Marriage of Reade and Roizman CA2/4 ( 2015 )

Filed 5/5/15 Marriage of Reade and Roizman CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
In re Marriage of VICTORIA READE and B253362
KEITH ROIZMAN.
(Los Angeles County
Super. Ct. No. BD512241)
VICTORIA READE,
Appellant,
v.
KEITH ROIZMAN,
Respondent
WENDY L. SHEINKOPF,
Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Michelle
Williams Court, Judge. Affirmed.
Roberta L. Murawski for Appellant.
No appearance for Respondent.
Wendy L. Sheinkopf, in pro. per. for Respondent Sheinkopf.
Victoria Reade appeals an order requiring her to pay $73,000 in fees to respondent
Wendy L. Sheinkopf, an attorney who represented Reade’s ex-husband, Keith Roizman,
during the parties’ dissolution proceedings. Reade contends that the trial court abused its
discretion by failing to consider whether Sheinkopf’s assessed fees were reasonable and
issuing an order that exceeded the bounds of reason. We disagree and affirm.
FACTUAL AND PROCEDURAL SUMMARY
A. Underlying Dissolution Proceedings
Reade and Roizman married on May 8, 2002. Reade initiated dissolution
proceedings on September 11, 2009, a few weeks after she and Roizman were involved in
a domestic violence incident that led her to obtain a restraining order against Roizman.
The dissolution proceedings—which should have been relatively straightforward given
the absence of children and significant or complex assets – quickly became bogged down
by disputes over the restraining order, the marital home,1 and the operations (and later
attempted joinder) of iontherapeutics, Inc., a struggling start-up medical device business
in which Reade and Roizman each held a 35 percent stake and an executive position.
Sheinkopf, who had been representing Roizman from the beginning of the litigation as an
associate at the Law Offices of Robert M. Cohen, substituted into the case as his sole
counsel on April 23, 2010.
The court resolved the dispute over the restraining order in April 2010 when it
denied Roizman’s request to modify or terminate the order. Iontherapeutics’
1
Ownership of the couple’s Hollywood Hills home was hotly contested even
though the deed and mortgage were both in Reade’s name. Roizman claimed that a
friend of his, Dr. R. James Klingenstein, purchased the home for Roizman’s benefit and
owned the home until Reade tricked him into signing title over to her. Reade maintained
that she legitimately purchased the home from Klingenstein using her separate property.
Klingenstein intervened in the dissolution proceedings and filed a verified complaint
alleging that Reade defrauded him (and seeking to quiet title as to Roizman). Reade
subsequently filed a cross-complaint against Klingenstein and Roizman, and Roizman
filed a cross-complaint against Reade. The home eventually fell into foreclosure. It is
unclear from the record what became of the home and the claims regarding it.
2
participation in and relevance to the dissolution proceedings likewise substantially
diminished when the company declared bankruptcy on October 12, 2010. The marital
home remained a source of controversy throughout the proceedings, however.
In late August 2010, Roizman served Reade with a demand to inspect the marital
home (from which he had been banned by the restraining order since August 2009). Over
the next several weeks, the parties exchanged a flurry of correspondence regarding the
inspection and Roizman’s simultaneous demand for a continued deposition of Reade.
Their exchanges became particularly contentious after Sheinkopf obtained first a
temporary and later a permanent restraining order against Reade following an alleged
battery incident.2 Ultimately, in October 2010, Roizman filed a voluminous motion to
compel the inspection and deposition.
The court orally granted the motion to compel on November 29, 2010 and ordered
the parties to conduct the inspection no later than February 28, 2011. Despite the court’s
order, the inspection continued to generate controversy and heavy litigation during the
next several months. The parties exchanged correspondence disputing the proper timing
and duration of the inspection as well as other details. On February 24, 2011, Roizman
filed an ex parte request seeking enforcement of the court’s November 29, 2010 orders.
Roizman also sought monetary sanctions and fees. It is unclear from the record what
happened at the hearing on Roizman’s ex parte motion. It appears, however, that Reade
did not appear for the scheduled inspection, and that the parties were unable to reach an
agreement regarding the deposition. The parties continued their litigation of discovery
issues throughout the spring and summer. The court accurately observed in November
2010 that the case was “being litigated as though it were a multimillion dollar estate.”
Eventually, on August 4, 2011, the court issued a six-page ruling spelling out the
precise manner in which the parties were to proceed with the deposition and inspection.
2
Sheinkopf claimed that Reade hit her in the back at an arbitration involving Reade,
iontherapeutics, and iontherapeutics’ former counsel. Reade “vociferously denie[d]”
touching Sheinkopf and maintained that both the temporary and permanent restraining
orders were entered without proper notice to her.
3
The court declined to impose sanctions against either side, noting the “significant
confusion” regarding the inspection. With regard to fees, the court stated that it “can and
will make attorney fee awards when it is clear to the court what the assets in this
dissolution are and what they are worth. . . . Both parties are convincing in their
representation that they simply do not have any assets at this time to pay their own fees,
let alone the fees for the other party.”
