Weissberg v. Weissberg
Filed 3/28/13
Weissberg v. Weissberg CA1/2
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opinion has not been certified for publication or ordered published for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
TWO
ANITA
WEISSBERG,
Petitioner and Respondent,
v.
LAWRENCE
WEISSBERG et al.,
Respondents and Appellants.
A132161
(San Francisco City & County
Super. Ct. No. FMS-10-386009)
Husband
and wife, a wealthy couple, were married for nearly 20 years when the husband
developed dementia. The husband’s adult
sons became involved handling his financial affairs, and began to eliminate or
reduce some of the payments husband had made to or for the wife. Although the marriage remained intact, the
wife filed a petition against her husband (later joining the sons, the trustees
of his trust), seeking greater payouts to allow her to maintain the standard of
living she had been afforded before her husband’s illness. The parties settled their differences as to
the underlying issues of support, but they disagreed about whether the trust
may be ordered to pay her attorney fees.
The trial court ruled that it could be required to do so.
Husband,
the trust, and the trustees (when referred to collectively, appellants) appeal,
an appeal that involves only the dispute about attorney fees. To resolve that appeal, however, we are asked
to examine fundamental issues of
privacy within a marriage, to determine what is required to assert a claim for
spousal support under Family Code sections 4300 and 4303,
and to answer what appellants claim is a question of first impression: whether the courts may be used at all to
compel payment of support for an ongoing standard of living in an intact
marriage. We answer that question, as
well as all other questions, in favor of the wife. We therefore affirm the order awarding her
attorney fees.
BACKGROUND
Appellants’ Opening Brief
Judging
by appellants’ dramatic opening brief
one might mistake this case for one of surpassing importance on the limits of
state power to intrude into the affairs of its citizens, and specifically its
married citizens. The brief opens this
way:
“The
State promulgates laws to regulate the formation of a marriage, the validity of
a marriage, and the termination of a marriage.
The State has no interest in the marriage once it has been established
and so long as it remains intact, expressing this lack of interest as an
inviolate right of privacy enshrined in Article 1, section 1 of the California
Constitution.
“The
only permissible intrusion by the state into the ongoing marriage is one that
is compelled by the State’s interests manifest as a concern for the State, for
example, such as the protection of the ‘public purse’ (e.g., Fam. Code §§ 4300
and 4303, Pen. Code § 270a) or an offense to the state, for example, such as
inter‑spousal violence. (e.g. Pen. Code §§ 273.8 - 273.88.)
“The
State takes no interest in the internal and intimate marital affairs of its
citizens absent an interest by the State to offset the codified Right of
Privacy. That respect given to the
privacy of the intimate, ongoing marital relationship is further amplified and
implemented through the sanctity of communications between spouses known as the
Marital Communication Privilege. (Evid. Code § 980.)
“The
State of California has no interest in whether or not Anita Weissberg receives
more than $37,737 tax-free dollars each month plus the use and enjoyment of a
residence in Pacific Heights and a condominium in the Trump Palace in New York
City.
“Appellant
will demonstrate that there is no authority, statutory or decisional, giving
the Court the right, under the facts of this case, to pierce the Constitutional
privacy rights asserted by Appellant Lawrence Weissberg and thereby violate the
public policy of this State.
“A
holding that Family Code section 4300 authorizes this gratuitous action for
more money by a woman who never alleged a violation of the duty of support,
never alleged any abandonment or refusal of shelter or necessaries, never
alleged any risk to the ‘public purse,’ had free and unfettered enjoyment of
her two marital homes and enjoyed payments worth $37,737 tax-free per month,
would establish a terrible precedent.
Such a holding would open the courts to any spouse who is unhappy with
the private financial arrangements within an ongoing marriage. Any such spouse could ask the Court to insert
itself into explicitly protected financial affairs as the third and dominant
party to potentially every ongoing, intact marriage in this State.â€
We
think the case is much less sweeping in its implications, and we fail to see a
holding adverse to appellants as a threat to the institution of marriage, as
appellants would have it.
The Facts
In
September 1982, Lawrence Weissberg, then age 61, married Anita Weissberg, then
age 41. Lawrence, president and chairman
of the board of Dover Investments Corporation (Dover), had a successful career
in which he had acquired a good deal of wealth through real estate development,
stock market investments, and the savings and loan industry.
and Lawrence’s children, Frederick and William. would become significant
players here when, years later, they took control of their father’s financial
affairs and began acting vis-Ã -vis Anita in a manner inconsistent with the
past.
Lawrence
and Anita entered a prenuptial agreement in August 1982 that provided there would
be no community property of the marriage. Lawrence’s wealth at the time of the
marriage was estimated at more than $17 million
and he had income of approximately $225,000 to $400,000 per year.
As
Lawrence was growing older, he wanted to enjoy life and to have Anita spend all
of her time with him. At his request
Anita quit her job after six months of marriage and abandoned her career to be
his full-time wife and companion. The couple enjoyed a sumptuous lifestyle,
dividing their time between Lawrence’s home in Pacific Heights in San Francisco
and his condominium in the Trump Palace on the upper East Side of Manhattan.
fine restaurants, attended the symphony, theater, and opera, entertained
lavishly, and participated in charitable functions. While all of the assets may have been
Lawrence’s separate property, he appears to have been unstinting in providing
Anita with a standard of living appropriate to his means. And in addition to paying for the lifestyle they
enjoyed together, Lawrence allowed Anita to use his credit card freely.
By
2000, however, Anita had begun to feel financially vulnerable. Lawrence was almost 80 years old, and Anita
had little in the way of assets and was not accumulating assets in spite of
their long marriage. To remedy the
situation, Lawrence determined to give Anita $2 million and $15,000 per month
to provide her with some financial security.
The monthly allotment was not intended to provide Anita with her sole
means of support, but was intended to allow her to build up some assets of her
own.
fact, Lawrence continued to spend lavishly of his own assets to sustain their
lifestyle.
