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C.A. Affirms Sanctions for Illogical Reliance on Case Law
Opinion Says Mother’s Refusal to Settle Child Support Matter Based on Factually Distinguishable Case
Amounted to Uncooperative Conduct as Statutorily Required to Impose Attorney Fees
By Kimber Cooley, associate editor
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VIRGINIA DONNELL |
A party who takes a “hardline” stance against settling a child support dispute due to an erroneous belief that established case law supports her position may be subject to sanctions under legislation providing for them in family law matters when a litigant frustrates the policy favoring cooperation and out-of-court resolution, Div. Four of this district’s Court of Appeal has held.
At issue is Family Code §271, which provides:
“[T]he 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.”
Appealing an order awarding fees to her ex-husband was Virginia Donnell, who objected to the sanctions by pointing to case law she asserts supports her legal position. The dispute erupted after her 16-year-old son T.D. refused to live with her—despite a court order providing for an even split of custody between the parents—and moved in full time with his father, Thomas Donnell.
T.D.’s father sought a modification to the governing child-support order, under which he was to pay his ex-wife $2,390 per month, due to the new living arrangement. Despite multiple attempts by the father to come to an agreement between the parties, Virginia Donnell refused to compromise saying she was on “solid ground” in objecting to the modification based on the 2011 case of In re Marriage of Cryer from this district’s Court of Appeal.
In the Cryer case—involving actor Jon Cryer from the popular sitcom “Two and a Half Men”—the court upheld child support payments to the mother during the pendency of a custody dispute despite the minor moving in with Cryer due to the initiation of a dependency action against the mother. The court noted Cryer’s wealth and the fact that the mother was in danger of losing the child’s long-term home without financial help.
On March 13, 2023, Los Angeles County Judge Joseph Lipner granted Thomas Donnell’s request to modify child support, ordering the mother to repay all support received since January 2023. The judge also ordered her to pay $6,200 in sanctions under §271, finding that she adopted “an overly aggressive litigation position” by relying on Cryer and refusing to compromise.
Presiding Justice Brian S. Currey authored the unpublished opinion, filed Tuesday affirming the order. Justice Audrey B. Collins and Div. Seven Justice Gail Ruderman Feuer, sitting on assignment, joined in the opinion.
No Reasonable Reliance
Virginia Donnell argues that the sanctions award must be reversed because she reasonably relied on the Cryer case to oppose the father’s request to modify child support and she was improperly penalized for refusing to settle.
Turning to the facts of Cryer, Currey wrote:
“[M]other aptly observes that father earns more money than she does. The similarities between this case and Cryer end there, however. In Cryer, the father earned approximately $327,000 per month, while the mother had ‘negligible average income and liquid assets,’ and reported the father’s support payments constituted her only significant source of income….Here, by contrast, the trial court found that, ‘far from having no income, [mother] has her own law firm that grosses over $1 [m]illion per year and nets her’ income of at least $8,200 per month. The record supports the trial court’s findings and additionally demonstrates mother owns over $1 million in assets, including properties located in Big Bear and Long Beach.”
Agreeing with Lipner that Virginia Donnell’s claim that she would lose her home without support lacked credibility, the jurist also noted that the Cryer decision did not hold that courts should always give great weight to income disparities but instead “acted within the bounds of its broad discretion by considering the parties’ finances, along with numerous other facts, to order the father to pay more support than required by the guideline formula.”
Currey opined:
“We likewise reject mother’s assertion that Cryer should guide the outcome in this case because here, as in Cryer, father was temporarily granted sole custody of T.D. Her argument oversimplifies the appellate court’s analysis in Cryer. [I]t emphasized the child’s ‘visitation and custody situation was potentially volatile’ and ‘subject to potentially sudden change’ because the child was involved in a dependency case.”
He continued:
“Here, however, T.D. is not the subject of a dependency proceeding. The trial court had exclusive control over custody and visitation. And when father filed his request to modify child support in early December 2022, the court was aware T.D. would remain in father’s custody until the evidentiary hearing set for May 2023 based on its own orders in place at the time. Therefore, T.D.’s custody and visitation situation was not as unpredictable or volatile as the child’s in Cryer. And although mother aptly notes the parties stipulated to resume sharing 50-50 custody of T.D. in July 2023, her observation has no bearing on our analysis because the stipulation was filed two months after the trial court issued the modification order.”
Sanctions Order
The presiding justice said “we agree with the trial court that mother’s ‘reliance on Cryer [to demand father continue paying her $2,390 per month in support even though he had sole custody of T.D.] does not…withstand reasonable scrutiny’ ” given the factual discrepancies.
Under these circumstances, Currey wrote:
“[The trial court did not] sanction mother simply because she refused to settle the dispute at hand. Instead, the trial court found that, in addition to rejecting father’s reasonable proposal to suspend his child support payments without prejudice while T.D. remained in his care, mother made no attempt whatsoever to reciprocate his cooperative efforts or negotiate with him to avoid litigation.”
He added:
“Based on these findings, which are supported by undisputed evidence, the trial court could reasonably conclude mother’s immediate adoption of a hardline stance and steadfast refusal to work toward a compromise constituted ‘uncooperative conduct [that]…frustrated the policy of promoting settlement of litigation and cooperation among litigants’ in family law matters.”
The case is In re the Marriage of Donnell, B329193.
Virginia Donnell is a family law attorney and founder of the Beverly Hills based firm of Griffin Donnell and Associates APC. She now practices under the name Virginia Griffin.
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