Peterson v. Thompson

Filed 3/29/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
A. K. PETERSON,
Plaintiff and Appellant,
A157874
v.
K. THOMPSON, (Placer County
Super. Ct. No. SDR0034174)
Defendant and Respondent.
A.K. Peterson (mother) appeals a May 28, 2019 order requiring her to
share in the expense of a court-ordered child custody evaluator who was
appointed under Evidence Code section 730 in connection with a long-
running custody dispute with the father of her minor daughter. The payment
order was entered over mother’s continuing objection that she cannot afford
to pay any of the evaluator’s fee. Her principal contention is that, given her
financial condition, the court erred when it re-allocated a portion of that
expense to her after the fact. K. Thompson (father) did not contend below
that the court was precluded from considering mother’s claimed inability to
pay in allocating the evaluator’s fee, and he has not filed a respondent’s brief
in this appeal.
We must decide whether the manner in which the court proceeded in
apportioning the expense was lawful. We conclude that in allocating the
costs of a court-appointed child custody evaluator, the court must consider
the parties’ ability to pay, whether the child custody evaluator is appointed
1
by the court under Evidence Code section 730 or under the more specific
provisions of the Family Code (Family Code sections 3111 to 3112).
The record does not indicate that the trial court considered all of
mother’s expenses before ordering her to contribute to the costs of the court-
ordered child custody evaluation. We remand the matter for a new hearing
addressing mother’s ability to pay some or any of the costs of the child
custody evaluator.
BACKGROUND
The appellate record in this case begins in October 2016, when mother
filed a request to reinstate joint legal and physical custody of her minor
daughter, after a lengthy period in which father exercised sole legal and
physical custody based on a child welfare referral that, according to mother,
had recently been “overturned.”1
About three years later, on May 28, 2019, the trial court re-allocated
between mother and father about $13,000 in fees that father had paid to a
court-ordered child custody evaluator, Dr. Sidney Nelson. Specifically, over
mother’s objection that she could not afford to pay the evaluator’s fee, the
court directed her to bear 25 percent of the fee and father 75 percent, and
thus directed her to reimburse father $3,468.75 at the rate of $290 per month
until paid. It is from this May 28, 2019 reallocation order that mother has
appealed.2
1 The details are unclear but irrelevant to this appeal.
2 The notice of appeal states that it is from an unspecified order or
judgment under Code of Civil Procedure section 904.1, subdivision (a)(3)–(13).
Mother states both in her notice designating the appellate record and in her
appellate brief that she has appealed an order entered on May 28, 2019. The
record contains the court’s minute order of that date, as well as a transcript
2
Mother, appealing in propria persona, has not explained the
background of the custody dispute, nor the origin and nature of Dr. Nelson’s
role. We have determined the following from the appellate record.
A. The Initial Custody Evaluation in 2013
In April 2013, a child welfare referral was made concerning mother’s
conduct toward her daughter. A few months later, in September 2013,
Dr. Nelson prepared a child custody evaluation recommending that mother
attend 40 sessions of individual therapy to address various subjects, father
continue to have legal and physical custody of their daughter and mother
have up to 6 hours of supervised weekly visitation. Dr. Nelson also
recommended that after mother completed her treatment goals, both parents
meet with a court-appointed mediator or counselor to recommend a further
parenting plan. Dr. Nelson charged $16,747 for his services. In April 2014,
the court adopted Dr. Nelson’s recommendations. For the next several years,
we gather from the record that mother attended therapy and had supervised
visitation with their daughter. During this time, she was paying child
support to father and also had been ordered to bear the cost of her supervised
visitation.
of the hearing held on that date. We liberally construe her appeal to be taken
from the May 28, 2019 order.
Elsewhere in her briefing, mother purports to challenge two earlier
orders: one entered on February 4, 2019, requiring her alone to pay for
reunification therapy with her daughter with no financial contribution from
father, and another order entered on February 7, 2019, that directed her to
reimburse $7,785.95 to father. Because the record does not contain a notice
of appeal from either order, we lack jurisdiction to review them and thus
disregard mother’s arguments about those rulings.
3
At some point in 2015, mother filed for bankruptcy and, through her
bankruptcy, was trying to repay father her share of the approximately
$17,000 Dr. Nelson had charged for his first evaluation, which father had
advanced.3 The court’s order allocating half of the cost of that initial
evaluation to mother is relevant background information but is not the
subject of this appeal.