On
May 6, 2000, Lawrence signed an agreement in which he promised to give Anita
$15,000 per month during his lifetime.
He further promised to give her, upon his death, his residence in San
Francisco, his condominium in the Trump Palace, and resources for the upkeep of
both. In addition, upon his death Anita
was to receive control over the assets that generated the $15,000 per month,
approximately $3.2 million. In exchange,
Lawrence was relieved of all financial responsibility for Anita’s two adult
daughters.
Three
days later Lawrence signed another agreement, promising to give Anita stocks
and/or securities worth $2 million. The
agreement recited that $498,740 had already been given to Anita and $1,501,260
was due and owing.
One
year later, on May 9, 2001, Lawrence and Anita signed an amendment to the
prenuptial agreement that was evidently intended to replace the agreements
entered May 6 and May 9, 2000. In
addition to giving Anita $15,000 per month during his lifetime, Lawrence
promised upon his death to give Anita: a
charitable remainder annuity trust in the amount of $6.2 million, the Pacific
Heights residence, the Trump Palace condominium, and $1,040,000 (which was, in
light of additional transfers, the revised amount due under the May 9, 2000
agreement.)
Also
on May 9, 2001, Lawrence amended his own living trust, the Lawrence Weissberg Revocable
Living Trust (LWT), which he had established in 1992. The amendment made the LWT consistent with
the amendment to the prenuptial agreement
with respect to provisions for Anita. On the same date Lawrence established the
Lawrence Weissberg Irrevocable Real Property Trust, which provided that Anita
would receive the Pacific Heights home and the Trump Palace condominium if she
survived him by at least 30 days.
Lawrence
went downhill mentally over a period of time but took a “decided turn for the
worse†in August 2001. In October 2001,
he surrendered legal control over the LWT,
and in December he resigned his position with Dover and his salary
ceased. Lawrence is now 92 years old, and the parties agree he is incompetent.
Lawrence
had appointed his son Frederick as attorney in fact in May 2000, and Frederick
became one of the trustees of the LWT in October 2001, when Lawrence
surrendered legal control.
name="_ftnref5" title="">[5] Anita claims that once Frederick took control
of his father’s wealth, he became increasingly resistant to providing Anita
with the funds required to maintain the lifestyle she had enjoyed when Lawrence
was in good health. And she began to pay
for some of her own expenses, though the LWT continued to pay for most of the
shared household expenses during this period.
In
2005, Anita approached the LWT about receiving the $1,040,000 she was due at
Lawrence’s death. Anita and the trustees
entered into an agreement in June 2005 called the “Agreement for Advance
Distributive Share of the Lawrence Weissberg Revocable Trust†(Advance
Agreement), and the LWT agreed to pay to Anita $1,040,000 early, which it did
in June 2005. Anita executed a release
of the LWT and trustees from any additional claims. The trustees say they would not have signed
the Advance Agreement without the release.
Though
Lawrence required in-home care beginning in 2002 (and eventually
round-the-clock care), he and Anita continued to live together in the Pacific
Heights home until June 2008, when he was moved to a facility specializing in
dementia care. According to Anita, after
Lawrence was moved to that facility, Frederick and William, as co-trustees,
further dramatically reduced the amount spent on Anita’s needs. And in August 2008 she consulted a probate
lawyer for advice regarding Lawrence’s estate plan and her ongoing dealings
with the LWT.
On
October 14, 2008, four months after Lawrence moved out of the marital home, the
attorney for the LWT sent Anita a letter stating that the trustees had decided
to adjust the expenses previously covered by the LWT. From that point forward, the LWT would pay
Anita $15,000 per month, for general household expenses, and for cosmetic
improvements to the two properties on a case-by-case basis. The LWT would not, however, pay for her
personal expenses, and eventually stopped paying for Anita’s cell phone,
groceries, household supplies, vitamins, body care items, nonprescription
drugs, gasoline, car insurance, travel, entertainment, and charitable contributions. Lawrence’s credit card was also canceled,
making his credit unavailable to Anita.
Anita
continued in the full enjoyment of the two homes and was receiving $15,000 in
cash per month from the LWT. But, she
claimed, the amount provided was insufficient to allow her to maintain her
marital lifestyle and to continue to move in her preexisting social circles,
and Anita continued using her own funds to pay expenses. This led to increasing insecurity as Anita watched
her assets dwindle. And to the petition
here.
The Proceedings
Below
On
April 19, 2010, Anita filed a petition pursuant to sections 4300 and 4303
naming Lawrence as the defendant to enforce his duty of support during
marriage. She sought an order setting a
“reasonable sum†for support, sufficient to meet her needs and to “return her
to the marital standard.†Over Anita’s objection, Frederick was appointed
guardian ad litem for Lawrence and filed
a response to the petition on Lawrence’s behalf.
Anita’s
own net worth was approximately $370,000 at the time she filed her petition;
Lawrence’s was alleged to be approximately $27 million, but may have been
closer to $44 million. In light of the
disparity in wealth, Anita also sought attorney fees and costs, as well as
forensic accountant’s fees. In June
2010, Nordin Blacker, Anita’s lawyer in the family law case, asked the trustees
to advance $100,000 for her attorney fees.
He also requested that Anita’s monthly allowance be increased by $10,000
per month. On June 17, 2010, the
trustees advanced checks to Blacker for $100,000 and to Anita for $50,000,
which represented an increase of $10,000 for the five preceding months.
Anita
moved to join the LWT and its trustees as parties to the action. The trustees opposed joinder on grounds that
Anita’s action was not authorized under sections 4300 and 4303 because it would
violate the parties’ privacy rights.
Lawrence also filed a notice asserting his privacy and due process
rights and the marital communications privilege under Evidence Code section
980.
