Marriage of Kulya and Reyngach

Filed 9/18/07 Marriage of Kulya and Reyngach CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Susanna Reyngach, in propria persona, appeals from an order imposing sanctions against her. She contends that the trial court abused its discretion in awarding $7,500 in attorney fees to her former husband, respondent George Kulya. We affirm.

I.                   Factual Background

Reyngach and Kulya have been engaged in a lengthy dissolution proceeding involving spousal support, child support, visitation, and custody. In January 2004, the court gave primary custody of their son, Ivan, then five years old, to Kulya. Reyngach was granted weekend visitation rights from 9:00 a.m. Saturday to 6:00 p.m. Sunday. Nick, Reyngachs son from a previous relationship, then 17 years old, also lived with Kulya after the separation.

On September 23, 2005, Reyngach filed a report with the San Francisco Police Department against Kulya claiming that he hit Ivan. As a result, the police arrested Kulya for child abuse, and a protective service worker recommended that Ivan be detained and temporarily placed with Reyngach. Upon adjudication of the matter, the juvenile court found that there had been no abuse.

Kulya subsequently requested sanctions against Reyngach in the form of attorney fees. He claimed that the child abuse allegations, which proved to be false, unnecessarily increased his costs and attorney fees and requested an award of $21,184.20. He also requested an additional $20,000 in attorney fees expended for other aspects of unnecessary litigation resulting from Reyngachs failure to cooperate. The trial court found that Reyngach did not promote settlement of this case and did not attempt to reduce litigation, and ordered her to pay Kulya $7,500 towards his attorney fees and costs pursuant to Family Code section 271.

Reyngach appeals.

II. Discussion

Family Code section 271, subdivision (a), in relevant part, provides that the court may base an award of attorneys 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 attorneys 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. . . .

A sanctions award under Family Code section 271 is reviewed under the abuse of discretion standard. (In re Marriage of Burgard (1999) 72 Cal.App.4th 74, 82)   [T]he trial courts 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 . . . .   (Ibid.)

The trial court found that Reyngach and her attorneys did not promote settlement nor attempt to reduce litigation, and specifically, that her unsubstantiated allegations of child abuse led to Kulyas incurring increased costs and attorney fees. It ordered Reyngach to pay $7,500 to Kulya towards those fees.

Reyngach does not challenge the finding that she did not promote settlement or attempt to reduce litigation. She does argue, however, that the trial court abused its discretion because the sanctions imposed on her an unreasonable financial burden. Reyngachs most current income and expense declaration shows that her monthly expenses exceed her monthly income by approximately $700 and that her assets amount to only $1,700. Also, the court has ordered Kulya to pay Reygnach a net amount of $222 per month as spousal support. Kulya further states she has paid $73,000 for her own attorney fees. While it is clear from the record as a whole that both parties are upside-down financially, Reyngach has not demonstrated that the trial court abused its discretion. Neither Reyngachs declaration nor her income and expense declaration demonstrate that the payment of $7,500 in fees will constitute an unreasonable financial burden, particularly since neither the children nor any other dependents are living in her household, and she has freely spent $73,000 for her own legal representation.

Reyngach further argues that the trial court abused its discretion because it did not consider Kulyas income and assets. Comparative wealth between competing litigants should be considered when imposing attorney fees so that the less affluent party is not discouraged from pursuing meritorious actions. (In re Marriage of Norton (1988) 206 Cal.App.3d 53, 59-60.) The record before us, however, reflects no great disparities. Although Kulya earns somewhat more than Reyngach, he also bears the expenses of his son and stepson, and is carrying an enormous amount of debt.

Reyngach also argues that Kulya failed to file an updated income and expense declaration and did not complete part of his earlier income and expense declaration, and therefore the trial court could not know his current financial condition. Reyngach, however, has not cited to any evidence indicating that Kulyas financial status had changed substantially from the date he filed his earlier income and expense declaration. Nor are we permitted to assume that the trial court presiding over this lengthy action was unfamiliar with the parties financial circumstances. (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) Reyngach bears the affirmative burden of demonstrating error. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) She has provided a scant seven substantive documents from a court file spanning at least three years. We cannot infer error based on the absence of information.

On this record, we conclude the trial court did not abuse its discretion in awarding sanctions.

III. Disposition

The judgment is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

RUVOLO, P.J.

___________________________

REARDON, J.

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