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In Re Marriage of John M. Hofer and Lisa M. Hofer. v. Lisa M. Hofer

August 13, 2012

IN RE MARRIAGE OF JOHN M. HOFER AND LISA M. HOFER. JOHN M. HOFER, APPELLANT,
v.
LISA M. HOFER, RESPONDENT.



Ellen Gay Conroy, Judge Superior Court County of Ventura (Super. Ct. No. D331366)

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

CERTIFIED FOR PUBLICATON

(Ventura County)

In this marital dissolution action, the trial court orders husband to pay wife's attorney fees and costs pursuant to Family Code section 2030.*fn1 Husband appeals and contends the evidence of his financial circumstances is insufficient. Perhaps. But here sufficiency of the evidence is beside the point. Husband chose not to disclose evidence of his financial circumstances despite three separate discovery orders and sanctions. This choice "disentitles" husband to a choice accorded most litigants, the choice to appeal. The appeal is dismissed.

FACTS

John and Lisa Hofer were married in 1991.*fn2 They have two minor children. John filed a petition for dissolution of the marriage on January 9, 2009.

Lisa did not work outside the home during the marriage. John has an ownership interest in several business entities owned by his family. Within the marriage, John was the sole manager of these assets. Information regarding their value, income stream and possible community ownership is solely within his knowledge. It is undisputed that John has substantial income and assets derived from his family's businesses. How substantial? Lisa has been unable to discover.

Lisa issued two sets of demands for production of documents and one set of interrogatories. John failed to provide sufficient responses to three discovery requests. Lisa moved to compel responses. The trial court granted the motion and sanctioned John $7,500. It noted that a new motion to compel had been filed. The court said it would appoint a discovery referee to rule on further discovery disputes.

Lisa's new motion was to compel John to appear for a deposition and produce documents. The trial court appointed Retired Judge Melinda Johnson as discovery referee. The referee found that John was properly served, but he refused to appear for his deposition. The referee recommended the court grant Lisa's motion and sanction John $5,200 in attorney fees and $470 in costs. The court adopted the recommendation.

John appeared for the deposition as ordered, but failed to bring the requested documents. Lisa again moved to compel production of the documents. She requested the trial court sanction John in this manner: deem the business entities John claimed as his separate property as community property.

The referee stated in part: "Without these documents, [Lisa] cannot determine what, if any interest, the community has in any assets, nor can she rebut [John's] assertion that assets are his separate property. Nor can [Lisa] understand [John's] income and assets adequately to bring an OSC for support or attorney's fees. It appears there has been no Family Code [section] 2030 attorney fee order in this matter. As a consequence [Lisa] now seeks an order that prevents [John] from proving that any of the mentioned assets are, in fact, his separate property. [¶] [Lisa's] frustration is genuine and appropriate. Her proposed remedy is draconian and disfavored. This case is well over a year old and [Lisa] has none of the critical information needed to even evaluate the issues, much less assert and prove a position. . . ."

The referee recommended that John be given one more chance to produce the documents before being precluded from presenting evidence that the business entities are his separate property. The referee recommended that John be sanctioned $14,600 in attorney fees and $40 in costs. The trial court adopted the referee's recommendation.

Lisa moved for attorney fees pursuant to section 2030. After a hearing, the trial court found in part:

"Through June 10, 2010 [Lisa] had incurred $164,982.19 in fees and costs and had paid $47,734.32. [Lisa] claims no monthly income with estimated monthly expenses in excess of $24,000.00. As of August 12, 2010, [John] claims to have paid his attorneys $300,677.00. ...


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