A
hearing on joinder was held on September 14, 2010. The court ruled Anita’s declaration was
irrelevant to the joinder motion, but otherwise reserved jurisdiction to rule
on appellants’ objections. (See fn. 4,
There was no ruling on any issue relating to the validity of the
underlying action, including on appellants’ claims of privacy, due process, or
the marital communication privilege. By
written order dated October 27, 2010, the LWT and the Trustees were joined in
the action.
During
the September 14 hearing the court also said that it did not want the LWT to be
treated as “an unlimited fund for litigation†because the Trustees had a
fiduciary duty to Lawrence, Anita, and the Lawrence Weissberg Foundation
(Foundation).
title="">[7] The court encouraged the parties to work
toward a settlement, and they subsequently began
voluntarily advanced another $100,000 to Anita for her professional fees and
continued to pay her $25,000 per month.
The
parties reached a settlement, and on December 15, 2010, the following terms
were put on the record: (1) Anita
would receive a tax-free, non-modifiable allowance from the LWT of $55,000 per
month continuing until the earlier of her death, Lawrence’s death, or her
remarriage; (2) Anita would receive clear title to the Pacific Heights and
Trump Palace properties; and (3)Anita would be given access to a $100,000
reserve fund in the event of a future emergency. The settlement was later entered as a
stipulated judgment.
On
January 10, 2011, Anita filed a memorandum
of points and authorities in support of her request for fees and costs,
along with her own income and expense declaration and declarations by her
attorney and accountant to substantiate the fees. Her total fees and costs were $791,696. Appellants filed opposition.
By
court order entered March 25, 2011, the trial court resolved the matter, which
order begins with the following recital:
“Following a full settlement on all issues raised by petitioner wife’s
request for support in an intact marriage, the court took under submission
wife’s request for attorney fees and costs.
Further pleadings were directed by the court and the matter was
submitted on January 27, 2011. Because
minor disagreements regarding the settlement language delayed the entry of the
Stipulated Judgment, this court determined not to issue the fees order until
after the Judgment and Stipulation were filed and entered with this court,
which occurred on March 18, 2011. The
Court now issues its Findings and Orders regarding fees and costs under Family
Code section 2030 et seq.â€
Following
that recital, the order went on as follows: “Under the reasoning of [
1141 [(Kilroy)], and those cases to
which it cites [citations omitted] this court has equitable power, ‘in an
authorized action or proceeding for support, to grant pendent lite support and
authorization in so many words.’ (emphasis added) (Kilroy, supra, at p.
1146.)
“Although
Husband and the Trust contested that this court has authority to make support
orders in an intact marriage under Family Code section 4301 and 4303, they
waived the objection and granted the court authority by agreement inherent in
their settlement of the petition to enforce the support obligation.â€
There
followed three pages of findings of fact supporting the court’s conclusion,
which awarded Anita $689,223 in fees and costs, the calculation of which will
be discussed more fully below. The order
credited the LWT for the $200,000 already advanced and ordered the remaining
$489,223 payable “forthwith.â€
Appellants
filed a timely notice of appeal.
DISCUSSION
I.
Introduction
The
sole issue on appeal is the validity of the court’s award of attorney fees and
other professional fees. Appellants
contend the award cannot stand because (1) the action brought under section
4303 was not authorized in the first place; (2) the finding of waiver is not
supported; and (3) the amount of the award was excessive.
The
thrust of appellants’ fundamental argument is that Anita was entitled to have
her attorney fees paid by the LWT only if her action was “authorized†under
sections 4300 and 4303. (
And Anita’s action, they posit, was not authorized because (a) section
4300 is intended to require a spouse only to provide his or her spouse with
“the necessaries of life†and Anita was not being deprived of any necessities;
(b) an action by one spouse against another during an intact marriage may be
brought only if the health or basic welfare of the petitioning spouse is in
jeopardy; and (c) an action for support may only be brought under
section 4303 in a case where the husband and wife are separated or
divorced.
The
rule is that an objection to subject matter jurisdiction may never be
waived. (Keithley v. Civil Service Bd. (1970) 11 Cal.App.3d 443, 448
[subject matter jurisdiction may not “be conferred by consent, waiver or
estoppel†and “an objection to subject matter jurisdiction may be raised for
the first time on appealâ€].) While
appellants do not in so many words appear to be challenging subject matter
jurisdiction, they fundamentally contend that on the specific facts of this
case Anita’s claim was not authorized, and thus for policy or prudential
reasons the courts should decline to entertain petitions comparable to Anita’s. We thus begin with appellants’ fundamental
claim.
4300 and 4303 Authorized Anita’s Petition
A. The Statutes
“The
Legislature’s chosen language is the most reliable indicator of its intent
because ‘ “it is the language of the statute itself that has successfully
braved the legislative gauntlet.†’ â€
(MacIsaac v. Waste Management
Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082.) Section 4300 provides in full as follows:
“Subject to this division, a person shall support the person’s spouse.†Section 4303, insofar as it deals with suits
by one spouse against the other, provides that:
“(a) The obligee spouse, or the county on behalf of the obligee spouse,
may bring an action against the obligor spouse to enforce the duty of support.â€
lists the circumstances that should be considered in “ordering spousal support
under this part.†The reference to “this
part†quite clearly is to Part 3 (Spousal Support) of Division 9 (Support) of
the Family Code, where sections 4300 and 4303 are both contained. Sections 4300, 4303 and 4320 all were
enacted by 1992 Stats. ch. 162, § 10.
matter of statutory interpretation, we apply a de novo standard of review. (In re
Marriage of Dellaria & Blickman-Dellaria (2009) 172 Cal.App.4th
196, 201; In re Marriage of Feldman
(2007) 153 Cal.App.4th 1470, 1479.)
