Marriage of Nigro CA4/3 ( 2013 )

Filed 5/3/13 Marriage of Nigro CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re Marriage of ELIZABETH A. and
THOMAS R. NIGRO.
ELIZABETH A. NIGRO,
G046170
Appellant,
(Super. Ct. No. 01D003588)
v.
OPINION
THOMAS R. NIGRO,
Respondent.
Appeal from postjudgment orders of the Superior Court of Orange County,
David L. Belz, Judge. Dismissed in part and Affirmed in part.
Merritt L. McKeon for Appellant.
Law Offices of Thomas R. Nigro and Thomas R. Nigro in pro. per.
Elizabeth and Thomas Nigro1 divorced in 2005, but they returned to family
court due to their difficulties agreeing on the best course of action for their 15-year old
daughter Alexandra (Alex). After speaking privately with Alex, the court ordered
Thomas to organize and facilitate a double-blind study to determine whether Alex is still
suffering from Attention Deficit Hyper-Activity Disorder (ADHD), and if so, the correct
dosage of Adderall she should be taking to treat the symptoms. To insure this non-
invasive diagnostic test would be completed, the court modified the parents‘ joint legal
custody order, and it temporarily modified their physical custody arrangement. Due to
evidence Elizabeth had violated prior court orders and interfered with past efforts to
correctly diagnose Alex, the court determined there had been a sufficient change of
circumstances warranting an order giving Thomas sole legal custody over medical
decisions relating to only Alex‘s ADHD assessment and treatment. It also temporarily
modified physical custody for the duration of the 30-day double-blind study. The family
law court sanctioned Elizabeth under Family Code section 2712 because her sabotage of
the earlier court-ordered diagnostic testing frustrated the policy of the law to promote
settlement and resolution of issues. The court also denied Elizabeth‘s motion for need-
based attorney fees under section 2030. Elizabeth‘s challenges to these postjudgment
orders lack merit, and we affirm the orders. In light of our ruling affirming the final
orders, we dismiss Elizabeth‘s appeal asking this court to reverse the trial court‘s interim
order of October 7, 2011, that denied her request to modify a tentative decision.
1 ―As is customary in family law proceedings, we refer to the parties by their
first names for purposes of clarity and not out of disrespect. [Citations.]‖ (Rubenstein v.
Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
2 All further statutory references are to the Family Code, unless otherwise
indicated.
2
I
In May 2002, Elizabeth and Thomas, both attorneys, separated after nearly
14 years of marriage and when their only daughter, Alex, was four years old. A
stipulated judgment filed in 2005, awarded the parents joint custody of their daughter,
with primary physical custody given to Elizabeth.
In July 2002, Elizabeth took Alex to see a therapist, Zena Polly, Ph.D. In
May 2003, Alex‘s pediatrician, Aldon Clark, prescribed Adderall for then five-year-old
Alex to treat symptoms of ADHD.
Based on Elizabeth‘s reports to the pediatrician, Clark refilled the Adderall
prescription over the next 9 years (2003-2009), and gradually increased the dosages
(from 5 milligrams when Alex was 5 years old, to 30 milligrams when she was a
teenager). On May 20, 2009, Elizabeth reported to Clark that Alex‘s grades had dropped
and she sought another increase in the Adderall dosage. At the time Alex was 11 years
old and in the sixth grade.
A few days later, Elizabeth filed an ex parte application for an order to
show cause (OSC) to eliminate Thomas‘s mid-week visitation. Elizabeth explained that
due to Alex‘s extracurricular activities as a competitive dancer (involving 7 to 10 dance
classes per week), Thomas‘s visitation schedule had already been modified. Although he
visited Alex on Wednesdays, Thomas had agreed for the past year to waive his Tuesday
overnight visits ―as they were too short and stressful with Alex‘s school schedule.‖
Elizabeth filed the OSC because Thomas was demanding ―previously unused visitation
time‖ and Elizabeth was exhausted having to keep up with Alex‘s school work and dance
commitments. Elizabeth added Alex had been an excellent student in the Gifted And
Talented Education (GATE) program at her middle school, but she had recently fallen
behind on her school work and her grades were suffering.
Elizabeth stated Thomas unfairly complained Alex was overscheduled.
Elizabeth blamed Alex‘s drop in grades on Thomas‘s ―recent lifestyle change‖ and
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―unwillingness to comply with longstanding agreements regarding‖ his daughter‘s care.
Elizabeth declared Thomas‘s ―lifestyle change‖ related to his relationship with his
girlfriend, Angela Weldon, and Weldon‘s daughter. Alex was now spending weekends at
Weldon‘s home. Elizabeth stated Alex was stressed about living in three different
houses, and she was having difficulty keeping track of her school books and other items
when transitioning between her mother‘s house, father‘s house, and his girlfriend‘s
house. The stress of this living arrangement was contributing to Alex‘s recent poor
grades. In addition, Elizabeth claimed Thomas frequently failed to give Alex her ADHD
medication and he was unreasonably requesting she be retested. Elizabeth did not
mention in her OSC the fact that she had recently sought an increase in Adderall to
address Alex‘s falling grades. In the OSC, she blamed Thomas.
Elizabeth also complained about Thomas‘s behavior towards her. She said
he was requesting Tuesday overnight visits and this change required them to have almost
daily contact to make the necessary arrangements. Elizabeth declared the exchanges
were stressful and often confrontational. Thomas also requested to start picking up Alex
on Wednesday and Elizabeth was concerned he would not be able to handle the
preparations necessary for Alex‘s upcoming weekend dance competition. She stated,
―He has no idea how to put on her makeup, or what costumes or accessories are required.
Dads are not allowed in the girls‘ dressing room.‖
Elizabeth concluded the current mid-week visitation schedule was
―interfering‖ with her ability to earn a living because she had to constantly interact with
Thomas to make sure Alex had what she needed to succeed in school. Elizabeth stated
her struggles were interfering with her relationship with Alex, who did not understand the
problems and liked spending time with Weldon and her daughter. Elizabeth requested
the court eliminate Thomas‘s mid-week visits and that in exchange he be given additional
time during the summer.
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Thomas opposed the OSC, stating there was no emergency grounds to
warrant an ex parte application, and he asked the court to order a section 730 evaluation
(hereafter 730 evaluation) to determine Alex‘s best interests and if she should live full
time with him. Thomas also stated Elizabeth was overmedicating Alex without having a
proper diagnosis, she was constantly changing the amount of medication, and she had
bullied the pediatrician into issuing prescriptions. Thomas stated Elizabeth clearly
disapproved of his lifestyle and she was trying to alienate him from his daughter.
Thomas expressed concern about Elizabeth‘s insistence on medicating Alex. He stated
the drug was originally prescribed based on the finding of a psychologist (Polly), who
determined then five-year-old Alex had some ADHD symptoms. Thomas stated
Elizabeth‘s accusation that he refused to give Alex her medication was false, and he
believed Alex‘s academic struggles were likely due to a variety of factors, and not just his
―lifestyle.‖
The following month (June 2009), Elizabeth filed a motion to compel
Weldon‘s deposition. Several days later, Thomas filed an OSC requesting a full custody
evaluation to determine Alex‘s best interest, a 730 evaluation, and a medical evaluation
regarding ADHD and Alex‘s need for medication, a change in Alex‘s primary care
physician, and an order stating Alex‘s ADHD medication could not be modified
unilaterally by Elizabeth without Thomas‘s consent. Thomas also filed a protective order
for Weldon. He stated Elizabeth sought to depose his girlfriend on the grounds she was a
―percipient witness relative to custody and visitation‖ issue, but in reality the deposition
was being improperly used to force a dialog between the two women. He explained
Weldon had refused to informally speak to Elizabeth about Alex‘s ADHD medication.
