Marriage of Aitchison CA1/2 ( 2014 )

Filed 1/24/14 Marriage of Aitchison CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re the Marriage of GRACE
AITCHISON and DAVID AITCHISON.
GRACE AITCHISON, A134450
Plaintiff and Appellant,
v. (Contra Costa County
Super. Ct. No. MSD09-05412)
DAVID AITCHISON,
Defendant and Respondent.
“[T]he parties appear in this case to me to be in a position of both trying to achieve
exsanguination of the other side. Death by a thousand paper cuts until there is no money
left . . . .” So astutely observed the Honorable Charles Burch during the trial of this
marital dissolution case. While, sadly, this is often true in divorce cases, it is particularly
so here, where former spouses David and Grace Aitchison incurred more than
$1.5 million in attorney and expert witness fees in their fight over property division and
support after the demise of their 22-year marriage. At the end of the day, after having
rejected two very generous settlement offers by David, Grace was left with a share of the
modest community estate, while David retained his substantial separate property.1
1
As is frequently done in cases involving spouses, and to avoid confusion, we
refer to the parties by their first names. We intend no disrespect in doing so.
1
Grace appeals, asserting that the trial court erred in the following three particulars:
(1) finding that David did not transmute much of his separate property into community
property; (2) failing to award her adequate attorney’s fees; and (3) sanctioning her for
filing a writ petition. David cross-appeals, claiming that the trial court erred in finding
the couple’s premarital agreement unenforceable.
We affirm.
BACKGROUND
Marriage and Separation
David and Grace met in college in 1981 and married six years later. On
November 13, 2009, Grace filed a petition for separation. David responded with a
request for dissolution of the marriage. At the time of separation, the couple had two
minor children and two adult children.
The Aitchison Family Business
David came from a family of considerable wealth that derived from a business
called Tharco Sales Company (Tharco), a cardboard cartons business founded by his
grandparents. Over the years, David’s father and uncle helped operate and grow Tharco
and other related companies into a significant enterprise.
From a very young age, David, his two siblings, and his two cousins were gifted
shares in the Tharco companies. These gifts continued as David grew up, as a result of
which he owned a sizable portfolio of Tharco stock.
Then, in early 1987, not long before his marriage to Grace, David agreed to
purchase additional shares of Tharco stock from his siblings and cousins. He executed a
promissory note for the agreed-upon purchase price of approximately $426,500.
Premarital Agreement
Shortly before David and Grace married, David’s father, James, suggested to
David that he and Grace enter into a premarital agreement to protect the family business
and his separate assets. David was amenable, so James contacted Herman Scampini,
long-time attorney of the Aitchison family, who in turn worked with David to prepare the
agreement.
2
David and Grace signed the resulting agreement on April 22, 1987. As pertinent
here, it identified the amounts David owed his siblings and cousins for the Tharco stock
as his separate obligation. Per paragraph 2, if community property was used to satisfy his
separate obligations, those amounts would be treated as a loan from the community,
entitling it to reimbursement at a rate of 12 percent interest.
The evidence concerning the circumstances under which Grace executed the
agreement was conflicting. David testified that he and Grace discussed the agreement; he
suggested she have an attorney review it and left it for her on his kitchen table; and she
gave him a signed copy several days later.
According to Grace, the first time she saw the agreement was the night before she
and David were to leave for their wedding. They were having dinner at his parents’
house, and David and James presented it to her there. Grace testified that she did not
know what a prenuptial agreement was, but they assured her it was “no big deal” and that
it had to do with voting shares of Tharco. She then signed it without reading it. At trial,
Grace did not recall anyone suggesting she have an attorney review it.
Grace further testified that she trusted David as well as James, with whom she was
closer than her own father. She and David did whatever James told them to do.
James denied presenting the agreement to Grace the night before she and David
flew out of town for their wedding. He further denied that Grace signed the agreement in
his presence or that he ever talked to her about it.
“Gross Up” Arrangement
David’s debt to his siblings and cousins for the Tharco stock remained
outstanding, so in 1988, James—who by then was the president of the company—devised
an arrangement that would allow David to retire the debt. He “grossed up” David’s
salary, essentially tripling it for purposes of his paystubs and W-2 forms. The company
withheld the additional money, however, sending it directly to David’s relatives. By
1993, David’s debts were paid off, and the additional payments were discontinued.
James did not consider the gross-up funds compensation to David as a Tharco employee,
but rather a gift.
3
Sales of Tharco Stock
In 1998, and again in 2005, the Aitchison family sold its shares in the Tharco
companies, with David reaping in excess of $10 million in the two transactions. With his
proceeds, David made a down payment on a family home in Danville and bought a ranch
in Burney, among other things, putting the remainder in various investment accounts.
The Aitchison 2000 Family Trust
Meanwhile, on February 28, 2000, David and Grace entered into a trust
agreement, again prepared by attorney Scampini, for purposes of creating The Aitchison
2000 Family Trust, which they amended nine months later. Certain provisions of the
trust agreement are relevant to Grace’s claim that David transmuted the majority of his
separate property to community property. Specifically:
Article I, paragraph 1.1 identified the purpose of the trust as follows: “This Trust
has been established by the Settlors for the purpose of convenience in the management
and disposition of their respective interests in the property which they have previously
transferred or are going to transfer to this Trust. It is the Settlors’ intention that any
community property which has been transferred to this Trust and the proceeds and
increase thereof shall retain the character of and continue to be their community property
and that any separate property that has been or will be transferred to this Trust by a
Settlor shall retain the character of and shall continue to be the separate property of the
contributing Settlor.”
Paragraph 1.2.1 read: “The Settlors declare that the property which they have
previously conveyed or are now conveying to this Trust, all as set forth on Schedule A
attached hereto, was before the transfer to this Trust, and shall remain after said transfer,
as their community property and that said community property, together with any
additional community property that may be transferred to the Trust by the Settlors (herein
‘Settlors’ Community Estate’ or ‘SCE’) shall (notwithstanding the transfer to this Trust)
remain as the community property of the Settlors during their joint lifetime.”
Paragraph 1.2.2, entitled “David’s Separate Estate,” provided: “The Settlors
declare that the property described in Schedule B was before the transfer to this Trust,
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and shall remain after said transfer, as DAVID’s separate property, and that said separate
property, together with any additional separate property that DAVID may hereafter
transfer to the Trust (herein ‘DAVID’s Separate Estate’ or ‘DSE’) shall (notwithstanding
the transfer to this Trust) remain as DAVID’s separate property so long as DAVID shall
live.”
Schedule A, entitled “Settlors Community Estate,” provided: “The undersigned,
have either previously assigned, and or do hereby assign, transfer, bargain, sell and or
convey to David T. Aitchison and Grace F. Aitchison, Trustees of The Aitchison 2000
Family Trust, dated February 28, 2000 (‘said Trust Agreement’), all of their right, title
and interest in and to the following assets, said assets consisting of the undersigned
community property, and which shall comprise the Settlors’ ‘Settlors Community Estate’
or ‘SCE’, as that term is defined in said Trust Agreement.” A number of assets were then
listed, including all personal articles belonging to David and Grace, shares in Tharco and
other entities, certain investment accounts (including what would be referred to in the
litigation as the Wells Fargo Schedule A account), and the Danville house.
Schedule B, entitled “David’s Separate Estate,” assigned to the trust David’s
separate property interest in an investment account and stock in one of the Tharco
businesses.
Dissolution Proceedings
As noted, Grace petitioned for separation from David in November 2009, and
David responded with a request for dissolution. From the outset, Grace was represented
by attorney John Manoogian, David by attorney Bridget Bank, with both attorneys
remaining in the case through the end of what would become a long and contentious trial.
Grace’s First Request for Pendente Lite Attorney’s Fees
In early December, Grace filed a request for, among other things, $50,000 for
attorney’s fees, $75,000 for accounting expert Jeffrey Stegner, monthly spousal support
of an unspecified amount, and exclusive use of the family home. Alternatively, she
requested that “all liquid accounts be disclosed and divided” and that she be granted
control over half of the liquid funds in the community estate. In a supporting declaration,
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she estimated the couple’s net worth to be between five and 10 million dollars, with a
monthly cash flow exceeding $60,000.
On February 3, 2010, David responded to Grace’s request, disputing her estimates
of their income and assets. He represented that they in fact had no monthly income
because their two community property businesses were not profitable and their
community accounts totaled $74,000, which he proposed be divided equally. According
to David, the remainder of the accounts belonged to their children or were his separate
property. He proposed that he and Grace each receive a distribution of $100,000 from
the Wells Fargo Schedule A account as a preliminary distribution of community property
pending the division of assets.
Around the same time, David also extended to Grace what can easily be described
as a very generous settlement offer. She did not, however, promptly respond.
Grace Receives $100,000 Distribution
On February 19, 2010, Grace’s motion for fees and temporary support came on for
hearing before the Honorable Susanne Fenstermacher. Per David’s suggestion, Judge
Fenstermacher ordered a $100,000 distribution to Grace, reserving the characterization of
it and setting Grace’s motion for a second hearing on May 28.
Before the matter was heard, the parties’ accountants both filed declarations
regarding the couple’s finances. Grace’s accountant Stegner estimated the couple’s
average annual income to be $1,018,814, based upon their jointly filed federal income tax
returns for the years 2006, 2007, and 2008. According to Stegner, the total balance of
bank accounts as of December 31, 2009 was $4,231,652.
David’s accountant, Stephen Nunnemaker, provided a starkly contrasting view.
According to Nunnemaker, the income levels in 2006 through 2008 were not
determinative of the income in 2009 or 2010. This was due, in large part, to
disbursements made to David from various separate property interests that would not be
duplicated in 2009 and 2010. Instead, Nunnemaker represented that the couple lost
$706,637 in 2009, and he estimated a loss of $251,028 for 2010.
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David and Grace appeared at a settlement conference before Judge Fenstermacher
on April 27, 2010. Grace still had not responded to David’s three-month-old settlement
proposal, and the case did not settle. At Grace’s request, Judge Fenstermacher scheduled
another settlement conference for July, also setting the case for trial on September 20
through 24, 2010 based on a five-day estimate for trial. To encourage settlement before
that date, she ordered David to produce by July 1 a tracing supporting his claim that
much of the parties’ marital estate could be traced to his separate property.
Grace Is Awarded $75,000 In Attorney’s Fees
On May 28, 2010, the parties appeared before Judge Fenstermacher on Grace’s
request for attorney’s fees and temporary support. There ensued a lengthy discussion
concerning the community assets available for pendente lite fee and support awards to
Grace, much of which focused on the Wells Fargo Schedule A account that at the outset
of the dissolution proceeding contained approximately $1.4 million dollars. According to
David’s attorney Bank, the account contained David’s separate property and was not
liquid, as it served as collateral for a line of credit. On the other hand, attorney
Manoogian contended that the trust identified the account as a community asset and that
Grace should have joint control over it. After extensive debate, Bank asked the court to
set a date for a hearing to determine whether the 2000 trust documents had transmuted
David’s separate assets, including the Wells Fargo account, into community property.
After asserting that “that’s not an appropriately bifurcated issue,” attorney Manoogian
made the following representation: “We’re not alleging that the trust is a transmutation.
It doesn’t say it’s a transmutation. Before there can be a transmutation, there has to be
separate property or community property being transmuted to separate. We’re not
alleging that now. We don’t have enough information to even allege that. [¶] . . . [¶] . . .
I’m not claiming this is a transmutation, doesn’t say it’s a transmutation.” Based on
Manoogian’s representation that the trust agreement was not a transmutation document,
Judge Fenstermacher denied Bank’s request.
Judge Fenstermacher then ruled on Grace’s fee request, ordering David to pay her
$75,000. She further ordered David to pay $2,254 per month in child support and
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$1,752 per month in spousal support, commencing on June 1, 2010. She reserved
Grace’s request for accounting fees, and reiterated that David was to provide Grace with
tracing documents on or before July 1, 2010.
