v. Armstrong (1947) 81 Cal.App.2d 322, 326-327 [award of attorney fees raised by motion on affidavits]; Reifler v. Superior Court, supra, 39 Cal.App.3d at pp. 483-484 [wife's motion for attorney fees could be determined on declarations, subject to trial court's discretion to allow oral testimony].) And " '[T]he scope of a hearing on an application for sanctions is within the trial court's discretion, as with motions generally.' " (In re Marriage of Petropoulos (2001) 91 Cal.App.4th 161, 179.)

Opportunity To Be Heard

Kathey contends that she was denied a meaningful opportunity to be heard because she had only seven days to respond to Richard's supporting papers. There is no merit to the point. In November 2007, Richard notified Kathey that attorney fees and sanctions were issues in play. He served other papers on Kathey to the same effect in January, April, and August 2008. Kathey stipulated to bifurcate the issue. The trial court's December 2008 statement of decision, which sets the briefing schedule, also flagged the issue. And Kathey filed a 100-page opposition. Though Kathey argues that she did not have sufficient time to properly defend her interests, she fails to explain why this is so in light of the above.

Parity In Representation

Kathey contends that she was denied parity in representation because of a May 12, 2008 order forbidding her from filing any motions, which prevented her from filing a written motion for need-based attorney fees. The point fails because Kathey fails to show prejudice by demonstrating that the trial court would have granted a written need-based attorney fee motion. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at pp. 822-823.)

All Purpose Judge

Kathey contends that the attorney fee and sanctions issue should have been heard by the all-purpose family court judge, Judge Patricia M. Lucas, rather than Judge Cain in civil court. She urges that Judge Lucas was more familiar with the case history. And she claims that she was entitled to continuity. She concedes, however, that Judge Cain had heard one contempt motion in addition to the extensive trial. Thus, Judge Cain was familiar with the case history and there is no apparent prejudice. Moreover, Kathey did not object at the beginning of trial to Judge Cain hearing the trial. She presented her need-based attorney fee motion to him at the beginning of trial. And she had no objection when Judge Cain confirmed that he would hear the attorney fee and sanctions issue after trial: "So we will bifurcate the issue of attorney's fees and we'll address that posttrial." Kathey has forfeited the issue by failing to timely object. Her belated objections during and after trial were untimely.

Festering Testimony

Kathey complains that "Richard was permitted to introduce evidence relative to the 'bifurcated' attorney fees issues and alleged misconduct, during his dissolution trial case-in-chief" and the evidence "was permitted to fester unchallenged for five months with the judge." She neither explains what was the error nor cites authority for the proposition that some error occurred. She has waived the point. (In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)

Contempt Matter

Kathey complains that Judge Cain put her under the impression that she was not due criminal due process protections in the civil contempt issue he led her to believe he was pursuing. She concedes that Judge Cain did not pursue civil contempt proceedings against her but instead referred charges to the ...


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