He complained that in addition to the harassing deposition subpoena, Elizabeth was
making threats to restrict visitation and obtain a restraining order.
In July 2009, Commissioner Richard G. Vogl ordered a 730 evaluation
regarding ―the disputed visitation issues, with a special focus on the ADHD, and the other
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special needs [of the child].‖ The parties participated in mediation and agreed to a
temporary modified parenting plan. They agreed to alternate custody of Alex for one
week at a time during the summer. They also agreed to have Alex‘s ADHD diagnosis
reassessed and to have Alex participate in therapy.
In August 2009, Alex underwent four days of diagnostic testing at
University of California, Irvine‘s (UCI‘s) Neuropsychology Laboratory. In October
2009, Sabrina E. B. Schuck, Ph.D., and Francis M. Crinella, Ph.D., prepared a report of
their findings. They concluded Alex would benefit from educational therapy (designed to
help her improve her skills in processing speed and memory), academic support
(modifying the amount of work and allowing Alex to use a keyboard for written work),
and individual therapy. They recommended a therapist trained in family systems, citing
the ―considerable amount of tension and stress between Alex‘s parents over [her] custody
and care . . . . It seems that this stress is resulting in increasingly emotional, even
explosive behavior . . . .‖ And finally, the doctors highly recommended a double-blind
medication trial. They explained Alex seemed to perform better on most tasks while
taking medication and she believed the medication helped her. They opined, ―It is
unclear how strong a placebo effect may be influencing her responses to medication.
Additionally, some of her performances were so drastically different on medication; it
seems highly unlikely that the poor performance on the initial assessments was due solely
to the absence of medication.‖
In December 2009, Alex‘s pediatrician, Clark, increased Alex‘s dosage of
Adderall from 30 to 35 milligrams. Clark was unaware of the report issued by the
doctors at UCI. Thomas was not told about the increased dosage.
On April 19, 2010, the court ordered a double-blind study pursuant to the
recommendation of UCI and the parties‘ stipulation on the issue. Both parties were
ordered to cooperate with the medication protocol.
6
Alex agreed to participate in a double-blind study starting on May 20, 2010,
and ending on June 19, 2010, just prior to the end of the school year. The study was
designed to include teacher ratings, because that would make the study more reliable.
Before the study began, UCI asked Elizabeth what dosage of medication Alex was
taking. She falsely reported 30 milligrams. UCI provided a 30 day medication tray along
with a log sheet. The medication tray contained placebo pills, 20 milligram pills and
30 milligram pills, randomly placed in separately dated and sealed compartments. Each
compartment was dated to correspond with each day of the study. Only UCI knew what
dosage was contained in each compartment. Alex, her parents, and her teachers, were
asked to rate Alex‘s behavior over the one month period, and then UCI would compare
the ratings and determine if medication was helpful and the correct dosage.
Alex was with Thomas for the first day of the study (May 20). On the
second day she was with Elizabeth. By the third day (May 22), Elizabeth had stopped
participating in the study. Elizabeth gave Alex the regular dose of Adderall. She alleged
Alex ―begged‖ for her pill.
Two days later, on Monday, May 24, 2010, Elizabeth sent an e-mail to UCI
stating Alex refused to take the study pill. She wrote Friday was a bad day because Alex
forgot to turn in homework and she was worried about doing badly in school because of
the double-blind study. Elizabeth said the next morning they were leaving to go to a
dance competition in Riverside. Elizabeth offered Alex the study pill and she gave it
back, saying she did not want to jeopardize her dancing at the competition after feeling so
bad on Friday. Elizabeth said she gave Alex her regular medication because she begged
for it. Alex said she felt better after one hour and she did not want to take the test tray
medication again. Elizabeth said she tried ―one last time‖ on Monday morning (May 24)
to give Alex the study pill. She wrote, ―[Alex] shook her head and gave it back to me.‖
On May 25, Elizabeth wrote another e-mail to UCI stating the double-blind
study was ordered by mutual agreement. She asserted Judge David Belz, who made the
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recommendation, was biased. Elizabeth stated she was more concerned than Thomas
about Alex‘s emotional well being, and because the medication was not dangerous, Alex
should continue taking the pills.
Alex returned to Thomas‘s custody on May 27, and Alex agreed to resume
the study. However, Elizabeth refused to give Thomas the medication tray. Thereafter,
UCI cancelled the double-blind study because there was insufficient time to complete it
before the end of the school year.
On May 28, Thomas obtained a copy of Clark‘s medical records and
learned for the first time Elizabeth had obtained an increased dosage of 35 milligrams for
Alex. In the records, Thomas saw Elizabeth had failed to tell Clark about the UCI
recommendations or the failed double-blind study.
Elizabeth sent another e-mail to UCI on June 2 in response to a suggestion
they resume the study. Elizabeth stated the study would have no value in the summer
because Alex‘s only activity was dance, which she was passionate about and had no
trouble focusing on. Elizabeth said she would refuse to consent to a study in the summer,
or when school started again because the 8th grade ―is very important as to high school
placement.‖
At the end of June 2010, Thomas filed an OSC requesting sole legal
custody to make medical decisions. He asserted modification was warranted due to the
change of circumstances regarding Elizabeth‘s interference and sabotage of the
double-blind study. He also requested sanctions pursuant to section 271 for the costs
incurred in redoing the double-blind study and to litigate the OSC.
Thomas filed a declaration stating he obtained the medical records from
Alex‘s pediatrician, Clark, and the psychologist Alex saw when she was five years old,
Polly. The records show Elizabeth asked Clark to increase Alex‘s dosage of Adderall
without Thomas‘s knowledge or consent. In addition, Polly‘s records indicate Alex never
met the criteria for an ADHD diagnosis, and Clark prescribed Adderall without a
8
complete clinical diagnosis from Polly. Thomas asserted Alex was taking Adderall three
months before Polly administered a short version of the WISC-3 (Wechsler Intelligence
Scale for Children) and diagnosed Alex of showing ―mild ADHD.‖ Thomas presented
evidence showing Elizabeth has always been resistant to an ADHD reevaluation.
Thomas stated six months after UCI recommended the double-blind testing, Elizabeth
finally agreed to sign a stipulation for the reevaluation, and the trial court ordered the test.
Because Alex only participated in the study for four days, UCI issued a report stating the
results were inconclusive and the doctors strongly recommended another double-blind
study because the results indicated the possibility of a placebo effect. Thomas stated
Elizabeth was not concerned over the inconclusive results and was falsely telling Alex
and the 730 evaluator that UCI confirmed the ADHD diagnosis.
Thomas concluded that despite being ordered by the court to fully
cooperate with the testing, Elizabeth made ―every aspect of putting the double-blind
study in place as cumbersome and difficult as possible, projecting her negativity and
criticism of the process to myself, UCI and most importantly, [Alex], supporting,
empowering and encouraging [Alex‘s] reluctance and resistance.‖ He offered several
examples. First, Elizabeth argued at length with Thomas over which teachers and
individuals would be asked to rate Alex during the study. Second, Elizabeth did not want
to personally ask Alex‘s teachers to participate in the study. Thomas spoke with Alex‘s
teachers, and they agreed to participate. Third, Elizabeth unilaterally stopped the study
after just a few days and waited three days to tell UCI or Thomas. Fourth, Elizabeth
refused to give Thomas the medication tray when Thomas wanted to resume the study.