Settlement Efforts Fail
In June 2010, Grace finally responded to David’s January settlement offer,
rejecting nearly every term and proposing her own, much more favorable package that
ignored David’s separate property claims.
The following month David provided his tracing information as ordered by the
court. It consisted of a 20-page declaration supported by voluminous financial records,
which together provided extensive details concerning financial transactions that David
claimed were traceable back to his separate property.
That same month, the parties appeared at their second settlement conference.
Judge Fenstermacher proposed a settlement with which David reluctantly agreed. Grace
declined to respond to the offer at the conference, instead requesting a third settlement
conference.
On July 26, 2010, the parties appeared for the third settlement conference, at
which Manoogian presented Grace’s latest settlement proposal—essentially a demand for
half of everything. Judge Fenstermacher deemed the proposal unreasonable, and David
rejected it.
Grace Deposes Attorney Scampini
The day after the third and final settlement conference, Manoogian issued a
deposition subpoena to attorney Scampini, instructing him to appear and produce “[a]ny
and all legal work relating to estate planning, trusts, gifts, and/or financial planning done
for David Aitchison or Grace Aitchisonas [sic] as individuals or as trustees, settlors, or
beneficiaries.” In essence, Manoogian was seeking documents relating to the premarital
agreement and the couple’s trust.
A month later, Scampini appeared for his deposition. He objected, however, as
did David, to the production of certain of the documents requested and several of
Manoogian’s questions on the basis of the attorney-client privilege and the attorney work
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product doctrine. According to Scampini and David, David alone—and not Grace—was
Scampini’s client.
Grace Requests Liquidation of the Wells Fargo Account and a Continuance
of the Trial Date
Meanwhile, on August 9, 2010, Grace field an ex parte motion seeking control of
half of the community funds in the Wells Fargo account, claiming she needed the funds
to mount her case. She also requested a continuance of the September 20 trial date. In
her request, Grace stated: “I am unable to pay my existing attorney or expert fees and
am, therefore, unable to afford the cost of this litigation or prepare for trial. Moreover, I
am unable to afford my daily living expenses. Since David and I separated, David has
controlled the community funds and prevented me from any access to our accounts. I
currently incur over $10,000 in monthly living expenses, but only receive $4,017 in
support every month. I fear that if I am not allowed access to our accounts, David will
have an unfair advantage and ability to prepare for trial, and I will not be able to afford
my living expenses and attorney’s fees. Moreover, I believe that David will continue to
spend and encumber the accounts if he is allowed sole control of the accounts.” In her
supporting income and expense declaration, Grace represented that she had paid
Manoogian $126,822 and owed him an additional $53,383. Of the amount paid to
Manoogian, $27,983 had been paid to expert witness Stegner.
David Retains Accountant Brian Boone
As the trial date approached and with settlement efforts having failed, David
retained accountant Brian Boone as a trial expert. David agreed to advance Grace the
fees it would cost to depose him, totaling $9,931, and Manoogian deposed him on
September 8, 2010. Boone brought with him a number of records, including extensive
materials on which he was relying to form his opinions, and testified that he was still in
the process of completing his analysis.
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The Court Denies Grace’s Requests For a Distribution of the Wells Fargo
Account and a Trial Continuance
Judge Fenstermacher heard Grace’s requests on September 14. She denied them
both, specifically denying her request for distribution of funds on the ground that the
character of the funds in the Wells Fargo account was one of the issues to be resolved at
trial.
The following day, Grace filed her trial brief, stating that she was doing so “under
protest based upon the failure of this court to allow sufficient community funds to be
provided to [Grace] both for her own necessary monthly living expenses pendente lite,
and for payment of necessary attorney’s fees and court costs incurred in preparing this
case for trial.” Significantly, Grace asserted for the first time that the couple’s trust
agreement effectuated a transmutation of David’s separate property into community
assets, a claim in direct contradiction to Manoogian’s May 28 representation to Judge
Fenstermacher.
Grace Files a “Motion in Limine” to Compel Further Discovery From
Scampini
On September 17, 2010, the court day before trial was set to start and well after
the deadline for filing discovery motions, Grace filed a “motion in limine to compel
production of documents,” seeking an order requiring Scampini to produce the
documents he withheld and answer the questions he refused to answer at his deposition.
She argued that Scampini should not have been permitted to deprive her of discovery
based on the attorney-client privilege because she, too, was his client.
David opposed the motion on multiple grounds: it was an improper tool to compel
discovery; a proper motion to compel discovery was untimely; Grace did not meet and
confer; and the requested information was protected by the attorney-client privilege.
Scampini also opposed the motion, asserting essentially the same arguments as David,
and specifically disputing he had an attorney-client relationship with Grace. According
to Scampini, by Grace’s own testimony, she had never gone to his office, signed a
retainer agreement with him, requested that he perform any legal work on her behalf,
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received any correspondence from him, or, as far as she recalled, even met him. Further,
according to Scampini, he took all direction from David, never communicated with
Grace, and generally received payments for his work from “one of the Aitchison business
entities.”
Commencement of Trial and Judge Burch’s Ruling That Grace Did Not Have
an Attorney-Client Relationship With Scampini
Trial commenced as scheduled on September 20, 2010 before Judge Burch. As
will be seen, what was originally set for a five-day trial would turn into a 24-day trial,
with evidence heard between September 23, 2010 and June 27, 2011.
The first day of trial, Judge Burch heard argument on the Scampini motion,
agreeing to decide it on the merits since the issues would require resolution before or
during trial anyhow. As the ensuing argument would make clear, the key issue involving
Scampini was a letter he wrote to David on November 7, 2000 (just three weeks before
Grace and David signed the amended trust) advising that “As a result of your decision to
convert a substantial portion of your assets to community property, it is necessary to
amend The Aitchison 2000 Family Trust, since at the time that trust was initially drafted,
Grace had a nominal estate.” He represented that the assets in Schedule A included “the
community property assets that were previously conveyed to the trust by you and Grace,
as well as the additional assets that you are converting to community property . . . .” He
then went on to describe to David the steps he needed to take to amend the trust.2 The
letter would become the centerpiece of Grace’s claim that David transmuted his separate
property into community property, and its admissibility would remain hotly contested
throughout the entire trial.
After lengthy argument, Judge Burch ruled that Grace did not have an
attorney-client relationship with Scampini and was thus not entitled to discover
privileged communications between him and David. Although Judge Burch declined to
2
The letter was copied to David’s then accountant, who produced it to Grace in
response to a document demand.
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rule that Scampini’s November 7, 2000 letter was inadmissible for any purpose, he
expressed skepticism that the letter was admissible for the purpose for which Manoogian
wanted to use it. And he ruled that Grace could still call Scampini as a witness at trial, as
he could testify about matters not protected by the attorney-client privilege.
Testimony began on September 23, with Manoogian first calling Scampini to the
stand. During his examination, Manoogian attempted to elicit testimony about the
November 7 letter, prompting an objection from Scampini’s counsel. After lengthy
argument, Judge Burch sustained the objection, ruling that the letter was not admissible
for any of the purposes for which Manoogian sought to introduce it—most significantly,
the legal effect of the trust documents.
Judge Burch Finds the Trust Agreement Did Not Transmute David’s
Separate Property into Community Property
Following Scampini’s testimony, Manoogian called David as the next witness.
His testimony consumed much of the remainder of the day, at the conclusion of which
there was further discussion about the transmutation issue. Manoogian then asked Judge
Burch “to make a finding” on whether the trust documents effected a transmutation of
David’s separate property. Judge Burch suggested that counsel submit any authority
regarding whether extrinsic evidence was admissible on the transmutation question or
whether he was confined to the four corners of the trust agreement. He then recessed for
the day.
The session the next morning commenced with Judge Burch “mak[ing] sure
exactly what you both think I should be doing here this morning.” He represented that
the prior day, both parties thought it appropriate for him to decide at that point whether
the trust documents effected a transmutation of David’s separate property. Manoogian
responded that, subject to Judge Burch’s evidentiary ruling concerning Scampini’s letter,
“we have no problem with the court addressing this issue now.” Bank agreed. Judge
Burch then found that there was no transmutation, going on to provide a detailed, 17-page
explanation for his ruling. Testimony then resumed, and at the end of the day, trial was
continued to November 8.
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Grace Files Another Request For Fees
Ten days later—October 4—Grace filed another request for fees, this time seeking
attorney’s fees of $250,000 and expert costs of $75,000.3 She also repeated her request
for control over half of the Wells Fargo Schedule A account, again contending it was
community property. According to the request, as of the first day of trial, Grace had paid
her attorneys $143,267 and owed them $85,875, an amount that had grown to $105,000
by the time of the fee request. She had paid Stegner $27,983 and owed him $20,775, and
he estimated incurring an additional $10,000 in fees for trial. In her supporting points
and authorities, Grace represented that David had paid his attorneys in excess of
$287,000, plus undisclosed sums to his accountants.
Judge Burch heard Grace’s motion on November 8, 2010, ordering David to pay
Grace $75,000 for fees but denying her request for control over the Schedule A account.
When Manoogian protested that he was already owed $105,000, an amount that did not
include fees owed to Grace’s experts, Judge Burch responded that $75,000 should see
Grace through trial. When Manoogian pressed his objection, pointing out that David had
already he paid his attorneys $293,000 with another $44,000 outstanding, Judge Burch
countered: “If your idea is I have got to right now bring you back to square one in terms
of your outstanding fees I think you are absolutely wrong. $75,000 is certainly enough
money to float your wiggle fees between now and the end of the case.”
When Grace received the funds from David, she retained $11,000 for her personal
expenses, with the balance going to Manoogian.
Trial Testimony Continues Before a Two-Month Hiatus
Further evidence was heard on November 30, December 1, 2, 3, and 7, with
additional testimony from David, as well as from Grace and a few other witnesses,
including accountant Stegner. David’s forensic expert Boone was to be the next to testify
on December 8. Two days prior to his testimony, he gave Bank an updated tracing on
3
Elsewhere in her request, Grace asked the court to order David to pay her
attorneys “sums equal to those demanded by his own attorney’s [sic] on an ongoing basis
until this litigation is complete.”
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which he intended to rely at trial; Bank, in turn, gave copies to Manoogian. For various
reasons, however, Boone did not testify as scheduled, and trial was continued to February
14, 2011.
During the hiatus, Stegner met with Boone on December 16, 2010 to review the
updated schedules. And on January 24 and 26, 2011, Manoogian further deposed Boone.
Grace Files Another Request for Attorney’s Fees and Costs and Receives
$15,000 From David
Meanwhile, on December 30, 2010, Grace filed another request for attorney’s
fees and costs, this time seeking $316,868. She also sought to increase child support to
$6,000 per month and spousal support to $9,500 per month.
Judge Burch heard argument on Grace’s fee request on January 10, 2011. By
order dated January 13, 2011, he ordered David to pay Grace $15,000, subject to later
characterization. In his lengthy and thoughtful order, Judge Burch observed “that the
costs of this litigation seem out of proportion to the size of the assets being contested,”
but that “to the extent that David’s attorney’s fees and costs are substantially greater than
Grace’s, this may be in large part due to expenses associated with his satisfying his
burden of proving that assets can be traced to his separate property. So far, the evidence
suggests a rather complex picture of financial interests and transactions involving
David’s father and brothers and their family business. The evidence suggests to date that
David and his counsel are spending significant resources so as to permit him to meet his
burden of proving his separate property claims. The court does not have the sense, and
Grace did not provide any specific information that it was necessary for Grace to expend
equal amounts to challenge David’s proof of the tracing of his assets.”