Roizman discharged Sheinkopf shortly after the court’s August 4, 2011 discovery
ruling.
B. The Borson Motion and Related Proceedings
1. The Borson Motion and Accompanying Documents
On August 9, 2011, Sheinkopf filed a motion for attorney’s fees pursuant to In re
Marriage of Borson (1974) 37 Cal. App. 3d 632 (Borson), which permits a discharged
attorney, with the express or implied consent of his or her former client, to seek fees from
the opposing party in dissolution proceedings on the former client’s behalf. In the
declaration attached to her motion, Sheinkopf averred that Roizman discharged her on
August 7, 2011 after he incurred $135,450 in legal fees and $3,096.79 in costs,
$90,157.383 of which remained unpaid and all of which she characterized as “reasonable
and necessary pursuant to the holding in In Re Marriage of Keech (1999) 75 Cal. App. 4th
860.” Sheinkopf averred that Roizman was unable to pay the fees himself, as he “is
legally blind, and this severe disability prevents him from being gainfully employed.” 4
Notwithstanding the court’s recent observation that neither party appeared able to pay
fees, Sheinkopf contended that Reade, whom she described as “a healthy woman of 50,”
was in a better position than Roizman to pay Sheinkopf’s outstanding fees. According to
Sheinkopf’s declaration, Reade held degrees that rendered her employable (a B.S. in
nursing and an M.B.A.), continued to earn at least $4,000 per month in rental income
3
Sheinkopf later revised this number upward to $91,307.87.
4
No party to this case appears to have questioned this assumption, despite
Roizman’s recent gainful employment as an executive at iontherapeutics.
4
from the marital home, had been employed by iontherapeutics during the 14 months of
the proceedings in which it remained a going concern, and “evidently has the financial
resources to be able to have attorneys from two separate firms represent her at the same
time in this action alone.” Sheinkopf further asserted that “the vast majority of the fees
and costs incurred by [Roizman] during my representation were occasioned and required
due to the conduct of [Reade],” particularly in connection with the protracted discovery
disputes on which Roizman ultimately prevailed.
Sheinkopf provided the court with 46 pages of redacted invoices. All of
Sheinkopf’s time was billed at her “discounted” rate of $350 per hour, including the time
she spent obtaining the restraining order against Reade. The invoices also reflected
Sheinkopf’s litigation costs, including an $88 parking ticket and a $262.90 tow charge
incurred when she appeared in court.
Sheinkopf also provided income and expense declarations filed by Reade and
Roizman. Both declarations painted relatively bleak pictures of the parties’ finances.
Reade reported monthly expenses in excess of $12,000, monthly income of $4,000, and
averred that she had been “deplet[ing] separate savings” and obtaining personal loans to
pay her attorneys, to whom she still owed $49,000. Roizman reported monthly expenses
of approximately $12,000 and claimed no income aside from his $1,174 monthly Social
Security disability payment and $94 in other public assistance. He also reported using
personal loans to pay his attorneys.
Reade opposed Sheinkopf’s motion, claiming that Roizman had sufficient funds to
pay his own fees and “caused this matter to be unnecessarily delayed and his attorney has
caused unnecessary, protracted litigation.” The record does not reflect that she made any
additional written argument about the reasonableness of Sheinkopf’s fees, invoices, or the
charges contained therein.
2. The Initial Hearing and Ruling
The court, presided over by Judge Juhas, heard the Borson motion on September
12, 2011. Roizman, who was “technically” represented by new counsel at that point, did
5
not attend, and neither did his new counsel. (Roizman later claimed he did not receive
notice of the hearing, and attempted to demonstrate that he did not consent to the motion.
Reade’s counsel attended, and she and Sheinkopf each claimed that the other’s client bore
responsibility for the heavily litigated nature of the proceedings. Sheinkopf requested an
expeditious ruling, as she wanted to ensure “that somehow my law firm’s rights are
preserved.” Counsel for Reade requested that the motion be reserved until the time of
trial. Judge Juhas acknowledged both parties’ positions, stating, “If I don’t grant the
Borson motion, it will be reserved until time of trial. Absolutely.” He took the motion
under submission and stated that he would “look at the papers and get something out as
quickly as I can.”
One week later, on September 19, 2011, Judge Juhas issued a minute order stating
in its entirety: “This is the court’s ruling in the submitted matter of Ms. Wendy
Sheinkopf’s Borson motion. The court grants the motion, but reserves over any payment
of fees to Ms. Sheinkopf until the matter is finally determined. The court reserves over
both need and ability to pay fees as well as any Family Code section 271 fees. Ms.
Sheinkopf is to be advised of any trial or settlement conference in this matter so that she
can participate, to the appropriate extent, concerning her attorney fee bill. [¶] Ms.