In addition, Thomas advised the court that Elizabeth disclosed the contents
of Alex‘s confidential 730 evaluation to the UCI team because she hoped it would cause
them to withdraw their recommendation to reschedule the double-bind test. Elizabeth
also told the UCI team the trial court was biased. Elizabeth concealed an increase in
9
Alex‘s medication from Thomas and UCI. She asked Alex to keep the dosage a secret,
and she hid the insurance co-payments for the increased dosage from Thomas.
Thomas concluded by noting Elizabeth had violated the trial court‘s
June 19, 2009, order by concealing the increase in Alex‘s medication and by failing to
cooperate with the court ordered double-blind study. In addition, Thomas asserted
Elizabeth violated the court‘s July 17, 2009, order and sections 3052.5 and 3111 by her
unauthorized disclosure of the contents of the 730 evaluation. Thomas noted Elizabeth
had announced she would not agree or consent to any further testing, and he was seeking
ex parte relief to re-institute the double-blind study without her interference at the
beginning of Alex‘s 2010-2011 school year.
Moreover, Thomas believed Elizabeth‘s acts of concealing Alex‘s increased
dosage from UCI and Thomas demonstrated ―an alarming disregard for [Alex‘s] health
and well being as well as [the trial c]ourt‘s orders.‖ Thomas requested the court award
him legal custody for the purposes of making medical decisions for Alex, for resumed
testing in the beginning of the school year, and for ensuring no medication be
administered while school is not in session. Thomas also requested section 271 sanctions
due to Elizabeth‘s obstreperous conduct and her sabotage and interference with the
double-blind study, costing Thomas $4,150 in expenses for the aborted double-blind
study.
At the hearing, the court considered testimony from the parents and Clark.
It also considered the deposition transcript of Kenneth Steinhoff, the psychologist at UCI
who headed the double-blind study. In his deposition, Steinhoff declared a double-blind
study would help determine Alex‘s best dosage, because the dosage is not determined by
weight or by the severity of the ADHD. He stated UCI wanted to find the best dosage to
give Alex optimum symptom improvement. Steinhoff declared the purpose of the
double-blind study was to determine if Alex needs medication and to determine the best
dose, because the wrong dose could negatively impact her best interests due to the
10
medication‘s side effects. Steinhoff opined the test results from the neuropsyche report
did not establish the presence of ADHD. He explained children are diagnosed based on
the DSM-IV,3 and the American Academy of Pediatrics has clinical practice guidelines
for the diagnosis and evaluation of children with ADHD. Steinhoff stated there are three
subtypes of ADHD according to the DSM-IV, and diagnosis requires careful
consideration. Sometimes, other disorders such as anxiety can look like ADHD.
Steinhoff would never recommend starting medication for ADHD before an evaluation
was performed.
Steinhoff concluded the best way to determine the efficacy of the
medication was to undergo a double-blind study. He added the study requires evidence
directly from the classroom teachers regarding symptoms because the child is in school
five to seven hours per day and it is the best place to spot behavior symptoms such as
inattention, hyperactivity, and impulsivity. Steinhoff stated UCI created a double-blind
study based on three dosages for 28 days. He stated it was better to have more people
observing and rating Alex‘s behavior to provide more data. UCI picked the doses of zero
(the placebo), 20 milligrams, and 30 milligrams because that was the highest dosage he
was told she was taking. He noted it was important to know the dosage the child was on
at the time of the study to give an estimate of a benefit and starting point.
Steinhoff represented UCI was unaware Elizabeth increased Alex‘s dose to
35 milligrams, and this change in dosage would have caused an error in the study.
Steinhoff explained that not knowing the right dosage might make UCI think Alex was
not deriving as much benefit from the medication and interfere with the determination of
her best dose. Steinhoff stated UCI learned about the increase dose from Thomas after
the double-blind study was commenced.
At the hearing, Thomas presented more details about the failed
3 Diagnostic and Statistical Manual of Mental Health Disorders, Fourth
Edition.
11
double-blind study and Elizabeth‘s interference. Thomas submitted evidence the
medication tray was still sealed for the Monday May 24th pill dosage, but Elizabeth‘s
e-mail to UCI misrepresented she physically handed Alex the study pill that day.
Thomas also impeached Elizabeth‘s claim Alex had a bad day on the first day of the
study because she forgot to turn in a social studies assignment. Thomas presented Alex‘s
progress report card showing the assignment was turned in on time and she received an
A+ for her work.
After considering arguments from both sides, the court stated it had met
with Alex in chambers and they had a very ―frank and straightforward‖ conversation.
The court said it asked Alex about her concerns with the double-blind study and she had
shared her concerns about starting a new school and about what her friends may say if
she started acting funny. The court told the parents these were normal concerns but
inadequate reasons not to get a proper diagnosis. The court noted Alex ―thinks she needs
the medication‖ but it was unclear if she actually needs it and the court was surprised
Clark admitted he prescribed a controlled substance to a five-year-old child without
having a firm diagnosis or even a follow-up diagnosis. The court stated that based on
Elizabeth‘s demeanor and testimony, the court believed she was ―really committed to the
use of this medicine.‖ The court added it disagreed with Elizabeth‘s argument Alex
should have the sole choice on this issue because there is no legal basis to allow a minor
to make a decision on the use of a controlled substance. The court concluded the
changed circumstance warranting modification of custody were the facts surrounding
why the court-ordered study was not completed and how Elizabeth interfered with it.
The court concluded the parties could not proceed forward with a second study under the
same custody arrangement.
The court mentioned it had considered the fact Alex was starting at a new
school, and Alex thought the double-blind study may interfere with her grades. The court
stated the best way to handle that issue was to let the doctors assist Alex, and because her
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teachers were going to be involved in the 30-day study, they would understand if there
was a dip in her grades.
Elizabeth argued there was no evidence she did not want the study and
there was no way to force Alex to cooperate with the test. The court replied Alex had
stated in chambers she would cooperate with the test. When Elizabeth questioned this
statement, the court reiterated, ―I talked to her about her feelings . . . [and] she‘s
concerned about . . . acting a little bit different‖ and about how she will be perceived by
her friends. The court had assured Alex there were four years of high school and
although the court wished the study had been completed last year, this was the right time
to let the doctors help and weigh in on the issue.
Before issuing a lengthy statement of decision, the court issued a tentative
decision indicating Thomas would be awarded sole legal custody and physical custody
during the time required for a new double-blind study. Thereafter, on October 7, 2011,
Elizabeth filed an ex parte application requesting emergency modification of the tentative
decision. Specifically, she requested a court order to require Thomas to take Alex to
dance and school activities and for Thomas to give Alex Adderall during custodial time.
Elizabeth also sought an updated child custody evaluation, a new child therapist, and for
modification of the tentative order requiring another double-blind study. Elizabeth stated
she asked Thomas to consider changing Alex‘s medication from Adderall to Vyvanse,
which is a similar stimulant medication but less likely to cause anxiety. Elizabeth stated
Alex was suffering from extreme anxiety and emotional outbursts. For example, Alex
had recently threatened to kill herself by opening a car door while the vehicle was
moving. The trial court denied Elizabeth‘s ex parte application to modify the tentative
decision.
A few days later, on October 11, 2011, the court issued a lengthy statement
of decision, making the following factual and legal findings: (1) no baseline was ever
13
established at any time for the need, use, or efficacy of Adderall for Alex; (2) Elizabeth
interfered with the double-blind study in violation of the April 19, 2010, order; and
(3) the court found there was ―a sufficient change in circumstances and legal justification
to give [Thomas] sole decision making authority regarding all matters relating to the
double-blind study, the doctors to be involved and implementation of medication or a
different protocol if necessary for the continued use of Adderall for [Alex].‖ In addition,
on the issue of credibility, the court found Thomas‘s testimony to be more credible than
Elizabeth‘s testimony.