The
issue raised by appellants―one which consumes much of their voluminous
briefing―is that attorney fees may not be awarded at all because Anita’s
petition was not “authorized†under sections 4300 and 4303. Appellants argue vigorously that this is an
issue of first impression because no other reported case involves a suit by one
spouse against another in an intact marriage where the suing spouse is being
supported with basic necessities even though the level of support falls short
of that provided during the earlier history of the marriage. In particular, appellants argue that section
4320, subdivision (d)—which includes as a reference point the “standard of
living established during the marriageâ€â€”may not be applied to an intact
marriage, evidently of the view that separated or divorced spouses are entitled
to continue being supported at the marital standard, but spouses in an ongoing,
intact marriage are not.
name="_ftnref11" title="">[11] We cannot wring such a meaning from the
statutes. And any public policy
supporting such a position is hard to discern.
Appellants
insist we must look to the legislative history of section 4303 and must place
limits on who may bring an action under that section, even though no such
restrictions appear in the statutory language itself. Appellants lead us through a lengthy
discussion of the historical development of sections 4300 and 4303, and claim
there are policy reasons, not apparent on the face of the statutes, for
limiting the scope of the sections. And
they present claimed policy arguments as to why a spouse in an intact marriage
should not be permitted to sue the other spouse for support except in dire
circumstances, specifically, where the suing spouse has been abandoned without
support or given such meager support that he or she has fallen onto, or at
least threatens to fall onto, the public welfare rolls.
only to protect the public purse that the law was enacted, and it is primarily
the county itself which is authorized to sue.
It
is not clear exactly how far appellants would push this argument, but it is
possible they would deny a cause of action to anyone in an intact marriage who
is receiving from their spouse support in an amount sufficient to keep them off
public assistance. We cannot read into
the statute such limitations, based solely on the fact that a county, like a
spouse, is authorized to enforce the support obligation. And we do not agree that the sole function of
sections 4300 and 4303 is to protect the public purse.
The
obligation of spousal support was codified in California long before
section 4300 was adopted. (See
former Civ. Code, § 155, enacted 1872 [same as current Civ. Code,
§ 720].) Our courts have held there
is no single uniform legislative purpose served by spousal support, that its
purpose in each case turns on the individual facts. (In re
Marriage of Cheriton (2001) 92 Cal.App.4th 269, 312; In re Marriage of Smith (1990) 225 Cal.App.3d 469, 480-481.) In this case, its purpose is to protect a 71‑year‑old,
probably unemployable, woman from having to reduce her standard of living due
to what appears to be the trustees’ unreasonable refusal to maintain her at the
marital standard set by her husband, the trustor.
We
find no textual support for appellants’ claimed limitation in the Family Code
sections, and we look no further.
Despite appellants’ lengthy detour through the historical development of
these provisions, we must abide by the rules of statutory interpretation. We need not resort to an examination of
legislative history of the statute or other indicia of legislative intent if its
meaning is unambiguous. (S.B. Beach Properties
v. Berti (2006) 39 Cal.4th 374, 379.)
“If the statutory language is clear and unambiguous, our task is at an
end . . . .†(MacIsaac v.
Waste Management Collection & Recycling, Inc., supra, 134 Cal.App.4th at p. 1083; see also, In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 688
[legislative history “ ‘cannot change the plain meaning of clear
language’ â€].)
Here,
the reach of section 4303 is plain: “The
obligee spouse . . . may bring an action against the obligor spouse
to enforce the duty of support.†There
is no limiting language to suggest that only abandoned or impoverished spouses
may sue. No language to suggest that an
action for support may only be filed if the couple is separated. And no language suggesting that violation of
the criminal statute for failure to
support one’s spouse is prerequisite to the spouse’s filing a civil action for
support.
B. Kilroy v. Kilroy
court, involved a situation where no dissolution or legal separation action had
been filed. Husband challenged the
court’s jurisdiction to order temporary support and attorney fees in such
circumstances, but apparently did not argue there was no jurisdiction under
section 4303 to entertain the action. (
of the court, in an authorized action
or proceeding for support, to grant pendente lite support and litigation
expenses without statutory authorization in so many words.†(Ibid.,
italics added.)
Appellants
argue Anita’s action under sections 4300 and 4303 was not “authorized†and
spouse had abandoned the other. They
ultimately find this not too troubling in Kilroy
itself, because the wife there
alleged the husband had “attempted to deny her access†to their residence (
1143), and the husband alleged the parties had separated shortly before the
action was filed (id. at
p. 1144). According to appellants,
therefore, husband was failing to give any support to his wife, and thus
their words “useless†in deciding the case before us. We disagree with appellants’ reading of
In
Kilroy, neither party had filed for
dissolution (or apparently legal separation) because of the effect it would
have had on the wife’s entitlement to property under their prenuptial
agreement. (35 Cal.App.4th at p. 1144,
fn. 2.) And while the Kilroys were
living separately, so were Anita and Lawrence.
The only real distinction is that the Kilroys were living separately due
to marital discord, while Anita and Lawrence are living separately by force of circumstance. Such is of no legal significance in our view.
Appellants
seize upon the Kilroys’ living arrangement to suggest that the husband had
“abandoned†his wife, and wholly “deprived [her] of support.†The inference is unjustified. True, in Kilroy
the wife alleged that the husband had failed to support her “in accordance with
their marital standard of living, ‘or at
all.’ †(Kilroy,
examination of the case reveals scant support for the notion that Mrs. Kilroy
had been left destitute, and it cannot be reasonably claimed that Mrs. Kilroy’s
“health or basic welfare†was “in jeopardy†due to lack of shelter. (Commentary, Blumberg’s Cal. Family Code Ann.
344.) The couple had “several dwellingsâ€
(Kilroy, supra, 35 Cal.App.4th at
p. 1144), and there was no allegation that the husband had denied the wife
access to any of the other homes or that she was left homeless. (Id.
at p. 1144.) Nor is there reason to
believe Mrs. Kilroy had been left wholly without support. Her specific complaints were that her husband
had stopped allowing her to use the home for charitable functions (as she
apparently had done previously) and had closed her charge accounts and refused
to renew insurance on her valuables. (
she would have had more to complain about than nonrenewal of an insurance
policy. There is simply no basis to believe
Mrs. Kilroy had been left without clothing or nourishment, in want of medical
care, or otherwise in an impoverished state.