Sheinkopf is to give notice of this ruling.”
3. Reade’s Bankruptcy
On October 20, 2011, Reade filed for bankruptcy. Reade listed Sheinkopf as
“Creditor #26” on her Schedule F – Creditors Holding Unsecured Nonpriority Claims,
indicating that Sheinkopf held a contingent, unliquidated, and disputed claim of
$143,909.37. (That figure, approximately $50,000 more than the $91,307.87 outstanding
balance actually billed to Roizman, reflected the amount Sheinkopf claimed she could
have charged Roizman if she had assessed her typical fee of $425 per hour and had billed
him for every second she spent on the case.) In another filing, Reade averred that she had
been self-employed as a healthcare consultant for the preceding six months and during
that time had earned $10,000 per month. She also noted, however, that her consultancy
6
agreement ended on October 31, 2011 and she had not secured a new position. Reade
represented that her monthly disposable income was negative $728.67, and projected her
60-month disposable income at negative $43,720.20.
The bankruptcy court ordered Reade’s debts discharged on August 21, 2012. The
bankruptcy court did not discharge “[d]ebts that are domestic support obligations.”
4. Sheinkopf’s Attempts to Obtain Payment and Related Proceedings
In September 2012, after being advised by Reade’s counsel that the dissolution
proceedings were nearing a resolution, Sheinkopf filed a request for order awarding
payment pursuant to her Borson motion. Sheinkopf asserted that a Borson award was in
the nature of a domestic support obligation, such that it was not discharged in Reade’s
bankruptcy, and requested that the court order Reade and/or intervenor Klingenstein to
pay her fees “forthwith.”
Reade opposed Sheinkopf’s request. She argued for the first time that Sheinkopf’s
bills were “so heavily redacted, it cannot be reasonably determined what work was
performed by Ms. Sheinkopf, or what she actually accomplished, other than it is clear
that none of it related to support for Mr. Roizman . . . .” Reade further argued that
Sheinkopf failed to demonstrate that Roizman could not pay the fees, “or is not in better
financial position to pay the fees than [Reade], who just emerged from bankruptcy.”
Reade also contended that she lacked the ability to pay the fees. In support of her latter
contention, Reade furnished a schedule of assets and debts dated September 12, 2012 in
which she averred that she already had post-bankruptcy debts totaling $72,000. Reade
also provided an updated income and expense declaration, in which she stated that she
earned $6,000 per month for working 8-10 hours per week as a healthcare consultant.
Her declaration, which also was dated September 12, 2012, indicated that she had $780 in
the bank, incurred monthly expenses of approximately $10,250, and owed her attorneys
$68,000. Roizman also opposed Sheinkopf’s request for order.
The court, now presided over by Judge Court, denied Sheinkopf’s request for
payment from Klingenstein without prejudice “because he wasn’t a named party in the
7
original motion.” The court stayed Sheinkopf’s request for payment from Reade because
Sheinkopf had a claim pending against Reade’s bankruptcy estate in bankruptcy court.
The court also granted Reade’s outstanding motion to bifurcate status, terminated the
marriage, and set any remaining issues for trial on February 11, 2013. Sheinkopf filed a
second request for payment of her fees and set that motion for hearing at the scheduled
trial.
In December 2012, without notifying Sheinkopf as required by the court’s
September 19, 2011 order, Reade and Roizman settled their remaining issues and
prepared a judgment for the court’s signature. Under the terms of the proposed
settlement judgment, Reade and Roizman each agreed to pay their own attorneys’ fees.
After she was apprised of the parties’ settlement in January 2013, Sheinkopf filed
an ex parte motion requesting that judgment be stayed or vacated until her Borson claims
were fully resolved. The court granted the motion over Reade’s and Roizman’s
objections, staying entry of the judgment.
The court issued a ruling on Sheinkopf’s second request for payment on February
22, 2013. In that ruling, the court again denied Sheinkopf’s request to recover fees from
Klingenstein. The court also denied Sheinkopf’s request that Reade pay her fees, finding
that Sheinkopf “failed to show that the bankruptcy court determined that her claim was a
domestic support obligation” not discharged in Reade’s bankruptcy. The court predicated
this finding on a January 15, 2013 ruling from the bankruptcy court disallowing
Sheinkopf’s claim against the bankruptcy estate.
On February 27, 2013, Sheinkopf filed a motion for new trial pursuant to Code of
Civil Procedure sections 656-662. As relevant here, Sheinkopf argued that the court’s
ruling precluding her recovery against Reade rested on incorrect and incomplete facts
because the bankruptcy court ruling on which it was based had been entered without
proper notice to her. The bankruptcy trustee ultimately agreed with Sheinkopf on that
point and agreed to refile its motion so she would be afforded an opportunity to respond.