The court stated it based the above findings on the ―expert‖ testimony of
Clark and Steinhoff. It summarized the relevant testimony of Clark as follows: Clark
could not confirm an ADHD diagnosis was ever made. He never spoke to Polly and did
not review any records before he administered Adderall to Alex. Clark confirmed he
relied solely on Elizabeth‘s reporting of Alex‘s behavior. Clark‘s testimony supported
the conclusion no baseline for the use of Adderall was ever established.
The court noted it found relevant Steinhoff‘s testimony a double-blind
study would determine Alex‘s ―‗best dose‘ which could be a placebo (zero)‖ and finding
the best dose is in Alex‘s best interest. Steinhoff testified the wrong dose could
negatively impact Alex‘s best interest and Steinhoff was unaware Elizabeth increased
Alex‘s dosage to 35 milligrams. Steinhoff stated it was important to know the child‘s
actual dose to conduct a reliable double-blind study. An incorrect dosage would create
an error in determining the correct dosage. Steinhoff opined if it was determined
medication did not help Alex, he would recommend stopping the medication.
The court also considered Thomas‘s request to change Alex‘s primary care
physician. It authorized Thomas to discharge Clark and find a new physician for Alex.
The court determined section 6924, regarding a child‘s ability to seek mental health
treatment without parental consent, was inapplicable in this case.
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As for the request for section 271 sanctions, the court determined $8,524.88
in sanctions (payable in monthly installments of $300) was warranted. After reviewing
Elizabeth‘s income and expense declaration and her testimony, the court concluded
sanctions would not create an unreasonable financial burden on her. The court reasoned
―the evidence supports a finding that [Elizabeth] interfered with the double-blind study
and therefore engaged in conduct that frustrated the policy of the law to promote
settlement and resolution of issues.‖
The court made the following final orders: (1) Elizabeth must pay the
sanction award; (2) a double-blind study will be conducted; (3) that Thomas have sole
―decision making authority regarding all issues relating to the double-blind study,
assessment and/or other matters and details relating to any ADHD reassessment or study,
including the authority to select all physicians connected with the study, determine the
participation of the parents in the study and/or assessment and select a new physician to
provide any narcotic or controlled substance, if found medically necessary, for any
ADHD condition; to monitor and control any prescribed narcotic, if necessary, including
Adderall, or any other narcotic or controlled substance and to monitor and control
compliance with physicians orders and recommendations whether it is to discontinue or
lower the narcotic or controlled substance or monitor in a different manner‖; (4) that
Thomas have ―sole authority to contact the doctors regarding all issues relating or
pertaining to the double-blind study, assessment and/or other matters and details
regarding any ADHD reassessment or study and/or narcotic or controlled substance, if
medically necessary, and that neither [Elizabeth] or her attorneys or agents may contact
the doctors, clinicians or health care providers without the knowledge and written consent
of [Thomas];‖ (5) Thomas ―shall have the authority to decide whether visitation and
physical custody shall be changed in order that the minor is in [his] sole physical custody
for the 30 day period during the double-blind study. In the event the minor is in
[Thomas‘s] custody for 30 days, he will provide transportation to and from school‖;
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(6) Thomas shall select a new pediatrician for Alex; (7) the parties are prohibited from
―doing anything to discourage the minor from participating or completing the
double-blind study or any other assessment for ADHD, including engaging in any act or
behavior or imparting any negative or derogatory comment, discussion or commentary
that would interfere or impede the reassessment or study‖; and (8) the parities shall
equally share in future costs and expenses for the double-blind study and any other
treatment recommended by the doctors relating to ADHD.
On November 17, 2011, the court ruled on Elizabeth‘s request for
need-based attorney fees and costs under section 2030. Although she was a certified
family law specialist and primarily represented herself in the case, Elizabeth stated it was
reasonably necessary for her to hire counsel to assist her. Elizabeth claimed she hired
Merritt McKeon, an experienced family law attorney, who was ―highly skilled in the
unfamiliar area of appellate law.‖ Elizabeth asserted Thomas had the ability to pay
$19,704 for McKeon‘s services and $2,375 in costs.
The court issued a lengthy memorandum denying Elizabeth‘s request for
attorney fees and costs. The court concluded Elizabeth was a successful family law
practitioner and Thomas was a successful civil litigator and they both had above average
earning capacities. The court determined Elizabeth had a greater financial need/hardship
than Thomas because her spouse lived on social security and had cancer. The court also
noted Elizabeth, being a family law attorney, had expertise in the area of law required by
this case. The court recalled Elizabeth ―actively represented herself by directing the
order of evidence, objecting to questions and responding to objections directed at her.
She also testified on her own behalf and cross examined [Thomas].‖ The court
acknowledged McKeon was also present during the case, but it concluded ―her role was
more as an assistant.‖ The court recalled, ―McKeon characterized her role in the case as
a ‗good friend‘ and as being present to ‗help her as an attorney and counselor at law.‘‖
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In a declaration McKeon explained her role was to assure Elizabeth‘s
―‗constitutional issues are preserved for appeal, supporting her while she self represents
. . . .‘ (Italics added.)‖ The court agreed with Thomas‘s contention that if Elizabeth, a
certified family law specialist, decided to have an attorney at trial to preserve appellate
issues, she should do so at her own expense. The court stated Elizabeth did not need
assistant counsel in this case. It noted the legal issues were of moderate difficulty and
were primarily of a factual nature. The court also took into consideration the fact
Elizabeth was ordered to pay $8,524.88 in sanctions for violating court orders. The court
agreed with Thomas that awarding attorney fees would reward Elizabeth for her
misconduct and the award would be contrary to the spirit of section 271.
However, the court rejected Thomas‘s argument attorney fees should not be
awarded due to a perceived ethical violation concerning McKeon. It concluded McKeon
represented Elizabeth at the same time she was representing Elizabeth‘s former client,
Mrs. Juergens. This dual representation created a conflict of interest because Juergens
sued Elizabeth for legal malpractice. The court recognized the conflict of interest but
concluded it was not a reason to preclude compensating McKeon for legal services
properly performed in this case.
In December 2011, Elizabeth appealed from the court‘s (1) October 7,
2011, order denying her ex parte request to, inter alia, stop the tentatively ordered double-
blind study, (2) the October 11, 2011, decision ordering sanctions, the double-blind
study, and modifying legal and physical custody, and (3) the November 17, 2012, order
denying her request for attorney fees and costs.
On December 20, 2012, after the appeal was partially briefed, Thomas filed
a motion to dismiss and requested sanctions. He explained many of the issues raised in
the appeal had been rendered moot because the 30 day double-blind study had been
completed. He sought $25,725 in sanctions due to the substantial time he spent
defending against a purportedly frivolous appeal.
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Thomas also filed a motion to strike portions of the opening brief relating
to instances Elizabeth had stated facts not supported by the record, and without citation to
the record. He also alleged Elizabeth referred to documents that are not part of the record
on appeal. Elizabeth opposed these motions, and we informed the parties the matters
would be decided in conjunction with the appeal.
Two weeks before the scheduled oral argument date, Elizabeth filed a
motion to augment the record with copies of the 730 evaluation and Steinhoff‘s
deposition (the appellant‘s appendix only contained the parties‘ respective summaries of
his testimony). This court granted the motion over Thomas‘s opposition, and we gave
Thomas an opportunity to file a letter brief regarding any issues raised by the augmented
record.