We seriously doubt Mr. Kilroy’s conduct amounted to a violation of Penal
Code section 270a, as appellants would evidently like us to infer, and there is
no suggestion in the opinion that the wife had been forced to seek public
assistance or was in any other manner a threat to the public purse. In sum, we see Kilroy as being closely parallel―not “useless.â€
There
is no escaping the fact that Kilroy
expressly determined that attorney fees may be ordered in actions brought under
section 4303, which is precisely the issue before us. Given the undisputed evidence that Lawrence,
while he was competent to do so, fully and liberally complied with what he
viewed to be his obligation of support, we cannot conclude that Anita’s
petition to enforce continuing compliance with the standard he set was
“unauthorized†under sections 4300 and 4303.
Kilroy does nothing to
convince us that Anita’s action was not “authorized.†It does much to persuade us that attorney
fees were properly awarded here.
Our
conclusion is bolstered by various treatises.
For example, while recognizing that the “primary purpose†of section
4303 “is to allow a public entity that has provided public assistance to a
married adult to seek reimbursement from the person’s spouse,†a leading
treatise further states that “[t]he person entitled to support may also bring
the action, whether or not the parties
have separated.†(2 Kirkland et al.,
Cal. Family Law Practice and Procedure (2d ed. 2012) § 50.100, p. 50-14
(italics added).) The same treatise
indicates that support may be sought in an action for dissolution, legal
separation, or nullity, or it may be “ordered in a proceeding between spouses
that does not address the status of the marital relationship.†(Id., § 51.02,
at p. 51-7; see also, California Child and Spousal Support: Establishing,
Modifying, and Enforcing (CEB 2013) § 5.16 [an action under § 4303
“may be brought even if the party seeking support does not wish to terminate an
ongoing marriageâ€]; Hogoboom & King, Cal. Practice Guide: Family Law (2012)
§ 6:810, p. 6-300; 1 Raye & Pierson, Cal. Civil Practice: Family Law
Litigation (2002) § 3:4, p. 12.)
If
we needed further support for our conclusion of Anita’s right to sue for
support, we would find it in a case dating back to the early days of our
statehood, in Galland v. Galland (1869)
38 Cal. 265, 272 (Galland). There, the wife and her infant child had been
driven from the marital home by her husband.
(Id. at p. 266.) The Supreme Court allowed the wife to sue her
husband in equity for adequate support without having to file for divorce. Though the majority opinion made reference to
the fact that a woman in such circumstances “might starve for lack of the
necessaries of life†(id. at p. 267),
there was no evidence that such was Mrs. Galland’s fate, as the husband was
voluntarily paying her $77 per month and she wanted $150 per month. (38 Cal. at p. 273 (dis. opn. of
Sprague, J).) We will not hazard a guess
what standard of living $77 per month would have supported in the 1860’s,
but it does not strike us as representing the kind of complete lack of support
appellants urge is necessary to maintain an action under section 4303.
Appellants
cite no authority to support their theory of the limitations on
section 4303, save for a Commentary to that section in Blumberg’s
Annotated California Family Code, which evidently inspired their approach to
this appeal. The Commentary―apparently
the opinion solely of the editor―reads as follows: “Kilroy v. Kilroy, 35 Cal.App.4th 1141, . . . holds
that a trial court may award temporary support and attorney’s fees in a civil
action brought by one spouse to enforce the other spouse’s Section 4300 duty of
support during marriage. Although
neither spouse had brought any action for dissolution, it appears that the
spouses were not living together when the wife brought her Section 4303 action. Thus Kilroy
does not directly challenge the venerable American rule that when the spouses
are still living together as husband and wife, the courts will not intervene in
an ongoing marriage to order spousal support absent jeopardy to the health or
basic welfare of the petitioning spouse.â€
As support for this “venerable American rule,†the editor then cites a
1953 Nebraska case, McGuire v. McGuire
(1953) 157 Neb. 226 [59 N.W.2d 336] (McGuire). (Commentary,
Blumberg’s Cal. Fam. Code Ann., supra, p. 344.)
domineering husband who refused to use his substantial assets to provide his
wife with what most of us would consider ordinary comforts, such as an indoor
toilet and a kitchen sink, and he severely restricted her use of the telephone
so she could not call her adult children who lived out-of-state. (McGuire,
supra, 59 N.W.2d at p. 338.) The
Nebraska court refused to grant her equitable relief while the marriage
remained intact. If she wanted a toilet
and a sink she would be forced to file for divorce. (Id.
at pp. 341-342.) If McGuire is evidence of a good rule, let alone a venerable one, it
comes in a novel guise.
Returning
to the law of California, the obligation of support, besides being covered by
section 4300, is provided for under section 720, which defines the mutual
obligations of husband and wife during marriage: “Husband and wife contract toward each other
obligations of mutual respect, fidelity, and support.†Such support is not, as appellants contend,
limited to the “necessaries of life.â€
In
Galland, the Supreme Court described
the obligation of spousal support as follows:
“Amongst other rights secured to the wife, is the right to be suitably
supported and maintained by the husband, according to his means and station. If he fails or refuses to provide such
support for her, the law authorizes her to purchase from others, on the credit
of her husband, whatever is necessary for her maintenance and suitable to her
station in life.†(Galland, supra, 38 Cal. at p. 266; see also Davis v. Davis (1924) 65 Cal.App. 499, 501 [“[E]very wife is
entitled to demand of her husband a support in accordance with his station in
lifeâ€]; In re Marriage of Stimel
(1996) 49 Cal.App.4th 991, 994-995, [spousal “support†defined as “all such
means of living as would enable one to live in the degree of comfort suitable
and becoming to his or her station of life . . . .â€].)
