Marriage of Lazor and Schoenbrun

Filed 2/11/08 Marriage of Lazor and Schoenbrun CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Joseph Lazor appeals the trial courts order requiring him to pay legal fees in the amount of $14,503.75 to the attorney appointed by the court to represent his three minor children in conjunction with his divorce proceedings. He claims that the order is void because the local rule purporting to authorize payment to the minors attorney is inconsistent with provisions of the Family Code. Because he has waived his right to appeal the order, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Appellant and Mari Schoenbrun are the parents of three children. The underlying divorce proceedings commenced on January 23, 2003.

On July 23, 2003, Schoenbruns attorney asked the court to appoint counsel to represent the children. The court tentatively appointed Scott Lueders, pending his acceptance.

At a hearing held on August 1, 2003, Lueders brought up the issue of his compensation. Initially, the court stated that Lueders would be paid at the court rate of $65 per hour and that the court had no reason to suppose that [Lueders] should be reimbursed otherwise than equally by each of the parties. At a later point during the hearing, Schoenbruns attorney expressed the opinion that neither of these parties is so impecunious that they could not afford Mr. Lueders normal rates and . . . I think hes going to do yeomans work in this case. It would be my thought he should be paid at a reasonable rate. Appellants attorney assented, on the condition that the parties each pay half. The court then stated I think thats fair. Its a bit of an imposition to ask that counsel be compensated at 1970s rates. Lueders then indicated that his normal rate was $275, and proposed that his rate in this case be set at $250, split equally between the parents. The reporters transcript is void of a verbal response by anyone in the courtroom to this proposal.

On February 19, 2004, the court issued a formal appointment order. The order is substantially similar to the form order found at Appendix H of the Marin County Local Rules.[1] The order recites that Lueders is to be paid at the rate of $250 per hour, with each parent contributing an equally divided share of $125 per hour. Payment is to be made within 30 days of the issuance of Luederss bill for services rendered. The order was approved as to form by both parties attorneys.

On January 11, 2007, Lueders filed a motion for attorney fees and costs. In his accompanying declaration, Lueders stated that his practice had been to bill both parents every month for fees incurred in representing their children. He indicated that appellant had not made a payment since September 1, 2006, and Schoenbrun had not made a payment since July 1, 2005. The total balance owed by appellant was $14,353.75, of which $2,111.13 was classified as finance charges. Lueders also requested fees incurred in bringing the motion.

On January 23, 2007, Lueders filed a declaration stating that he was withdrawing his motion as to Schoenbrun because she had recently paid him her portion of the outstanding fees.

On February 6, 2007, appellant filed a responsive declaration in opposition to Luederss motion. He stated that he did not have the financial ability to pay the amount demanded by Lueders. He included an income and expense declaration showing that his monthly income is $7,346 and his total monthly expenses are $8,482. He also argued that the February 2004 appointment order does not comply with Family Code section 3153, insofar as it requires the parents to pay whatever counsel might bill without determining whether the parents had the present financial ability to pay that amount.[2] He claimed that the court must know the actual cost of counsel before ordering payment so that it can determine the parties ability to pay that set amount. From the record before us, it appears that this is the first challenge of any type to the February 19, 2004 order.

The court issued a written tentative ruling, granting Luederss motion. The courts ruling states, in part: It is apparent from a reading of [the order issued on February 19, 2004] that the court did conduct the inquiry contemplated by FC 3153(b) and that, having done that, the court found that the parties each had the ability to pay one-half of Mr. Lueders fees so that a contribution by the county of Marin was not necessary. The court also stated: If Petitioner wishes to seek modification of this order, and/or if he wishes to contend that prospectively he lacks the ability to pay pursuant to the 2004 stipulation, he must seek that affirmative relief in a properly noticed motion, not in a responsive pleading.

A hearing on Luederss motion was held on February 23, 2007. The court affirmed its tentative ruling.

On March 7, 2007, the trial court entered its order, requiring appellant to pay Lueders $14,503.75. This appeal followed.[3]

DISCUSSION

Appellants arguments focus on the Superior Court of Marin County, Local Rules, rule 6.32.A, which provides: Where the Court appoints an attorney for a child pursuant to Fam. C 3150 et seq., the appointment order shall be substantially in the form prescribed by the Court, available at the Clerks Office or in Appendix H. Appendix H, like the February 2004 order at issue in this case, provides for a percentage-based apportionment of the attorney fees between the parties and, if applicable, the County of Marin. Appellant contends that this payment method is improper because it shifts the burden to the parents to move to modify the order if it turns out that they are unable to pay the amounts billed by the attorney.

At the hearing on Luederss motion, the trial court stated: The argument Im hearing here today is that this order, which was entered three years ago, is void ab initio. I disagree. I dont agree with the reading of Family Code 3153 that it requires the court to set a sum certain. Actually, if you take that to its logical extreme, it means that wed have to have a separate hearing on the amount of a bill for appointed counsel for children, and each partys ability to pay on perhaps a monthly basis. To state the proposition is to refute it. The court concluded If Dr. Lazor claims that he lacks the ability to pay, he needs to make a motion to modify [the order], not raise it as a defense to minors counsels motion.

I. Family Code Provisions Regarding Appointment of Counsel for Minors

Section 3150, provides: (a) If the court determines that it would be in the best interest of the minor child, the court may appoint private counsel to represent the interests of the child in a custody or visitation proceeding. [] (b) Upon entering an appearance on behalf of a child pursuant to this chapter, counsel shall continue to represent that child unless relieved by the court upon the substitution of other counsel by the court or for cause.