Judge Burch further stated that Grace had already been awarded substantial
amounts both before and during trial. And other than the evidence about the Wells Fargo
accounts, he had heard little evidence indicating that David possessed other assets or
income that was available to pay Grace’s litigation costs. Judge Burch opined that it was
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the goal of Family Code section 20304 to allow each party sufficient resources to
adequately pursue the litigation to a conclusion. He noted that case law referred to
leveling the playing field, but he did not understand that to obligate him to make
pendente lite fee awards “to insure that each party at all times has the exact same amount
of funds to pursue the litigation.” It was also not the court’s role, he stated, to assist the
parties in exhausting all of their resources on attorney’s fees. He concluded: “In
deciding on an appropriate amount of fees to be awarded, this court believes that it must
be mindful that guaranteeing that both sides will always have the exact same resources to
pursue litigation may, in some cases, give an incentive to a party to litigate all or a part of
a case that should be settled. [¶] In this case, Grace previously has been provided ample
funds which, in this court’s view, were probably sufficient to get her through the trial of
this case. Given the complexity of the evidence in this case, the court cannot say with
certainty that Grace and her attorney have abused the largesse of the court by already
using up the fee awards previously ordered pendente lite. [¶] However, the court does
not believe that it is appropriate to grant counsel’s request for more than $250,000 in
additional fees to be charged to David. In addition to being a huge amount to expend on
attorney fees in just about any case, this amount would constitute one-third or more of all
the liquid funds currently available to both parties.”
Grace Files Another Request for Attorney’s Fees and Costs
On February 3, 2011—a mere three weeks after Judge Burch’s January 13 order—
Grace filed yet another request for attorney’s fees and costs, this time asking for
attorney’s fees of $250,000 and costs of $75,000, as well as equal distribution of cash in
community accounts, including the Wells Fargo Schedule A account. She stated that she
was filing the motion “as the result of JUDGE BURCH’s refusal to address the
previously filed Motions” seeking control of community assets.
David opposed Grace’s request, noting that he had already paid her over $200,000
for her fees, plus an additional $100,000 for her living expenses as well as court-ordered
4
All undesignated statutory references are to the Family Code.
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temporary support. As to Grace’s request for control over accounts pending trial, David
asserted there was insufficient community property to make the division Grace requested
and to reimburse him if the court determined that the Wells Fargo funds were David’s
separate property.
Grace Moves to Continue the Trial and Reopen Discovery
On February 8, 2011, with trial scheduled to recommence on February 14 and
conclude on February 18, Grace moved to continue the trial and reopen discovery. She
argued that if the court were to permit Boone to testify and introduce a new tracing he
had prepared, she needed to conduct discovery of him, as well as of Scampini, whose
files had been made available to Boone and in part formed the basis of his opinions.
Grace’s request for a trial continuance was also based on her having suffered, as
she described it to Manoogian, a “total melt down” that led to her commitment to a
residential facility for treatment of substance abuse issues and related posttraumatic stress
syndrome. She expected to complete the initial 30-day program on February 12, but her
therapist recommended that she remain in treatment for an additional 30 days, which
would place her discharge date well beyond the February 14 trial date.5
David opposed Grace’s requests, pleading with the court to allow the trial to
resume on February 14 as scheduled: “[Grace] and I desperately need to conclude the
very expensive litigation in our divorce. We desperately need this Court’s final
determination of the character and division of property, as well as final support orders.
Any further delay in obtaining final orders in our divorce will only serve to increase our
attorney’s fees.” David also argued there was no basis “whatsoever” for reopening
discovery, citing Grace’s request as “just the most recent example of her sanctionable
conduct.”
5
The same day Grace filed the motion, David was granted sole legal and physical
custody of their minor children due to Grace’s substance abuse problems.
16
Following a hearing on February 14, Judge Burch granted Grace’s motion to
continue the trial, ordering that it would recommence on March 28, 2011, but denied her
request to reopen discovery. Her fee request was set for hearing on February 28, 2011.
Grace’s fee request came on for hearing as scheduled, at the conclusion of which
Judge Burch issued an order directing David to pay Grace $4,006 per month for
temporary spousal support. He also ordered David to pay $10,000 to Stegner upon
receipt of a written commitment that he would testify at trial; if such commitment was
not forthcoming, David was not obligated to pay him.
Grace Attempts to Substitute Manoogian Out As Her Counsel
On March 24, 2011, Grace filed a substitution of attorney, substituting Manoogian
out as her counsel and herself in in propria persona. Upon receipt of the signed
substitution, Judge Burch requested that Manoogian appear on March 29 to discuss it.
At what proved to be an extremely contentious hearing, Judge Burch advised at
the outset that he was “not inclined” to allow Manoogian to withdraw. He presented
Manoogian with four questions to answer, questions the judge had apparently recently
posed of counsel in another case.
When it became evident the only reason Grace was substituting Manoogian out
was her inability to pay his fees, Judge Burch lectured Manoogian, who was represented
by counsel at the hearing, as follows: “You knew from day one you were getting into this
trial with a substantial chance that Ms. Aitchison could not pay your fees and that you
were going to try, if you could—it is so clear to me that your whole strategy here was to
have Mr. Aitchison pay your fees, if you could. And I don’t know if you have any other
arrangement with Ms. Aitchison to eat the excess fees, if you could [not] get them out of
Mr. Aitchison. [¶] But the fact of the matter is it was clear from day one that Ms.
Aitchison was not in a position to pay your full fee and that what you sought to do was
have Mr. Aitchison pay your fees. You knew that from day one in the trial. [¶] And so to
say now that it’s any kind of a surprise that she has not come up with the money to pay
fees is—is absolutely absurd. I can’t even imagine anybody could make an argument to
17
the Court straight faced that you thought Ms. Aitchison at this point in the trial was going
to be able by herself to afford your fee.”
After significant back and forth with counsel for Manoogian about Manoogian’s
duties to Grace and the interests of justice under the circumstances, Manoogian’s counsel
asserted that there was not a level playing field in terms of Grace’s access to fees in light
of what David what paying his attorneys. Judge Burch responded that he was
unpersuaded by counsel’s argument, since Grace had been awarded over $150,000 in
fees, which was “not a drop in the bucket.” He acknowledged that David had spent “a
substantial amount of money,” but he explained: “I don’t understand that there is a
requirement that the playing field necessarily has to be level at all times and the Court has
to open up the sieve from one side to the other and require equal amounts of attorney fees
on both sides. [¶] As I said to Mr. Manoogian earlier in the case, in my view, at least part
of the reason for the uneven expenditures of the expert fees and attorneys fees had to do
with the relative burden of proof that the parties have here and what they are required to
show in order to make their case. [¶] And—the Court’s view is that $150,000 should
have been enough and could have been enough to get Mr. Manoogian through to the end
of the trial and then see where the chips fell in terms of additional attorney fees that
might be awarded. But just to say the other side has spent more money than we have, I
don’t think is a reason to substitute out as counsel.”
Judge Burch also provided examples of how Manoogian was responsible for
drawing out the length of the trial: “Ms. Bank offered to take the bull by the horns and
present her case first and then allow Mr. Manoogian to cross-examine to rebut and try to
put holes in her case, and instead of taking her up on her offer, he decided to be a
contrarian, [‘]If Ms. Bank wants it, there must be something wrong with that. So I’m
going to go first.[’] [¶] And my view is that Mr. Manoogian put on five days or so of
evidence, which could have been taken in about two or two and a half days. There were
many—at least several significant hiatuses during the course of each day where
Mr. Manoogian would be going through his papers, trying to find what questions he
wanted to ask. It was a very slow, dilatory process that could have been a lot shorter if
18
Mr. Manoogian had simply taken Ms. Bank up on her offer to let her try her case first and
to prove the tracing which she wanted to prove, which apparently is the big issue in the
case. [¶] Why Mr. Manoogian wanted to do that, I don’t know. And in reality though,
it—it may have extended the trial substantially longer than it needed to be and Ms. Bank
is not to blame for it. Mr. Aitchison is not to blame for that. Mr. Manoogian is to blame
for that.”
After further exchange, Judge Burch declined to let Manoogian substitute out of
the case, ordering him to continue representing Grace through the end of trial. He cited
three facts for his order: (1) they were in the middle of trial; (2) it was a very
complicated trial, and Grace was in no way equipped to represent herself; and (3) the cost
of hiring a new attorney would be “staggering” because the new attorney would have no
familiarity with the case.
Manoogian responded with an exposition of the claimed inequities of the case,
including that Grace’s accountant quit because she was not paying his bills. Judge Burch
countered that Grace was not technically left without an accountant because she could
subpoena him to testify at trial. He also added that if there was “an additional increment
of work that Mr. Stegner could provide and you could explain why it’s necessary,” he
might consider awarding additional funds.
Manoogian requested that Judge Burch stay the case so he could seek a writ,
expressing his belief that the judge’s order violated the Thirteenth Amendment of the
United States Constitution. He opined that he had “somehow peeved” Judge Burch, and
that the judge never liked the way he was conducting this case. Judge Burch responded
as follows: “My view, at least part of this case is that so far the trial—has increased your
costs and, therefore, increased Ms. Aitchison’s costs, to some extent, because the trial
was unnecessarily prolonged. Your case could have been presented in a materially
shorter period of time than it was. [¶] I could remember distinctly during the course of
the proceedings, actually on a couple of occasions, taking a break because you were not
able and not ready to formulate questions in a particular subject area for any particular
witness. [¶] And my personal observation was there were substantial periods of time
19
between questions where you would ask one question and literally have to fumble
through the documents and, in my view, that was something that happened repeatedly
and unnecessarily prolonged the presentation of your side of the case.”
Judge Burch also disputed Manoogian’s characterization that he was being ordered
to work for free: “I’m not saying you are not going to be able to bill her. I’m not saying
that you eventually won’t be able to collect your billings, in some way or other,
including, if I award attorney fees that the other side has to pay, but leaving
Ms. Aitchison alone here to represent herself in this case would be, in my view, a travesty
and I will not allow it.”
Judge Burch then agreed to stay the proceedings at the close of business the next
day, following two more days of trial that were already scheduled.
Grace Petitions for a Writ of Mandate
On May 5, 2011, Grace petitioned this court for a writ of mandate.
(No. A131891). The petition presented the following five arguments: (1) “the failure to
make adequate support and attorneys fee orders have [sic] prejudiced Grace from and
have made it impossible for her to have a fair trial”; (2) “David could of [sic], and should
have, been ordered to access assets under his control to pay Grace’s fees and costs, just as
he did for his; the character of the assets was not material”; (3) “the trial courts’ [sic]
handling of temporary support has been improper”; (4) “the court was without authority
to order attorney Manoogian to continue to represent Grace after she had voluntarily
signed a substitution of attorneys form”; and (5) “the trial judge has prejudged the case.”
Grace requested that we declare a mistrial, recuse Judge Burch, and start the matter
“fresh” before a new judicial officer.
Five days later, we requested opposition to the petition. After David filed his
opposition, we denied the petition. Grace then petitioned the Supreme Court for review,
which petition was also denied.
Trial Finally Concludes, and Both Parties Request Attorney’s Fees
In June 2011, trial resumed, with evidence taken for 12 additional days.
Following the conclusion of trial on June 27, both parties submitted requests for
20
attorney’s fees. According to David, he had incurred over $1.2 million in fees and costs,
which included $668,879 in fees and $40,751 in costs to Bank’s office, $207,948 for
Boone’s accounting services, $61,000 to oppose Grace’s writ petition and petition for
review, and additional miscellaneous expenses of approximately $27,800. David
represented that the parties participated in three settlement conferences and that the
matter should have settled and not proceeded to trial. According to David, Grace’s
conduct directly frustrated settlement and exorbitantly increased the cost of the litigation.
As such, he argued that pursuant to section 271, he should be awarded all fees and costs
he had incurred since the third settlement conference—a total of $652,357.
In her own section 271 request, Grace contended that David’s litigation tactics
were in fact responsible for dragging out the litigation. She agreed that the case should
have settled early in the proceeding, but she blamed David for the lack of settlement, in
large part due to his insistence that there was no transmutation, a position, she claimed,
“unsupported by the law.”6 Grace also disputed that Manoogian exacerbated the length
of litigation by arguing too much or taking unreasonable amounts of time, instead
blaming the delay on Judge Burch “asking [his] own questions in a rather disruptive
fashion . . . .,” an allegation purportedly supported by a calculation of how many lines in
the trial transcript were consumed by the court versus the parties’ respective counsel. All
told, Grace requested an award of $469,004, the amount still owed to her attorneys and
accountants.
