Marriage of Joseph, In re

• Citation: 266 Cal.Rptr. 548,217 Cal.App.3d 1277
• Decision Date: 14 February 1990
• Docket Number: No. A040057,A040057
• Court: California Court of Appeals
• Parties: In re the MARRIAGE OF Diana L. and Jim S. JOSEPH. Diana L. JOSEPH, Respondent, v. Jim S. JOSEPH, Appellant.

Page 548

266 Cal.Rptr. 548

217 Cal.App.3d 1277

In re the MARRIAGE OF Diana L. and Jim S. JOSEPH.

Diana L. JOSEPH, Respondent, v. Jim S. JOSEPH, Appellant.

No. A040057.

Court of Appeal, First District, Division 2, California.

Feb. 14, 1990.

Review Denied June 7, 1990.

Nordin F. Blacker and Leland, Parachini, Steinberg, Flinn, Matzger & Melnick, Merrill E. Steinberg, San Francisco, and De Goff and Sherman, Richard Sherman, Berkeley, for respondent.

Diana Richmond, San Francisco, for appellant.

KLINE, Presiding Justice.

Appellant Jim S. Joseph (husband) appeals from a lower court ruling permitting his former wife, Diana L. Joseph (wife), to seek attorney's fees in connection with a postjudgment child custody dispute between the parties. Husband contends the attorney's fee waiver provision contained in the parties' Marital Settlement Agreement precludes an award of attorney's fees, including those incurred in connection with disputes regarding the custody and support of the parties' children. Wife cross-appeals from the court's denial of fees, contending the court erred in concluding she had not demonstrated any need for attorney's fees.

BACKGROUND

Husband and wife married in 1976 and separated in 1984. They have three children who, at the time of the dissolution, were ages 8, 6 and 4. On February 15, 1985 husband and wife entered into a Marital Settlement Agreement which resolved the parties' financial issues. Because the parties were attempting to reach a mediated solution regarding the custody of their children the Agreement contained only interim arrangements for child custody.

The Marital Settlement Agreement gave wife $1,150,000 in cash, an oil and gas partnership, three vehicles, $8,000 each month in spousal support ¹ and a total of $4,500 monthly child support. Husband also agreed to pay for the children's school and medical costs and for wife's reasonable attorney's fees through the date of the final custody determination.

After mediation on the custody issue failed, the case was referred to Family Court Services for evaluation. Shortly before trial the matter was settled. The agreement, made in a court order on October 22, 1985, provided for joint legal and physical custody, with the children's primary residence with wife.

On July 16, 1986 husband filed a motion to obtain sole custody of the children based on information that wife was abusing cocaine and was not properly caring for the children. Husband obtained an order giving him sole legal custody of the children pending a hearing on the matter.

In January 1987, while the custody issue was being litigated, wife filed a motion which explained that she had become pregnant by her fiance, Jay Margulies, and that they planned to marry and make their home near Lake Tahoe. Wife therefore sought a change in the custody order which limited her residence to the Bay Area and required the children to attend the Hebrew Day School.

Experts appointed to represent the children's interests concluded that husband's fears concerning wife's drug use were unfounded and recommended that the children's primary residence remain with wife. Investigative reports indicated it would not be harmful for the children to leave the Hebrew Day School and move to Lake Tahoe. Husband stipulated to this conclusion so the custody dispute could be settled. In July 1987 the parties reached another agreement concerning the children, whereby they retained joint custody, and the children were permitted to make their primary home with wife in Lake Tahoe.

Wife sought attorney's fees for expenses incurred in connection with the custody dispute; husband argued that, pursuant to the Marital Settlement Agreement, wife had waived the right to any legal fees. The question of the validity of the waiver was submitted to the court for decision separately The court found that the Marital Settlement Agreement did not bar an award of attorney's fees in connection with the custody modification proceedings. It further observed that the evidence did not unambiguously show that wife had negotiated a waiver of fees for matters involving custody of the children. Husband appeals from that ruling.

from the question of what amount, if any, husband should be required to pay.

On November 4, 1987 the court held a hearing to determine whether wife was entitled to attorney's fees under Civil Code sections 4370 or 4370.5. The court concluded no "need" had been shown and thus no fees could be awarded. Wife appeals from that decision.

