In Marriage of Hofer: The “disentitlement doctrine,” enables an appellate court to stay or to dismiss the appeal of a party refusing to obey orders.
By Garrett C. Dailey, Certified Family Law Specialist
FACTS: H filed for dissolution in 2009 after 18-yr. marriage and 2 children. H had ownership interest in several businesses owned by his family. He had all information about their value, income stream and possible c/p interest. His income and assets were “substantial,” but unknown. He refused to disclose any information, arguing his family would not allow it. W issued 3 sets of demands for discovery, all of which H ignored. He was initially sanctioned $7,500 and a discovery referee appointed. After 2d motion to compel, H sanctioned $5,670. After H appeared at deposition without any documents, W sought issue sanctions finding all his business interests to be c/p. Referee agreed that H had not provided documents W needed to determine if c/p had an interest in businesses, but felt remedy “draconian” and recommended that he be given one more chance to provide discovery. H sanctioned $14,640.
W then moved for pendente lite attorney fee order. She had incurred $164,982 and had paid $47,734. H had paid his attorneys $300,677. H claimed a monthly income of $24,000 and expenses of $48,819. Trial ct. ordered H to pay W $200,000 in fees and he appealed, arguing evidence of his financial circumstances was insufficient. Court of Appeal dismissed his appeal based on “disentitlement doctrine.”
In Marriage of Hofer: Party With an Attitude of Contempt not entitled to court assistant
Relying on In re Marriage of Mosley (2008) 165 Cal.App.4th 1375, H argued that court-ordered fees without evidence of his financial ability to pay. Court of Appeal firmly rejected this argument, noting that the reason the court knew so little of his financial affairs was that he “steadfastly refused to comply with [wife’s] legitimate discovery requests and the orders of the court.” (In Marriage of Hofer, supra, 208 Cal.App.4th at p. 458.)
H did not deny that he had or could obtain the information but contended that his family would not permit him to disclose it. The court rejected this argument, noting that H cited “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.” (In Marriage of Hofer, supra, 208 Cal.App.4th at p. 458.)
“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.” (In Marriage of Hofer, supra, 208 Cal.App.4th at p. 458.)
The basis for this ruling was the “disentitlement doctrine,” which 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. The dismissal of H’s appeal was an exercise of a state court’s inherent power to use its processes to induce compliance with a presumptively valid order.
“[T]he 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.’ ” (In Marriage of Hofer, supra, 208 Cal.App.4th at p. 459.)
There was no requirement that H had to have actually been found in contempt. The successive orders that gave rise to sanctions contained judicial findings that H had persisted in willfully disobeying the trial ct.’s orders.
Fundamental Equity and Technicalities
“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 (In Marriage of Hofer, supra, 208 Cal.App.4th at p. 460.)
H’s refusal to comply with three separate court orders entitled the court to dismiss his appeal.
In dictum, the Court rejected H’s argument that he would be forced to borrow in order to pay the $200,000 attorney fee order to W. He had already paid his attorney $300,000. Family Code section 2030(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.” “Neither the subdivision nor any other authority prohibits the trial court from making orders that require a party to borrow money under appropriate circumstances.” (In Marriage of Hofer, supra, 208 Cal.App.4th at p. 460.)
Garrett C. Dailey is a Certified Family Law Specialist focusing on appellate issues and consultations, a Fellow in American Academy of Matrimonial Lawyers and publisher/co-author of ATTORNEY’S BRIEFCASE® CALIFORNIA FAMILY LAW, California’s oldest provider of self-contained legal research software. BriefCase is available online and through the Attorney’s BriefCase iPad® app. For more information visit them at www.atybriefcase.com. Also check out their FREE legal education log at www.MyLegalEducationLog.com.
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