B. The Updated Custody Evaluation, Ultimately Completed
in 2017 After Protracted Litigation Over Its Potential Cost
At a hearing held on May 6, 2015, which was about two and a half
years after Dr. Nelson completed his initial evaluation, the superior court
(the Hon. John Ross) ordered the parties to obtain an update from Dr. Nelson
on the recommendation of the parties’ mediator. The court wanted
Dr. Nelson to review the case files post-dating his initial evaluation in 2013,
conduct another round of interviews, and make an updated recommendation
to the court concerning custody and visitation. At that hearing, the parties
discussed the possible cost this would entail, mother’s counsel objected that
mother couldn’t afford to pay Dr. Nelson anything further, and the court
indicated the parties could return to court to discuss how to proceed if
Dr. Nelson’s quote for the updated evaluation exceeded $10,000. The court
noted mother had filed a declaration indicating she had received a quote from
3 It is unclear whether, by this juncture, she had been ordered to bear
any portion of those expenses. There is some indication in the record she had
been ordered to pay half of Dr. Nelson’s fee, and that this was, per her
counsel’s statement at the hearing, “one of the main reasons” that
precipitated her bankruptcy filing. Much later, on February 7, 2019, the
court directed mother to reimburse father $7,785.95 for half of Dr. Nelson’s
initial evaluation, payable monthly in $100 installments; mother did not
appeal that order. (See footnote 2, ante, page 2.)
4
Dr. Nelson of $10,000 to do an updated review, and the court expressed the
view that “$10,000 for an updated review sounds a little high to me.”
The matter was left unresolved after the following colloquy:
“[FATHER]: All right. Your Honor, if it gets to be more than $10,000,
I’ll cover my half, but if ends up being more than that, I will cover any excess
above 10,000.
“THE COURT: Do you really think it’s going to cost 10,000 for an
updated report?
“[FATHER]: I do not. That’s why I have no problem saying that.
“[MINOR’S COUNSEL]: How much was the [initial] 730?
[¶] . . .[¶]
“[FATHER]: That one was very expensive. That one was like 17,000.
He said that was one of the most expensive ones he’s ever done and the most
intense he’s ever done, but this is just an update.
“[THE COURT]: . . . [M]aybe the reality is that even after Dr. Nelson
gives such an order that we’re talking about, just saying all we want is an
updated report, we want him to review everything that has transpired since
his last report in September ’13, talk to both parents and make
recommendations, maybe indeed that is $10,000.
“[MOTHER’S COUNSEL]: And then there’s the issue, Your Honor, my
client can’t afford it.
“[FATHER]: Maybe it is and the money is the big issue for mother,
then to me our daughter’s well-being is more important than whatever money
she’s complaining about.”
Ultimately, the court directed mother’s counsel to contact Dr. Nelson to
apprise him of the scope of review the court had in mind, inquire about the
cost, and return to court if necessary to address the issue. Over mother’s
5
counsel’s continuing objection that even a share of a $10,000 fee would be too
expensive for mother, the court added that “if he says $10,000, then we may
have to come back to court and talk about how we’re going to proceed, but
there is not much I can do at that point if that’s what Dr. Nelson’s
recommending and charging, I don’t know what to do.”
From that point forward, the subject of Dr. Nelson’s fee remained a
subject of dispute and was raised at numerous hearings and in many filings
by mother who repeatedly objected that she was unable to pay his fees.
After the May 6, 2015 hearing, mother’s counsel contacted Dr. Nelson
who declined to quote a total cost and also stated he would require a $2,000
retainer from each parent to begin work. This was brought up at a hearing
on October 18, 2016, before a different judicial officer (the Hon. John Paulsen,
Commissioner). At that hearing father agreed to cover the cost of
Dr. Nelson’s $4,000 retainer so they could overcome the financial obstacle to
securing an updated evaluation (“I will cover the complete $4,000”) and asked
that mother split anything above that cost with him. Notwithstanding
father’s offer to pay the entire retainer, Commissioner Paulsen ordered father
only to “advance” the cost of Dr. Nelson’s retainer, reserved jurisdiction to
reallocate that payment, and ordered that any excess fee would be split
equally.
After that, mother tried to return to Dr. Nelson but was advised by his
office that he would require her to make an initial $1,000 payment on top of
the $4,000 retainer father had volunteered to pay, which she was informed
was “mandatory” and intended to secure some of his anticipated fee. She also
was informed that his costs would greatly exceed $4,000. Then, in a joint
conference call with both parents, Dr. Nelson insisted on a guarantee that his
fee would be paid in full before moving forward. Father offered to advance all
6
the costs of Dr. Nelson’s expenses subject to reallocation, and mother declined
on the ground she was financially unable to contribute.