8
Reade opposed Sheinkopf’s motion. Roizman joined Reade’s opposition in its entirety
and further argued that he never consented to the Borson motion.
The court issued a tentative ruling on April 9, 2013. In that ruling, the court
proposed denying Sheinkopf’s motion as it pertained to recovery against Klingenstein.
The court proposed conditionally granting the motion for new trial as it pertained to
Reade. The court proposed setting a new trial “for a date after . . . the bankruptcy court’s
ruling. If the bankruptcy court determines that [Sheinkopf’s] claim is not a domestic
support obligation and therefore, has been properly discharged, the new trial date will be
taken off calendar. . . . If the bankruptcy court determines that [Sheinkopf’s] claim is a
domestic support obligation and thus, improperly discharged, [Sheinkopf] will have
shown newly discovered evidence for new trial under Code of Civil Procedure 657(4).”
The court adopted its tentative ruling after hearing extensive oral argument on
April 24, 2013. The court set the conditional date of new trial for June 26, 2013.
On June 12, 2013, the bankruptcy court “determined that (a) [Sheinkopf’s claim
against the bankruptcy estate] is a contingent and unliquidated claim that arose prior to
the petition date; (b) the amount of [Sheinkopf’s claim] will not be determined until the
claimant’s “Borson” motion has been adjudicated by the Family Law Court; and (c) the
evidentiary record does not otherwise support a disallowance of [Sheinkopf’s claim]
under § 502(b)(1) at this time.” The bankruptcy court further ruled that the bankruptcy
trustee could reassert its objection to Sheinkopf’s claim “after the state court rules on the
Borson motion.”
With that ruling in hand, the parties returned to family law court as scheduled on
June 26. Reade did not personally appear but filed a declaration attesting to her “great
financial hardship,” a significant portion of which she attributed to opposing Sheinkopf’s
continuous pursuit of fees in both the bankruptcy and family law courts. Neither she nor
Roizman provided an updated income and expense declaration, however. The court
concluded that without those declarations, it lacked “the information that it needs in order
to make a proper inquiry” into the parties’ financial need and ability to pay fees. The
9
court therefore continued the matter to October 16, 2013 and ordered both parties “to file
and serve updated Income and Expense Declaration by September 16, 2013.”
Reade timely filed an updated declaration dated September 16, 2013. She
indicated that she earned approximately $1,450 per month as a healthcare consultant and
temporary contractor working 10-20 hours per week. She also stated that she had been
receiving $200 per month in food stamps since May 2013 and had only $237.67 in the
bank. Reade reported owing more than $100,000 to her attorneys, but also indicated that
she voluntarily had paid her current attorney $2,000 that month. Reade also filed a
schedule of assets and debts, recent bank statements, and her 2012 tax return. One of the
bank statements indicated that her “combined balance in linked accounts, which may
include [d]eposit accounts or qualifying credit accounts, including a credit card” was
$13,299.65.
Sheinkopf timely filed a supplemental brief. She argued that the court needed to
decide “basically, two” issues: “(1) What is the amount of the Borson Award: (a) the
sum of $143,909.37: the total sum of unpaid billed and unbilled fees and costs incurred
by Roizman through his use of Sheinkopf’s legal services, as claimed by Reade in her
bankruptcy filing papers; or (b) the sum of $91,307.87: the total sum of unpaid billed
fees and costs incurred by Roizman through his use of Sheinkopf’s legal services; and (2)
Between Reade and Roizman, which party has an ability to pay Sheinkopf’s unpaid legal
fees and costs: if Roizman completely lacks the ability to pay, does Reade have such
ability and to what extent?” Sheinkopf further asserted that the reasonableness of the fees
she requested was not before the court because “that issue was not reserved and the
determination of reasonableness was subsumed in the Order of this Court on September
19, 2011.” She also argued that “Roizman is presumed . . . to lack the ability to pay fees
and costs of the Borson Award, and to have the need for Reade to be ordered to pay those
fees and costs,” because he “has consistently declared in this matter that he is legally
blind . . . and he has no income other than his Social Security disability income of less
than $2,000 per month.”
10
Reade responded that she lacked the ability to pay Sheinkopf’s fees. She also
challenged Sheinkopf’s “presumption” regarding Roizman’s financial situation, averring,
“[i]t is hard to imagine that Mr. Roizman, who has not had to file for bankruptcy, and as
far as we know is not on food stamps, can be any worse off financially than Petitioner.”
In reply, Sheinkopf pointed to several discrepancies in Reade’s financial filings,
including the $13,299.65 in “linked accounts,” the recent and voluntary $2,000 payment
to her attorney, and an entry in her bank statement reflecting a $6,400 wire transfer from
a Barclay’s bank account that never had been disclosed to the court. Roizman
emphasized these and other discrepancies in his own untimely pro. per. filings, which for
the first time supported Sheinkopf.