Judge Burch’s Statement of Decision
On September 29, 2011, Judge Burch issued a proposed/tentative statement of
decision after trial. David responded with a request that the court explain “the factual and
legal basis for its decision as to each of the following controverted issues . . .,” thereafter
listing 60 questions, 22 of which concerned the validity of the premarital agreement.
6
Curiously, Grace also asserted that “Sadly, no actual Settlement Conferences
ever took place.”
21
On December 2, 2011, Judge Burch entered a judgment of dissolution, appended
to which was a 58-page statement of decision. Much of it is not pertinent to the issues
before us, and we set forth only the findings that relate to the issues on appeal.
As a preliminary matter, Judge Burch reiterated his prior finding that the trust
documents did not effectuate a transmutation of David’s separate property. While losing
on the transmutation issue, Grace prevailed on her claim that the premarital agreement
was unenforceable. As to that, Judge Burch held that Grace met her burden of proving
that her signing of the premarital agreement was involuntary because she had been misled
as to the importance of specific terms in the agreement, and was unaware the agreement
might alter her community property rights. According to Judge Burch, David and Grace
had a confidential relationship where a constructive fraud was possible. As a result of the
premarital agreement being unenforceable, the “gross up” funds David received from
Tharco to repay his relatives for the Tharco stock were not governed by the provision of
the premarital agreement, and instead constituted community property.
Judge Burch also found that, with few exceptions, accountant Boone’s schedules
were sufficiently trustworthy to support David’s claims regarding the extent of his
separate property interests in various assets, including the Schedule A account.
Concerning the pendente lite payments made by David to Grace during the
litigation, Judge Burch allocated those amounts to David for either Grace’s attorney fees
or her support. He explained:
“Both before and during the trial, the court ordered four separate payments to be
made to Grace. The first payment in the amount of $100,000 was ordered by
Department 15 on February 19, 2010 and was part of an order that directed that both
parties could draw $100,000 from the account subject to a later allocation order. There
was no direct purpose specified for the use of the funds by either party. It is not possible
to discern from the declaration of Grace’s counsel filed post-trial in support of his request
for attorney fees how much, if any, of these funds were paid to him by Grace on account
of attorney fees. However, the court can infer from counsel’s declaration, and the fact
that $4006 constituted the combined spousal and child support being paid to Grace, that a
22
substantial percentage of the payments totaling $208,660 made to counsel for Grace as of
the date of counsel’s declaration came from the four payments ordered by the court
before or during the trial.
“Furthermore, there were three other payments ordered to be paid to Grace to
defray her attorney fees. The first amount of $75,000 was ordered by Department 15 on
May 28, 2010. A second amount of $75,000 was ordered by this court on November 8,
2010 after trial had started. On January 10, 2011, this court ordered yet another amount
of $15,000 to be paid by David to Grace exclusively for her attorney fees. In open court,
counsel for Grace indicated that after receipt of the funds he had permitted a certain
amount of these funds to be retained by Grace for her expenses notwithstanding the
court’s direction that the amount was to be paid solely for attorney fees and the costs of
litigation.
“With regard to the allocation of these four payments, the court now orders that
that [sic] amounts in their entirety be allocated to David for either the payment for
Grace’s attorney fees and her support. In other words, even though David has established
that the balance of funds in the Schedule A account are his separate funds, the court is not
ordering reimbursement from Grace for any of these amounts. In doing so, the court also
acknowledges that this allocation of these amounts is being taken into account with
respect to the court’s awards of additional attorney fees and costs. In making this
allocation, the court notes that it is unlikely that all of the unallocated $100,000 was in
fact used to pay-attorney fees. However, the Declaration by Mr. Manoogian post-trial
regarding his fees does not reflect what portion of fees paid to him derived from this
$100,000 amount.
“In allocating these court-ordered amounts, the court is also taking into account
that David began this case and continued throughout this case with two distinct financial
advantages. First, he had control of the Schedule A account which early in the case had a
[sic] initial value of approximately $1.4 to $1.5 million. Second, he had access to the
substantial loan funds provided to him by relatives who were in a position to help him
23
fund this litigation. There was no evidence that Grace had any similar resources from
which to draw in order to fund her litigation expenses.”
As to spousal support, Judge Burch ordered David to continue paying Grace
$4,006 per month until December 1, 2011, at which time the amount was to decrease to
$2,700 per month. Also effective December 1, 2011, he was to pay Grace 20 percent of
any gross income he received in excess of $110,000 per year. The court also ordered that
“[e]ffective April 1, 2011” the monthly spousal support was to drop to $2,250 per
month.7
Turning to the issue of attorney’s fees, Judge Burch awarded Grace $35,000,
which amount, in addition to the fees awarded pendente lite, was his “best effort to
determine an allocation of attorney fees . . . that was ‘reasonably necessary’ for Grace to
effectively present her case through the trial.” He explained:
“To sum up the court’s thinking, the court finds that David is in the relatively
superior financial position with respect to Grace. Even though he may have a plausible
argument that Grace and her counsel should be held accountable for increasing the costs
of this litigation, including the trial, the court can and has taken those facts into account
in deciding whether to award Grace’s counsel any additional fees from David.
“Grace’s counsel has asked this court to award the entirety of the remaining
balance owed to him by Grace. Notwithstanding his attempt to end his representation in
the middle of trial, and Grace’s causing additional expenditures of funds in the appellate
court to challenge this court’s refusal to let him substitute out of the case mid-trial,
counsel advocates for an amount attributable to his ‘zealous representation’ of his client.
In effect, counsel for Grace claims that she is entitled to an amount that equalizes Grace
with the amount expended by David. The amount requested, $379,312, would shift the
entire cost of all of Grace’s unpaid attorney fees to David.
“The court will grant an additional amount of attorney fees but pares the amount
down considerably. The court orders that David shall pay to Grace an additional amount
7
This date was clearly erroneous since it had already passed.
24
of $35,000 as additional attorney fees. The court finds that a much lower amount than
requested is awarded for the following reasons:
“As noted above, the court allotted considerable funds to Grace before and during
the trial. Some of these funds were allocated to Grace generally and some of the funds
were specifically allocated to help her cover her legal expenses. These amounts included
$100,000 in unallocated funds ordered to be paid to Grace pendente lite in February
2010. Three additional orders allocated $165,000 in attorney fees pendente lite. Two of
these orders totaling $90,000 were entered by this court. Because neither Grace nor her
counsel have provided a clear indication of the total amount of payments made to counsel
from these unallocated funds, the court is going to consider them as having been used
entirely for attorney fees.
“If there remains some disparity between David’s attorney fees and Grace’s total
attorney fees, it must be observed that David’s fees of necessity were much higher than
Grace’s. He bore the responsibility of affirmatively proving in detail that certain assets
and claims were traceable to his separate property. This burden resulted in many hours of
detailed accounting work which had to be reviewed by David’s counsel. The burden on
Grace was to have sufficient funds to review the work of David’s counsel and accountant.
In the court’s view, such a review by Grace’s attorney and accountant would have
involved much less time and expense than that to be invested by David and his expert and
attorney in order to create the tracing.
“The trial was prolonged by counsel’s dilatory conduct which included:
“a. Repetitive offering into evidence of documents that the court had excluded on
the basis of prior legal rulings relating to the transmutation issue . . . .
“b. Repetitive questions attempting to elicit parol evidence relating to the
transmutation issue despite repeated rulings by the court that parol evidence was not
admissible to prove a transmutation under the clear rulings of the California Supreme
Court.
“c. One example of the unnecessary use of trial time to elicit parol evidence was
Grace’s calling of Sharon Rubens, a CPA who charged expert fees for her testimony. A
25
significant part of Grace’s examination of Rubens constituted an attempt to elicit parol
evidence to prove that a transmutation had occurred.
“d. Another example of the waste of trial time was Grace’s calling of Mary
Mehwa, a bank official. It appeared that she was called to testify largely as part of
another effort to have her give parol evidence to challenge this court’s ruling on the
transmutation issue.
“e. Repeated, long pauses between questions by counsel which the court noted on
the record at trial.
“The court notes also that Grace’s counsel stated a billing rate of $550 per hour.
Among Family Law practitioners who have appeared in this court, this is an
extraordinarily high hourly fee. While the court does not intend to suggest that this fee
would be inappropriate where accepted by a willing client, the court does not believe that
it is appropriate to charge such an extraordinary fee rate to an opposing party under
[Family Code] §2030.
“Counsel for Grace appears to blame this court entirely for the excessive length of
the trial based upon allegations that this court prolonged the trial by disruptive, tangential
questions and by engaging in excessive ‘dialogue’ during the trial. See Declaration of
Judith M. Manoogian filed on July 29, 2011 regarding ‘Comparative Dialogue.’ This
declaration attempts to compare ‘lines of dialogue’ attributable to the court and counsel
for both parties. The term ‘lines of dialogue’ is not otherwise defined.
“The court’s simple response to counsel’s ‘comparative dialogue’ allegation is that
it is nonsense. . . . [Fn. omitted.]”
Judge Burch declined to award any fees for accountant Stegner, explaining:
“Mr. Stegner, an accountant was retained by Grace to provide accounting services for
various purposes during the trial. He was called to testify by Grace during the trial.
According to representations made by counsel for Grace at some point after
Mr. Stegner’s testimony, he declined to provide further testimony or any other assistance
to Grace unless his outstanding bill was paid. Based upon her claims of indigence Grace
asked the court to order that David pay Mr. Stegner’s outstanding bill. The court
26
indicated that, subject to consideration of further payments to be considered by the court
after trial, it would order David to advance $10,000 to Mr. Stegner provided that he
would agree to appear for additional testimony. According to Grace’s counsel,
Mr. Stegner refused to accept the $10,000 with a corresponding promise to appear for
additional testimony. Under these circumstances, the court does not find that it is
appropriate to award any additional amounts for Grace for payment to Mr. Stegner.”
Turning to David’s fee request, Judge Burch denied it in as far as David requested
all fees he had incurred since the third settlement conference. He did, however, award
David $25,000 pursuant to section 271 for fees incurred in responding to Grace’s writ
petition.
Lastly, Judge Burch noted David’s request that he respond to numerous questions
relating to the validity of the premarital agreement and other issues. He denied this
request, as follows: “Because this court has decided the dispositive issues in this case by
applying the pertinent legal principles to the facts of this case, it is unnecessary for the
court to make the various specific findings or clarifications sought by David’s counsel.
See Vukovich v. Radulovich (1991) 235 Cal. App. 3d 281, 295 (court only required to
resolve issue or issues that are necessary to a proper decision). To put it another way, the
court must identify and resolve the ultimate issues but is not required to make a
determination as to each factual dispute as to which counsel would like an answer. See
e.g. Muzquiz v. City of Emeryville (2000) 79 Cal. App. 4th 1106, 1125–26. Counsel for
David seems to contend that the court must make numerous findings on every disputed
evidentiary point in the case or must clear up every perceived semantic ambiguity in the
court’s proposed decision even if the findings or ‘clarifications’ are unnecessary to a
resolution of the case. The court has reviewed each of David’s proposed questions to be
answered both as to the validity of the PMA and as to the ‘gross up’ of David’s salary
and has modified certain language to make the court’s finding’s [sic] clearer. However,
the court declines David’s suggestion that the court respond to each and every specific
question he has propounded as such responses are unnecessary to the resolution of the
case.”
27
Grace filed a timely appeal, and David a timely cross-appeal.
DISCUSSION
A. The Trust Documents Did Not Transmute David’s Separate Property
Into Community Property
In her first argument, Grace contends that The Aitchison 2000 Family Trust
agreement transmuted much of David’s separate property—specifically, those assets
identified in Schedule A to the trust—to community property. This issue was critical to
Grace’s case below: if correct, the community estate was worth millions, with Grace
likely to receive a substantial award of property; if incorrect, the community estate had
minimal assets, and Grace would be entitled to a very modest allocation of assets.