This impasse precipitated a new round of competing requests to the
court, filed by each party on December 1, 2016. Mother filed a request for an
order vacating or amending the prior orders requiring Dr. Nelson’s updated
evaluation, on the ground that she could not afford to pay Dr. Nelson $1,000,
much less one-half of anything above his $4,000 retainer. Citing details of
her financial predicament, including the fact of her bankruptcy and that she
was still trying to reimburse father for her share of Dr. Nelson’s previous
evaluation, was shouldering basic living expenses for herself and her other
child, was paying father child support, and was paying the costs of her court-
ordered supervised visitation with her daughter, mother’s declaration stated
she was in dire straits: “As it stands, I often have to scrimp and save to
afford the supervised visits and there have been times where I simply do not
have the funds to pay for the supervised visits. I would and do anything I
can for [daughter]. But when I am put in a position where I have to choose
between being able to feed my son, pay my rent, or pay for supervised visits, I
am forced to sacrifice the supervised visits which only further hampers my
relationship with [daughter]. [¶] Now, the current orders are placing me in a
position where my case cannot move forward unless I can pay $1,000 to
Dr. Nelson by January 2, 2017 and that is impossible for me.”
Father filed a competing request, asking that mother be ordered to
participate in the updated evaluation (including attend a scheduled upcoming
appointment with Dr. Nelson), and that he be ordered to pay all of
Dr. Nelson’s fees subject to later reallocation. At a hearing held on
December 2, 2016, before Commissioner Paulsen, where mother’s counsel
again objected that mother could not afford to pay Dr. Nelson, both of father’s
7
requests were granted—including directing mother to participate in
Dr. Nelson’s evaluation, on pain of possible sanctions.
Thereafter, around May 2017, Dr. Nelson completed his updated
evaluation (only his ultimate recommendation concerning a visitation plan is
in the record). Including the initial $4,000 retainer, Dr. Nelson’s fee for the
second evaluation came to $13,875. His invoice reflects that he spent about
12.5 hours interviewing and observing the parents and daughter, 18.25 hours
reviewing the record, and another 15.5 hours preparing his updated report.
Dr. Nelson recommended that father continue to have sole legal and physical
custody of their daughter, with supervised visitation for mother.4
About a year and a half later, on November 14, 2018, father filed a
request for an order requiring mother to reimburse him for a portion of
Dr. Nelson’s fee for the second evaluation, which he had paid in full.5 He did
not seek reimbursement for any portion of the $4,000 retainer. His papers
stated that he had “paid the initial $4,000 cost, plus was ordered to pay all of
Dr. Nelson’s fees subject to reallocation,” and asked only that mother
reimburse him for one-half of the remaining balance ($9,875), for a total of
$4,937.50.
Mother opposed his motion, again on the ground that she was
financially unable to contribute to Dr. Nelson’s fee, this time also citing
4 The court later adopted Dr. Nelson’s recommendation, at a hearing
held on September 18, 2018. At that time, it also vacated a pending trial date
and directed mother to engage in four more months of therapy, following
which the court would decide whether to order reunification therapy between
mother and her daughter.
5 For reasons not entirely clear and not pertinent here, the request was
apparently delayed because father had filed earlier requests to be paid a
portion of Dr. Nelson’s fee that he later withdrew.
8
(among other things) the fact that the court had granted her an indigent fee
waiver in the case. Mother reported she had only been able to pay about
$588 towards Dr. Nelson’s initial fee to date. She also argued she had
recently discovered that, for about the past four years, she had been paying
father court-ordered child-support add-ons for daycare costs when in fact the
daycare provider was no longer in business and their daughter had not been
attending daycare, resulting in an overpayment to father totaling about
$6,016. She asked the court to offset the daycare costs and interest against
Dr. Nelson’s fee and deem her contribution to his fee paid in full.
The matter ultimately proceeded to a final hearing at which the court
entered the order challenged here on May 28, 2019. The court ordered
mother to reimburse father $3,468.75 of the nearly $14,000 he had paid to
Dr. Nelson beyond the retainer, payable at a rate of $290 per month for
12 months until paid in full. The court arrived at a ratio of allocating
25 percent of the expense to mother based on a child support calculation of
her “net spendable income” relative to father’s, apparently without
considering many of her basic living expenses and other obligations.
Mother then filed this timely appeal.6 No respondent’s brief has been
filed.
DISCUSSION
Mother contends the court’s order requiring her to reimburse father for
a portion of Dr. Nelson’s fee failed to consider her inability to pay and thus:
Because the order is collateral to the main custody issue, directs the
6
payment of money and is the court’s final determination of the question, it is
an appealable collateral order. (See, e.g., Hanna v. Mercedes-Benz USA, LLC
(2019) 36 Cal.App.5th 493, 506; Roberts v. Packard, Packard & Johnson
(2013) 217 Cal.App.4th 822, 830, fn. 4.)