II
A. Appeal from the October 7, 2011, Order
A few months after the trial court issued its tentative decision indicating
Thomas would be awarded sole legal custody regarding medical decisions and physical
custody during the 30 days required for a new double-blind study, Elizabeth filed an ex
parte application requesting the order be changed due to emergency circumstances.
Elizabeth appeals from the order denying her ex parte application. We need not review
her attempt to modify a tentative decision. Any right to interim relief was rendered moot
when the court issued its final order and the statement of decision on October 11, 2011,
modifying legal custody and ordering a double-blind study. The general rule is that ―[a]n
appeal should be dismissed as moot when the occurrence of events renders it impossible
for the appellate court to grant appellant any effective relief. [Citation.]‖ (Cucamongans
United For Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th
473, 479.) In short, the October 11 final order renders it impossible for this court to grant
Elizabeth any effective relief from the denial of her ex parte application challenging an
interim decision. We dismiss Elizabeth‘s appeal from the October 7, 2011 interim order.
18
B. Appeal from the October 11, 2011, Order
We review only the parts of this final order that have not been rendered
moot.4 To briefly summarize, the court ordered a double-blind study and awarded
Thomas sole ―decision making authority‖ related to the study and all other matters
relating to his daughter‘s ADHD assessment. This included selecting the physicians to
conduct the study and the participants to report on Alex during the study. Thomas was
also given authority to monitor and control any medication found to be medically
necessary for ADHD. Thomas had ―sole authority to contact the doctors regarding all
issues relating or pertaining to the double-blind study, assessment and/or other matters
and details regarding any ADHD reassessment or study and/or narcotic or controlled
substance . . . .‖5 Moreover, the court gave Thomas the authority to temporarily change
the physical custody agreement for the 30-day period during the double-blind study and
to select a new pediatrician for Alex. Both parties were prohibited from doing anything
to interfere with the study or discouraging Alex from participating in the study. And
finally the parties were ordered to share equally in the cost of the study.
As noted in Thomas‘s motion to dismiss, the orders relating to the
implementation of the double-blind study were rendered moot because the double-blind
study was successfully completed on March 20, 2012. As noted above, it is impossible
4 Because not all of the appeal was rendered moot by the successful
double-blind study, we deny Thomas‘s motion to dismiss and for sanctions. The appeal
is not frivolous or completely moot. Moreover, we also deny his motion to strike the
opening brief. While clearly not the model of appellate practice, we have reviewed the
briefing and belated augmentation.
5 In her reply brief, Elizabeth asserts there is no evidence Adderall is a
narcotic. Both Thomas and the court referred to it as a narcotic. The Food and Drug
Administration has required a black box warning on Adderall, and it contains
amphetamines. (http://www.fda.gov/Drugs/DrugSafety/ucm277770.htm)
19
for this court to give Elizabeth any effective relief on this point.6 Similarly, to the extent
the court temporarily modified physical custody for the duration of the double-blind
study, this issue is also moot because once the study was successfully completed,
physical custody was restored to the prior status quo. In addition, the parties agree Alex
has been going to a new pediatrician for over a year, and it appears Elizabeth is not
pursuing appellate review of this portion of the court‘s order. Elizabeth does not allege
this new choice in physicians was erroneous, or that Alex should be returned to Clark‘s
care. For the reasons stated above, we will not review any of the above listed court
orders in this opinion.
However, contrary to Thomas‘s contention, the entire appeal is not moot.
The court‘s order modifying the legal custody arrangement is an appropriate issue to be
reviewed for abuse of discretion. Child custody orders are modifiable whenever the court
finds a change is ―necessary or proper‖ in the child‘s best interests. (§§ 3022, 3088.)
Family law courts must look at all circumstances bearing on the child‘s best interests,
with the primary focus on the child‘s health, safety, and welfare. (In re Marriage of
Burgess (1996) 13 Cal.4th 25, 31-32 (Burgess); § 3020.) There is no preference or
presumption in favor of any particular arrangement for custody or visitation. (§ 3040,
subd. (c).)
Custody arrangements under an existing order, such as the case here, can
only be changed upon a showing of a substantial change in circumstances so affecting the
child that modification is essential to the child‘s welfare. (Burgess, supra, 13 Cal.4th at
p. 37.) Absent such a showing, any modification constitutes an abuse of discretion.
6 It appears from the briefing that Elizabeth contends the double-blind study
was faulty for several reasons. She forgets review of the test results is not within the
scope of this appeal. The study took place long after the orders she is appealing from.
We have denied her request for judicial notice of the study results because it is not
relevant to the issues raised in this appeal. And in any event, it is not our place to review
the scientific method of the study in the first instance. If Elizabeth feels the study was
faulty or defective, her remedy is to seek relief in the trial court.
20
(Ibid.) The moving party has the two-fold burden of showing how circumstances have
changed and why the custody modification would be in the child‘s best interests. (In re
Marriage of McLoren (1988) 202 Cal.App.3d 108, 111, 114 [standard applies on requests
to change legal custody].)
We review a decision modifying custody under an abuse of discretion
standard. (Burgess, supra, 13 Cal.4th at p. 32.) A greater showing is required to modify
a permanent custody order than is required to modify a temporary custody order.
(Montenegro v. Diaz (2001) 26 Cal.4th 249, 256-257.)
Here, the parties‘ permanent custody order gave the parents joint legal and
physical custody, with primary physical custody to Elizabeth. Finding a change of
circumstances, the court modified the parties‘ legal custody arrangement, giving Thomas
sole legal authority over medical matters relating to Alex‘s ADHD assessment and
treatment. The court stated it was not going to change any other part of the legal custody
arrangement. Given the record on appeal, we find no abuse of discretion.
As the trial court observed, and the record reflects, Elizabeth showed highly
questionable judgment when it came to the issue of medicating Alex for ADHD. The two
experts, Clark and Steinhoff, agreed it would not be in Alex‘s best interests to be given
the wrong dose of Adderall, or worse, medication that was not necessary. What was
brought to light through Clark‘s and Steinhoff‘s testimony was the immediate need to
determine what, if any, was the correct dosage of Adderall Alex required. Elizabeth
sabotaged UCI‘s double-blind study by misreporting Alex‘s current dosage and by
insisting Alex must be medicated. As noted by the judge, ―I judge the demeanor of your
testimony . . . Quite frankly from this judge‘s perspective I think you are really
committed to the use of this medication.‖ The court reasonably concluded Elizabeth
understood, especially as a family law practitioner, her obligation under an order of joint
legal custody to exchange information regarding Alex‘s medication. The information she
hid from Thomas and UCI reflected a clear bias towards the medicine and a reasonable
21
basis for the court to conclude Elizabeth‘s bias impaired her ability to make appropriate
medical decisions concerning Alex‘s ADHD diagnosis. There was ample evidence she
interfered with the study, the most telling was her misrepresentations to UCI that Alex
refused the study‘s pill when in fact Elizabeth had never taken it out of the study‘s sealed
medicine tray.
It cannot be said the court abused its discretion in finding a change of
circumstances regarding Elizabeth‘s ability to act in her daughter‘s best interest and this
change warranted modifying the legal custody on this limited issue. The court only gave
Thomas the final say regarding Alex‘s diagnosis and treatment of ADHD, not all health
care decisions. ―Given the trial court‘s ‗very extensive discretion in determining what
will be in the best interests of [the] child‘ [citation], and the demonstrated need to provide
an appropriate decision maker for [this minor‘s particular] medical needs (see In re Eric
B. (1987) 189 Cal.App.3d 996, 1005-1006), the trial court‘s order in this respect was
proper.‖ (Cassady v. Signorelli (1996) 49 Cal.App.4th 55, 62 [court ordered father have
sole decision making authority regarding his child‘s health care decisions in event of
disagreements between the parents because mother‘s ability to make decisions was
impaired].) A proper diagnosis regarding ADHD was clearly in Alex‘s best interest, and
Elizabeth demonstrated a bias and impaired decision-making ability with respect to this
issue.