We
see nothing that would limit a spouse, whether wife or husband, to a claim for
items of absolute necessity, and instead think the spouse is entitled to be supported
in accordance with the other spouse’s station in life. That, we conclude, must be the case here,
where the husband previously had generously supported his wife through 20 years
of marriage prior to succumbing to dementia and there is no reason to believe
his trust could not continue to do so.
of appellants’ objections or policy arguments calls for a different result
1. Privacy
Appellants
claim that if we were to construe sections 4300 and 4303 as we have done it
would violate Lawrence’s privacy rights under the state and federal
Constitutions. The right of privacy has
been enshrined in article I, section 1 of the California Constitution: “All
people are by nature free and independent and have inalienable rights. Among
these are enjoying and defending life and liberty, acquiring, possessing, and
protecting property, and pursuing and obtaining safety, happiness, and
privacy.†A federal constitutional right
of marital privacy has also been recognized in Griswold v. Connecticut (1965) 381 U.S. 479, 484-486, as one
arising from the “penumbras†of several constitutional guarantees. (Id.
at p. 484.) We do not question that
marital financial matters may fall within the scope of marital privacy. (See City
of Carmel‑By‑the-Sea v. Young (1970) 2 Cal.3d 259, 268.) But we do not see these rights as being
violated by the type of action contemplated under section 4303.
Whether
a party has a legally cognizable privacy interest is a question of law
warranting independent review, as is the identification of countervailing
interests. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1,
40 (Hill).) The relative strength of those competing
interests presents a mixed question of law and fact which, since the material
facts are undisputed, may also be reviewed as a matter of law. (Ibid.)
Appellants insist
that any intrusion into marital privacy must be supported by a “compelling
need,†citing People v. Thomas (1984)
159 Cal.App.3d Supp. 18, 21. To begin
with, the reference in Thomas to the
necessity of a compelling state interest cannot stand after the Supreme Court’s
analysis in Hill,
a privacy interest under article I, section 1 must be overcome by a ‘compelling
interest.’ Neither the language nor history of the Privacy Initiative
unambiguously supports such a standard.
In view of the far‑reaching and multifaceted character of the
right to privacy, such a standard imports an impermissible inflexibility into
the process of constitutional adjudication.†“[S]ome aspects of the state
constitutional right to privacy―those implicating obvious government
action impacting freedom of expression and association―are accompanied by
a ‘compelling state interest’ standard.â€
(Hill, supra, at p. 34.) “Where the
case involves an obvious invasion of an interest fundamental to personal
autonomy, e.g., freedom from involuntary sterilization or the freedom to pursue
consensual familial relationships, a ‘compelling interest’ must be present to
overcome the vital privacy interest. If,
in contrast, the privacy interest is less central, or in bona fide dispute,
general balancing tests are employed.†(
Such
a general balancing test is called for here.
We do not deal with a statute authorizing government action or
forbidding private conduct that invades the privacy or autonomy of the marital
unit. No state action is involved. No forced disclosure is legislated. And no penalties are imposed by the
statutes. (See generally,
(2006) 38 Cal.4th 1177, 1200.)
It
is Anita who is throwing open the marriage to judicial intervention, not the
state that is seeking out Lawrence’s private secrets. And Anita is as much a holder of the marital
privacy right as is Lawrence. When a
spouse in an intact marriage opts to abandon her own privacy interests to
obtain the support to which she is entitled, we give the right to spousal
support more weight than the sued spouse’s privacy interest. (See Evid. Code, § 984 [marital communication
privilege not applicable in suits between spouses]; § 3551 [marital
communication privilege not applicable in actions under Division 9].)
competing interests of the parties. That
is all that is required. (
2. Due process
Had
the case gone to trial, Lawrence would have been entitled to cross-examine
Anita about her claims regarding their marital standard of living. Because he is mentally incompetent,
appellants claim this right was impaired by allowing an action to proceed under
section 4303. But this same concern
would be present whenever an incompetent person is engaged in litigation
through a guardian ad litem. (Code Civ.
Proc., § 372.) We do not conceive of any
reason why a suit under section 4303 should be eliminated for one spouse
because of the incompetency of the other.
(See In re Marriage of Caballero
(1994) 27 Cal.App.4th 1139, 1148-1154 [spouse with Alzheimer’s disease could
proceed in family court through appointment of guardian ad litem].)
Nor
do we have any special concerns about the ability of cross-examination to
uncover the truth in the context of this case.
Anita’s declarations about the marital lifestyle went unrebutted by
appellants—unrebutted, we note, in a record of nearly 1200 pages.
3. Public policy
At
their root, appellants’ objections to the availability of relief under sections
4300 and 4303 derive from the notion that courts should stay out of the affairs
of married couples, that it is bad public policy to allow husbands and wives to
sue each other over issues of support during an ongoing intact marriage. Appellants suggest our decision would set a
“terrible precedent†by “open[ing] the
courts to any spouse who is unhappy with the private financial arrangements
within an ongoing marriage,†with “no limit on the Court’s ability to intrude
on the private financial affairs of married people.â€
The
same argument was raised in Galland,
a wife a remedy without a divorce “will tend to breed discord in families, and
to encourage discontented wives to abandon their husbands on frivolous pretexts
of ill‑usage, relying on the Courts to compel the husbands to support
them.†The Supreme Court rejected the
argument in 1869, reasoning that “it might be urged with even more force, that
if such redress be denied to the wife in proper cases, dissolute and
unprincipled husbands would be encouraged to abuse their wives, by a
consciousness that any ill-treatment which stopped short of a lawful ground for
divorce, was without redress in the Courts.â€
(38 Cal. at p. 272.) We reject
the argument today, with the observation that the same may be said about
trustees who fail to abide by their trustor’s level of support.
