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CERTIFIED FOR PUBLICATON
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
In re Marriage of JOHN M. HOFER and
LISA M. HOFER.
2d Civil No. B228461
(Super. Ct. No. D331366)
JOHN M. HOFER,
LISA M. HOFER,
In this marital dissolution action, the trial court orders husband to pay
wife's attorney fees and costs pursuant to Family Code section 2030.1 Husband appeals
and contends the evidence of his financial circumstances is insufficient. Perhaps. But
here sufficiency of the evidence is beside the point. Husband chose not to disclose
evidence of his financial circumstances despite three separate discovery orders and
sanctions. This choice "disentitles" husband to a choice accorded most litigants, the
choice to appeal. The appeal is dismissed.
All statutory references are to the Family Code unless stated otherwise.
John and Lisa Hofer were married in 1991.2 They have two minor children.
John filed a petition for dissolution of the marriage on January 9, 2009.
Lisa did not work outside the home during the marriage. John has an
ownership interest in several business entities owned by his family. Within the marriage,
John was the sole manager of these assets. Information regarding their value, income
stream and possible community ownership is solely within his knowledge. It is
undisputed that John has substantial income and assets derived from his family's
businesses. How substantial? Lisa has been unable to discover.
Lisa issued two sets of demands for production of documents and one set of
interrogatories. John failed to provide sufficient responses to three discovery requests.
Lisa moved to compel responses. The trial court granted the motion and sanctioned John
$7,500. It noted that a new motion to compel had been filed. The court said it would
appoint a discovery referee to rule on further discovery disputes.
Lisa's new motion was to compel John to appear for a deposition and
produce documents. The trial court appointed Retired Judge Melinda Johnson as
discovery referee. The referee found that John was properly served, but he refused to
appear for his deposition. The referee recommended the court grant Lisa's motion and
sanction John $5,200 in attorney fees and $470 in costs. The court adopted the
John appeared for the deposition as ordered, but failed to bring the
requested documents. Lisa again moved to compel production of the documents. She
requested the trial court sanction John in this manner: deem the business entities John
claimed as his separate property as community property.
The referee stated in part: "Without these documents, [Lisa] cannot
determine what, if any interest, the community has in any assets, nor can she rebut
[John's] assertion that assets are his separate property. Nor can [Lisa] understand [John's]
We shall refer to the parties by their first names, not from disrespect but to ease the
income and assets adequately to bring an OSC for support or attorney's fees. It appears
there has been no Family Code [section] 2030 attorney fee order in this matter. As a
consequence [Lisa] now seeks an order that prevents [John] from proving that any of the
mentioned assets are, in fact, his separate property. [¶] [Lisa's] frustration is genuine and
appropriate. Her proposed remedy is draconian and disfavored. This case is well over a
year old and [Lisa] has none of the critical information needed to even evaluate the
issues, much less assert and prove a position. . . ."
The referee recommended that John be given one more chance to produce
the documents before being precluded from presenting evidence that the business entities
are his separate property. The referee recommended that John be sanctioned $14,600 in
attorney fees and $40 in costs. The trial court adopted the referee's recommendation.
Lisa moved for attorney fees pursuant to section 2030. After a hearing, the
trial court found in part:
"Through June 10, 2010 [Lisa] had incurred $164,982.19 in fees and costs
and had paid $47,734.32. [Lisa] claims no monthly income with estimated monthly
expenses in excess of $24,000.00. As of August 12, 2010, [John] claims to have paid his
attorneys $300,677.00. [John] claims monthly income of $24,000.00 and expenses of
"[John] argues that he has paid virtually all of [Lisa's] fees thus far. That is
true. However, [Lisa] has no source of income except through [John]. There exist no
child or spousal support orders, arguably because [Lisa] cannot determine the full extent
of funds available for support. The discovery disputes continue. Because of those
discovery disputes the court knows little about the income or resources of [John], other
than the arguments set forth by both sides.
"What is clear is that [John] has been able to pay his attorneys more than
$300,000.00 and has paid [Lisa's] counsel $47,734.32. While the extent of [John's]
resources is not totally known, it is clear that he has resources sufficient to keep his fees
to his attorneys current. With no separate resources of her own, [Lisa] is entitled
pursuant to Family Code § 2030 to a contribution to her fees and costs. [John] is
therefore ordered to pay to [Lisa] as a contribution to her attorney fees and costs the
unallocated sum of $200,000.00."
Section 2030, subdivision (a)(1) requires the trial court in a dissolution
proceeding to ensure that each party has access to legal representation. If necessary, the
trial court may order one party to pay the other party's "reasonably necessary" attorney
fees "based on the income and needs assessments" of the parties.
John cites In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, 1386,
for the proposition that in exercising its discretion the trial court must take into account
the circumstances of the parties, their necessities and financial ability. He argues that the
trial court ordered him to pay $200,000 in attorney fees without evidence of his financial
ability to pay. He points out the court stated that it knows little about his income or
resources, other than the arguments made by the parties.
What John does not mention is why the trial court knows so little about his
income or resources. He steadfastly refused to comply with Lisa's legitimate discovery
requests and the orders of the court.
John does not deny that he has or can obtain the information. He simply
asserts that the business entities owned by him and his family will not allow him to
disclose it. He cites no authority to explain how the desires of these business entities, of
which he is at least part owner, can prevail over a court order.
Nor does John challenge any of the discovery orders. Instead, he claims
they are not relevant. But his refusal to abide by the rules for discovery precluded the
trial court from considering the very evidence he claims is necessary to support the
attorney fee award.