Judge Burch rejected Grace’s claim both at the outset of trial and in his statement of
decision, finding that neither the trust agreement in general nor Schedule A in particular
satisfied the statutory requirements for a transmutation. We review his determination de
novo (In re Marriage of Barneson (1999) 69 Cal.App.4th 583, 588; In re Marriage of
Starkman (2005) 129 Cal.App.4th 659, 664 (Marriage of Starkman)), and we conclude
that the trust documents were insufficient to create a transmutation.
Section 850, subdivision (b) generally provides that married persons may
transmute the separate property of either spouse into community property “by agreement
or transfer.” (See also In re Marriage of Haines (1995) 33 Cal.App.4th 277, 293
[transmutation is “an interspousal transaction or agreement which works a change in the
character of the property”].) Per section 852, subdivision (a), “A transmutation of real or
personal property is not valid unless made in writing by an express declaration that is
made, joined in, consented to, or accepted by the spouse whose interest in the property is
adversely affected.”
In the seminal case of Estate of MacDonald (1990) 51 Cal.3d 262, the California
Supreme Court interpreted the term “express declaration” as used in section 852,
28
subdivision (a).8 There, a husband and wife sought to divide their community estate into
separate property so they could leave their separate estates to their respective children
from prior marriages. The husband’s portion of his community pension plans was placed
into retirement accounts bearing his name and naming his separate trust as the account
beneficiary. Because the accounts named someone other than his wife as the beneficiary,
her consent was required. She signed the beneficiary designations contained in the
account agreements, attesting that “I hereby consent to the above designation.” (Id. at
pp. 265–266.)
On a challenge by the wife’s heirs, the Supreme Court held that there had not been
a transmutation. As required, the consent paragraphs were “in writing” and “accepted”
by the adversely affected spouse. Significantly, however, they lacked language
“expressly stating that [the wife] was effecting a change in the character or ownership” of
the community property: “[T]he consent paragraphs contain no language which
characterizes the property assertedly being transmuted, viz., the pension funds which had
been deposited in the account. It is not possible to tell from the face of the consent
paragraphs, or even from the face of the adoption agreements as a whole, whether
decedent was aware that the legal effect of her signature might be to alter the character or
ownership of her interest in the pension funds. There is certainly no language in the
consent paragraphs, or the adoption agreements as a whole, expressly stating that
decedent was effecting a change in the character or ownership of her interest.” This did
not mean, the court clarified, that a writing must use a particular term, such as
“transmutation,” “community property,” or “separate property.” Instead, the language
must simply express that the spouse “was effecting a change in the character or
ownership of [his or] her interest.” The court suggested it would have been sufficient if
the document had stated, “ ‘I give to the account holder any interest in the funds
deposited in this account.’ ” (Estate of MacDonald, supra, 51 Cal.3d at pp. 272–273; see
8
The Court was construing then Civil Code section 5110.730, subdivision (a), the
identically worded predecessor to section 852.
29
also In re Marriage of Benson (2005) 36 Cal.4th 1096, 1111 [confirming that a
transmutation must be in writing].)
The trust documents here likewise fell short of section 852’s “express declaration”
requirement. In paragraph 1.1, David and Grace expressed their intention that any
community property transferred to the trust—previously or in the future—would remain
community property, and any separate property transferred—again, previously or in the
future—would remain separate property. Paragraph 1.2.1 stated that all assets identified
in schedule A were “before the transfer to this Trust, and shall remain after said transfer”
community property. Schedule A as amended provided, “The undersigned, have either
previously assigned, and or do hereby assign, transfer, bargain, sell and or convey to
David T. Aitchison and Grace F. Aitchison, Trustees of The Aitchison 2000 Family
Trust, dated February 28, 2000 (‘said Trust Agreement’), all of their right, title and
interest in and to the following assets, said assets consisting of the undersigned
community property, and which shall comprise the Settlors’ ‘Settlors Community
Estate,’ ” thereafter listing a number of assets. The only reasonable construction of these
provisions—alone and collectively—is that they transferred certain assets to the trust.
While the Schedule A assets were identified as community property, nowhere is there an
expression by David changing the character of those assets from separate to community
property. The trust language suggests the contemplation of another document that would
transmute separate property to community property, but there was no evidence David
ever executed such a document.9
Marriage of Starkman, supra, 129 Cal.App.4th 659 is particularly instructive. At
issue there was a trust providing that the “Settlors agree that any property transferred by
either of them to the Trust . . . is the community property of both of them unless such
property is identified as the separate property of either Settlor.” A contemporaneously
executed general assignment conveyed “ ‘any asset, whether real, personal, or mixed . . .
9
Judge Burch posited an alternative possibility: the parties mistakenly believed
that one or more of the Schedule A assets was already community property. This seems
less plausible.
30
[the spouses] own now or which we may own in the future’ ” to the trust. The husband
subsequently executed various stock brokerage forms to convey specific assets to the
trust. (Id. at p. 662.)
The couple subsequently separated, and the husband revoked the trust. (Marriage
of Starkman, supra, 129 Cal.App.4th at p. 662.) In the ensuing dissolution proceeding,
the wife claimed that the assets the husband had conveyed to the trust by the stock
brokerage forms had been transmuted into community property. (Ibid.) The trial court
disagreed, and the wife appealed. (Id. at p. 663.)
The Court of Appeal affirmed. It observed that the trust’s stated purposes were to
avoid probate, allow for the orderly administration of the settlors’ estates in the event of
their death or incapacity, and possibly minimize the tax burden—not to transfer half of
the husband’s sizable estate to the wife. More importantly, because the trust document
stated that the assets that would be conveyed to the trust were community property—as
opposed to stating that they would thereby become community property—the trust
agreement did not “unambiguously establish” that the husband was “effecting a change of
ownership of the entirety of his significant separate estate.” Similarly, neither the
assignment nor the brokerage forms contained an express statement that the
characterization or ownership of the property was being changed. (Marriage of
Starkman, supra, 129 Cal.App.4th at pp. 664–665.) The court thus made a distinction
that is critical here: language that merely characterizes an asset as separate or community
property versus language that expresses an intent to change the character of an asset from
one type of property to the other.
The factual situation in this case is strikingly analogous to that in Marriage of
Starkman. Here, as in Marriage of Starkman, the trust documents conveyed certain
separate property assets to the trust and characterized them as community property.
However, and again like Marriage of Starkman, there was no language—in the trust
agreement or elsewhere—expressly changing the character of the assets. In fact,
paragraph 1.1 was to the contrary, specifically stating that the assets were to retain the
character they had before the conveyance: “It is the Settlors’ intention that any
31
community property which has been transferred to this Trust and the proceeds and
increase thereof shall retain the character of and continue to be their community property,
and that any separate property that has been or will be transferred to this Trust by a
Settlor shall retain the character of and shall continue to be the separate property of the
contributing Settlor.”
The facts in the cases in which courts have found language satisfying section
852’s express statement requirement are in stark contrast to the facts here. In In re
Marriage of Holtemann (2008) 166 Cal.App.4th 1166, the spouses executed a “Spousal
Property Transmutation Agreement,” the introduction of which stated that “ ‘[t]he parties
are entering into this agreement in order to specify the character of their property interests
pursuant to the applicable provisions of the California Family Code’ ” and that the
agreement was “ ‘not made in contemplation of a separation or marital dissolution and is
made solely for the purpose of interpreting how property shall be disposed of on the
deaths of the parties.’ ” A subsequent article of the agreement stated: “ ‘Transmutation
of Husband’s Separate Property to Community Property. Husband agrees that the
character of the property described in Exhibit A . . . is hereby transmuted from his
separate property to the community property of both parties.’ ” Exhibit A was entitled
both “Husband’s Separate Property Being Transmuted to Community Property” and a
“List of Community Property.” (Id. at pp. 1169–1170.) And the couple’s trust agreement
stated that it was “ ‘a joint trust established by the settlors in order to hold community
property of the settlors, which community property was created by the transmutation of
separate property of settlor Frank G. Holtemann concurrently with the execution of this
trust instrument.” (Id. at pp. 1170–1171.)
Rejecting the husband’s claim that the documents were ambiguous because they
indicated they were executed solely for estate planning purposes, the Court of Appeal
held that the husband effectively transmuted his separate property. (In re Marriage of
Holteman, supra, 166 Cal.App.4th at p. 1172.) The agreement unambiguously stated that
the character of the property described in Exhibit A was “ ‘transmuted from his separate
property to the community property of both parties.’ ” Elsewhere in the agreement, as
32
well as the trust documents, the word “transmutation” was used repeatedly. While noting
that “[a]n express declaration of transmutation does not necessarily require use of the
terms ‘transmutation,’ ‘community property,’ or ‘separate property,’ ” the court agreed
with the trial court that “ ‘[a] clearer statement of a transmutation is difficult to
imagine.’ ” (Id. at pp. 1172–1173.)
More recently, in In re Marriage of Lund (2009) 174 Cal.App.4th 40, a married
couple executed an “Agreement to Establish Interest in Property.” An introductory
recital stated that “At the date of marriage, Husband owned property, real or otherwise of
substantial value and wife had assets of de minim[i]s value” and that “The Husband, for
estate planning purposes desires to convert said separate property into community
property.” (Id at p. 44.) A section titled “converted property” provided: “ ‘All of the
property, real and personal, held in the name of Husband having its origin in his separate
property no matter how received and/or earned, is hereby converted to community
property of Husband and Wife, and shall thereafter be the community property of the
parties for estate planning hereto, each having a present, existing, and equal interest
therein.’ ” (Id. at p. 45.) The Court of Appeal concluded that the agreement
“unambiguously” effected a transmutation of the husband’s separate property into
community property. (Id. at p. 51.)
Similarly, in Estate of Bibb (2001) 87 Cal.App.4th 461, the court held that a grant
deed signed by a husband transferring his separate property interest in real property to
himself and his wife as joint tenants satisfied the “express declaration” requirement of
section 852, subdivision (a), because it contained a clear and unambiguous expression of
intent to transfer the real property interest. (Id. at pp. 468–469.) The court reasoned that
the husband’s use of the term “grant” was equivalent to giving an interest, which the
Estate of MacDonald court held would have been adequate for a transmutation. (Id. at
p. 468.) At the same time, the court held that a “DMV Vehicle Registration Information”
printout reflecting that a car originally registered in the husband’s name alone was
reregistered in the names of both the husband and wife did not satisfy the requirements of
section 852, subdivision (a). (Id. at pp. 469–470.)
33
The Holteman/Lund/Bibb line of authorities exemplify the express statement the
Legislature contemplated when enacting Civil Code 5110.730, and later section 852.
Such statement was simply absent from The Aitchison 2000 Family Trust agreement.
The essence of Grace’s argument to the contrary is that the trust agreement
evidenced David’s intent that all property listed on Schedule A be community property.
Indeed, in the three and one-third pages of her reply brief dedicated to the transmutation
issue, Grace uses the words “intention,” “intended,” “intent,” and “intentional” ten
different times. But the authorities make clear that David’s intention with respect to
transmutation was irrelevant; whether or not there was an effective transmutation is
solely governed by the language of the trust documents. And Grace simply cannot
identify any language purporting to change the character of David’s property, rather than
merely identifying it.