DISCUSSION

A. Husband's Appeal

Paragraph 8.01 of the Marital Settlement Agreement provides, in part, that: "Upon the obtaining of a final custody award, each party, subject to paragraph 8.03 hereof ² shall be responsible for his or her own costs and attorneys fees arising out of any subsequent legal issues arising out of the instant matter." Husband maintains this provision precludes an award of attorney's fees in the instant post-judgment custody dispute. He urges this court to rule that attorney's fee waivers are presumptively valid, even in the context of disputes concerning child support or child custody. We decline to do so.

In Lucachevitch v. Lucachevitch (1945) 69 Cal.App.2d 478, 159 P.2d 688 the parents of a young boy agreed to joint custody of the child. The father later sought exclusive custody of his son; the mother filed a countermotion, also seeking sole custody. The trial court modified the custody decree and awarded the mother attorney's fees and costs. The father appealed, contending that pursuant to the parties' interlocutory decree he was no longer responsible for his former wife's attorney's fees.

The Court of Appeal agreed the language of the divorce decree was sufficiently broad to bar an award of fees but nonetheless concluded that such a waiver could not be enforced without improperly limiting the courts' power to issue orders for the "custody, care, education, maintenance and support" of minor children whose parents divorce. (Id., at p. 484, 159 P.2d 688.) The court reasoned that "[c]ontroversies over custody are oftentimes long drawn out and bitter and they frequently present difficult questions for decision, requiring long and thorough preparation by competent counsel. There is a necessity for the services of attorneys in order that the court may be informed as fully as possible as to the competency and fitness of the respective parents, the conditions and influences that would surround the children in the home of one parent or that of the other and, where change of custody is sought, the court must make the most complete investigation as to whether the best interests of the children require that a change be made. The court is therefore vested with a broad discretion to order payment of attorney's fees whenever it appears necessary for a proper presentation of the case.... A decree which declared that no order could be made in the future for the payment of attorney's fees in matters affecting the custody or support of children would be to that extent void." (Id., at pp. 485-486, 159 P.2d 688.)

Husband contends Lucachevitch is founded on outdated concepts of family privacy and autonomy and ought not be followed. He focuses on language in the opinion which reveals the court's displeasure with the joint custody arrangement the parents had independently fashioned. The court first observes that "neither party saw fit" to submit the question of custody to the court. (69 Cal.App.2d at p. 480, 159 P.2d 688.) It later declares that "[t]he original decree was not the expression of the court's judgment, which only followed the agreement of the parties, and this We agree the statements from Lucachevitch quoted above reflect a negative view of family autonomy and flexible custody arrangements which has been abandoned by the Legislature (see, e.g., Civ.Code, § 4600.5 [presumption favoring joint custody]; Civ.Code, § 4607 [providing for mandatory mediation in contested custody matters] ) and repudiated by this and other courts. (See, e.g., In re Marriage of Mentry (1983) 142 Cal.App.3d 260, 267-268, 190 Cal.Rptr. 843 ["The concept of family privacy embodies not simply a policy of minimum state intervention but also a presumption of parental autonomy." (Fn. omitted.) ].) However, the outdated values reflected in the Lucachevitch court's comments on the joint custody arrangement do not in any way affect its reasoning with regard to the validity of the purported attorney's fee waiver; in fact, the foundation of the Lucachevitch ruling--that parties cannot by contract limit the court's power to resolve issues concerning children's welfare--has been reiterated in numerous later opinions.

                agreement, with all of its elaborate provisions, seems to have been shaped more to meet the demands of the father than to promote the welfare of the child.  The threatened detriment to the child through being shuttled back and forth between the parents appears to have been overlooked."  (69 Cal.App.2d at p. 483, 159 P.2d 688.)   Husband asserts that an opinion based upon such paternalistic values--which have been rejected by the Family Law Act and modern appellate authority--must be seriously questioned
                

For example, in Krog v. Krog (1948) 32 Cal.2d 812, 817, 198 P.2d 510 a mother sought to enforce a child support order in favor of her son who was conceived by the parties after the granting of the interlocutory decree. The court rejected the father's argument that the property settlement agreement barred recovery for attorney's fees and costs, stating that such an agreement "cannot defeat the power of the court to make such allowance in this proceeding for child support." (Id., at p. 817, 198 P.2d 510, citing Lucachevitch v. Lucachevitch, supra.) ³

Similarly, in Newhall v. Newhall (1958) 157 Cal.App.2d 786, 321 P.2d 818, the husband moved to reduce his spousal and child support obligations. The court denied his motion and awarded his former wife attorney's fees and...