Section 3153 provides: (a) If the court appoints counsel under this chapter to represent the child, counsel shall receive a reasonable sum for compensation and expenses, the amount of which shall be determined by the court. Except as provided in subdivision (b), this amount shall be paid by the parties in the proportions the court deems just. [] (b) Upon its own motion or that of a party, the court shall determine whether both parties together are financially unable to pay all or a portion of the cost of counsel appointed pursuant to this chapter, and the portion of the cost of that counsel which the court finds the parties are unable to pay shall be paid by the county. The Judicial Council shall adopt guidelines to assist in determining financial eligibility for county payment of counsel appointed by the court pursuant to this chapter.

This clear legislative directive that counsels fees are to be paid, either by the parties or by the county, imposes a mandatory duty upon the court to award attorney fees to such counsel and vests in the attorney the right to receive a reasonable sum for compensation and expenses at the time the order is made. (In re Marriage of Lisi (1995) 39 Cal.App.4th 1573, 1576.)

Appellant does not challenge the amount of Luederss claimed fees. He claims solely that the order is invalid because it requires him to pay his share of Luederss fees without a judicial assessment of his current financial status. For the reasons stated below, we reject this argument.

II. Appellant Has Waived His Challenge to the Underlying Order

Appellant claims that his failure to challenge the February 2004 order is of no moment. He also claims he never had an obligation to seek to modify the terms of the February 2004 order that he now asserts is invalid. We disagree.

While appellant filed this appeal in reaction to the courts March 2007 ruling on Luederss motion for fees, he essentially is challenging the merits of the February 2004 order because that order forms the basis of the ruling from which he now appeals. We note that appellant made payments to Lueders in the past totaling $8,891.07, apparently without objection. He indicates in his opening brief that he became unable to pay Luederss monthly bills sometime prior to October 2004, when he began using his credit card to pay $150 per month to Lueders towards these fees.

It is well established that a party will be precluded from raising an error as a ground of appeal where, by conduct or inaction amounting to acquiescence in the action taken, he or she waives the right to attack it.  An appellate court will ordinarily not consider procedural defects or erroneous rulings . . . where an objection could have been, but was not, presented to the lower court by some appropriate method. [Citations.] [Citation.] Failure to object to the ruling or proceeding is the most obvious type of implied waiver. (In re Marriage of Hinman (1997) 55 Cal.App.4th 988, 1002.)

The justification for this rule is that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. [Citation.] (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184185, fn. 1.)

As noted above, section 3153, subdivision (b), allows a party to bring a motion requesting the trial court to determine whether both parties together are financially unable to pay all or a portion of the cost of counsel appointed pursuant to this chapter . . . . Although appellant had ample opportunity to bring a motion to assert his inability to continue paying his share of Luederss fees, it appears that he never asked the court to modify the terms of the February 2004 order nor made any other objection to the order. Moreover, he cannot claim that he was unaware of the amount owed as Lueders sent him monthly billing statements. Appellants failure to challenge the underlying order or to timely seek a modification is fatal to his claim, since by his conduct, he acquiesced to the ruling he now attacks. Accordingly, we find that he is foreclosed from challenging the March 2007 order requiring him to pay his share of Luederss accrued fees.

Finally, while we need not address the merits of appellants appeal, we observe it is not obvious to us that the February 2004 order is flawed. While the court did not conduct an evidentiary hearing into the parties finances, the existing appointment order was proposed by Schoenbruns counsel and was assented to by appellants counsel. We question how the court can be faulted for not requiring proof of the parties ability to pay when the parties themselves proposed and agreed to this fee arrangement.[4]

By way of an amicus brief, the Marin County Superior Court asserts that its local rule and associated forms are consistent with section 3153. Indeed, a review of local court rules in other Bay Area counties regarding the allocation of payment of appointed counsel fees suggests that the procedures followed in this case are not unique to Marin County.[5] There appear to be practical reasons for this. Section 3153, subsection (a) requires that counsel shall receive a reasonable sum not a set sum as appellant argues. In the unpredictable world of family law litigation involving child custody issues, the requirement of a set sum would require the court to have extraordinary prescient abilities. It is much more reasonable to set an hourly rate that is subject to modification, than it would be to order a set sum that may have little relationship to the work actually performed by counsel.

In arguing his position, appellant relies heavily on Elkins v. Superior Court (2007) 41 Cal.4th 1337. That reliance is misplaced. The Supreme Court in Elkins held that a trial courts local rule and order calling for the admission and use of declarations in family law proceedings were invalid because the provisions conflicted with the hearsay rule, thereby subjecting family law litigants to second-class status and depriving them of access to justice. (Id. at pp. 13591360, 1368.) The present case does not invoke similar implications.

DISPOSITION

The order is affirmed.

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[1] We take judicial notice of Appendix H, as amended in May 2007, on our own motion.

[2] All statutory references are to the Family Code unless specified otherwise.

[3] In spite of receiving notice of this appeal, no person or entity has filed a responsive brief. (See Cal. Rules of Court, rule 8.220.) In view of appellants argument that the superior courts local rule conflicts with controlling statutory provisions, we invited the superior court to file an amicus brief addressing this issue. It has done so, and appellant has filed a reply.

[4] We take this opportunity to note our disapproval of the tone used by appellants counsel in characterizing the trial courts actions. Gratuitous sarcasm is not appropriate in appellate briefs.

[5] For example, superior courts in San Francisco, Solano and Sonoma counties have local rules and/or forms providing for the apportionment of appointed counsels hourly rate between the parents.