Marriage of Whiteaker CA2/6

Filed 3/23/21 Marriage of Whiteaker CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
In re Marriage of TRAVIS 2d Civ. No. B303969
WHITEAKER and MICHELLE (Super. Ct. No. SD042529)
WHITEAKER. (Ventura County)
TRAVIS WHITEAKER,
Appellant,
v.
MICHELLE WHITEAKER,
Respondent.
Michelle and Travis Whiteaker married in 2005 and
divorced in 2012. Travis left his job in 2019 and requested an
order ending his monthly child support payments to Michelle.1 A
year of contentious litigation resulted in the trial court’s deciding
We refer to the parties by their first names to avoid
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confusion. No disrespect is intended.
that neither spouse would pay support to the other. In so
ordering, however, the trial court directed Travis to pay Michelle
$50,000 in attorney’s fees as sanctions for his misconduct during
the proceedings. (Family Code section 271.)2
Travis appeals the sanctions order contending it constitutes
an unreasonable financial burden. We conclude substantial
evidence supports the trial court’s orders including the finding
that he has sufficient financial resources to pay. We affirm.
FACTUAL BACKGROUND
AND PROCEDURAL HISTORY
Michelle and Travis divorced in 2012 after seven years of
marriage. During that time Travis served as a deputy with the
Los Angeles Sheriff’s Department (LASD) and had paid court-
ordered child support to Michelle for their three minor daughters.
LASD reassigned Travis to a civilian position in 2016 after
he injured his hand on duty. He took a four-month personal
leave in 2018 to attend court dates and other appointments
related to his ongoing custody dispute with Michelle. When he
attempted to return to work, LASD told him his former position
was no longer available.
Travis filed a request for order (RFO) seeking to reduce his
child support payments to zero because he was no longer
employed by LASD. He testified he had recently started a career
in real estate using capital invested by his current wife,
Elizabeth. He disclosed property interests in several states but
purported to make little or no income after deducting business
expenses. The matter was heard over two days and included
Michelle’s request for attorney’s fees in excess of $100,000.
The trial court set child support at zero for both parents;
and, in a supplemental ruling, granted Michelle’s request for
2 Unlabeled statutory references are to the Family Code.
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attorney’s fees under section 271. The court awarded her $50,000
as sanctions for Travis’s misconduct during the custody dispute.
It also cited Travis’s frequent business travel and his payment of
$30,000 for a real estate mentor as showing he could “find funds
to contribute to [Michelle’s] attorney fees.”
DISCUSSION
“Section 271 authorizes an award of attorney fees and costs
as a sanction for uncooperative conduct that frustrates
settlement and increases litigation costs.” (In re Marriage of
Fong (2011) 193 Cal.App.4th 278, 290.) We review sanctions
orders under this statute for abuse of discretion. (In re Marriage
of Feldman (2007) 153 Cal.App.4th 1470, 1478.) “‘Accordingly,
we 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. [Citations.]’” (Fong at p. 291, quoting In re
Marriage of Corona (2009) 172 Cal.App.4th 1205, 1225-1226.)
We review any factual findings for substantial evidence. (Ibid.)
Travis contends the court abused its discretion by ignoring
section 271’s mandate to “take into consideration all evidence
concerning the parties’ incomes, assets, and liabilities” before
awarding sanctions. The $50,000 fee award, he reasons, rings
dissonant to the ruling that lowered his support payment to zero.
Travis describes the award as an unreasonable financial burden
considering his inability to pay even his own personal expenses.
He cites the court’s statement that he could “find funds” to pay
Michelle’s fees as conjecture.
We conclude the trial court did not abuse its discretion.
The court’s aside that Travis could “find funds” cites to its earlier
support ruling. There, it characterized Travis’s testimony about
his business expenses as lacking clarity, and noted he spent
significant time and money on classes, webinars, a personal
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mentor, as well as on out-of-state travel to view potential
properties. The court reasonably interpreted the incongruence
and opacity of Travis’s testimony as indicating he could, in fact,
bear the burden of a significant sanctions award despite his
ostensibly meager income.
Travis does not challenge the basis of the award. The
court’s ruling recounts Travis misrepresenting his custody rights,
making unfounded allegations of child abuse against Michelle,
and criticizing CPS officers who did not agree with those
allegations. The court-assigned child custody evaluator described
Travis as a “combative co-parent” whose efforts to alienate his
daughters from Michelle were “about as bad as I have seen.”
Substantial evidence supported the trial court’s decision that
Travis frustrated settlement and increased the cost of litigation.
The size of the sanctions award, less than half the total requested
by Michelle, is commensurate with the pervasive and egregious
conduct described by the court. (See In re Marriage of Fong,
supra, 193 Cal. App.4th at pp. 291-293 [husband’s obstruction
during discovery justified $100,000 attorney fees award under
section 271].)
CONCLUSION
The judgment is affirmed. Respondent shall recover her
costs on appeal.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P. J. TANGEMAN, J.
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JoAnn Johnson, Judge
Superior Court County of Ventura
______________________________
Alpert Law Group, Jeffrey Alpert, Dean Asher and Adam
Mikaelian, for Appellant.
Negley Law, John J. Negley, Jr. and Michael J. Rutkowski,
Jr., for Respondent.
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