We
are doubtful our decision will have the dire consequences predicted by
appellants. We see no threat to the
integrity of the marriage before us, as the bulk of Anita’s testimony consisted
of a fond recollection of the lifestyle she and Lawrence had enjoyed during his
better days. This is not a case where a
court was asked to micromanage a cohabiting, fully competent married couple’s
finances. Nor one where the husband had
been tight-fisted throughout the marriage and the wife now tries to improve her
lifestyle by seeking a higher standard of support after he has lost his
capacity to object. What we have, and it
is all we have, is that Anita’s spousal support was significantly reduced after
her husband’s incapacity, and her request only to be returned to the previously
established standard. No public policy,
nor one asserted in the name of marital harmony, or privacy, or autonomy, is
offended by the decision we make today.
4. No exclusive jurisdiction in Probate
Court
Running
through appellants’ arguments is the thread that Anita should have brought her
petition in probate court. It is, they
claim, really an action to compel the trustees to exercise their discretion in
a given manner, and thus the probate
court alone had jurisdiction over the “internal affairs†of the LWT.
The
Probate Code gives the probate court exclusive jurisdiction over the “internal
affairs of trusts†(Prob. Code, § 17000, subd. (a)), but only concurrent
jurisdiction over “proceedings†by “creditors . . . of trusts†and
“[o]ther actions and proceedings involving trustees and third persons.†(Id.,
subd. (b)(2) & (3).)
58 Cal.App.4th 1104, 1111, concluded that a child’s claim for support
against a deceased parent’s living trust was that of a creditor and hence
subject to concurrent jurisdiction. We
reach the same conclusion here.
Appellants’
analysis touches upon a fundamental question underlying Anita’s petition,
namely, whether the trustees have unfettered discretion in the present context,
or whether the concept of “support†encompasses the marital standard of living
so that the preexisting standard must influence and restrict the trustees’
exercise of discretion. Appellants have
repeatedly asserted, both below and here, that the courts would not entertain
an action such as this if Lawrence were competent to defend it on his own
behalf. We echo the trial court’s
incisive response: “But that presupposes
that he would be choosing to do today what his trustees are choosing to do. [¶] And isn’t the real determination of
what he would choose to do today more what he actually did when he was still
competent?†To that we add “Amen.â€
Appellants
Have No Right to Contest an Award of Fees and Costs
As
noted, the trial court found that appellants had waived their right to contest
the award of fees, as follows: “Although Husband and the Trust contested that
this Court has authority to make support orders in an intact marriage under
Family Code section 4301 and 4303, they waived the objection and granted the
court authority by agreement inherent in their settlement of the petition to
enforce the support obligation.†In
fact, appellants not only settled the support claim, but asked the court to
enter a stipulated judgment containing the following provision: “The parties
stipulate and agree to give the Court both the jurisdiction and power to make
this Stipulated Judgment non-modifiable.
Each party waives his/her/its right to make any claim that the Court
lacked jurisdiction, exceeded its jurisdiction, lacked power, or exceeded its
power by making a separate Stipulation and Order re Non-Modifiable Support
. . . .â€
Appellants
contend this was error, in an argument that purports to have six subparts.
A waiver is
the intentional relinquishment or abandonment of a known right. (Johnson
v. Zerbst (1938) 304 U.S. 458, 464.)
Judicial estoppel prevents parties from asserting one position at one
point in the proceedings and then taking a subsequent position fundamentally at
odds with their original position. (See,
e.g., Law Offices of Ian Herzog v. Law
Offices of Joseph M. Fredrics (1998) 61 Cal.App.4th 672, 679 [judicial
estoppel applied where party seeks some judicial relief based on a position the
party later attempts to change]; In re
Marriage of Toth (1974) 38 Cal.App.3d 205, 212 [“California public policy
will not permit a litigant ‘to blow hot and cold’ â€].)
Generally,
the determination of waiver is a question of fact, and the trial court’s
finding, if supported by substantial evidence, is binding on the appellate
court. (St. Agnes Medical Center v.
PacifiCare of California (2003) 31 Cal.4th 1187, 1196.) When, however, the facts are undisputed and
only one inference may reasonably be drawn, the issue is one of law and the
reviewing court is not bound by the trial court’s ruling. (Ibid.)
The determination of whether judicial
estoppel can apply to the facts is a question of law reviewed de novo, but
the underlying factual findings are reviewed for substantial evidence. (Blix
Street Records, Inc. v. Cassidy (2010) 191 Cal.App.4th 39, 46.)
As
noted, Lawrence filed in the trial court a notice that he intended to assert
his privacy rights under the California Constitution, his constitutional due
process right to cross‑examination, and the marital communication
privilege under Evidence Code section 980.
Later, following the joinder of the trustees, their attorney’s
declaration in opposition to Anita’s request for attorney fees noted that up
until the settlement Lawrence’s objections and arguments had not been
adjudicated. So, despite the settlement,
counsel reasserted in the fees hearing the privacy, due process and privilege
claims appellants had raised with regard to the underlying action. Appellants now contend these actions and
statements preserved the issue for appeal.
Regardless
of whether the issue is considered one of waiver or judicial estoppel, the fact
is that appellants sought the aid of the court to enshrine their settlement
with Anita in an order and to make it nonmodifiable, waiving any claims about
the court’s jurisdiction and power as part of that process. Put otherwise, appellants’ stipulation to the
court’s jurisdiction to make the settlement non-modifiable also encompassed an
implied affirmation that the court had the authority to make a support order in
the first instance. There was a clear
inconsistency between that position and the position now asserted by appellants
that the claim under section 4303 was “unauthorized.â€
Appellants
assert in their reply brief, however, that Anita is herself estopped from
claiming attorney fees because she signed the 2005 Advance Agreement, citing the recent case of
Cal.App.4th 770, 773-774. Passing over
whether appellants have forfeited this argument because it was not raised as a
bar to the award of attorney fees in the trial court
(see Honig v. San Francisco Planning
Dept. (2005) 127 Cal.App.4th 520, 530), the argument would fail on the
merits, as Guilardi is
distinguishable. In Guilardi, a husband and wife had signed a marital settlement
agreement that contained a provision allowing attorney fees to the
litigation concerning the agreement. (
held this provision constituted an implicit waiver of statutory attorney fees,
and barred the wife from seeking attorney fees for her unsuccessful attempt to set aside the settlement agreement. (Id.
at pp. 773-776.) Here, we do not
deal with a marital settlement agreement, or any agreement, between husband and
wife; and we are not asked to decide between the enforceability of a prevailing
party provision for attorney fees and fees otherwise to be awarded under
sections 2030 and 2032.