9
(1) violated her constitutional rights to access to the courts, equal access to
justice and due process; and (2) is contrary to law. On the latter point, she
contends the court abused its discretion in allocating a portion of the expense
to her because of her demonstrated inability to pay, citing to a variety of
statutes in the family law context that require an assessment of a party’s
ability to pay. She asserts that as a matter of constitutional avoidance, we
should construe the relevant statutes as mandating consideration of her
inability to pay the fees and costs of a court-appointed child custody evaluator
as well.
We agree with mother that we should try to resolve this matter on
statutory grounds rather than constitutional ones if possible, and so that is
where we will begin. (See People v. Waldon (2023) 14 Cal.5th 288, 307
[“ ‘we avoid resolving constitutional questions if the issue may be resolved on
narrower grounds’ ”].)
I.
Evidence Code Sections 730 and 731
Below, the trial court appointed Dr. Nelson as a child custody evaluator
under Evidence Code section 730, which confers general authority on trial
courts to retain court-appointed experts. The court appointed Dr. Nelson
pursuant to this statute at Dr. Nelson’s request, after mother raised concerns
about the cost of proceeding with the update and said it was doing so for
Dr. Nelson’s “protection” so that “he then becomes an expert of the Court,
even though the parties are paying for it.”7
7 In a letter to the parties dated August 3, 2015, addressing the
potential cost and scope of an updated evaluation, Dr. Nelson had written
that “I would require that the court order state that this is an updated 730.
10
Evidence Code section 730 states in relevant part: “When it appears to
the court, at any time before or during the trial of an action, that expert
evidence is or may be required by the court or by any party to the action, the
court on its own motion or on motion of any party may appoint one or more
experts to investigate, to render a report as may be ordered by the court, and
to testify as an expert at the trial of the action relative to the fact or matter
as to which the expert evidence is or may be required.” This statute is
generally understood to empower the court to appoint a child custody
evaluator to report on the best interest of children to assist the court in
making a change in custody determination. (In re Marriage of
Winternitz (2015) 235 Cal.App.4th 644, 649; see also Cal. Rules of Court,
rule 5.220.)
In civil cases, the compensation of a neutral expert appointed under
Evidence Code section 730 is left primarily to private parties. The statute
states that “[t]he court may fix the compensation for these services, if any,
rendered by any person appointed under this section, in addition to any
service as a witness, at the amount as seems reasonable to the court.” (Evid.
Code, § 730, italics added.) In turn, Evidence Code section 731 provides in
relevant part that, “in all civil actions” (with exceptions not relevant here)
“the compensation fixed under Section 730 shall, in the first instance, be
apportioned and charged to the several parties in a proportion as the court
may determine and may thereafter be taxed and allowed in like manner as
other costs.” (Id., § 731, subd. (c), italics added.) Similarly, rule 5.220 of the
California Rules of Court, which specifically governs court-ordered child
This designation is only for my legal protection and is not meant to convey
the potential coast [sic] of an update.”
11
custody evaluations, requires the trial court to “[d]etermine and allocate
between the parties any fees or costs of the evaluation” ordered by the court.
(Cal. Rules of Court, rule 5.220(d)(1)(D).) Taken together, these statutes and
rule 5.220 require the trial court, when it appoints a child custody evaluator,
to do three things: “(1) decide whether an evaluator should receive any
compensation for his or her services, (2) determine a reasonable amount of
compensation and (3) state which party or parties will bear what portion of
the fees and costs.” (In re Marriage of Laurenti (2007) 154 Cal.App.4th 395,
403; accord, In re Marriage of Benner (2019) 36 Cal.App.5th 177, 191-193;
In re Marriage of Adams & Jack A. (2012) 209 Cal.App.4th 1543, 1568.)8 The
legal standard governing the apportionment of such costs between the parties
is an issue of first impression.
Mother cites no authority specifically interpreting Evidence Code
section 731 to require consideration of the parties’ ability to pay in any
context. We agree with mother, however, that in general the Legislature has
specified that a party’s ability to pay does matter when allocating the
financial burdens associated with family law litigation. Family Code
section 270 broadly states: “If a court orders a party to pay attorney’s fees or
costs under this code, the court shall first determine that the party has or is
reasonably likely to have the ability to pay.” (Italics added.) Another
example is the statute governing awards of sanctions based on a party’s own
conduct, which requires the court to consider a party’s ability to pay and
prohibits sanctions that will impose “an unreasonable financial burden.”
8 No issue has been raised concerning the court’s failure to evaluate
whether Dr. Nelson’s billings were reasonable. Nor has mother claimed any
error by the trial court in addressing or deciding that question. We therefore
do not address these matters.
12
(Fam. Code, § 271; In re Marriage of Fong (2011) 193 Cal.App.4th 278, 291-
292.)
