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In Re the Marriage of Fatima Katumbusi and Frederick Whyte. v. Frederick Whyte

February 4, 2013

IN RE THE MARRIAGE OF FATIMA KATUMBUSI AND FREDERICK WHYTE. FATIMA KATUMBUSI, APPELLANT,
v.
FREDERICK WHYTE, RESPONDENT.



(Super. Ct. No. 01FL03407)

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

Marriage of Katumbusi and Whyte

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Appellant Fatima Katumbusi (mother) appeals from a court order sanctioning mother $3,000 under Family Code section 271. On appeal, mother claims she was denied the opportunity to make a record for appeal and denied the opportunity to be heard prior to sanctions being ordered. Mother also claims the trial court wrongly allowed father Frederick Whyte's attorney to represent him beyond the scope of the attorney's notice of limited representation, wrongly allowed father to file a modified billing statement hours before the hearing on sanctions, and failed to provide mother with a statement of decision regarding the order of sanctions. Finally, mother claims the order of sanctions imposes on her an unreasonable financial burden in contravention of Family Code section 271. Finding none of mother's claims to have merit, we affirm.

BACKGROUND

Mother has elected to proceed on a clerk's transcript. (Cal. Rules of Court, rule 8.121.) Thus, the appellate record does not include a reporter's transcript of the hearing in this matter. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)

The limited record we have establishes that in June 2010 father filed an order to show cause seeking to modify the court's order for custody and visitation regarding the parties' minor children. Father also sought attorney fees and sanctions against mother under Family Code section 271. Mother did not consent to the order requested by father, but proposed custody and visitation modifications of her own. The court made immediate custody orders and ordered the parties to participate in mediation. No orders were made regarding fees or sanctions.

Mother and father returned to court on August 23, 2010. The court noted in its minute order an intention to adopt the report of the Family Court Services mediator. Trial, however, was set for November on the issues of custody, visitation, and sanctions.

On November 18, 2010, the matter went to trial. Mother and father both appeared at trial, only father was represented by an attorney. Mother and father each testified, and they each called witnesses. At the conclusion of trial, the court took the matter under submission and issued a written ruling the following day.

In its written order, the trial court ruled that father would "maintain sole legal and physical custody of both children." The court further ruled this was a final determination of custody. The court outlined a detailed schedule for mother's parenting time, ordered mother to attend coparenting counseling, and ordered the children to continue with individual counseling.

The court also found that mother's conduct "warrants the granting of attorney fees/sanctions pursuant to Family Code section 271. Her actions related to her failure to follow the court's order regarding visitation, including withholding the children from [father], has frustrated settlement and unreasonably increased litigation costs." Father requested sanctions totaling $9,500 but the court noted "it must consider the parties' incomes, assets and liabilities and the amount imposed must not be an unreasonable financial burden against the sanctioned party." The court found mother was receiving public assistance, had minimal income, and had no assets. The court also noted ...


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