At the October 16, 2013 hearing, the court granted Reade’s motion to strike
Roizman’s untimely income and expense declaration and ordered that the hearing “go
forward today based on the evidence we have before us.” The court allowed each
interested party – Reade, Sheinkopf, and Roizman, who appeared in pro. per. by
telephone – to make arguments. During his argument, Roizman stated that he was blind,
earned $1,339 per month in Social Security disability payments, and had no other
income.
The court issued its ruling on October 23, 2013. The court began by noting that it
had not reserved jurisdiction over the reasonableness of the $91,307.87 Sheinkopf had
billed during her tenure as Roizman’s counsel. Accordingly, it proceeded to a
consideration of whether there was a disparity in access to funds to retain counsel and
ability to pay. (See Fam. Code, § 2030, subd. (b)(2).)5 The court found that the parties’
incomes were about equal if their income and expense declarations were taken as true:
Reade claimed a monthly income of $1,450 and Roizman claimed $1,288.6 The court
5
All further statutory references are to the Family Code unless otherwise indicated.
6
The court struck Roizman’s most recent income and expense declaration, so it is
unclear to which declaration it was referring or how it ultimately arrived at its conclusion
11
found, however, that Reade’s declaration “does not accurately reflect her true financial
situation.” Concluding that it was “not credible” for Reade’s income to have declined
from $6,000 per month in September 2012 to $1,450 in September 2013 “for working up
to 10 hours more per week in her own business,” the court attributed to Reade a monthly
income equal to “at least” her reported monthly expenses of $10,400. Based on this
finding, the court determined that a disparity existed: Reade took home 80 percent of the
former couple’s net disposable income after payment of taxes. The court also noted that
Reade “has at least $27,000 in her bankruptcy estate.” “Taking into consideration
[Reade’s] reasonable expenses including her reasonable litigation costs,” the court further
determined that she possessed “sufficient resources to make a contribution to
[Roizman’s] fees” even though she lacked the ability to pay the entire amount. The court
found that Reade should pay 80 percent of the billed fees, or $73,000.
The court next considered “whether its apportionment of the overall fees and costs
is “just and reasonable:” [sic] whether its award is sufficient, to the extent practical, to
enable each party to present their case adequately, and how to apportion the fees and
costs based on the parties [sic] relative circumstances applying the relevant factors listed
in Family Code § 4320.” (See §§ 2032, subds. (a) & (b), 4320.) The court concluded,
“[b]ased on this analysis,” which incorporated a variety of the factors enumerated in
section 4320, that Roizman “needs the fee award within the meaning of the Family Code”
and that the award of $73,000 “is just and reasonable and is appropriate.” Finding that
monthly installment payments would not place an unreasonable burden on Reade, the
court ordered her to pay $1,500 per month to Sheinkopf, beginning as soon as the
bankruptcy court adjudicated and disbursed Sheinkopf’s still-pending claim against
Reade’s bankruptcy estate.
that Roizman’s income was $1,288 per month. Reade has not challenged this finding on
appeal.
12
Reade timely appealed. The order is an appealable one over which we have
jurisdiction. (See In re Marriage of Skelley (1976) 18 Cal. 3d 365, 368; In re Marriage of
Weiss (1996) 42 Cal. App. 4th 106, 119.)
DISCUSSION
I. Legal Framework
A Borson motion rests upon section 2030. (See In re Marriage of Turkanis &
Price (2013) 213 Cal. App. 4th 332, 356 & fn. 8; In re Marriage of Read (2002) 97
Cal. App. 4th 476, 480; Borson, supra, 37 Cal.App.3d at p. 634.) Section 2030 permits the
court to order one party to a dissolution to pay the other’s attorney fees and costs and
“reflects the public policy of providing, “‘“‘at the outset of litigation, consistent with the
financial circumstances of the parties, a parity between spouses and their ability to obtain
effective legal representation.’” [Citation.]’ [Citation.]” (In re Marriage of Sharples
(2014) 223 Cal. App. 4th 160, 164 (Sharples).) “The purpose ‘is not the redistribution of
money from the greater income party to the lesser income party,’ but rather ‘parity: a fair
hearing with two sides equally represented.’ [Citation.]” (Ibid.) Accordingly, section
2030 by its terms limits awards to “whatever amount is reasonably necessary for
attorney’s fees and for the cost of maintaining or defending the proceeding during the
pendency of the proceeding” (§ 2030, subd. (a)(1)) and expressly requires the court to
“make findings on whether an award of attorney’s fees and costs under this section is
appropriate, whether there is a disparity in access to funds to retain counsel and whether
one party is able to pay for legal representation of both parties” (§ 2030, subd. (a)(2)).
The trial court may make an award under section 2030 only “where the making of
the award, and the amount of the award, are just and reasonable under the relative
circumstances of the respective parties.” (§ 2032, subd. (a).) In making its
determination, the court “shall take 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, taking into consideration, to the extent relevant, the
circumstances of the respective parties described in Section 4320.” (§ 2032, subd. (b).)