Where a party unlawfully withholds evidence of his income and assets, he
will not be heard to complain that an order is not based on the evidence he refuses to
disclose. If John wished the trial court to have considered all of the circumstances in
making an attorney fee award, the simple solution would have lain in his own hands:
disclose the information. But instead John closed the door to an appeal from the trial
court's order and threw away the key.
The disentitlement doctrine enables an appellate court to stay or to dismiss
the appeal of a party who has refused to obey the superior court's legal orders. (Say &
Say v. Castellano (1994) 22 Cal.App.4th 88, 94.) "Dismissal is not '"a penalty imposed
as a punishment for criminal contempt. It is an exercise of a state court's inherent power
to use its processes to induce compliance"' with a presumptively valid order." (Ibid.,
quoting Stone v. Bach (1978) 80 Cal.App.3d 442, 446.) Thus, the disentitlement doctrine
prevents a party from seeking assistance from the court while that party is in "an attitude
of contempt to legal orders and processes of the courts of this state." (MacPherson v.
MacPherson (1939) 13 Cal.2d 271, 277.)
John cites criminal and civil cases in which the disentitlement doctrine
applies, but argues the dissimilar facts in those cases compared to the facts here make his
cases distinguishable. (Polanski v. Superior Court (2009) 180 Cal.App.4th 507
[defendant was a fugitive from justice and was not entitled to an appeal]; Stone v. Bach,
supra, 80 Cal.App.3d 442 [defendant twice disobeyed the court's order to pay specified
funds to plaintiff, among other things]; Tobin v. Casaus (1954) 128 Cal.App.2d 588
[defendant failed to appear for debtor's examination resulting in a warrant for his arrest];
Alioto Fish Co. v. Alioto (1994) 27 Cal.App.4th 1669 [defendants failed to comply with
order to deposit income with a receiver]; In re Kamelia S. (2000) 82 Cal.App.4th 1224
[father absconded with minor]; Guardianship of Melissa W. (2002) 96 Cal.App.4th 1293
[grandparents denied placement and guardianship and their counsel absconded with
minor]; MacPherson v. MacPherson, supra, 13 Cal.2d 271 [husband's appeal contesting
wife's attorney fee order was dismissed after he left the country with the couple's children
in defiance of a custody order in favor of wife].)
Citing People v. Puluc-Sique (2010) 182 Cal.App.4th 894, 897, John argues
"[t]he disentitlement doctrine applies only 'when the balance of the equitable concerns
make it a proper sanction.'" We agree. And that is why we add John's attempted appeal
to the list of cases he cites. Although the facts in those cases differ from those here, the
principle is the same.
We need not determine whether the sanction orders issued against John
qualify as judgments of civil contempt pursuant to Code of Civil Procedure section 1209
et seq. The successive orders that gave rise to sanctions contain judicial findings that
John has persisted in willfully disobeying the trial court's orders. The principle permitting
this court to stay or dismiss an appeal does not require a formal judgment of civil
contempt. It "is based upon fundamental equity and is not to be frustrated by
technicalities," such as the absence of a formal citation and judgment of contempt.
(Stone v. Bach, supra, 80 Cal.App.3d at p. 444.)
John's refusal to comply with three separate court orders entitles this court
to dismiss his appeal. With the information it had, the trial court did its best to award
attorney fees and costs. The court was not required to wait until John decided whether he
would comply with discovery orders.
If John Could Appeal, the Result Would Not Change
John claims the uncontradicted evidence is that he will be forced to borrow
money. He points to his own declaration to that effect. But John confuses
uncontradicted evidence with credible evidence. The trier of fact may reject even
uncontradicted evidence as not credible. (See Sprague v. Equifax, Inc. (1985) 166
Cal.App.3d 1012, 1028.) Indeed, in light of John's refusal to respond to discovery
demands, there is little reason for the trial court to find anything he says about his
In any event, section 2032, subdivision (c) provides the trial court may
order payment of the award of attorney fees and costs "from any type of property,
whether community or separate, principal or income." The subdivision shows the court
has very broad discretion in ordering the payment of attorney fees and costs. Neither the
subdivision nor any other authority prohibits the trial court from making orders that
require a party to borrow money under appropriate circumstances. As the trial court
noted, John paid his attorney over $300,000.
John's reliance on In re Marriage of Mosley, supra, 165 Cal.App.4th 1375,
is misplaced. There the trial court's order required husband to pay nearly 100 percent of
his take-home pay in support payments. The order forced husband to rely on a
discretionary bonus with only a one-year history to support himself. The Court of Appeal
stated, "[The order] placed [husband] in a position of having to borrow for his living
expenses, and thus resulted in a miscarriage of justice." (Id. at pp. 1386-1387.)
Mosley does not stand for the proposition that as a matter of law there is
always a miscarriage of justice where an order requires a party to borrow. Mosley stands
only for the proposition that under the circumstances of that case, the order worked a
miscarriage of justice. (In re Marriage of Mosley, supra, 165 Cal.App.4th at pp. 13861387.) Because husband in Mosley disclosed his financial circumstances, the Court of
Appeal was able to make that determination. Here, unlike husband in Mosley, John
refused to make that disclosure. Thus John cannot carry his burden on appeal of showing
an abuse of discretion.
The appeal is dismissed. Costs are awarded to Lisa.
CERTIFIED FOR PUBLICATION.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Ellen Gay Conroy, Judge
Superior Court County of Ventura
Ferguson Case Orr Paterson, Gregory W. Herring, Douglas K. Goldwater,
Wendy C. Lasher for Appellant.
Goldenring & Prosser, Peter A. Goldenring for Respondent.