Grace alternatively argues that if the trust agreement was ambiguous, Judge Burch
erred in denying her the right to introduce extrinsic evidence—namely, the November 7,
2000 Scampini letter—to establish David’s intention to transmute his separate property
into community property. On this topic, she queries, “While the Court is correct that
transmutations are to determined [sic] by the four corners of the document, does that
mean that absolutely no evidence as to the parties’ intent or the drafter’s intent is
relevant?” The unequivocal answer to that question is a resounding yes, as case law
universally makes clear: extrinsic evidence is inadmissible on the question of
transmutation. (See, e.g., Estate of MacDonald, supra, 51 Cal.3d at pp. 271–272; In re
Marriage of Benson, supra, 36 Cal.4th at p. 1106 [“the writing must reflect a
transmutation on its face, and must eliminate the need to consider other evidence in
divining this intent”]; Marriage of Starkman, supra, 129 Cal.App.4th at p. 665 [letter sent
by attorney warning “that separate property be clearly identified as such” was
inadmissible extrinsic evidence]; In re Marriage of Barneson, supra, 69 Cal.App.4th at
p. 592 [“[T]he transmutation determination must be made without resort to extrinsic
evidence.”]; Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group
2013) ¶ 8:478 [“by requiring an express written declaration that characterization or
34
ownership is being changed, Fam.C. § 852(a) effectively makes irrelevant and
inadmissible extrinsic evidence of an intent to transmute (or not to transmute)”].)
The history of the transmutation statute further confirms this is so. Traditionally,
there were no formal requirements for establishing a transmutation, with courts finding
transmutations based on oral statements or even implications from the parties’ conduct.
(Recommendation Relating to Marital Property Presumptions and Transmutations,
17 Cal. Law Revision Com. Rep. (1984) 209, 213.) Believing that the lack of formal
requirements generated excessive litigation (id. at p. 214), the Law Revision Commission
proposed a new statute that would “increas[e] certainty in the determination whether a
transmutation has in fact occurred.” (Id. at pp. 224–225.) The proposed statute provided
that “[a] transmutation of real or personal property is not valid unless made in writing by
an express declaration that is made, joined in, consented to, or accepted by the spouse
whose interest in the property is adversely affected.” The Legislature enacted Civil Code
section 5110.730, subdivision (a) the following year. (Stats. 1984, ch. 1733, § 3,
p. 6302.) And, as discussed above, the court in Estate of MacDonald subsequently held
that the “express declaration” provision required language specifically stating that the
characterization of the property was being changed, without resort to extrinsic evidence.
In reaching this holding, the court made the following observation: “Manifestly, there
are policy considerations weighing both in favor of and against any type of transmutation
proof requirement. On the one hand, honoring the intentions of the parties involved in a
purported transmutation may suggest that weight should be given to any indication of
these intentions. On the other hand, the desirability of assuring that a spouse’s
community property entitlements are not improperly undermined, as well as concern for
judicial economy and efficiency, support somewhat more restrictive proof requirements.
The Legislature, in enacting section 5110.730 (a), apparently thought it unwise to rely on
some kinds of evidence to effect transmutations. It is not for us to question that
legislative conclusion.” (Estate of MacDonald, supra, 51 Cal.3d at p. 273.) In light of
this, Judge Burch was undoubtedly within his discretion to exclude the Scampini letter.
35
In a related argument, Grace submits that she was wrongfully prevented from
obtaining certain discovery from Scampini due to Judge Burch’s erroneous finding that
she and Scampini did not have an attorney-client relationship. She contends that he was,
in fact, her attorney as well as David’s by virtue of him having drafted the trust, its
amendments, and her will. As such, she continues, she had a right to obtain from him
information concerning community affairs and estate planning, information that was
denied to her because it was ostensibly protected by the attorney client privilege. We
need not reach this issue, since even assuming for argument’s sake that Grace was indeed
Scampini’s client, any extrinsic evidence she might theoretically have obtained would
nevertheless have been inadmissible on the transmutation issue.10 We thus find no abuse
in the trial court’s discretion in denying Grace certain discovery from Scampini and
prohibiting her from soliciting certain evidence from him at trial, whether or not he was
her attorney.
B. Judge Burch’s Attorney’s Fee Award Did Not Constitute an Abuse of
Discretion
Grace next challenges the amount of attorney’s fees David was ordered to pay her,
contending the fees were so inadequate it was “impossible” for her to have a fair trial,
resulting in “a miscarriage of justice.” David disputes Grace’s entitlement to additional
fees on multiple grounds, the first of which is that any challenge to the pendente lite fee
awards is “Far, Far Too Late.” While Grace’s briefs discuss the pendente lite fee awards
at length, she appeals from Judge Burch’s final fee award of an additional $35,000. This
appeal is clearly timely. We thus turn to the merits of Grace’s claim.
10
At trial, Manoogian speculated that the “express declaration” required by
section 852, subdivision (a) and seemingly contemplated by the trust documents was
contained in Scampini’s files. Bank confirmed that Grace had demanded production of
such a document, but that both Scampini and David had testified there was no such
document. Judge Burch ordered Scampini to produce the document if it existed. It goes
without saying that no such document was forthcoming.
36
1. The Law and Standard of Review
The award of attorney’s fees in a dissolution action is governed by section 2030,
which provides that “the court shall ensure that each party has access to legal
representation,” which includes ordering one party to pay the other party “whatever
amount is reasonably necessary for attorney’s fees and for the cost of maintaining or
defending the proceeding . . . .” Pursuant to section 2032, a fee award should be “just
and reasonable under the relative circumstances of the respective parties,” taking “into
consideration the need for the award to enable each party, to the extent practical, to have
sufficient financial resources to present the party’s case adequately . . . .”
Courts have identified numerous factors that guide the decision whether to order
fees and, if so, the amount. Such factors include: the nature of the litigation, its
complexity, and the amount involved; the financial circumstances of the parties; the legal
skills involved; whether counsel’s skill and effort were wisely devoted to the expeditious
disposition of the case; the success of counsel’s efforts; the respective attorneys’
professional standing and reputation; the intricacies and importance of the litigation; the
labor and necessity for skilled legal training and ability in trying the case; the time
consumed; the litigants’ trial tactics; and the litigation costs already incurred and
expected to be incurred through trial. (In re Marriage of Keech (1999) 75 Cal.App.4th
860, 870; In re Marriage of O’Connor (1997) 59 Cal.App.4th 877, 884; In re Marriage
of Jovel (1996) 49 Cal.App.4th 575, 588; In re Marriage of Braud (1996) 45 Cal.App.4th
797, 827; In re Marriage of Huntington (1992) 10 Cal.App.4th 1513, 1523; In re
Marriage of Cueva (1978) 86 Cal.App.3d 290, 296.)
It has been said that an “expeditious and final resolution of marital dissolution
actions is best accomplished by providing . . . a parity between spouses in their ability to
obtain effective legal representation.” (In re Marriage of Hatch (1985) 169 Cal.App.3d
1213, 1215 (Marriage of Hatch).) Put another way, the purpose of sections 2030 and
2032 is “ ‘ “leveling the playing field” and permitting the lower-earning spouse to pay
counsel and experts to litigate the issues in the same manner as the spouse with higher
37
earning.’ ” (In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1315 (Marriage of
Tharp).)
Trial courts enjoy broad discretion in making fee awards in a dissolution action (In
re Marriage of Cheriton (2001) 92 Cal.App.4th 269, 314–315), and we review such
awards for abuse of that discretion. (Marriage of Tharp, supra, 188 Cal.App.4th at
p. 1312; In re Marriage of Braud, supra, 45 Cal.App.4th at p. 827.) “[T]he trial court’s
order will be overturned only if, considering all the evidence viewed most favorably in
support of its order, no judge could reasonably make the order made. [Citations.]” (In re
Marriage of Cueva, supra, 86 Cal.App.3d at p. 296.)
2. The Fees Awarded Were Within the Court’s Discretion
It is difficult to ascertain precisely how much was made available to Grace for
attorney’s fees and costs. David initially represents that she received a total of nearly
$400,000, an amount he later revises down to $351,000. Grace’s estimate, not
surprisingly, is much more conservative. She claims a total fee award of $175,000, out of
which Manoogian paid Stegner $27,983.50, leaving $147,016.50 for attorney’s fees. As
we understand it, the actual amount was somewhere in between.
The trial court awarded Grace the following amounts dedicated strictly for
attorney’s fees: $75,000 on May 28, 2010; another $75,000 on November 8, 2010;
$15,000 on January 13, 2011; and $35,000 at the conclusion of the trial. Grace also
received the $100,000 distribution at the outset of that case that likely went in part to her
fees and in part to her living expenses. From one of the fee awards, Grace retained
$11,000 for her living expenses, and she was ordered to pay sanctions to David of
$25,000 for filing what Judge Burch deemed a frivolous writ petition. Thus, the net
amount to Grace was $164,000, plus whatever she used from the $100,000
uncharacterized distribution.11 We conclude there was no abuse of discretion in awarding
her fees and costs in this amount.
11
Because Grace never clarified how much of the $100,000 in unallocated funds
were paid to Manoogian, Judge Burch “consider[ed] them as having been used entirely
38
Over the course of the long trial, as well as in his statement of decision,
Judge Burch identified numerous factors that influenced the amount of fees he awarded
Grace. Particularly significant was that fact that David’s and Grace’s cases were notably
different. David was claiming that much of the couple’s estate was his separate property
and, as such, he bore the burden of tracing the assets back to his separate property. This
required his accountants and attorneys to compile and review 22 years worth of financial
records, including multiple stock sales and complicated business transactions of the
Aitchison family. Grace, on the other hand, was only required to review the compilations
produced by David’s experts. This factor alone accounted for a sizable disparity in what
each side would reasonably incur in putting on its case, both in terms of attorney’s fees
and accountant costs.
Judge Burch also considered it significant that Bank offered to present David’s
case first, a sensible suggestion given his burden. But Manoogian refused to proceed in
such a fashion, a decision Judge Burch described as “contrarian”—rejecting the proposal
simply because Bank made it. There can be no doubt that had David proceeded first, the
trial would have been vastly shorter and Grace’s fees (and David’s fees, for that matter)
significantly less. As Judge Burch noted during the trial, Manoogian spent multiple days
“wandering around . . . in the evidence,” which likely would not have happened had Bank
been permitted to go first.
Moreover, Judge Burch identified numerous ways in which Manoogian’s “dilatory
conduct” greatly prolonged the trial, a trial that was initially expected to last five days but
instead ended up taking 24 days. While the record is replete with examples, Judge Burch
specifically identified in his statement of decision the following five examples of
Manoogian’s conduct: (1) repeatedly offering into evidence documents that the court had
previously excluded based on prior legal rulings relating to the transmutation issue;
(2) repetitive questions attempting to elicit parol evidence relating to the transmutation
for attorney fees.” Grace received no temporary spousal support from December 2009 to
June 2010, so one can only conclude that a significant portion of the $100,000 went to
her living expenses.
39
issue despite prior rulings that parol evidence was not admissible to prove a
transmutation; (3) calling accountant Sharon Rubens, who charged expert fees for her
testimony, in an attempt to elicit parol evidence on the transmutation issue; (4) calling
bank official Mary Mehwa to elicit parol evidence on the transmutation issue; and
(5) “[r]epeated, long pauses between questions by counsel which the court noted on the
record at trial.”
Judge Burch’s comments during the hearing on Manoogian’s attempt to substitute
out of the case summed it up well: “[M]y view is that Mr. Manoogian put on five days or
so of evidence, which could have been taken in about two or two and a half days. There
were many—at least several significant hiatuses during the course of each day where
Mr. Manoogian would be going through his papers, trying to find what questions he
wanted to ask. It was a very slow, dilatory process that could have been a lot shorter if
Mr. Manoogian had simply taken Ms. Bank up on her offer to let her try her case first and
to prove the tracing which she wanted to prove, which apparently is the big issue in the
case. [¶] Why Mr. Manoogian wanted to do that, I don’t know. And in reality though,
it—it may have extended the trial substantially longer than it needed to be and Ms. Bank
is not to blame for it. Mr. Aitchison is not to blame for that. Mr. Manoogian is to blame
for that.”
Judge Burch also considered the rate Manoogian charged “extraordinarily
high . . . .” He billed Grace at a rate of $550 per hour, which was over 40 percent higher
than Bank’s hourly rate of $390. According to the judge, that rate might be acceptable
where paid by a willing client, but he did not consider it appropriate to charge such an
excessive rate to an opposing party.