In addition, and as more directly pertinent, the court possesses broad
discretion in fashioning the amount of needs-based awards of attorney fees
and litigation costs in family law matters (see Fam. Code, §§ 2030, 2032
[proceedings for marital dissolution, separation or nullity]; id., §§ 3120, 3121
[child custody proceedings between spouses]; id., §§ 7605, 7640 [child custody
proceedings under Uniform Parentage Act]), which is the closest analogy to
father’s motion here seeking re-allocation of the costs of the custody
evaluation.9 A party’s ability to pay is a factor in that analogous cost-shifting
context. (See Fam. Code, § 2030, subd. (a)(2) [needs-based order for attorney
fees and costs mandatory “[i]f the findings demonstrate disparity in access
and ability to pay”]; id., § 3121, subd. (b) [mandatory award of attorney fees
and costs if there is “disparity in access and ability to pay,” including
amounts sufficient to allow pro per litigant to hire attorney “if [the] other
party has the financial ability, to pay”]; id., § 7605, subd. (b) [making order
9Father’s request for reallocation of the $14,000 portion of the expense
was, in effect, a request for an award of costs from mother, in an amount
equal to a portion of the costs he had paid for the custody evaluation.
Likewise (and, conversely), mother’s objection to repaying him was, in effect,
a request that she be awarded from him a portion of what might otherwise be
characterized as her litigation expenses. Viewed either way, father’s
reimbursement motion was analogous to a request by one (or both) of them
for an award of litigation costs from the other in a contested child custody
case. (See In re Marriage of Munguia (1983) 146 Cal.App.3d 853, 864-866
[cost of experts retained by wife in divorce action, including child custody
expert, held compensable through interim award of costs from husband];
In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1316 [under Fam. Code
§§ 2030 and 2032, “[a]ttorney fees, financial experts, other experts, . . . and
other costs are all awardable”].)
13
awarding attorney fees and costs mandatory in child custody proceedings “[i]f
the findings demonstrate disparity in access and ability to pay”]; id., § 7640
[incorporating standards set forth in Fam. Code §§ 2032 and 7605].) The
public policy behind these statutes is to “ ‘ “level[] the playing field” ’ ”
between the parties and permit the lower-earning litigant to pay for experts
and other costs (as well as for a lawyer, if requested) without having to fund
litigation with resources intended for basic living expenses. (In re Marriage
of Tharp, supra, 288 Cal.App.4th at pp. 1315-1316.)
Thus, considering the statutory scheme as a whole (Jarman v. HCR
ManorCare, Inc. (2020) 10 Cal.5th 375, 381), it would appear the Legislature
intended that when a court allocates the expenses of a court-appointed expert
in a child custody dispute it must consider a party’s ability to pay. (Cf. In re
Marriage of Laurenti, supra, 154 Cal.App.4th at p. 404, fn. 11 [dicta
analogizing such a determination to the imposition of sanctions under Fam.
Code § 271, pursuant to which “the court must . . . take into consideration the
party’s ability to pay”].)
II.
Family Code Sections 3111 and 3112
The conclusion that the trial court must apportion the costs of a child
custody evaluation based on the parties’ ability to pay is buttressed by more
specific Family Code provisions our own research has revealed, which were
briefly alluded to at one of the many hearings below but never focused on.
Although not cited by mother, Family Code section 3111 specifically
authorizes the appointment of child custody evaluators in contested custody
cases. It states in pertinent part: “In a contested proceeding involving child
custody or visitation rights, the court may appoint a child custody evaluator
14
to conduct a child custody evaluation in cases where the court determines it
is in the best interest of the child. The child custody evaluation shall be
conducted in accordance with the standards adopted by the Judicial Council
pursuant to Section 3117, and all other standards adopted by the Judicial
Council regarding child custody evaluations.” (Fam. Code, § 3111, subd. (a).)
A “child custody evaluator” is a court-appointed investigator. (Cal. Rules of
Court, rule 5.220, subd. (c); see id. subd. (b).) A “court-appointed
investigator” is defined as “a probation officer, domestic relations
investigator, or court-appointed evaluator directed by the court to conduct an
investigation pursuant to this chapter.” (Fam. Code, § 3110.)
All the minimum required professional qualifications for child custody
evaluators are the same under Evidence Code section 730 and Family Code
section 3111. (See Fam. Code, § 3110.5, subds. (b)(1), (c); Cal. Rules of Court,
rule 5.220(b).) But there are some differences. For example, the Legislature
has enacted specific confidentiality protections and procedural mechanics
governing the use and admissibility of the report of an evaluator appointed
under Family Code section 3111.