Stated another way, the court‘s order reflects it considered the parents‘
disagreement over how to approach a medical diagnosis, and based on expert testimony,
it reasonably ruled Thomas‘s approach was in the minor‘s best interests and must be
supported. Because Elizabeth (by her words and actions) demonstrated she was
unwilling to cooperate with any future diagnostic studies, the court modified the custody
order to insure Alex‘s best interests would be honored.
We note Elizabeth‘s briefing fails to address whether the trial court abused
its discretion in modifying the legal custody order. Instead, she presents a lengthy legal
22
discussion suggesting this court must review de novo whether Alex‘s constitutional rights
were violated by the family law court‘s order. She submits authority to support her legal
theory Alex has a constitutional right to medical privacy. She concludes Alex should
have the sole decision-making power over the treatment of her mental health. (Citing,
§ 6924 [minor‘s right to seek mental health treatment]; American Academy of Pediatrics
v. Lungren (1997) 16 Cal.4th 397-398 [law requiring pregnant minor to secure parental
consent before obtaining abortion violates minor‘s right to privacy].) Elizabeth does not
explain how this body of law applies to a diagnostic test used to determine the correct
dosage of a prescription stimulant, or why a minor would have the absolute ―right‖ to
ingest any medication without a proper diagnosis. Elizabeth simply concludes the court
violated Alex‘s constitutional rights by placing Thomas in charge of the double-blind
study because the study lacked Alex‘s consent and would be performed over Alex‘s
objection.
The lengthy constitutional rights discussion is interesting but irrelevant
because Elizabeth presented no evidence in the trial court to suggest there was a violation
of Alex‘s constitutional rights. Simply stated, there was no evidence to support
Elizabeth‘s claim Alex did not consent to the double-blind study, or that the diagnostic
test would be forced over Alex‘s objection. To the contrary, the evidence showed Alex
initially agreed to undergo the first double-blind study in 2009, but it was aborted due to
Elizabeth‘s interference. Alex then agreed to resume the test, but this proved impossible
because Elizabeth refused to give Thomas the medicine tray. We have no evidence in
this record as to what happened before the second blind study other than the court‘s
representation Alex agreed to the diagnostic test during their private discussion in
chambers. As pointed out by Thomas in his briefing, there is nothing in the record
suggesting the trial court threatened to punish or hold Alex in contempt if she did not
undergo the study.
23
It appears Elizabeth‘s constitutional argument is based entirely on her own
representations of what she thinks her daughter wants. This is an insufficient basis to
establish a constitutional violation. Moreover, we have no reason to doubt the trial
court‘s conclusion Elizabeth is not a credible witness. At the hearing, Elizabeth‘s
testimony on several key points was impeached. No sound basis exists for Elizabeth‘s
assertion the court and Thomas are forcing Alex to participate in a diagnostic test without
her consent and in violation of her constitutional rights.
Elizabeth also suggests the court‘s order compelling a double-blind study
amounted to a statutory violation under section 6924. That section authorizes a minor,
12 years or older, to obtain, without parental consent, mental health treatment or
counseling on an outpatient basis. However, a minor is not authorized to receive
convulsive therapy, psychosurgery, or psychotropic drugs without the consent of the
minor‘s parent or guardian. (§ 6924, subd. (f).)
Elizabeth notes only one parent needs to consent to the use of psychotropic
drugs, and the statute does not permit one parent to deny drugs over the child‘s objection.
Elizabeth next points out both she and Alex consent to the treatment of her condition with
medication. We conclude the section is inapplicable for the simple reason the
double-blind study is not a form of treatment or counseling. It is a diagnostic test. The
court and Thomas are not unreasonably seeking to deny Alex medication but rather
seeking a correct diagnosis required for the proper dosage of medication. We conclude
Elizabeth‘s section 6924 argument provides further support for the court‘s conclusions
about Elizabeth‘s poor parenting judgment and extreme bias in favor of medicating Alex,
warranting a change of legal custody. Her alarming and tenacious commitment to
administer psychotropic drugs to a minor, without a proper diagnosis, and after several
experts have recommended non-invasive diagnostic testing, is very disconcerting.
24
C. Appeal from the October 11, 2011, Sanctions Order
The court ordered Elizabeth to pay $8,524.88 in sanctions (payable in
monthly installments of $300) pursuant to section 271. The court noted it reviewed
Elizabeth‘s income and expense declaration and her testimony and it concluded sanctions
would not create an unreasonable financial burden on her. The court reasoned ―the
evidence supports a finding that [Elizabeth] interfered with the double-blind study and
therefore engaged in conduct that frustrated the policy of the law to promote settlement
and resolution of issues.‖
Section 271, subdivision (a), provides ―Notwithstanding any other
provision of this code, the court may base an award of attorney‘s fees and costs on the
extent to which the conduct of each party or attorney furthers or frustrates the policy of
the law to promote settlement of litigation and, where possible, to reduce the cost of
litigation by encouraging cooperation between the parties and attorneys. An award of
attorney‘s fees and costs pursuant to this section is in the nature of a sanction. In making
an award pursuant to this section, the court shall take into consideration all evidence
concerning the parties‘ incomes, assets, and liabilities. The court shall not impose a
sanction pursuant to this section that imposes an unreasonable financial burden on the
party against whom the sanction is imposed. In order to obtain an award under this
section, the party requesting an award of attorney‘s fees and costs is not required to
demonstrate any financial need for the award.‖
―Sanctions under section 271 are committed to the discretion of the trial
court, and will be reversed on appeal only on a showing of abuse of that discretion, that is
‗only if, considering all of the evidence viewed more favorably in its support and
indulging all reasonable inferences in its favor, no judge could reasonably make the
order.‘ [Citations.]‖ (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1524.)
On appeal, Elizabeth asserts the court abused its discretion by sanctioning
her for her daughter‘s refusal to participate in the double-blind study. She reasons, ―It is
25
hard to see what Elizabeth could have done, short of giving up primary custody . . .
during the duration of the initial blind study in the first place, in order to assure that Alex
would have complied with the protocols of the test.‖ She maintains Alex is old enough to
have a strong opinion about issues such as custody, abortions, and birth control pills, and
therefore Alex‘s mother should not be sanctioned simply because Alex adamantly refused
to participate in the study. Elizabeth claims she is simply championing her child‘s right
to be the decision-maker in her ADHD treatment. She portrays her actions regarding the
double-blind study as not being related to litigation conduct but rather a mother
―respecting a mature young teenager‘s distress and withdraw of her assent to continued
use of the placebo.‖
What Elizabeth is attempting to do on appeal is simply reargue the facts.
But our review is limited to whether the court abused its discretion. And this was not a
close case. There was ample evidence to support the court‘s conclusion that but for
Elizabeth‘s conduct there would have been no need for Thomas‘s OSC seeking a second
blind study and a change of legal custody regarding the ADHD diagnosis. Elizabeth
exhibited a clear bias against the diagnostic study or any diversion from Alex‘s
medication dosages. Elizabeth sabotaged any chance of the study‘s success by resuming
Alex‘s Adderall medication after just two days into the study due to the fear a placebo
would negatively affect Alex‘s dance competition weekend. She reported the wrong
dosage to UCI and failed to timely advise anyone when she stopped the study. Elizabeth
administered and concealed a higher dosage of Adderall before and during the study, and
then refused to return the medication tray to Thomas when Alex agreed to restart the
study. Elizabeth then withdrew her consent to any future diagnostic studies and
continued to see Clark for additional prescriptions of Adderall, knowing he did not have a
proper baseline or diagnostic testing to support the dosages. The record is replete with
rude and hostile correspondence to Thomas. The court reasonably concluded it was
26
Elizabeth‘s intentional misconduct and impaired judgment that created additional and
unnecessary litigation in this case. The sanction order was not an abuse of discretion.
