Difficult Father to Pay $200K in Attorneys’ Fees
A California Appellate Court has ruled that a Father’s persistent resistance to disclosing evidence of his financial situation “disentitles” him to appeal an award of attorney’s fees to Mother on grounds of insufficient evidence and dismisses Father’s appeal. In the case of In re Marriage of Hofer, Mother and Father were married in 1991 and later had two children. Mother did not work outside the home during the parties’ marriage. Father, whose ownership interests in several family-owned businesses provided him substantial income, was the sole manager of those assets.
On January 9, 2009, Father filed for divorce, claiming among other things that his business ownership interests were his separate property. Mother sent Father two sets of demands for production of documents and one set of interrogatories, seeking to explore possible community property component in Father’s business interests and assets, but Father did not provide sufficient responses. Mother then moved to compel further responses from him. Trial Court granted her motion and ordered Father to pay sanctions of $7,500.
Meanwhile, Mother filed a new motion to compel Father’s attendance at a deposition and for him to produce documents at his deposition. Trial Court appointed a retired judge (Judge) to act as a discovery referee. Judge found that Father had been properly served, but failed to show up for his deposition. Judge recommended that Trial Court grant Mother’s motion and order Father to pay sanctions of $5,200, plus $470 for costs. Trial Court adopted that recommendation as its order. Father then appeared for his deposition, but failed to bring the requested documents. Mother then moved to compel production of those documents and for sanctions deeming Father’s alleged separate property business interests as parties’ community property. Judge found that the proposed sanctions were “draconian and disfavored,” and recommended giving Father one more chance to produce the documents before Trial Court imposed such sanctions. Judge then recommended that Trial Court order Father to pay sanctions of $14,600 for attorney’s fees and $40 for costs. Again, Trial Court adopted that recommendation as its order.
Mother then moved for attorney’s fees award under California Family Code Section 2030 [award of reasonable fees based on need and ability to pay]. After a hearing, Trial Court found that Mother claimed no monthly income, while Father stated that his monthly income was $24,000, with monthly expenses of $48,000. Trial Court further found that Mother had incurred attorney’s fees and costs of $164,982, of which $47,734 had been paid by Father. Father, on the other hand, had paid his attorneys more than $300,000 to date. Trial Court noted that Father’s failure to respond to numerous discovery requests precluded Mother from seeking child or spousal support orders, and that ongoing discovery disputes prevented Trial Court from knowing any more about Father’s financial situation than the little he divulged. Given that Father was able to pay his attorneys $300,000, and Mother had no resources of her own, Trial Court ordered Father to pay $200,000, as his contribution to Mother’s attorney’s fees and costs.
Claiming that Trial Court’s fee order was not supported by sufficient evidence, Father appealed. Now, California Court of Appeals, has dismissed Father’s appeal. The Appellate Court has ruled that (1) Father may not be heard to complain about lack of evidence when his own refusal to provide discovery created that situation; (2) the “disentitlement doctrine” permits Appellate Court to stay or dismiss an appeal of a party who refuses to obey Trial Court’s orders; (3) the application of “disentitlement doctrine” is appropriate here because Father has refused to comply with three separate Trial Court orders compelling responses to discovery requests; and (4) Trial Court was not required to wait to order fees until Father was willing to provide discovery. In a side note, the Appellate Court says that Father’s refusal to comply with discovery requests gives Trial Court “little reason” to find his statements about his finances credible, and that Trial Court has discretion to make a fee award that requires payor to borrow funds to pay it.