In addition, and as directly relevant here, the manner of compensating
child custody investigators appointed under the Family Code differs
significantly from that of experts appointed in civil cases under Evidence
Code section 730. Family Code section 3112 states: “(a) Where a court-
appointed investigator is directed by the court to conduct a custody
investigation or evaluation pursuant to this chapter or to undertake
visitation work, including necessary evaluation, supervision, and reporting,
the court shall inquire into the financial condition of the parent, guardian, or
other person charged with the support of the minor. If the court finds the
parent, guardian, or other person able to pay all or part of the expense of the
15
investigation, report, and recommendation, the court may make an order
requiring the parent, guardian, or other person to repay the court the amount
the court determines proper. [¶] (b) The repayment shall be made to the court.
The court shall keep suitable accounts of the expenses and repayments and
shall deposit the collections as directed by the Judicial Council.” (Italics
added.) Family Code section 3112 thus (1) imposes an affirmative duty on
courts to assess a party’s ability to pay the expenses associated with a child
custody investigation or evaluation; (2) makes a party’s contribution towards
those expenses discretionary, not mandatory, even if the party has the ability
to pay; and (3) presumes the court may initially bear the costs of an
evaluation and so specifies that repayment is to the court, not a private
party, thus placing the initial obligation to determine the amount of
compensation and to compensate such evaluators with the court itself, not
the parties.
These parallel statutory schemes give rise to several issues, with
significant potential implications for the procedures governing the
appointment and use of child custody evaluators in contested family law
cases. Chief among them is whether Evidence Code section 730 even applies
to such experts given the Legislature’s more specific statutory authorization
to appoint them under the Family Code. In addition, at various times below,
the trial court and counsel for the parties10 expressed confusing views about
10 At all times below in the records mother provided us and at the
hearings referenced in this opinion, mother was represented by counsel. Her
counsel stated on the record, however, that mother was not paying any
attorney fees.
16
the two statutory mechanisms suggesting they had different requirements.11
We express no opinion on whether there are any significant differences
between the two statutes’ requirements, however, because mother’s only
argument is that she cannot afford to pay anything towards Dr. Nelson’s
second fee.
We construe Evidence Code sections 730 and 731, subdivision (c), at
least in the context of custody proceedings, in a manner consistent with
Family Code section 3112 and rule 5.220(d)(1)(D) and (e)(1)(E) of the
California Rules of Court, to mandate an ability to pay determination when
allocating between the parties the costs of such an expert.
This follows principally from settled rules of statutory interpretation,
pursuant to which specific statutes take precedence over more general ones
and later-enacted statutes control over earlier ones. (State Dept. of Public
Health v. Superior Court (2015) 60 Cal.4th 940, 960-961; see also generally
People v. Superior Court (Ortiz) (2022) 81 Cal.App.5th 851, 858-859.) As
compared to Evidence Code sections 730 and 731, subdivision (c), Family
Code section 3112 is the more specific statute governing the compensation of
court-appointed child custody evaluators. Indeed, “family law issues
are resolved through specialized procedures that are removed from ordinary
11 For example, counsel expressed views suggesting the scope and cost
of a child custody evaluation might differ, depending on whether it is
undertaken pursuant to Evidence Code section 730 or the more specific
provisions of the Family Code, with the incorrect understanding that a
custody evaluation under Evidence Code section 730 (rather than Family
Code section 3111) must be extensive and necessarily involves psychological
testing. One court commissioner who presided over the case expressed the
view that Evidence Code section 730 “has nothing to do with child custody,”
and that an appointment under Evidence Code section 730 is simply intended
to “protect” a child custody evaluator’s ability to get paid.
17
civil actions,” and thus a civil statute is applicable in family court
proceedings only “if it does not conflict with statutes and rules adopted under
the Family Law Act.” (In re Marriage of Guasch (2011) 201 Cal.App.4th 942,
947-948, italics added [holding general injunction bond requirement of Code
Civ. Proc. § 529 inapplicable to injunction issued in marital dissolution
proceeding restraining third party from executing on community property
pending its division].)
Family Code section 3112 is also the more recent statute. It was
adopted in 1993 (Stats. 1993, ch. 219, § 116.81; see also Legis. Counsel’s Dig.,
Assem. Bill No. 1500, Stats. 1993, ch. 219 (1993-1994 Reg. Sess.) Summary
Dig., p. 3), based on legislation originally enacted in 1969 (see Stats. 1969,
ch. 1608, § 8, p. 3331 [adopting former Civ. Code, § 4602]; Stats. 1992,
ch. 427, § 14, p. 1571 [most recent version]; Stats. 1992, ch. 162, § 3 [repeal];
see also Cal. Law Revision Com. com., West’s Ann. Fam. Code foll. § 3112).