Moreover,
contained in an agreement Anita signed with the LWT, not with Lawrence
himself. Lawrence’s own duty of support,
and his corresponding liability for attorney fees, could not be abrogated by an
agreement Anita signed with the LWT.
Were
all that not enough, we note that Lawrence himself requested professional fees
and costs in his response to the petition,
signed by Frederick as guardian ad litem.
And appellants’ briefing in the trial court did not question the court’s
authority to award attorney fees, but rather disputed what would be a
reasonable amount.
Amount Of The Award Is Supported
Lastly,
appellants contest the amount of the attorney fees and costs awarded. We may interfere with such an award only if
it constituted an abuse of discretion. (
Cal.App.3d 1277, 1287.) We find none.
Appellants
preliminarily contend that the court erred in referring to sections 2030 and
2032 in its award of fees, claiming those sections apply only in cases
involving dissolution, legal separation, or nullity. We reject this argument on the basis that
appellants forfeited it by failing to object―indeed, expressly relying
on―the very sections they now claim to be inapplicable. Appellants’ briefing below referred liberally
to sections 2030 and 2032, and only after the order was issued did appellants
object to any reliance on those sections.
They cannot now be heard to complain.
Ins. Co. v. TIG Ins. Co., supra, 202 Cal.App.4th at p. 1000 [doctrine of
invited error.)
Anita
claimed total attorney fees and costs through December 31, 2010, of
$791,696. She sought fees for her estate
planning and probate counsel dating back to August 2008, two months after
Lawrence was moved to the dementia care facility and 20 months before she
filed the family law action. She also
sought fees for her family law counsel Blacker and her forensic
accountant. Appellants claimed they had
expended $590,536.87 for attorney services dating back to November 2009. The court found that, given the complexity of
the case and the quality of the representation, the fees on both sides were
reasonable. The court also found that
Anita’s fees were justified, even though some were incurred long prior to the
filing of the petition. We have no
reason to upset those findings.
The
court reached its fee award using the following thoughtful reasoning. The court thoroughly analyzed the respective
assets of the parties, including that as of December 31, 2010, the LWT had
liquid assets of roughly $16.4 million, and illiquid assets (not including the
two residences) with a net book value of more than $22.5 million. The court then determined that the net liquid
assets of the LWT, taking account of future obligations, were $3.2 million.
$250,000, which amounted to approximately 7.3 percent of the combined
liquid assets of Anita and the LWT.
Anita should therefore pay 7.3 percent of the combined
fees—$1,382,232—for both sides. That
7.3. percent was calculated at $100,777, which was deducted from Anita’s fees
and costs, leaving Lawrence responsible for $689,223.
The
Trustees claim they have a duty to conserve trust assets in order to pay for
Anita’s nonmodifiable allowance of $55,000 per month and to continue to provide
for Lawrence’s care, whose living expenses were $303,714 annually in 2009. The Trustees also point to their duty to
conserve trust assets in order to provide for the bequests to Lawrence’s adult
children (who are also Trustees), to fund the $6.2 million charitable remainder
annuity trust for the benefit of Anita, and to fund the Foundation. The first two future needs were taken into
account in the court’s calculation. As
to the Foundation, no specific bequest was made to it, the residual beneficiary
under Lawrence’s estate plan.
The
court did omit illiquid assets from the calculation, unwilling to force either
party to sell or mortgage their real estate or other illiquid holdings. (See
Cal.App.3d 456, 464.) Appellants cite no
authority for their contention that the “disparity in access†language of
section 2030, subdivision (a)(2) required Anita to sell or encumber the real
property she had just acquired through the settlement. (Cf. In re
Marriage of Sorge (2012) 202 Cal.App.4th 626, 659-663 [assessment of need
is of relative need; court considered only liquid assets].)
Appellants
also fault the court for failing to consider all relevant factors, including
the LWT’s expenses, eroding assets, the speculative value of its illiquid
assets, and its lack of autonomy in disposing of those assets because ownership
was shared with third parties. These
issues were put before the trial court and presumably were taken into
account. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1526
[presumption of official duty regularly performed by judge].)
Finally,
we find no merit to appellants’ contention that the court failed to consider a
recent amendment to section 2030, subdivision (a) (2) that required
consideration of “disparity in access to funds to retain counsel.†The amended version of the law was cited and
argued to the court. There is no reason
to believe the court ignored the change in language. (Evid. Code, § 664.) Appellants’ citation to In re Marriage of Keech (1999) 75 Cal.App.4th 860 is particularly
inapt. There, the court’s orders for
support and fees, together with the husband’s own rent and taxes, left him with
only $93 per month to live on and without funds to pay his own attorney. (Id.
at p. 867.)
The
trial court carefully analyzed the necessary and appropriate criteria
thoroughly, and carefully explained its reasoning. Its order is fully supported.
DISPOSITION
The
order awarding attorney fees is affirmed.
Anita shall recover her costs on appeal.
_________________________
Richman,
J.
We concur:
_________________________
Kline, P.J.
_________________________
Lambden, J.
Undesignated statutory references are to the Family Code.
As is typical in family law cases, we refer to the parties by their first
names. No disrespect is intended.