D. Appeal from the November 17, 2011, Order Denying Attorney Fees
―During the pendency of a dissolution action, a court may order that one
party pay some or all of the other party‘s legal fees and costs. (§ 2030 et seq.)
‗―California‘s public policy in favor of expeditious and final resolution of marital
dissolution actions is best accomplished by providing at the outset of litigation, consistent
with the financial circumstances of the parties, a parity between spouses in their ability to
obtain effective legal representation.‘‖ [Citation.]‖ (In re Marriage of Keech (1999)
75 Cal.App.4th 860, 866 (Keech).) ―It may be a little surprising to some, but the purpose
of section 2030 is not the redistribution of money from the greater income party to the
lesser income party. Its purpose is parity: a fair hearing with two sides equally
represented. The idea is that both sides should have the opportunity to retain counsel, not
just (as is usually the case) only the party with greater financial strength. [Citation.]‖
(Alan S. v. Superior Court (2009) 172 Cal.App.4th 238, 251-252 (Alan S.).)
―[A] motion for attorney fees and costs in a dissolution proceeding is left to
the sound discretion of the trial court. [Citations.] In the absence of a clear showing of
abuse, its determination will not be disturbed on appeal. [Citations.] ‗[T]he trial court‘s
order will be overturned only if, considering all the evidence viewed most favorably in
support of its order, no judge could reasonably make the order made. [Citations.]‘
[Citation.]‖ (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 768-769; Keech, supra,
75 Cal.App.4th at p. 866.)
However, ―[t]he trial court‘s discretion in this area is . . . limited by the
statutes which enable the exercise of that discretion. [¶] Under section 2030,
subdivision (a): ‗During the pendency of a proceeding for dissolution of marriage . . . ,
the court may, upon (1) determining an ability to pay and (2) consideration of the
respective incomes and needs of the parties in order to ensure that each party has access
27
to legal representation to preserve all of the party‘s rights, order any party . . . to pay the
amount reasonably necessary for attorney‘s fees and for the cost of maintaining or
defending the proceeding.‘ (Italics added.) Under section 2032: ‗(a) The court may
make an award of attorney‘s fees and costs under [s]ection 2030 . . . where the making of
the award, and the amount of the award, are just and reasonable under the relative
circumstances of the respective parties. [¶] (b) In determining what is just and reasonable
under the relative circumstances, 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 [s]ection 4320 [the factors for
determination of ―permanent spousal support‖] . . . . Financial resources are only one
factor for the court to consider in determining how to apportion the overall cost of the
litigation equitably between the parties under their relative circumstances.‘ (Italics
added.)‖ (Keech, supra, 75 Cal.App.4th at pp. 866-867.)
The trial court‘s written memorandum reflects consideration of Thomas‘s
ability to pay Elizabeth‘s legal fees, the respective litigation needs of the parties, and
whether the fees incurred were reasonably necessary as required by sections 2030 and
2032. Accordingly, we conclude the court did not abuse its discretion with respect to the
fee award.
Turning to the first factor considered by courts in awarding need-based
fees, we conclude the court correctly considered the parties‘ respective ability to pay.
The court concluded both Thomas and Elizabeth had the ability to pay their own attorney
fees, and that Thomas had the ability to pay Elizabeth‘s fees. This conclusion is well
supported by the record. It was undisputed both parties were attorneys with average
earning capacities. Elizabeth stated her income was $130,000 per year, but Thomas
submitted evidence the figure was closer to 150,000 per year. Thomas reported his
income averaged $8,100 a month ($97,200 a year), but Elizabeth focused on six
28
profitable months of reported income and determined his monthly income was closer to
$23,000 per month ($276,000 a year). In addition, both parties had access to other
accounts. Thomas had $135,000 in his accounts, rental income, and real estate assets.
Elizabeth stated she was using her husband‘s $40,000 savings account to pay bills. She
also received $900 a month in child support. Elizabeth and Thomas could afford
McKeon‘s $19,704 legal bill. But that was not the end of the trial court‘s inquiry, it also
must consider the parties‘ expenses in determining ability to pay. (Alan S., supra,
172 Cal.App.4th at p. 253.)
The parties disputed the amount of expenses that could be attributed to each
of them. Thomas reported he paid over $8,000 in expenses a month. Elizabeth claimed
this number was incorrect and Thomas received support from his girlfriend. Elizabeth
reported she paid over $17,000 in expenses per month. However, Thomas pointed out
why some of Elizabeth‘s expenses were exaggerated, miscalculated or had been
eliminated. He presented evidence Elizabeth‘s expenses were more reasonably in the
$10,000 range. We conclude the trial court appropriately considered all the
circumstances and reasonably determined Elizabeth had a greater financial hardship than
Thomas. Her expenses were higher, she had lost some earnings while litigating the case,
and her current husband lived on social security and was suffering from cancer.
Section 2032, subdivision (b), states ―[f]inancial resources are only one
factor for the court to consider in determining how to apportion the overall cost of the
litigation equitably between the parties under their relative circumstances.‖ The award
should be based on ―the ‗big picture‘ of the case‖ and ―not a truncated process where the
trial court simply . . . ascertains which party has the higher nominal income relative to the
other.‖ (Alan S., supra, 172 Cal.App.4th at p. 254.) In this case, it appears the court
appropriately and heavily relied on these other factors.
29
For example, the court considered if each side had access to legal
representation. The award need only cover the amount reasonably necessary to present
the case adequately. The court determined Elizabeth more than adequately represented
herself and McKeon occupied the limited role of assistant. In other words, McKeon
billed attorney fees that were not reasonably necessary for maintaining or defending the
proceedings. This ruling is supported by the record.
It is well settled, ―An attorney who chooses to represent himself or herself,
and does not pay or become liable to pay any sum out of pocket for legal services, may
not recover reasonable attorney fees as compensation for the time and effort expended by
the attorney and the professional business opportunities lost as a result. [Citation.] An
attorney litigating in propria persona does not ‗incur‘ compensation for the attorney‘s
time and lost business opportunities. [Citation.]‖ (Mix v. Tumanjan Development Corp.
(2002) 102 Cal.App.4th 1318, 1323 (Mix).) Accordingly, Elizabeth, as a self-represented
litigant, was not entitled to recover attorney fees for her time litigating the case.
Elizabeth improperly twists the court‘s ruling to mean the court held she
was not entitled to be represented by counsel at the hearing because she was a certified
family law specialist. She notes Thomas had an attorney assist him throughout the
proceedings, and she too was entitled to ―co-counsel.‖ We agree Elizabeth could have
hired McKeon to represent her at the hearing and seek fees for those legal services.
However, that is not what happened in this case. McKeon did not act as the attorney of
record at any time during the hearing. She said and did very little during the proceedings.
The record reflects Elizabeth conducted the hearing as a self-represented litigant. She
directed the order of evidence, objected to questions, and responded to objections. She
testified on her own behalf and made objections to questions while she was on the
30
witness stand. When questioned about her role, McKeon candidly admitted she was a
friend ―supporting‖ Elizabeth‘s self representation.7
We recognize there are cases holding pro. per. litigants can recover attorney
fees incurred by attorneys retained to assist them on specific parts of the litigation. (See
Mix, supra, 102 Cal.App.4th at p. 1323.) Moreover, the California Rules of Court, rule
5.425 (hereafter Rule 5.425) specifically recognizes ―limited scope representation‖ in
family law cases. A pro. per. litigant may hire an attorney for legal services limited to
specific tasks. The representation can be noticed or undisclosed. The rule specifically
permits a litigant to seek attorney fees incurred as a result of ―document preparation‖ by
undisclosed attorney assistance. (Rule 5.425.)