By contrast, Evidence Code section 731 was adopted in 1965 (Stats. 1965,
ch. 299, § 2), based on legislation originally enacted in 1925.12
Regarding compensation of experts, Evidence Code sections 730 and
731, subdivision (c) may be harmonized with Family Code section 3112 by
construing Evidence Code sections 730 and 731, subdivision (c) to mandate
an inquiry into a party’s ability to pay the costs of a court-appointed expert
12 See Tentative Recommendation and A Study Relating To The
Uniform Rules of Evidence, Article VII. Expert And Other Opinion
Testimony, 6 Cal. Law Revision Com. Rep. (March 1964) pp. 946-947 (former
Code Civ. Proc. § 1871); Recommendation Proposing An Evidence Code, Cal.
Law Revision Com. Rep. (Jan. 1965) p. 123; State of California Evidence Code
with Official Comments, Cal. Law Revision Com. Rep. (August 1965)
pp. 1112-1113; 1965 Stats., ch. 299, § 59, p. 1360 (Code Civ. Proc. § 1871
repeal).
18
when that expert is a child custody evaluator retained “[i]n a contested
proceeding involving child custody or visitation rights.” (Fam. Code, § 3111;
see Jarman v. HCR ManorCare, Inc., supra, 10 Cal.5th at p. 381 [principles
of statutory harmonization]; Parsons v. Estenson Logistics, LLC (2022)
86 Cal.App.5th 1260, 1268 [same].)
Additionally, Family Code section 3111, which authorizes child custody
evaluations more generally, in turn relies on the rules adopted by the
Judicial Council pursuant to Family Code section 3117. Those rules include
rule 5.220 of the California Rules of Court, which requires the trial court to
determine and allocate the fees and costs of the evaluation between the
parties and require that the evaluation itself “clearly describe[s]” the “[c]ost
and payment responsibility for the evaluation.” (Cal. Rules of Court,
rule 5.220(d)(1)(D), (e)(1)(E).)
In light of our interpretation of the relevant statutes and our remand of
the case for the trial court to fully assess mother’s ability to pay, we need not
reach the constitutional issues mother raises, including that she is indigent,
and the re-allocation order impaired her right to equal access to the courts.
III.
The Trial Court’s Ruling
This brings us to whether the trial court abused its discretion in
requiring mother to reimburse father after the fact for a portion of the fees
Dr. Nelson charged to father for his updated custody evaluation. While the
record before us is not entirely clear, it appears that the court failed to
consider all the factors relevant to an assessment of mother’s ability to
reimburse father for the $3,468.75 the court allocated to her.
At the hearing, the trial court stated that it allocated 25 percent of
Dr. Nelson’s fee to mother based on the ratio of her net spendable income to
19
father’s, subtracting only her child support payments to father. In other
words, it attempted to allocate the cost according to the parties’ relative post-
tax income. While the parties’ relative post-tax incomes may be considered in
evaluating a parent’s ability to pay, the ability to pay cannot be fairly
assessed without consideration of other factors, including certain of the
parties’ expenses. Where one party’s income is very limited, the bite that
expenses may take out of her income may reduce, or even eliminate, her
ability to pay court-imposed costs.
Here, it is at best unclear which of mother’s expenses the trial court
considered—other than her monthly child support obligations. On the
existing record, it appears the trial court failed to consider mother’s $995 per
month in rent, her payments for food and utilities and other basic living
expenses. The trial court also does not appear to have considered other
obligations imposed on her by the family court, including mother’s share of
the monthly costs of supervised visitation with the minor, and her share of
Dr. Nelson’s original child custody evaluation and child support arrears, or
other debts subject to mother’s chapter 13 of title 11 of the United States
Code (chapter 13) bankruptcy plan, under which at the time the court
ordered the updated report from Dr. Nelson mother was obligated to pay
$650 per month for 55 months.
That is not the way to assess a party’s ability to pay. As was said in
the analogous context of an interim award of attorney fees, “[s]ince expenses
are (with very few exceptions, e.g., [Fam. Code] §4071), irrelevant for child
support, it is perhaps too easy for family law judges to dismiss the expenses
on the income and expense declaration in other contexts . . . . [¶] But to do so
is error. Expenses are relevant to pendente lite attorney fee orders.” (Alan S.
v. Superior Court (2009) 172 Cal.App.4th 238, 253 (Alan S.); see, e.g., In re
20
Marriage of Rosen (2002) 105 Cal.App.4th 808, 829-830 [finding that husband
was able to pay wife’s attorney fees held erroneous including because court
failed to consider husband’s court-ordered support payments and substantial
debts; “On remand, the court must reconsider an award of attorney fees, if
any”]; In re Marriage of Keech (1999) 75 Cal.App.4th 860, 867-868 [error to
order husband to pay wife’s attorney fees in amount that would leave him
with only $93 per month for other expenses after payment of court-ordered
support obligations, taxes and rent].) Such an award “is definitely not a
truncated process” entailing a simple comparison of the parties’ “nominal
income relative to the other.” (Alan S., at p. 254.)