While conceding that Manoogian was at least in part responsible for unreasonably
prolonging the length of the trial, Grace nevertheless claims that the fee award was an
abuse of discretion because there was a lack of parity between what she was given for her
attorneys and experts and what David spent on his. And Grace has made clear—both
below and on appeal—that, in her view, “parity” means equal funds. This is not so.
Rather, it means equality “ ‘ “ ‘between spouses in their ability to obtain effective legal
40
representation.’ ” ’ ” (Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251–252
(Alan S.), quoting Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 41, fn. 12.)
And that equality is influenced by the numerous factors previously enumerated. In short,
the fact that David outspent her by a sizeable margin does not mean there was not a level
playing field.
In urging reversal, Grace relies primarily on three cases, none of which compels a
different result. The first, Marriage of Hatch, supra, 169 Cal.App.3d 1213, involved a
housewife who had not worked outside the home during the 10 years preceding the
dissolution action and a husband who was a journeyman plumber who had been out of
work and was receiving unemployment benefits supplemented with income from wood
cutting work. The wife filed a request for child and spousal support, as well as attorney’s
fees and costs. (Id. at p. 1216.) At the hearing on her request, wife’s counsel requested
the court order temporary attorney’s fees because the wife had no income and had no
ability to pay her fees and costs. (Id. at p. 1217.) The court essentially dismissed the
request, advising counsel that it “virtually never” granted pendente lite fees because the
entitlement to attorney’s fees depended on property division, which is not decided until
the conclusion of the case. It explained to counsel: “[I]n the family-law area an attorney
ordinarily carries the client until the time of trial, if the lawyer has reason to suppose that
he will be ultimately paid . . . .” (Ibid.)
The Court of Appeal reversed, concluding that the trial court failed to exercise its
discretion. (Marriage of Hatch, supra, 169 Cal.App.3d at pp. 1218-1219.) It noted that
the court neglected to consider the factors required by law, including the respective
incomes and needs of the parties, and it “evidenced a complete disregard for [the wife’s]
need to retain skilled counsel to represent her interests in the resolution of the issues of
the case, and the difficulties she would face finding adequate counsel who could afford to
defer all payment until a final resolution occurred.” (Id. at pp. 1219–1220.) As to the
trial court’s claim that counsel in family law cases should be prepared to carry his or her
client, the court stated: “Unfortunately it is often true that the financial circumstances of
spouses at the breakup of marriages do not permit timely payment of counsel for services
41
as they are rendered and, in fact, counsel for financially disadvantaged spouses rarely
receive final payment until long after the litigation is over. However, the courts should
not make a bad situation worse. The suggestion of the trial court that attorneys handling
marital dissolution cases must be prepared to ‘carry the client until the time of trial’ is not
only demeaning to attorneys handling family law cases, it fails to consider the present
day realities of the economics of the practice of law.” (Id. at p. 1218, fn. 2.)
While we agree with the Court of Appeal’s observations, that was not the situation
here. There can be no doubt that Judge Burch exercised his discretion, hearing Grace’s
multiple pendente lite fee requests over the course of the case in often times lengthy
hearings and awarding her a portion of the fees requested on multiple occasions. During
the litigation, Grace had been awarded $165,000 dedicated to attorney’s fees, with an
additional $100,000 in discretionary funds also in her possession. Judge Burch viewed
this as enough to get her through trial, and he did not expect Manoogian to “carry” her, as
was the case in Marriage of Hatch.
Grace also relies on two recent cases she claims are analogous to her situation.
The first, Alan S., supra, 172 Cal.App.4th 238, was a child custody case in which the trial
court ordered pendente lite attorney’s fees to the wife of $9,000. The husband filed a writ
petition challenging the order, which petition the Court of Appeal granted. It held that
the trial court was obligated to consider the relevant factors set forth in sections 2030 and
2032, which it failed to do. For example, it neglected to consider the husband’s negative
cash flow of $800 per month; the $25,000 in credit card debt he had incurred for his
former counsel; the respective amounts of property owned by the parties; the $1,800
monthly child support the husband was paying the wife; new mate or partner
contributions to the respective households, since the wife had remarried and the husband
was living with the mother of his newborn child; and the incurrence of by the wife of fees
that were “clearly not ‘reasonably necessary’ for the litigation . . . .” (Id. at pp. 242–243,
255.)
In reaching its conclusion, the court explained that the purpose of section 2030 “is
not the redistribution of money from the greater income party to the lesser income party.
42
Its purpose is parity: a fair hearing with two sides equally represented. The idea is that
both sides should have the opportunity to retain counsel, not just (as is usually the case)
only the party with greater financial strength.” (Alan S., supra, 172 Cal.App.4th at
p. 251.)
While we disagree with Grace that Alan S. is “eerily similar” to this situation, we
do find the case instructive in other regards not advocated by Grace. For one, the court
emphasized that the object of section 2030 “is not the redistribution of money from the
greater income party to the lesser income party” (Alan S., supra, 172 Cal.App.4th at
p. 251), as Grace would have it. Indeed, during trial, Judge Burch admonished
Manoogian for his sense of “entitlement” to the same funds David was spending on his
attorneys and accountants, as if the wealthier spouse is obligated, no questions asked, to
pay any amount of fees incurred by the supported spouse. For another, the Court of
Appeal recognized that the trial court failed to explore one very significant factor, that
being the wife’s overlitigation of the case, suggesting that she had incurred fees that were
not “reasonably necessary” as required by section 2032. (Id. at pp. 255–256.) The record
before us indicates that Judge Burch was of the same opinion here: many of the fees
Grace incurred were not reasonably necessary, due to her overlitigation and Manoogian’s
lack of preparation and “contrarian” insistence at putting on Grace’s case first. And, as
Judge Burch correctly noted, it was not his role “to open up the sieve from one side to the
other and require equal amounts of attorney fees on both sides.”
Lastly, Grace relies on Marriage of Tharp, supra, 188 Cal.App.4th 1295, in which
the trial court denied the wife’s initial motion for pendente lite attorney’s fees, her
request for reconsideration, and her third motion for previously incurred attorney’s fees,
awarding her only $20,000 for all future work in the case, to be paid at the conclusion of
trial. (Id. at pp. 1304–1308.) The wife appealed, and the Court of Appeal reversed.
(Id. at p. 1312.)
As in Marriage of Hatch, the Court of Appeal held that the trial court failed to
exercise its discretion. (Marriage of Tharp, supra, 188 Cal.App.4th at p. 1312.) It
observed that “While the family court has considerable latitude in fashioning or denying
43
an attorney fees award, its decision must reflect an exercise of discretion and a
consideration of the appropriate factors as set forth in code sections 2030 and 2032.
[Citation.] . . . Further, in determining whether to award attorney fees to one party, the
family court may consider the other party’s trial tactics.” (Id. at pp. 1313–1314.) The
court concluded with the following observation: “The public policy purpose behind
sections 2030 and 2032 is ‘ “leveling the playing field” and permitting the lower-earning
spouse to pay counsel and experts to litigate the issues in the same manner as the spouse
with higher earnings.’ [Citations.] Attorney fees, financial experts, other experts,
witness fees, and other costs are all awardable. [Citation.] A spouse should not have to
utilize support payments designed to pay living expenses to fund litigation in the
dissolution proceeding.” (Id. at pp. 1315–1316.)
Again, we do not disagree with the general propositions for which Marriage of
Tharp stands. But it simply does not compel a different result here. Each time one of
Grace’s numerous fee requests came on for hearing, Judge Burch thoroughly and
thoughtfully evaluated the request and explained the reasons for his ruling. And given
the factors that bear upon a fee award—including, as the Tharp court noted, trial tactics—
we cannot say that it was an abuse of discretion to award Grace a total of $164,000 in
addition to a portion of the $100,000 distribution,
Grace makes two final arguments, both pertaining to Manoogian’s conduct. First
while conceding on the one hand that “the way certain portions of this lengthy trial was
handled can be blamed on Manoogian, she disputes that the trial was greatly lengthened
by his lack of preparedness or other conduct, contending that it was instead due to “the
Court’s permitting David to file an entirely new voluminous tracing in the middle of
trial.” She makes much of the fact that 11 days of trial had been completed based on
David’s original tracing, and only then did David request that accountant Boone be
permitted to testify and present a new analysis. This, she contends, “Most Certainly
Justified a Substantial Fee and Costs Order to Deal With It.” But as Judge Burch
explained in his statement of decision, David’s “burden resulted in many hours of
detailed accounting work which had to be reviewed by David’s counsel. The burden on
44
Grace was to have sufficient funds to review the work of David’s counsel and accountant.
In the court’s view, such a review by Grace’s attorney and accountant would have
involved much less time and expense than that to be invested by David and his expert and
attorney in order to create the tracing.” Additionally, even assuming for argument’s sake
that the trial was prolonged by David retaining a new accountant, that in no way negates
Judge Burch’s finding that the trial was prolonged by Manoogian’s contrarian insistence
on presenting Grace’s case first, and being unprepared when he did so.
Lastly, Grace takes exception with the allegation that Manoogian took the case
assuming that David would be required to pay whatever fees he generated. As she
explains it, “There was $1.3+ million in a joint bank account and a transmutation
agreement that Grace believes the reasonable interpretation of which would have found it
to be valid. Most of her fee requests were not that David pay her fees—they were
requests for access to jointly-titled monies.” The flaw in this argument, however, is that
the very character of the “jointly-titled monies” was in dispute. And as Judge Burch
ultimately found, David established that those funds were his separate property. Grace
never cited any authority authorizing the court to order disbursement of the funds, or
even joint control over the account, simply because Grace claimed it was community
property.
On a final note, Grace contends that Judge Burch should have ordered David to
access his separate property assets to pay Grace adequate support and attorney’s fees, and
that he should have considered David’s ability to borrow in making his fee awards.
Because we conclude there was no abuse of discretion in the attorney’s fees awarded to
Grace, we need not consider Grace’s arguments concerning the sources for additional
fees.
C. Judge Burch Did Not Abuse His Discretion In Sanctioning Grace for
Filing a Writ Petition
In her third and final argument, one that consumes all of two pages in her opening
brief, Grace challenges the $25,000 in sanctions she was ordered to pay David for
attorney’s fees he incurred in opposing her writ petition. According to Grace, there can
45
be “no doubt” that Judge Burch “was expressing personal outrage at the allegations made
against him in the writ petition” and that the sanctions were his way of punishing her for
making allegations he found “unflattering” and “overly critical.” She submits that, in
fact, the issues she presented in her petition were not frivolous, and the sanctions were
thus improper. We review Judge Burch’s sanctions award for abuse of discretion. (In re
Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1524.) “ ‘ “[W]e will overturn
such an order only if, considering all of the evidence viewed most favorably in its support
and indulging all reasonable inferences in its favor, no judge could reasonably make the
order.” ’ ” (Parker v. Harbert (2012) 212 Cal.App.4th 1172, 1177.) We conclude there
was no abuse of discretion.
Section 271 provides for an award of attorney’s fees and costs in the form of
sanctions when the conduct of a party or attorney “frustrates the policy of the law to
promote settlement of litigation and, where possible, to reduce the cost of litigation by
encouraging cooperation between the parties and attorneys.” We recently had occasion
to consider section 271 sanctions in In re Marriage of Davenport, supra, 194 Cal.App.4th
1507, 1524, where we observed: “It has been said that section 271 and its predecessor
impose a ‘minimum level of professionalism and cooperation,’ to effect the policy
favoring settlement of family law litigation—and a reduction of the attendant costs.
(In re Marriage of Daniels (1993) 19 Cal.App.4th 1102, 1107; accord, In re Marriage of
Freeman, supra, 132 Cal.App.4th at p. 6 [‘The statute is aimed at conduct that furthers or
frustrates settlement of family law litigation and at reduction of litigation cost.’]; see also
In re Marriage of Quinlan (1989) 209 Cal.App.3d 1417, 1422.) Section 271
‘ “authorizes sanctions to advance the policy of promoting settlement of litigation and
encouraging cooperation of the litigants” and “does not require any actual injury.”