We find the Mix case instructive. There an attorney (Terence Mix) filed an
action in propria persona against the landlord of the building where he rented office
space. (Mix, supra, 102 Cal.App.4th at p. 1321.) This action was consolidated with the
landlord‘s separate action alleging breach of the lease. Under the terms of the lease, the
prevailing party in an action was entitled to reasonable attorney fees. Mix retained a law
firm to help him ―to analyze legal and factual issues, help with trial strategy, and assist
[him] in all aspects of the litigation, including trial preparation.‖ (Ibid.) One of the
attorneys from the firm also assisted Mix during trial, drafting in limine motions, jury
7 Elizabeth asserts the court showed improper bias when it questioned
McKeon about her role in the case. Nonsense. The court questioned McKeon when
Elizabeth was on the witness stand and insisted on making her own objections. McKeon
advised the court she would not be making objections and she confirmed her limited role
in the litigation was as a friend because the litigation was stressful for Elizabeth. Trial
courts possess broad power to control their courtrooms and maintain order and security.
(Code Civ. Proc., § 128, subd. (a)(1)-(5); People v. Woodward (1992) 4 Cal.4th 376,
385.) It would be highly confusing and inappropriate to have both McKeon and
Elizabeth simultaneously object to questions while she was a witness. The court‘s
statements about McKeon‘s limited role in the case were based on how McKeon
described herself in the courtroom and does not demonstrate bias.
31
instructions, and a special verdict form, and conducting the examination of Mix. The
jury found in favor of Mix in both cases and he filed a motion to recover attorney fees
owed to the law firm for its assistance, not fees for his own time. The appellate court
agreed with the trial court‘s ruling granting the motion.
The court in Mix stated, ―An individual who elects to represent himself or
herself may also retain counsel to assist in the prosecution or defense of the action. The
retained attorney hired to assist a litigant in propria persona has an attorney-client
relationship with the litigant and owes the litigant fiduciary and ethical obligations. Such
a retained attorney serves the purposes of providing an independent third party‘s
judgment and a means of examination if the litigant is also a witness. ‗Legal counsel is
just as necessary—perhaps more necessary—for the party who endeavors to represent
himself, as it is for the person who has counsel of record. We certainly think it unwise to
adopt a policy which would dissuade litigants from retaining attorneys to assist in
lawsuits before the attorney appears with respect to filed documents.‘ . . . If an attorney is
in fact retained by the pro se litigant and renders legal services assisting in the lawsuit,
the attorney need not be an attorney of record in order for the reasonable fees of the
attorney to be awarded to a prevailing party. . . . Moreover, a rule permitting a litigant in
propria persona to recover attorney fees for the legal services of assisting attorneys may
be applied equally to both attorney and nonattorney pro se litigants.‖ (Mix, supra,
102 Cal.App.4th at p. 1324.)
The court concluded, ―In this case, Attorney Mix elected to represent
himself in the prosecution and defense of the actions on the lease agreement. He is not
entitled to nor does he seek compensation for the time he spent litigating the action.
However, Attorney Mix retained [independent counsel] to perform legal services in
addition to his own services. Attorney Mix incurred and paid compensation to [his
counsel] for legal services rendered in connection with the litigation. . . . [¶] There is no
32
authority or reason to require a formal association on the record in order for attorney fees
to be recoverable.‖ (Mix, supra, 102 Cal.App.4th at pp. 1324–1325.) Thus, the Mix case
holds a self-represented litigant can retain counsel to assist them. It is important to
recognize the court in that case awarded fees under a contract provision, and it did not
consider the issue of need-based attorney fees.
In the case before us, the trial court properly recognized Elizabeth, like
attorney Mix, elected to represent herself in the prosecution and defense of the OSC, and
she was not entitled to compensation for the time spent litigating the action. The court
also correctly acknowledged McKeon‘s limited role in the proceedings as Elizabeth‘s
assistant. In short, Elizabeth hired McKeon to perform legal services in addition to her
own services. Elizabeth fails to appreciate that while she can retain counsel to assist her
with specific legal tasks, her request to recover those supplementary fees under
section 2030, on a ―needs‖ basis, requires a determination the additional legal
representation was reasonably necessary for her to adequately maintain or defend the
proceedings. (§ 2030, subd. (a)(1).) That issue was not before the court in the Mix case
where fees were awarded based on a contract provision. Here, the court must consider
what is ―just and reasonable‖ under the totality of the circumstances and Thomas‘s ability
to pay is not the exclusive consideration in fixing the amount.
When considering the ―reasonable‖ amount of needs-based fees and costs
award, the court must consider the nature and complexity of the litigation, the amount
involved, the skill required and employed in handling the litigation, the attention given,
the success of counsel‘s efforts, the respective attorneys‘ professional standing and
reputation, the intricacies and importance of the litigation, the labor and necessity for
skilled legal training and ability in trying the case, litigation costs already incurred, and
time consumed. (Keech, supra, 75 Cal.App.4th at p. 870.)
33
The record shows the court carefully considered these factors. It
determined the litigation concerning the OSC was of moderate difficulty. The level of
skill required for the litigation was well within Elizabeth‘s area of expertise, and there
were no issues presented at the hearing that required the additional assistance of counsel.
McKeon stated her role was as a ―back up‖ attorney, which the court determined was
ultimately unnecessary. In addition, the court noted McKeon billed for time unrelated to
the hearing, and her efforts at the hearing were overall unsuccessful. For example,
McKeon billed for her contribution to constitutional arguments and the applicability for
section 6924 during closing arguments, which were rejected by the court. She made a
total of 10 objections during the 7-day hearing, the majority of which were overruled. In
Elizabeth‘s declaration supporting her request for fees, she asserted McKeon was hired to
assure constitutional issues were preserved for appeal. As aptly stated by Thomas in his
briefing, this type of representation goes far beyond ensuring the parties are in a position
of relatively equal litigating strength. There is no evidence suggesting Thomas had an
attorney present at the hearing to simply observe and preserve appellate issues. It was not
an abuse of discretion for the trial court to hold that if Elizabeth, a certified family law
specialist, decided to retain counsel to preserve appellate issues, she should certainly do
so at her own expense. Under the parity element, Thomas need not pay for Elizabeth‘s
additional legal services that were not reasonably necessary for resolution of the OSC.
The other factor the court considered was that Elizabeth‘s conduct during
the litigation warranted over $8,000 in sanctions. Elizabeth cites to no authority
supporting her argument the court should not have considered the sanctions award. In the
case, In re Marriage of Rosen (2002) 105 Cal.App.4th 808, 830, a different panel of this
court held attorney fees awarded to wife ―must be reduced by the amount of any
sanctions awarded‖ in husband‘s favor. While not a reason to automatically deny need-
based fees, the award of section 271 sanctions is certainly an appropriate factor to
consider when determining the amount of fees under section 2030.
34
III
Appellant‘s appeal of the October 7, 2011 interim order is dismissed. All
other orders are affirmed. We deny Respondent‘s motion to dismiss and to strike the
opening brief. We deny Appellant‘s motion to sanction Respondent for filing a motion to
dismiss. Respondent shall recover his costs on appeal.
O‘LEARY, P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
35