The same is true of an order allocating the expenses of a court-ordered
custody evaluation. Because the trial court here evaluated mother’s ability to
pay based solely on her income relative to father’s, without considering
critical basic living expenses, it committed legal error. The court failed to
take into account the fact that, once necessary expenses are subtracted from
each parties’ income, the lower earning party might have nothing left,
whereas the same might not be true for the higher earning party, who might
have plenty of left-over discretionary income.
The court’s error in this regard was not harmless. The record before us
indicates that father’s resources were vastly superior to mother’s. The court
made a finding that, according to the most recent child support calculation,
father’s net spendable monthly income was $9,615 and mother’s (after
payment of court-ordered child support) was only $3,036. But, as noted
above, the figures used to render the child support calculation took no
account of basic living expenses, including rent and food for mother and for
her six-year-old son, nor of the $650 per month due each month under
21
mother’s chapter 13 plan.13 According to her declaration, mother’s only asset
was $863.67 in a bank account.
Father’s cash in the bank was not much more than mother’s ($1,049),
but he owned a home of undisclosed value,14 had financed the purchase of two
vehicles, and his net monthly earnings as found by the court ($9,615) were
significantly higher than his monthly expenses ($7,325). Further, he
apparently did have the ability to pay Dr. Nelson’s fee—because he paid it.
Given the court’s error, we must remand the allocation issue with
directions for the court to engage in a proper ability-to-pay inquiry. (See, e.g.,
Alan S., supra, 172 Cal.App.4th at pp. 258, 263.)
IV.
Conclusion
In view of our decision to remand the case for further proceedings
adhering to our interpretation of the statutes to require an assessment of
ability to pay, we need not reach the constitutional challenges mother raises
13 Expenses identified by mother in her most-recent Income and
Expense Declaration included: approximately $2,964 in basic living expenses
(such as rent, unreimbursed job-related expenses, utilities, groceries, car and
other expenses), $800 per month in other court-ordered costs (for counseling
fees and expenses associated with supervised visitation), and $75 per month
in payments toward credit card debt and a personal loan. At a minimum, the
court needed to assess mother’s ability to pay for Dr. Nelson’s further report
after taking into account the basic living expenses, family court-related
expenses (such as child support, supervised visitation costs, and previously
ordered expert fees), and chapter 13 plan obligations that she can prove by at
least a preponderance of the evidence.
14 Father’s income and expense declaration states that the value of his
real property is “unk[nown]” but reflects he is paying about $2,300 in
monthly mortgage, insurance and real estate taxes. It is unclear what equity
he may have in the home. (See Alan S., supra, 172 Cal.App.4th at pp. 255,
258.)
22
based on her claim that she is indigent and that requiring her to pay court
costs in that circumstance violates her constitutional rights.
We conclude with the following observations. Like some other tools
that are available in family court proceedings, child custody evaluations can
be expensive. Yet many of the litigants who appear in family law courtrooms
are individuals of modest means and allocating the costs of these and other
expensive tools, even in part, to those who cannot afford to pay for them
threatens their ability to provide for their own and their children’s most
fundamental needs. (Cf. Jameson v. Desta (2018) 5 Cal.5th 594, 619-620 [cost
of private court reporter]; Solorzano v. Superior Court (1993) 18 Cal.App.4th
603, 615 [costs of privately compensated discovery referee].)
We recognize that private child custody evaluators can perform an
important function in family law cases, and a family court may use them
where one or both parties can afford to pay their fees. What it may not do,
however, is use that expensive tool and then allocate the costs, even in part,
to a litigant who cannot afford them. Before allocating any portion of a
custody evaluator’s fees to a litigant who objects that he or she cannot afford
to pay them, the court must thoroughly assess that litigant’s ability to pay,
taking into account not only income and assets but also indebtedness,
ongoing basic expenses and other obligations, including those previously
imposed by the court itself earlier in the litigation. Justice and fairness
require nothing less.
DISPOSITION
The May 28, 2019 order directing appellant to reimburse respondent
$3,469 is vacated, and the matter is remanded for further proceedings
consistent with the views expressed in this opinion. Appellant shall recover
her appellate costs.
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STEWART, P.J.
We concur.
MILLER, J.
MARKMAN, J.*
Peterson v. Thompson (A157874)
* Judge of the Alameda Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
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Trial Court:Placer County Superior Court
Commissioner: Hon. John Paulsen
Counsel:
A.K. Peterson, in pro. per., for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
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