13
Section 4320 sets forth a nonexhaustive list of circumstances for the court to consider
when ordering spousal support, including the ability of the supporting party to pay, the
needs of the recipient party, the obligations and assets of each party, the ability of the
supported party to engage in gainful employment, the age and health of the parties, the
balance of hardships to the parties, and any other factors the court deems just and
equitable. (§ 4320, subds. (c), (d), (e), (g), (h), (k) and (n).)
Decisional law outlines additional factors a court should consider when setting the
amount of a need-based award, including “the nature of the litigation; its difficulty; the
amount in controversy; the skill required and employed in handling the litigation; the
attention given; the success of the attorney’s efforts; the attorney’s learning and
experience in the particular type of work demanded; the intricacies and importance of the
litigation; the labor and the necessity for skilled legal training and ability in trying the
cause; and the time consumed.” (In re Marriage of Braud (1996) 45 Cal. App. 4th 797,
827, fn. 30; In re Marriage of Keech, supra, 75 Cal.App.4th at p. 870 (Keech); In re
Marriage of Cueva (1978) 86 Cal. App. 3d 290, 296.) Thus, the financial resources of the
parties is but one factor the court must consider when determining whether an award is
just and reasonable. (§ 2032, subd. (b).)
II. Standard of Review
Family courts are vested with considerable discretion in crafting an award of
attorney’s fees. (Sharples, supra, 223 Cal.App.4th at p. 165.) We review such awards
only for an abuse of this discretion. (See id.; see also In re Marriage of Rosen (2002) 105
Cal. App. 4th 808, 829 (Rosen); Keech, supra, 75 Cal.App.4th at p. 866.) Under this
deferential standard, we must affirm unless no judge reasonably could make the
challenged order. (Rosen, supra, 105 Cal.App.4th at p. 829.) Put another way, “‘the 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.’”
(Keech, supra, 75 Cal.App.4th at p. 866.) “However, the court’s ‘decision must reflect
an exercise of discretion and a consideration of the appropriate factors as set forth in code
14
sections 2030 and 2032.’ [Citations.]” (Sharples, supra, 223 Cal.App.4th at p. 165.)
Additionally, “[t]he trial court’s failure to exercise discretion is itself an abuse of
discretion.” (Ibid.) Reade, the party challenging the order, bears the burden of
demonstrating an abuse of discretion (In re Marriage of Lopez (1974) 38 Cal.App.3d, 93,
114, disapproved on other grounds by In re Marriage of Morrison (1978) 20 Cal. 3d 437,
452-453); error is never presumed on appeal (In re Marriage of Falcone & Fyke (2008)
164 Cal. App. 4th 814, 822).
III. Analysis
A. The trial court did not abuse its discretion by failing to make an express
reasonableness finding
Reade first contends that the trial court abused its discretion because neither Judge
Juhas, who made the initial ruling granting the Borson motion, nor Judge Court, who
made all subsequent rulings regarding the award of fees, “reviewed the reasonableness of
Sheinkopf’s fees.” She argues that without an explicit assessment of reasonableness “on
the record, any decision is an abuse of discretion,” for “‘[t]he exercise of sound discretion
by the trial court in the matter of attorney’s fees also includes judicial evaluation of
whether counsel’s skill and effort were wisely devoted to the expeditious disposition of
the case’ [Citation.]” (In re Marriage of Huntington (1992) 10 Cal. App. 4th 1513, 1524;
see also Keech, supra, 75 Cal.App.4th at p. 870 [“It was an abuse of discretion to order
husband to pay wife’s attorney fees without making any inquiry into the reasonableness
of those fees.”].) Although Reade is correct that neither Judge Juhas nor Judge Court
expressly addressed the reasonableness of Sheinkopf’s fees, we disagree with her
conclusion that the absence of express findings necessarily constitutes an abuse of
discretion.
Even where a court has statutory duties to state “in writing or on the record” its
reasons for making or modifying an award, as it does in the context of child support (see
§ 4056, subd. (a); § 4072, subd. (a)(1)), the court’s failure to expressly state its reasons
does not lead to automatic reversal. To the contrary, “we are enjoined by our
15
Constitution from imposing a reversible-per-se rule here.” (In re Marriage of Carlsen
(1996) 50 Cal. App. 4th 212, 218 [child support hardship exemption].) “[T]he Legislature
has not precluded us here from implying findings,” and we do not “have the
constitutional due process concerns presented by the imposition of sanctions [citation] or
the need to protect against ‘corrupt’ judicial interference with the criminal process
[Citation.].” (Ibid.) The failure to make required findings may constitute reversible
error, but only where “the missing information is not otherwise discernible from the
record.” (In re Marriage of Hubner (2001) 94 Cal. App. 4th 175, 183.) Put another way,
“the failure to make a material finding on an issue supported by the pleadings and
substantial evidence is harmless where the missing finding may reasonably be found to
be implicit in other findings,” or “when, under the facts of the case, the finding would
necessarily have been adverse to the appellant.” (Rojas v. Mitchell (1996) 50
Cal. App. 4th 1445, 1450.)