[Citation.] Litigants who flout that policy by engaging in conduct that increases litigation
costs are subject to imposition of attorney fees and costs as a section 271 sanction.’
(In re Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225.) Some courts have said
the section authorizes attorney fees and costs as a penalty for obstreperous conduct. (See
46
Robert J. v. Catherine D. (2009) 171 Cal.App.4th 1500, 1520; In re Marriage of
Freeman, supra, 132 Cal.App.4th at p. 6.)”
In reviewing Judge Burch’s statement of decision on the sanctions issue, it is
evident that he sanctioned Grace not for the disparaging allegations she directed at him,
but for three other reasons. First, Grace made misrepresentations and false accusations
regarding the transmutation issue, claiming that Judge Burch had prejudged the issue
before hearing all of the evidence when, in fact, Manoogian, with Bank in agreement,
requested he decide the issue at the outset of trial. Second, Grace raised challenges to
previously issued orders concerning preliminary support, but these two orders were
separately appealable, and the time for appeal had run. Third, in her petition to the
Supreme Court, Grace improperly raised an issue that she had not presented in her
petition to this court, namely her allegation that Judge Burch had a “policy” of mandating
that attorneys not be permitted to substitute out of cases during trial, an allegation,
according to Judge Burch, without any factual support. In light of these stated reasons,
which find support in the record, we cannot conclude that the sanctions order constituted
an abuse of discretion.
Grace also argues that section 271 bars the imposition of sanctions if they would
impose “an unreasonable financial burden on the party against whom the sanction is
imposed.” She contends that was the case here, since the sanctions amounted to over
nine months of her total income, and that after selling her house and paying her attorney
fees, “she was essentially left with zero property.” Judge Burch did, however, take
Grace’s financial situation into consideration when setting the sanctions amount at
$25,000. He noted that without considering Grace’s ability to pay, he would likely have
awarded David all of his attorney’s fees for opposing Grace’s two petitions ($61,206).
Instead, balancing Grace’s ability to pay against what he considered “wholly unnecessary
appellate expenses relating to all but one of the appellate issues,”12 he reduced the
12
Judge Burch acknowledged his refusal to let Manoogian out of the case was an
arguably legitimate issue for writ review.
47
sanctions to $25,000, the amount David incurred for his Supreme Court briefing alone.
Given Judge Burch’s careful balancing, we cannot find an abuse of discretion.
D. Substantial Evidence Supported Judge Burch’s Finding That Grace Did
Not Voluntarily Execute the Premarital Agreement
David’s cross-appeal challenges only Judge Burch’s finding that the premarital
agreement was unenforceable. Before we reach the merits of David’s appeal, we first
address Grace’s motion to strike all but sections II and III of his reply brief on
cross-appeal.
In her motion, Grace contends that David’s cross-appellant’s opening brief argued
only that she failed to establish she was “especially vulnerable or incapacitated” and,
consequently, Judge Burch erred in finding the parties were in a confidential relationship.
But, according to Grace, his reply brief contains entirely new arguments. Despite
David’s protestations that his reply brief did not raise new issues, we find Grace’s motion
largely well taken.
In David’s 86-page combined respondent’s brief and cross-appellant’s opening
brief, he dedicated a mere three pages of analysis to his cross-appeal. In that section, he
noted Judge Burch refused to enforce the premarital agreement on the ground Grace had
established she had not executed it voluntarily, a conclusion that rested on him finding “a
form of constructive fraud occurred,” which in turn rested on his finding that David and
Grace were in a “confidential relationship” at the time they signed the premarital
agreement. Arguing that vulnerability was a predicate of a confidential relationship,
David contends that Judge Burch committed reversible error by declining to make a
findings concerning “(1) whether Grace had possessed the mental capacity to enter into a
premarital agreement; and (2) whether she had possessed the ability to understand such
an agreement . . . .” David then submitted that the record contained no substantial
evidence to support a finding of vulnerability. In claimed support, he cited (without
analysis) six legal authorities, only one of which even involved the enforceability of a
marital agreement, and none of which was In re Marriage of Bonds (2000) 24 Cal.4th 1,
48
which governed the enforceability of premarital agreements. That is the extent of
David’s opening brief.
Fast forward to David’s 28-page reply brief on cross-appeal.13 There, he briefly
disputes Grace’s assertion that he did not raise the issue of voluntariness in his opening
brief. But then he goes on to add a series of new arguments, including the following:
(1) a four-page section claiming Judge Burch improperly shifted to him the burden
to show voluntariness;
(2) a six-page argument that there was no substantial evidence he received an
unfair advantage in the agreement;
(3) discussion of the purpose of the Uniform Premarital Agreement Act (§ 1610, et
seq.), which was only cited in passing in his opening brief;
(4) recitals from the premarital agreement itself, the contents of which he never
discussed in his opening brief on cross-appeal;
(5) reliance on the presumption in Evidence Code section 622 that “facts recited in
a written instrument are conclusively presumed to be true”;
(6) the effect of the fact that Grace was not represented by counsel;
(7) the effect of Grace’s acknowledgment that she signed the agreement without
reading it;
(8) extensive discussion of facts relating to the circumstances surrounding Grace’s
signing of the agreement, virtually none of which are mentioned in David’s argument on
his cross-appeal;
(9) facts concerning Grace’s background, including her educational and work
history, which are not cited anywhere in David’s 86-page combined respondent’s brief
and opening brief on cross-appeal; and
(10) no fewer than 11 citations to In re Marriage of Bonds, supra, 24 Cal.4th 1.
13
Notably, David’s reply brief was filed by different counsel than his respondent’s
brief and opening brief on cross-appeal.
49
It is well established that the purpose of a reply brief is to address arguments made
in the respondent’s brief; it may not be used to raise new arguments or present new
authorities. “Points raised for the first time in a reply brief ordinarily will not be
considered because such consideration would either deprive respondent of an opportunity
to counter the argument or require the effort and delay of additional brief by permission.
[Marriage of Khera & Sameer (2012) 206 Cal.App.4th 1467, 1477—“Obvious reasons of
fairness militate against consideration of an issue raised initially in the reply brief of an
appellant”; SCI Calif. Funeral Services, Inc. v. Five Bridges Found. (2012) 203
Cal.App.4th 549, 573, fn. 18—“ ‘appellant cannot salvage a forfeited argument by
belatedly addressing the argument in its reply brief’ ” . . .].” (Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group 2013) ¶ 9.78.2.) Nor does
the retention of new appellate counsel justify raising new arguments in a reply brief.
(Id., ¶ 9:78.3 [“The fact appellant retained a new attorney after filing the opening brief is
likely not to be deemed a sufficient ‘good cause’ justification for waiting until the reply
brief to raise new issues . . . .”].)
There can be no doubt that David’s reply brief on cross-appeal did more than
simply respond to the issues Grace raised in her respondent’s brief. And he never sought
permission to file a supplemental opening brief. We therefore grant Grace’s motion and
strike the portions of David’s reply brief that raise new issues.14 With that, we turn to the
issue before us—whether substantial evidence supported Judge Burch’s finding that
Grace had not executed the premarital agreement voluntarily. We conclude that it did.
14
In her motion to strike, Grace asserts that David only argued she failed to show
that she was especially vulnerable or incapacitated when she executed the agreement,
such that the confidential relationship finding could not stand. In other words, he did not
raise the issue of voluntariness. In fact, he contended that in the absence of a confidential
relationship, there could be no finding that Grace had not executed the agreement
voluntarily. We thus do not strike all but sections II and III of David’s reply brief, as
Grace urges, but rather strike all arguments that go beyond the scope of his opening brief
and are not responsive to the arguments Grace presented in her respondent’s brief, which
arguments are interspersed throughout his reply brief.
50
At the time David and Grace executed the premarital agreement, section 1615
provided that such an agreement was unenforceable if the party against whom
enforcement was sought proved either that he or she did not execute the agreement
voluntarily or that the agreement was unconscionable and certain other circumstances
applied. As to voluntariness, the California Supreme Court has said that the trial court
should evaluate the evidence for coercion or lack of knowledge, which “may arise from
the proximity of execution of the agreement to the wedding, or from surprise in the
presentation of the agreement; the presence or absence of independent counsel or of an
opportunity to consult independent counsel; inequality of bargaining power—in some
cases indicated by the relative age and sophistication of the parties; whether there was
full disclosure of assets; and the parties’ understanding of the rights being waived under
the agreement or at least their awareness of the intent of the agreement.” (In re Marriage
of Bonds, supra, 24 Cal.4th at p. 18.)15 In light of these factors, substantial evidence
supported Judge Burch’s finding that Grace did not voluntarily execute the premarital
agreement.
Grace testified that on the night before she and David were to fly out of town for
their wedding, David and James presented the premarital agreement to her. According to
Grace, she did not know what it was, but they assured her it was “no big deal” and it had
to do with voting shares of Tharco. As Judge Burch put it, “Grace not only did not know
the terms of the agreement but was, in effect, misled as to the importance of specific
terms in the agreement that affected her rights.” Further, Grace did not recall either
David or James suggesting she have an attorney review it. She also testified that she
15
In response to In re Marriage of Bonds, supra, 24 Cal.4th 1, the Legislature
added subdivision (c) to section 1615. (Stats. 2001, ch. 286 § 2 (SB 78); In re Marriage
of Cadwell-Faso & Faso (2011) 191 Cal.App.4th 945.) It details very specific
requirements that a party seeking to enforce a premarital agreement must establish in
order for a court to find that the agreement was voluntarily executed. That provision is
inapplicable here, however, as the enforceability of a premarital agreement is governed
by the law as it existed on the date of execution. (See In re Marriage of Melissa (2012)
212 Cal.App.4th 598, 611; Hogoboom & King, Cal. Practice Guide: Family Law, supra,
¶ 9:141.).)
51
trusted David and James, and was closer to James than she was to her own father. And as
Judge Burch noted, “Grace testified, and neither David nor James disputed, that prior to
the marriage she had in essence become part of David’s family, living for a time with
David’s parents and vacationing with them. James Aitchison, David’s father, testified
that he cared for and treated Grace as if she were a daughter.” In sum, there was ample
evidence supporting Judge Burch’s finding that Grace did not execute the agreement
voluntarily: the timing of and the manner in which the agreement was presented to
Grace, the fact that it was presented to her by two figures who had considerable influence
over her, their misrepresentation (or lack of disclosure) concerning the effect of the
agreement on her community property rights, Grace’s young age, and her testimony that
neither David nor James suggested she consult an attorney.16
In his final argument, David contends that Judge Burch committed reversible error
by failing to respond to his questions concerning Grace’s mental capacity, which
questions were part of the 60 questions to which he sought answers in the statement of
decision. There was no such error. As Judge Burch explained in his statement of
decision, he was obligated to decide the dispositive issues by applying the pertinent legal
principles to the facts of the case. He was not, as David suggested below and suggests
again on appeal, required to make express findings on every disputed evidentiary point.
(See Muzquiz v. City of Emeryville (2000) 79 Cal.App.4th 1106, 1125–1126; Vukovich v.
Radulovich (1991) 235 Cal.App.3d 281, 295.) Duff v. Duff (1967) 256 Cal.App.2d 781,
785, on which David relies, is not to the contrary, as it merely affirms that the court must
make findings on all material issues, which Judge Burch did here.
16
We recognize that Judge Burch found Grace did not execute the agreement
voluntarily because she and David were in a confidential relationship before they were
married and he committed “a form of constructive fraud” in connection with the
execution of the agreement. We need not address Judge Burch’s confidential relationship
finding, because we conclude that substantial evidence otherwise supported his finding of
involuntariness. And we are tasked with reviewing the lower court’s result, not its
reasoning. (Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550, 568;
9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, §346, p. 397.)
52
DISPOSITION
The judgment of dissolution is affirmed, each side to bear its own costs on appeal.
_________________________
Richman, J.
We concur:
_________________________
Haerle, Acting P.J.
_________________________
Brick, J.*
*
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
53