Here, the missing finding – that Sheinkopf’s bills were reasonable – may
reasonably be found to be implicit in Judge Juhas’s granting of the Borson motion and
reservation only of “need and ability to pay fees.” When he made his ruling, Judge Juhas
had before him copies of Sheinkopf’s bills, her declaration averring that much of her
work was occasioned by Reade’s litigation conduct, and his own experience with the case
(see In re Marriage of Cueva, supra, 86 Cal.App.3d at p. 300), which began at roughly
the same time as Sheinkopf became Roizman’s sole counsel. He notably did not have
before him the arguments Reade’s counsel now makes, that the bills contained improper
or excessive charges, time expenditures, or redactions. Moreover, Judge Juhas told the
parties he would “look at the papers and get something out as quickly as I can,” which
strongly suggests that he was aware of and considered the substantial submissions
proffered by counsel before issuing his ruling a full week after the hearing on the matter.
These facts distinguish this case from Keech, in which the court “was not apprised of the
nature and extent of the services rendered, so it could not determine their reasonable
value based upon its own expertise.” (Keech, supra, 75 Cal.App.4th at p. 870), and In re
16
Marriage of Tharp (2010) 188 Cal. App. 4th 1295, 1314 (Tharp), in which the court
“affirmatively refus[ed] and fail[ed] to exercise” its discretion by declining “‘to ferret out
and determine, based on the billing statements of [wife’s] attorney, which fees were fair
and unfair.’”
Although the court allowed some potentially questionable “costs” contained in the
46 pages of invoices, such as Sheinkopf’s parking ticket and towing charge, we note that
Reade failed to call these or any other line items to the court’s attention at the time the
motion was heard. (See In re Marriage of Feldman (2007) 153 Cal. App. 4th 1470, 1496
[refusing to consider challenge to reasonableness of attorney’s fees imposed as sanctions
because husband failed to timely object].) We are not persuaded that the court’s failure
to mention the three purportedly “questionable charges” Reade emphasizes in her brief
constitutes an abdication of its duties akin to the trial court’s in Tharp. Unlike the court
in Tharp, which refused to review the “‘reams of bills’” counsel filed (Tharp, supra, 188
Cal.App.4th at p. 1314), Judge Juhas said he would “look at the papers” and took the
matter under consideration for a full week before ruling. Additionally, nothing in Tharp
or any of her other cited case law supports Reade’s position that she can establish that the
trial court failed to review a piece of evidence simply by pointing to an error in that
evidence or a belated assertion by Roizman that some unspecified portion of Sheinkopf’s
bills pertained to issues outside the divorce case. Likewise, it does not follow from
Sheinkopf’s attempts to seek payment from Klingenstein, or her comment that Reade
may not be “obliged to make such a payment,” that Judge Juhas did not consider
reasonableness or did not deem “all or substantially all” of Sheinkopf’s requested fees
reasonable. Indeed, had Judge Juhas not implicitly ruled on reasonableness, his ruling
granting the Borson motion while simultaneously reserving jurisdiction over other
requisite findings on need and ability to pay would have been virtually meaningless.
(Cf. Laabs v. City of Victorville (2008) 163 Cal. App. 4th 1242, 1273 [“[T]he granting of
the injunction itself necessarily implies that the trial court found that Mullvain knowingly
and willfully engaged in a course of conduct that seriously alarmed, annoyed or harassed
17
Ensworth, and that Ensworth actually suffered substantial emotional distress. No further
express findings are required.”].)
B. The trial court did not incorrectly decide it lacked jurisdiction to review
the reasonableness of the bills
Reade next contends that Judge Court’s final order was “on its face, an abuse of
discretion” because it evinces a “mistaken” belief that the court “had no ability to review
the reasonableness of Sheinkopf’s bills.” She argues that the court misunderstood the
scope of its discretion and therefore remand is required so that the court may “exercise
informed discretion with awareness of the full scope of its discretion and applicable law.”
(F.T. v. L.J. (2011) 194 Cal. App. 4th 1, 16.) We are not persuaded.
Judge Court’s order recognized that the reasonableness of Sheinkopf’s billed fees
of $91,307.87 was a matter relevant to a fee award under section 2030 but did not
comment further because Judge Juhas had granted the Borson motion more than two
years ago and “did not reserve jurisdiction over the reasonableness of these fees.” While
it is true that “[n]o single fees and costs order is an ‘all or nothing’ proposition[,]” and
that “[n]eed-based awards may be augmented or modified as necessary during the entire
pendency of the case, consistent with the parties’ ‘relative circumstances’” (Hogoboom &
King, Cal. Practice Guide: Family Law (The Rutter Group 2014) ¶ 14:7, p. 14-3
[emphases in original]), Reade has not pointed to any authority suggesting that a court
must reconsider its previous rulings to avoid abusing its discretion when awarding fees
under section 2030. Nor has she pointed to any authority that a party may withhold its
objections to an order for more than a year and then expect the court to disturb what it
clearly intended to be a partially dispositive determination.
Moreover, Judge Court took care to make all three of the findings required by the
plain language of section 2030. She expressly concluded that the “element” of “disparity
in access to retain counsel and ability to pay . . . . [h]as been met,” and further found that
Reade “has sufficient resources to make a contribution to [Roizman’s] fees,” and that
“the award in this order is just and reasonable and is appropriate.” On the record before
18
us, we are not convinced that Judge Court abused her discretion in declining to more fully
explicate the reasonableness of Sheinkopf’s bills.
C. The court’s award did not exceed the bounds of reason
Reade’s final argument is that no reasonable court could conclude that her
changed income was not credible and that she could afford to pay $73,000 in attorney’s
fees for her ex-spouse. She contends that the court ignored undisputed evidence of her
financial hardship, such as her tax returns and bank statements, in favor of “the muddy
allegations of Keith [Roizman] and Sheinkopf, unsupported by facts, that [she] was not
credible, and of dubious character,” and improperly “assumed that the approximately
$27,000 in her bankruptcy estate was Victoria’s money” and “factored” it in when
assessing Reade’s ability to access funds and pay fees. We find no abuse of discretion.
Judge Court, whose familiarity with the record is apparent on the face of her
ruling, found that Reade’s reported decline in monthly income during the pendency of the
dissolution was not credible. Thus, instead of relying upon Reade’s reported income of
$1,450 per month, the court considered her earning capacity and the expenses reported on
her income and expense declaration when concluding that she had access to “at least
$10,400 per month.” The court was entitled to consider Reade’s earning capacity instead
of her reported income, particularly in light of its finding that Reade was not credible. (In
re Marriage of Simpson (1992) 4 Cal. 4th 225, 232; In re Marriage of Sullivan (1984) 37
Cal. 3d 762, 769.) To the extent Reade challenges the latter finding, “[w]e do not judge
credibility on appeal.” (In re Marriage of Boswell (2014) 225 Cal. App. 4th 1172, 1175).
It is of no moment that the court rested its credibility assessment primarily on
declarations. “‘[T]he applicable standards of appellate review of a judgment based on
affidavits or declarations are the same as for a judgment following oral testimony.’”
(Fininen v. Barlow (2006) 142 Cal. App. 4th 185, 189.)
Reade objects that the trial court “ignored” some of the evidence she proffered,
including a notation on her income and expense declaration that she had received loans
from family and friends, but the court as fact-finder was entitled to weigh the evidence as
19
it saw fit, and Reade’s notation regarding the personal loans did not indicate that she was
using those funds to pay her current monthly expenses. Reade also claims that the court
uncritically accepted Roizman’s and Sheinkopf’s unsubstantiated attacks on her
credibility, but the court appears to have independently arrived at the conclusion that
Reade’s income statements were not credible; Sheinkopf argued only that Reade “does
not tell the truth about what she has paid her attorney” or “how much she has in liquid
assets,” and Roizman also focused on other alleged untruths and inconsistencies in
Reade’s filings. We do not condone the ad hominem nature of either Sheinkopf’s or
Roizman’s arguments, but it does not appear that the court was misled by them.
Reade further challenges the court’s purported assumption that the $27,000
comprising her bankruptcy estate “were sitting in a savings account in the bank next
door.” We do not read the court’s order that way. Judge Court did mention the
bankruptcy estate when discussing Reade’s access to funds, but also acknowledged in
more nuanced fashion that some portion of that estate might be used to pay off the claim
if the bankruptcy court so adjudicated, such that Reade would need only to pay “any
remaining shortfall at the rate of $1,500 per month until paid in full.” We cannot
conclude from this statement that Judge Court improperly “factored this money into
Victoria’s ability to pay and access to funds.” Judge Court also stated that she considered
“the respective obligations and assets of the parties, the balance of the hardships to the
parties, the earning capacity of both parties, and the age and health of the parties.” Reade
essentially invites us to reevaluate those factors, but “[t]he discretion belongs to the trial
court, and not to us.” (In re Marriage of Stallworth (1987) 192 Cal. App. 3d 742, 758
(conc. & dis. opn. of Haning, J.).) We are not unsympathetic to Reade’s contentions
regarding her financial situation, but we cannot conclude that the court abused its
discretion or exceeded the bounds of reason in ordering the award it did.
20
DISPOSITION
The judgment is affirmed. In the interests of justice, the parties are to bear their
own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
EPSTEIN, P. J.
MANELLA, J.
21